In Re American Commercial Barge Line LLC
Filing
69
MEMORANDUM OPINION AND ORDER denying 22 MOTION to Lift Stay, denying 23 MOTION to Bifurcate the Instant Consolidated Action, denying 34 Amended MOTION to Lift Stay (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
March 14, 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN THE MATTER OF THE COMPLAINT
OF AMERICAN COMMERCIAL BARGE
LINE LLC FOR EXONERATION FROM
OR LIMITATION OF LIABILITY
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and
IN THE MATTER OF THE COMPLAINT
OF KINDER MORGAN MARINE
SERVICES, LLC, AS OPERATOR AND
OWNER OF THE M/V AUSTIN STONE
FOR EXONERATION FROM OR
LIMITATION OF LIABILITY
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-3841
MEMORANDUM OPINION AND ORDER
Christopher Brothers ("Brothers" or "Claimant") filed suit in
Harris County, Texas, against Kinder Morgan Marine Services, LLC
("KMMS") and American Commercial Barge Line, LLC ("ACBL") alleging
claims
related
of
to
negligence,
alleged
negligence
injuries
he
per
se,
sustained
and gross
during
negligence
two
separate
incidents while working aboard two KMMS vessels,
the Elmer Stone
and Austin Stone, in 2015 and 2016 respectively. 1
ACBL filed this
limitation of liability action on December 21,
1
2017,
seeking to
See Plaintiff's
First Amended Petition
("State Court
Petition"), Exhibit B to Kinder Morgan Marine Services, LLC' s
Response in Opposition to Claimant's Motion to Dissolve Limitation
Injunction ("KMMS's Response in Opposition to Dissolve"), Docket
Entry No. 26-2, pp. 2-3; Claimant's Motion to Bifurcate, Docket
Entry No. 23, p. 2 (stating that the 2015 accident occurred on the
Elmer Stone and that the 2016 accident occurred on the Austin
Stone) .
limit its liability for injuries Brothers sustained in the 2016
incident.
KMMS filed a separate limitation of liability action
seeking to limit its liability to Brothers for his injuries arising
from both the 2015 and 2016 incidents. 2
Brothers filed separate
answers and claims against KMMS and ACBL in the two limitation
actions. 3
The
March 28, 2018. 4
two
limitation
actions
were
consolidated
on
KMMS filed its own answer and claims against ACBL
on April 20, 2018, seeking indemnity and contribution from ACBL for
liability
it
may
incur
to
Brothers
as
a
result
of
the
2016
accident. 5
On July 19,
2018,
the
court
issued an order staying the
institution or prosecution of any of Brothers' claims against ACBL
except in this action for exoneration. 6
Pending before the court
are Claimant's Motion and Amended Motion to Dissolve Limitation
Injunction (Docket Entry Nos. 22 and 34) and Claimant's Motion to
Bifurcate (Docket Entry No. 23).
For the reasons explained below,
Brothers' motions will be denied.
2
See Complaint for Exoneration from
Liability, Docket Entry No. 1 in 4:18-cv-72.
or
Limitation
of
See Answer and Claims of Claimant Christopher Brothers,
Docket Entry No. 4; Answer and Claims of Claimant Christopher
Brothers, Docket Entry No. 3 in 4:18-CV-72.
3
4
See Order [March 28, 2018], Docket Entry No. 11.
5
See Answer and Claim [of Claimant Kinder
Services, LLC], Docket Entry No. 13, pp. 5-6.
6
Morgan
Marine
See Order Approving Stipulation for Costs and Security for
Value and Directing Issuance of Notice, and Restraining Suits,
Docket Entry No. 20, pp. 2-3.
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I.
Claimant's Motion to Dissolve Limitation Injunction
"A
shipowner
facing
potential
liability
for
a
maritime
accident may file suit in federal court seeking protection under
the [Limitation] 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.'"
Towing Co., 42 F.3d 312, 315 (5th Cir. 1995)
§
183(a)).
In re Port Arthur
(citing 46 U.S.C. app.
