Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC, et al

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Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC, et al

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 23, 2010 N o . 09-30592 Lyle W. Cayce Clerk

C O M B O MARITIME, INC. P la in t if f v. U .S . UNITED BULK TERMINAL, LLC; U.S. UNITED BARGE LINE, LLC; U N IT E D MARITIME GROUP, LLC, in personam; MARLENE ELLIS M/V, its e n g in e s , tackle, apparel, etc., in rem; BRENDA KOESTLER M/V, its engines, t a c k le , apparel, etc., in rem D e fe n d a n t s - Appellants v. C A R N I V A L CORPORATION / FANTASY M/V T h ir d Party Defendants - Appellees

A p p e a l from the United States District Court fo r the Eastern District of Louisiana

B e fo r e JOLLY and GARZA, Circuit Judges, and MILLER * , District Judge. M I L L E R , District Judge: I n this barge breakaway case, the appellant-third party plaintiff, U.S. U n ite d Bulk Terminal, LLC and its related entities and vessels (collectively

*

District Judge of the Southern District of Texas, sitting by designation.

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No. 09-30592 " U n it e d " ), appeals the district court's order granting appellee-third party d e fe n d a n t 's , Carnival Corp. and its vessel FANTASY (collectively "Carnival"), m o t io n for summary judgment on United's claims for contribution and in d e m n it y , and property damage. I . Facts C o m b o Maritime, Inc. ("Combo") sued United for damages sustained when a number of barges broke free of their moorings at United's barge fleeting facility a n d drifted downstream, alliding with Combo's vessel, the M/V ALKMAN, which la y at anchor nearby. United filed a third-party complaint against Carnival, a lle g in g that the barge breakaway was caused by the negligent navigation of C a r n i v a l's cruise ship FANTASY when it navigated too close to the fleeting fa c ilit y under full speed. United brought claims against Carnival for (1)

c o n t r ib u t io n and indemnity, and (2) damage to United's fleeting equipment and b a r g e s .1 United additionally proffered Carnival as a defendant under Rule 14(c) o f the Federal Rules of Civil Procedure. Carnival moved for partial summary judgment on United's complaint b a s e d on the Supreme Court's decision in THE LOUISIANA, 3 Wall. (70 U.S.) 1 6 4 , 173, 18 L.Ed. 85 (1866). The LOUISIANA Rule creates the rebuttable p r e s u m p t io n that in collisions or allisions involving a drifting vessel, the drifting v e s s e l is at fault. See, e.g., James v. River Parishes Co., 686 F.2d 1129, 1131­32 (5 t h Cir. 1982). After reviewing the submitted evidence, the district court

g r a n t e d Carnival's motion for partial summary judgment. It further ordered t h a t at trial between Combo and United, United could not present evidence that C a r n iv a l's alleged negligence contributed to the barge breakaway. Later, on a

At oral argument, United expressly disclaimed any right to indemnity or claim for damage to its barges and fleeting equipment, claiming solely a right of contribution from Carnival.

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No. 09-30592 m o t io n for reconsideration, the district court also ordered that United's thirdp a r ty complaint against Carnival be dismissed with prejudice. After the district court entered judgment for Carnival, United settled with C o m b o . As part of the settlement agreement, Combo specifically released all of it s claims against all parties by name, including Carnival. Combo also assigned a ll of its claims against Carnival to United. United then filed the instant appeal o f the district court's order on summary judgment and judgment on United's t h ir d -p a r t y claims. At this court's request, the parties submitted supplemental le t t e r briefs regarding whether the appeal is moot in light of United's settlement w it h Combo. For the following reasons, we reverse and remand. I I . Mootness A s an initial matter, we must address whether the appeal before us is m o o t . "Whether an appeal is moot is a jurisdictional matter, since it implicates t h e Article III requirement that there be a live case or controversy." Bailey v. S o u th e r la n d , 821 F.2d 277, 278 (5th Cir. 1987). "[A]ny set of circumstances that e lim in a t e s actual controversy after the commencement of a lawsuit renders that a c t io n moot." Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th C ir . 2006). "In admiralty cases, federal courts allocate damages based upon the p a r tie s ' respective degrees of fault." In re Omega Protein, Inc., 548 F.3d 361, 370 (5 t h Cir. 2008) (citing United States v. Reliable Transfer Co., 421 U.S. 397, 411 (1 9 7 5 )). "Damages are apportioned among the tortfeasors themselves through t h e application of the doctrin[e] of contribution." THOMAS J. SCHOENBAUM, 1 A DMIRALTY & MARITIME LAW § 5-18 (4th ed.). The right of contribution in a d m ir a lt y collision claims is of ancient lineage. Cooper Stevedoring Co. v. Fritz K o p k e , Inc., 417 U.S. 106, 110, 94 S. Ct. 2174 (1974) (citing THE NORTH STAR, 1 0 6 U.S. 17, 1 S. Ct. 41 (1882)) (tracing the right of contribution in collision cases b a c k to the Laws of Oleron in the 12th century); Hardy v. Gulf Oil Corp., 949 3

