IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30739

STEPHEN MARSHALL GABARICK, on behalf of himself and all others 

similarly situated; ET AL,

Plaintiffs

v.

LAURIN MARITIME (AMERICA) INCORPORATED; ET AL,

Defendants

AMERICAN COMMERCIAL LINES, L.L.C.,

Plaintiff-Appellant

v.

D.R.D. TOWING COMPANY, L.L.C.,

Defendant-Appellee

UNITED STATES OF AMERICA,

Intervenor-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

United States Court of Appeals

Fifth Circuit

FILED

May 21, 2014

Lyle W. Cayce

Clerk

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American Commercial Lines (“ACL”) sought a declaratory judgment that

certain vessel chartering agreements with D.R.D. Towing Company, LLC 

(“DRD”) were void ab initio. The district court dismissed the action pursuant 

to the equitable doctrine of judicial estoppel. It found that ACL’s position in 

the declaratory judgment action—that the charters were void ab initio—

clearly contradicted its earlier position in a related proceeding that the 

charters were valid, which had been accepted by the district court. ACL 

appeals from the district court’s dismissal and seeks remand with instructions 

to declare the charters void ab initio.

I

ACL is a marine transportation enterprise that operates a fleet of barges 

and tugboats. ACL contracted with DRD to operate some of its tugs, including 

the MEL OLIVER.1 This contractual relationship was created and governed by

two charter agreements. Under the “Bareboat Charter,” ACL chartered its

tugboat to DRD at the rate of $1 per day. Then, under the “Fully Found 

Charter,” DRD agreed to crew the tug and charter its services to ACL. 

In the early morning of July 23, 2008, the MEL OLIVER was pushing an 

ACL barge, loaded with fuel oil, along the Mississippi River near the City of 

New Orleans. The DRD steersman operating the tug was unlicensed, in 

violation of Coast Guard regulations. As it moved towards its destination, the 

MEL OLIVER veered off course and collided with the tanker M/V 

TINTOMARA. The force of the impact separated the tug from the barge, which 

floated downriver and sank upstream of the Crescent City Connection Bridge. 

Three hundred thousand gallons of fuel oil were discharged into the 

Mississippi. 

1 An amendment to the initial charter substituted the MEL OLIVER for the PAM D, 

the vessel originally listed in the agreement.

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Several lawsuits followed. The United States brought an action against 

ACL under the Oil Pollution Act, 33 U.S.C. § 2701, et seq. DRD pleaded guilty 

to criminal charges for its role in the collision. ACL, DRD, and entities with 

interests in the M/V TINTOMARA (“the TINTOMARA interests”) each filed 

interpleader actions to limit, or preclude, their liability arising out of the 

collision under general maritime law. These limitations actions were 

consolidated and tried together (“the limitations action”). Lastly, ACL filed the 

instant declaratory judgment action to have the charter agreements with DRD 

declared void ab initio. Relying on DRD’s admissions in its criminal guilty plea, 

ACL sought to prove that DRD entered into the charters with the intent to 

violate their terms, thereby perpetrating fraud in the inducement. 

Initially, the declaratory judgment action and the limitations action 

proceeded in parallel. The district court denied ACL’s motion for partial 

summary judgment in the declaratory judgment action, finding a dispute of 

material fact concerning DRD’s intent to deceive ACL when forming the 

charters. Then, over ACL’s objection, the district court granted two motions: it

consolidated the declaratory judgment action into the limitations action, and

it stayed the declaratory judgment action pending resolution of the limitations 

action. The stay order was entered pursuant to 28 U.S.C. § 2361, which 

permits a federal court to stay actions in state and federal courts during the 

pendency of a related interpleader. The district court’s stay order stated that

“the declaratory judgment action should be stayed pending resolution of the 

instant action.”

The limitations action was tried to the bench. Among the arguments 

offered to the court, ACL asserted that, pursuant to the valid charters, DRD 

was the owner pro hac vice of the MEL OLIVER. The district court accepted 

this argument, finding that fault for the collision lay solely with DRD, in 

personam, and with the MEL OLIVER, under DRD’s control, in rem. 

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Following judgment in the limitations action, with the parties’ consent,

the district court proceeded to try the declaratory judgment action on the bench 

trial record from the limitations action. The court then granted the United 

States permissive intervention, as its interests in the Oil Pollution Act suit

could be affected by a declaration that the charters were void ab initio.2 After 

further briefing, in which the United States urged judicial estoppel, the district 

court dismissed the declaratory judgment action with prejudice, determining 

that “ACL’s complaint seeking declaratory judgment to void the charters 

between itself and DRD is barred by judicial estoppel.” The court determined 

that it could not declare the charters void ab initio because it had “already 

accepted ACL’s argument that valid bareboat charters existed . . . .” ACL

appeals from the dismissal, and from the district court’s earlier denial of 

partial summary judgment. 

