In Re: Blessey Enterprises, Inc. et al
Filing
188
RULING granting 177 Motion to Dismiss.. Signed by Judge James J. Brady on 4/30/2012. (CMM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
IN THE MATTER OF THE COMPLAINT OF
BLESSEY ENTERPRISES, INC., AS OWNER,
AND BLESSEY MARINE SERVICES, INC.,
AS OWNER PRO HAC VICE, OF M/V
CHARLES CLARK, HER ENGINES, TACKLE,
APPURTENANCES, FURNITURE, ETC.,
PRAYING FOR EXONERATION FROM OR
LIMITATION OF LIABILITY
CIVIL ACTION
NO. 08-235-JJB
consolidated with
IN THE MATTER OF M&P BARGE CO., INC.,
AS OWNER/OPERATOR OF THE M/V
HELEN G. CALYX, PETITIONING FOR
EXONERATION FROM DAMAGES OR
LIMITATION OF LIABILITY
CIVIL ACTION
NO. 08-244-JJB
RULING ON MOTIONS TO DISMISS
Before the Court are motions to dismiss each of these two consolidated actions. 1 Blessey
Enterprises, Inc. and Blessey Marine Services, Inc., as owner and owner pro hac vice,
respectively, of the M/V CHARLES CLARK, moves to dismiss No. 08-235 2 (the lead case), on
the basis that all the personal injury and property damage claims against it arising out of its
collision with the M/V HELEN G. CALYX have been settled. (Doc. 177; see also Sur-Reply,
Doc. 184). Similarly, M&P Barge Co., Inc., as owner of the M/V HELEN G. CALYX, moves to
dismiss No. 08-244 (the member case) for the same reason. (Doc. 53 in 08-244). The sole
opposition comes from Midship Marine, Inc., a claimant-in-limitation whose claims against the
shipowners have not been settled and who has not stipulated to a remand to state court. (Docs.
179, 180 (opposing dismissal motions in both cases); see also Reply, Doc. 187). Oral argument
is unnecessary. Jurisdiction exists under 28 U.S.C. § 1333.
1
2
This ruling applies to both cases captioned above.
All citations shall be to the lead case, No. 08-235, unless otherwise noted as occurring in No. 08-244.
1
I.
These cases arose out of a collision on April 13, 2008, between two ships—the HELEN
CALYX and the CHARLES CLARK—travelling on the Mississippi River near Angola,
Louisiana. Passengers on the HELEN CALYX included 18 employees of the Louisiana State
Penitentiary at Angola. Those passengers made claims for personal injuries against the owners
and operators of both ships. The owners of both ships filed separate actions in this Court under
the Limitation of Liability Act, 46 U.S.C. § 30501 et seq. (formerly 46 U.S.C.App. § 181 et
seq.). The Court consolidated the cases, stayed and restrained pending actions, and enjoined 3 all
existing and prospective related proceedings. (Doc. 29 in 08-244 (consolidation order); Doc. 3
in both cases (stay and injunction order)).
Both shipowners have each settled all personal injury and property damage claims
brought against them. (Pretrial Order, Doc. 178, at 13). The sole remaining claim against the
shipowners concerns a claim by Midship Marine against the shipowners for tort contribution and
indemnity. (Id.). Midship asserts this claim based on a state court lawsuit filed against it,
Blessey, and M&P Barge, among others, by Shirley Jernigan, one of the injured passengers. (See
Midship’s Answer and Counterclaim, Doc. 21, at 7-10; Doc. 26 in 08-244, at 6-9). Jernigan has
since settled her claims against all parties, including Midship. (Order of Dismissal, Doc. 169;
see also Pretrial Order, Doc. 178, at 10 (Midship admitting to “nuisance value” settlement)).
