Opinion
Civil Action No. 03-1428, Section: "J"(1).
June 18, 2004
HEARING ON MOTION
APPEARANCES: Submitted on briefs.
MOTION: CONSTANTINE'S MOTION TO COMPEL INSPECTION (Rec. doc. 82)
GRANTED
On May 20, 2003, Broussard Brothers, Inc. ("Broussard Brothers") filed a complaint in limitation, Rec. doc. 1, and Kevin Constantine ("Constantine") asserted a claim. Rec. doc. 7. He alleges that on November 21, 2002, he sustained severe injuries while employed by Broussard as a Jones Act seaman on one of its vessels and while working on a Chevron USA, Inc. platform.Id. There was a preliminary conference on January 15, 2004, at which the pretrial conference was set for October 14, 2004 and trial was set for November 8, 2004. Rec. doc. 59. Constantine amended his claim on several occasions. On March 30, 2004, he filed his sixth supplemental and amending claim in which he asserted, as his eight defense, the following:
The limitation fund is inadequate and the complaint should be dismissed because several vessels and similar contrivances were used in conjunction with the job being performed at the time of the accident, thereby constituting a "flotilla", and, as such, petitioner has failed to deposit adequate security for the entire "flotilla" in accordance with U.S.C. § 181 et seq.
Rec. doc. 77. Pursuant to 46 U.S.C. § 183(a), the liability of an owner of any vessel for any loss, damage or injury by any act without the privity or knowledge of the owner shall not exceed the value of the interest of the owner in the vessel and her freight. Id. In Brown Root Marine Operators, Inc. v. Zapata Off-Shore Company, 377 F.2d 724 (5th Cir. 1967), the Fifth Circuit affirmed a district court's finding that three vessels constituted "a vessel" within the meaning of the limitation statute because the vessels were a flotilla. The three vessels were owned by one party; they were contractually engaged in a common enterprise; and they were under a single command Id. at 726-27. See also In re Tom-Mac, Inc., 76 F.3d 678, 684 (5th Cir. 1996); Cenac Towing Co., Inc. v. Terra Resources, Inc., 734 F.2d 251, 254 (5th Cir. 1984); and Wirth Limited v. S/S Acadia Forest, 537 F.2d 1272, 1283, (5th Cir. 1976).
On April 30, 2004, Constantine served Broussard Brothers with a request for inspection of vessels and equipment which he contends are part of the flotilla and should be considered in determining the limitation fund. Broussard Brothers objected to the request. Constantine filed a motion to compel the inspection of the vessels and their appurtenances. Broussard offered to produce four vessels for a limited inspection. It objects to producing additional vessels.
Broussard contends that the inspections sought by Constantine are not relevant in that the additional vessels sought to be inspected by Constantine are not part of the flotilla and should not be included in the limitation fund. A party may inspect: "any tangible things which constitute or contain matters within the scope of Rule 26(b). . . ." Fed.R.Civ.P. 34(a). "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed.R.Civ.P. 26(b)(1). Broussard improperly phrased the issue. It is not whether the inspections are relevant to discoverable evidence, but whether the inspections are relevant to the claim or defense of any party. In the absence of action by the District Court striking Constantine's eighth defense or otherwise ruling that the contested vessels are not part of the flotilla, Constantine's discovery is relevant to his claim that several vessels were used in conjunction with the job being performed at the time of the accident and thereby constitute a flotilla. Rec. doc. 77. It is not necessary nor appropriate for this court to resolve the issues of what vessels are part of the flotilla. Based on his claim, he is entitled to inspect all of the vessels identified in the motion to compel.
The remaining issue is the scope of each individual vessel inspection. Broussard contends that in order to comply with Constantine's request, it is necessary for it to pull each vessel out of operation for a day while the inspection is made and assign a Broussard employee to be on the vessel during the inspection. It also urges that an inventory of any equipment on the vessel at the time of the inspection is unreliable, because it may not reflect the equipment on the vessel at the time of the accident. It argues that Constantine should be required to obtain through interrogatory answers an inventory of what equipment was on board each vessel at the time of the accident. It also urges that a limited inspection be permitted to determine the fair market value of each vessel. Constantine responds that Broussard has only stipulated as to the value of the BB-10 and its freight. He contends that the amount of the limitation can only be determined by his inspection of all of the vessels in the flotilla and their freight.
In its present posture there is no basis for denying Constantine the ability to inspect each vessel that he contends forms the flotilla. This must, however, be done with a minimum of disruption to Broussard's operations. It would be unreasonable to require Broussard to lay-up all of the vessels at one time while Constantine inspects them. To the extent possible, Constantine must conduct the inspections when the vessels are normally tied up. This does not give Broussard license to unreasonably delay the inspection of the vessels. The inspections must be carried out expeditiously in order to resolve any issues concerning the limitation fund. The parties are in the best position to accomplish these inspections within the time constraints of this litigation and with a minimum of disruption to Broussard's operations. If either party contends the other party is not acting reasonably, the undersigned shall be contacted to conduct a telephone conference.
IT IS ORDERED that Constantine's motion to compel inspection (Rec. doc. 82) is GRANTED.