Comeaux v. Coil Tubing Services, et al

United States Court of Appeals
Fifth Circuit
F I L E D
March 22, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-30192
_______________
PHILLIP COMEAUX, II, ET AL.,
Plaintiffs,
VERSUS
COIL TUBING SERVICES, LLC, ET AL.,
Defendants,
ELEVATING BOATS, LLC,
Defendant-
Counter Plaintiff-
Appellee-
Cross-Appellant,
VERSUS
ENERGY PARTNERS, LTD,
Defendant-
Counter Defendant-
Appellant-Cross-Appellee.

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_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:02-CV-1790
______________________________
Before JOLLY, HIGGINBOTHAM, AND SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Energy Partners, Ltd.(“Energy Partners”),
and Elevating Boats, LLC (“Elevating
Boats”), appeal a judgment resolving an in-
demnity dispute. We affirm.
I.
A flash fire occurred on the deck of the
Mike Martin Elevator, a jack-up vessel owned
and operated by Elevating Boats that was in-
volved with work with Coil Tubing Services at
an Energy Partners well pursuant to the Blan-
ket Time Charter agreement between Energy
Partners and Elevating Boats. Under the
agreement, Elevating Boats was to provide
vessel service for Energy Partners’ wells. Phil-
lip Comeaux was one of the Coil Tubing
Services employees working on the vessel. He
and his crew were monitored by Milton Hodg-
es.
After completing an acid job, Hodges in-
structed Comeaux to bleed off pressure from
the well. Comeaux was working on the deck
of the Mike Martin when he noticed an un-
usual amount of gas escaping from the bottom
of the gas buster; he climbed onto the return
tank next to Hodges to investigate, whereupon
a flash fire erupted.
Comeaux jumped from the return tank onto
the choke manifold to shut off the flow of gas,
then reached for a fire extinguisher. It was
empty, however, so he ran to search for an-
other one. In doing so he collided with several
objects, apparently including some 55-gallon
drums located on the deck. Although a func-
tional fire extinguisher was ultimately found,
several of the extinguishers Comeaux and his
team tried to use were empty or unusable.
Comeaux allegedly suffered injuries from
the incident and sued, claiming, inter alia, the
following facts as to the negligence of Elevat-
ing Boats: “d. Failing to provide complainant
with a safe place to work; e. Allowing an un-
safe condition to exist on board the jack-up,
Mike Martin; f. Failing to have complainant
sent in after being injured; and g. Failing to
have fire extinguishers up to code.” Further,
Article 14 of the Complaint provided: “In ad-
dition to the acts and/or omissions of negli-
gence complained of hereinabove, complain-
ant, Phillip Comeaux, II, asserts that the un-
seaworthy conditions of the jack-up rig, Mike
Martin, caused and contributed to his accident
and related injuries.”
Comeaux dismissed Energy Partners early
in the suit. He later settled his claims against
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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Elevating Boats for $150,000, to be paid by
Elevating Boats or Energy Partners, depending
on the outcome of the contractual indemnity
dispute between those parties. To resolve the
contract dispute, Elevating Boats and Energy
Partners consented to a bench trial based on
the briefs.
The district court interpreted the Indemnity
provision of the Blanket Time Charter agree-
ment to provide that Energy Partners did not
have to indemnify Elevating Boats for claims
based on the breach of the warranty of sea-
worthiness. The court further held that Com-
eaux’s claim against Elevating Boats for in-
juries arising from failure of the fire extin-
guisher(s) to comply with Coast Guard regula-
tions was basically a claim for breach of the
warranty of seaworthiness, and was therefore
not indemnifiable by Energy Partners. It also
held that Comeaux’s claim against Elevating
Boats for injuries arising out of his collision
with objects on the deck of the boat, in partic-
ular the drums, was indemnifiable because it
was a claim by an employee of a subcontractor
of Energy Partners and was unrelated to Ele-
vating Boats’ breach of the warranty of sea-
worthiness.