One of the injured passengers, Leslie Mark Dupont, and his wife, filed suit on May 29,
2008, against Midship in Louisiana state court. (Pretrial Order, Doc. 178, at 9-13 (discussing
3
It appears the stay was actually lifted and the injunction dissolved. (See Doc. 35). Many of the parties objected to
that ruling (see Docs. 44-47, 49-51), but their objections were never ruled on before this case was reassigned. (See
Docs. 133 (setting matter for oral argument), 134 (continuing oral argument), 137 (cancelling oral argument and
reassigning at undetermined later date), 163 (terminating all pending motions in light of case reassignment)). The
parties appear to be operating under the impression that barriers to state suits still exist. However, these matters are
either tangential or irrelevant for present purposes, as will be demonstrated below.
2
claims of Midship and the Duponts)). The Duponts contend Midship, as manufacturer of the
HELEN CALYX, defectively designed the ship by failing to include seatbelts or other safety
restraints. (Id.). The Duponts settled their claims against the shipowners and signed a release
promising to defend and indemnify the shipowners and their vessels from any claims arising
directly or indirectly as a result of their injuries sustained in the collision, including claims
against the shipowners and their vessels for indemnity, contribution, costs and attorneys’ fees.
(See Dupont Release, Doc. 177-2, at 2). The Duponts expressly reserved their right to sue
Midship. (Id.).
II.
Pursuant to Fed. Rule Civ. P. 12(b)(6), on a motion to dismiss for failure to state a claim,
the Court accepts all well-pleaded, non-conclusory facts in the complaint as true. Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[A]
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
A complaint that pleads facts merely consistent with a defendant’s liability “stops short
of the line between possibility and plausibility.”
Id. at 557.
When well-pleaded factual
allegations populate the complaint, “a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Iqbal, 129 S.Ct. at 1950. Courts
may consider not only the complaint itself, but also documents attached to the complaint or
documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322-23 (2007). The facts in the complaint are viewed collectively, not
scrutinized in strict isolation. Id. Courts are permitted to take public records and others matters
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of judicial notice into account when evaluating a motion to dismiss. Hall v. Hopkins, 305
Fed.Appx. 224, 227-28 (5th Cir. 2008); Davis v. Bayless, 70 F.3d 367, 372 n. 3 (5th Cir. 1995).
III.
Federal courts have exclusive original jurisdiction over “[a]ny civil case of admiralty or
maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise
entitled.” 28 U.S.C. § 1333(1). “The saving to suitors clause evinces a preference for jury trials
and common law remedies in the forum of the claimant’s choice.” ODECO Oil and Gas Co.,
Drilling Div. v. Bonnette, 74 F.3d 671, 674 (5th Cir. 1996) (citations omitted). However,
Congress granted shipowners a valuable remedy when it passed the Limitation Act, 46 U.S.C. §
30501 et seq. The Act permits shipowners who lack privity or knowledge to limit their liability
for damages arising from a maritime accident to “the value of the vessel and pending freight.”
46 U.S.C. § 30505. The saving to suitors clause cabins a shipowner’s right to limited liability
and sits in tension with the Limitation Act. ODECO, 74 F.3d at 674. However, a district 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. Id. Although state court proceedings
under the saving to suitors clause must be contingent on a shipowner’s absolute right to limit
liability, federal courts have developed two instances where a district court must allow a state
court action to proceed. Id. One arises when all claimants against the shipowner stipulate that
the federal court has exclusive jurisdiction over the limitation proceeding. Id. The other arises
when the total amount of the claims against the shipowner do not exceed the shipowner’s
declared value of the vessel and freight. Id.
4
A.
Fifth Circuit precedent makes absolutely clear that Midship is a claimant against Blessey
and M&P Barge within the meaning of the Limitation Act. See In re Complaint of Port Arthur
Towing Co. ex rel. M/V MISS CAROLYN, 42 F.3d 312, 316 (5th Cir. 1995) (holding that a codefendant of a shipowner who asserts a cross-claim against the shipowner for indemnification,
costs, and attorneys’ fees is a claimant). Midship finds itself in an identical position to the
situation described in Port Arthur Towing. In fact, since Midship is the only claimant against the
shipowners remaining, the joint stipulation exception to exclusive federal jurisdiction no longer
applies.
