1

United States Court of Appeals,

Fifth Circuit.

No. 95-20125.

In re in the Matter of the Complaint OF TOM-MAC, INC., as Owner

of the M/V Marcon I, Official No. :524371, For Exoneration from or

Limitation of Liability.

TOM-MAC, INC., Plaintiff-Appellee,

v.

Rosa BIELA, et al., Claimants-Appellants,

and

Julitta Jo Phillips, Movant-Appellant.

March 5, 1996.

Appeal from the United States District Court for the Southern

District of Texas.

Before GARWOOD, SMITH and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Claimants-appellants Rosa Biela, Julitta Jo Phillips, Luann

Yates, and Bobby Yates (Claimants), and claimants-appellants City

of Port Aransas, Urban Engineering, and James L. Urban (City

Appellants), appeal the district court's grant of summary judgment

in favor of plaintiff-appellee Tom-Mac, Inc. (Tom-Mac). We reverse

and remand to the district court with direction to dismiss TomMac's petition under the Limitation of Shipowner's Liability Act,

46 U.S.C.App. §§ 183, et seq. (Limitation Act).

Facts and Proceedings Below

On September 4, 1992, David Biela and Claude Phillips were

employed by Tom-Mac as a laborer and pile driver, respectively.

They were working on the replacement of damaged pilings supporting
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a pier owned by the City of Port Aransas, Texas, when the boom of

a seventy-five-ton capacity crawler crane collapsed and killed both

men.

At the time of this accident, the crane was located on a barge

designated as the JR 121 (barge). This barge is a standard deck

barge, 110 feet by 40 feet, with spuds. A spud is an attachment on

the side of the barge through which a large, retractable pole may

be inserted and driven into the seabed. The barge had been so

"anchored" for at least a day when the accident occurred. In their

reply to Tom-Mac's motion for summary judgment, the Claimants gave

the following description of the barge, its designed use, and its

function:

"As a standard deck barge, [it] is designed and used for

transportation of material and equipment along the inland

waterways of the Gulf Coast. The barge has the attributes of

a vessel—it has a raked bow, navigational lights, lifesaving

equipment, pumps, and depth markings on its side. The lights

on the barge, as well as the lifesaving and safety equipment,

are those required by the Coast Guard. The lights are

portable, which is normally the case with barges. It is the

opinion of Michael Lawson, a ship's captain with over 25 years

experience, and the opinion of the Captain of the Coast Guard

push boat Clamp, that the JR121 is a vessel.

... The JR121 was used for transportation purposes—moving men,

equipment, material, and supplies. At job sites in remote

locations or where there were no loading facilities, the JR121

was used to transport all equipment, supplies, even men, to

the job site.

An example is the job in Port Aransas. There were no

loading and unloading facilities at the job site in Port

Aransas. The nearest facilities were in Aransas Pass, about

five miles away. "Everything needed for the job' in Port

Aransas was loaded on the JR121 in Aransas Pass and hauled to

Port Aransas.

... The JR121 was also used to transport pilings and material

during the Port Aransas job. About two weeks into the job,

old pilings were put on the barge and transported from Port
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Aransas back to Aransas Pass. When the barge arrived in

Aransas Pass, it was loaded with more pilings needed for the

Port Aransas job, and this material was taken back by the

barge to the job in Port Aransas.... In his affidavit in

support of the Motion for Summary Judgment, [president of TomMac, Thomas] McMillian said that the barge was moved "short

distances' during the job. At his subsequent deposition,

McMillian testified that the "short distances' in his

affidavit meant five miles." (emphasis added).

At the time of the Port Aransas project, the barge had on

board, in addition to the crane, an air compressor, a welding

machine, a diesel pile driving hammer, and a tool room. The barge

did not have a bathroom nor quarters for the crew.

In its motion for summary judgment, Tom-Mac's characterization

of the barge differed in at least two critical respects from the

Claimants' description, above:

"It was used primarily as a work platform.... As such, the

platform was not designed for transportation of passengers,

cargo or equipment from place to place across navigable

waters.

The barge served as a platform for the pulling and pile

driving activities required by the contract. It did not

perform any other function except a temporary storage facility

for tools and material." (emphasis added).

