National Liability & Fire Ins. Co. v. R&R Marine, Inc., — F.3d —- (5th Cir. 2014):
This case arises after the sinking, and subsequent salvage, of a vessel owned by Hornbeck Offshore Services. Hornbeck Offshore owned the M/V Erie Service, which was in need of repairs. Hornbeck entered into a Shipyard Repair and Drydock Agreement with R&R Marine for the repair and refit of two of Hornbeck’s vessels, one being the M/V Erie Service, at R&R Marine’s shipyard. Per this Agreement, Hornbeck retained access to its vessel and reserved its authority over the vessel with the use of two on-site managers. Despite Hornbeck’s oversight, it was undisputed that the Erie Service was in the custody of R&R Marine upon delivery.
On September 12, 2007, the National Weather Hurricane Center issued a tropical storm warning which included an area in which R&R Marine’s shipyard was located. R&R Marine ensured Hornbeck pumps were available should water entry become an issue. R&R Marine also ensured Hornbeck the shipyard docks were monitored “around the clock.” However, in anticipation of the weather advisory, R&R personnel evacuated the shipyard and failed to take any precautions, apparently underestimating the severity of the storm. The following morning, the M/V Erie Service sank.
Hornbeck entered into a time-and-materials salvage bid which totaled $627,324.64. Hornbeck and R&R Marine demanded National, R&R Marine’s insurer, pay the salvage costs directly.
National sought a declaratory judgment that it was not required to pay the salvage cost. Hornbeck counterclaimed asserting National’s policy required them to pay for damage to the M/V Erie Service since it was in the custody of R&R Marine, its insured, at the time of loss. Hornbeck filed a cross-claim asserting R&R Marine’s negligence proximately caused the sinking of the M/V Erie Service.
The district court held R&R Marine was negligent in failing to secure the M/V Erie and that National was required to pay Hornbeck salvage costs, and interest and attorney’s fees associated with said costs. Both National and R&R appealed.
The Fifth Circuit concluded the district court did not clearly err in finding R&R Marine to be negligent. Hornbeck had established a prima facie case of negligence, as the M/V Erie Service was delivered to R&R Marine afloat and R&R Marine had full custody of the vessel. The Court did not agree with R&R Marine that only a limited bailment was created due to the presence of Hornbeck’s on-site managers; to the contrary, the Court determined the district court was not clearly erroneous in finding that neither the presence nor authority of Hornbeck’s personnel affected R&R Marine’s exclusive control and full custody.
R&R Marine next argued Hornbeck was unreasonable in choosing a time-and-materials salvage contract, as opposed to a less expensive, “no cure, no pay” agreement. Again, the Court determined the district court’s determination of Hornbeck’s reasonableness was not clearly erroneous and therefore upheld its determination.
The district court determined National was liable for the salvage costs associated with the sinking of the M/V Erie Service, as provided by its policy with R&R Marine. National argued Hornbeck lacked standing as a third-party claimant to bring its counterclaim. The Court of Appeals, reviewing the district court’s decision de novo, looked to Texas law to determine the parties’ substantive rights. The Court engaged in an analysis of procedural law application and determined Hornbeck had standing to assert its counterclaim but agreed with National that the district court erred in the total amount of damages awarded in excess of National’s policy limits. Accordingly, the award to Hornbeck was reduced to $1,000,000.00 plus reasonable attorney’s fees.