In the Matter of: MO BARGE LINES, INC., a Corporation for Exoneration from or Limitation of Liability, Plaintiff—Appellee, v. Belterra Resort Indiana, LLC; Pinnacle Entertainment; New Hampshire Insurance Company, Claimants—Appellants, Hornblower Marine Services, Inc.; Hornblower Marine Services—Southern Indiana, Inc., Claimants. In the Matter of: MO Barge Lines, Inc., a Corporation for Exoneration from or Limitation of Liability, Plaintiff—Appellant, v. BELTERRA RESORT INDIANA, LLC; Pinnacle Entertainment; New Hampshire Insurance Company, Claimants—Appellees, Hornblower Marine Services, Inc., Claimant, Hornblower Marine Services—Southern Indiana, Inc., Claimant—Appellee.
No. 02-4121, 02-4158
United States Court of Appeals, Eighth Circuit
March 15, 2004
Rehearing and Rehearing En Banc Denied April 21, 2004
360 F.3d 885
Submitted: Nov. 20, 2003
In other words, application of the rule of reason is not warranted simply because the restraint “could be” procompetitive, based on the Defendants’ “arguable” motivations. If this were the case, the per se rule would hereafter be extinct, as inventive lawyers could always create a procompetitive justification for their clients’ monopolistic behavior. Instead, the procompetitive effects of a restraint must plausibly outweigh, or at least equal, the anticompetitive effects in order to move the case to rule of reason review.
Here, the procompetitive safety rationale is not plausible at all, and I submit the majority‘s fixation on these doubtful “safety concerns” is particularly inappropriate in light of the anticompetitive effect of the restriction on competition. Again, there is no evidence that Craftsmen‘s limousines were unsafe or failed to meet federal safety standards. Furthermore, as discussed above, the evidence suggests that Ford was not motivated by safety, but was interested only in extinguishing small companies that were taking advantage of the market for extra-long limousines, a market outside the control of Ford‘s QVM program. The majority finds significance in the fact that the restriction allowed advertisements of non-QVM coachbuilders who proved compliance with federal safety standards through separate testing, but this fact has little significance. I do not see how placing this burdensome testing requirement on small coachbuilders who already appear to be in compliance with federal safety standards, but who cannot afford to conduct expensive testing, is procompetitive. Finally, in contrast to these suspect safety claims, the anticompetitive effects of the restriction are overwhelming and undeniable, as it basically eliminated Craftsmen‘s ability to nationally advertise and promote its limousines. Accordingly, I would affirm the district court.
From my examination of the record, I fail to understand how any jury, under any method of analysis, could find for the Defendants in this case. The very purpose of the per se rule is to streamline antitrust analysis by making conclusive presumptions about restrictions that are obviously unreasonable. I respectfully submit that by remanding this case to be retried on the basis of this dubious safety rationale, the majority wastes time and judicial resources.
The anticompetitive effects of this restriction are so clear and pernicious, and the procompetitive effects of the restriction are so questionable and attenuated, that I submit the per se rule is the appropriate method of analysis in this case. I also suggest that the majority‘s proposed application of the rule of reason to any restraint that arguably “could be” procompetitive is a misinterpretation of California Dental, and an expansion of the rule of reason analysis.
Gary T. Sacks, argued, St. Louis, Missouri (Douglas E. Gossow and Teresa A. McNeil, on the brief), for appellee.
E. Alex Blanton, argued, Washington, D.C. (Jeanne M. Grasso and Alan M. Freeman, on the brief), for appellee Hornblower Marine Services.
SMITH, Circuit Judge.
Belterra Resort Indiana, LLC, Pinnacle Entertainment, Inc., and the New Hampshire Insurance Co. (collectively referred to as “Belterra“) brought an admiralty action against the Missouri Barge Lines, Inc. (“Missouri Barge“) to recover damages its casino vessel, the Miss Belterra, sustained in a collision with Missouri Barge‘s towboat, the Elizabeth Ann, on the Mississippi River. In this interlocutory appeal, Belterra appeals the district court‘s1 determination that Missouri Barge is entitled to a limitation of liability for the collision. We affirm.
