Opinion
No. 01-3510 c/w 01-3529 SECTION: "I"
September 27, 2002
ORDER AND REASONS
Claimant, Tuc Van Vo ("Vo"), has filed a motion to lift the restraining order issued in these consolidated limitation actions staying the lawsuit he filed in state court. Complainant, Ben v. Le d/b/a MISS THOM, INC., as owner of the F/V MISS THOM, the F/V MISS THOM ("Le"), claimant, AGF Marine Aviation Transport ("AGF"), and complainant, Lan Thi Nguyen, as owner and operator of the F/V PROWLER ("Nguyen"), oppose the motion.
Rec. Doc. No. 28. Vo supplemented his motion with exhibits (Rec. Doc. No. 30) and filed a supplemental memorandum in support of his motion to lift the restraining orders. Rec. Doc. No. 56.
Rec. Doc. No. 31. Le filed a supplemental memorandum in opposition to the motion. Rec. Doc No. 59.
Rec. Doc. No. 34.
On May 26, 2001, the F/V PROWLER collided with the F/V CAPTAIN TRUOUNG in the Houma Navigational Canal, Terrebonne Parish, Louisiana. At the time of the collision, the F/V PROWLER was attempting to overtake the F/V CAPTAIN TRUOUNG which was being towed by the F/V MISS THOM. Vo, the only personal injury claimant in these matters, alleges that he was injured when the force of the collision caused him to be thrown from the captain's chair on the F/V CAPTAIN TRUOUNG.
The F/V PROWLER is owned and operated by Nguyen and it was being operated by Nguyen's husband, Duoc v. Tan, at the time of the accident. The F/V MISS THOM is owned by Le and it was being operated by him at the time of the collision. On May 26, 2001, Vo was the owner and operator of the F/V CAPTAIN TRUOUNG and he was allegedly operating it.
On July 16, 2001, Vo filed a lawsuit captioned Tuc Van Vo v. Lan Thi Nguyen d/b/a F/V PROWLER, Duo v. Tan, and Ben v. Le d/b/a MISS THOM, No. 132676, in the 32nd Judicial District Court, Parish of Terrebonne, State of Louisiana, seeking damages as a result of the May 26, 2001, collision. Both Nguyen and Le filed these consolidated civil actions seeking exoneration from and/or limitation of liability pursuant to the Limitation of Liability Act, 46 U.S.C. App. § 181 et seq. In both limitation proceedings, the Court stayed and restrained the prosecution and/or commencement of any lawsuit against the complainants with respect to any claims arising out of the May 26, 2001, collision until the complaints for exoneration from and/or limitation of liability could be determined.
Rec. Doc. No. 30, Exh. A.
On November 21, 2001, Nguyen, as owner and operator of the F/V PROWLER, filed her complaint for exoneration from or limitation of liability and it was assigned civil Action No. 01-3510. On November 26, 2001, Le, doing business as Miss Thom, Inc., as the owner of the F/V MISS THOM, filed his complaint for exoneration from or limitation of liability and it was assigned civil Action No. 01-3529. These actions were consolidated under civil Action No. 01-3510. Rec. Doc. No. 9.
See Rec. Doc. No. 2 in Civil Action No. 01-3510, In the Matter of Lan Thi Nguyen and Rec. Doc. No. 2 in Civil Action No. 01-3529, In the Matter, of the complaint of Miss Thorn, Inc., and Ben V. Le. In In the Matter of Lan Thi Nguyen, the Court stayed lawsuits against complainants, but it did not stay the lawsuit against the complainants' underwriters, Civil Action No. 01-3510, Rec. Doc. No. 2. In In the Matter of the Complaint of Miss Thom, Inc., and Ben V. Le, the Court stayed the commencement or further prosecution of all lawsuits arising out of the action, including those against complainants' underwriters, Civil Action No. 01-3529, Rec. Doc. No. 2.
Claimant, Vo, moves to lift the restraining orders in these consolidated actions so that he may try his personal injury action in state court. Vo has stipulated that this Court has exclusive jurisdiction over all issues in the consolidated limitation proceedings and that he waives all "claims of res judicata arising from the state court proceeding, as to any and all issues of limitation." The claimant has also stipulated that he will not seek to enforce any damage award in any state court greater than the value of the vessels, the F/V PROWLER and the F/V MISS THOM, and their pending freight, as set forth in the stipulations for value, unless and until this Court establishes a higher value for the vessels and pending freight or denies limitation to the complainants.
