Opinion
Civil Action No. 03-163.
February 17, 2005
MEMORANDUM
I.
Pending before the court is the motion of Tri-River Marine, Inc., and Tri-River Fleeting Harbor Service, Inc. and the M/V Bill Dyer (collectively, the "Tri-River Parties") for leave to file a claim and answer nunc pro tunc, pursuant to Federal Rule of Civil Procedure, Supplemental Rule F(5). For the reasons that follow, the Tri-River Parties' motion is denied.
II.
The facts giving rise to this dispute are briefly set forth as follows:
This case arises out of personal injuries sustained by seaman Mark Allen Smith ("Smith") on January 21, 2003, at approximately 11:00 p.m. On that day, Smith was ordered from the M/V Rose G. to Barge OR-4833 to "flop" the barge. While in the process of "flopping the barge," Mark Allen Smith's ("Smith") right leg became caught by a marine "junk" line that had been left aboard Barge No. OR-4833. Smith was thrown overboard into the water and dragged up the side of another barge. The injuries to Smith's right leg required that it be amputated below the knee.
On or about February 5, 2003, Mon River Towing Inc. ("MRT") and J.A.R. Barge Lines, L.P. ("JAR Barge"), filed the instant Complaint for Exoneration from and/or Limitation of Liability with respect to the January 21, 2003 accident. On February 6, 2003, this court ordered that, inter alia, MRT and JAR Barge were to give written notice to all persons, firms and corporations who have or allege to have claims for any losses arising from the January 21, 2003 accident to file their claim by March 10, 2003. Ingram Barge and seaman Smith timely filed their respective claims. On or about April 2, 2004, this court approved MRT and JAR Barge's settlement with Smith, see Doc. No. 31, which settlement included a payment of $632,599.00 to Smith, $10,925.00 in maintenance payments, and $171,616.98 in cure payments to Smith and/or his medical providers. On or about October 18, 2004, upon learning of the pending action, the Tri-Rivers Parties filed the instant motion after "determin[ing] that it may have claims against MRT and J.A.R. for indemnity with respect to the Smith suit[,]" Tri-Rivers Parties Mot. at ¶ 8, which was filed on May 19, 2004.
III.
Rule F(5) of the Supplemental Admiralty Rules provides that:
Claims shall be filed and served on or before the date specified in the notice provided for in subdivision (4) of this rule. Each claim shall specify the facts upon which the claimant relies in support of the claim, the items thereof, and the dates on which the same accrued. If a claimant desires to contest either the right to exoneration from or the right to limitation of liability the claimant shall file and serve an answer to the complaint unless the claim has included an answer.
While Rule F(5) contemplates that a district court will provide a time by which all persons asserting claims with respect to the complaint shall file their respective claims, Rule F(4) also provides that, "[f]or cause shown, the court may enlarge the time within which claims may be filed." Courts have interpreted Rule F(4) as allowing a district court to permit a claimant in a limitation of liability proceeding to file a claim, nunc pro tunc, for good cause shown. Golnoy Barge Co. v. M/T Shinoussa, 980 F.2d 349, 351 (5th Cir. 1993) (citing Texas Gulf Sulphur Co. v. Blue Stack Towing Co., 313 F.2d 359 (5th Cir. 1963)).
IV.
Plaintiffs, J.A.R. Barge Lines, L.P. and Mon River Towing, Inc., argue that the motion of the Tri-Rivers Parties must be denied in light of two Supreme Court decisions. Specifically, plaintiffs argue that McDermott, Inc. v. AmCldye, 511 U.S. 202 (1994) and Boca Grande Club, Inc. v. Florida Power Light Co., Inc., 511 U.S. 222 (1994), preclude the Tri-Rivers Parties' claims.
The Tri-Rivers Parties respond that they "do not dispute that McDermott, Inc. v. Am[C]lyde and River Don Casting Ltd., 511 U.S. 202 (1994) and Boca Grande Club, Inc. v. Florida Power Light Company, Inc., 511 U.S. 222 (1994) [,] preclude a contribution claim against MRT J.A.R. But contrary to MRT J.A.R.'s suggestion, McDermott and Boca Grande do not preclude a claim by Tri-River Parties for complete indemnity against MRT J.A.R. based upon theories of MRT and J.A.R.'s active negligence and the Tri-River Parties' passive negligence."See Doc. No. 45, at 1. More specifically, the Tri-Rivers Parties contend that the Supreme Court decisions on which plaintiffs rely neither address nor preclude "a claim for indemnification, a separate and distinct theory of liability."See Doc. No. 45, at 2. Thus, the Tri-River Parties argue thatMcDermott and Boca Grande do not preclude their indemnification claim against MRT and J.A.R. Barge. The court disagrees.