I. Facts
During the dark early hours of July 31, 2000, the Miss Belterra, a new casino vessel heading up the Mississippi River, collided with the Elizabeth Ann, a towboat pushing concrete barges down the river. Confusion contributed heavily to the collision. Neal Rich, Miss Belterra‘s pilot, arranged to pass the Eileen Bigelow, a large towboat headed upriver, on its one-whistle2 side. Robert Cummins, pilot of the Elizabeth Ann, arranged to pass3 the Eileen Bigelow on its two-whistle side. The Miss Belterra heard the Eileen Bigelow—the vessel nearest it—reach a two-whistle passing agreement with the Elizabeth Ann.
During the Elizabeth Ann pilot‘s conversation with the Eileen Bigelow, the Miss Belterra passed the Eileen Bigelow. The Miss Belterra waited until the Eileen Bigelow and the Elizabeth Ann finished their conversation and then Rich made radio contact with the Elizabeth Ann. Cummins, believing that he was still communicating with the Eileen Bigelow, made what he thought to be a confirmation two-whistle passing agreement with the approaching upward-bound vessel. Unbeknownst to Cummins, he had a second passing agreement, this time with the Miss Belterra now further up the river than the Eileen Bigelow. Cummins saw Miss Belterra‘s “mass of lights” ahead, but did not recognize them as a ship. Because the Miss Belterra had no running lights, Cummins assumed he was approaching a construction site. About this time, Rich realized that the Elizabeth Ann was not moving to starboard fast enough. Rich turned to port to avoid collision. However, neither vessel‘s evasive action succeeded, and they collided causing substantial damage to the Miss Belterra.
Belterra sued Missouri Barge in admiralty, alleging that the Elizabeth Ann‘s negligence and failure to adhere to a passing agreement caused the collision and resulting damage to the Miss Belterra. The district court found the Elizabeth Ann violated several Inland Navigational Rules (“Rules“).
Belterra now appeals, arguing that the district court erred in granting Missouri Barge‘s request to limit its liability. Missouri Barge cross-appeals arguing that the district court misinterpreted Rule 14 and that the court‘s findings that Cummins made a starboard-to-starboard passing agreement with the Miss Belterra was clearly erroneous. We first address the cross-appeal because the limitation of liability question only arises if Missouri Barge acted negligently.
II. Discussion
A. Inland Navigational Rule 14
On its cross-appeal, Missouri Barge argues that the district court clearly erred in finding that its pilot, Cummins, violated Rule 14.
Rules 14(a) and (d) of the Rules provides in relevant part:
(a) Unless otherwise agreed, when two power-driven vessels are meeting ... so as to involve risk of collision each shall alter her course to starboard so that each shall pass on the port side of the other.
* * * * * *
(d) Notwithstanding paragraph (a) of this Rule, a power-driven vessel operating on the Great Lakes, Western Rivers, or waters specified by the Secretary, and proceeding downbound with a following current shall have the right-of-way over an upbound vessel, shall propose the manner of passage, and shall initiate the maneuvering signals.
Id. We review findings of a district court‘s bench trial in admiralty cases under a clearly erroneous standard. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Lone Star Indus., Inc. v. Mays Towing Co., Inc., 927 F.2d 1453, 1456 (8th Cir.1991). A finding of negligence in admiralty is a finding of fact, and we will not set aside the judgment unless it is clearly erroneous. Id. However, we review the district court‘s conclusions of law de novo. Union Pac. R.R. v. Kirby Inland Marine, Inc., 296 F.3d 671, 674 (8th Cir. 2002).
