Opinion
CIVIL ACTION NO. 00-CV-2700
June 13, 2001
ORDER
Considering the foregoing;
Considering the foregoing;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the stay previously issued by this Court pursuant to the Limitation of Liability Act, 46 U.S.C. § 181, et. seq., and Rule F of the Supplemental Rules of Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure, is hereby lifted solely to permit EDF Man Ship, Ltd., as charterer of the M/V JIN SHAN HAI, to file an action against Halter-Calcasieu, L.L.C. and its underwriters in the Fourteenth Judicial District Court for the Parish of Calcasieu, State of Louisiana.
IT IS FURTHER ORDERED that said action be joined until further order of this Court.
AMENDED JUDGMENT
The court noting that this case had not been removed from state court and therefore remand was improper, the Judgment issued by this court dated June 13th, 2001, is hereby AMENDED to read as follows:
In accordance with the corresponding Memorandum Ruling, the Motions for Summary Judgment [doc. 5 and 10] filed by CITGO and CONOCO are GRANTED. Accordingly,
IT IS ORDERED, ADJUDGED and DECREED that this suit in its entirety BE and IS DISMISSED WITHOUT PREJUDICE as this court is without jurisdiction.
JUDGMENT
In accordance with the corresponding Memorandum Ruling, the Motions for Summary Judgment [doc. 5 and 10] filed by CITGO and CONOCO are GRANTED. Accordingly,
IT IS ORDERED that this matter be remanded to the 14th Judicial District Court for Calcasieu Parish, State of Louisiana.
The cross motion for summary judgment [doc. 35] filed by the plaintiffs, HALTER-CALCASIEU, LLC ("Halter"), is properly before the 14th Judicial District Court.
MEMORANDUM RULING
Presently before the court are Motions for Summary Judgment [doc. 5 and 10] filed by CITGO and CONOCO. The plaintiffs, HALTER-CALCASIEU, LLC ("Halter") have opposed these motions and have filed a cross motion for summary judgment [doc. 35].
These motions were originally filed as Motions to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), but were converted by the court to summary judgment motions (See Order dated March 16, 2001, doc. 23). The parties were given additional time to introduce summary judgment evidence.
FRIEDE GOLDMAN HALTER, INC. is subject to the jurisdiction of the Bankruptcy Court for the Southern District of Mississippi and a Notice of Stay has been filed in these proceedings.
Facts
Halter filed an action for exoneration from or limitation of liability alleging that their drydock, while attempting to recover a vessel from the middle of the Calcasieu River, sank and was unrecoverable. As a result, the Calcasieu Ship Channel was blocked. Citgo and Conoco filed these motions arguing that the drydock was not a "vessel" under maritime law and therefore the Limitation Act is not applicable.
Law and Analysis
Conoco and Citgo moved for dismissal pursuant to Rule 12(b)(6), failure to state a claim upon which relief can be granted. The 12(b)(6) motions were converted by the court to Motions for summary judgment pursuant to Fed.R.Civ.P. 56.
Rule 56© provides that "[summary] judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56© The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, and answers to interrogatories, admissions on file and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir. 1988). Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 257, 106 S.Ct. at 2514-15; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
The plaintiffs' complaint alleges that their drydock, while attempting to recover a vessel from a navigable waterway, sank and was unrecoverable. Halter argues that, under the facts of this case, their drydock was being used to salvage a disabled vessel and was therefore, a vessel itself. Citgo and Conoco argue that a drydock cannot be a vessel for the purposes of a Limitation Action citing Berton v. Tietjen Land Dry Dock Co., 219 F.2d 763, 771 (D.N.J. 1915) as support for this contention. In Berton, a floating drydock was not considered a vessel because its purpose and actual use was not in navigation as a means of transportation.
The question of whether a floating structure is a vessel is fact-specific. Southwest Marine v. Gizoni, ___ U.S. ___, 112 S.Ct. 486, 492, 116 L.Ed.2d 405 (1991). The great majority of cases concerning the reach of admiralty jurisdiction over drydocks have held that drydocks when in use as drydocks are not ships or vessels subject to such jurisdiction. Cope v. Vallette Dry Dock Co., 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed.501 (1887); DeMartino v. Bethlehem Steel Co., 164 F.2d 177 (1st Cir. 1947); Breton v. Tietjen Dry Dock Co., 219 F. 763 (D.N.J. 1915); Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279, 283 (5th Cir. 1969), cert. Denied, 396 U.S. 846, 90 S.Ct. 105, 24 L.Ed.2d 96 (1969).
