United States Court of Appeals,
Fifth Circuit.
No. 95-20125.
In re in the Matter of the Complaint OF TOM-MAC, INC., as Owner
of the M/V Marcon I, Official No. :524371, For Exoneration from or
Limitation of Liability.
TOM-MAC, INC., Plaintiff-Appellee,
v.
Rosa BIELA, et al., Claimants-Appellants,
and
Julitta Jo Phillips, Movant-Appellant.
March 5, 1996.
Appeal from the United States District Court for the Southern
District of Texas.
Before GARWOOD, SMITH and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
Claimants-appellants Rosa Biela, Julitta Jo Phillips, Luann
Yates, and Bobby Yates (Claimants), and claimants-appellants City
of Port Aransas, Urban Engineering, and James L. Urban (City
Appellants), appeal the district court's grant of summary judgment
in favor of plaintiff-appellee Tom-Mac, Inc. (Tom-Mac). We reverse
and remand to the district court with direction to dismiss Tom-
Mac's petition under the Limitation of Shipowner's Liability Act,
46 U.S.C.App. §§ 183, et seq. (Limitation Act).
Facts and Proceedings Below
On September 4, 1992, David Biela and Claude Phillips were
employed by Tom-Mac as a laborer and pile driver, respectively.
They were working on the replacement of damaged pilings supporting
1
a pier owned by the City of Port Aransas, Texas, when the boom of
a seventy-five-ton capacity crawler crane collapsed and killed both
men.
At the time of this accident, the crane was located on a barge
designated as the JR 121 (barge). This barge is a standard deck
barge, 110 feet by 40 feet, with spuds. A spud is an attachment on
the side of the barge through which a large, retractable pole may
be inserted and driven into the seabed. The barge had been so
"anchored" for at least a day when the accident occurred. In their
reply to Tom-Mac's motion for summary judgment, the Claimants gave
the following description of the barge, its designed use, and its
function:
"As a standard deck barge, [it] is designed and used for
transportation of material and equipment along the inland
waterways of the Gulf Coast. The barge has the attributes of
a vessel—it has a raked bow, navigational lights, lifesaving
equipment, pumps, and depth markings on its side. The lights
on the barge, as well as the lifesaving and safety equipment,
are those required by the Coast Guard. The lights are
portable, which is normally the case with barges. It is the
opinion of Michael Lawson, a ship's captain with over 25 years
experience, and the opinion of the Captain of the Coast Guard
push boat Clamp, that the JR121 is a vessel.
... The JR121 was used for transportation purposes—moving men,
equipment, material, and supplies. At job sites in remote
locations or where there were no loading facilities, the JR121
was used to transport all equipment, supplies, even men, to
the job site.
An example is the job in Port Aransas. There were no
loading and unloading facilities at the job site in Port
Aransas. The nearest facilities were in Aransas Pass, about
five miles away. "Everything needed for the job' in Port
Aransas was loaded on the JR121 in Aransas Pass and hauled to
Port Aransas.
... The JR121 was also used to transport pilings and material
during the Port Aransas job. About two weeks into the job,
old pilings were put on the barge and transported from Port
2
Aransas back to Aransas Pass. When the barge arrived in
Aransas Pass, it was loaded with more pilings needed for the
Port Aransas job, and this material was taken back by the
barge to the job in Port Aransas.... In his affidavit in
support of the Motion for Summary Judgment, [president of Tom-
Mac, Thomas] McMillian said that the barge was moved "short
distances' during the job. At his subsequent deposition,
McMillian testified that the "short distances' in his
affidavit meant five miles." (emphasis added).
At the time of the Port Aransas project, the barge had on
board, in addition to the crane, an air compressor, a welding
machine, a diesel pile driving hammer, and a tool room. The barge
did not have a bathroom nor quarters for the crew.
In its motion for summary judgment, Tom-Mac's characterization
of the barge differed in at least two critical respects from the
Claimants' description, above:
"It was used primarily as a work platform.... As such, the
platform was not designed for transportation of passengers,
cargo or equipment from place to place across navigable
waters.
The barge served as a platform for the pulling and pile
driving activities required by the contract. It did not
perform any other function except a temporary storage facility
for tools and material." (emphasis added).
