UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-31009
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GENE A. BILLIOT,
Plaintiff-Appellee,
versus
DOLPHIN SERVICES, INC.; ET AL.,
Defendants,
DOLPHIN SERVICES, INC.,
Defendant-Appellant.
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In Re: In the Matter of: DOLPHIN SERVICES, INC.,
As Owner Pro Hac Vice/Operator of the Spud Barge KS410
For Exoneration From or Limitation of Liability,
DOLPHIN SERVICES, INC., As Owner Pro Hac Vice/
Operator of the Spud Barge KS410
For Exoneration From or Limitation of Liability,
Petitioner-Appellant,
versus
TEXACO, INC.; TEXACO EXPLORATION AND PRODUCTION, INC.;
GENE A. BILLIOT,
Claimants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
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August 24, 2000
Before JOLLY, SMITH, AND BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this challenge to the dismissal, as time-barred, of the
action at hand, filed by Dolphin Services, Inc. (vessel owner pro
hac vice/operator), under the Limitation of Vessel Owner’s
Liability Act, 46 U.S.C. §§ 181-196, at issue is whether, pursuant
to 46 U.S.C. § 185 (action must be filed within six months of
written notice of claim), the filing-period was triggered by Gene
A. Billiot’s original petition (written notice of claim), which
misidentified the vessel on which he was allegedly injured (named
barge with identification number different from one on which he now
claims he was injured), even though: Billiot refused, within that
filing-period, to correct the misidentification, after Dolphin
provided him with the correct identification; and Billiot waited
until after expiration of that filing-period to amend his petition,
by changing the barge identification. We VACATE and REMAND.
I.
Billiot allegedly was injured on 7 October 1997, while working
as a crew member on a spud barge in Texaco’s Leesville field. On
19 August 1998, he filed his original state court petition,
alleging that the incident occurred on spud barge KS-420. Pursuant
to an amendment to his petition, the incident instead allegedly
occurred on KS-410.
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That October, Dolphin answered incorrectly that, on the date
of the alleged incident, it was the bareboat charterer of KS-420,
which was operating in the Leesville field. In fact, on that date,
KS-420 was neither chartered by Dolphin nor in that area. In
addition, Dolphin asserted limitation of liability as a defense.
Billiot, inter alia, contested that defense.
In February 1999, less than six months after the petition was
filed (six months being the period allowed for filing a limitation
of liability action), Dolphin informed Billiot that further
investigation revealed the alleged incident occurred on KS-410, not
on KS-420 as pleaded:
Please be advised that our investigation
has indicated that the spud barge upon which
plaintiff was working at the time of his
alleged incident was not the KS-420, but
rather the KS-410. [Dolphin] did not charter
the KS-420 until after plaintiff’s alleged
incident. ... [W]e will proceed as though all
discovery propounded to date which inquired
into the KS-420 was in fact inquiring into the
KS-410.
(Emphasis added.) Three days later, notwithstanding Dolphin’s
advising Billiot about his vessel misidentification, and after, in
response to discovery requests about KS-420, receiving from Dolphin
documentation relating to KS-410, Billiot replied he instead wanted
documentation for KS-420.
In April 1999, more than six months after it was filed,
Billiot amended his petition to claim the incident occurred on KS-
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410. Dolphin answered; and, on 18 June 1999, filed this action in
federal court, pursuant to the Limitation of Vessel Owner’s
Liability Act, 46 U.S.C. §§ 181-196 (the Act). This action was
filed approximately ten months after Billiot’s original petition,
but only two months after it was amended. (Two days earlier, on 16
June, Dolphin had removed Billiot’s state court action to federal
court.)
Billiot, inter alia, moved to dismiss this limitation of
liability action as untimely, because it was filed more than six
months after Dolphin received his original petition. According to
Billiot, that receipt was the triggering written notice of claim
under the Act, 46 U.S.C. § 185.
The district court agreed, holding that, even though Billiot’s
original petition misidentified the vessel, it was sufficient
written notice of claim for a limitation of liability action.
Therefore, the action at hand was dismissed as untimely.
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II.
We review de novo whether this action was timely filed.
Complaint of Tom-Mac, Inc., 76 F.3d 678, 682 (5th Cir. 1996). If,
in making its timeliness-ruling, the district court makes findings
of fact, they are reviewed only for clear error. Id.
In pertinent part, the Act provides:
The liability of the owner of any vessel
... for ... any ... loss ... 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. § 183 (emphasis added). And:
The vessel owner, within six months after
a claimant shall have given ... such owner
written notice of claim, may petition a
district court of the United States ... for
limitation of liability....
46 U.S.C. § 185. A “written notice of claim” sufficient to trigger
the filing-period must reveal a “reasonable possibility” that the
claim is subject to such limitation. Tom-Mac, 76 F.3d at 683.
