Bellaire Harbor Service, LLC

Filing 23

MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE CLAIMANTS MOTIONTO STAY THIS ACTION AND LIFT INJUNCTION AGAINST PROSECUTION OF HIS STATE COURT SUIT re 11 Motions to stay and to lift injunction against prosecution of his state court suit are DENIED WITH PREJUDICE pending any refiling of amended stipulations drafted in accordance with this memorandum opinion and order. Should the claimant choose to file such amended stipulations, the same must be filed on or before 4/12/13. Signed by Senior Judge Frederick P. Stamp, Jr on 3/27/13. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
COMPLAINT OF:
BELLAIRE HARBOR SERVICE, LLC,
as owner of the M/V WHITE HOUSE

Civil Action No. 5:12CV47
(STAMP)

For Exoneration or Limitation
of Liability
MEMORANDUM OPINION AND ORDER
DENYING WITHOUT PREJUDICE CLAIMANT’S MOTION
TO STAY THIS ACTION AND LIFT INJUNCTION
AGAINST PROSECUTION OF HIS STATE COURT SUIT
I.

Background

The plaintiff filed this civil action in this Court seeking
exoneration of liability pursuant to the Vessel Owners’ Limitation
of Liability Act, 46 U.S.C. § 30501, et seq. (“VOLLA”), and Rule F
of the Supplemental Rules for Certain Admiralty and Maritime Claims
of

the

Federal

Rules

of

Civil

Procedure

(“Rule

F”).

The

plaintiff’s complaint arises from a civil action filed in the
Circuit Court of Marshall County, West Virginia by claimant William
E. Wheat (“claimant” or “Wheat”), wherein the claimant asserts
liability on the part of the plaintiff for personal injuries the
claimant allegedly suffered onboard Motor Vessel White House (“M/V
White House”) on October 10, 2010.

According to the claimant’s

Marshall County complaint, the claimant was a deckhand employed by
the plaintiff aboard M/V White House when he allegedly hooked a
wire on a barge loaded with coal and began to place the wire around
the timberhead on the barge going into the fleet in order to secure

the barge.

At that time, the claimant alleges that he injured his

lower back while attempting to take the slack out of the wire.
The plaintiff claims that it is entitled to a finding of
exoneration, or alternatively, the benefit of the limitation of
liability provisions contained at 46 U.S.C. § 30501, et seq., and
in particular, § 30505, due to its ownership interest, as that term
is defined by 46 U.S.C. § 30501, of M/V White House on October 10,
2010.

The plaintiff requests that its liability, if any, be

limited to the value of the M/V White House and its tow and freight
pending immediately after the incident claimed in Wheat’s Marshall
County

civil

action.

The

plaintiff

offered

an

Ad

Interim

Stipulation for Value in the amount of $600,000.00, plus interest
at the rate of 6% per annum, representing the plaintiff’s claimed
aggregate interest in the M/V White House and its freight pending
immediately after the accident, and a Letter of Undertaking.
Following this Court’s approval of the Ad Interim Stipulation
and Letter of Undertaking, this Court ordered that Notice issue
pursuant to Rules F(4) and F(5) of the Supplemental Rules of
Admiralty or Maritime Claims and Asset Forfeiture Actions of the
Federal Rules of Civil Procedure, to all persons, companies, and
other

entities

asserting

claims

with

respect

to

which

the

plaintiff’s complaint seeks exoneration from or limitation of
liability. That Notice directed any claimants to file their claims
in writing with this Court and to serve the copies on counsel for

2

the plaintiff. In response to the Notice, claimant Wheat filed his
claim in this Court. The plaintiff then filed an amended complaint
with consent of the claimant,1 which clarified the circumstances of
the plaintiff’s ownership of M/V White House.
Currently pending before this Court is the claimant’s motion
to

stay

this

civil

action

and

lift

the

presently

existing

injunction against prosecution of his state court action.