In making its summary judgment proof, Tom-Mac also made a
substantially different, although not incompatible, presentation of
several of the facts set forward by the Claimants regarding the
barge. "None of the TOM-MAC, INC. employees would travel from one
job to another aboard the barge. The platform did not have any
permanent navigational lights, or conventional navigation
equipment. It did not have lifeboats or life rafts." (Emphasis
added).
In order to move the barge during and between construction
3
projects, it was necessary to attach the barge to a contract barge
or tug. At the time of the accident, the barge was attached to a
tug designated as the Marcon 1 (tug). This tug was a small coastal
pushboat operated by a single captain. Both the tug and the barge
were under the common command of the Tom-Mac foreman of the Port
Aransas project. Also, Tom-Mac bareboat chartered both the barge
and the tug from the same individual. Under the charter, Tom-Mac
was to provide all maintenance and repairs to the tug and the
barge, as well as secure insurance coverage for both. Tom-Mac
further contracted to indemnify the owner for any losses or
liability caused by Tom-Mac. Tom-Mac chartered the tug in
September 1991 and the barge in October of the same year.
Beginning in October 1991, Tom-Mac used the barge for jobs
along the Texas Gulf Coast, including Texas City, Matagorda, Sims
Bayou, Channelview, Corpus Christi, and Port Aransas. And, with
the exception of a project in the Houston area, the barge and tug
were used in combination on every job. The barge had no means of
self-propulsion, and was therefore moved from one job to another by
a contract barge. Once the barge was relocated to a new project,
the tug would be employed to move the barge around as needed to
facilitate the work. In describing the integrated use of the barge
and tug during the Port Aransas project, Tom-Mac asserted the
following:
"Once the barge arrived at the project, [the tug] was used to
move the structure short distances to facilitate the
construction project.
The Port Aransas "T" head project required the work
platform to be moved from time to time by the [tug]. During
4
the work of removing old pilings and installing new ones, the
barge would not be moved any more than fifty feet at a given
time." (Emphasis added).1
Turning to the relationship between the decedents and the tug
and barge, Tom-Mac asserted in its motion for summary judgment
that,
"Neither Phillips nor Biela were permanently assigned to a
fleet of vessels; nor was either man permanently assigned to
the tug known as the MARCON I. Rather, both men would be
assigned to a project on an as-needed basis.... Neither
Phillips nor Biela performed work which contributed to the
function of the MARCON I, nor did they perform any of their
duties on board the tug."
In response, Claimants presented a picture that, while not directly
refuting Tom-Mac's recitation, certainly created a vastly different
overall impression of this relationship between the decedents and
the barge and tug:
"Tom-Mac controls a fleet of vessels—seven combinations of
tugs and barges along the Texas Gulf Coast. When Tom-Mac gets
a job, it uses the closest barge-tug combination for the job.
When a crew is assigned to a particular job requiring a
barge-tug combination, as in the Port Aransas job, the crew is
assigned "to work on the barge-tug combination'. Claude
Phillips and David Biela were part of the crew assigned to the
Port Aransas job."
Both parties agree that all of the work on the Port Aransas job was
performed "on the water," and not on shore.
On October 4, 1992, Rosa Biela, decedent David Biela's mother,
filed an action against Tom-Mac under the Jones Act in the 94th
District Court of Nueces County, Texas. On October 23, 1992, Tom-
Mac filed an answer to this claim, pleading the Limitation Act as
1
This statement arguably contradicts the Claimants' account,
supra, of Tom-Mac's use of the barge, two weeks into the project,
to transport supplies between Port Aransas and Aransas Pass.
5
a defense.
On November 23, 1992, Julitta Phillips, decedent Claude
Phillips' wife, filed her own action against Tom-Mac in the 94th
District Court. On December 9, 1992, Tom-Mac filed its answer to
this lawsuit, again pleading the Limitation Act.
Then, on April 6, 1993, Rosa Biela non-suited her action and
filed a plea in intervention in Julitta Phillips' action. The next
day, Tom-Mac filed an answer to this plea, again pleading the
Limitation Act as a defense.
On March 10, 1994, Rosa Biela and Julitta Phillips amended
their petition to allege that the decedents had been employees of
Tom-Mac and "members of the crew of the [tug]."2 In her original
petition, Phillips had alleged in this respect only that, on the
occasion in question, "Tom-Mac was the owner and operator of a
fleet of vessels used in furtherance of its business", and that, at
the time of the incident, Claude Phillips was a Tom-Mac employee
and a "member of the crew of the barge JR121," a barge which was
allegedly unseaworthy.