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No. 09-30592 F .2 d 826, 829­30 (5th Cir. 1992). "Contribution is defined as the `tortfeasor's r ig h t to collect from others responsible for the same tort after the tortfeasor has p a id more than his or her proportionate share, the shares being determined as a percentage of fault.'" United States v. Atlantic Research Corp., 551 U.S. 128, 1 3 9 , 127 S. Ct. 2331 (2007) (quoting BLACK'S LAW DICTIONARY 353 (8th ed. 2 0 0 4 ) ) . "The right of contribution exists only in favor of a tortfeasor who has d is c h a r g e d the entire claim for the harm by paying more than his equitable s h a r e of the common liability." RESTATEMENT (SECOND) OF TORTS § 886(A) (1 9 7 9 ). Therefore, contribution requires that the claimant have paid more than h e owes, and have discharged the entire claim. A s one commentator puts it, "[d]ifficult and interesting contribution q u e s t io n s arise where one or more tortfeasors settle before trial." SCHOENBAUM, s u p r a , § 5-18. In McDermott, Inc. v. AmClyde, 511 U.S. 202 (1994), the Supreme C o u r t addressed a part of this question and held that when one defendant of m a n y settles with a plaintiff, the liability of the remaining non-settling d e fe n d a n t s is calculated based on their proportionate responsibility for the p la in t iff's injuries without regard to the amount of the settlement. Id. at 221. In a companion case to McDermott issued the same day, the Supreme Court also h e ld that when one defendant settles its claim with the plaintiff, "actions for c o n t r ib u t io n against settling defendants are neither necessary nor permitted." Boca Grande Club, Inc. v. Fla Power & Light Co., 511 U.S. 222, 222 (1994) (c it in g AmClyde, 511 U.S. at 202). L ik e w is e , we have held that AmClyde's proportionate liability scheme bars a settling tortfeasor from seeking contribution from a non-settling tortfeasor. Ondimar Transportes Maritimos v. Beatty St. Props., Inc., 555 F.3d 184, 187 (5th C ir . 2009). Nor may a settling tortfeasor seek recovery from a non-settling t o r t fe a s o r based on an assignment of the property damage claim by the plaintiff. Lexington Ins. Co. v. S.H.R.M. Catering Servs., Inc., 567 F.3d 182, 185 (5th Cir. 4

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No. 09-30592 2 0 0 9 ); Ondimar, 555 F.3d at 189. However, in both Ondimar and Lexington, we in d ic a te d that when a settling tortfeasor obtains a full release 2 from the plaintiff fo r all parties, an action for contribution might not conflict with AmClyde. We n o w make explicit what we have previously implied and hold that AmClyde does n o t prevent an action for contribution for a settling tortfeasor who obtains, as p a r t of its settlement agreement with the plaintiff, a full release for all parties. A s discussed above, in order to bring a claim for contribution, the settling t o r t fe a s o r must have (1) paid more than he owes to the plaintiff, and (2) have d is c h a r g e d the plaintiff's entire claim. The AmClyde court held that a litigating d e fe n d a n t could not pursue a settling defendant for contribution, because the l i t ig a t in g defendant would, under the proportionate share rule, pay only his s h a r e of the judgment. AmClyde, 511 U.S. at 221. Because a right of