The

claimant’s motion includes written stipulations in support of this
motion. The plaintiff has opposed this motion and the stipulations
filed in support thereof, on the basis of its assertion that the
stipulations fail to adequately protect the plaintiff’s rights to
assert limitation of liability in this Court pursuant to the VOLLA
and Rule F.
The claimant’s stipulations in support of his motion to stay
this action and lift the injunction against prosecutions of his
state court suit are as follows:
1.
Wheat stipulates and agrees that Bellaire is
entitled to litigate all issues relating to limitation of
liability pursuant to the provisions of 46 U.S.C.
§ 30501, et seq. in this Court, save and except for all
issues concerning Wheat’s claim against Bellaire for
maintenance and cure2 (and attorney’s fees and punitive

1

The claimant’s consent did not waive his right to contest the
plaintiff’s standing to bring this action in future proceedings.
2

A “maintenance and cure” claim arises out of a vessel owner’s
quasi-contractual duty “to provide maintenance and cure for seamen
injured or falling ill while in service[.]” Calmer S.S. Corp. v.
Taylor, 303 U.S. 525, 527-28 (1938). This duty creates a cause of
action for seamen so injured or falling ill to recover the costs
3

damages for Bellaire’s willful failure to promptly pay
Wheat all the maintenance and cure to which he is
entitled), because Bellaire’s maintenance and cure
obligation to Wheat is a “personal contract” of which it
is deemed to have privity and knowledge and thus this
contract and the claim which attends it are not subject
to the protections of the Act.
2.
Wheat waives any claim of res judicata relevant to
the issue of limitation of liability pursuant to the
provisions of 46 U.S.C. § 30501, et seq. based on any
jury or non-jury trial decision or judgment they may
obtain in state court, except for any such claim based on
Wheat’s above-described maintenance and cure claim
against Bellaire.
3.
To clarify the above two stipulations, should Wheat
obtain a judgment against Bellaire in state court in his
favor on his Jones Act3 negligence and/or general
maritime law unseaworthiness claims, Wheat stipulates and
agrees that this Court, after lifting its stay of this
federal action, shall then proceed to determine only (a)
whether Bellaire had “privity to or knowledge of” (as
these terms have been defined in applicable case law
construing [VOLLA], 46 U.S.C. § 30501, et seq.) the acts,
events, conditions, omissions, etc. upon which its
liability was based in the state court action and, if so,
(b) the value of Bellaire’s interest in the M/V WHITE
HOUSE, together with pending freight, as specified under
the Act.
In other words, nothing contained in these
stipulations should be read or construed as an agreement
or stipulation by Wheat to allow this federal court to
revisit the liability or damage findings made in the
state court action which are separate and apart from the
discrete findings (specified in (a) and (b), above) which
this Court must make as to limitation of liability under
the Act.
Accordingly, because he is not required to
under applicable law, Wheat does not stipulate or agree
to Bellaire’s alleged right (as pled in its Complaint) to
have this Court determine issues related to exoneration

incurred for seeking their own maintenance and cure.
3

Id.

Title 46, United States Code, Section 30104, The Jones Act,
provides that “a seaman injured in the course of employment or
. . . may elect to bring a civil action at law, with the right of
trial by jury, against the employer.” Id.
4

from liability, as such would amount to a disregarding of
the liability findings made in the state court action -something Wheat does not agree to.
4.
While not stipulating or agreeing that the value of
the limitation fund in this action is, as alleged by
Bellaire, not in excess of $600,000.00, and specifically
reserving his right to file at a later time a motion
under Rule F(7) of the Supplemental Rules for Admiralty
or Maritime Claims and Asset Forfeiture Actions seeking
an appraisement of the value of Bellaire’s interest, if
any, in the vessel and pending freight, Wheat stipulates
and agrees that in the event there is a judgment or
recovery on any jury or non-jury trial decision or
judgment in state court in excess of $600,000.00 against
Bellaire, and to the extent such state court decision or
judgment is not based on Wheat’s above-described
maintenance and cure claim, Wheat will not seek to
enforce such excess judgment or recovery to the extent
same may expose Bellaire to liability in excess of the
sum of $600,000.00 until adjudication of Plaintiffs’
Complaint for limitation of liability in this Court.
5.
Wheat stipulates and agrees that this Court has the
exclusive right under [VOLLA] to determine the proper
value of the limitation fund under the procedures
outlined in Rule F(7).
ECF No. 13 (emphasis in original).
Specifically, with regard to the above stipulations, the
plaintiff argues that its rights are insufficiently protected
because: (1) Wheat fails to stipulate to limit his recovery to the
value of the vessel and its attending freight; (2) Wheat carves out
impermissible exceptions to his stipulations that this Court will
have exclusive jurisdiction over all limitation of liability issues
and that Wheat will not use any state court judgment to attack the
limitation of liability claim; and (3) Wheat’s stipulations fail to
expressly assert that this Court would retain jurisdiction until

5

Wheat’s personal injury claim has been determined.