II

We review a district court’s decision to invoke judicial estoppel for abuse 

of discretion. Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir. 

2003). “A trial court abuses its discretion when it bases its decision on an 

erroneous view of the law or a clearly erroneous assessment of the evidence.” 

United States v. Caldwell, 586 F.3d 338, 341 (5th Cir. 2009).

A

Judicial estoppel is an equitable doctrine that defies “inflexible

prerequisites or an exhaustive formula.” New Hampshire v. Maine, 532 U.S. 

742, 751 (2001). The doctrine “prevents a party from asserting a position in a 

legal proceeding that is contrary to a position previously taken in the same or 

2 In seeking to void the charters, ACL’s apparent objective is to defeat the United 

States’ ability to recover from ACL under the Oil Pollution Act, believing that such recovery 

is only possible if ACL was in contractual privity with DRD.

DRD filed for bankruptcy and did not oppose ACL in the declaratory judgment action. 

Nor has DRD submitted briefing in this appeal. 

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some earlier proceeding.” Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5th 

Cir. 1996); see also New Hampshire, 532 U.S. at 749 (“The doctrine of judicial 

estoppel prevents a party from asserting a claim in a legal proceeding that is 

inconsistent with a claim taken by that party in a previous proceeding.”) 

(quoting 18 Moore’s Federal Practice § 134.30, p. 134–62 (3d ed. 2000)). One of

the doctrine’s purposes is “to prevent litigants from playing fast and loose with 

the courts.” Hall, 327 F.3d at 396. And, ultimately, judicial estoppel protects

“the integrity of the judicial process.” United States ex rel. American Bank v. 

C.I.T. Constr. Inc. of Texas, 944 F.2d 253, 258 (5th Cir. 1991). In this circuit, 

at least two requirements must be met before a party’s argument may be 

judicially estopped. Id. First, the estopped party’s position must be “clearly 

inconsistent with its previous one,” and second, “that party must have 

convinced the court to accept that previous position.” Hall, 327 F.3d at 396.3 

B

In the limitations action, ACL claimed that the charter agreements made 

DRD the owner pro hac vice of the MEL OLIVER. The validity of the charters 

is a necessary predicate to this claim. The district court adopted ACL’s position

3 ACL asserts that there are three requirements for judicial estoppel applicable in this 

case, relying on our precedent in In re Superior Crewboats, Inc., 374 F.3d 330, 335 (5th Cir. 

2004). The purported third element is that “the non-disclosure must not have been 

inadvertent.” Id. This element is not applicable in the instant case; we apply it only when the 

judicial estoppel is based on the non-disclosure of a claim in a prior bankruptcy proceeding. 

ACL has not directed us to any non-bankruptcy case that applied this factor. Superior 

Crewboats is a bankruptcy case. And, indeed, this requirement does not logically apply 

outside of the bankruptcy code’s disclosure procedures—the requirement necessarily 

presumes that a “non-disclosure” has occurred, and it is concerned with the party’s intent 

behind the non-disclosure. In New Hampshire v. Maine, the Supreme Court did indicate that 

judicial estoppel might be inappropriate “when a party’s prior position was based on 

inadvertence or mistake.” New Hampshire, 532 U.S. at 753. However, the facts of New 

Hampshire and this case are distinct. In New Hampshire, inadvertence is addressed in 

conjunction with the Court’s analysis of whether New Hampshire fully understood the 

significance of its previous position as to its border with Maine. Here, there is no question 

that ACL understood the significance of asserting that the charter agreements were, or were 

not, valid. 

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in deciding that DRD was solely liable for the collision. After lift of the stay 

order in the declaratory judgment action, ACL then asserted that the charters 

were void ab initio—that is, they never came into existence because of DRD’s 

alleged fraud in the inducement. These two positions are clearly inconsistent, 

and, moreover, the district court adopted the first position in its judgment 

resolving the limitations action. See Hall, 327 F.3d at 396.

Here, ACL argues that its two positions are not inconsistent, claiming

that, in the limitations actions, it only posited the “agreements were intended 

to be valid charters.” Simultaneously, ACL asserts that the district court’s 

actual holding in the limitations action was that “there was no act or omission 

of ACL which caused or contributed to the collision”—not that the charters 

were actually valid instruments. Under ACL’s reasoning, the district court’s 

judgment in the limitations actions established that ACL “intended” and 

“expected” that the charters would be valid, not that they were actually 

binding. Accordingly, under ACL’s view, there is no inconsistency between its

positions.

