United States Court of Appeals

for the Fifth Circuit

No. 21-60796

In re: In the Matter of OHT Hawk AS, Songa 

Shipmanagement LTD., Songa Crewmanagement LTD. 

and OHT Management AS, as owner of the M/V Hawk 

petitioning for Exoneration from or limitation of 

liability 

OHT Hawk AS; OHT Management AS, 

Petitioners—Appellees,

versus

Offshore Heavy Transport AS; Songa Shipmanagement 

Limited; M/V Hawk, her engines, tackle, apparel, 

furniture, etc. in rem, 

Defendants—Appellees,

versus

Luis Cruz, 

Claimant—Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:19-CV-236

USDC No. 1:19-CV-671

United States Court of Appeals

Fifth Circuit

FILED

May 11, 2022

Lyle W. Cayce

Clerk

Case: 21-60796 Document: 00516314809 Page: 1 Date Filed: 05/11/2022
No. 21-60796

2

Before Higginbotham, Dennis, and Graves, Circuit Judges.

Per Curiam:*

On March 29, 2019, the M/V Hawk (the “Hawk”), a semisubmersible heavy lift vessel, was transporting a dry dock in the Huntington 

Ingalls Incorporated shipyard in Pascagoula, Mississippi when it allided with 

a barge and a Navy destroyer under construction. The Hawk’s owners filed 

a Complaint in Limitation. See 46 U.S.C. § 30511. Pursuant to Rule F(4) of 

the Federal Rules of Civil Procedure Supplemental Rules for Admiralty or 

Maritime Claims, the district court ordered all persons with claims arising 

from the allision file within thirty days. A number of parties—including the 

shipyard, the United States, and various insurers—did so, and for months 

the district court managed the multiple claims vying for the Hawk’s limited 

fund. On May 6, 2021, roughly seventeen months past the court’s filing 

deadline, Luis Cruz, a pipe insulator who had been aboard the Hawk at the 

time of the allision, sought leave to file a claim. The district court denied 

leave, citing the mature state of the litigation. Cruz appealed.

Finding no abuse of discretion in denying leave, we AFFIRM the 

district court.

I.

The Limitation of Liability Act, 46 U.S.C. § 30501 et seq., allows a 

vessel owner to limit his liability for certain civil claims related to an incident 

that occurred during a voyage to the value of the vessel. The Act also allows 

the owner to channel all claims against him into a single federal proceeding

by prohibiting any other actions related to the voyage outside of the limitation 

proceeding. 46 U.S.C. § 30511(c). Once an owner initiates a limitation 

proceeding, Supplemental Rule F(4) requires that all claims against the 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 21-60796 Document: 00516314809 Page: 2 Date Filed: 05/11/2022
3

owner be filed within thirty days. The court must provide notice of the 

limitation proceeding, as well as the claim deadline, by publication in a 

newspaper for four weeks prior to the claim deadline. Fed. R. Civ. P. 

Supp. F(4). Additionally, the owner must mail notice to anyone known to 

have asserted a claim against him before he initiated the limitation 

proceeding. Id. Claims must be filed before the date specified in the notice;

however “[f]or cause shown,” the court can enlarge the time in which a claim 

must be filed. Id.

The relatively short filing period and the lack of formal process means 

that persons with claims must be both vigilant and diligent. To “ameliorat[e] 

some of the rigors of this result,” our court adopted a liberal stance towards 

filing late claims, embodied in the principle that “‘so long as the limitation 

proceeding is pending and undetermined, and the rights of the parties are not 

adversely affected, the court will freely grant permission to file late claims’ 

upon a showing of the reasons therefor.” Texas Gulf Sulphur Co. v. Blue Stack 

Towing Co., 313 F.2d 359, 363; 362 (5th Cir. 1963) (quoting Benedict on

Admiralty, Vol. 3, § 518 (Knauth ed. 1940)). “Thus a district court ruling 

on a motion to file a late claim, should consider (1) whether the proceeding is 

pending and undetermined, (2) whether granting the motion will adversely 

affect the rights of the parties, and (3) the claimant’s reasons for filing late.”

Golnoy Barge Co. v. M/T SHINOUSSA, 980 F.2d 349, 351 (5th Cir. 1993).

We review a district court’s consideration of these factors for abuse of 

discretion. Id. Under this deferential standard of review, “[t]he instances in 

which we can declare that the action is so lacking in reason as to constitute 

an abuse of discretion will be, as they have been, rare indeed.” Texas Gulf, 

313 F.2d at 363.

Case: 21-60796 Document: 00516314809 Page: 3 Date Filed: 05/11/2022
4

II.

The district court denied Cruz’s motion for leave to file his claim, 

finding: (1) that the limitation proceeding was “partially determined” 

because a claim against the Hawk had been settled; (2) that allowing Cruz’s 

late claim would prejudice the parties by causing delay, increasing litigation 

expenses, and threatening the adequacy of the limited fund; and (3) that 

Cruz’s reason for missing the deadline—that he resided in New Orleans, but 

notice was published in a Mississippi newspaper—was not good cause to 

excuse his untimeliness. Under our precedent, we cannot say that any of 

these conclusions amounts to an abuse of discretion.