In making its summary judgment proof, Tom-Mac also made a

substantially different, although not incompatible, presentation of

several of the facts set forward by the Claimants regarding the

barge. "None of the TOM-MAC, INC. employees would travel from one

job to another aboard the barge. The platform did not have any

permanent navigational lights, or conventional navigation

equipment. It did not have lifeboats or life rafts." (Emphasis

added).

In order to move the barge during and between construction
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projects, it was necessary to attach the barge to a contract barge

or tug. At the time of the accident, the barge was attached to a

tug designated as the Marcon 1 (tug). This tug was a small coastal

pushboat operated by a single captain. Both the tug and the barge

were under the common command of the Tom-Mac foreman of the Port

Aransas project. Also, Tom-Mac bareboat chartered both the barge

and the tug from the same individual. Under the charter, Tom-Mac

was to provide all maintenance and repairs to the tug and the

barge, as well as secure insurance coverage for both. Tom-Mac

further contracted to indemnify the owner for any losses or

liability caused by Tom-Mac. Tom-Mac chartered the tug in

September 1991 and the barge in October of the same year.

Beginning in October 1991, Tom-Mac used the barge for jobs

along the Texas Gulf Coast, including Texas City, Matagorda, Sims

Bayou, Channelview, Corpus Christi, and Port Aransas. And, with

the exception of a project in the Houston area, the barge and tug

were used in combination on every job. The barge had no means of

self-propulsion, and was therefore moved from one job to another by

a contract barge. Once the barge was relocated to a new project,

the tug would be employed to move the barge around as needed to

facilitate the work. In describing the integrated use of the barge

and tug during the Port Aransas project, Tom-Mac asserted the

following:

"Once the barge arrived at the project, [the tug] was used to

move the structure short distances to facilitate the

construction project.

The Port Aransas "T" head project required the work

platform to be moved from time to time by the [tug]. During
 

1This statement arguably contradicts the Claimants' account,

supra, of Tom-Mac's use of the barge, two weeks into the project,

to transport supplies between Port Aransas and Aransas Pass. 

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the work of removing old pilings and installing new ones, the

barge would not be moved any more than fifty feet at a given

time." (Emphasis added).1

Turning to the relationship between the decedents and the tug

and barge, Tom-Mac asserted in its motion for summary judgment

that,

"Neither Phillips nor Biela were permanently assigned to a

fleet of vessels; nor was either man permanently assigned to

the tug known as the MARCON I. Rather, both men would be

assigned to a project on an as-needed basis.... Neither

Phillips nor Biela performed work which contributed to the

function of the MARCON I, nor did they perform any of their

duties on board the tug."

In response, Claimants presented a picture that, while not directly

refuting Tom-Mac's recitation, certainly created a vastly different

overall impression of this relationship between the decedents and

the barge and tug:

"Tom-Mac controls a fleet of vessels—seven combinations of

tugs and barges along the Texas Gulf Coast. When Tom-Mac gets

a job, it uses the closest barge-tug combination for the job.

When a crew is assigned to a particular job requiring a

barge-tug combination, as in the Port Aransas job, the crew is

assigned "to work on the barge-tug combination'. Claude

Phillips and David Biela were part of the crew assigned to the

Port Aransas job."

Both parties agree that all of the work on the Port Aransas job was

performed "on the water," and not on shore.

On October 4, 1992, Rosa Biela, decedent David Biela's mother,

filed an action against Tom-Mac under the Jones Act in the 94th

District Court of Nueces County, Texas. On October 23, 1992, TomMac filed an answer to this claim, pleading the Limitation Act as
 

2This amended petition also alleged that Tom-Mac was the

"owner and operator of a fleet of vessels" of which (at least

inferentially) the tug and barge were a part, that the tug was

used to move the barge to and at the work site, and that Tom-Mac

was guilty of negligence proximately causing the death of

decedents by, among other things, "failing to maintain the barge

and its appurtenances in a seaworthy conditions [sic] and

reasonable state of repair" and "failing to provide its employees

working on the unguarded decks of the barge with a U.S. Coast

Guard-approved work vest or buoyant vest." 

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a defense.

On November 23, 1992, Julitta Phillips, decedent Claude

Phillips' wife, filed her own action against Tom-Mac in the 94th

District Court. On December 9, 1992, Tom-Mac filed its answer to

this lawsuit, again pleading the Limitation Act.

