In Re: Devall Towing & Boat Service of Hackberry L L C

Filing 20

ORDER granting 9 Motion to Lift Stay. IT IS FURTHER ORDERED that the Clerk of Court is to administratively close this action in his records without prejudice to the right of either party to file a motion to reopen the proceedings at such time, if any, it shall become necessary for this Court to determine issues relevant to limitation and/or exoneration. Signed by Magistrate Judge Carol B Whitehurst on 10/26/2018. (crt,Crick, S)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

IN RE: DEVALL TOWING & BOAT CASE NO. 6:18-CV-00752
SERVICE OF HACKBERRY L LC
UNASSIGNED DISTRICT JUDGE
MAGISTRATE JUDGE WHITEHURST

ORDER ON MOTION TO LIFT STAY
Before the Court is a Motion To Lift Stay filed by Jason Lanclos (“Lanclos”)
[Rec. Doc. 9], a Memorandum in Opposition filed by Devall Towing & Boat Service
of Hackberry, L.L.C. (“Devall Towing”) [Rec. Doc. 15], and a Memorandum in
Reply filed by Lanclos [Rec. Doc. 19]. For the reasons that follow the Court will
grant Lanclos’ motion.
I.

BACKGROUND

Lanclos, a deckhand employed by Petitioner in Limitation, Devall Towing.
was assigned to work on the push boat M/V KENNETH J. DEVALL, owned and
operated by Devall Towing, on navigable inland waters in Cameron Parish. On
December 24, 2017, Lanclos and his crew members were instructed to assist the
crew members of the M/V ZELAND M. DELOACH, JR., owned and operated by
Deloach Marine Services, L.L.C. (“Deloach”) with breaking its tow (a barge). While
assisting on the barge, Lanclos alleges he was hit in the head by a “heavy cheater

pipe or similar object” which fell off the cover of the barge. Lanclos also alleges he
asked for a hard hat when he arrived at work that day but learned that hard hats were
not required for the crew nor were they available. Lanclos alleges he suffered a
trauma to his head and has been unable to return to work since the accident. He
represents that he is scheduled for a one-level cervical discectomy and fusion.
Lanclos made a cure demand on Devall Towing on February 19, 2018.
Thereafter, this limitation proceeding was filed on June 6, 2018 and the Court issued
a Notice to Claimants and Order staying prosecution of claims on June 19, 2018.
Thereafter, Lanclos filed a timely answer and claim, reserving his right to petition
the Court to lift the stay order allowing him to proceed on his Jones Act claims
against Devall Towing pursuant to his Saving to Suitors Clause, 28 U.S.C. § 1333(1)
II.

LAW AND ANALYSIS

In the instant motion, Lanclos seeks relief from the limitation stay so that he
may file a lawsuit in the 38th Judicial District Court for the Parish of Cameron, State
of Louisiana against Devall Towing. Lanclos anticipates that the suit will bring
claims under the Jones Act and for maintenance and cure and unseaworthiness
against Devall Towing and general maritime claims against Deloach for negligence
in the handling of the pipe that injured him. Lanclos attached a Stipulation which he
contends protects Devall Towing’s right to have its claim for limitation decided in
this Court. R. 9-1.
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The Limitation of Liability Act, 46 U.S.C. § 183 et seq., provides that the
liability of a shipowner shall not exceed the value of the vessel at fault and her
pending freight if the casualty occurred without the privity or knowledge of the
shipowner. Federal courts have exclusive jurisdiction over suits invoking the Act,
“saving to suitors ... all other remedies to which they are otherwise entitled.” 28
U.S.C. § 1333. When a shipowner files a limitation action in federal court under
Rule F of the Federal Rules of Civil Procedure-Supplemental Rules for Certain
Admiralty and Maritime Claims, the court stays all related claims against the
shipowner arising out of the same accident and requires all claimants to assert their
claims in the limitation court. See, e.g ., Lewis v. Lewis & Clark Marine, Inc., 531
U.S. 438, 448 (2001). The purpose of the Limitation Act is to protect the shipowner
who has an absolute right to limit his or her liability, and to consolidate all actions
against the owner into a single case where all claims may be disposed of
simultaneously. In re Blessey Enterprises, Inc., 537 Fed.Appx. 304, 305 (5th Cir.
2013) (citing Karim v. Finch Shipping Co., Ltd., 265 F.3d 258, 264 (5th Cir. 2001)).
Notwithstanding the foregoing, the Fifth Circuit recognizes that, in a
limitation action, “claims may proceed outside the limitation action (1) if they total
less than the value of the vessel, or (2) if the claimants stipulate that the federal court
has exclusive jurisdiction over the limitation of liability proceeding and that they
will not seek to enforce a greater damage award until the limitation action has been
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heard by the federal court.” In re Tetra Applied Technologies L P, 362 F.3d 338, 341
(5th Cir. 2004). Thus, if the necessary stipulations are provided to protect the rights
of the shipowner under the Limitation Act, the claimants may proceed in state court.
Id., In re Complaint of FKM, Inc., for Exoneration from or Limitation of Liability,
122 Fed.Appx. 783, 784, (5th Cir.2005) (“So long as the district court hearing the
limitation action satisfies itself that a vessel owner's right to seek limitation will be
protected, the decision to dissolve the injunction is well within the court's
discretion.”).
In its Opposition, Devall Towing argues that because the Court has discretion
in deciding whether to lift the injunction in this case, the Court should deny Lanclos’
motion as his stipulations are “vague and inadequate.” R. 15, p. 4. Specifically,
Devall Towing contends that the stipulations fail to state the venue where Lanclos
intends to bring suit and that he intends to bring all claims against all alleged
tortfeasors in one proceeding. Id. Devall Towing further contends that Lanclos
refuses to stipulate to the value of the M/V KENNETH J. DEVALL and its pending
freight. Id. Devall Towing argues that “the value of the limitation fund must be
finalized before Lanclos can be allowed to proceed.” Id. Alternatively, Devall
Towing contends that in the event the Court grants Lanclos’ motion, this proceeding
should proceed in a parallel fashion so that necessary discovery will not be
duplicated.
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Lanclos initially offered the following Stipulations attached to his motion: (1)
he concedes that Devall Towing “has the right to litigate all issues relating to
limitation of liability … [but] specifically reserves the right to deny and contest in
this Court all assertions and allegations made by Petitioner in the Complaint for
Limitation of Liability;” (2) he “intends to file a personal injury lawsuit against
Devall Towing in Louisiana state court, but … stipulates he will not seek in that
action or in any other action in federal or state court, any judgment or ruling on the
issue of Devall Towing’s right to limitation of liability” and “consents to waive any
claim of res judicata relevant to the issue of limitation of liability based on any
judgment that may be rendered in any other action;” (3) that he “waive[s] any
defense of issue preclusion with respect to the issues of Devall Towing’s privity or
knowledge based on any ruling, decision, or judgment in any other state or federal
court; and (4) he “will not seek to enforce any judgment or recover in excess of the
value of the M/V KENNETH J. DEVALL and her freight then-pending until after
the adjudication of the Complaint of Limitation of Liability in this Court although
he does not stipulate at this time that $500,000 is the value of the vessel and its
pending freight” … [he] “stipulates that this Court has exclusive jurisdiction over
the proper value of the limitation fund.” R. 9-1.