The court found Comeaux’s injuries attrib-
utable to Elevating Boats in the following
manner: 50% by the absence of a working fire
extinguisher (causing burns) and 50% by the
collision with the drums (causing back pain,
etc.). Id. Therefore, Energy Partners had to
indemnify Elevating Boats for 50% of its set-
tlement costs. Id.
Both parties appeal. Energy Partners ar-
gues that the court erred as a matter of law by
awarding Elevating Boats 50% indemnity de-
spite the court’s factual finding that Com-
eaux’s injuries arose from Elevating Boats’
breach of the duty of seaworthiness. Energy
Partners also contends there is no evidence to
support the district court’s conclusion that En-
ergy Partners is obligated to defend and in-
demnify Elevating Boats for that portion of
Comeaux’s injuries sustained by actions unre-
lated to Elevating Boats’ breach of the war-
ranty of seaworthiness. As cross-appellee, En-
ergy Partners defends the district court’s deci-
sion that it did not have to indemnify Elevating
Boats for Comeaux’s injuries related to the
breach of the warranty of sea worthiness.
As cross-appellant, Elevating Boats argues
that the Blanket Time Charter agreement is
ambiguous on the issue of whether Energy
Partners must indemnify Elevating Boats for
claims against the latter based on the breach of
the warranty of seaworthiness. Elevating
Boats urges that for that reason, the agreement
should be construed against Energy Partners,
the drafter, and therefore should require En-
ergy Partners to indemnify Elevating Boats for
those claims. Elevating Boats also avers that
there is no evidence that any injuries resulted
from the collision with the drums. As appel-
lee, Elevating Boats defends the district
court’s decision that Energy Partners has to in-
demnify Elevating Boats for Comeaux’s in-
juries related to the collision with the drums.
II.
A.
“The standard of review for a bench trial is
well established: findings of fact are reviewed
for clear error and legal issues are reviewed de
novo.” In re Mid-South Towing Co., 418 F.3d
526, 531 (5th Cir. 2005) (quoting Kona Tech.
Corp. v. S. Pac. Transp. Co., 225 F.3d 595,
601 (5th Cir. 2000)). Clear error exists if
(1) the findings are without substantial evi-
dence to support them, (2) the court misappre-
hended the effect of the evidence, and (3) al-
though there is evidence which if credible
would be substantial, the force and effect of

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the testimony, considered as a whole, convinc-
es the court that the findings are so against the
preponderance of credible testimony that they
do not reflect or represent the truth and right
of the case. Moorhead v. Mitsubishi Aircraft
Int’l, Inc., 828 F.2d 278, 283 (5th Cir. 1987).
Reversal for clear error is warranted only if the
court has “a definite and firm conviction that a
mistake has been committed.” Canal Barge
Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th
Cir. 2000) (citing Mid-Continent Cas. Co. v.
Chevron Pipe Line Co., 205 F.3d 222, 229
(5th Cir. 2000)).
B.
Elevating Boats argues that the contract
does not provide unambiguously that Elevating
Boats’ breaches of the warranty of seaworthi-
ness are not indemnifiable by Energy Partners.
We disagree with Elevating Boats’ position.
“A basic principle of contract interpretation
in admiralty law is to interpret, to the extent
possible, all the terms in a contract without
rendering any of them meaningless or superflu-
ous.” Chembulk Trading LLC v. Chemex
Ltd., 393 F.3d 550, 555 (5th Cir. 2004) (citing
Foster Wheeler Energy Corp. v. AN NING
JIANG MV, 383 F.3d 349, 354 (5th Cir.
2004); Capozziello v. Brasileiro, 443 F.2d
1155, 1159 (2d Cir. 1971)). “[A] freely nego-
tiated private international agreement, unaf-
fected by fraud, undue influence, or over-
whelming bargaining power . . . should be
given full effect.” Foster Wheeler Energy
Corp., 383 F.3d at 354–55 (quoting M/S
BREMEN v. Zapata Off-Shore Co., 407 U.S.
1, 12–13 (1972)) (additional citations omit-
ted). “A contract is construed against the
drafting party only when it is ambiguous.”
