from the United States District Court for the Eastern
District of Louisiana
ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge
case is about a tugboat and its voyage across the Atlantic
from Houston to Nigeria. Though the tugboat arrived safely in
port, the parties dispute whether it was discharged at the
correct port. The party that arranged for the tugboat's
transport wanted it discharged at Lagos, Nigeria; the ocean
carrier believed Warri, Nigeria to be the correct port of
discharge, claiming it was told so by an intermediary.
Despite the parties' efforts to secure discharge at
Lagos, the ocean carrier was unable to do so and continued on
to Warri. And there the tugboat remained. Predictably,
litigation ensued. After a bench trial, the district court
entered judgment, allocating the liabilities and associated
damages among the parties. On appeal, the ocean carrier and
the intermediary challenge various aspects of the judgment.
We AFFIRM in part and REVERSE in part.
plaintiff in this case, GIC Services, L.L.C. (GIC),
contracted with Freightplus USA, Inc. (Freightplus), the
defendant/third-party plaintiff, to arrange for the transport
of a tugboat-the REBEL-to Nigeria. Freightplus does not own
vessels capable of transporting the REBEL, so Freightplus
contracted with Yacht Path International, Inc. (Yacht
Path)-a broker specializing in the
transportation of large water craft-who in turn contracted
with Industrial Maritime Carriers, L.L.C. (IMC) as the
"vessel-operating common carrier." In the end, GIC
agreed to pay Freightplus $111, 000 for its services,
Freightplus agreed to pay Yacht Path $85, 000, and Yacht Path
agreed to pay IMC $70, 000. While GIC paid the amount it owed
to Freightplus, and Freightplus paid the amount owed to Yacht
Path, Yacht Path did not remit the amount owed to IMC.
course of making these arrangements, representatives from
Yacht Path spoke with representatives of IMC via telephone
and communicated information for IMC's bill of lading,
including the desired port of discharge. Exactly
what was communicated by Yacht Path is in dispute:
IMC claims that Yacht Path said that Warri was the port of
discharge, while Freightplus claims that Yacht Path
identified Lagos as the port of discharge. IMC then issued a
"booking note, " which purported to specify the
terms of its agreement with Yacht Path. This "booking
note, " which was sent to Yacht Path, lists Warri as the
port of discharge. Yacht Path issued its own booking note and
bill of lading, both of which list Lagos as the port of
discharge. In late December, Freightplus issued a "house
bill of lading, " identifying Lagos as the port of
discharge. The next day, IMC issued a
"non-negotiable" bill of lading and a cargo
manifest, both of which listed Warri as the port of
discharge. IMC asserts that its non-negotiable bill
of lading and cargo manifest were both sent to Yacht Path. At
no time prior to the REBEL's departure from Houston did
anyone notice or acknowledge the discrepancy as to the port
REBEL departed Houston in late December. In early January,
while the REBEL was en route to Nigeria, communications
occurred between Mr. Branting of IMC and Mr. Cummings of
Yacht Path through which it became clear that there was
confusion over the REBEL's port of discharge. In
mid-January, representatives from Yacht Path, Freightplus,
and GIC attempted to find a way to discharge the REBEL at
Lagos. However, the district court found that a late-night
e-mail on January 16 from a Yacht Path representative was the
first occasion in which "anyone at Yacht Path or IMC
discussed the need for changing the REBEL's
destination" from Warri to Lagos. Despite efforts to
rectify the situation, IMC was unable to discharge the REBEL
at Lagos. While various parties blame an inability to contact
GIC's agent in Nigeria at the eleventh hour, the district
court found that "manifest and customs documents"
listing Warri as the port of discharge also contributed to
IMC's inability to discharge the REBEL at Lagos.