Rec. Doc. No. 28, Exh. A, and Rec. Doc. No. 56. The claimant's original stipulation which was attached to his motion to lift restraining orders stated that:
1. Claimant stipulates that this Honorable Court has exclusive jurisdiction over the limitation proceedings instituted by complainants herein;
2. Claimant stipulates that he will not seek to enforce any damage award in any state court proceeding, greater than the value of the interest of complainant, Lan Thi Nguyen, in the vessel, F/V Prowler, and said vessel's pending freight, as set forth in the stipulation for value filed herein by said complainant in Civil Action No. 01 3510, unless and until this Honorable Court establishes a higher value for such interest(s) or denies complainant's right to limitation of liability herein; and
3. Claimant stipulates that he will not seek to enforce any damage award in any state court proceeding, greater than the value of the interest of complainant, Miss Thom, Inc., and/or Ben Le, d/b/a Miss Thom, Inc., and/or The F/V Miss Thom, in the vessel F/V Miss Thom, and said vessel's pending freight, as set forth in the stipulation for value filed herein by said complainant(s) in Civil Action No. 01-3529, unless and until this Honorable Court establishes a higher value for such interest(s) or denies the right of said complainant(s) to limitation of liability herein.
Rec. Doc. No. 28, Exh. A.
In claimant's supplemental memorandum in support of his motion to lift restraining orders, the claimant supplemented his stipulation, stating that "claimant, Tuc Van Vo, does hereby stipulate that this Honorable Court has exclusive jurisdiction over all limitation issues in the above-captioned proceedings". Rec. Doc. No. 56. claimant also stated that "claimant, Tuc Van Vo, does hereby stipulate to a waiver of any claims of res judicata arising from the state court proceeding, as to any and all issues of limitation." Rec. Doc. No. 56.
Rec. Doc. No. 28, Exh. A.
Le, d/b/a MISS THOM, INC., as owner of the F/V MISS THOM, and the F/V MISS THOM, have filed a claim in Nguyen's limitation action, seeking indemnification and/or contribution for any liability to claimant, Vo, arising out of the collision at issue. Nguyen filed a similar claim for indemnification and/or contribution for any liability to claimant, Vo, in Le's limitation action. AGF, the insurer of the F/V MISS THOM and the F/V CAPTAIN TRUONG, filed a claim in Nguyen's limitation action seeking to recover any amounts it is liable for as a result of hull or property damage to the F/V MISS THOM and the F/V CAPTAIN TRUOUNG, or as a result of personal injuries to crewmembers of the vessels, including Vo, as a result of the collision. Neither Le, Nguyen, or AGF have filed stipulations or have sought to lift the stay of the state court proceedings.
Rec. Doc. No. 32.
Rec. Doc. No. 35.
Rec. Doc. No. 33.
Relying on Odeco Oil and Gas Co., Drilling Division v. Bonnette, 74 F.3d 671 (5th Cir.), reh'g and reh'g en banc denied, 83 F.3d 421 (5th Cir.) (TABLE, NO. 95-30041), cert. denied, 519 U.S. 822, 117 S.Ct. 79, 136 L.E.2d 37 (1996) ("Odeco II"), claimant, Vo, seeks an order lifting the stay so that his personal injury action may be adjudicated in a state court proceeding pursuant to the "savings to suitors" clause. The court in Odeco II explained:
Pursuant to 28 U.S.C. § 1333(1), federal courts have original jurisdiction of "[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." (italics added).
A shipowner facing potential liability for an accident occurring on the high seas may file suit in federal court seeking protection under the Limitation Act. The Limitation Act allows a shipowner, lacking privity or knowledge, to limit liability for damages arising from a maritime accident to the `amount or value of the interest of such owner in such vessel, or her freight then pending.' 46 U.S.C. App. § 183(a). The Limitation Act is designed to protect shipowners in those cases in which `the losses claimed exceed the value of the vessel and freight.' Magnolia Marine Transport Co. [v. Laplace Towing Co., 964 F.2d 1571, 1575 (5th Cir. 1992)]. A shipowner's right to limitation, however, is cabined by the `savings to suitors' clause. . . . The saving to suitors clause evinces a preference for jury trials and common law remedies in the forum of the claimant's choice [citations omitted]. Although tension exists between the Limitation Act and the saving to suitors clause, `the [district] court's primary concern is to protect the shipowner's absolute right to claim the Act's liability cap, and to reserve the adjudication of that right in the federal forum.' Magnolia Marine Transport Co., 964 F.2d 1571 at 1575.