Chembulk, 393 F.3d at 555 n.6 (citing Empire
Fire & Marine Ins. Co. v. Brantley Trucking,
Inc., 220 F.3d 679, 681 (5th Cir. 2000)). A
contract is not ambiguous if “its language as a
whole is clear, explicit, and leads to no absurd
consequences, and as such it can be given only
one reasonable interpretation.” Id. (citing
Mobil Exploration & Producing v. A-Z/Grant
Int’l Co., 1993 AMC 1137 (E.D. La. 1992)
(citing Nat’l Union Fire Ins. Co. v. Circle,
Inc., 915 F.2d 986, 989 (5th Cir. 1990) (per
curiam))).
The agreement provides as follows:
INDEMNITIES: (A) [Elevating Boats’]
IndemnityObligationSSTo the fullest extent
permitted by applicable laws, [Elevating
Boats] shall save, protect, defend, indem-
nify, and hold [Energy Partners], its co-
venturers, co-operators and partners, and
their officers, employees, agents, represen-
tatives and subcontractors (for the purposes
of this clause, the “Indemnitees”) harmless
from and against all Claims even though
such Claims may, in whole or in part, be
caused by, or based or premised on, the
ACTIVE, PASSIVE, SOLE OR CON-
CURRENT NEGLIGENCE OR OTHER
LEGAL FAULT, OF EVERY KIND AND
CHARACTER, OF ONE OR MORE
INDEMNITEES. The term “Claims”
under this Section (a) means all claims,
liabilities, judgments, damages, causes of
action, fines, penalties, losses, costs, and
expenses (including, without limitation,
attorneys’ fees, costs of witnesses, costs of
discovery, and costs of court) sustained,
incurred, or threatened against any
Indemnitee for, with respect to, or arising
out of, directly or indirectly, (A) the death
or personal injury to any of [Elevating
Boats’] or any of its subcontractors’ per-
sonnel, employees, representatives, agents
or invitees and/or (B) the breach or
violation by [Elevating Boats] of its obliga-
tions, covenants, and/or warranties under
this charter.

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(B) To the fullest extent permitted by ap-
plicable laws, [Energy Partners] shall save,
protect, defend, indemnify, and hold [Ele-
vating Boats], its officers, employees,
agents and representatives (for purposes of
this clause and unless otherwise noted, the
“Indemnitees”) harmless from and against
all Claims even though such Claims may, in
whole or in part, be caused by, or based or
premised on, the ACTIVE, PASSIVE,
SOLE OR CONCURRENT NEGLI-
GENCE OR OTHER LEGAL FAULT, OF
EVERY KIND AND CHARACTER, OF
ONE OR MORE INDEMNITEES. Except
as limited below and subject to the provi-
sions of OWNER’S DUTIES AS TO
MANAGEMENT, OPERATION AND
NAVIGATION OF VESSEL above, the
term “Claims” under this Section (b) means
all claims, liabilities, judgments, damages,
causes of action, fines, penalties, losses,
costs, and expenses (including, without
limitation, attorney’s fees, costs of wit-
nesses, costs of discovery, and costs of
court) sustained, incurred, or threatened
against any Indemnitee for, with respect to,
or arising out of, directly or in directly, the
death of or personal injury to any of [En-
ergy Partners’] or any of its subcontractors’
(other than the above-named Indemnitees)
personnel, representatives, agents or invit-
ees. The term “Claims” under this Section
(b) does not include any of the categories
of Claims as defined in Section (a)(A)
and/or Section (a)(B), for which Indemnit-
ees under Section (a) of this INDEMNIT-
EES [sic] provision are indemnified by Ele-
vating Boats.
Because Elevating Boats is seeking indem-
nity from Energy Partners, that claim is gov-
erned by Paragraph (B), under which Energy
Partners must indemnify Elevating Boats for
all “Claims” arising from injury to any of En-
ergy Partners’ or any of its subcontractors’
personnel, representatives, agents or invitees.
Comeaux’s claim falls under this provision
because he is either an employee of a subcon-
tractor of Energy Partners (Coil Tubing) or an
invitee of Energy Partners.