When a limitation action is filed by a vessel owner
"the federal district court stays all related claims against the
shipowner pending in any forum,
assert
their
claims
in
the
and requires all
limitation court."
claimants to
Id.
(internal
quotations omitted)
"[C] laims may proceed outside the limitation action
they total
claimants
less
than the value of
stipulate
that
the
the vessel,
federal
court
or
has
( 2)
(1)
if
if
the
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 heard by the federal court."
and Gas Company, Drilling Division v. Bonnette,
(5th Cir.
1993)
("Odeco I").
claimants must sign the
4 F.3d 401,
To proceed in state court
stipulation protecting the
rights under the Limitation Act."
Drilling Division v. Bonnette,
Odeco Oil
"all
shipowner's
Odeco Oil and Gas Company,
74 F.3d 671,
-3-
404
675
(5th Cir. 1996)
"Odeco II").
"[P]arties seeking indemnification and contribution
from a shipowner must be considered claimants within the meaning of
the Limitation Act."
Id.
In an attempt to proceed with his state court action, Brothers
has made the following stipulation:
1.
Petitioners are entitled to and have the right to
litigate all issues relating to limitation of
liability in this Court.
Claimant specifically
reserves his right to deny and contest in this
Court all assertions and allegations made by
Petitioners in their respective Complaints for
Exoneration From or Limitation of Liability;
2.
Claimant will not seek any judgment on the issue of
Petitioners' right to limitation of liability in
any other federal or state courts;
3.
Claimant will not seek to enforce any judgment in
excess of the value of the respective limitation
funds pending the adjudication of the Complaints
for Exoneration From or Limitation of Liability in
this Court;
4.
In the event there is a judgment or recovery in the
state court in excess of the stated value of the
respective limitation funds, in no event will
Claimant herein seek to enforce that excess
judgment or recovery insofar as the same may expose
Petitioners to liability in excess of the stated
value of the respective limitation funds unless and
until the federal court finds that Petitioners are
not entitled to such limitation;
5.
Claimant waives any res judicata effect of the
decisions of the state court on limitation of
liability and the amount of the limitation fund. 7
KMMS and ACBL argue that Brothers' stipulation is not sufficient
for two reasons:
First, KMMS and ACBL argue that the substance of
7
See Claimant's Amended Motion to
Injunction, Docket Entry No. 34, pp. 3-4.
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Dissolve
Limitation
the stipulation is
insufficient under Fifth Circuit precedent.
Second, KMMS and ACBL argue that the stipulation fails regardless
of its substantive sufficiency because KMMS is a claimant and has
refused to sign the stipulation.
the value of ACBL' s vessels. 8
The claims in this case exceed
KMMS is a
"claimant" within the
meaning of the Limitation Act because KMMS seeks indemnity and
contribution from ACBL for its liability for the 2016 accident.
For Brothers' stipulation to be sufficient, KMMS needed to sign it.
But KMMS has expressly refused to do so.
The court is not persuaded by Brothers' argument that KMMS's
indemnity and contribution claims should not be considered because
they
are
based
on
KMMS's
maintenance
and
cure
obligation.
Maintenance and cure is a contractual obligation a shipowner owes
to a seaman.
1991).
Brister v. A.W.I., Inc., 946 F.2d 350, 360 (5th Cir.
Maintenance and cure claims typically accompany claims
under the Jones Act or claims for unseaworthiness, both of which
require a showing of fault or negligence and offer a more liberal
recovery.
See
id.
at
360-61.
A shipowner
cannot
limit
his
liability to his employee for maintenance and cure in a limitation
action because maintenance and cure is a contractual obligation.
See id.
and
cure
KMMS is not seeking to limit its liability for maintenance
to
Brothers .
Neither
8
Brothers
nor
KMMS
is
seeking
See KMMS's Response in Opposition to Dissolve, Docket Entry
No. 26, p. 3; Order Approving Stipulation for Costs and Security
for Value and Directing Issuance of Notice, and Restraining Suits,
Docket Entry No. 20, p. 2.
-5-
maintenance and cure from ACBL.