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In response to Devall Towing’s Opposition, Lanclos filed an Amended
Stipulation which included the foregoing but also stated that he would file only “one
personal injury lawsuit against Devall Towing in the 38th Judicial District Court for
the Parish of Cameron, State of Louisiana.” R. 17-2. The Court finds Lanclos’
Amended Stipulations are sufficient to protect Duvall Towing’s rights under the
Limitation Act. While Devall Towing cites no legal authority for its argument that
the value of the limitation fund must be finalized before the stay can be lifted, the
jurisprudence is contrary to Devall Towing’s argument. In Luhr Bros. Inc. v.
Gagnard, 765 F. Supp. 1264, 1267-68 (W.D. La. 1991), the Court explained that in
a case such as this one─in which the Jones Act affords the single claimant the right
to obtain a jury trial in a forum of the crewman’s choosing─the court should lift the
injunction and allow the claim to be tried in a court where doing so preserves the
rights of both parties (the claimant's right to a jury trial and the shipowner's right to
limit its liability). Under these circumstances, the state court action is permitted to
continue until a judgment is rendered while the limitation action is held in abeyance.
Failure to lift the stay in this manner is reversible error.” Id. (citing Langnes v. Green,
282 U.S. 531, 542 (1931)); see also In re Tidewater, Inc., 249 F.3d 342, 347 (5th Cir.
2001).
Further, as to Devall Towing’s contention that discovery in this limitation
action should be conducted with Lanclos’ state court action, the Court agrees with
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Lanclos that such action would needlessly increase the time, resources and expenses
incurred by the parties. In the event it is determined in the state court proceeding that
Devall Towing has no liability or that Mr. Lanclos’ damages are less than the value
of Devall Towing’s vessel, then the question of limitation will be moot.
III.

CONCLUSION

In summary, as Lanclos, the sole claimant in the limitation proceeding, has
proffered stipulations to give this Court certainty that the federal forum will remain
the sole forum for the adjudication of the plaintiff in limitation’s rights to limitation
and/or exoneration of liability under the Limitation Act,
IT IS ORDERED that claimant Jason Lanclos’ Motion To Lift Stay [Rec.
Doc. 9] is GRANTED, and the stay entered pursuant to 46 U.S.C.App. § 185 is
HEREBY LIFTED.
IT IS FURTHER ORDERED that the Clerk of Court is to administratively
close this action in his records without prejudice to the right of either party to file a
motion to reopen the proceedings at such time, if any, it shall become necessary for
this Court to determine issues relevant to limitation and/or exoneration.. This order
shall not be considered a dismissal or disposition of this matter, and should further
proceedings in it become necessary or desirable, any party may initiate such motion

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as if this order had not been entered.
THUS DONE AND SIGNED in Lafayette, Louisiana, on this 26th day of
October, 2018.

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