UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
GENE A. BILLIOT,
DOLPHIN SERVICES, INC.; ET AL.,
DOLPHIN SERVICES, INC.,
In Re: In the Matter of: DOLPHIN SERVICES,
As Owner Pro Hac Vice/Operator of the Spud
For Exoneration From or Limitation of Liability,
DOLPHIN SERVICES, INC., As Owner Pro Hac
Operator of the Spud Barge KS410
For Exoneration From or Limitation of Liability,
TEXACO, INC.; TEXACO EXPLORATION AND PRODUCTION,
GENE A. BILLIOT,
Appeal from the United States District
for the Eastern District of Louisiana
August 24, 2000
Before JOLLY, SMITH, AND BARKSDALE, Circuit
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this challenge to the dismissal, as time-barred,
of the action at hand, filed by Dolphin Services, Inc. (vessel owner pro
hac vice/operator), under the Limitation of Vessel Owner's Liability
Act, 46 U.S.C. §§ 181-196, at issue is whether, pursuant to 46
U.S.C. § 185 (action must be filed within six months of written
notice of claim), the filing-period was triggered by Gene A. Billiot's
original petition (written notice of claim), which misidentified the vessel
on which he was allegedly injured (named barge with identification number
different from one on which he now claims he was injured), even though:
Billiot refused, within that filing-period, to correct the misidentification,
after Dolphin provided him with the correct identification; and Billiot
waited until after expiration of that filing-period to amend his petition,
by changing the barge identification. We VACATE and REMAND.
Billiot allegedly was injured on 7 October
1997, while working as a crew member on a spud barge in Texaco's Leesville
field. On 19 August 1998, he filed his original state court petition, alleging
that the incident occurred on spud barge KS-420. Pursuant to an
amendment to his petition, the incident instead allegedly occurred on KS-410.
That October, Dolphin answered incorrectly
that, on the date of the alleged incident, it was the bareboat charterer
of KS-420, which was operating in the Leesville field. In fact, on that
date, KS-420 was neither chartered by Dolphin nor in that
area. In addition, Dolphin asserted limitation of liability as a defense.
Billiot, inter alia, contested that defense.
In February 1999, less than six months
after the petition was filed (six months being the period allowed for
filing a limitation of liability action), Dolphin informed Billiot that
further investigation revealed the alleged incident occurred on KS-410,
not on KS-420 as pleaded:
Please be advised that our investigation has
indicated that the spud barge upon which plaintiff was working at the time
of his alleged incident was not the KS-420, but rather the KS-410.
[Dolphin] did not charter the KS-420 until after plaintiff's alleged
incident. ... [W]e will proceed as though all discovery propounded to date
which inquired into the KS-420 was in fact inquiring into the KS-410.
(Emphasis added.) Three days later, notwithstanding
Dolphin's advising Billiot about his vessel misidentification, and after,
in response to discovery requests about KS-420, receiving from Dolphin
documentation relating to KS-410, Billiot replied he instead wanted
documentation for KS-420.
In April 1999, more than six months after
it was filed, Billiot amended his petition to claim the incident occurred
on KS-410. Dolphin answered; and, on 18 June 1999, filed this action in
federal court, pursuant to the Limitation of Vessel Owner's Liability Act,
46 U.S.C. §§ 181-196 (the Act). This action was filed approximately
ten months after Billiot's original petition, but only two months after
it was amended. (Two days earlier, on 16 June, Dolphin had removed Billiot's
state court action to federal court.)
Billiot, inter alia, moved to dismiss
this limitation of liability action as untimely, because it was filed more
than six months after Dolphin received his original petition. According
to Billiot, that receipt was the triggering written notice of claim under
the Act, 46 U.S.C. § 185.
The district court agreed, holding that, even
though Billiot's original petition misidentified the vessel, it was sufficient
written notice of claim for a limitation of liability action. Therefore,
the action at hand was dismissed as untimely.
We review de novo whether this action
was timely filed. Complaint of Tom-Mac, Inc., 76 F.3d 678,
682 (5th Cir. 1996). If, in making its timeliness-ruling, the district
court makes findings of fact, they are reviewed only for clear error.
In pertinent part, the Act provides:
The liability of the owner of any vessel
... for ... any ... loss ... shall not ... exceed the amount or
value of the interest of such owner in such vessel, and her freight then
46 U.S.C. § 183 (emphasis added). And:
The vessel owner, within six months after
a claimant shall have given ... such owner written notice of claim, may
petition a district court of the United States ... for limitation of liability....
46 U.S.C. § 185. A "written notice of
claim" sufficient to trigger the filing-period must reveal a "reasonable
possibility" that the claim is subject to such limitation. Tom-Mac,
76 F.3d at 683. At issue is whether the original petition, which misidentified
the vessel on which the incident allegedly occurred, coupled with Billiot's
insistence that the vessel (KS-420) listed in that petition was correctly
identified, even after Dolphin informed him otherwise, is sufficient written
notice of claim for the vessel (KS-410) not named until the petition
was amended, with that amendment being subsequent to the filing-period
running from the original petition.
