In Re: Env Sfty & Hlth Conslt

Case: 11-30567 Document: 00511777659 Page: 1 Date Filed: 03/05/2012

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 5, 2012

No. 11-30567 Lyle W. Cayce
Clerk

In re: In the Matter of the Complaint of ENVIRONMENTAL SAFETY &
HEALTH CONSULTING SERVICES, INCORPORATED, for Exoneration
from or Limitation of Liability

ENVIRONMENTAL SAFETY & HEALTH CONSULTING SERVICES,
INCORPORATED, as Owner of a 16 foot Alweld Boat Bearing Louisiana
Registration No. LA-8174-EW,

Petioner–Appellant
v.

AVERY DIAZ,

Claimant–Appellee

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CV-588

Before KING, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
The Limitation of Liability Act allows owners of maritime vessels to limit
their liability for accidents occurring on their vessels to the value of the vessel.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-30567

46 U.S.C. § 30505. The Act requires that a limitation of liability action “be
brought within six months after a claimant gives the [vessel] owner written
notice of a claim.” Id. at § 30511. We agree with the district court that the
state-court petition filed by Plaintiff-Appellee Avery Diaz was sufficient to
constitute “written notice” under § 30511 of his claim against Defendant-
Appellant Environmental, Safety & Health Consulting Services, Inc. (“ES&H”).
I. FACTUAL & PROCEDURAL BACKGROUND
Diaz claims he was injured on August 25, 2008 while working aboard a
“small, unnamed boat.” On the day in question, Diaz was working for Team
Labor Force, a subcontractor of ES&H, assisting in ES&H’s clean-up of an oil
spill in the Mississippi River near the Port of New Orleans. Diaz filed a claim
in Louisiana state court on July 19, 2010 and served ES&H with process in
conjunction with that claim on August 4, 2010.1

1
The substantive portions of the state court petition are reproduced here.

Petition for Damages
The petition for damages of Avery Diaz, a person of the full age of
majority and a resident of Jefferson Parish, Louisiana, alleges upon information
and belief as follows:
1.
Made defendant herein is Environmental, Safety & Health Consulting
Services, Inc., a domestic corporation.
2.
On August 25, 2008, petitioner was employed by Team Labor Force and
was assigned by his employer to assist clean-up operations in connection with
an oil spill on the Mississippi River in the Port of New Orleans.
3.
Environmental, Safety & Health Consulting Services, Inc. (hereinafter,
“ES&H”) was under contract to perform the clean-up of the oil spill in the area
immediately down river of the Crescent City Connection and included the area
along the eastbank of the Mississippi River in Orleans Parish in front of the
Ernest N. Morial Convention Center and, in connection therewith,
subcontracted with Team Labor Force to perform a portion of the clean-up
operations.
4.
Avery Diaz and two co-workers were assigned to work in a small,
unnamed boat and to perform various duties on said vessel in the abatement of

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No. 11-30567

ES&H filed the underlying limitation of liability action in the Eastern

the oil spill.
5.
During the late afternoon hours of August 25, 2008, defendant caused
petitioner and his co-workers to work from the above-mentioned vessel and to
clean oil from the hull of a tug boat which was moored along the wharf of the
eastbank of the Mississippi River behind the Ernest Morial Convention Center,
within Orleans Parish.
6.
During the late afternoon hours of August 25, 2008, because of an
approaching thunderstorm, defendant shut down operations within its
geographic work area, but advised the employees of its subcontractor, Team
Labor Force, to continue their job of cleaning the tug so that the tug could
depart the area.
7.
In connection with the shut-down of operations, other than that being
conducted by petitioner and his co-workers, defendant sent home the safety
representative whose job it was to watch for waves from ships passing through
the work area.
8.
While petitioner and his co-workers were performing their work, one or
more large waves from a passing ship slammed into petitioner’s boat causing
petitioner to fall.
9.
As a result of the above-described incident, petitioner has sustained
serious, painful, permanent and disabling injuries all of which were caused by
defendant’s neglect.
10.
Petitioner maintains that defendant was negligent in keeping its
subcontractor and the subcontractor’s employees on the scene without
restricting the motion of ships through the area, in failing to provide an
appropriate lookout, in failing to impose appropriate safety measures, in leaving
its contractor’s employees at work without an appropriate spotter and all such
other negligent acts or omissions as may come to light during the discovery
phase of this case.
11.
As a result of the injuries and losses petitioner sustained by virtue of the
foregoing, he claims damages from defendant including past and future medical
expenses, past and future lost wages and/or loss of earning capacity, past and
future pain and suffering and past and future mental anguish, emotional
distress, scarring, disfigurement and disability; petitioner hereby demands such
damages as will fully and fairly compensate him for the injuries and losses he
has sustained and in such amount as may be deemed to be fair and just by the
finder of fact at the time of trial; as required by law, petitioner hereby
maintains that his damages exceed $50,000, exclusive of interest and costs.