Then, on April 6, 1993, Rosa Biela non-suited her action and

filed a plea in intervention in Julitta Phillips' action. The next

day, Tom-Mac filed an answer to this plea, again pleading the

Limitation Act as a defense.

On March 10, 1994, Rosa Biela and Julitta Phillips amended

their petition to allege that the decedents had been employees of

Tom-Mac and "members of the crew of the [tug]."2 In her original

petition, Phillips had alleged in this respect only that, on the

occasion in question, "Tom-Mac was the owner and operator of a

fleet of vessels used in furtherance of its business", and that, at

the time of the incident, Claude Phillips was a Tom-Mac employee

and a "member of the crew of the barge JR121," a barge which was

allegedly unseaworthy.

On June 20, 1994, Tom-Mac filed its petition in the district

court below, seeking protection under the Limitation Act for the
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tug. Tom-Mac stated in its petition that "not more than six months

have elapsed since Tom-Mac, Inc. received written notice of claim

alleging that the Plaintiffs were members of the crew of the

[tug]."

The City Appellants then joined the action in order to contest

Tom-Mac's limitation of liability claim and to assert claims for

contribution and indemnity against Tom-Mac.

Claimants filed a motion to dismiss Tom-Mac's limitation of

liability action, and the district court took this motion under

advisement on September 19, 1994. In support of this motion,

Claimants (1) alleged that Tom-Mac's petition was untimely, and (2)

asserted their willingness to stipulate that the tug alone was not

at fault and that Tom-Mac should therefore not be allowed to limit

its liability to a vessel that was not solely at fault.

On September 29, 1994, Tom-Mac filed a motion for summary

judgment in the district court, alleging that the barge was not a

vessel under the Jones Act as a matter of law. The Claimants filed

a reply on October 19, 1994. Without ruling on Claimants' motion

to dismiss, the district court granted Tom-Mac's motion for summary

judgment and dismissed the appellants' claims on November 21, 1994.

The Claimants then filed a motion to reconsider with the district

court, which was summarily denied on February 8, 1995.

The Claimants and City Appellants now appeal the district

court's grant of summary judgment.

Discussion

Jurisdictional questions are questions of law, and thus
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reviewable de novo by this Court. In re Moody, 41 F.3d 1024, 1026

(5th Cir.1995). The fact that this is an admiralty case does not

change the standard. E.A.S.T., Inc. of Stamford, Conn. v. M/V

Alaia, 876 F.2d 1168, 1171 (5th Cir.), reh'g denied, 881 F.2d 1071

(1989). Mixed questions of fact and law are also reviewable de

novo. Walker v. Braus, 995 F.2d 77, 80 (5th Cir.1993). If the

district court resolves any factual disputes in making its

jurisdictional findings, the facts expressly or impliedly found by

the district court are accepted on appeal unless the findings are

clearly erroneous. Williamson v. Tucker, 645 F.2d 404, 413 (5th

Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212

(1981).

In their motion to dismiss, Claimants asserted that Tom-Mac's

limitation of liability action was not timely filed, thus

challenging the district court's jurisdiction to hear Tom-Mac's

petition. In pertinent part, the Limitation Act provides that:

"The liability of the owner of any vessel, whether American or

foreign ... for any act, matter, or thing, loss, damage ...

shall not ... exceed the amount or value of the interest of

such owner in such vessel, and her freight then pending." 46

U.S.C.App. § 183(a).

Specifically at issue is the six month window within which vessel

owners seeking such limitation of liability must petition the

district court for relief:

"The vessel owner, within six months after a claimant shall

have given to or filed with such owner written notice of

claim, may petition a district court of the United States of

competent jurisdiction for limitation of liability within the

provisions of this chapter ..." 46 U.S.C.App. § 185.

In the present case, Tom-Mac petitioned the district court for
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limitation of liability on June 20, 1994. In its petition, Tom-Mac

asserted that "not more than six months have elapsed since [it]

received written notice of claim alleging that the Plaintiffs were

members of the crew of the [tug]." It is undisputed that Claimants

did not expressly allege that decedents were members of the tug

crew until March 10, 1994, when Claimants amended their claim under

the Jones Act in state court. Claimants did, however, bring

actions against Tom-Mac in Texas state court in October and

November of 1992, to which Tom-Mac promptly responded. The state

court action brought by Julitta Phillips in November of 1992, in

which Rosa Biela intervened in April 1993, identified Tom-Mac as

being on the occasion in question the owner and operator of a fleet

of vessels, among which was the allegedly unseaworthy barge where

the accident occurred.

