* Pursuant to 5TH CIR. R. 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 CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 21, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20540

Summary Calendar

ATWOOD OCEANICS INC

Plaintiff–Appellee

v.

ZUST BACHMEIER OF SWITZERLAND INC

Defendant–Appellant

Appeal from the United States District Court

for the Southern District of Texas

4:04-CV-4028

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Zust Bachmeier of Switzerland, Inc. (Zust) appeals the district court’s

denial of its summary judgment motion. We affirm.

Atwood Oceanics, Inc. (Atwood) contracted with Zust in 2002 to be the

packer and freight forwarder of an Atwood Beacon Drillers Control Module

(DCM), which Atwood was shipping from the Port of Houston, Texas to the

Republic of Singapore. The vessel bearing the DCM left Houston on October 28,
No. 06-20540

1 The district court granted and denied various other motions for summary judgment

filed by the parties in this case, but only the district court’s May 2, 2006 order denying Zust’s

March 28, 2006 conditional motion from summary judgment is before us on this interlocutory

appeal. 

2 TEX. CIV. PRAC. & REM. CODE § 16.071(a).

3 Citizens’ Guar. State Bank v. Nat’l Surety Co., 258 S.W. 468, 469 (Tex. Comm’n App.

1924, judgm’t adopted) (analyzing TEX. REV. CIV. STAT. ANN. 5714, a predecessor to

section 16.071).

2

2002 and arrived in Singapore on December 15, 2002. Upon inspection, it was

allegedly discovered that the boards covering the DCM’s HVAC openings were

broken and freshwater was in the cabin, causing $300,000 in damage. On

October 19, 2004, Atwood sued Zust on contract and tort theories to recover for

the damage to the DCM. Zust filed a conditional motion for summary judgment

on March 28, 2006, which the district court denied on May 2, 2006. Upon Zust’s

motion, the district court amended its order to comply with 28 U.S.C. § 1292(b)

to allow for the interlocutory appeal now before this court.1

Zust challenges the district court’s determination thatthe notice provision

contained in the Terms and Conditions that governed the contractual

relationship between Zust and Atwood is void as a matter of law because it

violates section 16.071(a) of the Texas Civil Practice & Remedies Code.

Section 16.071(a) states:

A contract stipulation that requires a claimant to give

notice of a claim for damages as a condition precedent

to the right to sue on the contract is not valid unless the

stipulation is reasonable. A stipulation that requires

notification within less than 90 days is void.2

Under Texas law, this statute “must be construed liberally in favor of the

common right of redress and strictly against contractual infringements of that

right . . . .”3
No. 06-20540

4 See id. (“[A] stipulation for notice ‘within 90 days’ is ‘a less period than 90 days’ within

[article 5714's] prohibition.”); Taber v. W. Union Tel. Co., 137 S.W. 106, 108 (Tex. 1911) (“The

provision in the contract requiring that notice shall be given within 90 days after the filing of

the message we construe to mean that such notice shall be given before the expiration of 90

days after the filing of the message, and hence is void [under article 3379, a predecessor to

section 16.071].”); Ridglea Estate Condo. Assoc. v. Lexington Ins. Co., 415 F.3d 474, 478 (5th

Cir. 2005) (stating in dicta that “[s]ection 16.071 provides that stipulations requiring notice of

‘claims of damages’ within 90 days are unenforceable”). Cf. Lehtonen v. Clarke, 784 S.W.2d

945, 948 (Tex. App.–Houston [14th Dist.] 1990, writ denied) (holding that interrogatories

requiring answers “within 30 days” did not meet Texas Rule of Civil Procedure 168(4), which

provides that the time allowed “shall not be less than thirty days”).

3

The contract in this case provides:

9. Presenting Claims: The Company shall not be liable

for any claims of any kind (whether direct or for

contribution or indemnity) not presented to itin writing

within 90 days of either the date of loss or incident

giving rise to the claim.

The parties do not dispute that Atwood failed to present its claim to Zust within

90 days, but the district court determined that this provision was void as a

matter of public policy because it violated section 16.071(a). We agree. This

provision requiring notice of a claim “within 90 days” is “[a] stipulation that

requires notification within less than 90 days” that is void under section

16.071(a).4

Zust argues that Texas Rule of Civil Procedure 4 and Federal Rule of Civil

Procedure 6(a), which state that the day of the event is not included in the

computation of a period oftime prescribed in a procedural rule, somehow extend

the notice requirement of the contractual provision beyond 90 days. But Zust

cites no authority supporting its contention that a rule of procedure explaining

how a court should compute a period of time contained in a procedural rule can

influence the timing of a contractual provision that does not incorporate the

Rules of Civil Procedure. This argument is therefore without merit. 

AFFIRMED.