In this Paragraph (B), “Claims” is defined
as “all claims for, with respect to, or arising
out of, directly or indirectly, the death of or
personal injury to any of [Energy Partners’] or
any of its subcontractors’ . . . personnel, repre-
sentatives, agents or invitees.” Further, the
term “‘Claims’ under this Section (b) does not
include any of the categories of Claims as de-
fined in Section (a)(A) and/or Section (a)(B),
for which Indemnitees under Section (a) of this
INDEMNITEES [sic] provision are indem-
nified by [Elevating Boats].”
Under this express exception from its duty
to indemnify, Energy Partners need not pro-
vide indemnity for “categories of Claims” un-
der section (a)(A) and/or section (a)(B), for
which Energy Partners and other Indemnitees
under section (a) are indemnified by Elevating
Boats. Section (a)(B) includes claims for
breaches of “warranties under this charter” by
Elevating Boats. One of the warranties under
the Blanket Time Charter is the warranty of
seaworthiness, which Elevating Boats owes to
Energy Partners.1 Therefore, Energy Partners
1 The warranty is as follows:
[Elevating Boats] hereby warrants that the ves-
sel(s) is/are now, and at all times during the
term of this charter will be maintained by [El-
evating Boats], at [Elevating Boats’] expense,
properly staunch, strong, and in all respects
seaworthy and in good repair and running con-
dition; and shall comply in all respect with the
requirements, if any, of the United States Coast
(continued...)

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has no duty to indemnify Elevating Boats for
a breach of the warranty of seaworthiness.
Under section (a)(B), Elevating Boats must
indemnify Energy Partners not only for claims
by employees or agents of Elevating Boats,
but also for claims by employees or agents of
Energy Partners if the claims are for breaches
of warranty. As the district court explained,
this is not a regular knock-for-knock indem-
nity agreement whereby each party would in-
demnify the other for claims brought by its em-
ployees or subcontractors’ employees. Rather,
as section (a)(B) provides, Elevating Boats
must indemnify Energy Partners—even for
claims by Energy Partners’s employees or
agents—if those claims are based on a breach
of the warranty of seaworthiness.
As under section (a)(B), Energy Partners is
owed indemnification for claims of its employ-
ees/agents based on breach of warranty, it
cannot also be true that Energy Partners owes
indemnification under section (b) for claims of
its employees/agents based on breach of this
warranty. Therefore, the “exclusion” in sec-
tion (b) merely serves to clarify that there is no
inconsistency between section (a) and section
(b): Under the exclusion, there is no re-
quirement that Energy Partners indemnify Ele-
vating Boats—even if an employee of Energy
Partners sues Elevating Boats—if the claim is
based on a breach of the warranty of seawor-
thiness. Therefore, the language of the exclu-
sion is plain and unambiguous and commands
the interpretation provided by the district
court.
Elevating Boats contends, however, that
there is an ambiguity in the indemnity provi-
sion and urges us to read the exclusion in sec-
tion (b) as follows: “Although Energy Part-
ners owes indemnity to Elevating Boats if an
employee of Energy Partners’[] contractor
sues Elevating Boats, this rule does not apply
if the contractor happens to be Elevating Boats
itself.” This argument is without merit, be-
cause the sentence preceding the exclusion in
section (b) already yields that result. That sen-
tence provides that Energy Partners must
indemnify Elevating Boats under section (b)
for “claims sustained, incurred, or threatened
against any Indemnitee” arising out of “the
death of or personal injury to any of [Energy
Partners’s] or any of its subcontractors’ (other
than the above-named Indemnitees) personnel,
representatives, agents or invitees” (emphasis
added). Because under section (b), Elevating
Boats is one of the “above-named Indemni-
tees,” Energy Partners has no obligation to re-
imburse claims arising from the death of an
employee/agent of Elevating Boats. There-
fore, we will not interpret the exclusion so as
to render the preceding sentence superfluous.
