United States Court of Appeals,
Fifth Circuit.
No. 94-40102
(Summary Calendar).
In the Matter of the Complaint of PORT ARTHUR TOWING CO. on
Behalf of the M/V MISS CAROLYN for Exoneration from or Limitation
of Liability.
PORT ARTHUR TOWING CO., etc., Plaintiff-Appellee,
v.
JOHN W. TOWING, INC., et al., Defendants,
Harris Jarreau, Defendant-Appellant,
and
Joshua Verdin, Defendant-Appellee.
In the Matter of JOHN W. TOWING, INC., as Owner and Operator of
the M/V JOHN W., Praying for Exoneration from or Limitation of
Liability.
JOHN W. TOWING, INC., etc., Plaintiff-Appellee,
v.
Gerald PREJEANT, et al., Defendants,
Harris Jarreau, Defendant-Appellant,
and
Joshua Verdin, Defendant-Appellee.
Jan. 18, 1995.
Appeal from the United States District Court for the Western
District of Louisiana.
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:
A collision of two barge tows resulted in injuries to the
vessels and some crew members. Owners and operators of the two
1
vessels involved in the collision filed suit under the Limitation
of Liability Act (the "Act")1 in federal district court seeking to
limit their respective liabilities to the values of the respective
vessels. The district court held that the shipowners were entitled
to limit their liability and thus stayed concurrent state court
actions involving the incident. The district court subsequently
held, inter alia, that both shipowners were entitled to exoneration
from liability to one of the claimants—Defendant-Appellant Harris
Jarreau—as he had failed to prove medical causation, i.e., that he
was injured in the accident. Jarreau appealed, arguing that the
court erred by (1) staying state court proceedings, and (2)
concluding that both shipowners were entitled to exoneration from
liability for his claims. Finding no error, we affirm.
I
FACTS AND PROCEEDINGS
Underway at night, the lead barge in the tow of the M/V MISS
CAROLYN, a vessel owned by the Port Arthur Towing Company, Inc.
("PATCO"), rammed the stern of the M/V JOHN W., a vessel owned by
John W. Towing, Inc. ("JWT"). As a result of this collision,
several seamen, including Jarreau and Defendant-Appellee Joshua
Verdin, both serving on the M/V JOHN W. at the time, filed suit in
state court stating claims under the Jones Act and General Maritime
Law for injuries that they allegedly suffered in the mishap.2
1
46 U.S.C. app. §§ 181-196 (1988).
2
Claims also were made by Adam East, Jr. and Gerald
Prejeant, Jr. PATCO, JWT, East and Prejeant reached a settlement,
so their claims are not involved in this appeal.
2
In response, JWT and PATCO filed separate limitation
complaints in federal district court, invoking that court's
admiralty jurisdiction and praying for exoneration from or
limitation of liability on claims arising from the collision.
These actions were consolidated, after which JWT filed a cross
claim against PATCO seeking indemnification, court costs, and
attorneys' fees. All parties agreed to have the cases adjudicated
by a magistrate judge.
A concursus was deposited into the registry of the district
court, which then issued an order staying all related state court
proceedings. Jarreau, Verdin, and JWT tried to negotiate a
mutually agreeable stipulation that would enable Jarreau and Verdin
to have the stay lifted and pursue their claims in state court.
Agreement on a mutually acceptable stipulation could never be
reached, however, so the three parties voluntarily abandoned their
efforts to produce such a stipulation. Eventually Jarreau and
Verdin—but not JWT—did enter into a stipulation, then moved the
court to lift the order staying the state court actions. But as
JWT was not a party to the agreement, the court denied this motion.
The district court conducted a hearing, at the conclusion of
which it exonerated JWT from all liability and found PATCO solely
responsible for the collision. The magistrate judge then
determined after a bench trial that Jarreau had not proved that he
sustained any injury as a result of the collision; thus PATCO was
entitled to exoneration from Jarreau's claim.
The court found that, although Jarreau chronically suffers
3
from degenerative disc pathology, his condition did not result from
the collision but antedated it. Dr. Edmund C. Landry, Jr., an
orthopedic surgeon who examined Jarreau at the request of PATCO and
JWT, stated that x-rays of Jarreau's back taken less than a month
after the accident showed that the degenerative change predated the
accident by more than a year and probably resulted from some prior
trauma. Dr. John D. Jackson, Jarreau's treating physician who did
not review the x-rays, could not say that the objective pathology
was caused by the collision. Jarreau testified that he had no
prior back problems and that his back started hurting either
immediately or shortly after the accident.