c o n t r ib u t io n requires that a defendant pay more than he owes, and the p r o p o r t i o n a t e share rule dictates that a defendant pays only his share of the ju d g m e n t -- n o more, no less--a litigating defendant could never have a c o n t r ib u t io n claim, by definition. By extension, the amount a settling defendant, w h o obtains only a release for himself, pays represents only his share of the ju d g m e n t , regardless of the actual dollar amount. Id.; Murphy v. Fla. Keys Elec. C o o p . Assoc., 329 F.3d 1311, 1314 (11th Cir. 1314). Therefore, he too has no c la im for contribution as long as the settlement represents only his portion of the dam ages. W h e r e the settling tortfeasor takes an assignment of the plaintiff's claim, t h e n the settling tortfeasor essentially steps into the plaintiff's shoes and p u r s u e s the plaintiff's claim. In that scenario, the plaintiff's claim is not

e x t in g u is h e d . And, as we discussed in Ondimar, allowing assignment of a claim

For the purposes of this opinion, "full release" indicates that the plaintiff has released all potential tortfeasors from liability, regardless of whether the potential tortfeasor is a party to the settlement giving rise to the full release.

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No. 09-30592 u n d e r m in e s the goals of AmClyde. Ondimar, 555 F.3d at 188­89. Further, there a r e strong policy reasons for not allowing a settling defendant to take an a s s ig n m e n t of a tort claim under these circumstances. Id. at 188 (citing Beech A ir c r a ft Corp. v. Jinkins, 739 S.W.2d 19, 22 (Tex. 1987)). I f, however, the settling defendant discharges the plaintiff's entire claim a s evidenced by a total release of all potential joint tortfeasors, then the settling d e fe n d a n t has met the requirements for a contribution claim. Because he is r e s p o n s ib le for only his portion of the damages, and he paid the entire amount, h e has paid more than he owes. And, because he has obtained a release of all o t h e r potential joint tortfeasors, he has extinguished the plaintiff's claim. Therefore, he may bring a claim for contribution against the non-settling p o t e n t ia l tortfeasors. I n the instant case, United settled with Combo. As part of the settlement a g r e e m e n t, Combo released both United and Carnival, among others, from lia b ilit y for damages to the M/V ALKMAN. Additionally, Combo assigned all of it s rights, claims, and causes of action for damage to the M/V ALKMAN to U n it e d . Therefore, we find that although the assignment is invalid under

O n d im a r and Lexington, United may bring a claim for contribution against C a r n iv a l. Accordingly, this appeal is not moot. Therefore, the court will proceed t o the merits of the appeal. I I I .T h e Rule of THE LOUISIANA 1. S ta n d a r d of Review " W e review a grant of summary judgment de novo, applying the same s t a n d a r d as the district court." QBE Ins. Corp. v. Brown & Mitchell, Inc., 591 F .3 d 439, 442 (5th Cir. 2009). Summary judgment is appropriate "if the

p le a d in g s , the discovery and disclosure materials on file, and any affidavits show t h a t there is no genuine issue as to any material fact and that the movant is e n tit le d to judgment as a matter of law." FED. R. CIV. P. 56(c). 6

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No. 09-30592 2. A w a s h in Maritime Presumptions "L ia b ility in collision and allision cases has always been apportioned based o n fault." Fisher v. S/Y NERAIDA, 508 F.3d 586, 593 (11th Cir. 2007).

Maritime law, however, uses evidentiary, fault, causation, and other p resu m p t io n s throughout its resolution of negligence suits. SCHOENBAUM, supra, § 14-3 (4th ed. 2004). These presumptions shift the burden of production and p e r s u a s io n to the defendant. A. F a u lt in Allisions

T w o common presumptions are presumptions of fault, based on the rules a r t ic u la t e d in THE OREGON, 158 U.S. 186, 15 S. Ct. 804 (1895) and THE L O U I S I A N A , 3 Wall. (70 U.S.) 164 (1865). The rule of THE OREGON creates a presumption of fault that shifts the burden of production and persuasion to a m o v in g vessel who, under her own power, allides with a stationary object. THE O R E G O N , 158 U.S. at 192­93; James, 686 F.2d at 1132 n.2. The rule of THE L O U I S I A N A creates the same presumption for a vessel who drifts into an a llis io n with a stationary object. THE LOUSIANA, 3 Wall. (70 U.S.) at 173; J a m e s , 686 F.2d at 1131­32. Both of these presumptions are closely related to t h e doctrine of res ipsa loquitor which creates a rebuttable presumption of fault o n the part of the person controlling the instrumentality. SCHOENBAUM, supra, § 14-3. And, although the two presumptions apply to different types of