In mediating between the right of shipowners to limit their liability in federal court and the rights of claimants to sue in the forum of their choice, federal courts have developed two instances in which a district court must allow a state court action to proceed: (1) when the total amount of the claims does not exceed the shipowner's declared value of the vessel and its freight, and (2) when all claimants stipulate that the federal court has exclusive jurisdiction over the limitation proceeding, and that the claimants will not seek to enforce a damage award greater than the value of the ship and its freight until the shipowner's right to limitation has been determined by the federal court (italics in original). See, e.g., Texaco, Inc. v. Williams, 47 F.3d 765, 768 (5th Cir.), cert. denied, 516 U.S. 907, 116 S.Ct. 275, 133 L.Ed.2d 196 (1995). In both instances, allowing the state court action to proceed is contingent on protecting the `absolute' right of the shipowner to limit his or her liability. In re Complaint of Port Arthur Towing Co., [ 42 F.3d 312, 316 (5th Cir.), cert. denied, 516 U.S. 823, 116 S.Ct. 87, 133 L.Ed.2d 44 (1995)]; Odeco I [Odeco Oil Gas Co., Drilling Division v. Bonnette, 4 F.3d 401, 405 (5th Cir. 1993), cert. denied, 511 U.S. 1004, 114 S.Ct. 1370, 128 L.Ed.2d 47 (1994)]74 F.3d at 674.
Claimant, Vo, contends that because he has filed the stipulations recognized in Odeco II which are adequate to protect the shipowner's right to have this federal court adjudicate the limitation claim, the stay should be lifted. Complainants, Nguyen and Le, who are also claimants in these limitation actions, and claimant, AGF, object to the lifting of the stay. They argue that because they have not filed stipulations, one of the requirements necessary for a district court to lift the stay is not present. In response, Vo contends that the complainants are not personal injury claimants and that they need not file stipulations in order for the stay to be lifted.
The same issue was addressed by the Odeco II court which stated:
Specifically, the question before this court is whether the parties seeking contribution and indemnity are `claimants' within the meaning of the Limitation Act, and therefore must actually sign the stipulation before the injured claimants may proceed in state court.
We believe that we have previously resolved the question of whether parties seeking contribution and indemnity are "claimants" within the meaning of the Limitation Act [citations omitted]. Co-defendant cross-claims for indemnity and contribution are liabilities that must be addressed in order to protect the shipowner's rights under the Limitation Act [citation omitted]. Therefore, parties seeking indemnification and contribution from a shipowner must be considered claimants within the meaning of the Limitation Act.
As we have previously held, in order to proceed in state court, all claimants must sign the stipulation protecting the shipowner's rights under the Limitation Act. In re Complaint of Port Arthur Towing Co., 42 F.3d at 316. This rule is a prudent attempt to balance the inherent conflict between the Limitation Act and saving to suitors clause. Although the claimants' interest in litigating in the forum of their choice is substantial, we will accede to that choice only "if it is accompanied by stipulations fully protecting Odeco's right to limit liability and agreeing to abide by an admiralty court determination of the right to limit." Odeco Oil Gas Co., Drilling Division v. Bonnette, [ 4 F.3d 401, 405 (5th Cir. 1993), cert. denied, 511 U.S. 1004, 114 S.Ct. 1370, 128 L.Ed.2d 47 (1994)] (Odeco I). The shipowner's right to limitation takes precedence over the claimant's rights to proceed in the forum of their choice.74 F.3d at 674-675 (footnote omitted)
As stated, Vo contends that the contribution and indemnity claimants, Nguyen, Le, and AGF, do not need to sign the stipulation and that the claims of the insurer, AGF, to recover property damage and personal injury and maintenance and cure payments are subordinate to those of a personal injury claimant. Vo, however, has no jurisprudential authority to support his position. In the Fifth Circuit, all claimants in a limitation action must agree to stipulations protecting the vessel owner's Limitation Act rights and that parties whose claims are for indemnity and contribution from a shipowner are considered claimants within the meaning of the Limitation Act. See, In re: In the Matter of the Complaint of ADM/Growmark River System, Inc., 234 F.3d 881, 885-886 (5th Cir. 2000), citing Odeco II, 74 F.3d at 675; accord, Cal Dive International, Inc. v. Johnson, 2001 WL 823728 at *1 and *2 (Clement, J.) (E.D. La. 2001)
Rec. Doc. No. 56.
Accordingly,
IT IS ORDERED that the motion of claimant, Tuc Van Vo, to lift the restraining order is DENIED.