Elevating Boats also argues that “Claims”
under section (a)(A) and/or section (a)(B) are
only claims “against any Indemnitee” under
section (a). Accordingly, Elevating Boats rea-
sons that the exclusion in section (b) does not
apply to Elevating Boats because Elevating
Boats is not an “Indemnitee” under section (a).
This interpretation is incorrect. By defini-
tion, claims for which indemnity is required
under section (b) are against an Indemnitee
under section (b), namely Elevating Boats and
its officers/representatives. Thus, section (b)
already excludes claims against Indemnitees
1(...continued)
Guard covering vessels of its type . . . . In light
of this express exception to Energy Partners’
duty to indemnify, the district court correctly
concluded that a claim against Elevating Boats
for breach of the warranty of seaworthiness is
not indemnifiable by Energy Partners.

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under section (a), namely Energy Partners and
its partners and co-venturers and their offi-
cers/representatives. This is because Elevating
Boats is not a co-venturer and partner of
Energy Partners.
Accordingly, interpreting the exclusion in
section (b) to mean that only certain claims
against an Indemnitee under section (a) are ex-
cluded would render this provision superflu-
ous: Claims against an Indemnitee under sec-
tion (a) are already excluded by the definition
of an Indemnitee under section (b). Thus, the
interpretation proposed by Elevating Boats is
contrary to the principles of contract interpre-
tation discussed above.2
Elevating Boats further urges that the in-
demnity provision is ambiguous because the
words “against all Claims even though such
Claims may, in whole or in part, be caused by,
or based on premised on, the ACTIVE, PAS-
SIVE, SOLE OR CONCURRENT NEGLI-
GENCE OR OTHER LEGAL FAULT, OF
EVERY KIND AND CHARACTER, OF
ONE OR MORE INDEMNITEES” strongly
suggest that all claims against Elevating Boats
would be indemnified. This argument fails, be-
cause “all Claims” does not mean strictly “all
claims,” but instead all claims that fit within
the definition of “Claims.” “Claims” in this
particular context is defined to exclude claims
for breach of warranties made by Elevating
Boats in the charter.
III.
Elevating Boats contends that the district
court committed clear error in finding that
some of Comeaux’s injuries resulted from his
collision with the drums. The court deter-
mined that “Energy Partners has presented
enough evidence to satisfy its burden of prov-
ing that Comeaux likely sustained at least a
share of his injuries from colliding with the
drums.” This factual finding must stand unless
clearly erroneous. FED. R. CIV. P. 52(a);
Canal Barge Co., 220 F.3d at 375.
A.
There is sufficient evidence to support the
finding that some of Comeaux’s injuries re-
sulted from the collision with the drums.
Comeaux testified that when he ran across the
deck to find another fire extinguisher, he hit
“everything.” He also testified that he hit
three fifty-five-gallon drums on the deck. Al-
so, the record includes doctors’ analyses of
medicalscans and other reports showing injury
to his lower back regions, and demonstrating
that he was undergoing physical therapy and
received strong medication for his back pain.
Further, about two months after the acci-
dent and six months before suing, Comeaux
saw a doctor, whose notes state “[t]hen began
running due to fire. Hit 2 fifty-five gallon
2 Also, the exclusion in section (b) is for
“categories” of Claims under section (a)(B), not for
Claims against an actual Indemnitee under section
(a)(B). “Categories of Claims” under section
(a)(B) are the three categories mentioned in that
section: (1) breach of obligations, (2) breach of
covenants, and (3) breach of warranties under the
Blanket Time Charter. Comeaux’s claim against
Elevating Boats at issue here is for breach of the
warranty of seaworthiness. That claim falls within
a category of claims under section (a)(B), which is
therefore excluded under section (b). Although the
exclusion states that Energy Partners does not owe
indemnification for those categories of claims
under section (a)(B) “for which Indemnitees under
section (a) of this INDEMNITEES [sic] provision
are indemnified by [Elevating Boats],” this
language does not negate the fact that it is
“categories” of claims that are excluded, not actual
claims against particular Indemnities.

