1 United States Court of Appeals,

Fifth Circuit.

No. 94-30191.

TEXACO, INC., as owner, praying for exoneration from and/or

limitation of liability, et al., etc., Petitioners-Appellees,

v.

Paul WILLIAMS and Harrison Ellender, Claimants-Appellants.

March 21, 1995.

App eal from the United States District Court for the Eastern

District of Louisiana.

Before REYNALDO G. GARZA, DeMOSS and BENAVIDES, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Background

On A ugust 24, 1993, a fire and an explosion occurred on the

T/B BUSTER LEE, a barge owned by Texaco, In c. (Texaco) and bare

boat chartered by Texaco Exploration and Production, Inc. (TEPI).

Appellants Ellender and Williams, employees of TEPI, were severely

burned in the accident. Appellant Ellender filed a Jones Act claim

in Louisiana state court. On October 18, 1993, Texaco and TEPI

filed a complaint in federal court seeking exoneration from or

limitation of liability. The district court issued an order

staying Ellender's state court action and restraining Williams from

filing a similar state claim. Appellants filed answers in the

limitation proceeding, seeking damages in excess of $8 million.

These claims exceeded the value of the vessel, valued by Texaco at

$125,000. Claimants then filed a motion to lift the stay, seeking1 28 U.S.C. § 1333.

2 46 U.S.C.App. § 183.

3 In re Dammers & Vanderheide & Scheepvaart Maats Christina

B.V., 836 F.2d 750, 754 (2d Cir.1988).

4 28 U.S.C. § 1333.

5 Magnolia Marine Transp. v. LaPlace Towing Corp., 964 F.2d

1571, 1575 (5th Cir.1992) (citing Langnes v. Green, 282 U.S. 531,

543, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931)).

2 to pursue their rights under the savings to suitors' clause. 1 The

district court denied their motion and this appeal ensued.

Discussion

The issue before this Court involves "a recurring and

inherent conflict" betwee n the exclusive jurisdiction vested in

admiralty courts by the Limitation of Liability Act 2 and the common

law remedies embodied in the saving to suitors clause of 28 U.S.C.

§ 1333. 3 The Limitation Act provides that the liability of a

shipowner shall not exceed the value of the vessel at fault and her

pending freight if th e casualty occurred without the privity or

knowledge of the shipowner. Federal courts have exclusive

juris diction over suits invoking the Act, "saving to suitors ...

all other remedies to which they are otherwise entitled." 4

When a shipowner invokes the Act the federal court may stay

all other proceedings against the shipowner arising out of the same

accident and require all claimants to timely assert their claims in

the limitation court. The purpose of the limitation is to preserve

the right of the shipowner to limit its liability in a federal

forum to the value of the vessel and her pending freight. 5 The6 Langnes, 282 U.S. at 539-40, 51 S.Ct. at 246.

7 286 U.S. 437, 52 S.Ct. 602, 76 L.Ed. 1212 (1932).

8 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957).

9 The respondent filed stipulations agreeing to neither

increase the claims, nor to enter into a judgment in excess of

these amounts, and waived any claims of res judicata.

3 problem is that "one statute [gives the complainant] the right to

a common-law remedy, which he [may seek] in the state court; and

another statute [gives the shipowne r] the right to seek a

limitation of liab ility in the federal district court." 6 The

courts have attempted to resolve this conflict by creating

exceptions to the exclusive jurisdiction of the federal courts.

Initially, two exceptions were recognized: (1) the

single-claim-inadequate-fund situation, and (2) the

multiple-claim-adequate-fund situation. In E x parte Green, 7 the

Supreme Court held that a single claimant seeking damages in excess

of the limitation fund may proceed outside of the limitation action

if the claimant agreed not to raise issues to be decided in the

limitation court. In L ake Tankers Corp. v. Henn, 8 the Supreme

Court faced the iss ue of multiple claims that exceeded the

limitation fund. The Court held that the claimants could proceed

outside of the limita tion proceedings if they relinquished their

rights to damages in excess of the amount of the limitation fund. 9

The Court reasoned that in th is situation, the "state proceeding

could have no possible effect on the petitioner's claim for limited

liability"; both the shipowner's right to limit liability in a

federal forum and the claimants' rights to pursue their state law10 Magnolia, 964 F.2d at 1576 (citing In re Dammers, 836 F.2d

at 754).

11 943 F.2d 576 (5th Cir.1991).

4 remedies under the savings to suitors clause were protected. Under

this backdrop, the Fifth Circuit has held that, with proper

stipulations, claimants may proceed outside the limitation action.

In Magnolia Marine Transport v. LaPlace Towing Corp. multiple

claimants sought to recov er damages in excess of the limitation

fund pursuant to their saving to suitors rights, that is, outside

of the limitation action. This Court reasoned that a singular

claimant may pursue a state court claim after filing several

stipulations. First, the claimant must stipulate that the

admiralty court reserves exclusive jurisdiction to determine all

issues related to the shipowner's right to limit liability.

