Opinion
Civ. No. 99-951; c/w 99-984 1346, SECTION "A" (3).
March 23, 2000.
Before the Court are:
(1) The Bennetts' Motions for Temporary and Limited Lift of Default, for Temporary and Limited Lift of Stay Order to file protective suit and for Leave to File Claim and Answer in these consolidated limitation proceedings; and
The Bennetts' motions were opposed by all petitioner's in limitation, as well as the claimants in limitation, Fontenot, Thibodaux and LeBlanc.
(2) The Claimants, Fontenot, Thibodaux, and LeBlanc's Motion for Temporary and Limited Lift of Stay to permit them to file protective suits in state court.
All petitioners in limitation opposed claimants' motion for temporary and limited lift of stay.
The foregoing matters are deemed submitted on the briefs as of this date. For the reasons set forth below the Bennetts' Motion for Temporary and Limited Lift of Default and for leave to file Claim and Answer in these consolidated limitation proceedings is GRANTED. As to the Bennetts' and other Claimants' Motions to Temporarily Lift Stay to allow the Filing Protective Suits in State Court, such motions are DENIED.
I. Background .
These consolidated cases arise from the March 25, 1999 collision of Trico Marine's downbound vessel, the OSV CANE RIVER, and Diamond B Marine's upbound vessel, C/B MISS BERNICE, while operating in the fog on the Mississippi River below Venice, Louisiana. The cases which comprise these consolidated proceedings include: Trico Marine's complaint against Diamond B Marine for damages in admiralty, as well as Trico Marine's and Diamond B Marine's respective petitions for exoneration and/or limitation in liability.
Diamond B's crewboat, MISS BERNICE, was at all pertinent times under the command of Captain James Bennett, enroute from Garden Island Bay to Venice. Captain Bennett was operating the MISS BERNICE at full speed. The collision occurred at about 8:45 A.M. when the MISS BERNICE ran directly into the bow of Trico Marine's CANE RIVER. After striking the CANE RIVER two more times, one of the passengers aboard the MISS BERNICE disengaged her engines.
On the afternoon of the collision, Trico Marine filed suit against Diamond B and the MISS BERNICE to recover money damages for the physical damage to its vessel CANE RIVER, including loss of use, survey fees, miscellaneous expenses, legal interest and costs, and claiming full indemnity and/or contribution for any claims asserted thereafter against Trico Marine.
"Trico Marine Assets, et al v. Diamond B Marine Services, Inc., et al, Civil Action No. 99-0951 on the docket of this Court.
Trico Marine then filed a Limitation Proceeding, numbered Civil Action 99-084, which was consolidated with its damage suit. On April 14, 1999, this Court entered an order directing all persons, firms or corporations claiming any loss, damage or injury as a result of the aforesaid collision to file their claims no later than June 4, 1999. Per Rule F(4) of the Supplemental Rules of Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure, notice was published in the Times Picayune, once a week, for four successive weeks. Also a copy of the notice was mailed to Diamond B — the only claimant known at the time to have made a claim against Trico Marine in connection with the March 1999 collision.
Captain Bennett's passengers aboard the crewboat MISS BERNICE, Lonnie Fontenot, Allan LeBlanc and Wayne Thibodaux, also timely filed claims against Trico Marine in the limitation proceeding [i.e., CA 99-0984], seeking damages for personal injuries they allegedly sustained in the collision. Diamond B also timely filed its claim in Trico Marine's Limitation Proceeding seeking indemnity and/or contribution for amounts it may be held liable to pay on account of the subject collision.
Pursuant to Trico Marine's June 7, 1999 request for entry of default, the Clerk of Court entered default against the universe of potential claimants on June 10, 1999. [Rec.Doc. No. 18].
On April 30, 1999, Diamond B's petition in limitation was filed with the Court and assigned docket number Civil Action 99-1346. Thereafter, it was transferred to this section of court and consolidated with Civil Action Nos. 99-0951 and 99-0984 for all further proceedings. After the requisite four weeks of publication pursuant to the Federal Rules and this Court's order, claimants, Fontenot, LeBlanc and Thibodaux, timely filed their claims in Diamond B's Limitation Action. Trico Marine also timely filed its claim in that action seeking recovery for property damage to the CANE RIVER, inter alia.
Although at least as early as November of 1999 Captain Bennett was aware of the litigation, he was unaware of the monition period ordered by the Court. Captain Bennett was not apprised by counsel until December 1999, that his failure to hire an attorney and make a claim in these limitation proceedings could precipitate the loss of any right he had to make a claim forever. Bennett's counsel notes that Bennett's lack of formal education in combination with the fact that Times-Picayune is not circulated in the rustic rural community of Bernice, Louisiana, accounts for the fact that he had no actual notice of the monition period.
