Opinion
CIVIL ACTION NO. 03-3053, SECTION "K"(1)
March 23, 2004
Before the Court is a Motion for Partial Dismissal Pursuant to FRCP12(b)(6) (Doc. No. 7) filed by the United States. The Court held a telephonic hearing on this matter on March 22, 2004.
This case arises out of an incident which occurred on October 30, 2001 aboard the M/V SAKURA I. Three individuals, U.S. Customs Senior Inspector Thomas Murray, Captain Maksym Larionov and A/B Eduard Serdyuk died after entering a sealed cargo hold loaded with a cargo of scrap metal which has the potential to create an oxygen deficient atmosphere. The survivors of the decedents have filed suit against plaintiffs herein in state court, and indeed all but the Murray survivors have settled. Plaintiffs have alleged in the instant suit that the United States owes them indemnity based on the allegation that Inspectors Murray and Ken Thomas (the apparent sole survivor of the incident) were not properly trained or equipped as required by applicable federal regulations to properly enter the confined space. Thus, plaintiffs filed the instant action against the United States pursuant to the Suits in Admiralty Act. (46 U.S.C. § 741, et seq.)
The United States has filed the instant motion seeking dismissal of the claims against it with respect to Thomas Murray based on the substantive argument that under the Federal Employees Compensation Act (FECA"), 5 U.S.C. § 1801, et seq. it cannot be held liable for contribution. Alternatively, it also argues that the claim is premature.
Considering the pleadings, memoranda and the arguments of counsel, the Court finds that the claim by plaintiffs against the United States of America with respect to the liability arising out of the death of Thomas Murray is premature as there has been neither a determination of liability nor a settlement of this claim in the pending state court action. Laughlin v. Falcon Operators, Inc., 2002 WL 31740726, *5 (E.D.La. Dec. 4, 2002) (Vance, J.) citing Oxford Shipping Co. v. New Hampshire Trading Corp., 697 F.2d 1, 7 (1st Cir. 1982); A/S J. Ludwig Mowninckles Rederi v. Tidewater Constr. Corp., 559 F.2d 928, 932 (4th Cir. 1977). Accordingly,
IT IS ORDERED that the Motion for Partial Dismissal is GRANTED without prejudice to plaintiffs to re-urge such claim upon either a determination of liability against plaintiffs or settlement of the claim. In the event that the claim is re-urged, the Government shall be allowed to re-urge its substantive motion at that time.