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drums. Attempted to run but RLE too much
pain.” Two days later, Comeaux reported the
same collision with drums to his physical ther-
apist. There is evidence that he reported the
same story to other doctors later.
Elevating Boats objects to this testimony as
hearsay. We review evidentiary rulings for
abuse of discretion. Johnson v. Ford Motor
Co., 988 F.2d 573, 578 (5th Cir. 1993). The
office notes and the other statements to doc-
tors are admissible as statements made for the
purpose of treatment, because the statements
are of the type pertinent to Comeaux’s physi-
cian in providing treatment. FED. R. EVID.
803(4); cf. Wilson v. Zapata Off-Shore Co.,
939 F.2d 260, 272 (5th Cir. 1991).3 In his
comments to the doctors, Comeaux did not
attribute fault, but merely explained how the
injury came about, which is relevant to diag-
nosis or treatment.
Elevating Boats counters that the hearsay
exception should not apply because there is a
discrepancy between the early and later ver-
sions of Comeaux’s story. We see no such
discrepancy: Comeaux never denied, in his
earlier accounts of his injuries, that he had
collided with the drums. Moreover, although
Comeaux did not report the collision to doc-
tors in the first seven weeks after the accident,
he did report it consistently thereafter, which
was six months in advance of filing suit. Com-
eaux’s statement to Dr. Shutte that he did not
know “when” he started to have pain in his
back and pain during the accident does not
contradict the fact that he had such pain or
that he collided with the drums.
We are also unconvinced by Elevating
Boats’ argument that Comeaux was self-inter-
ested in making the statements to the doctors
because he wanted to add Elevating Boats to
the lawsuit. Comeaux already had a basis for
a strict liability claim against Elevating Boats
for the burns he suffered from the absence of
a working fire extinguisher on Elevating
Boats’ vessel. Also, because Comeaux’s state-
ments were made six months before filing suit,
and close to the accident, they are less likely to
have been made for litigation purposes as
opposed to being made to obtain treatment. In
any event, the fact that a statement is made to
a doctor for the purposes of litigation is a
matter of weight and not of admissibility, so
long as the statements are pertinent to
diagnosis. 4 STEPHEN A. SALTZBURG ET AL.,
FEDERAL RULES OF EVIDENCE MANUAL §
803.02[5][c] (8th ed. 2002).
Elevating Boats also argues that Com-
eaux’s evidence was not credible because he
made false statements to medical providers in
the past when he said he did not have back and
neck problems before the accident. Even
assuming, however, that these statements were
lies rather than simple mistakes, there is no
proof that these past “lies” were related to this
lawsuit. Therefore, the district court did not
abuse its discretion in admitting the statements
made to medical providers.
3 Hearsay is generally inadmissible, FED. R.
EVID. 802, because oath, personal appearance at
trial, and cross-examination are the best
mechanisms to ensure truthful and accurate
testimony. Nevertheless, some classes of hearsay
are excluded from rule 802’s prohibition against
the admissibility of hearsay. Rule 803 excludes
certain types of statements from the hearsay ban
even though the declarant is available as a witness,
primarily because under certain circumstances, a
statement, although it is hearsay, may still possess
circumstantial guarantees of trustworthiness
sufficient to justify its admission as evidence.
Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300,
1309-10 (5th Cir. 1991).

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Furthermore, even if the statements were
inadmissible, Comeaux testified in the deposi-
tion that he was hitting everything on the deck
and that he hit the drums. Accordingly, the
medical statements merely corroborate his tes-
timony under oath.4 Therefore, there is sub-
stantial evidence to support the finding of in-
juries resulting from a collision with the drums,
and the district court did not misapprehend the
effect of that evidence.
B.
Because there is no clear error under prong
(1) or (2) of the clear error test,5 Elevating
Boats’ other challenges must be considered
under prong (3): If, although the evidence dis-
cussed above would be substantial if credible,
the force and effect of the testimony, consid-
ered as a whole, convinces the court that the
findings are so against the preponderance of
credible testimony that they do no reflect or
represent the truth and right of the case. Ele-
vating Boats argues that Comeaux’s state-
ments discussed above are unreliable because
the only three men on the deck at the time of
the explosion did not see Comeaux collide
with the drums. But, these three men admitted
that they did not see Comeaux at all once he
began running on the deck, because they were
running in opposite directions.