ACL’s characterizations of its previous argument and the district court’s 

holding are unavailing. In the limitations actions, ACL did not argue that the 

charters were merely “intended” to be valid. Rather, it actively opposed the 

TINTOMARA interests’ position that the charters were “crewing agreements,”

which did not render DRD owner pro hac vice of the tug. ACL asserted that 

“there is no evidence that [the charters] were anything other than what they 

purported to be, valid and customary charters.” Most significantly, throughout 

the limitations action, ACL argued the position that, pursuant to the charters, 

“DRD became owner pro hac vice” of the MEL OLIVER. This legal fiction of 

general maritime law is only tenable if the charters were in fact valid 

agreements. Accordingly, we reject ACL’s claim that its positions in the two 

actions are not inconsistent. Similarly, we reject ACL’s assertion that the 

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district court did not accept its position in the limitations action. The district 

court’s judgment establishes that it found “there was a valid bareboat charter 

that invested DRD with ownership pro hac vice along with a valid time charter 

that recognized DRD’s status as ‘owner’ vis-à-vis ACL’s charter position in the 

latter charter.” It is clear that the validity of the charters was central to the 

district court’s judgment. 

Next, ACL contends that its positions in the limitations action and the 

declaratory judgment action are not inconsistent because, in the limitations 

action, its position that the charters were valid was one of several alternative

arguments. In addition to arguing the charters were valid, ACL also asserted 

the affirmative defense that the charters were void ab initio. Under this theory 

of the case, ACL claimed that there was no agreement between ACL and DRD 

for use of the tug, which DRD possessed illegally. It is true that alternative 

arguments are widely permitted, even if they are inconsistent. See Fed. R. Civ. 

P. 8(d)(3) (“A party may state as many separate claims or defenses as it has, 

regardless of consistency.”). But, in the context of judicial estoppel, the fact 

that a party’s previous position was an alternative argument is not 

determinative. The second prong of our judicial estoppel analysis requires that 

the party “must have convinced the court to accept that previous position.” 

Hall, 327 F.3d at 396. This makes all the difference. Once a court has accepted 

and relied upon one of a party’s several alternative positions, any argument 

inconsistent with that position may be subject to judicial estoppel in 

subsequent proceedings. 

We take guidance from New Hampshire v. Maine, in which the Supreme 

Court estopped New Hampshire from making an argument about its maritime 

border with Maine that had been one of New Hampshire’s alternative 

arguments in a previous proceeding. In the previous proceeding, litigated in 

the Supreme Court during the 1970’s, “New Hampshire offered two 

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interpretations” of its border with Maine based upon language from King 

George II’s 1740 decree fixing the boundary at the “Middle of the River.” New 

Hampshire, 532 U.S. at 751–52. First, in the terms of a proposed consent 

decree, New Hampshire claimed that the “Middle of the River” was the center 

of the river’s main navigable channel. Id. at 751. Second, New Hampshire 

asserted that the charter referred to the geographic middle of the river. Id. 

Ultimately, the 1970’s dispute was resolved by the consent decree. The Court 

“accepted New Hampshire’s agreement with Maine” that the charter indicated 

the center of the navigable channel—accepting one of the State’s two 

alternative arguments. In the subsequent proceeding in 2001, the Court 

applied judicial estoppel notwithstanding the fact that New Hampshire had 

taken alternate positions in the 1970’s proceeding. The relevant focus was that 

the “record of the 1970’s dispute makes clear that this Court accepted New 

Hampshire’s [position].” Id. at 752.

Lastly, ACL asserts that there is no inconsistency because its argument 

in the limitations action, that the charters were valid, “leads to the same result

as ACL’s position” in the declaratory judgment action. Certainly, ACL might 

obtain similar results with inconsistent arguments in these two cases—

avoiding liability for the collision and liability for clean up costs. But judicial 

estoppel is not controlled by consistency of a party’s desired objectives. The 

doctrine focuses on the consistency of a party’s arguments as accepted by the 

court, and seeks to “prevent[] internal inconsistency.” Ergo Science, Inc., v. 

Martin, 73 F.3d 595, 598 (5th Cir. 1996).

C

Next, ACL contends that judicial estoppel is inapplicable because the 

district court’s order staying the declaratory judgment action prevented it from 

arguing that the charters were void ab initio. ACL asserts that “[i]t is merely 

trying to make the arguments that were stayed during the trial” of the 

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limitations action, and that it “never had the opportunity to address the other 

defense that the charters were void ab initio.” In ACL’s view, the district 

court’s stay order obliged it to argue that the charters were valid in the 

limitations action, and, accordingly, applying judicial estoppel would be 

inequitable. 