On June 20, 1994, Tom-Mac filed its petition in the district
court below, seeking protection under the Limitation Act for the
2
This amended petition also alleged that Tom-Mac was the
"owner and operator of a fleet of vessels" of which (at least
inferentially) the tug and barge were a part, that the tug was
used to move the barge to and at the work site, and that Tom-Mac
was guilty of negligence proximately causing the death of
decedents by, among other things, "failing to maintain the barge
and its appurtenances in a seaworthy conditions [sic] and
reasonable state of repair" and "failing to provide its employees
working on the unguarded decks of the barge with a U.S. Coast
Guard-approved work vest or buoyant vest."
6
tug. Tom-Mac stated in its petition that "not more than six months
have elapsed since Tom-Mac, Inc. received written notice of claim
alleging that the Plaintiffs were members of the crew of the
[tug]."
The City Appellants then joined the action in order to contest
Tom-Mac's limitation of liability claim and to assert claims for
contribution and indemnity against Tom-Mac.
Claimants filed a motion to dismiss Tom-Mac's limitation of
liability action, and the district court took this motion under
advisement on September 19, 1994. In support of this motion,
Claimants (1) alleged that Tom-Mac's petition was untimely, and (2)
asserted their willingness to stipulate that the tug alone was not
at fault and that Tom-Mac should therefore not be allowed to limit
its liability to a vessel that was not solely at fault.
On September 29, 1994, Tom-Mac filed a motion for summary
judgment in the district court, alleging that the barge was not a
vessel under the Jones Act as a matter of law. The Claimants filed
a reply on October 19, 1994. Without ruling on Claimants' motion
to dismiss, the district court granted Tom-Mac's motion for summary
judgment and dismissed the appellants' claims on November 21, 1994.
The Claimants then filed a motion to reconsider with the district
court, which was summarily denied on February 8, 1995.
The Claimants and City Appellants now appeal the district
court's grant of summary judgment.
Discussion
Jurisdictional questions are questions of law, and thus
7
reviewable de novo by this Court. In re Moody, 41 F.3d 1024, 1026
(5th Cir.1995). The fact that this is an admiralty case does not
change the standard. E.A.S.T., Inc. of Stamford, Conn. v. M/V
Alaia, 876 F.2d 1168, 1171 (5th Cir.), reh'g denied, 881 F.2d 1071
(1989). Mixed questions of fact and law are also reviewable de
novo. Walker v. Braus, 995 F.2d 77, 80 (5th Cir.1993). If the
district court resolves any factual disputes in making its
jurisdictional findings, the facts expressly or impliedly found by
the district court are accepted on appeal unless the findings are
clearly erroneous. Williamson v. Tucker, 645 F.2d 404, 413 (5th
Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212
(1981).
In their motion to dismiss, Claimants asserted that Tom-Mac's
limitation of liability action was not timely filed, thus
challenging the district court's jurisdiction to hear Tom-Mac's
petition. In pertinent part, the Limitation Act provides that:
"The liability of the owner of any vessel, whether American or
foreign ... for any act, matter, or thing, loss, damage ...
shall not ... exceed the amount or value of the interest of
such owner in such vessel, and her freight then pending." 46
U.S.C.App. § 183(a).
Specifically at issue is the six month window within which vessel
owners seeking such limitation of liability must petition the
district court for relief:
"The vessel owner, within six months after a claimant shall
have given to or filed with such owner written notice of
claim, may petition a district court of the United States of
competent jurisdiction for limitation of liability within the
provisions of this chapter ..." 46 U.S.C.App. § 185.
In the present case, Tom-Mac petitioned the district court for
8
limitation of liability on June 20, 1994. In its petition, Tom-Mac
asserted that "not more than six months have elapsed since [it]
received written notice of claim alleging that the Plaintiffs were
members of the crew of the [tug]." It is undisputed that Claimants
did not expressly allege that decedents were members of the tug
crew until March 10, 1994, when Claimants amended their claim under
the Jones Act in state court. Claimants did, however, bring
actions against Tom-Mac in Texas state court in October and
November of 1992, to which Tom-Mac promptly responded. The state
court action brought by Julitta Phillips in November of 1992, in
which Rosa Biela intervened in April 1993, identified Tom-Mac as
being on the occasion in question the owner and operator of a fleet
of vessels, among which was the allegedly unseaworthy barge where
the accident occurred.