Tom-Mac's contention that its June 20, 1994 petition was

timely filed in the district court is grounded on the principle

that written notice of a claim sufficient to begin the interval is

one which reveals a "reasonable possibility" that the claim made is

one subject to limitation. Complaint of Morania Barge No. 190,

Inc., 690 F.2d 32, 34 (2nd Cir.1982). Based on this, Tom-Mac

maintains that, while Claimants' March 10, 1994 amended complaint

sufficed to give Tom-Mac "written notice" under Morania Barge,

nevertheless Julitta Phillips' (Phillips) complaint of November 23,

1992—in which Rosa Biela intervened—revealed no "reasonable

possibility" that the claim fell within the Limitation Act because

there was no "reasonable possibility" that the barge was a "vessel"
 

3The issue regarding claimants' attempted stipulation—that

the tug was not alone at fault—turns on the more comprehensive

question of whether or not Phillips' state court petition of

November 23, 1992, raised a "reasonable possibility" that the

Limitation Act was implicated as to both the barge and the tug. 

 

4In Matter of Sedco, Inc., 543 F.Supp. 561 (S.D.Tex.1982),

partially vacated on other grounds, 610 F.Supp. 306

(S.D.Tex.1984), the court enumerated the following criteria for

determining whether a craft is a "vessel" under the Limitation

Act:

"First, the craft must be built with the intent that it

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under the Limitation Act.3

We find that the November 1992 state court complaint clearly

raised a "reasonable possibility" that the Limitation Act was

implicated as to the barge. First, the damages alleged by Phillips

in her 1992 complaint far exceeded the value of Tom-Mac's interest

in the barge and tug. Second, Phillips' 1992 complaint expressly

put Tom-Mac on notice that: (1) it was being sued as a result of

the accident that occurred on September 4, 1992, in the course of

its operations at the Port Aransas pier and in which two of its

employees were killed in the course of their employment; and (2)

a "fleet of [Tom-Mac's] vessels" was allegedly involved in this

accident. Third, Tom-Mac maintains that these allegations failed

to provide it with the requisite notice that there existed a

"reasonable possibility" that the Limitation Act was implicated by

the 1992 state court petitions because the barge was not a "vessel"

under the Limitations Act. However, considering the actual uses

and physical characteristics of this barge, we find that there was

clearly a "reasonable possibility" that the barge was a "vessel"

under the Act.4 Finally, it appears that Tom-Mac must have
be used in navigation as a means of transportation. 

Second, the contrivance must not be permanently

attached to the shore or seabed. Finally, the craft

must be subject to the perils of the sea." Id. at 571.

In Matter of Talbott Big Foot, Inc., 854 F.2d 758, 760 (5th

Cir.1988), this Court affirmed that Matter of Sedco set out

the test for determining whether a craft is a "vessel" under

the Act. Considering the undisputed evidence that the barge

had a raked bow, navigational lights, lifesaving equipment,

pumps, and depth markings on its side, as well as the

uncontroverted proof that the barge was generally used by

Tom-Mac for transportation and was used on at least one

occasion during the Port Aransas job to transport rubble

back to Aransas Pass and pick up supplies for the project,

it is evident that there existed a "reasonable possibility"

that the barge was a "vessel" under the Limitation Act. 

 

5In Vatican Shrimp Co., Inc. v. Solis, 820 F.2d 674 (5th

Cir.), cert. denied, 484 U.S. 953, 108 S.Ct. 345, 98 L.Ed.2d 371

(1987), this Court observed that:

"[The Fifth Circuit] has not previously addressed the

first question that Vatican Shrimp raises; that is,

under what circumstances does a federal court have

jurisdiction to adjudicate a contested claim for

limitation of liability when the shipowner has pled

limitation defensively in a properly filed state court

answer." Id. at 676-677.