The claimant

filed a reply to these contentions which addresses each in turn.
For the reasons that follow, this Court denies without prejudice
Wheat’s motion to stay proceedings and lift the injunction against
the prosecution of his state court suit.
II.

Discussion

Under Article III, § 2 of the United States Constitution, the
federal courts are vested with jurisdiction over all admiralty and
maritime jurisdiction cases.

Lewis v. Lewis & Clark Marine, Inc.,

531 U.S. 438, 443 (2001).

This grant of jurisdiction is now

codified in 28 U.S.C. § 1331, with a limitation “so as to save
seamen their remedies.”
205, 208 (4th Cir. 2006).

Norfolk Dredging Co. v. Wiley, 439 F.3d
The statute specifically states:

The district courts shall have original jurisdiction,
exclusive of the courts of the States, of: (1) any 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 (emphasis added). This “saving to suitors” clause
“preserves remedies and the concurrent jurisdiction of state courts
over some admiralty and maritime claims.”

Lewis, 531 U.S. at 445.

The saving to suitors clause, however, as recognized by the
Supreme

Court,

may

sometimes

conflict

with

VOLLA,

which,

as

described above, “allows a vessel owner to limit liability for
damage

or

injury,

occasioned

without

the

owner’s

privity

or

knowledge, to the value of the vessel or the owner’s interest in

6

the vessel.”

Id. at 446; see 46 U.S.C. § 30505.

Rule F sets forth

the procedure for a limitation of liability action.

The Supreme

Court briefly explained the procedure as follows:
“The district court secures the value of the vessel or
owner’s interest, marshals claims, and enjoins the
prosecution of other actions with respect to the claims.
In these proceedings, the court, sitting without a jury,
adjudicates the claims. The court determines whether the
vessel owner is liable and whether the owner may limit
liability. The court then determines the validity of the
claims, and if liability is limited, distributes the
limited fund among the claimants.”
Id. at 448.
As such, it is clear that the potential conflict between the
saving to suitors clause and VOLLA stems from the fact that “[o]ne
statute gives suitors the right to a choice of remedies, and the
other statute gives the owners the right to seek limitation of
liability in federal court.” Id. The Supreme Court addressed this
issue of handling this conflict in Lewis.

In that case, the

claimant sued a vessel owner in state court for negligence under
the Jones Act, unseaworthiness of the ship in question, and
maintenance and cure.

Id. at 440-41.

The vessel owner then filed

a complaint in federal court to limit the vessel owner’s liability.
Id.

After the claimant stipulated to facts that would limit the

liability of the vessel owner to the value of the vessel, the
district court dissolved the injunction placed on the claimant’s
state court action.

Id. at 440.

7

Regarding this action by the district court, the Supreme Court
stated that “case law makes clear that state courts, with all their
remedies, may adjudicate claims like petitioner’s against vessel
owners so long as the vessel owner’s right to seek limitation of
liability is protected.” Id. at 455 (emphasis added). The Supreme
Court found that, because the stipulations offered had adequately
protected the vessel owner’s limitation of liability rights, it was
“well within” its discretion to dissolve the injunction.4
454.

Id. at

This result allows for the fulfillment of the vessel owner’s

rights under VOLLA, and also provides the claimant with the right
to litigate his claim in state court which is provided for by the
saving to suitors clause.
The plaintiff claims, however, that the stipulations filed by
the claimant inadequately protect its right to seek limitation of
liability.

As outlined above, the plaintiff claims three general

failings of the claimant’s proposed stipulation.

This Court will

address each of these arguments in turn.

4

This Court recognizes the plaintiff’s argument regarding its
assertion that Wheat incorrectly states that dissolution of the
state court injunction is mandatory upon his submission of adequate
stipulations. However, as this argument by the plaintiff appears
to simply seek to make this distinction for the Court, the same
will not be addressed outside of a recognition that any decision to
dissolve the state court injunction is, in fact, discretionary on
the part of this Court. See Lewis, 531 U.S. at 449.
8

A.