The Fourth Circuit in United States v. Moran Towing Transportation Co., 374 F.2d 656, 662 (4th Cir. 1967), stated that:
". . . the drydock in service, permanently moored to the land, has most of the attributes of . . . an extension of the land (such) as a wharf or a dock."
The Fourth Circuit added, however, that:
A drydock "does not retain that character when it has been severed from its attachments to the land and when, under tow, it is moving over navigable waters . . . ." Id. At 662.
The Fifth Circuit has also indicated that there might be some circumstances in which a floating drydock might not be excluded from the reach of admiralty jurisdiction. See Cook v. Belden Concrete Products, Inc., 472 F.2d 999, 1001 (5th Cir. 1973).
The Eastern District of New York also discussed mobile drydocks in J.M.L. Trading Corp. v. Marine Salvage Corporation, 501 F. Supp. 323 (E.D.N.Y. 1980) finding that when a floating dry dock is more or less permanently affixed to the shore, it is not within admiralty jurisdiction primarily because it does not travel upon navigable waters, has no mode of power of its own, and has no steering mechanism of its own. The court went further and posited that when a floating dry dock is treated like a ship or vessel or is used as a ship or vessel, thereby losing its attributes as an extension of the land, it may very well be found to be within admiralty jurisdiction.
A vessel is "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C. § 3. In general, the "greater the structure's resemblance to conventional seafaring craft, the greater the odds of securing vessel status." Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 (5th Cir. 1990).
Courts have long recognized a distinction between "work platforms" that are designed for stationary residence and true vessels. See Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501 (1887) (floating dry dock is not a vessel). The court traditionally defines vessel status in reference to the importance of transportation as the craft's purpose. Manuel v. P.A.W Drilling Well Service, Inc., 135 F.3d 344, 348 (5th Cir. 1998). The court asks three questions in trying to determine whether a structure is a work platform or a vessel:
1) Was the structure constructed to serve primarily as a work platform?
2) Was the structure moored or otherwise secured at the time of the accident? And
3) Does the transportation function of the structure go beyond theoretical mobility and occasional incidental movement?
Burchett v. Cargill, 48 F.3d 173, 175 (5th Cir. 1995).
In applying this three-factor test to the dry dock in question, it is apparent that this structure cannot be classified as a "vessel." First, there is no evidence that the dry dock was constructed to serve as anything but a dry dock. The dry dock had no engine, no navigation lights, it didn't have a captain or crew quarters.
Second, the evidence before the court establishes that the drydock in question was being intentionally sunk in order to position a vessel over its structure and then be raised up to conduct vessel repairs. This is the traditional activity of a drydock. See Complaint of Halter ¶ 4; Claim and Answer of Newbury Shipping, Ltd. ¶¶ 4 and 6; Bastian deposition, p. 110, lines 11-16).
Third, while the dry dock was mobile in sense that it could be towed from location to location, the dry dock has no navigational ability on its own. While there is some theoretical possibility of more lengthy movement, the mere possibility of future movement does not change the structure's relative immobility. Fields v. Pool Offshore, Inc., 182 F.3d 353 (5th Cir. 1999). Thus, under the three-prong test of work-platform status, this dry dock is clearly not a vessel. There is no genuine issue of material fact present in this case. Accordingly, the Motions for Summary Judgment [doc. 5 and 10] filed by CITGO and CONOCO will be Granted.
Halter argues that recovery is barred based upon Robins Dry Dock and M/V Testbank, but this premise is based upon a predicate finding that the dry dock is a vessel which is not the court's holding in this case. See also Reserve Mooring Inc. v. American Commercial Barge Line, LLC, docket numbers 00-30611, 00-30944, 5th Cir. 5/16/01.
Consistent with the finding that this court's admiralty jurisdiction does not apply to the dry dock, this matter will be remanded to the 14th Judicial District Court. Halter's Summary Judgment Motion should be decided by that court.