ocean carrier proceeded on to Warri and discharged the REBEL
there. Though GIC initially sought to obtain the REBEL's
release, it was informed that the REBEL could not be released
because IMC had not been paid its freight. And so, the REBEL
remained in Warri in the custody of a company called Julius
sued Freightplus, and Freightplus in turn brought a
third-party action against IMC. IMC counter-claimed against
Freightplus and the REBEL in rem to recover its
unpaid freight. After a two-day bench trial, the district
court concluded that Freightplus was liable to GIC for $1,
860, 985 in damages incurred as a result of the REBEL's
discharge in Warri. The district court then determined that
IMC was 30 percent at fault for GIC's damages and so the
court required IMC to pay 30 percent of the judgment, as well
as 30 percent of Freightplus's attorneys' fees.
Finally, the district court concluded that IMC was entitled
to recover $70, 309.12, plus pre-judgment interest, from
Freightplus-the amount of IMC's unpaid freight. The
district court subsequently amended its judgment to remove
IMC's obligation to pay 30 percent of Freightplus's
attorneys' fees. Freightplus and IMC both timely appealed.
briefing in this court was completed, Freightplus filed a
"Motion for Partial Dismissal of Appeal." In this
motion, Freightplus represented that it and GIC have
"reached a settlement" as to that part of the
Second Amended Judgment "relat[ing] to GIC Services and
Freightplus." Freightplus thus requested that we allow
it to "dismiss its appeal." A few days later, GIC
filed a "Notice of Satisfaction of Judgment" in the
district court, indicating that "GIC and Freightplus
entered into a settlement agreement, resolving all claims
between them, " that "Freightplus has fulfilled the
terms of the settlement agreement" and so "[t]he
judgment [ ] in favor of GIC and against Freightplus is
satisfied[.]" We granted Freightplus's motion and
dismissed its appeal "as to those aspects of the Second
Amended Judgment in favor of GIC Services, L.L.C. and against
Freightplus USA, Incorporated ONLY."
parties raise a host of challenges to the judgment. IMC
challenges: (1) the requirement that it indemnify Freightplus
for a portion of the damages award; (2) the amount of damages
awarded GIC; (3) the allocation of damages between itself and
Freightplus; and (4) the determination that it may not
exercise a lien against the REBEL in rem to recover
its unpaid freight. Like IMC, Freightplus objects to the
allocation of damages between itself and IMC. It also
challenges the district court's refusal to award it
attorneys' fees and the requirement that it reimburse IMC
for its unpaid freight. We address each of these in turn.
first consider whether IMC is liable to Freightplus under a
theory of tort indemnification for a portion of the judgment
awarded to GIC.
prominent feature of maritime law, maritime tort
indemnification is now available only in limited situations.
Hardy v. Gulf Oil Corp., 949 F.2d 826, 833 (5th Cir.
1992). One of these situations arises from a "special
relationship" between two entities. Cities Serv. Co.
v. Lee-Vac, Ltd., 761 F.2d 238, 240 (5th Cir. 1985)
(citing Fed. Marine Terminals, Inc. v. Burnside Shipping
Co., 394 U.S. 404 (1969)); see also LCI
Shipholdings, Inc. v. Muller Weingarten AG, 153
F.App'x 929, 931 (5th Cir. 2005). Under this theory, an
entity will owe indemnity when its negligence is the cause of
a loss to its counterpart.
parties agree with the district court that a "special
relationship" exists between a "non-vessel
operating common carrier" (NVOCC) and a
"vessel-operating common carrier"
(VOCC). They disagree, however, with the
district court's conclusion that: (1) Freightplus was
operating as an NVOCC; and (2) IMC was negligent and its
negligence caused Freightplus's injury.
we are not aware of a decision of ours recognizing maritime
tort liability based on the relationship between a NVOCC and
a VOCC, two of our sister circuits appear to have done so.
