Marquette Transp. Co. Gulf-Inland LLC v. Navigation Mar. Bulgare JSC

87 F.4th 678

MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, L.L.C., Plaintiff—Appellee, v. NAVIGATION MARITIME BULGARE JSC, incorrectly identified as Navigation Maritime Bulgarea;

Balkan Navigation, Limited, Defendants—Appellants/Cross-Appellees, v. Robert Johnson, Third Party Defendant—Appellee/Cross-Appellant.

No. 22-30261

United States Court of Appeals, Fifth Circuit

FILED December 4, 2023

Appeal from the United States District Court for the Eastern Distinct of Louisiana, USDC No. 2:19-CV-10927, Nannette Jolivette Brown, U.S. District Judge

Evans Martin McLeod, Esq., Arthur R. Kraatz (argued), Phelps Dunbar, L.L.P., New Orleans, LA, for Plaintiff—Appellee.

Peter Brooks Sloss, Esq., Timothy David DePaula, Esq. (argued), Murphy, Rogers, Sloss, Gambel & Tompkins, New Orleans, LA, for Defendants—Appellants/Cross-Appellees.

Alan R. Davis (argued), Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Third Party Defendant—Appellee/Cross-Appellant.

Peter J. Butler, Jr., Esq., Richard G. Passler, Breazeale, Sachse & Wilson, L.L.P., New Orleans, LA, for Amicus Curiae Crescent River Port Pilots Association, Incorporated.

E. John Litchfield, Esq., Berrigan Litchfield, Metairie, LA, for Amicus Curiae New Orleans and Baton Rouge Steamship Pilots' Association.

Michael R. Delesdernier, Esq., Metairie, LA, for Amicus Curiae Board of River Port Pilots Commissioners for the Port of New Orleans.

Before King, Jones, and Duncan, Circuit Judges.

Edith H. Jones, Circuit Judge:

This action arises from a collision between the M/V STRANDJA and the M/V KIEFFER E. BAILEY on the Mississippi River. A jury found that the owner of the KIEFFER E. BAILEY was not negligent with respect to the collision and awarded that vessel's owner $114,000 damages after finding that the STRANDJA's owner and manager were negligent and that the STRANDJA's river pilot was grossly negligent. The noteworthy holding here is that Louisiana law governs the burden of proof for the pilot's error. Accordingly, we AFFIRM in part, VACATE in part, and REMAND for a new trial as to the M/V STRANDJA and its owners and pilot Johnson.

I. BACKGROUND

On the morning of January 3, 2019, the STRANDJA was anchored at the New Orleans General Anchorage, which is situated along the western side of the Mississippi River. The ship was facing upstream and was secured by both a port and starboard anchor.¹

In preparation to return to sea, Captain Robert Johnson, a Louisiana state commissioned river pilot, boarded the vessel as its compulsory pilot. He requested that the STRANDJA's master, Captain Kiril Karapanov, instruct the crew to heave the port anchor. The process of heaving the port anchor at first pulled the ship's bow landward, to port. This landward movement was a natural result of the strain placed on the port anchor's chain during the heaving process. When the port anchor released from the river bottom, the strain shifted to the starboard anchor, which had not yet been raised. This shift in strain caused the bow to change course and begin drifting to starboard, into the middle of the river. As the crew began heaving the starboard anchor, the drift to starboard continued. The ship ultimately drifted approximately 300 feet outside the general anchorage.

While the STRANDJA was heaving anchors, the KIEFFER E. BAILEY—an inland tugboat pushing a tow of six loaded barges—was headed downriver. It was navigating near the center of the river in preparation to pass an oceangoing vessel heading upriver that was approximately two miles downstream. The tug made multiple radio calls to the vessels in the area indicating its approach and its position in the river. No one from the STRANDJA responded to these calls or warned the KIEFFER E. BAILEY that the STRANDJA would be drifting into the middle of the river.

As the tug drew closer, it sounded a two-whistle signal, the internationally recognized signal that an approaching vessel intends to alter course to port to accomplish a starboard-to-starboard passing. On hearing this signal, Captain Johnson expected the tug to do just that—move to port to pass the STRANDJA and avoid a collision. Neither he nor Pilot Johnson thought the STRANDJA was in a position to avoid the collision itself because the ship's starboard anchor was still on the river bottom.

Nevertheless, when it became apparent that a collision was imminent, both vessels attempted to avoid the collision. The KIEFFER E. BAILEY steered hard away from the STRANDJA, toward the eastern side of the Mississippi river. The STRANDJA, for its part, put its engines in reverse. Despite these efforts, one of the KIEFFER E. BAILEY's barges struck the STRANDJA's bulbous bow (a protrusion below the waterline at the front end of the ship). The collision damaged the barge and put a hole in the STRANDJA's bulbous bow.