v e s s e ls -- v e s s e ls under their own power and drifting vessels--the courts treat t h e m similarly, looking to law on one to inform decisions on the other. See S/Y N E R A I D A , 508 F.3d at 593 (doctrines are the same except the vessels to which t h e y apply); City of Chicago v. M/V MORGAN, 375 F.3d 563, 572 n.11 (7th Cir. 2 0 0 4 ); Rodi Yachts, Inc. v. Nat'l Marine, Inc., 984 F.2d 880, 886 (7th Cir. 1993) (P o s n e r , J.); James, 686 F.2d at 1132 n.2. T h e s e presumptions shift the burden of production and persuasion on the is s u e of fault. They are "`[e]videntiary presumptions . . . designed to fill a factual 7

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No. 09-30592 v a c u u m . Once evidence is presented . . . presumptions become superfluous b e c a u s e the parties have introduced evidence to dispel the mysteries that gave r is e to the presumptions.'" In re Mid-South Towing Co., 418 F.3d 526, 531 (5th C ir . 2005) (quoting Rodi Yachts, 984 F.2d at 887); see also In re Omega Protein, I n c . , 548 F.3d 361, 368­69 (5th Cir. 2008). But see Bunge Corp. v. M/V F U R N E S S BRIDGE, 558 F.2d 790, 795 n.3 (5th Cir. 1977) ("[W]e reject the h o ld in g of the Third Circuit that when both sides had `fully presented testimony r e g a r d in g their version as to what happened prior to the collision . . . the p r e s u m p t io n disappeared as a matter of law.'" quoting Pa. R.R. Co. v. S.S. Marie L e o n h a r d t, 320 F.2d 262, 264 (3d Cir. 1963))). And, they must be properly c o n fin e d to the issue of breach only--not "causation (either in fact or legal cause) o r the percentages of fault assigned to the parties adjudged negligent." MidS o u th Towing, 418 F.3d at 532. "Application of [one of these presumptions] does n o t supplant the general negligence determination which requires a plaintiff to p r o v e the elements of duty, breach, causation and injury by a preponderance of t h e evidence." M/V MORGAN, 375 F.3d at 572­73 (citing Bunge Corp., 558 F.2d a t 798; Brown & Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 7 2 4 , 726 (5th Cir.1967)). In a recent case regarding damage to a dock from an allision with a p le a s u r e yacht drifting during Hurricane Frances, the Eleventh Circuit outlined t h e three ways in which a defendant could rebut the presumptions established b y both THE LOUISIANA and THE OREGON. S/Y NERAIDA, 508 F.3d at 593. T h e defendant can demonstrate: (1) that the allision was the fault o f the stationary object; (2) that the moving vessel acted with r e a s o n a b le care; or (3) that the allision was an unavoidable accident. . . . Each independent argument, if sustained, is sufficient to defeat lia b ility .

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No. 09-30592 I d . (internal quotations omitted); see also Zerega Ave. Realty Corp. v. Hornbeck O ffs h o r e Transp., LLC, 571 F.2d 206, 211 (2d Cir. 2009). The first route is essentially the contributory negligence route. S/Y

N E R A I D A , 508 F.3d at 593. For example, the drifting vessel may argue that the o p e r a t o r of the dock was also negligent in failing to moor the drifting vessel p r o p e r ly . Rodi Yachts, 984 F.2d at 889. Or, a vessel under its own steam may a r g u e that its allision was caused by the improper placement of a navigational b u o y . Inter-Cities Navigation Corp. v. United States, 608 F.2d 1079 (5th Cir. 1 9 7 9 ) (Brown, J.). The second route requires the defendant to negate negligence. S/Y