See SPM Corp. v. M/V Ming Moon, 22 F.3d 523, 526-27
(3d Cir. 1994); Ins. Co. of N. Am. v. M/V Ocean
Lynx, 901 F.2d 934, 937, 941 (11th Cir. 1990). Seeing no
reason to depart from these decisions, and given the
parties' agreement on this question, we conclude that the
NVOCC/VOCC relationship may give rise to a claim for maritime
tort indemnity to the extent articulated in this opinion.
first question is whether Freightplus was operating as an
NVOCC. "Non-vessel operating common carrier" is a
term defined by statute. See 46 U.S.C. §
40102(16). As such, we review the interpretation of that term
de novo. See AEL Asia Express (H.K.) Ltd. v. Am.
Bankers Ins. Co. of Fla., 5 F.App'x 106, 107 (4th
Cir. 2001). To the extent this question involves factual
issues, "[m]ixed questions of law and fact are also
reviewed de novo." Trinity Indus., Inc. v.
United States, 757 F.3d 400, 407 (5th Cir. 2014);
see also Prima U.S. Inc. v. Panalpina, Inc., 223
F.3d 126, 129 (2d Cir. 2000) (reviewing de novo
whether party was an ocean freight forwarder as a mixed
question of law and fact).
modern shipping industry, the shipment of goods by vessel
from the United States often involves a chain of multiple
entities, each with defined roles. One of these is the
"non-vessel operating common carrier." NVOCCs
operate as intermediaries between the shipper-the entity
"seek[ing] to export cargo"-and the ocean common
carrier-the entity that "physically carr[ies] the cargo
on [its] vessel[ ]." Landstar Exp. Am., Inc. v. Fed.
Maritime Comm'n, 569 F.3d 493, 494 (D.C. Cir. 2009).
Under the Shipping Act of 1984, 46 U.S.C. § 40101 et
seq., an NVOCC is defined as "a common carrier that
(A) does not operate the vessels by which the ocean
transportation is provided; and (B) is a shipper in its
relationship with an ocean common carrier." 46 U.S.C.
§ 40102(16). Typically, the NVOCC's role is to
"consolidate cargo from numerous shippers into larger
groups for shipment by an ocean carrier."
Prima, 223 F.3d at 129; see also Ins. Co. of N.
Am. v. S/S Am. Argosy, 732 F.2d 299, 300-01 (2d Cir.
1984); All Pac. Trading, Inc. v. Vessel M/V Hanjin
Yosu, 7 F.3d 1427, 1429-30 (9th Cir. 1993).
NVOCC is therefore something of a hybrid: it is a common
carriervis-à-vis the shipper, but it is
itself a shipper vis-à-vis the ocean common carrier.
Ins. Co. of N. Am., 732 F.2d at 301; All Pac.
Trading, 7 F.3d at 1429- 30. In its role as common
carrier, an NVOCC issues a bill of lading to each shipper,
which memorializes the terms of their agreement.
Prima, 223 F.3d at 129; see also Landstar,
569 F.3d at 495. Because of an NVOCC's role as a common
carrier and the issuance of a bill of lading, the NVOCC is
liable to the shipper if "anything happens to the
[cargo] during the voyage." Prima, 223 F.3d at
129; see also Landstar, 569 F.3d at 495. Further, in
its role as a shipper, an NVOCC receives a bill of lading
from each VOCC. Landstar, 569 F.3d at 495; All
Pac., 7 F.3d at 1430. Typically, "NVOCCs receive
compensation only from the shipper." Landstar,
569 F.3d at 495; see also Nat'l Customs Brokers &
Forwarders Ass'n of Am., Inc. v. United States, 883
F.2d 93, 101 (D.C. Cir. 1989) ("The NVOCC is compensated
only by the shipper.").
parties dispute whether Freightplus was operating as an
NVOCC. Yet while both parties discuss the statutory
definition of an NVOCC, neither party addresses the statutory
definition of the term "shipper, " which appears
within the definition of NVOCC. See 46 U.S.C. §
40102(16) (NVOCC is a "shipper in its
relationship with an ocean common carrier" (emphasis
added)); id. § 40102(22) (defining
"shipper"). Because the parties have not disputed
whether Freightplus falls within the definition of
"shipper, " we do not reach this issue and instead
decide whether Freightplus is an NVOCC based on the arguments
presented to us.
conclude that Freightplus qualifies as an NVOCC because it
shares those characteristics typically associated with an
NVOCC. First, Freightplus issued a bill of lading, which
listed Freightplus as the "carrier"-the role an
NVOCC plays vis-à-vis the ultimate shipper.