Judicial estoppel is not permitted “if it was the court, not the party, that 

instigated the first position that the party later chose to abandon.”4 In Zedner 

v. United States, 547 U.S. 489, 503 (2006), a criminal defendant signed the 

District Court’s waiver form purporting to prospectively waive his rights under 

the Speedy Trial Act to secure a continuance. In a subsequent appeal, the 

defendant argued that prospective waivers are invalid. The government 

asserted a judicial estoppel defense because “petitioner’s [prospective] express 

waiver induced the district court to grant a continuance . . . .” Id. The Court 

refused to apply judicial estoppel, in part, because, “it was the District Court 

that requested the waiver and produced the form for petitioner to sign.” Id. at 

505. In fact, the District Court’s prospective waiver form was “apparently of its 

own devising.” Id. at 494. Thus, the Court found that the “[p]etitioner did not 

succeed in persuading the District Court to accept the proposition that 

prospective waivers of the Speedy Trial Act are valid,” the position later 

contradicted. Id. at 505 (alterations and internal quotations omitted). Zedner

establishes that judicial estoppel is inapplicable when the court requires the 

party to adopt the position it later seeks to contradict.

Here, the district court’s stay order did not require ACL to adopt the 

position that the charters were valid. Unlike the waiver form in Zedner, which 

4 18B CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE & PROCEDURE,

JURISDICTION § 4477 (2d ed. 2014).

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articulated a particular position, the instant stay order only delayed resolution 

of the declaratory judgment action until the limitations actions concluded. 

The stay issued pursuant to 28 U.S.C. § 2361, which permits a federal 

court to stay pending actions when exercising jurisdiction over an interpleader 

action. The statute provides that “a district court may issue its process for all 

claimants and enter its order restraining them from instituting or prosecuting 

any proceeding in any State or United States court affecting the property, 

instrument or obligation involved in the interpleader action until further order 

of the court.” 28 U.S.C. § 2361 (emphasis added). This statute only permits a 

court to restrain “a proceeding”, it provides no authority to control the course 

of other proceedings, or to require a party to take certain positions in other 

proceedings.5 Under this authority, the district court’s stay order provided 

simply that “the declaratory judgment action should be stayed pending 

resolution of the instant action.” Nothing in the text of this order restricts the 

scope of ACL’s potential arguments in the limitations action. While the order 

stayed the declaratory judgment action, in which ACL sought to have the 

charters declared void ab initio, it did not prevent that argument from being 

raised in the limitations action, nor did it compel the argument that the 

charters were valid. 

In addition to the limited statutory authority and the particular 

language of the district court’s stay order, ACL’s claim that the stay prevented 

5 Similarly, FED. R. CIV. P. SUPP. R. F(3), which addresses limitation of liability in 

admiralty and maritime claims, such as the instant case, supports this understanding of the 

statute’s scope. The rule provides that, “[o]n application of the plaintiff the court shall enjoin 

the further prosecution of any action or proceeding against the plaintiff or the plaintiff’s 

property with respect to any claim subject to limitation in the action” (emphasis added). Like

§ 2361, Supplemental Rule F(3) only empowers a court to enjoin the prosecution of other 

actions. The rule does not permit a court to foreclose particular arguments in cases not 

subject to the stay.

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it from arguing the charters were void ab initio in the limitations action is 

belied by the fact that it did make that argument. In the limitations action, one 

of ACL’s alternative positions, “was that the Bareboat and Fully Found 

Charters and the amendment were void ab initio and DRD was illegally in 

possession of the MEL OLIVER at the time of the collision.” Under this theory, 

ACL alleged that it was not liable for the collision because it had no connection 

to the tug at the time of the accident—DRD was the true possessor, though 

unlawfully. In short, ACL was able to take this position in the limitations 

action. The declaratory judgment stay order did not foreclose this position, or 

require the argument that the charters were valid. 

Rather, it appears that ACL chose to assert that the charters were valid

in the limitations action. This is not the same as a district court requiring a 

party to take a specific position, as in Zedner. In complex litigation such as 

this, litigants must routinely make strategic choices and weigh for themselves 

the consequences of each option. While the stay order put ACL to a choice, it 

neither forced ACL to argue that the charters were valid, nor prevented it from 

arguing that the charters were void ab initio. Accordingly, the district court 

did not require ACL to adopt the position it later sought to contradict, and it is 

not inequitable to apply judicial estoppel. 

III

For the foregoing reasons, we hold that the district court did not abuse 

its discretion in dismissing the declaratory judgment action on grounds of 

judicial estoppel. 

AFFIRMED.

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