After considering this evidence, the court concluded that
"there is no objective evidence to aid the doctors in determining
whether Jarreau, in fact, was injured in the accident at issue.
This determination is totally dependent upon Jarreau's credibility
when he says that he had no prior back problems but had the onset
of pain either immediately or shortly after the accident." The
court then considered evidence bearing on Jarreau's credibility.
In the court's recap of that evidence, it noted that (1) the
captain of the M/V MISS CAROLYN testified that immediately after
the accident Jarreau stated that he was not injured; (2) another
crew member of the M/V MISS CAROLYN testified that Jarreau told him
that he was not injured, but that he was going to sue anyway; and
(3) four to five days after the accident Jarreau gave a statement
in which he denied being injured. In addition to these statements,
which were inconsistent with Jarreau's trial testimony, the court
4
noted that Jarreau's manner and demeanor on the witness stand
weighed against his credibility. Accordingly, the court found
Jarreau's testimony not credible and ruled that he had failed to
establish that he was injured in the collision.
Jarreau appealed, contending that the court erred in denying
his motion to lift the order staying the state court proceedings,
and in finding that PATCO and JWT were entitled to exoneration from
liability for his claims, because Jarreau had failed to prove that
the collision caused his injuries.3
II
ANALYSIS
A. STAYING THE STATE COURT PROCEEDINGS
A shipowner facing potential liability for a maritime accident
may file suit in federal court seeking protection under the Act, a
statute that permits a shipowner to limit his liability for damages
or injuries arising from a maritime accident to "the amount or
value of the interest of such owner in such vessel, and her freight
then pending,"4 if the accident occurred without the shipowner's
"privity or knowledge."5 "When a shipowner files a complaint
seeking limited liability, the federal district court stays all
related claims against the shipowner pending in any forum, and
requires all claimants to assert their claims in the limitation
3
PATCO appealed too, contending that the district court
erred in awarding $12,000 to another seaman; but PATCO's appeal
was subsequently dismissed on PATCO's unopposed motion.
4
46 U.S.C. app. § 183(a).
5
Id.
5
court."6 This accords with the federal courts' exclusive
jurisdiction of suits brought under the Act.7
Although it has granted such exclusive jurisdiction to the
federal courts, Congress has also " "sav[ed] to suitors ... all
other remedies to which they are otherwise entitled' " (the
"saving-to-suitors clause").8 We have previously recognized that
"this statutory framework has created "recurring and inherent
conflict' between the saving-to-suitors clause, with its
"presumption in favor of jury trials and common law remedies,' and
the "apparent exclusive jurisdiction' vested in the admiralty
courts by the Act."9 In connection with this tension, we have
noted that "[t]he court's primary concern is to protect the
shipowner's absolute right to claim the Act's liability cap, and to
reserve the adjudication of that right in the federal forum."10
The Act therefore is directed at maritime misfortunes in
which the losses claimed exceed the value of the vessel and its
6
Magnolia Marine Transp. v. Laplace Towing Corp., 964 F.2d
1571, 1575 (5th Cir.1992) (citing In re Dammers & Venderheide &
Scheepvaart Maats Christina B.V., 836 F.2d 750, 755 (2d
Cir.1988)).
7
See 28 U.S.C. § 1333.
8
Magnolia Marine Transp., 964 F.2d at 1575 (quoting § 1333).
9
Id. (quoting In re Dammers & Venderheide & Scheepvaart
Maats Christina B.V., 836 F.2d at 754); see Odeco Oil & Gas Co.
v. Bonnette, 4 F.3d 401, 404 (5th Cir.1993) (citing Magnolia
Marine Transport ), cert. denied, --- U.S. ----, 114 S.Ct. 1370,
128 L.Ed.2d 47 (1994).
10
Magnolia Marine Transp., 964 F.2d at 1575 (citing Langnes
v. Green, 282 U.S. 531, 543, 51 S.Ct. 243, 247, 75 L.Ed. 520
(1931)).
6
freight.11 But when a shipowner is not exposed to potential
liability in excess of that amount, the shipowner's absolute right
to limit its liability is not implicated and "the saving-to-suitors
clause dictates that the admiralty court must allow suits pending
against the shipowner in a common law forum, in this case the state
court, to proceed."12 Over the years, courts have identified
several exceptional circumstances in which a district court must
permit a state law action to proceed, even though a limitation
action has been filed in federal court. Today we must determine
whether the district court was here faced with such a situation.