Tom-Mac's contention that its June 20, 1994 petition was
timely filed in the district court is grounded on the principle
that written notice of a claim sufficient to begin the interval is
one which reveals a "reasonable possibility" that the claim made is
one subject to limitation. Complaint of Morania Barge No. 190,
Inc., 690 F.2d 32, 34 (2nd Cir.1982). Based on this, Tom-Mac
maintains that, while Claimants' March 10, 1994 amended complaint
sufficed to give Tom-Mac "written notice" under Morania Barge,
nevertheless Julitta Phillips' (Phillips) complaint of November 23,
1992—in which Rosa Biela intervened—revealed no "reasonable
possibility" that the claim fell within the Limitation Act because
there was no "reasonable possibility" that the barge was a "vessel"
9
under the Limitation Act.3
We find that the November 1992 state court complaint clearly
raised a "reasonable possibility" that the Limitation Act was
implicated as to the barge. First, the damages alleged by Phillips
in her 1992 complaint far exceeded the value of Tom-Mac's interest
in the barge and tug. Second, Phillips' 1992 complaint expressly
put Tom-Mac on notice that: (1) it was being sued as a result of
the accident that occurred on September 4, 1992, in the course of
its operations at the Port Aransas pier and in which two of its
employees were killed in the course of their employment; and (2)
a "fleet of [Tom-Mac's] vessels" was allegedly involved in this
accident. Third, Tom-Mac maintains that these allegations failed
to provide it with the requisite notice that there existed a
"reasonable possibility" that the Limitation Act was implicated by
the 1992 state court petitions because the barge was not a "vessel"
under the Limitations Act. However, considering the actual uses
and physical characteristics of this barge, we find that there was
clearly a "reasonable possibility" that the barge was a "vessel"
under the Act.4 Finally, it appears that Tom-Mac must have
3
The issue regarding claimants' attempted stipulation—that
the tug was not alone at fault—turns on the more comprehensive
question of whether or not Phillips' state court petition of
November 23, 1992, raised a "reasonable possibility" that the
Limitation Act was implicated as to both the barge and the tug.
4
In Matter of Sedco, Inc., 543 F.Supp. 561 (S.D.Tex.1982),
partially vacated on other grounds, 610 F.Supp. 306
(S.D.Tex.1984), the court enumerated the following criteria for
determining whether a craft is a "vessel" under the Limitation
Act:
"First, the craft must be built with the intent that it
10
resolved this question differently in late 1992, as it is
undisputed that Tom-Mac pled the Limitation Act as a defense to:
(1) Rosa Biela's (subsequently non-suited) Jones Act claim of
October 4, 1992; (2) Julitta Phillips' Jones Act claim of November
23, 1992; and (3) Rosa Biela's April 6, 1993, plea in
intervention.5
be used in navigation as a means of transportation.
Second, the contrivance must not be permanently
attached to the shore or seabed. Finally, the craft
must be subject to the perils of the sea." Id. at 571.
In Matter of Talbott Big Foot, Inc., 854 F.2d 758, 760 (5th
Cir.1988), this Court affirmed that Matter of Sedco set out
the test for determining whether a craft is a "vessel" under
the Act. Considering the undisputed evidence that the barge
had a raked bow, navigational lights, lifesaving equipment,
pumps, and depth markings on its side, as well as the
uncontroverted proof that the barge was generally used by
Tom-Mac for transportation and was used on at least one
occasion during the Port Aransas job to transport rubble
back to Aransas Pass and pick up supplies for the project,
it is evident that there existed a "reasonable possibility"
that the barge was a "vessel" under the Limitation Act.
5
In Vatican Shrimp Co., Inc. v. Solis, 820 F.2d 674 (5th
Cir.), cert. denied, 484 U.S. 953, 108 S.Ct. 345, 98 L.Ed.2d 371
(1987), this Court observed that:
"[The Fifth Circuit] has not previously addressed the
first question that Vatican Shrimp raises; that is,
under what circumstances does a federal court have
jurisdiction to adjudicate a contested claim for
limitation of liability when the shipowner has pled
limitation defensively in a properly filed state court
answer." Id. at 676-677.