At issue is whether the original petition, which misidentified
the vessel on which the incident allegedly occurred, coupled with
Billiot’s insistence that the vessel (KS-420) listed in that
petition was correctly identified, even after Dolphin informed him
otherwise, is sufficient written notice of claim for the vessel
(KS-410) not named until the petition was amended, with that
amendment being subsequent to the filing-period running from the
original petition.
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Under the Act, the vessel owner’s liability is limited to the
value of his interest in the vessel. Limitation cannot be claimed
in general; instead, the vessel for which limitation is sought must
be identified, because FED. R. CIV. P. SUPPLEMENTAL RULE FOR CERTAIN
ADMIRALTY AND MARITIME CLAIMS F(2) requires the limitation of liability
complaint to include “all facts necessary to enable the court to
determine the amount to which the owner’s liability shall be
limited”. Such facts include the vessel’s identity and its value.
(Moreover, as referenced infra, Rule F(1) requires, inter alia, the
owner to post court-approved security.)
The Act does not require plaintiff to have identified the
vessel in his underlying action (written notice of claim). This
notwithstanding, Billiot’s original petition did identify a
specific vessel: KS-420. Dolphin investigated and informed him he
had identified the wrong vessel. Initially, Billiot insisted he
was correct; but, after expiration of the filing-period for a
limitation of liability action, he amended his petition by
identifying a new vessel, KS-410, whose identification had been
provided by Dolphin to Billiot prior to expiration of the filing-
period running from the original petition.
Billiot relies upon Tom-Mac in claiming the original petition
provided Dolphin with sufficient written notice of claim for KS-
410, even though the claim in that original petition was for KS-
420, the wrong vessel. In Tom-Mac, two crew members were killed on
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a barge attached to a tug. In the resulting action, decedents’
survivors’ petition alleged defendant Tom-Mac controlled a “fleet
of vessels” involved in the incident, and specifically identified
the barge on which it occurred. But, more than a year after the
original petition was filed, the petition was amended to “expressly
clarify that [its] seaman status allegations [included] the tug”.
Tom-Mac, 76 F.3d at 684 (as discussed infra, tug with barge in tow
considered one vessel). No vessel was substituted for the barge
identified in the original petition.
Tom-Mac then filed a limitation of liability action, based
upon the amendment being the first “written notice of claim”
against the tug. Id. at 682. But, our court held the original
petition provided Tom-Mac with a “reasonable possibility” that a
claim subject to the Act had been made against the tug, including
holding that the amendment to the claim was “very minimal”. Id. at
685.
Tom-Mac is distinguishable. Its result is very fact-driven;
just as is the result for the action at hand. At the time of the
alleged incident in Tom-Mac, the defendant controlled both the
barge and the attached tug. Here, KS-420 (named in the original
petition) was not controlled by Dolphin at the time of the alleged
incident. Instead, it was in dry dock and was not chartered by
Dolphin until almost three weeks after the alleged incident.
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Furthermore, the original Tom-Mac petition alleged that a
fleet of vessels was involved in the incident, thereby triggering
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”. See id. at 684. In this regard, Tom-Mac noted
that, under our court’s precedent: “A tug and her barge in tow
[are] treated for purposes of the flotilla doctrine as a single
vessel, because [they are] owned in common and engaged in a common
enterprise”. Id. (internal quotation marks and brackets omitted).
Billiot’s original petition stated only KS-420 was involved. It
mentions neither a fleet of vessels nor KS-410.
And, unlike the minimal amendment to the Tom-Mac original
petition, Billiot’s substituted one vessel for another. Vessel
substitution is not a minimal change in the petition, because,
prior to the amendment, and based on this record, Dolphin had no
notice that a claim subject to limitation was being made against
the KS-410. Cf. Complaint of Morania Barge No. 190, Inc., 690 F.2d
32, 34-35 (2d Cir. 1982) (initial petition for damages in amount
less than vessel’s value insufficient written notice of claim to
trigger filing-period; amending petition to seek more than vessel’s
value does so).
As stated, the result in this action is very fact-driven.
Dolphin was entitled to rely on Billiot’s original petition (the
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written notice of claim) and, especially, his response to —
rejection of — Dolphin’s advising him he had identified the wrong
vessel. See id. To hold otherwise would be to countenance
plaintiffs’ manipulation of the filing-period for limitation of
liability actions, with, among other things, concomitant
unnecessary costs in time, effort, and money (including possibly
posting security) to defendants having to file such an action when
they might otherwise not have been required to do so if the
plaintiff, in electing to identify a specific vessel, had simply
identified the correct one. And, obviously, limitation of
liability actions filed unnecessarily in federal courts adversely
affect them.
This holding is limited to the facts at hand. Based on them,
the original petition was not a sufficient written notice of claim
to reveal to Dolphin the requisite “reasonable possibility” that a
claim against KS-410, subject to limitation of liability, had been
made.
III.
For the foregoing reasons, the dismissal of this action is
VACATED, and it is REMANDED for further proceedings.
VACATED and REMANDED
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