Cf. Prima, 223 F.3d at 129 (NVOCC issues
bill of lading to each shipper); Landstar, 569 F.3d
at 495 (same). Second, the parties agree that Freightplus was
paid exclusively by GIC, also an indicator that Freightplus
was acting as an NVOCC. See Landstar, 569 F.3d at
495; Nat'l Customs Brokers, 883 F.2d at 101.
argues that Freightplus was not operating as an NVOCC because
it is not a "shipper" vis-à-vis IMC as
required by Section 40102. See 46 U.S.C. §
40102(16). It asserts two bases for this argument: First, it
argues that Freightplus is not a "shipper" because
it is "not listed as a shipper on IMC's booking
note, IMC's bill[ ] of lading, or [its] cargo
manifest." Second, and relatedly, it argues that
Freightplus cannot be considered an NVOCC because it did not
"receive a bill of lading" from IMC, the VOCC.
begin with, the validity of these arguments depends in large
part on whether Freightplus was a "shipper" within
the meaning of Section 40102(22)-which, as noted, IMC has not
addressed in its brief. Moreover, while it is true that
Freightplus is not listed as "shipper" on the
relevant documents and that it did not receive a bill of
lading from IMC, an entity's status as an NVOCC (and as a
shipper) depends on its function, not the labels ascribed to
it by third parties. See AEL Asia, 5 F.App'x at
111 ("When dealing with NVOCCs, an intermediary's
conduct, and not what it [is] label[ed], will be
determinative of its status." (emphasis added)
(quotation marks omitted)); see 46 U.S.C. §
40102(16), (22) (definitions of "shipper" and
NVOCC). And here, it is clear that Freightplus possesses the
characteristics typical of an NVOCC.
argues that Freightplus was "at most a freight
forwarder." But an examination of the services typically
performed by a freight forwarder undermines, rather than
strengthens, IMC's argument. Unlike an NVOCC, a freight
forwarder (1) does not issue a bill of lading,
Prima, 223 F.3d at 129; and (2) "receives
compensation for its services both from its customer . . .
and from the ocean carrier." Nat'l Customs
Brokers, 883 F.2d at 95; Landstar, 569 F.3d at
495. Neither is true of Freightplus. That Freightplus's
conduct differs from that typical of a VOCC confirms our
conclusion that it operated as an NVOCC.
address the validity of the district court's finding that
IMC acted negligently. In the maritime context, as in any
other, "[q]uestion[s] of fault, including determinations
of negligence and causation, are factual issues, and may not
be set aside on appeal unless clearly erroneous." In
re Omega Protein, Inc., 548 F.3d 361, 367 (5th Cir.
2008) (citing In re Mid-South Towing, 418 F.3d 526,
531 (5th Cir. 2005)). Where the "district court's
account of the evidence is plausible in light of the record
viewed in its entirety, " we will "not reverse . .
. even though convinced that had [we] been sitting as the
trier of fact, [we] would have weighed the evidence
differently." Id. In this context,
"'[f]indings based on the credibility of witnesses
demand even greater deference.'" Id.
(quoting Tokio Marine & Fire Ins. Co., Ltd. v. FLORA
MV, 235 F.3d 963, 970 (5th Cir. 2001)).
establish maritime negligence, "a plaintiff must
'demonstrate that there was  a duty owed by the
defendant to the plaintiff,  breach of that duty, 
injury sustained by the plaintiff, and  a causal
connection between the defendant's conduct and the
plaintiff's injury.'" Canal Barge Co. v.
Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000)
(quoting In re Cooper/T. Smith, 929 F.2d 1073, 1077
(5th Cir. 1991) (alteration omitted)). The district court
concluded that IMC was negligent because its agent
(Intermarine) had notice that Lagos was the correct port of
discharge for two weeks before the REBEL arrived there but
did not "take steps to ensure proper delivery at
raises a single objection to the finding of negligence.
Specifically, IMC argues that it was contractually bound to
deliver the REBEL to Warri, and so it cannot be found
negligent for delivering cargo to the contractually
agreed-upon port. Imposing liability under these
circumstances, IMC argues, would place it in a cross-current
between: (1) complying with its contractual obligations, but
then facing tort-indemnity liability for refusing to change
the port of discharge; or (2) avoiding tort-indemnity
liability by changing the port of discharge, but then facing
breach-of-contract liability for doing so.
argument, however, sails right into the headwinds of the
district court's findings. Despite IMC's repeated
insistence to the contrary, the district court did
find that IMC erroneously listed Warri as the port of
discharge on its various documents. In its opinion, the
district court noted IMC's argument that "it was
told by Yacht Path that the REBEL's final destination was
Warri and therefore fully performed its contractual
duties." But the district court concluded that
"this argument is unsupported, " and that
IMC had "mistakenly record[ed] the REBEL's port of
discharge as Warri, " based on the fact that IMC did not
produce any evidence that Yacht Path informed IMC that Warri
was to be the port of discharge.
cannot overturn this determination absent clear error. IMC
admits that it is unable to produce any documentation showing
that Yacht Path identified Warri as the port of discharge. It
contends, however, that "there is ample evidence in the
record to prove that IMC followed its instructions when it
designated Warri as the discharge port." IMC points to
the testimony of Mr. Branting and Mr. Jackson, whose
testimonies support IMC's account. IMC also points to the
fact that its bill of lading, cargo manifest, and booking
note identify Warri as the port of discharge, and to an
e-mail from Mr. Cummings at Yacht Path, which indicates that
"[t]he small tug"-presumably the REBEL-"is
booked with my client at Warri."
record also contains evidence pointing the other way. For
example, the deposition of Mr. Cummings-IMC's point of
contact at Yacht Path-was introduced at trial, and he
testified to identifying Lagos as the port of discharge in
his communications with IMC. We owe particular deference
where "credibility of witnesses" is at issue.
See Omega Protein, 548 F.3d at 367. Moreover, while
the designation of Warri on IMC's documents and the
e-mail from Mr. Cummings is evidence-perhaps even strong
evidence-that Yacht Path did identify Warri as the port of
discharge, there is evidence cutting the other way, including
the Yacht Path booking note-issued five days before Mr.
Cummings's e-mail-which designates Lagos as the port of
discharge. The existence of conflicting evidence is precisely
the context in which we defer to the district court's
factual findings. See id. (we will not reverse
factual findings "even though convinced that had [we]
been sitting as the trier of fact, [we] would have weighed
the evidence differently").
follows from this conclusion that IMC's objection to the
district court's negligence finding must be rejected.
Simply put, if IMC did not contract to deliver the REBEL to
Warri, then holding IMC liable for doing so does not place it
in the catch-22 it posits. IMC offers no other objection
to the district court's finding.
because the district court correctly determined that
Freightplus was operating as an NVOCC and because its
conclusion that IMC was negligent is not clearly erroneous,
we uphold its determination that IMC is liable to
address the amount of damages awarded. The district court
determined that Freightplus was liable to GIC in the amount
of $1, 811, 385. IMC argues that the district court erred in
calculating these damages in two respects: First, it objects
to the district court's reliance on a particular trial
exhibit. Second, it argues that the district court did not
account for GIC's failure to mitigate its damages.