The owner of the KIEFFER E. BAILEY, Marquette Transportation Company Gulf-Inland LLC, brought in personam claims against the owner of the STRANDJA, Balkan Navigation Ltd, and the ship's manager, Navigation Maritime Bulgare JSC (together "Balkan"), under the federal court's diversity jurisdiction. Balkan asserted an in personam counterclaim against Marquette and an in rem counterclaim against the KIEFFER E. BAILEY, both of which sounded in the court's admiralty jurisdiction. Marquette then amended its complaint to add in rem admiralty claims against the STRANDJA and impleaded Captain Johnson pursuant to Rule 14(c) of the Federal Rules of Civil Procedure.

The case proceeded to a jury trial over Balkan's objections. The jury determined that Marquette was not negligent; found Balkan negligent and Captain Johnson grossly negligent; concluded that Balkan and Captain Johnson were each 50% at fault; awarded Marquette $114,000 in damages; and awarded Balkan $0 in damages. Both Balkan and Captain Johnson appeal that judgment.

II. DISCUSSION

Captain Johnson and Balkan raise multiple issues on appeal. We conclude that the district court instructed the jury to apply the incorrect standard of proof for the claim against Captain Johnson. This error necessitates vacating the judgments as to Marquette's claims against both Captain Johnson and Balkan, even though we do not find any error in the trial of the claim against Balkan, considered alone. We affirm the judgment that Marquette was not liable for the accident.²

A. Subject Matter Jurisdiction

We begin by assessing subject matter jurisdiction. See MidCap Media Finance, LLC v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019). Marquette sued Balkan pursuant to the court's diversity jurisdiction. It therefore had the burden to plead each party's citizenship, including its own. Whitmire v. Victus, Ltd., 212 F.3d 885, 887 (5th Cir. 2000) (citation omitted). As a limited liability company, Marquette was required to plead the citizenship "of all of its members." Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). It failed to do this. It instead asserted only that it "is a Delaware limited liability company, having its principal place of business in Paducah, Kentucky." Marquette's jurisdictional allegations for diversity jurisdiction are therefore inadequate.

"Nevertheless, jurisdiction lies." Ed & Fred Inc. v. Puritan Mar. Ins. U. Corp., 506 F.2d 757, 758 (5th Cir. 1975). All parties agree that Marquette's claims against Balkan fall within the court's admiralty jurisdiction as does one of the parties' counterclaims. Given that the claims arise from a collision on the Mississippi River, the parties are right to agree on this point. We thus have jurisdiction to hear this appeal. But on remand for new trial, Marquette will be required to amend its pleadings to state admiralty jurisdiction as the basis for its claims against Balkan. See 28 U.S.C. § 1653.

B. Captain Johnson's Appeal

Captain Johnson contends that the district court erred by determining that general maritime law preempted a Louisiana pilotage law and by admitting an accident reconstruction during trial. The first argument is correct. The second fails.

1. Preemption

Louisiana law requires any "party seeking to hold a pilot acting under his state commission issued in accordance with this Chapter liable for damages or loss occasioned by the pilot's errors, omissions, fault, or neglect" to "prove by clear and convincing evidence that the damages arose from the pilot's gross negligence or willful misconduct." LA. STAT. ANN. § 34:1137 (emphasis added). The district court held that this statute was preempted by general maritime law, which only requires a finding of ordinary negligence by a preponderance of the evidence. See, e.g., Gavagan v. United States, 955 F.2d 1016, 1022 (5th Cir. 1992); see also 1 Thomas J. Schoenbaum, ADMIRALTY AND MARITIME LAW § 5:5 (6th ed. 2022). Captain Johnson and amici curiae³ argue this was error. We agree.⁴

Judicially crafted general maritime law preempts state laws that "prejudice the characteristic features of the maritime law" or "disrupt the harmony it strives to bring to international and interstate relations." J. Ray McDermott & Co. v. The Vessel Morning Star, 457 F.2d 815, 818 (5th Cir. 1972) (en banc); see also East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S. Ct. 2295, 2298-99, 90 L.Ed.2d 865 (1986). Congress, however, has carved out an exception to this rule: "Except as otherwise provided in this subtitle, pilots in the bays, rivers, harbors, and ports of the United States shall be regulated only in conformity with the laws of the States." 46 U.S.C. § 8501(a). The parties dispute whether LA. STAT. ANN. § 34:1137 falls within this exception.

"Prior to the ratification of the Constitution, the states regulated pilotage as sovereigns." Gillis v. Louisiana, 294 F.3d 755, 761 (5th Cir. 2002). The First Congress codified this power in the Lighthouse Act of 1789. Id. That statute has since been reenacted and recodified, most recently in Section 8501. Id. We have thus interpreted the statute "as an expression of Congress's...