Relying on Marine Trans. Lines v. M/V Tako Invader, Missouri Barge interprets Rule 14 to require vessels to proceed up and down the Mississippi River starboard to starboard unless the downward vessels agree otherwise. 37 F.3d 1138, 1144-45 (5th Cir.1994) (emphasis added). The court in Marine Trans. Lines interpreted Rule 14(d) to modify Rule 14(a) giving a downbound vessel on the Mississippi River the authority to depart from the default requirement of a port-to-port passing, provided she complies with the requirements of Rule 14(d), which require her to propose the manner of passage and initiate maneuvering signals. Id. at 1145.
Testimony presented at trial demonstrated that Cummins had piloted ships on the relevant stretch of the Mississippi River for over six years without an accident. However, on this occasion, inattention marred that record. Cummins unwittingly agreed to two starboard-to-starboard meetings, one with the Miss Belterra and the other with the Eileen Bigelow. Cummins did not move his vessel when he saw the “mass of lights” coming from the Miss Belterra because he thought the lights were from a construction site on the dikes. He assumed that the second radio communication was only the Eileen Bigelow calling to reconfirm their passing arrangement and was unaware that it was actually the Miss Belterra, which had already passed the Eileen Bigelow. The district court did not clearly err in finding that Cummins was in violation of Rule 14(d) by failing to propose the manner of passage or initiate the maneuvering signals to the Miss Belterra. Accordingly, we affirm the district court‘s findings as to Rule 14.
B. Limitation of Liability
Belterra contends the district court erred by granting Missouri Barge limited liability under the Limitations of Liability Act.
Section 183(a) of the Limitation of Liability Act provides in relevant part:
The liability of the owner of any vessel ... for any loss, damage, or injury by collision ... incurred, without the privity or knowledge of such owner or owners, shall not ... exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.
Privity generally means some personal participation of the owner in the fault or negligence that caused or contrib-
Belterra argues that the district court erred in concluding Missouri Barge lacked privity and knowledge of Cummins‘s violation of Rule 14. Specifically, Belterra argues that Missouri Barge‘s privity and knowledge of Cummins‘s violations are evident in Missouri Barge‘s policy of allowing its river pilots to proceed down the Mississippi River without signaling their intentions in conformity with Rule 14. We disagree and affirm the district court.
The record supports the district court‘s finding that Missouri Barge hired a licensed, competent operator to navigate its vessel on the Mississippi River. Cummins had been accident free for seven years and had complied with the Rules, even though Missouri Barge failed to explicitly advise Cummins that he was required to follow the Rules. Also, the pilot test administered by Missouri Barge follows the same statutory interpretation of Rule 14 used by the district court. Belterra produced no evidence showing that Missouri Barge could be charged with notice that Cummins would operate the vessel negligently.
Lastly, Belterra argues that Missouri Barge‘s Elizabeth Ann was unseaworthy. Belterra contends when a collision is caused in part by a vessel pilot‘s failure to make appropriate use of available radar equipment, the shipowner is deemed to have privity and knowledge of the cause as a matter of law. Specifically, Belterra contends that had Cummins been properly trained in the operation of the vessel‘s radar the accident would not have occurred. We find this argument unpersuasive.
The principal authority on which Belterra relies, Complaint of Waterstand Marine, Ltd., 1991 AMC 1784, 1799 (E.D.Pa.1988), is readily distinguishable. In Waterstand, the court found that a pilot‘s inability to operate an Automatic Radar Plotting Aid rendered him incompetent, and the shipowner‘s failure to train the captain on how to use the equipment rendered him liable for the damages on sea. Id. The Waterstand court also concluded that the incident was not navigational error, but rather an example of unseaworthiness, therefore disqualifying the shipowner from the protection of limited liability. Id. In contrast, here, pilot negligence caused the collision. Cummins testified that he thought it useless to increase the radar‘s range to identify the approaching “mass of lights.” Cummins assumed that due to the presence of a sand bar between the Elizabeth Ann and the “mass of lights,” the radar would be ineffective. Cummins mistakenly relied on his ability to use binoculars to visually
III.
For the foregoing reasons, we affirm the decision of the district court.