Vatican Shrimp involved an injured seaman who filed a Jones

Act claim in Texas state court. In its state court answer,

Vatican Shrimp raised the defense of limitation of

liability. This Court concluded that:

"There is no question that Vatican Shrimp failed to

comply with the six-month time limit. Its defensive

pleading of limitation in the state court answer did

not toll the six-month filing period under section 185; 

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resolved this question differently in late 1992, as it is

undisputed that Tom-Mac pled the Limitation Act as a defense to:

(1) Rosa Biela's (subsequently non-suited) Jones Act claim of

October 4, 1992; (2) Julitta Phillips' Jones Act claim of November

23, 1992; and (3) Rosa Biela's April 6, 1993, plea in

intervention.5
nor did the state court answer provide the federal

court with jurisdiction to hear the limitation claim." 

Id. at 679. 

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 We conclude that—based on the undisputed facts presented in

this case—the Claimants' 1992 state court petitions gave Tom-Mac

notice of a "reasonable possibility" that a claim subject to the

Limitation Act had also been made against the tug; therefore, TomMac's petition of June 20, 1994 to limit its liability was likewise

untimely as to the tug.

While it does appear that the Claimants' state court petitions

failed to expressly allege that the decedents had been "members of

the crew" of the tug until they amended their joint petition in

March 1994, the facts of this case nevertheless demonstrate that

Tom-Mac had sufficient notice that the Claimants' allegations

implicated the tug to "trigger" the Limitation Act's six-month

statutory time bar in November of 1992. First, Phillips' petition

of November 23, 1992—in which Rosa Biela intervened in April of

1993—alleged, among other things, that Tom-Mac was the owner and

operator of a fleet of vessels, including the barge, that on the

occasion in question were in operation in furtherance of Tom-Mac's

business at the time of the accident. Second—turning to the

undisputed summary judgment evidence—both the tug and the barge

were under the common command of the Tom-Mac foreman of the Port

Aransas project. Third, both the tug and the barge had been

bareboat chartered by Tom-Mac from the same owner under the same

basic terms. Finally, at the time of the accident, the tug and

barge were "hooked-up" so as to facilitate any movement of the
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barge that might be necessary at the job site.

Where vessels are owned by the same person, engaged in a

common enterprise, and under a single command, this Court has

applied 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. Cenac Towing Co., Inc. v. Terra Resources,

Inc., 734 F.2d 251, 254 (5th Cir.1984). This Court has recognized

that, "A tug and her barge in tow were treated [for purposes of the

flotilla doctrine] as a single vessel, because owned in common and

engaged in a common enterprise ..." Id. at n. 4 (emphasis in

original). Under the Limitation Act, where there is a "complete

transfer of possession, command, and navigation" of a vessel from

an owner to a "charterer," the charterer is deemed to be an owner

of the vessel. Id. at n. 3.

Consequently, as the Claimants' 1992 state court petitions

served to give Tom-Mac notice that the barge and tug were both

implicated, there is no merit to Tom-Mac's suggestion that the

Claimants' amended petition of March 10, 1994, constituted a new or

separate claim, sufficient to "restart" the six-month window for

filing under the Limitation Act. It is clear that the Claimants'

1994 amended petition was based upon the same accident, and had the

same parties, seeking the same damages from Tom-Mac (as the same

decedents' employer) for the same injury, as the original 1992

petitions. It appears that the Claimants' purpose in filing the

amended petition was simply to expressly clarify that their seaman
 

6We do not decide whether we would apply Esta Later Charters

to claims by different persons for different injuries, as was the

case there. Very different considerations may be involved in

such a situation. For example, the first claim may be trivial

and for an amount much less than the value of the vessel. See

Morania Barge at 34-35. We note that here it is obvious that the

claims were always for much more than the combined value of the

tug and the barge. 

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status allegations also involved the tug, a part of the same

flotilla. The Ninth Circuit has observed that shipowners have only

a single opportunity to seek the protections of the Limitation Act

once they have notice that a claim "with respect to the matter in

question" has been made; subsequently filed claims "with respect

to the matter in question" do not initiate the running of a new

six-month period. Esta Later Charters, Inc. v. Ignacio, 875 F.2d

234, 237 (9th Cir.1989). We find the Ninth Circuit's approach to

this issue to be appropriate in the particular circumstances of the

present case, where the change as between the claims is so very

minimal.6 Therefore, based on this record, the Claimants' 1994

amended petition did not trigger a new six-month limitation period

as to either the barge or the tug.

Conclusion

For the foregoing reasons, we reverse and remand to the

district court with direction to dismiss Tom-Mac's petition under

the Limitation Act.

REVERSED AND REMANDED.