No dispute exists that at the time the shipowners filed their respective limitations
proceedings, there existed a reasonable apprehension that the total amount of the claims made or
threatened against them could have exceeded the respective value of the ships. However, since
all but Midship’s claim have been settled, it is less clear whether the second independent
justification for exclusive federal proceedings—ensuring the shipowners’ absolute rights to limit
their liability—still exists. However, the Court need not resolve whether calculation of the total
amount of the claims can be made intermittently as claims are settled or whether an ex ante
calculation alone is appropriate. By virtue of the shipowners filing these motions to dismiss,
they have unequivocally manifested their intent to relinquish their right to proceed in this federal
forum, and thus they have also waived their right to invoke whatever remaining protections the
Limitation Act may afford them.
As the exceptions to the exclusiveness of the federal forum for limitation actions make
clear, the paramount concern of a federal court in resolving questions under the Act is whether
the shipowners receive the benefit of limited liability. If the question is answered negatively or
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remains unclear, federal courts must deny any motion which threatens the shipowners.
Shipowners’ choice of forum—a federal court sitting in admiralty—thus deserves a very high
degree of deference under the precedents.
It is less certain how Midship, an adversarial claimant against the shipowners, may seek
to invoke the protections of the Act of behalf of the shipowners. Obvious standing problems
arise from such a position. But when Midship’s argument to protect the shipowners flies directly
in the face of the shipowners’ own arguments against the federal forum maintaining the action,
common sense must prevail. Midship’s attempts to concern troll 4 for the shipowners’ limited
liability rights are unavailing. Indeed, they are directly contrary to Midship’s own interests; with
the liability cap removed, they have no worries that their recovery, if any, against the shipowners
will be diminished. Whatever Midship’s motives are for asserting this position, it has neither
persuaded the Court that continuing jurisdiction here is mandatory nor has it shown a prudential
reason why this action should be maintained against the express wishes of the shipowners.
B.
Because the Act’s concerns about the shipowners’ liabilities are now alleviated, the
tension between the Act and the saving to suitors clause of § 1333, previously tilted in favor of
the federal forum, now shifts decisively in the opposite direction. Whatever indemnity or
contribution claims Midship may bring against the shipowners by virtue of the Dupont litigation
can be handled in that state proceeding. 5 Moreover, Midship’s sole live claim in this case—for
the indemnity, contribution, costs and attorneys’ fees associated with the Jernigan litigation—is
4
See Urban Dictionary, Entry for “concern troll” (last visited April 20, 2012), available at
http://www.urbandictionary.com/define.php?term=concern+troll (“In an argument . . . a concern troll is someone
who is on one side of the discussion, but pretends to be a supporter of the other side with “concerns.”).
5
Indeed, because the Duponts have agreed to indemnify and defend the shipowners from any indemnity or
contribution claim against the shipowners asserted by Midship, it would appear Midship could not actually recover
against the shipowners and vessels themselves, apparently obviating any Limitation Act concerns in that regard.
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readily reducible to a sum certain since Jernigan settled with both Midship and the shipowners. 6
That claim too may be easily handled in a separate proceeding. But neither case implicates the
policies of the Limitation Act since the shipowners have voluntarily and expressly moved to
dismiss this case. Without shipowners’ liabilities to protect, the Court finds this forum ill-suited
for treating the remaining issues that are tangential to the original purpose of these actions.
Hereafter, all the remaining parties still retain the ability to pursue all their claims under the
saving to suitors clause unencumbered by the Limitation Act.
Because the Court does not address the merits of Midship’s position, the Court need not
express an opinion on the applicability of McDermott, Inc. v. AmClyde, 511 U.S. 202 (1994), to
those claims. Such treatment is better reserved for the relevant state court proceeding, where
Midship may re-file or implead its claims against the shipowners.
IV.
Accordingly, the motions to dismiss filed by Blessey Enterprises, Inc. and Blessey
Marine Services, Inc. (Doc. 177 in No. 08-235) and M&P Barge Co., Inc. (Doc. 53 in No. 08244) are hereby GRANTED.
Signed in Baton Rouge, Louisiana, on April 30, 2012.
JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
6
Because nothing in the record reflects what type of release Jernigan, Midship, and the shipowners signed, the Court
expresses no opinion on how that release affects Midship’s claims against the shipowners.
7
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