Opinion
CIVIL ACTION NO. 00-1602, SECTION "N"
July 31, 2002
ORDER AND REASONS
Before the Court is a Motion to Dismiss Rule 14(c) Tender filed on behalf of third party defendants, Cooper/T. Smith Stevedoring Co., Inc., Cooper/T. Smith Corporation, Cooper/T. Smith Mooring Co., Inc. and the M/V REBEL ("Cooper/T. Smith"). Defendant/third-party plaintiff West of England Shipowners Mutual Insurance Association (Luxembourg) ("West of England") tendered Cooper/T. Smith to the plaintiff as a direct defendant pursuant to Rule 14(c) of the Federal Rules of Civil Procedure. Cooper/T. Smith contends that the only claims that the plaintiff may have against it are pursuant Jones Act and/or the general maritime law claim. In light of the fact that the plaintiffs lawsuit arises out of a June 13, 1997 incident which occurred in connection with maritime activities on navigable waters, Cooper/T. Smith contends that any claims the plaintiff may have against it are time-barred, and thus West of England's Rule 14(c) tender should be dismissed. The plaintiff filed formal opposition and the matter was deemed submitted for decision without oral argument. For the following reasons the Court GRANTS Cooper/T. Smith's Motion to Dismiss [Rec. Doc. # 260].
I. BACKGROUND
Plaintiff Steven Durgin ("Durgin") was allegedly injured on or about June 13, 1997, while serving as a deckhand aboard the M/V LOUISIANA, a tug owned and operated by the defendant Crescent. At the time of the accident the M/V LOUISIANA was alongside the M/V PANTODINAMOS, which vessel was in the final stages of departing the mid-river buoys, when one of its starboard eight inch mooring lines parted and allegedly struck Durgin on the M/V LOUISIANA causing serious injuries. The M/V PANTODINAMOS was owned by Pantodinamos Maritime, Inc., which has primary Protection and Indemnity ("P I") coverage with West of England.
On June 1, 2000, plaintiff instituted these proceedings to recover damages for the alleged injury directly against West of England, inter alia. His original complaint named Crescent Towing and Salvage as a defendant, alleging that it was negligent in the manner in which the tug was positioned and failed to provide him with a safe place to work. As to West of England's assured, the plaintiff claimed that Pantodinamos Maritime was negligent by failing to provide him with a safe place to work, failing to maintain its equipment, and failing to advise him of the difficulties that the crew had been experiencing with the mooring lines. Plaintiff later sought to amend his complaint (1) to assert allegations of gross negligence and willful misconduct against Pantodinamos Maritime, Captain Bill Watson and Crescent, and (2) to add as a defendant the operator/charterer of the Pantodinamos, the Pronia Ship Agents and Brokers, Inc ("Pronia"). The Cooper/T. Smith entities were not named defendants and/or tendered directly to the plaintiff pursuant to Rule 14(c) until August 3, 2001. The result of the instant motion was foretold early on in these proceedings, that is in the context of the Court's ruling denying plaintiffs Motion to Supplement and Amend adding the charterer Pronia as a defendant.
See Order and Reasons dated January 8, 2001 (granting plaintiffs Motion for Leave to File Supplemental and Amended Petition to the extent it sought to assert additional claims of negligence against defendants Bill Watson, Crescent Towing, and Bill Watigney, and denying plaintiffs motion to the extent that it sought to add the charterer Pronia Ship Agents Brokers, Inc. as a defendant, noting that the claim against the charterer had prescribed and the rule of Jacobsen v. Osborne, 133 F.3d 315, 320-21 (5th Cir. 1998), i.e., a plaintiff who fails to name a correct defendants due to a lack of knowledge as to their identity, as opposed to a mistake in their names (misnomer), cannot avail himself of the relation back doctrine of Rule 15(c)) [Rec. Doc. # 39].
See id.