Whether the claimant must agree to limit his recovery to the

value of the vessel and its attending freight
Wheat’s proposed stipulations set forth his agreement that,
should the state court proceedings result in a judgment in excess
of the plaintiff’s interest in M/V White House, Wheat “will not
seek to enforce such excess judgment or recovery to the extent the
same may expose Bellaire to liability in excess of the sum of
$600,000.00 until adjudication of the Complaint for limitation of
liability in this Court.”

ECF No. 13 *3.

The plaintiff argues

that this Court cannot permit the claimant to proceed in state
court based upon this stipulation because Wheat fails to agree that
he will limit his recovery to the value of the vessel and its
attending freight.
In support of this argument, the plaintiff states that Supreme
Court precedent only permits the claimant to litigate his claims in
state court if the claimant stipulates that he will not contest the
right to limitation.

ECF No. 21 *4 (citing 3-II Benedict on

Admiralty § 14). The plaintiff offers a number of cases in support
of this contention, and asserts that Wheat’s stipulation diverges
on this issue from the stipulations which resulted in approval of
termination of the state court injunction in Lewis, 531 U.S. at
454; Ex parte Green, 286 U.S. 437 (1932); and Lake Tankers Corp. v.
Henn, 354 U.S. 147 (1957).

Therefore, the plaintiff claims that

9

the claimant should not be permitted to pursue his claims in state
court.
The plaintiff recognizes that the United States Court of
Appeals

for

the

Fourth

Circuit

and

other

lower

courts

have

permitted claimants to pursue their claims in state court upon
stipulating

that

the

district

court

will

have

exclusive

jurisdiction to determine all issues relating to the vessel owner’s
right to limitation of liability.
F.3d 205.

See Norfolk Dredging Co., 439

However, the plaintiff argues that, because the Supreme

Court has not approved this procedure, and because it differs from
the procedure outlined in Ex parte Green, it is invalid.
The claimant responds by arguing that he is not required to
stipulate now to limit his recovery to the value of the plaintiff’s
vessel and pending freight before he may continue his state court
action.

Wheat argues that the plaintiff misinterprets Ex parte

Green and the other cited Supreme Court precedent.

Wheat also

argues that the plaintiff’s interpretation of this precedent does
not make sense, because such a required stipulation would leave
only the value of the vessel and freight to be adjudicated in the
limitation proceeding. This Court agrees with the claimant in this
regard.
In Ex parte Green, the Supreme Court held that state courts
have no jurisdiction to determine the issue of limitation of the
vessel owner’s liability under VOLLA.

10

286 U.S. at 439-40.

The

Court indicated that, if the issue of limitation of liability was
brought before the state court by the claimant, “the federal court
is authorized to resume jurisdiction and dispose of the whole
case.”

Id. at 440.

However, the Court did not find in that case,

or any other upon which the plaintiff relies to this point, that a
stipulation must be entered in the district court wherein the
claimant agrees to limit his claim to the value of the vessel and
its attending freight in order to litigate his claim in state
court.

Rather, the Court simply stated, in confirmation of its

prior holding in Langnes v. Green, 282 U.S. 531 (1931), that the
issue of limitation of liability was one solely reserved for
determination by the district court, and that issue could not be
raised by the claimant in state court.

Ex parte Green, 286 U.S. at

440.
The plaintiff also relies upon Lake Tankers Corp. and Lewis in
support of its claim that the claimant must stipulate to limit his
claim to the value of the plaintiff’s interest in M/V White House.
In each of these opinions, the Court does note that the claimants
stipulated to limiting their damages claims to the value of the
vessel owner’s interest in the relevant vessels and their freight.
See Lake Tankers Corp., 354 U.S. at 149; and Lewis, 531 U.S. at
442.

However,

neither

of

the

opinions

state

that

such

a

stipulation was necessary to allow the claimants to litigate their
claims in state court. Simply because the claimants in those cases

11

voluntarily chose to so stipulate does not stand as support for a
finding that such a stipulation is mandatory.
Finally, this Court finds it necessary to discuss the Fourth
Circuit’s

opinion

in

Norfolk

Dredging

Co.,

which

is

binding

precedent upon this Court. 439 F.3d 205. As the plaintiff admits,
the

court

in

Norfolk

Dredging

Co.

found

that

a

claimant’s

stipulations, which simply agreed that “claimant will not seek to
enforce

any

judgment

received

from

a

jury

in

excess

of

the

Limitation Fund until the vessel owner’s right to limitation has
been determined in admiralty,” Norfolk Dredging Co. v. Wiley, 357
F. Supp. 2d 944, 950 (E. D. Va. 2005) (emphasis added), but which
did not agree to limit the claimant’s damages to the value of the
relevant vessel, were adequate to allow the claimant to return to
state court.