Under the Act, the vessel owner's liability
is limited to the value of his interest in the vessel. Limitation cannot
be claimed in general; instead, the vessel for which limitation is sought
must be identified, because Fed. R. Civ. P. Supplemental Rule for Certain
Admiralty and Maritime Claims F(2) requires the limitation of liability
complaint to include "all facts necessary to enable the court to determine
the amount to which the owner's liability shall be limited". Such facts
include the vessel's identity and its value. (Moreover, as referenced infra,
Rule F(1) requires, inter alia, the owner to post court-approved
The Act does not require plaintiff
to have identified the vessel in his underlying action (written notice
of claim). This notwithstanding, Billiot's original petition did identify
a specific vessel: KS-420. Dolphin investigated and informed him he had
identified the wrong vessel. Initially, Billiot insisted he was correct;
but, after expiration of the filing-period for a limitation of liability
action, he amended his petition by identifying a new vessel, KS-410, whose
identification had been provided by Dolphin to Billiot prior to expiration
of the filing- period running from the original petition.
Billiot relies upon Tom-Mac
in claiming the original petition provided Dolphin with sufficient written
notice of claim for KS-410, even though the claim in that original petition
was for KS-420, the wrong vessel. In Tom-Mac, two crew
members were killed on a barge attached to a tug. In the resulting action,
decedents' survivors' petition alleged defendant Tom-Mac controlled a "fleet
of vessels" involved in the incident, and specifically identified the barge
on which it occurred. But, more than a year after the original petition
was filed, the petition was amended to "expressly clarify that [its] seaman
status allegations [included] the tug". Tom-Mac, 76 F.3d
at 684 (as discussed infra, tug with barge in tow considered one
vessel). No vessel was substituted for the barge identified in the
Tom-Mac then filed a limitation of liability
action, based upon the amendment being the first "written notice of claim"
against the tug. Id. at 682. But, our court held the original
petition provided Tom-Mac with a "reasonable possibility" that a claim
subject to the Act had been made against the tug, including holding that
the amendment to the claim was "very minimal". Id. at 685.
Tom-Mac is distinguishable.
Its result is very fact-driven; just as is the result for the action at
hand. At the time of the alleged incident in Tom-Mac, the
defendant controlled both the barge and the attached tug. Here, KS-420
(named in the original petition) was not controlled by Dolphin at
the time of the alleged incident. Instead, it was in dry dock and was not
chartered by Dolphin until almost three weeks after the alleged incident.
Furthermore, the original Tom-Mac
petition alleged that a fleet of vessels was involved in the incident,
thereby triggering the "flotilla doctrine to require -- for limitation
of liability purposes -- the owner's tender of all of the vessels in the
flotilla, or the value thereof, pending resolution of the underlying claims".
See id. at 684. In this regard, Tom-Mac noted
under our court's precedent: "A tug and her barge in tow [are] treated
for purposes of the flotilla doctrine as a single vessel, because [they
are] owned in common and engaged in a common enterprise". Id.
(internal quotation marks and brackets omitted). Billiot's original petition
stated only KS-420 was involved. It mentions neither a fleet
of vessels nor KS-410.
And, unlike the minimal amendment to the Tom-Mac
original petition, Billiot's substituted one vessel for another. Vessel
substitution is not a minimal change in the petition, because, prior
to the amendment, and based on this record, Dolphin had no
notice that a claim subject to limitation was being made against the KS-410.
Cf. Complaint of Morania Barge No. 190, Inc.,
690 F.2d 32, 34-35 (2d Cir. 1982) (initial petition for damages in amount
less than vessel's value insufficient written notice of claim to
trigger filing-period; amending petition to seek more than vessel's value
As stated, the result in this action is very
fact-driven. Dolphin was entitled to rely on Billiot's original petition
(the written notice of claim) and, especially, his response to -- rejection
of -- Dolphin's advising him he had identified the wrong vessel. See
id. To hold otherwise would be to countenance plaintiffs' manipulation
of the filing-period for limitation of liability actions, with, among other
things, concomitant unnecessary costs in time, effort, and money (including
possibly posting security) to defendants having to file such an action
when they might otherwise not have been required to do so if the
plaintiff, in electing to identify a specific vessel, had simply
identified the correct one. And, obviously, limitation of liability actions
filed unnecessarily in federal courts adversely affect them.
This holding is limited to the facts at hand.
Based on them, the original petition was not a sufficient written
notice of claim to reveal to Dolphin the requisite "reasonable possibility"
that a claim against KS-410, subject to limitation of liability, had been
For the foregoing reasons, the dismissal of
this action is
VACATED, and it is REMANDED for further proceedings.
VACATED and REMANDED