KMMS' s
Brothers' claims against ACBL and
indemnity and contribution claims against ACBL are tort
claims.
Brister does not prohibit KMMS from seeking indemnity or
contribution from ACBL to recover what it must pay to Brothers in
maintenance and cure as a result of the 2016 accident.
The stipulation is insufficient because not all claimants have
agreed to sign it.
Brothers' motions to dissolve the injunction
will therefore be denied.
II.
Claimant's Motion to Bifurcate
A district court has discretion to order separate trials of
one
or
more
claims
or
issues
"[f]or
convenience,
prejudice, or to expedite and economize."
The
Fifth
Circuit
appropriate,
has
the
cautioned
"issue
to
be
that
tried
to
avoid
Fed. R. Civ. P. 42(b).
for
bifurcation
[separately]
to
be
must
be
so
distinct and separable from the others that a trial of it alone may
be had without injustice."
Swofford v. B & W, Inc., 336 F.2d 406,
415 (5th Cir. 1964), cert. denied, 85 S. Ct. 653
(1965).
"Tension exists between the saving to suitors clause and the
Limitation Act because the
remedies,
while
the
former affords
latter gives
suitors a
shipowners
the
choice of
right
to seek
limitation of their liability exclusively in federal court."
Tetra Applied Technologies,
2004).
L.P.,
362
F.3d 338,
340
In re
(5th Cir.
Some courts have resolved this conflict by bifurcating the
personal injury and limitation actions and allowing two separate
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trials -- a federal bench trial on limitation of liability and a
state jury trial on the personal injury claims.
Green,
51 S.
Ct.
243,
247
(1931).
See Langnes v.
To proceed in state court,
however, all claimants in a multiple claimant limitation proceeding
must "stipulate that the federal court has exclusive jurisdiction
over limitation issues and [that]
the claimants will not seek to
enforce a greater damage award than the limitation fund .
11
Texaco, Inc. v. William§, 47 F.3d 765, 768 (5th Cir. 1995).
Brothers seeks to bifurcate this action in order to try his
Jones Act and other maritime injury claims before a state court
jury. 9
KMMS is a claimant under the Limitation Act.
KMMS has
refused to sign a stipulation promising not to enforce a damage
award greater than the limitation fund.
agree to bifurcation. 10
KMMS has also refused to
Without certainty that KMMS and Brothers'
claims against ACBL will not exceed the
federal
forum must
claims against [ACBL]
remain the
11
sole
forum
limitation fund,
"the
for adjudicating the
Odeco II, 74 F. 3d at 675; Odeco I, 4 F.3d
405, n.7 (explaining that Pershing Auto Rentals, Inc. v. Gaffney,
279 F.2d 546, 552 (5th Cir. 1960), mandates that the federal forum
remain the sole forum unless all claimants stipulate as to the
shipowner's right to limitation).
9
In the absence of a stipulation
See Claimant's Motion to Bifurcate, Docket Entry No. 23, p. 2.
10
See Kinder Morgan Marine Services,
LLC's Response in
Opposition to Claimant's Motion to Bifurcate, Docket Entry No. 27,
p. 6.
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signed by both Brothers and KMMS
limitation,
allowing Brothers'
agreeing
to ACBL' s
right
to
claims to proceed in state court
would be inappropriate because the court cannot protect ACBL's
right to limitation.
III.
Conclusion
Not all claimants have agreed to stipulate that they will not
seek
damages
against
ACBL
in
excess
of
the
limitation
fund.
Brothers is therefore not entitled to proceed with the state court
action,
and this
court will
remain the sole
forum unless KMMS
agrees to sign a stipulat.ion satisfying the requirements set out by
the
Fifth
Circuit
or
this
court
entitled to limit its liability.
determines
that
ACBL
is
not
Claimant's Motion and Amended
Motion to Dissolve Limitation Injunction (Docket Entry Nos. 22 and
34) and Claimant's Motion to Bifurcate (Docket Entry No. 23) are
therefore DENIED.
SIGNED at Houston, Texas, on this the 14th day of March, 2019.
LAKE
UNITED STATES DISTRICT JUDGE
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