See, Wesley J. Gralapp, Esq.'s Certified Letter dated December 15, 1999 appended to Captain Bennett's Supplemental Memorandum [Rec.Doc. No. 68].
Counsel for Captain Bennett notes that Bernice, Louisiana is approximately 30 or 40 miles from the northern border of the State of Louisiana in Union Parish, Louisiana.
The Bennetts' counsel describes the unfairness which pervades opposing counsel argument against the requested limited lift of default, as follows:
James was on record with Diamond "B" as being injured, disabled and being paid maintenance. James was removed from the vessel on the day of the collision and taken to the hospital. James was unconscious when he was found. In this case, TRICO [and Diamond B] had actual knowledge of James injuries and should have, by equity made a greater effort to notify James of his need to file a claim or forever loose this right than by simply running an add among the voluminous classified adds of the Picayune. See, Bennett's Supplemental Brief.
The Bennetts' counsel further apprises the Court that at Captain Bennett's deposition, petitioners' counsel advised that Texaco would be intervening and that the May 1st, 2000 trial date would probably be continued.
Claimant passengers aboard Diamond B's crewboat, MISS BERNICE, were Texaco employees.
The Court here notes that the trial of the consolidated limitation proceedings has in fact been continued. [Rec.Doc. No. 63]. Also, the Court has further been apprised by its deputy clerk that counsel are seeking a trial setting in the distant future [i.e., December of 2000 or January of 2001]. Counsel for Captain Bennett stipulates that if leave is granted to file the Bennetts' claims no additional depositions would be necessary and that they would rely on those already taken. In this vein, counsel explains that as to the liability issues, the Bennetts' interests are substantially aligned with Diamond B. Marine.
The Court notes that a review of Bennett's deposition of December of 1999, shows that he was questioned extensively on his injuries and his treating physicians. There is little doubt that the other claimants, who may still require surgery and further treatment, may need to have their depositions updated just prior to trial.
II. Analysis . A. THE BENNETTS' MOTION FOR TEMPORARY AND LIMITED LIFT OF DEFAULT.
It is not controverted in this case that petitioners in limitation satisfied the letter of notice requirements. Three passengers aboard the MISS BERNICE, piloted by Captain Bennett, did in fact timely file claims in the captioned limitation proceedings. Compliance with Supplemental Rule F(4) constitutes constructive notice. Petitioners' strict compliance with that Rule and the orders of this Court constitutes constructive notice to the world.
While this Court may, upon consideration of particular circumstances and in light of equitable considerations, consider lack of actual notice a sufficient cause to permit late filing, it is by no means bound to do so. Review of a district court's decision is limited to whether it abused its discretion in denying late claims. Texas Gulf Suphur Co. v. Blue Stack Towing Co., 313 F.2d 359, 363 (5th Cir. 1963) Relief from a claims deadline is not a matter of right, but rather depends on an equitable showing. Id., at 362.
In Texas Gulf Sulphur, supra, Judge Brown established the framework for the Fifth Circuit to guide district courts in exercising their discretion to allow or refuse to allow the filing of late claims nunc pro tunc. The parameters set were that: "so long as the limitation proceeding is pending and undetermined, and the rights of the parties are not adversely affected, the court will freely grant permission to file late claims . . .' upon a showing of reasons therefor." Id. at 362.
The triad of consideration in this particular case militate in favor of granting the Bennett's leave to file late claims. The limitation proceedings are undetermined and pending. In fact, the trial has been continued and petitioners currently seek a trial setting well-over six months away in January of 2001.
Although discovery is relatively complete, the trial of these consolidated proceedings was most recently continued pursuant to joint motion of the parties. [Rec.Doc. No. 63].
Review of a district court's decision is limited to whether it abused its discretion in denying late claims. Relief from a claims deadline depends upon an equitable showing and is not a matter of right.
See Texas Gulf Sulphur Co. v. Blue Stack Towing Co., 313 F.2d 359, 363 (5th Cir. 1963) (affirming the district court's denial of a request for permission to file a late claim, noting the wide discretion of the trial court).
Id., at 362.
As previously stated, the framework which guides this Court's analysis is set forth the Fifth Circuit's decision in Texas Gulf Sulphur v. Blue Stack Towing Co., 313 F.2d at 363. "`[S]o long as the limitation proceeding is pending and undetermined, and the rights of the parties are not adversely affected, the court will freely grant permission to file late claims . . .' upon a showing of the reasons therefor." Id. at 362.