N E R A I D A , 508 F.3d at 593. Here, the moving vessel bears the burdens of p r o d u c t io n and persuasion, and the risk of non-persuasion. James, 686 F.2d at 1 1 3 2 . "The appropriate standard of care in this regime is based upon `(1) general c o n c e p ts of prudent seamanship and reasonable care; (2) statutory and r e g u la to r y rules . . . ; and (3) recognized customs and usages.'" S/Y NERAIDA, 5 0 8 F.3d at 594 (quoting SCHOENBAUM, supra, § 89); Bunge, 558 F.2d at 802. T h e third route places the most difficult burden on the defendant, because a s a superceding causation argument it can free the moving vessel from all lia b ilit y . S/Y NERAIDA, 508 F.3d at 596. I f the drifting or moving vessel offers as a defense that the collision w a s an unavoidable accident or vis major, "[t]he burden of proving in e v it a b le accident or Act of God rests heavily upon the vessel a s s e r t in g such defense." The vessel must show that the accident c o u ld not have been prevented by "human skill and precaution and a proper display of nautical skills[.]" James, 686 F.2d at 1132 (quoting Petition of United States, 425 F.2d 991, 995 (5 t h Cir. 1970)). The case of THE LOUISIANA was an Act of God case. 3 Wall. (7 0 U.S.) at 173. There, the steamer LOUISIANA loosed her moorings in a stiff b r e e z e and drifted into a collision with the steamer FLUSHING which was 9

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No. 09-30592 a g r o u n d and out of the channel or course of passing vessels. Id. The Court fo u n d that although the wind and tide had risen considerably, "[t]he drifting of t h is vessel was not caused by any sudden hurricane which nautical experience c o u ld not anticipate." Id. The Court concluded that the collision was caused by in a d e q u a t e mooring and held the LOUISIANA liable for the collision damage. Id. Notably, though the Eleventh Circuit's drifting yacht case, S/Y Neraida, a ls o involved a hurricane, the argument that prevailed there was not the Act of G o d argument, but rather the argument that the yacht's owner took reasonable p r e c a u tio n s when securing the yacht in light of the impending storm. Arguably, t h e NERAIDA could have tried the Act of God route to exoneration had it failed t o demonstrate reasonable care. B. S w e lls and Suction of Passing Vessels

I n addition to the presumptions of fault placed on moving vessels in a llis io n s , maritime law recognizes--although not as widely--a presumption of fa u lt on a passing vessel when its wake causes damage to a properly moored v e s s e l. See West India Fruit & Steamship Co. v. Raymond, 190 F.2d 673, 674 (5 t h Cir. 1951); New Orleans Steamboat Co. v. M/T HELLESPONT GLORY, 562 F . Supp. 391, 392 (E.D. La. 1983) (quoting Shell Pipe Line Corp. v. M/T CYS A L IA N C E , 1982 A.M.C. 389, 395 (E.D. La. 1981)); SCHOENBAUM, supra, § 14-2. The passing vessel may rebut the presumption of fault by showing that it took r e a s o n a b le care in passing. Id. Alternatively, it may demonstrate that the s t a t io n a r y vessel was improperly moored. New Orleans Steamboat, 562 F. Supp. a t 392. C. C o llid i n g Presumptions

I f the two parties to a collision or allision suit each have a presumption of fa u lt against them, then it is likely that the presumptions would merely cancel e a c h other out. In Rodi Yachts, Judge Posner examined this question. In that c a s e , a moored barge slipped its moorings and allided with a dock and two other 10

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No. 09-30592 v e s s e ls . Rodi Yachts, 984 F.2d at 881. The barge owner impleaded the dock o w n e r , claiming that the dock had improperly moored the barge. Id. The p la in t iffs -- t h e owners of the damaged property--had the rule of THE L O U I S I A N A working in their favor. Id. at 886. While the barge owner also had a presumption against the dock. Id. at 887. "[I]f a vessel that has been docked fo r a substantial period of time breaks loose from its moorings and an accident r e s u lt s , the operator of the dock shall have the burden of proving that the b r e a k in g loose was not the result of his negligence." Id. The Court examined t w o main questions in resolving the issue: (1) against whom do the presumptions o p e r a t e ; and (2) what happens when the presumptions clash. F ir s t , the Court examined the presumption against the drifting v e s s e l-- h e r e , the barge. It found that the drifting vessel presumption did not o p e r a t e between co-defendants. T h e issue [on appeal] is not the allocation of responsibility for the a c c id e n t between the owner of the drifting vessel and the owners of t h e stationary objects that were damaged by it. The issue is the a llo c a t io n of responsibility between the owner and the third party t h a t let the vessel slip its mooring and drift into collision with the p la in t iffs ' property. The drifting-vessel presumption is not designed fo r the allocation of liability between the injurers, as distinct from t h e allocation of the loss between them and their victims, and a lth o u g h occasionally mentioned in the former context as well it d o e s not control decision there, as well shown by Pasco Marketing, I n c . v. Taylor Towing Service, Inc., 554 F.2d 808 (8th Cir.1977), and L a n c a s te r v. Ohio River Co., 446 F.Supp. 199, 202 and n.1 (N .D .I ll.1 9 7 8 ). For while as between drifting vessel and stationary o b je c t struck by it common sense suggests that the former is more lik e ly to have been at fault in the collision than the latter, there is n o similar "presumption" when the issue is whether the drifting v e s s e l itself or the dock that, as it were, let it drift was at fault in t h e subsequent collision of the vessel with a stationary object. I d . at 886. Therefore, the Court found that the presumption against the drifting v e s s e l did not apply to the issue of comparative fault. 11

