820 F2d 129 Allseas Maritime Sa v. M/v Mimosa Juniper Shipping Ltd

820 F.2d 129

1987 A.M.C. 2515

ALLSEAS MARITIME, S.A., et al., Plaintiffs,
v.
M/V MIMOSA, etc., et al., Defendants.
JUNIPER SHIPPING LTD., Defendant-Appellant Cross-Appellee,
v.
VIZIER OFFSHORE TOWING, Tommie Vizier, Russell Duet, Joseph
Basaldu, Lloyd Duet and Ronald Paul Taylor,
Claimants-Appellees Cross-Appellants.
CROWNCEN INTERNATIONAL, N.V., Plaintiff,
v.
ALLSEAS MARITIME, S.A., et al., Defendants.
JUNIPER SHIPPING, LTD., Defendant-Appellant, Cross-Appellee,
v.
VIZIER OFFSHORE TOWING, et al., Claimants-Appellees,
Cross-Appellants.
ALLSEAS MARITIME, S.A., et al., Plaintiffs,
v.
STATE OF TEXAS, et al., Defendants.
JUNIPER SHIPPING, LTD., Defendant-Appellant, Cross-Appellee,
v.
VIZIER OFFSHORE TOWING, et al., Claimants-Appellees,
Cross-Appellants.
In the Matter of the Complaint of JUNIPER SHIPPING,
LTD., etc., Plaintiff-Appellant, Cross-Appellee,
v.
VIZIER OFFSHORE TOWING, et al., Claimants-Appellees, Cross-Appellants.

No. 86-2093.

United States Court of Appeals,
Fifth Circuit.

June 25, 1987.

Before GOLDBERG, RUBIN, and POLITZ, Circuit Judges.

ON PETITION FOR REHEARING

(Opinion March 13, 1987, 5th Cir.1987, 812 F.2d 243)

ALVIN B. RUBIN, Circuit Judge:


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1

In the earlier proceeding in this case of maritime salvage,1 the M/V TAROZE VIZIER sought additional recovery on the basis that it saved the owner of the M/V MIMOSA from liability to third parties. We denied an allowance based on this theory because the owner could limit its liability to the value of the MIMOSA and the salvage award had already accounted for the saving of that value.2 While the TAROZE VIZIER challenged the owner's ability to limit liability, we found no evidence in the record of negligence by the MIMOSA that would prevent it from limiting liability.3 The TAROZE VIZIER now calls our attention to a report by the Republic of Liberia's Marine Board of Investigation, entered as an exhibit at trial, which concludes that the MIMOSA's crew acted negligently.

2

While we recognize that, once the TAROZE VIZIER proves negligence, the owner of the MIMOSA must demonstrate lack of privity or knowledge in order to limit liability,4 the issue of the MIMOSA's negligence was not pressed below and was therefore not adequately developed. We cannot try the issue on appeal.

3

For the reasons above, the petition for rehearing is DENIED.

1

Allseas Maritime, S.A. v. M/V MIMOSA, 812 F.2d 243 (5th Cir.1987)

2

Id. at 247

3

Id. at 248

4

Id