Having previously determined that the instant consolidated limitation proceedings are pending and undetermined, the Court's analysis focusses on the remaining two factors: (1) whether the granting of the motion will adversely affect the rights of the parties; and (2) the Bennetts' reason for filing their claims late.
The Court finds that the equities favor the Bennetts' position. These are multiple claim, inadequate fund limitation proceedings, and it remains to be seen if any of the Bennetts' claims, which may survive either a motion to dismiss or for summary judgment, will diminish any of the other claimant's recoveries. It would be improper at this juncture to either discuss or entertain discussion of the merits of the Bennetts' claims or prejudge the case. The Court here reminds counsel for the other claimants and Trico Marine that as to liability, the Bennetts' position substantially parallels that of Diamond B. Marine. Whether or not the Bennetts' claims have any merit will undoubtedly be the subject of either motion practice or proceedings on the merits. The Court will refrain from any discussion of the merits or the alleged failure to state a claim until the appropriate motions are filed and the matters are deemed submitted on the briefs.
Also, considering the stipulation of the Bennetts' counsel, there will be relatively little, if any, duplication or multiplication of discovery. Counsel for the Bennetts has assured the Court that there will be no duplication of discovery accomplished to date by the present parties to these consolidated limitation proceedings. The Court here notes that the record reveals that some discovery remains to be accomplished in the coming months. That was the thrust of the Joint Motion to Continue the trial date which this Court granted. As a matter of course when the Court continues a trial on the joint motion of the parties and the trial date is reset six or more months out, discovery is reopened and new deadlines are set.
That one or more of the Bennetts' claims may be without merit is not properly before the Court at this time. The issue of any fault on the part of Captain Bennett in precipitating the subject collision, is similarly grist for the merits. Whether or not there is any recovery on the part of the Bennetts and concomitantly, whether such would diminish any recovery awarded in the cases of the other claimants in these proceedings, also goes to the merits.
The Court is of the opinion that Captain Bennett has adequately explained his failure to comply with the monitions periods, of which he had only "constructive notice" within the meaning of the law. The Court is inclined to believe that an issue of the Times Picayune is rarely, if ever, circulated in the community of the rural town Bernice in Union Parish, on the Louisiana-Arkansas border.
The Court finds it difficult to understand why petitioners made no effort to actually notify the potential claimant Captain Bennett of the potential loss of any right he had to make a claim, short of timely filing a claim in the instant proceedings, other than by its publication notice in the Picayune. Apparently, petitioner's had little difficulty notifying Bennett of his deposition. The Court is not persuaded by petitioners' and other claimants' arguments to the effect that their rights will be adversely affected. There will be no duplication of discovery. As to the motion practice in the Eastern District of Louisiana, oral hearing is the exception to the rule. Certainly, the law of the case will remain unchanged. Any issues previously decided by this Court with respect to other claimants who are similarly situated need not be completely rebriefed. Indeed, the parties may adopt their previous arguments made in written motions and memorandum by reference.
In summary, the equities weigh in favor of granting the Bennetts' motion for late filing.
B. The Bennetts' and Other Claimants' Motions To Temporarily Lift the Stay for the Purpose of Filing Protective Suits in State Court.
Claimants have already filed their claims and answers in the captioned proceedings and yet argue that protective suits are necessary to avoid potential prescription problems. They further suggest that somehow duplicating filing by instituting state court litigation will somehow streamline the progress of matters before this Court. Inasmuch as all aspects of claimants' claims are pending before this Court there appears to be no good reason to lift the stay.
As to any perceived prescription problem, the claims filed in the limitation by personal injury claimant's in admiralty, have in fact interrupted prescription. In any event and as petitioners' aptly point out, claimants have three years until March 25, 2002 to bring their claims arising out this vessel collision on navigable water. There is hardly a chance in these overlapping multiple claimant-limited fund limitation cases, that the stay would be lifted for the purpose of allowing the claimants' to pursue their claims in state court. Thus, there appears no good reason for this costly exercise.
The Court is persuaded by petitioners' argument to the effect that the proposed filings in state court will only unnecessarily increase the costs of litigation without providing any real benefit to any of the parties in this proceeding. The Court discerns no difficulty in having all of the issues tried in the context of these consolidated proceedings. In fact, it makes sense to do so and tends to the avoid the eventuality of inconsistent judgments.
Accordingly, and for all of the above and foregoing reasons,
IT IS ORDERED that the Bennetts' Motion for a Temporary and Limited Lift of the Default and for Leave to File their Claim and Answer in these consolidated proceedings is hereby GRANTED.
IT IS FURTHER ORDERED that the Bennetts' and the other Claimants' Motions for a Temporary and Limited Lift of the Stay Order to File Protective Suits in State Court is hereby DENIED.