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No. 09-30592 T h is Court, although presented with this argument in Mid-South Towing, d id not reach the issue of the directionality of presumptions. Mid-South Towing, 4 1 8 F.3d at 531. We found instead that the district court had determined fault b a s e d on the facts in the case without resort to the presumptions. Id. Citing R o d i Yachts with favor, we explained that with the presence of evidence of fault in the record, the need for presumptions evaporates. Id. (citing Rodi Yachts, 984 F .2 d at 887). I n Rodi Yachts, the Seventh Circuit went on to determine that if the two p r e s u m p t io n s had clashed, they would have disappeared, leaving the burdens o f production and persuasion in their original pre-presumption state. Id. at 887. There, however, the Court found that there was sufficient evidence in the record t o dispense with the presumptions altogether. Id. D. P r e s u m p t i o n s and Comparative Fault

I n United States v. Reliable Transfer Co., Inc., the Supreme Court ushered in the practice of comparative fault in maritime collision law. We hold that when two or more parties have contributed by their fa u lt to cause property damage in a maritime collision or stranding, lia b ilit y for such damage is to be allocated among the parties p r o p o r t io n a te ly to the comparative degree of their fault, and that lia b ilit y for such damages is to be allocated equally only when the p a r t ie s are equally at fault or when it is not possible fairly to m e a s u r e the comparative degree of their fault. 4 2 1 U.S. 367, 411, 95 S. Ct. 1708 (1975). The presumptions under the rules of T H E LOUISIANA and THE OREGON do not affect this principle. See, e.g., M id -S o u th Towing, 418 F.3d at 532 ("[P]roperly cabined the scope of the Oregon r u le , which speaks explicitly only to a presumed breach on the part of the a llid in g vessel, and is not a presumption regarding either the question of c a u s a t io n (either cause in fact or legal cause) or the percentages of fault assigned p a r tie s adjudged negligent."); accord M/V Morgan, 375 F.3d at 578 (applying

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No. 09-30592 p r e s u m p t io n and dividing the damages); Hood v. Knappton Corp., 986 F.2d 329, 3 3 2 ­ 3 3 (9th Cir. 1993) (applying presumption and dividing damages); Rodi Y a c h ts , 984 F.2d at 888­89 (applying presumption and remanding for further fin d in g s on apportionment of damages). 3. A p p lic a tio n T h e district court applied the rule of THE LOUISIANA improperly when it (1) applied the presumption between co-defendants; (2) applied the wrong s t a n d a r d of proof for rebutting the presumption; and (3) interpreted the p r e s u m p t io n as a presumption of sole liability. First, the district court

i m p r o p e r ly applied the drifting vessel presumption in favor of Carnival and a g a in s t United. Carnival moved for summary judgment based on the argument t h a t United could not overcome the presumption of fault against it under the r u le of THE LOUISIANA. The district court not only incorrectly applied the d r ift in g vessel presumption between co-defendants, but also applied the Act of G o d test--"the vessel must show that the accident could not have been prevented b y human skill and precaution and a proper display of nautical skills"--instead o f the reasonableness test for negating negligence. The district court reviewed e v id e n c e on the mooring system and the maintenance records and found that the e x p e r t 's testimony regarding "the mooring equipment's adequacy . . . [is] not s u ffic ie n t to satisfy the burden imposed by James." S e c o n d , the district court addressed United's argument that Carnival, u n d e r the passing vessel presumption, had the burden to show that it navigated p r u d e n t ly . The district court first found that the drifting vessel presumption e ffe c t iv e ly trumped the passing vessel presumption. Therefore, the district court p la c e d upon United the burden to show that the Carnival ship navigated im p r u d e n t ly . United was unable, in the district court's opinion, to meet this b u r d e n . Notably, the passing vessel presumption first requires the moored v e s s e l to demonstrate that it was properly moored before the burden is shifted 13