Norfolk Dredging Co., 439 F.3d at 207-11.

However, the plaintiff asserts that this procedure has not
been approved by the Supreme Court and that it differs from the
requirements stated in Ex parte Green.
disagrees with the plaintiff.

To this point, this Court

As explained above, this Court does

not read Ex parte Green to require a stipulation that the claimant
will limit its damages to the value of the vessel and its freight.
Further, the Fourth Circuit directly cites Ex parte Green in its
opinion, so this Court must assume that the court was aware of that
opinion and considered it, finding its decision in Norfolk Dredging
Co. to be in line with the Supreme Court’s in that case.

12

See 439

F.3d at 209. Finally, the Fourth Circuit heavily relied upon Lewis
in order to reach its determinations in Norfolk Dredging Co. and
rendered its opinion based upon its reading of that case.
generally id.

See

As such, this Court finds that Norfolk Dredging Co.

is binding upon this Court’s decision today, and is not invalid as
opposing the Supreme Court’s decision in Ex parte Green.

The

claimant is thus not required to agree to limit his damages to the
value of M/V White House and its attending freight.
B.

Whether

Wheat’s

stipulations

adequately

protect

the

plaintiff’s right to seek limitation of liability
The plaintiff next argues that the stipulations offered by the
claimant are inadequate in that they do not fully protect the
plaintiff’s right to seek limitation of liability in this Court
following any adjudication of the merits of the claimant’s claims
in state court.

In order to adequately protect a vessel owner’s

rights to seek limitation of liability, a claimant’s stipulations
must provide for the following: (1) that the district court shall
retain exclusive jurisdiction to decide all issues relating to
limitation of liability and (2) that the claimant will not use any
state court judgment obtained to attack the limitation of liability
claim, either through enforcement of the same, or through res
judicata principles.

Norfolk Dredging Co., 439 F.3d at 210-11.

The plaintiff claims that the claimant fails to adequately provide

13

the necessary protections of the plaintiff’s limitation rights in
two ways.
1.

Wheat’s “clarification” regarding this Court’s continuing

jurisdiction
The plaintiff initially admits that Wheat’s stipulations
contain all necessary language as required by Norfolk Dredging Co.,
and

described

above.

However,

the

plaintiff

asserts,

the

“clarification” offered in paragraph three of Wheat’s stipulations
impermissibly
limitation

limits

of

this

liability.

Court’s

jurisdiction

Specifically,

the

relating

to

“clarification”

stipulation limits this Court’s jurisdiction to the determination
of only “(a) whether Bellaire had privity to or knowledge of the
acts, events, or conditions upon which its liability was based in
the state court action and, if so, (b) the value of Bellaire’s
interest in the M/V WHITE HOUSE, together with pending freight.”
ECF No. 12 *5.
The

plaintiff

asserts

that

this

“clarification”

is

impermissible because Wheat is required to waive all claims of res
judicata relevant to the issue of limited liability, and by
limiting this waiver as the “clarification” does, Wheat is not
completely waiving these rights.

The plaintiff claims that this

“clarification” is not permitted by the Fourth Circuit, and that
Wheat cites no authority which supports his ability to include such
a clarification.

14

In response to the plaintiff’s arguments, Wheat maintains that
his “clarification” is not only permissible, but prudent, based
upon

the

series

of

events

which

occurred

in

Complaint

of

Consolidation Coal Co., 123 F.3d 126 (3d Cir. 1997), cert. denied,
523 U.S. 1054 (1998)).

In that case, per an order by the district

court, the claimant to waived his res judicata rights not only for
limitation of liability, but also for exoneration from liability
within his stipulations in the limitation action filed by the
vessel owner. Id. at 130. After the claimant’s case was litigated
on the merits in state court, and returned to the district court
for determinations regarding limitation of liability, the district
court allowed the vessel owner to again argue exoneration on the
merits of the claimant’s case, citing the claimant’s stipulation
that expressly provided the vessel owner with the right to litigate
issues relating to exoneration. Id. The district court eventually
exonerated the vessel owner of all liability, and the United States
Court of Appeals for the Third Circuit affirmed.