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District of Louisiana on March 14, 2011. Diaz moved to dismiss ES&H’s claim
for failure to bring the action within six months of receiving notice. The district
court treated Diaz’s motion to dismiss as a motion for summary judgment and
granted summary judgment to Diaz. ES&H timely appealed.
II. STANDARD OF REVIEW
We employ a de novo standard in reviewing whether an action was timely
filed. Billiot v. Dolphin Scrvs., Inc., 225 F.3d 515, 517 (5th Cir. 2000). We also
review a district court’s grant of summary judgment de novo and applies the
same standard as the district court. Holt v. State Farm Fire & Cas. Co., 627
F.3d 188, 191 (5th Cir. 2010). Under that standard, summary judgment is
appropriate when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “If the
evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-
50 (1986) (citations omitted). When reviewing a motion for summary judgment,
the Court construes all the evidence and reasonable inferences in the light most
favorable to the nonmoving party. Amazing Spaces, Inc. v. Metro Mini Storage,
608 F.3d 225, 234 (5th Cir. 2010) (quoting Xtreme Lashes, LLC v. Xtended
Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009)).
III. DISCUSSION
This Circuit uses the “reasonable possibility” test to determine the
sufficiency of a written notice in Limitation of Liability Act cases. Complaint of
Tom-Mac, Inc., 76 F.3d 678, 683 (5th Cir. 1996) (citing Complaint of Morania
Barge No. 190, Inc., 690 F.2d 32, 34 (2d Cir. 1982)). Under this test, notice must
“reveal[] a ‘reasonable possibility’ that the claim made is one subject to
limitation.” Id.; Billiot, 225 F.3d at 517. That is, “notice is sufficient if it informs
the vessel owner of an actual or potential claim . . . which may exceed the value

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No. 11-30567

of the vessel . . . and is subject to limitation.” P.G. Charter Boats, Inc. v. Soles,
437 F.3d 1140, 1143 (11th Cir. 2006) (internal quotation marks omitted).
ES&H claims that because the state court petition did not identify ES&H
as the owner of the “small, unnamed boat,” and generally referred to acts that
might be construed as negligence resulting from ES&H’s supervision of Team
Labor Force, ES&H did not know that Diaz was asserting a claim against it as
a vessel owner.2 Diaz argues in response that his state-court petition constituted
sufficient written notice to ES&H that his claim could be subject to limitation.
In his state-court petition, Diaz averred that: (1) he was working for a
subcontractor of ES&H; (2) he was “assigned to work in a small, unnamed boat”;
(3) ES&H caused him to work from the boat and directed his work for the day;
(4) ES&H told Diaz and other Team Labor Force employees to keep working
when it otherwise shut down operations on August 25, 2008 due to an
approaching storm; (5) ES&H sent home its safety representative when it shut
down operations; and (6) Diaz was injured on August 25, 2008, while still
performing his assigned work on the designated vessel. In addition, Diaz states
in his memo in support of summary judgment that Team Labor Force has the
same owners, officers, directors, and upper management as ES&H, and that they
“operate out of the same facility.” Management of both companies knew of Diaz’s
injury when it occurred, and they made accommodations for him at work after
the accident, until his doctors required that he cease working due to the severity
of his injuries. Therefore, it is clear that ES&H knew that Diaz was injured, the
date of his injury, that Diaz had been directed to work from “a small, unnamed
boat,” and that ES&H had told Diaz what tasks to perform on that boat. “The
[Limitation of Liability] Act does not require plaintiff to have identified the
vessel in his underlying action (written notice of claim).” Billiot, 225 F.3d at

2
ES&H does not dispute that Diaz’s claim exceeds the value of the vessel on which he
was working.

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517.3 Considering the fact that ES&H and Team Labor Force had the same
management, and that the two entities assigned and directed Diaz’s work on
August 25, 2008, ES&H should have determined, within six months of Diaz’s
petition, that it owned the boat on which Diaz worked that day, and that there
was a “reasonable possibility” that Diaz’s claim was subject to limitation.
Diaz’s state-court petition contained enough information to “inform the
owner [of the vessel] both of details of the incident and that the owner appeared
to be responsible for the damage in question.” Matter of Oceanic Fleet, Inc., 807
F.Supp. 1261, 1262 (E.D. La. 1992) (quotation marks and citations omitted). The
Limitation of Liability Act requires nothing more. In addition, we must
remember that “[t]he purpose of the six-month prescription on the limitation of
liability petition is to require the shipowner to act promptly to gain the benefit
of the statutory right to limit liability.” Exxon Shipping Co. v. Cailleteau, 869
F.2d 843, 846 (5th Cir. 1989). Using the same information it had when Diaz
filed his state-court petition, ES&H realized, albeit too late, that his claim could
be subject to limitation.4 ES&H cannot now regain a statutory right lost due to
its own failure to investigate and act in a timely manner. C.f. Morania Barge,
690 F.2d at 33-34 (placing burden on shipowner of investigating within six-
month period whether the amount of the claim exceeds the value of his ship,
where claim does not specifically identify amount of damages at issue and “such
an excess appears reasonably possible”); In re Donjon Marine Co., Inc., 2009 WL
3241687, at *2 (D. N.J. Oct. 7, 2009) (same).
Accordingly, because we find that Diaz’s state court petition was specific
enough to inform ES&H of a claim that could be subject to the Limitation of

3
Indeed, Diaz could not have “named” the vessel, as ES&H identifies it simply by its
Louisiana Registration Number, LA-8174-EW.
4
ES&H has pointed to no new information of which it became aware after the six-
month period had run, suddenly indicating its ownership of the vessel at issue.

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Liability Act, we AFFIRM the district court’s grant of summary judgment in
Diaz’s favor.

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