* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30732

ELDER OFFSHORE LEASING, INC.

Plaintiffs

v.

BOLIVARIAN REPUBLIC OF VENEZUELA

Intervenor Plaintiff - Appellant

v.

SAFE HAVEN ENTERPRISES, INC.

Defendant - Intervenor Defendant - Appellee

Appeal from the United States District Court 

for the Western District of Louisiana

Before GARZA, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

In this case we review the district court’s determination that a litigant

lacks standing. The district court granted a motion by Intervenor-DefendantAppellee Safe Haven Enterprises (“SHE”) to withdraw from the registry of the

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-30732

2

district court the remaining cash balance of a bond, executed by IntervenorPlaintiff-Appellant Bolivarian Republic of Venezuela (“Venezuela”), holding that

Venezuela lacked standing to oppose SHE’s motion. Venezuela appealed.

Concluding that Venezuela has standing to contest the merits of SHE’s motion,

we REVERSE and REMAND.

Factual and Procedural History

In 2002 the Navy of Venezuela contracted with Consorcio Groupo Total

Mar (“Total Mar”)to construct and install living-quarter modules (“modules”) on

concrete platforms offshore of Venezuela. Total Mar, in turn, subcontracted with

Elder Offshore Leasing, Inc. (“Elder”) to construct the modules and ship them

to Total Mar in Venezuela. Elder then subcontracted with SHE for the design

and construction of the modules. 

SHE had nearly completed the construction of the modules at a shipyard

in Lake Arthur, Louisiana when a dispute arose between Elder and SHE. As a

result, SHE ceased work on the modules, and Elder subsequently filed suit

against SHE on August 7, 2002, in the Western District of Louisiana, alleging

that SHE had breached its contract with Elder. In response, on August 8, 2002,

SHE filed in the records of Jefferson Davis Parish a lien against the modules,

and on November 19, 2002, SHE filed a petition to enforce its liens in the ThirtyFirst Judicial District Court for the Parish of Jefferson Davis. In response to

SHE’s petition,the Jefferson DavisParish district court ordered that SHE’s liens

and privileges be recognized and that the modules be sequestered in Louisiana.

Elder then removed SHE’s action to federal court, where it was consolidated

with Elder’s suit.

On June 23, 2003, Venezuela intervened in the consolidated federal case

as a matter of right pursuant to Federal Rule of Civil Procedure 24(a), seeking

a declaratory judgment that Venezuela was the owner of the modules, claiming
No. 07-30732

1 See Record on Appeal (ROA) at 500. 

2 See ROA at 840.

3 See ROA at 842-46.

5 See ROA at 1693.

3

sovereign immunity, and asserting other equitable and legal claims. A number

of other parties also intervened to assert liens on the modules. 

In order to reduce the delay in installing the modules, Venezuela moved

for “an order allowing Venezuela to furnish bonds in lieu of the liens and

sequestration[] [of the modules].”1 After a hearing on Venzuela’s motion, the

district court issued an order authorizing all parties to file a joint stipulation

including “the appropriate bonds and exhibits” necessary to allow Venezuela to

remove the modules from Louisiana.2 On September 16, 2003, all parties to the

litigation, including Venezuela and SHE, entered the joint stipulation, agreeing

that Venezuela would execute individual cash bond agreements with all of the

lien holders, whereby Venezuela would agree to pay the claimed amounts upon

satisfaction of certain conditions and the lien holders would agree to acceptthese

bonds in lieu of their liens and claims on the modules.3 To secure all the various

bond agreements included within the joint stipulation, Venezuela deposited into

the registry of the district court a total of $3.5 million, which the lien holders

would be allowed to draw upon to satisfy their bond agreements.

All of the bond agreements between Venezuela and the lien holders, save

that between Venezuela and SHE, accepted the validity of all asserted lien

claims and conditioned bond payment solely upon entry of a final, nonappealable judgment that Venezuela did not own the modules. However, the

stipulation between Venezuela and SHE divided SHE's claims into two

categories.5 With respect to one category, the “Stipulated Safe Haven Claim[s]”

totaling $376,000, Venzuela and SHE agreed that SHE's claims were valid and
No. 07-30732

6 See ROA 1694.

7 See ROA 1694. 

8 Specifically, payment of the Reserved Claims was conditioned not only upon entry of

a final, non-appealable judgment that Venezuela is not the owner ofthe modules but also upon

entry of a final, non-appealable judgment that “(1) establishes the validity of the Reserved

Claims [and] (2) establishes the validity of the Claim of Liens made in respect to the Reserved

Claims.” ROA 1696. Venezuela specifically “reserve[d] its right to assert defenses as to the

validity of the [Reserved Claims].” ROA 1695.