Id. at 133-34 &

135-37.
While this Court recognizes the claimant’s concerns and desire
to avoid the events which occurred in Complaint of Consolidation
Coal Co., this Court finds that his concerns are unfounded based
upon the inapposite procedural background of that case from Wheat’s
stipulations here.

As explained above, and as Wheat recognizes,

the district court in Complaint of Consolidated Coal Co. required

15

the claimant to specifically stipulate that he waived all res
judicata rights and that the vessel owner explicitly retained its
right to litigate all issues relating to exoneration of liability
in the limitation proceeding.

Id. at 130.

In this case, however,

this Court is requiring no such stipulations.
In fact, in paragraphs 1 and 2 of Wheat’s stipulations, Wheat
explicitly stipulates that Bellaire “is entitled to litigate all
issues

relating

to

limitation

of

liability

pursuant

to

the

provisions of 46 U.S.C. § 30501 et seq.”, ECF No. 13 *1 (emphasis
added), and waives only his res judicata rights “relevant to the
issue of limitation of liability pursuant to the provisions of 46
U.S.C. § 30501 et seq.”, ECF No. 13 *2 (emphasis added).

The

plaintiff has not objected to these passages, and this Court finds
no error in including them. Accordingly, this Court finds that the
claimant has adequately specified that only issues relating to
limitation of liability are retained for this Court.

Thus, his

reliance upon Complaint of Consolidated Coal Co., a factually
inapposite case, to support his inclusion of the “clarification” in
paragraph 3 of the stipulations is without merit.
Further, this Court finds that the inclusion of paragraph 3 of
the stipulations inappropriately limits this Court’s jurisdiction
over all issues relating to limitation of liability.

Paragraph 3

limits this Court’s jurisdiction to two specifically delineated
issues, as articulated above.

The claimant has not provided, and

16

this Court has been unable to find, any case law, binding on this
Court

or

otherwise,

specifically

limit

which

the

supports

jurisdiction

Wheat’s
of

this

ability
Court.

to
As

so
the

plaintiff notes, the district court in Norfolk Dredging Co. found
this lack of supporting case law to be fatal to such limiting
stipulations.

In re Norfolk Dredging Co., No. 7:02CV110-F1, 2003

U.S. Dist. LEXIS 24889 (E.D.N.C. Dec. 17, 2003). That Court stated
that “[a]bsent some citation to apposite, controlling authority,
the court will not accept a stipulation that purports to withhold
from

the

district

court’s

determination

any

issue

Norfolk’s claim for limitation of liability.”

concerning

In re Norfolk

Dredging Co., 2003 U.S. Dist. LEXIS 24889, at *14.
So too, this Court finds that, without precedent suggesting
that the claimant’s “clarification” does not improperly limit this
Court’s jurisdiction over all issues relating to limitation of
liability, this Court cannot be sure that this specific limitation
will not so limit.

This Court believes that the “clarification”

may limit its ability to exercise the proper jurisdiction, and
could possibly prevent this Court from addressing certain issues
which may arise which do relate to limitation, but which are not
specifically delineated in paragraph 3. Accordingly, the inclusion
of paragraph 3 of the current stipulation results in an inadequate
protection

of

the

plaintiff’s

rights

liability.

The claimant’s motion to stay this action and lift the

17

to

seek

limitation

of

injunction against prosecution of his state court claim must thus
be denied on this basis.
2.

Wheat’s maintenance and cure claim

The plaintiff also takes issue with Wheat’s specific exclusion
from any future limitation proceedings any judgment resulting from
his maintenance and cure claim.

While the plaintiff specifically

points to Wheat’s position on this issue being included in his
proposed order, this Court notes that it is also included multiple
times in the stipulations,5 and because this Court is not adopting
the claimant’s proposed order, will address only its inclusion in
the stipulations.