1. When A Stay Is Appropriate
As we recently explained, "[c]laims may proceed outside the
limitations action (1) if they total less than the value of the
vessel, or (2) if [all] claimants stipulate that the federal court
has exclusive jurisdiction over the limitation of liability
proceeding and that [the claimants] will not seek to enforce a
greater damage award until the limitation action has been heard by
the federal court."13 In this case, multiple claimants sought more
in damages than the total value of the vessels and their pending
cargo; thus, to proceed in state court, all claimants were first
11
Id. (citing Lake Tankers Corp. v. Henn, 354 U.S. 147, 151,
77 S.Ct. 1269, 1271, 1 L.Ed.2d 1246 (1957)).
12
Id. (citing Lake Tankers Corp., 354 U.S. at 150-54, 77
S.Ct. at 1271-73).
13
Odeco Oil & Gas Co., 4 F.3d at 404 (citing Lake Tankers
Corp., 354 U.S. at 151-53, 77 S.Ct. at 1271-72); see In re Two
"R" Drilling Co., 943 F.2d 576, 578 (5th Cir.1991) (analyzing
sufficiency of claimants' stipulations).
7
required to enter into a stipulation that would protect the
shipowner's right to limit its liability.
2. Adequacy of the Stipulations
The district court denied Jarreau's motion to lift the order
staying his state court action, finding that the claimants had not
entered into a stipulation sufficient to protect PATCO's interests.
Jarreau argues that this was error, insisting that both he and
Verdin, the only other crew member remaining in the suit at that
time, had proposed an adequate stipulation.
But the record is clear that the stipulation proposed by
Jarreau and Verdin was inadequate to protect PATCO's right to limit
its liabilities: That agreement would not have bound all necessary
parties. Even though they eventually agreed between themselves to
the terms of a proposed stipulation, Jarreau and Verdin never
convinced JWT to enter into it. Yet JWT was a codefendant with a
cross claim against PATCO seeking damages, attorneys' fees and
costs. Indeed, the fact that Jarreau, Verdin, and JWT were unable
to arrive at an acceptable stipulation among themselves was
confirmed when they informed the district court that they had
abandoned all efforts to obtain a mutually agreeable stipulation,
after which Jarreau and Verdin proceeded to try their cases before
that court.
On this point the law is clear: When the aggregate of the
damages being sought by all claimants exceeds the value of the
concursus, actions in state court cannot proceed unless all
claimants enter into a stipulation that adequately protects the
8
shipowner which has filed a complaint in federal court seeking to
limit its liability.14 We recently stated that a "claimant" in this
context includes a codefendant who is asserting a cross claim for
indemnification, costs, and attorneys' fees.15 As none dispute that
JWT was doing precisely that, or that JWT refused to enter into a
stipulation with Jarreau and Verdin, PATCO would have been exposed
to a multiple claimant/inadequate fund situation had Jarreau been
permitted to pursue his action in state court.16 Clearly, then, the
trial court would have abused its discretion had it lifted its
earlier order staying Jarreau's state court proceeding.17 In sum,
not only was the district court's decision to deny Jarreau's motion
to lift the stay entirely proper, it was required by law.
B. JARREAU'S INJURY: MEDICAL CAUSATION
Jarreau argues that the district court's exoneration of both
PATCO and JWT from liability for Jarreau's injury must be reversed.
14
See Odeco Oil & Gas Co., 4 F.3d at 405 n. 7.
15
Id. at 405 (vacating and remanding stay of limitation
proceeding so that the district court could consider implications
of codefendant's potential cross claim for contribution or
indemnification); see also Gorman v. Cerasia, 2 F.3d 519, 525
(3d Cir.1993) ("[A]ll courts have recognized that a multiple
claimant situation exists where a third party seeking indemnity
or contribution also requests attorneys' fees and costs
associated with its claim.").
16
Odeco Oil & Gas Co., 4 F.3d at 405; Gorman, 2 F.3d at
525.
17
See Gorman, 2 F.3d at 523 ("[W]here a shipowner
demonstrates that his or her right to limit liability would be
prejudiced, the court's lifting of the stay constitutes an abuse
of discretion.") (citing Universal Towing Co. v. Barrale, 595
F.2d 414, 420 (8th Cir.1979) and S & E Shipping Corp. v. Ohio Ry.
Co., 678 F.2d 636, 647 (6th Cir.1982) (Kennedy, J., concurring)).
9
He urges that court made errors of fact and law. "We independently
review a district court's conclusions of law. We may reverse its
findings of fact, however, only if we determine that they were
clearly erroneous."18 We consider whether Jarreau proved that the
collision caused his back injury, entitling him to receive
compensation from the concursus.
