opinion: Daniel F. DAIGLE, Plaintiff-Appellee, v. POINT LANDING, INC., et al., Defendants-Appellants.
  No. 77-2724.
  United States Court of Appeals, Fifth Circuit.
  May 8, 1980.
  Rehearing Denied June 6, 1980.
  A. Gordon Grant, Jr., Stanley McDermott, III, New Orleans, La., for defendants-appellants.
  Leon C. Vial, III, Hahnville, La., for plaintiff-appellee.
  Before MORGAN, RONEY and GARZA, Circuit Judges.
  RONEY, Circuit Judge:
  In this rather unusual maritime personal injury case, we reverse the trial court’s decision for the plaintiff. In a bifurcated trial on the issue of liability alone, the court made findings of fact which are virtually uncontested on appeal. We therefore set forth in full the findings of fact of the trial court and the conclusion of law which fixed liability on the defendant, and discuss why this conclusion of law was wrong under the circumstances.
  Trial Court’s Findings of Fact
  1. On September 19, 1972, the towboat HARRY COLLINS, owned and operated by defendant Point Landing, Inc., brought a barge to a chemical loading dock owned by the Monsanto Company and located on the Mississippi River at Luling, Louisiana.
  2. While in the process of maneuvering the barge into position at the dock, one of the propellers of the HARRY COLLINS became entangled in a barge haul cable which was attached to winches located on the dock.
  3. The barge haul cable ran along the outboard edge of the dock and was suspended between two electrically operated winches, located respectively near the upstream and downstream ends of the dock. Monsanto normally used this cable to position vessels alongside the dock for loading and discharging.
  4. The HARRY COLLINS attempted to maneuver free from the cable with assistance from the Mansanto personnel on the dock. Initially, the downstream winch was released to create slack in the cable and to afford the vessel maneuvering room. This was ineffective.
  5. Acting on a request by the Master of the HARRY COLLINS for further assistance, plaintiff, a shift foreman employed by Mansanto, went to the dock to take charge of the dockside efforts to free the vessel.
  6. Plaintiff was accompanied to the dock by third party defendant Charles Gillen who was the night superintendent of the Monsanto plant. Gillen was present as an observer and did not participate in the activities on the dock.
  7. Third party defendant Don Cayard was the plant superintendent on September 19, 1972, and was not present on the Monsanto dock or at the Monsanto plant on the night of the accident.
  8. When the plaintiff arrived at the dock, he first attempted to free the vessel by releasing the downstream winch, which was in proper working condition, thereby providing additional slack and more room for the vessel to maneuver. After this action proved unsuccessful, plaintiff proceeded to the upstream winch. He observed that this winch was not in proper working condition due to the absence of the brake mechanism which had been removed for repairs. A large Stillson wrench was attached to the drive shaft between the winch motor and the winch drum and functioned as a braking device.
  9. Plaintiff removed the wrench and allowed cable to run from the upstream winch. He then stopped the drum from rotating by applying pressure on the winch coupling with his foot and resecured the wrench to the motor shaft.
  10. Plaintiff determined that still more slack was needed and after notifying the Master of the HARRY COLLINS of his intentions, he again removed the wrench to allow more cable to roll.
  11. After a short time plaintiff attempted to reposition the wrench as he previously had done. However, as he did this, the HARRY COLLINS applied power putting an immediate strain on the cable and causing the wrench to whip around and to strike plaintiff.
  12. No warning was given to plaintiff by the Master of the HARRY COLLINS that sudden power would be applied.
  13. The captain of the HARRY COLLINS was asleep and was not aroused to assist in the operations.
  Trial Court’s Contested Conclusion of Law
  The Master of the HARRY COLLINS was negligent in applying force to the cable without prior warning to plaintiff and that negligence was the proximate cause of plaintiff’s injury.
  Discussion
  The trial court’s conclusion of law rests on a premise which requires the existence of facts establishing a duty to warn. The findings of fact rendered by the trial court do not, however, include facts which establish such a duty.