II. ANALYSIS Rule 14(c) Tender
Fed.R.Civ.P. 14(c) was designed to expedite and consolidate admiralty actions by permitting a third party plaintiff to demand judgment against a third party defendant in favor of the plaintiff. As a consequence, the plaintiff is then required to assert his claims directly against the third-party defendant. This liberal joinder policy serves to reduce the possibility of inconsistent results in separate actions, eliminate redundant litigation, and prevent a third party's disappearance if jurisdiction and control over the party and his assets were not immediately established. See Texaco Exploration and Production Company v. AmClyde Engineered Products Company. Inc., 243 F.3d 906, 910 (5th Cir. 2001). This concept is unique to admiralty practice, and is distinguishable from Rule 14(a), which does not automatically establish a direct link between the plaintiff and the third party defendant. Rule 14(c) provides:
Admiralty and Maritime Claims. When a plaintiff asserts an admiralty or maritime claim within the meaning of Rule 9(h), the defendant or person who asserts a right under Supplemental Rule C(6)(b)(i), as a third-party plaintiff, may bring a third-party defendant who may be wholly or partly liable, either to the plaintiff or to the third-party plaintiff, by way of remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences. In such a case the third-party plaintiff may also demand judgment against the third-party defendant in favor of the plaintiff, in which event the third-party defendant shall make any defenses to the claim of the plaintiff as well as to that of the third-party plaintiff in the manner provided in Rule 12 and the action shall proceed as if the plaintiff had commenced it against the third-party defendant as well as the third-party plaintiff.
Id.
Under Rule 9(h) no specific identifying statement is necessary if the claim is cognizable only in admiralty. However, where the complaint shoes that both admiralty and some other basis of federal jurisdiction exist, the plaintiff must employ an identifying statement in accordance with Rule 9(h) in order to be entitled to the special benefits afforded admiralty litigants under the Federal Rules of Civil Procedure and the Supplemental Rules for Certain Admiralty and Maritime Claims. See Romero v. Bethlehem Steel Corp., 515 F.2d 1249, 1252 (5th Cir. 1975); see also Lirette v. Popich Bros. Water Transport, Inc., 699 F.2d 725, 726 n. 6 (5th Cir. 1983) (noting that where the plaintiff's complaint was based on the Jones Act and the general maritime law and did not expressly contain a Rule 9(h) declaration, but did contain a jury demand, the defendant was not entitled to the benefits of Rule 14(c)).
It is noteworthy that in this case the plaintiff recently amended his complaint to demand a jury trial. See Minute Entry Order dated June 20, 2002 (affirming the Magistrate Judge's ruling allowing amendment pursuant to Rule 39(b)) [Rec. Doc. # 249]. Because the complaint against the defendant is not one cognizable only in admiralty and the plaintiff has not made a Rule 9(h) designation, the plaintiffs action is properly triable on the law side of the court and the defendant West of England is not entitled to invoke the benefits of Rule 14(c). See Tipton v. General Marine Catering Co., 1989 WL 13554 (E.D.La.) (Livaudais, J.); and Harrison v. Glendel Drilling Company, 679 F. Supp. 1413, 1419 (W. D. La. 1988).
Notwithstanding the foregoing, plaintiff's claims against Cooper/T. Smith have also prescribed, and thus dismissal of the Rule 14(c) tender is also warranted on that basis. A suit for recovery of damages for personal injury or death arising out of a maritime tort shall not be maintained unless commenced within three years from the date the cause of action accrued. 46 U.S.C. § 763(a); see also Clay v. Union Carbide Corp., 828 F.2d 1103, 1105 (5th Cir. 1987) (applying the three year statute of limitations to claims brought under the Jones Act and the general maritime law); and Cooper v. Diamond M. Co., 799 F.2d 176, 178-9 (5th Cir. 1986) (applying three year statute of limitations to claims for unseaworthiness and maintenance and cure).
The relevant statute of limitations period is three years, and Cooper/T. Smith was not added as a defendant within that prescriptive period. Moreover, the requirements of Fed.R.Civ.P. Rule 15(c) for "relation back" are not satisfied. Rule 15(c) provides:
An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct or the transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment
(A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merit, and
(B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Id.
Rule 15(c)(3) simply allows an amendment changing the name of a party to relate back to the original complaint if the change is a result of error, such as misnomer or misidentification. See Jacobsen v. Osborne, 133 F.3d 315, 319-20 (5th Cir. 1998); and Cargill Ferrous international v. M/V EMMA OLDENDORFF, 2001 WL 179924, 2001 A.M.C. 1362 (E. D. La. Feb. 20, 2001) (Berrigan, J.) (applying COGSA's one-year statute of limitations). The Advisory Committee's notes emphasize that Rule 15(c)(3) was designed to deal with the problem of the misnamed defendant, and that is not the case here. However, West of England's third party claim for contribution and/or indemnity against Cooper/T. Smith survives unscathed, barring any other jurisdictional obstacle. Accordingly, and for the foregoing reasons
IT IS ORDERED that Cooper/T. Smith's Motion to Dismiss Rule 14(c) Tender is hereby GRANTED.