Second, the claimant must stipulate that no judgment will be

asserted against the shipowner to the extent it exceeds the value

of the limitation fund. "But even in multiple-claimant cases,

admiralty courts still should allow state court claims to proceed

under proper stipulations." 10 Multiple claimants may reduce their

claims to the equivalent of a single claim by stipulating to the

priority in which their claims will be paid from the limitation

fund. Similarly, in I n re Two "R" Drilling Co. 11 this Court held

that a shipow ner's rights are protected when multiple claimants

file proper stipulations. A deckhand drowned while working for Two

"R" Drilling Co., and th e widow brought claims on behalf of her

children, the deceased, and herself. The plaintiff filed12 Id. at 578 (citations omitted).

13 4 F.3d 401 (5th Cir.1993), cert. denied, --- U.S. ----,

114 S.Ct. 1370, 128 L.Ed.2d 47 (1994).

5 stipulations conceding the right of the shipowner to litigate all

issues relating to limitation of liability in a federal forum and

agreed not to enforce a judgment in excess of the limitation fund.

This Court approved of the procedure and affirmed the district

court's ruling to lift th e stay, stating, "[w]here the claimant

concedes the admiralty court's exclusive jurisdiction to determine

all issues relati ng to the limitation of liability, the district

court should lift any stay against the state proceeding." 12

Recently, in Odec o Oil and Gas Co. v. Bonnette 1 3 this Court

faced the very issue presently before this Court. Odeco was

performing safety drills on a fixed platform in the Gulf of Mexico,

when five members of the crew boarded an escape capsule suspended

90 feet above the water. Someone in the capsule pulled the wrong

lever, releas ing the capsule from the platform; the capsule

plunged into the Gulf seriously injuring all of its passengers.

Odeco filed an action for a declaratory judgment and, in the

alternative, to limit its liability in federal court. The district

court issued an order staying any further litigation against Odeco

a rising from this incident. The claimants filed personal injury

suits in state court and filed answers in the district court,

requesting that the stay be lifted. The district court lifted the

stay, allowing the claimants to pursue their claims in state court.

The Odeco court stated, "cla ims may proceed outside the14 Odeco, 4 F.3d at 404.

6

limitation ac tion (1) if they total less than the value of the

vessel, or (2) if the claimants stipulate that the federal court

has exc lusive jurisdiction over the limitation of liability

proceeding and that they will not seek to enforce a greater damage

award until the limitation action has been heard by the federal

court." 14 This Court reasoned that if the claimants seek to take

advantage of their savings to suitors remedies in state court, we

must accede to this choice if the shipowner's rights to limit are

protected by stipulations.

Appellee contends that we should not lift the stay for two

r easons. First, by following O deco and lifting the stay w e are

creating a third exception to th e exclusive jurisdiction of our

admiralty courts. The Supreme Court has authorized only two

exception s: the single-claimant-inadequate-fund and

multiple-claimant-adequate-fund exceptions. If a claimant proves

that it meets one of thes e exceptions, t hen it must enter into

s tipulations to protect the shipowner's rights. Entering into

stipulations does not in and of itself create an exception.

Though we find this reasoning persuasive it is not in accord

with Fifth Circuit law. The case law is clear that if all

c laimants stipulate that the federal court has exclusive

jurisdiction over limitation issues and the claimants will not seek

to enforce a greater damage award than the limitation fund, the15 Complaint of Port Arthur Towing M/V MISS CAROLYN, 42 F.3d

312, 316 (5th Cir.1995); Odeco, 4 F.3d at 404.

16 But Odeco indicates that this should not be the focus of

our concern. "If the purpose of the Limitation Act were to

accomplish judicial efficiency as well as limitation of

liability, this case would clearly call for [a] concursus

proceeding. But the Supreme Court explained in Lake Tankers, 354

U.S. at 152-53, 77 S.Ct. 1272-73, that liability may and should

be limited consistent with preserving the claimants' right to

proceed in the fora of their choice. " Odeco, 4 F.3d at 404-05

(emphasis added).