Hodges testified that he did not see Com-
eaux after the fire erupted because he was run-
ning in a different direction. Von Harper re-
counted that he ran with Hodges. This sug-
gests that Von Harper also did not see Com-
eaux. Von Harper also stated that he could
not see well because it was pitch dark, and that
he had to turn his head to watch where he was
going to get the fire extinguisher. This
testimony, to the effect that Hodges and Von
Harper did not see a collision because they
were not looking in the direction of the colli-
sion, does not contradict therefore Comeaux’s
statement that the collision occurred.
Although John Walker testified that Com-
eaux did not run into any drums, he also in-
dicated that he fled the boat immediately after
the eruption because he was scared, and he
was about forty feet from the fire when he
turned around. In light of Walker’s contradic-
tory testimony, the district court committed no
clear error in discounting the credibility of the
Walker testimony and believing that of Com-
eaux. Therefore, the preponderance of credi-
ble testimony does not contradict the evidence
relied on by the district court.
IV.
Energy Partners argues that the district
court erred in awarding Elevating Boats 50%
4 Elevating Boats suggests that Comeaux’s
medical statements are not admissible because he
did not testify from personal knowledge. Elevating
Boats points to no evidence that Comeaux did not
have any personal knowledge of a collision in
which he was involved, other than his statement
that at the time of the accident he did not realize he
had collided with the drums until ten minutes after
the collision, when John Walker told him. Al-
though Comeaux stated that Walker had told him
of the alleged collision ten minutes after it allegedly
occurred, it does not mean that Comeaux did not
independently recall the collision later. Comeaux
did not testify that he believed that the collision
occurred based only on Walker’s comments.
5 As discussed, clear error exists if (1) the
findings are without substantial evidence to support
them, (2) the court misapprehended the effect of the
evidence, and (3) if, although there is evidence
which if credible would be substantial, the force
and effect of the testimony, considered as a whole,
convinces the court that the findings are so against
the preponderance of credible testimony that they
do no reflect or represent the truth and right of the
case. Moorhead, 828 F.2d at 283.

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indemnity despite the factual finding that Com-
eaux’s injuries arose from Elevating Boats’
breach of the duty of seaworthiness. This
claim misstates the court’s factual findings.
Although it did find that Comeaux’s burns
resulted from the breach of the warranty of
seaworthiness, the court found that some other
injuries, including Comeaux’s back pain, might
have arisen from the collision with the drums,
which the court described as “unrelated to the
breach” of the warranty of seaworthiness.
Further, the court required that Energy
Partners indemnify Elevating Boats only for
those latter injuries. Therefore, because the
court did not award indemnity for claims based
on the breach of the warranty of seaworthi-
ness, it did not err as a matter of law.
Energy Partners’ actual discussion of this
issue could be read to suggest that the colli-
sion with the drums arose from Elevating
Boats’ breach of its warranty of seaworthiness,
not from some other type of unrelated
negligence.6 The law of this circuit, however,
is that a district court or jury may find that a
vessel owner is negligent in having a cluttered
deck, yet not so utterly negligent as to be
deemed as having rendered the vessel unsea-
worthy or unfit for “its intended use.”7
As the Simeon court explained, although
the shipowner has an absolute duty to provide
a seaworthy vessel, the vessel need not be
“‘accident-free.’”8 The duty of seaworthiness
is only a duty “to furnish a vessel and appurte-
nances reasonably fit for their intended use.
The standard is not perfection, but reasonable
6 In its brief, Energy Partners argues that it
. . . presented evidence which the trial court
found by a preponderance that Elevating Boats
was negligent . . . . [T]he facts and evidence
presented by Energy Partners proved that the
fire extinguishers on the deck of the Mike Mar-
tin Elevator were either inoperable or not
functioning correctly, and that Mr. Comeaux
sustained a share of his injuries from colliding
with the drums . . . .