As noted earlier, a limitation proceeding generally comprises
a two-step process,19 the first being "the establishment of
liability of the shipowner to the claimant, as to which the
claimant (or libellant) bears the burden."20 "The whole doctrine
of limitations of liability presupposes that a liability exists
which is to be limited. If no liability exists there is nothing to
limit."21 Thus Jarreau was required initially to prove facts
18
Brister v. A.W.I., Inc., 946 F.2d 350, 354 (5th Cir.1991).
19
See generally THOMAS J. SCHOENBAUM, ADMIRALTY & MARITIME LAW § 15-
5, at 305-06 (2d ed. 1994) (describing typical limitation
proceeding).
20
GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY 895 (2d
ed. 1975); see In re Hechinger, 890 F.2d 202, 207 (9th Cir.1989)
(stating that in a limitation proceeding, the claimant bears the
initial burden of showing that "[a] liability ... exist[s]"
(emphasis added)), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112
L.Ed.2d 103 (1990); The 84-H, 296 F. 427, 431-32 (2d Cir.1923)
("[I]n a proceeding to limit liability ... the first [duty] is to
ascertain whether any liability exists." (emphasis added)), cert.
denied, 264 U.S. 596, 44 S.Ct. 454, 68 L.Ed. 867 (1924); In re
Lloyd's Leasing Ltd., 764 F.Supp. 1114, 1141 (S.D.Tex.1990)
("Liability is the threshold issue to be resolved in a limitation
of liability action because the exploration as to limitation is
materially relevant only if liability is established.").
21
The 84-H, 296 F. at 431; accord In re Hechinger, 890 F.2d
at 207 (9th Cir.1989) (quoting Northern Fishing & Trading Co. v.
Grabowski, 477 F.2d 1267, 1272 (9th Cir.) (quoting The 84-H ),
cert. denied, 414 U.S. 1079, 94 S.Ct. 597, 38 L.Ed.2d 485
10
supporting his claim that PATCO was liable to him for his alleged
injury.22
The trial court concluded that PATCO was entitled to
exoneration from liability to Jarreau because he failed to prove
that the collision played any part, however small, in causing his
injury. Jarreau challenges that finding. We review the court's
finding for clear error.23
In cases involving issues of medical causation, it is not the
function of a court to search the record for conflicting
circumstantial evidence which supports alternative theories of
(1973)); see Colonial Sand & Stone Co. v. Muscelli, 151 F.2d
884, 885 (2d Cir.1945) ("The right to limit is quite separate
from the validity of the claim; indeed it is of no value unless
the claim is valid."); cf. Board of Comm'rs v. M/V FARMSUM, 574
F.2d 289, 297 (5th Cir.1978) (in context of the rule of The
Pennsylvania, "fault which produces liability must be a
contributory and proximate cause of the collision, and not merely
fault in the abstract").
22
See Cupit v. McClanahan Contractors, Inc., 1 F.3d 346, 348
(5th Cir.1993) ("Once an injured seaman has established that his
employer's negligence caused his injuries, a vessel owner seeking
limitation of liability must prove that it lacked privity or
knowledge of the negligence." (emphasis added)), cert. denied, --
- U.S. ----, 114 S.Ct. 1058, 127 L.Ed.2d 378 (1994); Brister,
946 F.2d at 355 ("In a limitation proceeding, once an injured
seaman establishes that negligence or unseaworthiness caused his
injuries, the burden shifts to the vessel owner...." (emphasis
added)); see, e.g., In re Lloyd's Leasing Ltd., 764 F.Supp. at
1141-42.
23
Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1019 (5th
Cir.1994) (citing Gavagan v. United States, 955 F.2d 1016, 1019
(5th Cir.1992)); see Marathon Pipe Line Co. v. M/V SEA LEVEL II,
806 F.2d 585, 592 (5th Cir.1986); see, e.g., Mars v. United
States, 25 F.3d 1383, 1384 (7th Cir.1994) (reviewing for clear
error finding of no medical causation).
11
causation.24 Jarreau presented his own live testimony and the
deposition of his treating physician, Dr. Jackson. Jarreau
testified that he had no prior back problems and that his back
started hurting either immediately or shortly after the collision
occurred. Jarreau's expert, Dr. Jackson, stated that Jarreau does
suffer from a back injury, but he (Dr. Jackson) could not tell if
the injury resulted from the collision.
PATCO and JWT also presented an expert witness, Dr. Landry,
who had personally examined Jarreau and reviewed x-rays of
Jarreau's back that were taken only one month after the accident.