  In analyzing a maritime tort case, we rely on general principles of negligence law. S. C. Loveland, Inc. v. East West Towing, Inc., 608 F.2d 160, 165 (5th Cir. 1979). The plaintiff is owed a duty of ordinary care. A defendant’s failure to warn the plaintiff does not breach that duty, however, unless the resultant harm is reasonably foreseeable. Liability for a failure to warn thus arises from foreseeability, or the knowledge that particular conduct will create danger. As stated in 57 Am. Jur.2d Negligence § 72 (1971), at 423:
  [T]he care which must be exercised in any particular situation is in proportion to the actor’s knowledge, actual or imputed, of the danger to another in the act to be performed. The degree of care necessary to constitute the ordinary care required of a person upon any particular occasion is measured by reference to the circumstances of danger and risk known to such person at the time. Conduct which will be considered extremely careful under one condition of knowledge, and one state of circumstances, may be grossly negligent with different knowledge and in changed circumstances.
  [footnotes omitted],
  A determination of the reasonableness of the HARRY COLLINS’ master’s failure to warn the plaintiff requires an examination of all the circumstances surrounding the injury. Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233, 1242, n.20 (5th Cir. 1977).
  Neither the record nor the findings of fact show the master of the HARRY COLLINS knew or had reason to suspect that the vessel’s maneuvering in the river endangered the plaintiff’s safety. Movement of the vessel jeopardized Daigle’s safety only because Daigle attempted to brake the defective upstream winch with a Stillson wrench. The testimony of the Monsanto personnel on the dock at the time of the accident establishes that neither Daigle nor any other Monsanto employee informed the master or crew of the HARRY COLLINS that the plaintiff was operating a defective winch without a protective cover by means of a wrench used as a makeshift braking device. Nor did anyone, including Daigle, instruct the master or crew to cease maneuvering the vessel while Daigle manipulated the winch.
  Daigle’s brief asserts as a basis for the duty to warn that the master “could plainly see the situation on the dock, particularly plaintiff’s manipulations with the winch, since he was very close to the dock and it was well lighted.” Neither the record nor the findings of fact rendered by the trial court supports the inference which plaintiff suggests. Daigle’s testimony as to visibility demonstrates his belief that his actions could be seen, and might be relevant to the reasonableness of his own actions, but is not sufficient to establish facts placing a duty to warn on the master of the towboat.
  Neither can the vessel’s maneuvering in the river alone impose a duty to warn. By affording the vessel slack in the barge haul cable, Daigle’s purpose was to enable the vessel to maneuver free from its entangled position. Daigle slackened the cable in order to facilitate movement of the vessel. By maneuvering, the master complied with the apparent intentions of the dock personnel.
  Decision
  The master of the HARRY COLLINS had no reason to suspect that maneuvering might endanger the plaintiff. Lacking any such reason, he was not legally obliged to warn Daigle of the vessel’s movements. The trial court’s conclusion that the failure to warn constitutes negligence is accordingly erroneous as a matter of law.
  Notwithstanding the trial court’s denomination of its determination of negligence as a conclusion of law, Daigle asserts that an admiralty court’s resolution of a negligence issue must be treated as a finding of fact, binding on this Court unless clearly erroneous. See Marcona Corp. v. Oil Screw Shifty III, 615 F.2d 206, at 208 (5th Cir. 1980); S. C. Loveland, Inc. v. East West Towing, Inc., 608 F.2d at 166. Whether or not the decision that the master of the HARRY COLLINS owed a duty to warn Daigle of the movements of the vessel is reviewable as a conclusion of law or a finding of fact is not controlling. If reviewable as a conclusion of law, the district court erred. If reviewable as a finding of fact, the district court was clearly erroneous in deciding that the master of the HARRY COLLINS was negligent.
  Reversing the judgment of the trial court on this ground makes it unnecessary to rule on the other points concerning contributory negligence, the court’s failure to assess proportionate fault against plaintiff’s employer, and the concededly improper judgment in rem against the vessel, because seizure had never been effected.
  REVERSED.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.