In McDermott, Inc. v. AmClyde, 511 U.S. 202 (1994), the Supreme Court considered the appropriate allocation of liability between multiple defendants under maritime law after a settlement with fewer than all defendants. Id. at 207. The Court adopted the "proportionate share" rule, whereby a plaintiff's judgment against a nonsettling defendant is reduced by the settling defendants' proportionate share of responsibility for the total judgment. Id. at 207-09. The Court noted that, under this approach, "no suits for contribution from the settling defendants are permitted, nor are they necessary, because the nonsettling defendants pay no more than their share of the judgment." Id. at 209.
That same day, in Boca Grande Club, Inc. v. Florida Power Light Co., Inc., 511 U.S. 222 (1994), the Court underscoredMcDermott's holding. Therein, the Court considered whether, in an action against several alleged joint tortfeasors under general maritime law, the plaintiff's settlement with one defendant bars a claim for contribution brought by nonsettling defendants against the settling defendant. The Court held that, underMcDermott's proportionate share rule, "actions against settling defendants are neither necessary or permitted[.]" Id.
There is no dispute regarding the existence of a settlement agreement between plaintiffs and Smith. Thus, the court finds that McDermott and Boca Grande control this dispute and dictate that the Tri-Rivers parties' contribution and indemnification action against plaintiffs is neither necessary nor permitted now that plaintiffs and Smith have reached a settlement. Any judgment ultimately awarded to Smith against the Tri-Rivers Parties necessarily will be reduced by whatever proportion of fault that plaintiffs are determined to share.
As plaintiffs correctly note, there are two other actions pending before the court in which the Tri-Rivers Parties can litigate plaintiffs' liability and in which the Tri-Rivers Parties have the opportunity to "argue the `empty chair' in hope of convincing the jury that the settling party was exclusively responsible for the damage." McDermott, 511 U.S. at 217.
With respect to the Tri-River Parties' contention that theMcDermott and Boca Grande decisions do not preclude their claim for indemnification, the court disagrees. In In re Air Crash Near Peggy's Cove, Nova Scotia on September 2, 1998, No. MDL NO. 1269, 2004 WL 2486263 (E.D. Pa. 2004), the court considered . . and rejected . . the argument that the McDermott and Boca Grande decisions did not foreclose tort indemnification, thereby leaving defendants free to assert claims for indemnity against settling defendants. In considering the issue, the court noted as follows:
This position is untenable. It fails to comprehend the essence of the proportionate liability approach to assessing the degree of fault, of alleged joint tortfeasors. After Reliable Transfer and McDermott, IFT can only be held liable for its own independent degree of fault, if any, in causing the tragic crash of Flight 111. If a jury were to determine that IFT is completely without fault, IFT will not have to pay anything to satisfy claims made by Flight 111 victims of the other Defendants. Contribution and indemnification are distinct doctrines, and the principles of proportionate fault apply equally to both. Under the doctrine of proportionate responsibility, a defendant will never be held liable for another's degree of fault. Given the settlements already reached with Flight 111 victims, there is no set of circumstances under which IFT will be required to pay monies on behalf of other Defendants.Id. at *3 (emphasis added); see also Cargill Ferrous Int'l Div. Of Cargill, Inc. v. M/V Princess Margherita, No. Civ. A. 98 3825, 2101 WL 1426478, at *2 (E.D. La. Nov. 13, 2001) (noting that, "although [McDermott v.] AmClyde did not specifically discuss actions for tort indemnity, it is clear that the analysis is applicable to such a claim"); D.N.H. Towing Co., Inc., No. CIV. A. 97-1104, 1998 WL 51835 (E.D. La. Feb. 5, 1998) (as a result of settlement, the claims for contribution and indemnity were barred; Gever v. USX Corp., 896 F. Supp. 1440, (E.D. Mich. 1994) ("Indemnification is barred for the same reason that contribution is barred; any award against a nonsettling defendant always will be reduced by the settling defendants' proportion of fault. USX cannot seek indemnity against BW because USX will never be responsible for BW's equitable share of fault, regardless of whether USX is found to be 0% or 100% at fault."). Accordingly, the Tri-Rivers Parties' motion for leave to file a claim and answer nunc pro tunc is denied.
An appropriate order follows.
With respect to whether the passive-active distinction . . in which a passively negligent party in admiralty can recover indemnity damages from a primary negligent party . . remains a viable doctrine in the Third Circuit since the Court's decisions in McDermott and Boca Grande, the court finds that it does not. First, the passive-active distinction has not been applied in the Third Circuit since the Supreme Court issued its decision in McDermott. Moreover, as the court noted in In re Air Crash Near Peggy's Cove, to use the passive-active distinction "would be to reintroduce the very confusion that the Supreme Court has tried, to eliminate in maritime disaster litigation." 2004 WL 2486263, at *4.
ORDER
AND NOW, this 17th day of February, 2005, upon consideration of the motion of Tri-River Marine, Inc., Tri-River Fleeting Harbor Service, Inc., and M/V Bill Dyer (the "Tri-River Parties") (Doc. No. 39), for leave to file a claim and answer nunc pro tunc,IT IS ORDERED that the Tri-River Parties' motion shall be and hereby is denied.