As to this issue, the claimant specifically

excepts from this Court’s jurisdiction regarding limitation, any
claim

regarding

a

judgment

which

may

result

exclusion,

the

from

claimant

Wheat’s

maintenance and cure claim.
In

support

of

his

argues

that

maintenance and cure is a cause of action which derives from
contract, and is not predicated upon fault or negligence on the
part of the vessel owner.
maintenance

and

cure

Accordingly, the claimant asserts,

claims

do

not

fall

under

VOLLA,

the

protections of which are predicated on the fault of the vessel
owner.

The claimant relies mainly upon a United States Court of

5

This exception is included in paragraphs 1, 2, 3, and 4 of
the stipulations.
18

Appeals for the Fifth Circuit case entitled Brister v. A.W.I.,
Inc., 946 F.2d 350 (5th Cir. 1991), to support this argument.
The plaintiff argues that the complete exclusion of any
judgment resulting from Wheat’s maintenance and cure claim is
overbroad

and

premature

at

this

stage.

In

support

of

this

assertion, the plaintiff notes that neither the United States
Supreme Court nor the Fourth Circuit have spoken on this issue,
thus making it an arguable issue which should be handled at the
limitation stage of this case.

The plaintiff also claims that

entirely excluding any damages resulting from the maintenance and
cure claim impermissible prohibits this Court from determining
which portion, if any, of any potential jury award equates to an
award for maintenance and cure.
At this point in the litigation, this Court believes that it
is

unnecessary

limitation

of

to

make

a

liability

maintenance and cure claim.

final
under

determination
VOLLA

may

as

apply

to

whether

to

Wheat’s

This Court agrees with the plaintiff

that, without any binding precedent and with a relatively small
number of applicable non-binding cases, the issue may be arguable.
Accordingly, because the litigation of the merits of Wheat’s claims
in state court may result in this issue being moot, this Court
declines to engage in any inquiry in this regard until it is
necessary to do so.

Further, this Court does not believe that the

claimant is unduly prejudiced by this Court’s decision to defer

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consideration of his argument regarding maintenance and cure,
because he is able to raise the issue again if a limitation
proceeding becomes necessary.6

Therefore, this Court declines to

make a determination on this issue at this point, and thus must
also deny the claimant’s motion to stay this action and lift the
injunction against prosecution of his state court action on the
basis that the stipulation affirmatively excludes from this Court’s
jurisdiction regarding limitation of liability any state court
judgment stemming from the claimant’s maintenance and cure claim.
3.

Stipulation of continuing jurisdiction

The

plaintiff

finally

argues

that

the

stipulation

is

insufficient because it does not explicitly state that this Court
will retain jurisdiction until the claimant’s personal injury claim
has been determined, as is appropriate under Lewis and Norfolk
Dredging Co., 531 U.S. at 453-54; 439 F.3d at 211.

The claimant

does not oppose this argument by the plaintiff, but rather asserts
that such continuing jurisdiction was assumed.
In Norfolk Dredging Co., the claimant agreed that the district
court would retain jurisdiction until the claimant’s state court
claims were determined. 439 F.3d at 211. The Fourth Circuit found

6

This Court notes that the district court in Norfolk Dredging
Co. similarly deferred rendering a decision regarding an arguable
issue relating to limitation of liability until it became necessary
to rule on the issue at limitation proceedings. 439 F.3d at 210.
The Fourth Circuit approved this action by the district court and
found that this action did not prejudice plaintiff’s limitation
rights. Id.
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that, based on this stipulation, if the claimant’s “stipulations
provide inadequate protection in some unforeseen way, the district
court has continuing jurisdiction to correct any deficiencies.”
Id. (citing Lewis, 531 U.S. at 453-54).

This Court agrees that

such a stipulation would assist in ensuring that the plaintiff’s
limitation rights are adequately protected.

Further, the claimant

does not object to including such a stipulation in possible future
amended stipulations.
file

amended

Therefore, should the claimant choose to

stipulations

in

accordance

with

this

memorandum

opinion and order, this Court directs the claimant to include such
a stipulation indicating his agreement with this Court’s retention
of jurisdiction until his personal injury claim is determined.
III.

Conclusion

For the above stated reasons, the claimant’s motion to stay
this action and lift the injunction against prosecution of his
state court suit is DENIED WITHOUT PREJUDICE pending any refiling
of amended stipulations drafted in accordance with this memorandum
opinion and order. Should the claimant choose to file such amended
stipulations, the same must be filed on or before April 12, 2013.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.

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DATED:

March 27, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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