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No. 09-30592 t o the passing vessel. Had the district court, using a reasonableness standard, d e t e r m in e d that the United barges were not properly moored, then the p r e s u m p t io n would not have operated against Carnival. However, the district c o u r t found that United was unable to rebut the presumption of negligence a g a in s t it based on an improper Act of God standard. Therefore, there are in s u ffic ie n t findings in the record to determine whether the passing vessel p r e s u m p t io n should have been applied against Carnival. A d d it io n a lly , although the district court made no explicit finding on this p o in t, its ruling and subsequent dismissal of Carnival as a party suggest that it in t e r p r e t e d the drifting vessel presumption as a presumption of sole fault on the p a r t of the drifting vessel. This assumption simply cannot square with the case la w and "[t]he rule in admiralty . . . that joint tortfeasors are entitled to allocate a plaintiff's damages among themselves in accordance with their relative fault." Rodi Yachts, 984 F.2d at 885 (citing Reliable Transfer, 421 U.S. at 411). Even a s s u m in g arguendo that the court had properly applied the rule in THE L O U I S I A N A to United relative to Carnival, and properly discarded the p r e s u m p t io n against a passing vessel, United should still be entitled to present e v id e n c e of comparative fault at trial. Mid-South Towing, 418 F.3d at 532. I I I . Conclusion F o r the foregoing reasons, the district court's grant of partial summary ju d g m e n t in favor of Carnival, and its judgment against United on all of its c la im s against Carnival are REVERSED. This case is REMANDED to the d is t r ic t court for further proceedings consistent with this opinion.

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Case: 09-30592

Document: 00511212001 09-30592

Page: 15

Date Filed: 08/23/2010

E M I L I O M. GARZA, Circuit Judge, dissenting: T h e majority opinion depends on the validity of a release contained in a R e c e ip t , Release, Indemnity and Assignment Agreement between Combo and U n ite d , which was received by the courtroom deputy at oral argument. That d o c u m e n t is not part of the record in this appeal. Nor is it part of the district c o u r t record as the agreement was reached after the district court granted s u m m a r y judgment in Carnival's favor. Without a formal submission of the a g r e e m e n t and its acceptance into the record, we cannot consider it. See, e.g., In r e GHR Energy Corp., 791 F.2d 1200, 1201­02 (5th Cir. 1986) ("[T]his court is b a r r e d from considering filings outside the record on appeal . . . ."). A lt h o u g h appellate courts have the discretion to supplement the record on a p p e a l with evidence not reviewed by the court below, see Dickerson v. Alabama, 6 6 7 F.2d 1364, 1367 (5th Cir. 1982), we should do so charily. I would not e x e r c is e this court's discretion to accept the agreement into the record. At this t im e , there has been no determination that the agreement received at oral a r g u m e n t is a valid, accurate, and complete copy or otherwise competent and a d m is s ib le evidence under the Federal Rules of Evidence. The document on w h ic h this appeal turns is materially different in kind from the types of d o c u m e n t s which we have allowed to be supplemented on appeal. See, e.g., In r e GHR, 791 F.2d at 1202 (ordering supplementation of appellate record with n o tic e of appeal filed in the district court); Dickerson, 667 F.2d at 1367 (ordering s u p p le m e n t a t io n of appellate record with state court trial transcript). Moreover, I question whether joint submission of the agreement by United and Carnival w o u ld even be sufficient, since Combo, one of the parties to the agreement, is not a party to this appeal. It very well may be that an evidentiary hearing is needed t o determine the validity and scope of the agreement, especially in light of the fa c t that one of the parties to the agreement is not before the court.

Case: 09-30592

Document: 00511212001

Page: 16

Date Filed: 08/23/2010

09-30592 I would hold judgment in abeyance, remand to the district court to create a record and to consider, in the first instance, the validity of the release and w h e t h e r it moots this case. A c c o r d in g ly , I respectfully dissent.

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