17 But see Pershing Auto Rentals, Inc. v. Gaffney, 279 F.2d

546, 550-51 (5th Cir.1960) (citing Petition of Texas Co., 213

F.2d 479, 482 (2d Cir.) (stating that the "purpose of limitation

proceedings is not to prevent a multiplicity of suits but, in an

equitable fashion, to provide a marshalling of assets—the

distribution pro rata of an inadequate fund among claimants, none

of whom can be paid in full"), cert. denied, 348 U.S. 829, 75

S.Ct. 52, 99 L.Ed. 653 (1954)); Petition of Moran Transp. Corp.,

185 F.2d 386, 389 (2d Cir.1950) (stating the same), cert. denied,

340 U.S. 953, 71 S.Ct. 573, 95 L.Ed. 687 (1951).

18 See Port Arthur Towing Co., 42 F.3d at 316 (stating that

when the shipowner is not exposed to liability beyond the

limitation fund the savings to suitors clause controls); Odeco,

4 F.3d at 404-05 (quoted supra ); Magnolia Marine Transport, 964

F.2d at 1576 (stating that under proper stipulations, multiple

claimants should still be allowed to proceed with their state

court claims).

19 Rule F of the Supplemental Rules for Certain Admiralty and

Maritime Claims provides that "[t]he complaint may demand

exoneration from as well as limitation of liability." Therefore,

7 claimants may proceed outside of the limitation action. 15 While we

may have reservations concerning the breadth of this exception 16 and

the correctness of condoning a multiplicity of law suits, 17 some of

which will be duplicitous, we are bound to follow Fifth Circuit

law. 18

Second, Appellee argues that Odeco is "entirely different and

distinguishable" from the facts p resently before this Court.

Texaco sought exoneration from or limitation of liability. 1 9Texaco may assert its exoneration claim along with its limitation

claim. Accord Providence and New York Steamship Co. v. Hill Mfg.

Co., 109 U.S. 578, 595, 3 S.Ct. 379, 390, 27 L.Ed. 1038 (1883)

(stating that the questions to be settled in the proceedings are

"first, whether the ship or its owners are liable at all ... and,

secondly, if liable, whether the owners are entitled to a

limitation of liability").

8 Echoing the district court, Appellee contends that the case before

us is a "serious exoneration" suit and Odeco did not discuss

exoneration. Accordingly, Odeco should be restricted to suits

seeking limitation of liability only.

We find this argument unpersua sive for two reasons. First,

shipowners routinely seek exoneration and limitation of liability

in the alternative. In fact, Odeco filed a declaratory judgment

action requesting the court to determine that the capsule was not

a vessel, that the injuries were not caused by the vessel's

negligence, and that any action for damages was barred by § 905(a)

of the Longshore and Harbor Worker's Compensation Act. Though the

Odeco court did not label this a ction as one of exoneration, we

mus t recognize it for what it is. If any court had entered a

declaratory judgment on one of these issues, Odeco would have been

exonerated. For this reason, we find that "exoneration" was before

this Court in Odeco. Second, Appellants have agreed to stipulate

that the limitation court is not bound by any decisions by other

courts on issues relating to limitati on of liability a nd

exoneration. Therefore, the shipowner's right to limit liability

and litigate the issue of exoneration in federal court is protected

by stipulation. For these two reasons, we are compelled to follow

Odeco.20 We note that "the Act itself affords ... underwriters no

right of limitation." Magnolia, 964 F.2d at 1576. This opinion

should not be construed to create a right for underwriters to

limit their liability or to take shelter under stipulations

protecting the shipowner. Any right to limit an underwriter's

liability is purely contractual in nature. "[T]he underwriters

are not entitled to a stipulation in their favor." Id. (emphasis

added). We are not requiring the claimants to enter into

stipulations protecting the underwriters; however, because the

claimants were so willing to enter into any stipulation, so as

"to take advantage of the perceived magnanimity of ... [state]

juries," we are suggesting this stipulation. Odeco, 4 F.3d at

405.

9

During oral argument Appellants agreed to enter i nto

stipulations that would protect any rights Appellee alleged in the

federal court pleadings, including the right to receive

exoneration, and agreed to consolidate their suits and litigate

them in one state trial. We direct the district court to evaluate

these new stipulations, and to consider the f ollowing issues and

suggestions in determining the ad equacy of the stipulations.

First, if a direct action claim has been or may be asserted against

the underwriters of Texaco and TEPI in state court, then the

stipulations may include a waiver by Williams and Ellender

similarly protecting these insura nce carriers from collection of

any state court judgment unless and until the federal court's

limitation of liability proceeding determines that Texaco and TEPI

were not entitled to either exoneration fr om or limitation of

liability. 20 Second, the district court should determine if any

potential derivative actions exist; if so, then the stipulations

should cover these as well. Third, the district court should

de termine if the casualty gave rise to any environmental claims

that were timely filed; if so, the stipulations should require10

joinder of the claimants. If the stipulations cover a ll potential

claimants and adequately protect Texaco's right to receive

exoneration or to limit liability, then the stay should be lifted,

allowing Appellants to pursue their saving to suitors remedies.

We reverse the district court's refusal to lift the stay, and

remand this action to the district court to evaluate the adequacy

of Appellants' new stipulations consistent with this opinion.

REVERSED and REMANDED.