The x-rays satisfied Dr. Landry that Jarreau had a degenerative
disc disease and that the disease was caused by trauma. But Dr.
Landry was also convinced that the trauma and the condition it
caused predated the collision. Thus there was expert testimony
that the collision did not cause Jarreau's condition but no such
testimony that it did.
The district court observed that "there is no objective
evidence to aid the doctors in determining whether Jarreau, in
fact, was injured in the accident at issue." Thus, stated the
court, the answer to the question whether Jarreau was injured as a
result of the collision "is totally depend[ent] upon Jarreau's
credibility when he says he had no prior back problems but had an
onset of pain either immediately or shortly after the accident."
Continuing, the court noted that two crew members of the M/V MISS
24
See Sentilles v. Inter-Caribbean Corp., 361 U.S. 107, 110,
80 S.Ct. 173, 175, 4 L.Ed.2d 142 (1959); Cella v. United States,
998 F.2d 418, 428-29 (7th Cir.1993) (explaining Sentilles ).
12
CAROLYN testified that immediately after the accident Jarreau told
them that he was not injured; and, within a week after the
accident Jarreau himself gave a statement in which he denied having
been injured in the collision. Based on Jarreau's conflicting
statements and his manner and demeanor on the stand, the court
expressly concluded that Jarreau's testimony regarding his injury
was not credible. The court found as a matter of fact that the
collision played no part whatsoever in injuring Jarreau.
As the trial court noted, the record contains no extrinsic,
objective evidence proving precisely when or how Jarreau was
injured. The court thus was faced with two equally plausible but
diametrically opposed possibilities: Jarreau was injured in the
collision or he was not. Based largely on its assessment of
Jarreau's credibility, the district court found that Jarreau was
not injured in the accident. Under the totality of the evidence,
we cannot say that this was clear error, particularly when
reviewing this finding under the highly deferential standard
applicable to credibility calls by the trier of facts.25
"Weighing conflicting evidence and inferences and determining
the relative credibility of witnesses to resolve factual disputes
is the [factfinder's] province."26 "Its decisions must be accepted
if the record contains "competent and substantial evidence fairly
25
U.S. Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820,
824 (4th Cir.1992) ("Because the determination by the district
court was based upon assessments of credibility, it is deserving
of the highest degree of appellate deference.").
26
Turnage v. General Elec. Co., 953 F.2d 206, 207 (5th
Cir.1992).
13
tending to support the verdict ... even if different inferences and
conclusions also might be supported by the evidence.' "27 In fact,
the Supreme Court has admonished that "when a trial judge's finding
is based on his decision to credit the testimony of one of two or
more witnesses, each of whom has told a coherent and facially
plausible story that is not contradicted by extrinsic evidence,
that finding, if not internally inconsistent, can virtually never
be clear error."28 That is why we previously have written that if
"[t]he district court's finding is based in part on its assessment
of the credibility of the witness[ ], we will not depart from such
an assessment except in the very rarest of circumstances."29 This
case presents no such circumstances.30
Jarreau appeals an evidentiary ruling of the district court
that excluded evidence of medical records. Jarreau raises this
issue in his opening brief, but he fails to make the argument. A
question posed for appellate review but not argued in the opening
27
Id. (quoting Dartez v. Fibreboard Corp., 765 F.2d 456, 469
(5th Cir.1985)).
28
Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105
S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985).
29
Travelers Indem. Co. v. Calvert Fire Ins. Co., 798 F.2d
826, 836 (5th Cir.1986).
30
Because we conclude that Jarreau failed to prove causation
and thus the district court properly concluded that PATCO and JWT
were entitled to exoneration from liability for his claim, we
need not decide whether that court also properly decided that
both shipowners were entitled to limit their liability. See The
84-H, 296 F. 427, 431-32 (2d Cir.1923) ("If no liability exists
there is nothing to limit."), cert. denied, 264 U.S. 596, 44
S.Ct. 454, 68 L.Ed. 867 (1924).
14
brief is waived.31
III
CONCLUSION
The district court did not err in denying Jarreau's motion to
lift its order staying his state court proceeding. Furthermore,
the district court did not err in ruling that both shipowners were
entitled to exoneration from liability for Jarreau's injury based
on its finding that Jarreau failed to prove that the collision
caused his injury.
AFFIRMED.
31
United Paperworks Int'l Union v. Champion Int'l Corp., 908
F.2d 1252, 1255 (5th Cir.1990); Harris v. Plastics Mfr. Co., 617
F.2d 438, 440 (5th Cir.1980).
15