First, the district court did not abuse its discretion in determining that 

the limitation proceeding was partially determined when Cruz filed his 

motion. Although we have not defined the term, we have held, at least in an 

unpublished decision, that a proceeding is partially determined when the 

petitioner has settled a claim and is in settlement negotiations over the others. 

In re Trace Marine Inc., 114 F. App’x 124, 127 (5th Cir. 2004).1 Additionally, 

district courts within our circuit consider factors like the nearness of a trial 

1 As Trace Marine discusses, settling a single claim or a single category of claims

can be said to “partially determine” a limitation proceeding because the limitation 

petitioner relies on the strength and number of pending claims against him when 

formulating his settlement price. See 114 F. App’x at 127. When the parties thus settle a 

personal injury claim, or all personal injury claims, they do so with the understanding that 

the settlement will achieve a certain degree of resolution of the entire proceeding. 

Accordingly, a limitation petitioner may be willing to settle a certain claim at a higher price 

if it will buy him immediate resolution and thus reduce his overall litigation costs. On the 

other hand, if he is facing a number of similar claims—say, personal injury claims from the

entire crew—then he may be disinclined to settle at a high price without first seeking a 

judicial determination on liability. To borrow a phrase, settlements are negotiated “in the 

shadow of the law,” more specifically here, in the shadow of the claims pending against the 

petitioner and the limited fund from which the claimants could recover. Thus settling a 

single claim can have consequences for, “partially determine,” the broader proceeding.

Case: 21-60796 Document: 00516314809 Page: 4 Date Filed: 05/11/2022
5

date, the amount of discovery completed, and the passage of other material 

pretrial deadlines in assessing whether a limitation proceeding is partially 

determined. See Plaquemine Point Shipyard, LLC v. Kirby Inland Marine, LP, 

472 F. Supp. 3d 313, 315–16 (E.D. La. 2020) (collecting cases). Cruz filed his 

motion for leave on May 6, 2021, seventeen months after the filing deadline

of November 20, 2019 mandated by Supplemental Rule F(4). In those 

months, the parties to the limitation proceeding stipulated to liability, as well 

as to the value of the fund from which all claimants could recover. The only

other personal injury claim in the proceeding settled. The parties exchanged 

expert disclosures and other discovery. In fact, when Cruz filed his motion,

discovery was less than a month from closing. Given the advanced stage of 

the litigation, we find no abuse of discretion in the district court’s conclusion 

that the proceedings were partially determined. Indeed, only a few months 

after Cruz filed his motion, all claims against the Hawk settled and the case 

resolved.

For many of the same reasons, we find no abuse of discretion in the 

district court’s conclusion that granting Cruz leave to file belatedly would 

prejudice the parties to the limitation proceeding, that is, both the Hawk and 

the claimants. The court found that adding Cruz’s claims would adversely 

affect the parties because the proceeding was near completion. Though the 

district court did not say so specifically in its order, “we can safely presume 

that the trial judge knew” that the discovery deadline was less than a month 

away when Cruz filed and would likely need to be continued if Cruz’s claim 

were permitted. Trace Marine, 114 F. App’x at 127. Thus, Cruz’s late filing 

would have likely added delay and increased the litigation costs for all parties 

to the proceeding. This conclusion was within the district court’s discretion 

to make.

Finally, we do not find any abuse of discretion in the district court’s 

determination that Cruz failed to demonstrate good cause for his failure to 

Case: 21-60796 Document: 00516314809 Page: 5 Date Filed: 05/11/2022
6

timely file his claim. Cruz’s reason for missing the deadline is that he did not 

receive actual notice of the limitation proceeding because he lived in New 

Orleans and the notice was published in the Sun Herald, a local newspaper in 

Harrison County, Mississippi, where the allision occurred. Other circuits 

have found that when a late claimant did not receive actual notice of a 

limitation proceeding because notice was published in “a place remote from 

the residence of potential claimants,” that is a sufficient ground to excuse the 

late filing of claims. See Sagastume v. Lampsis Nav. Ltd., Drosia, 579 F.2d 222, 

224 (2d Cir. 1978) (claimants lived in a small village in Honduras and notice 

was published in a New York newspaper); Jappinen v. Canada S.S. Lines, 

Ltd., 417 F.2d 189, 190 (6th Cir. 1969) (claimants lived in a small town in 

Minnesota and notice was published in Cleveland and Port Huron, 

Michigan). In those cases, notice was published in a different country, or 

several states away from where the late claimants lived. Here, notice was 

published in a newspaper serving a county just over seventy miles from New 

Orleans where Cruz lived. These facts are closer to those in Lloyd’s Leasing 

Ltd. v. Bates, 902 F.2d 368, 369 (5th Cir. 1990), where we found no abuse of 

discretion when notice was published in the Galveston Daily News and the late 

claimants lived in Port Arthur and around Sabine Pass. There, like here, the 

distance between the late-claimant and the coverage area of the publication 

was less than one-hundred miles and—more relevant to the question of 

“remoteness”—the two were in adjacent metropolitan regions. We see no 

abuse of discretion in the district court’s analysis of this factor.

* * *

For the foregoing reasons, the district court order denying Cruz leave 

to file a late claim is AFFIRMED.

Case: 21-60796 Document: 00516314809 Page: 6 Date Filed: 05/11/2022