9 See, e.g., ROA at 2310, 2387, 2388, 2390-92.

4

payable upon entry of a final, non-appealable judgment that Venezuela did not

own the modules.6 But with respect to the other category, the “Reserved Claims”

totaling $261,750,7 because Venezuela challenged the validity of SHE’s claims,

Venezuela and SHE agreed that payment of these claims required not only a

final, non-appealable judgmentthat Venezuela did not own the modules but also

a judgment establishing the validity of the Reserved Claims and their

underlying liens and obligations.8

On February 19, 2004, the district court entered a final judgment

decreeing that Elder, not Venezuela, legally owned the modules. Venezuela

appealed the matter, and during the pendency of this appeal, the case was

reassigned from one division of the district court to another. On December 1,

2004, a prior panel of this court affirmed the district court’s judgment, see Elder

Offshore Leasing, Inc. v. Bolivarian Republic of Venezuela, 116 F. App’x 541 (5th

Cir. 2004), and the United States Supreme Court subsequently denied certiorari.

See Elder Offshore Leasing, Inc. v. Bolivarian Republic of Venezuela, 544 U.S.

977 (2005).

Following the Supreme Court’s denial of certiorari, the district court

granted numerous motions for payment of various lien holders under the cash

bonds,9 and at this time SHE collected payment of $376,000 for the Stipulated
No. 07-30732

10 See ROA at 2402.

11 See, e.g., ROA at 2014.

12 ROA at 2428.

13 ROA at 2452. 

14 See ROA at 2479.

15 See ROA at 2497.

5

Safe Haven Claims.10 However, SHE made no attempt to collect the funds

allocable to the Reserved Claims, and Elder and SHE continued to negotiate

their respective rights to the funds remaining in the registry ofthe district court,

which included the funds Venezuela had deposited to cover the Reserved

Claims.11 To resolve these persisting issues the district court set a trial date for

June 18, 2007; the district court also ordered that prior to trial “all parties to

this litigation engage in mediation . . . .”12

In April of 2007, Elder and SHE reached a settlement agreement whereby

Elder agreed not to oppose SHE’s “motion to withdraw the sum of $338,560.00,

which constitutes the principal balance of its lien”;13 however, this settlement

agreement apparently neither included nor considered Venezuela’s interest in

some $261,750 of these funds, which were deposited to secure SHE’s Reserved

Claims and remained in the registry of the district court. Thus, when SHE

moved to withdraw the remainder of its cash bond,14 Venezuela opposed the

motion, asserting that SHE had not proven the validity of its Reserved Claims

as required in the bond agreement between Venezuela and SHE.15 In reply to

Venezuela’s opposition, SHE asserted that Venezuela lacked standing to

challenge the motion because the district court had previously declared that

Venezuela was not the owner of the modules at the time the liens were filed.

Agreeing with SHE, the district court held that Venezuela lacked standing to
No. 07-30732

16 See ROA at 2533, 2539.

17 See ROA at 1695 (“Venezuela reserves its right to assert defenses as to the validity

of the [Reserved Claims]”).

18 See ROA at 1696 (conditioning SHE’s recovery of the Reserved Claims upon, inter

alia, a judgment “(1) establish[ing] the validity of the Reserved Claims; and (2) establish[ing]

the validity of the Claim of Liens made in respect of the Reserved Claims . . . .”)

6

oppose SHE’s motion and issued an order authorizing SHE to withdraw the

remaining $338,560 from the court’s registry.16 Venezuela timely appealed. 

Discussion

We review questions of standing de novo. See Bonds v. Tandy, 457 F.3d

409, 411 (5th Cir. 2006); Pederson v. La. State Univ., 213 F.3d 858, 869 (5th Cir.

2000). “A question of standing raises the issue of whether the plaintiff is

entitled to have the court decide the merits of the dispute or of particular issues.

Standing is a jurisdictional requirement that focuses on the party seeking to get

his complaint before a federal court and not on the issues he wishes to have

adjudicated.” Pederson, 213 F.3d at 869 (quoting Cook v. Reno, 74 F.3d 97, 98-99

(5th Cir. 1996)). 

Based on the record before us, we conclude that Venezuela was entitled to

have the court decide the merits of its challenge to SHE’s attempt to withdraw

Reserved Claim funds from the registry of the district court. Here, Venezuela

and SHE explicitly stipulated to Venezuela’s right to challenge SHE’s

entitlementto the Reserved Claims,17 and by agreeing that SHE could not collect

the funds allocable to the Reserved Claims without a judgment establishing the

validity of the Reserved Claims and the underlying claims of liens,18 Venezuela

and SHE effectively agreed to adjudicate the issue before the district court.