"review[ ] challenges to evidence admitted or excluded
for abuse of discretion." EMJ Corp. v. Hudson
Specialty Ins. Co., 833 F.3d 544, 551 (5th Cir. 2016).
We will reverse only if "the abuse of . . . discretion
is clearly shown from the record, " U.S.
Bank Nat'l Ass'n v. Verizon Commc'ns, Inc.,
761 F.3d 409, 430 (5th Cir. 2014), as revised (Sept.
2, 2014), and "if substantial prejudice resulted from
the error, " EMJ Corp., 833 F.3d at 551
(quotation marks omitted). "Resolution of preliminary
factual questions concerning the admissibility of evidence
are reviewed for clear error." Meadaa v. K.A.P.
Enters., L.L.C., 756 F.3d 875, 880 (5th Cir. 2014).
Further, we review the district court's determination of
damages under a clearly erroneous standard. Fed. Sav.
& Loan Ins. Corp. v. Tex. Real Estate Counselors,
Inc., 955 F.2d 261, 268 (5th Cir. 1992); see also
Neal v. United States, 562 F.2d 338, 341 (5th Cir.
1977). This deferential standard of review extends to
determining whether a party failed to mitigate its damages.
Marathon Pipe Line Co. v. M/V Sea Level II, 806 F.2d
585, 592 (5th Cir. 1986). "The burden rests with the
wrongdoer to show that the victim of tortious conduct failed
to mitigate damages" by demonstrating "(1) that the
injured party's conduct after the accident was
unreasonable and (2) that the unreasonable conduct had the
consequence of aggravating the harm." Id.
bulk of the damages awarded, the district court relied solely
on Trial Exhibit 101-an invoice sent from Visfi Nigeria Ltd.
to GIC Oil and Gas Services Ltd., detailing the costs for
"storing, securing, and releasing the REBEL in
Warri." IMC argues that the district court was wrong to
do so because: (1) the invoice was never authenticated and so
it was never properly admitted into evidence; and (2) it is
not the "best evidence" of damages. By contrast,
the district court found that IMC stipulated to the
authentication of Exhibit 101.
to trial, IMC objected to the admission of Exhibit 101
"under Federal Rule of Evidence 901 and 902 because it
has not been properly authenticated." The district court
deferred on this objection because "[Exhibit 101]
[could] be authenticated at trial by witness testimony."
At the same time, and as was enshrined in the final pre-trial
order, GIC indicated that it intended to call "[a]ny
witness needed to authenticate any documents that cannot be
agreed to by stipulation."
trial, GIC sought to introduce the testimony of Mr. Godwin
Ebolo, the director of GIC Oil and Gas Services, as an
authenticating witness. Though initially objecting, both
Freightplus and IMC agreed to stipulate "[t]o the extent
[Mr. Ebolo was called] specifically for a Rule 901
authentication . . . ." The relevant colloquy went as
MR. BOONE [GIC counsel]: Your Honor, I'd like to call Mr.
Godwin Ebolo as my authentication federal witness.
MR. WALTERS [Freightplus counsel]: Your Honor, we would
object to this witness testifying. He was not listed in the
pretrial order. To the extent that he's called
specifically for a Rule 901 authentication, we will
stipulate, and I think - -
MR. WAGUESPACK [IMC counsel]: We'll stipulate as
well, Your Honor.
MR. BOONE: All right. And that's all he was going to
testify to, nothing substantive, just to authenticate those
documents that Freightplus and IMC both objected to, which
are the three contracts and the agency agreement.
THE COURT: All right. So do we have a stipulation?
MR. WALTERS: Yes. As far as Freightplus, yes.
MR. WAGUESPACK: As far as IMC as well.
THE COURT: Okay. Well, sir, you can go home. Oh, you still
want to call him?
MR. WALTERS: He's been ...