Further, the trial court correctly determined
that not only was Elevating Boats’ negligence
a breach of the duties it owed to Mr. Comeaux,
but also, more importantly, it was a breach of
its contractual warranty of seaworthiness
owed to Energy Partners.
(continued...)
(...continued)
Contrary to Energy Partners’ claim, the district
court never actually decided that the negligence
that caused the collision with the drums occurred
from a breach of the warranty of seaworthiness.
Rather, the court specifically noted that the
collision with the drums arose from negligence
“unrelated” to that breach.
7 Simeon v. T. Smith & Son, Inc., 852 F.2d
1421, 1433 (5th Cir. 1988) (stating that a
reasonable jury can find negligence based on iron
ore scattered on deck and a knot in the mooring line
and “still conclude that the [vessel] was
‘reasonably fit’ for its intended use as a derrick
barge”). The “warranty of seaworthiness” covers
all parts of the vessel and its operation, including
the hull, machinery, appliances, gear and
equipment, and other appurtenances. The duty of
seaworthiness is implicated where cargo is
improperly loaded or stowed, and a statutory or
regulatory violation may amount to
unseaworthiness per se. The warranty of
seaworthiness extends to manning the vessel; an
incompetent or inadequate master or crew may
render the vessel unseaworthy.
8 Id. (citing Mitchell v. Trawler Racer, Inc.,
362 U.S. 539 (1960)).

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fitness . . . .”9 Not all forms of negligence can
render a vessel unseaworthy. In Brunner v.
Maritime Overseas Corp., 779 F.2d 296, 298
(5th Cir. 1986), this court explained that “We
do not have the right to second guess a jury
that may decide a small oil spill on a deck
does not necessarily make an 80,000 ton tank-
er unseaworthy even if the spill got there
negligently.”10
V.
Energy Partners claims it had no duty to in-
demnify Elevating Boats for Comeaux’s injur-
ies based on the collision with the drums, be-
cause the district court did not mention how
those injuries were “attributable in any way to
Elevating Boats.” The district court found
that Comeaux sustained at least a share of his
injuries from the collision with the drums. Al-
though the court did not explain precisely that
the claim against Elevating Boats based on the
collision with the drums was premised on Ele-
vating Boats’ negligent maintenance of the
deck (which was cluttered), it was implicit in
the decision ordering indemnification. Indem-
nification can be ordered only if there is a
claim premised, in whole or in part, on the “ac-
tive, passive, sole or concurrent negligence or
other legal fault, of every kind and character”
of Elevating Boats.
Contrary to Energy Partners’ assertions,
Comeaux’s injuries resulting from the collision
with the drums are not solely based on the
negligence of third parties. Rather, Com-
eaux’s complaint, which alleges that Elevating
Boats allowed an unsafe condition, encom-
passes a claim of negligence based on a clut-
tered deck.
The captain of the vessel testified he was
aware that the deck became cluttered when
CoilTubing and EnergyPartners overcrowded
it with equipment, but that he did not object
because there were some walkways that per-
mitted workers to traverse the deck. He also
testified that he had the authority to order
some of the equipment removed if he believed
its position was a safety hazard because it ob-
structed the walkway.
Thus, even if a third party caused the deck
to be cluttered, Elevating Boats, as the opera-
tor of the vessel, had a duty to remedy or ob-
ject to that clutter. Although the captain be-
lieved there was no negligence because of the
walkways, Comeaux was certainly free to ar-
gue negligence, because the walkways did not
perform adequately in a chaotic, emergency
situation. Given the finding that at least some
of Comeaux’s injuries arose from the collision
with the drums, any error the district court
may have committed, by not expressly finding
that the claim for injuries suffered from the
collision with the drums was based on Elevat-
ing Boats’ negligent maintenance of the deck,
is harmless.
AFFIRMED.
9 Id.
10 Id. at 299 (emphasis added). See also Kok-
esh v. Am. S.S. Co., 747 F.2d 1092, 1094 (6th Cir.
1984) (same).

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