Despite these agreements between the parties, the district court refused to

adjudicate this issue, ruling instead that Venezuela lacked standing because the

pleadings in this case did not contain a challenge to SHE’s attempt to withdraw
No. 07-30732

19 The district court reasoned as follows:

SHEmaintains that Venezuela hasno standing to objecttoSHE’smotion

to withdraw the remaining principal amount that was in dispute between SHE

and Elder. The Court agrees. The question of standing is whether the litigant

is entitled to have the court decide the merits of the dispute or of particular

issues [citing Warth v. Seldin, 422 U.S. 490, 498 (1975)]. The Court has

reviewed the numerous complaints, cross-claims, answers, and defenses and

concludes that Venezuela never asserted any claim against SHE other than to

be declared owner of the Modules and/or a declaration that the Modules were

immune from attachment or seizure by creditors. This issue was decided in the

Court’s [judgment on] February 19, 2004, which as previously discussed is now

a final and non-appealable judgment. Because Venezuela has not asserted any

claims or defenses in this litigation as to the “Reserved Claims”, it has no

standing to assert any such claims now.

Elder Offshore Leasing, Inc. v. Safe Haven Enter., Inc., No. 02-1685, 2007 WL 1974331, at *2

(W.D.La. June 29, 2007).

7

the funds allocable to the Reserved Claims.19 However, this conclusion falls into

error by failing to consider the bond agreement between Venezuela and SHE and

the joint stipulation, both of which demonstrate that Venezuela and SHE

contemplated and consented to the district court’s adjudication of SHE’s

entitlementto collectthe funds allocable to the Reserved Claims. Under Federal

Rule of Civil Procedure 15(b)(2), “[w]hen an issue not raised by the pleadings is

tried by the parties’ express or implied consent, it must be treated in all respects

as if raised in the pleadings.” In applying Rule 15(b)(2), this circuit has

established that a stipulation between the parties functions as providing express

consent to try an issue. See, e.g., Emmons v. S. Pac. Transp. Co., 701 F.2d 1112,

1118-19 (5th Cir. 1983); Am. Standard Credit, Inc. v. Nat’l Cement Co., 643 F.2d

248, 257 n.4 (5th Cir. 1981); Nat G. Harrison Overseas Corp. v. Am. Tug Titan,

516 F.2d 89, 96 (5th Cir. 1975); 6A Charles A. Wright, Arthur R. Miller, & Mary

Kay Kane, Federal Practice & Procedure § 1493 n.4 (2d ed. 2008). Moreover, this

court has held that even when neither the pleadings nor the pretrial order

contain a claim, that claim may still proceed if the record contains sufficient

evidence to convince the court that the parties consented to the adjudication of
No. 07-30732

20 See ROA at 1696.

21 See ROA at 1695. 

8

the issue. See, e.g., Am. Standard Credit, 643 F.2d at 257 n.4 (“On appeal,

[defendants] argue that neither [plaintiff’s] pleadings nor the pretrial order

included [the theory plaintiff later asserted]. While this is true, our review of the

record convinces us that this issue . . . was tried by the consent of parties.”). 

Here, our review of the record shows that the parties stipulated that the

validity of SHE’s liens and thus entitlement to the funds allocable to the

Reserved Claims was an issue to be determined before the district court in this

case. Most explicitly, the bond agreement between Venezuela and SHE states

that SHE may not collect the funds allocable to the Reserved Claims without an

entry of final, non-appealable judgment on the validity of the Reserved Claims,20

and this same bond agreement plainly reserves Venezuela’s right to oppose SHE’s

withdrawal of the Reserved Claims funds if this condition is not met.21 Further,

unless the district courtfinds something that would otherwise prevent Venezuela

from formally amending its pleadings to specifically challenge SHE’s entitlement

to the Reserved Claims, Venezuela will have the right to amend its complaint on

remand. See Fed. R. Civ. P. 15(b)(2) (“A party may move--at any time, even after

judgment--to amend the pleadings to conform them to the evidence and to raise

an unpleaded issue. But failure to amend does not affect the result of the trial of

that issue.”). 

Accordingly, on the record presented for our review, we conclude that

Venezuela has standing to challenge SHE’s attempts to withdraw the funds

allocable to the Reserved Claims. In so ruling, we intimate no view on the

underlying merits of the matter. Accordingly, we REVERSE the district court’s

holding regarding Venezuela’s standing and REMAND this matter for further

proceedings consistent with this opinion. 
No. 07-30732

9