Cliff, Jr., Inc. v. M. V. Captain Will

Full title: CLIFF, JR., INC., PLAINTIFF-APPELLEE, v. M. V. CAPTAIN WILL ET AL.…

Court: United States Court of Appeals, Fifth Circuit

Date published: Apr 9, 1976

529 F.2d 1169 (5th Cir. 1976)

1976 A.M.C. 48

Opinion

No. 74-3614.

April 9, 1976.

James G. Burke, Jr., New Orleans, La., for defendant-appellant.

Rene S. Paysse, Robert B. Sutherlin, New Orleans, La., for Cliff, Jr., Inc.

Joe L. Horne, New Orleans, La., for Clifford Quinn, Sr.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM and CLARK, Circuit Judges.^_

_ Judge Bell was a member of the original panel but resigned from the Court on March 1, 1976 and, therefore, did not participate in this decision.

ON PETITION FOR REHEARING [2] (Opinion 1-23-76, 5 Cir., 1976, 526 F.2d 345)

PER CURIAM:

The defendant has petitioned for a rehearing on the ground that the Court did not apply the divided damages rule of United States v. Reliable Transfer Co., 1975, 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251. The Reliable Transfer rule is inapplicable. That rule applies only "when two or more parties have contributed by their fault to cause property damage . . .." 421 U.S. at 411, 95 S.Ct. at 1715, 44 L.Ed.2d at 262. The district court found that the plaintiff's vessel, the Cliff, was placed in a perilous position by the defendant's vessel, the Captain Will. This, the defendant conceded, was the sole fault of the Captain Will. In these circumstances, the district court found that the navigator of the plaintiff's ship acted reasonably. We held that the district court's findings were not clearly erroneous.

The petition for rehearing is denied.