Vatican Shrimp involved an injured seaman who filed a Jones
Act claim in Texas state court. In its state court answer,
Vatican Shrimp raised the defense of limitation of
liability. This Court concluded that:
"There is no question that Vatican Shrimp failed to
comply with the six-month time limit. Its defensive
pleading of limitation in the state court answer did
not toll the six-month filing period under section 185;
11
We conclude that—based on the undisputed facts presented in
this case—the Claimants' 1992 state court petitions gave Tom-Mac
notice of a "reasonable possibility" that a claim subject to the
Limitation Act had also been made against the tug; therefore, Tom-
Mac's petition of June 20, 1994 to limit its liability was likewise
untimely as to the tug.
While it does appear that the Claimants' state court petitions
failed to expressly allege that the decedents had been "members of
the crew" of the tug until they amended their joint petition in
March 1994, the facts of this case nevertheless demonstrate that
Tom-Mac had sufficient notice that the Claimants' allegations
implicated the tug to "trigger" the Limitation Act's six-month
statutory time bar in November of 1992. First, Phillips' petition
of November 23, 1992—in which Rosa Biela intervened in April of
1993—alleged, among other things, that Tom-Mac was the owner and
operator of a fleet of vessels, including the barge, that on the
occasion in question were in operation in furtherance of Tom-Mac's
business at the time of the accident. Second—turning to the
undisputed summary judgment evidence—both the tug and the barge
were under the common command of the Tom-Mac foreman of the Port
Aransas project. Third, both the tug and the barge had been
bareboat chartered by Tom-Mac from the same owner under the same
basic terms. Finally, at the time of the accident, the tug and
barge were "hooked-up" so as to facilitate any movement of the
nor did the state court answer provide the federal
court with jurisdiction to hear the limitation claim."
Id. at 679.
12
barge that might be necessary at the job site.
Where vessels are owned by the same person, engaged in a
common enterprise, and under a single command, this Court has
applied the "flotilla doctrine" to require—for limitation of
liability purposes—the owner's tender of all of the vessels in the
flotilla, or the value thereof, pending resolution of the
underlying claims. Cenac Towing Co., Inc. v. Terra Resources,
Inc., 734 F.2d 251, 254 (5th Cir.1984). This Court has recognized
that, "A tug and her barge in tow were treated [for purposes of the
flotilla doctrine] as a single vessel, because owned in common and
engaged in a common enterprise ..." Id. at n. 4 (emphasis in
original). Under the Limitation Act, where there is a "complete
transfer of possession, command, and navigation" of a vessel from
an owner to a "charterer," the charterer is deemed to be an owner
of the vessel. Id. at n. 3.
Consequently, as the Claimants' 1992 state court petitions
served to give Tom-Mac notice that the barge and tug were both
implicated, there is no merit to Tom-Mac's suggestion that the
Claimants' amended petition of March 10, 1994, constituted a new or
separate claim, sufficient to "restart" the six-month window for
filing under the Limitation Act. It is clear that the Claimants'
1994 amended petition was based upon the same accident, and had the
same parties, seeking the same damages from Tom-Mac (as the same
decedents' employer) for the same injury, as the original 1992
petitions. It appears that the Claimants' purpose in filing the
amended petition was simply to expressly clarify that their seaman
13
status allegations also involved the tug, a part of the same
flotilla. The Ninth Circuit has observed that shipowners have only
a single opportunity to seek the protections of the Limitation Act
once they have notice that a claim "with respect to the matter in
question" has been made; subsequently filed claims "with respect
to the matter in question" do not initiate the running of a new
six-month period. Esta Later Charters, Inc. v. Ignacio, 875 F.2d
234, 237 (9th Cir.1989). We find the Ninth Circuit's approach to
this issue to be appropriate in the particular circumstances of the
present case, where the change as between the claims is so very
minimal.6 Therefore, based on this record, the Claimants' 1994
amended petition did not trigger a new six-month limitation period
as to either the barge or the tug.
Conclusion
For the foregoing reasons, we reverse and remand to the
district court with direction to dismiss Tom-Mac's petition under
the Limitation Act.
REVERSED AND REMANDED.
6
We do not decide whether we would apply Esta Later Charters
to claims by different persons for different injuries, as was the
case there. Very different considerations may be involved in
such a situation. For example, the first claim may be trivial
and for an amount much less than the value of the vessel. See
Morania Barge at 34-35. We note that here it is obvious that the
claims were always for much more than the combined value of the
tug and the barge.
14