UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

IN THE MATTER OF DELTA TOWING, )

LLC, AS OWNER OF THE M/V DELTA )

AMBER, AND DELTA MARINE SERVICE,)

INC., AS PURPORTED OWNER, ) CIVIL ACTION NO. 15-00128-KD-M

BROKER, CHARTERER, OR PRO HAC )

VICE OWNER OF THE M/V DELTA )

AMBER, FOR EXONERATION FROM )

OR LIMITATION OF LIABILITY. )

MIKE HOOKS, INC., and )

GULF COAST MARINE, LLC, )

PLAINTIFF, )

)

V. ) CIVIL ACTION NO. 15-00136-KD-N

)

DELTA TOWING, LLC and )

DELTA MARINE SERVICES, INC. )

DEFENDANTS. )

BILLY LEE, )

PLAINTIFF, )

)

v. ) CIVIL ACTION NO. 15-00295-KD-N

)

MIKE HOOKS, INC., OWNER OF THE )

M/V NICHOLAS, in personam. )

DEFENDANT. )

ORDER 

This action is before the Court on Mike Hooks, Inc.’s Third Party Demand and Rule 14(c) 

Tender (doc. 120, ¶¶ 71-73); Delta Towing, LLC, and Delta Marine Service, Inc.’s motion to 

dismiss the Rule 14(c) Tender (doc. 124), Billy Lee’s joinder in their motion to dismiss (doc. 126),

Hooks’ opposition (doc. 128), and Delta’s reply (doc. 131). Upon consideration, and for the 

reasons set forth herein, the motion to dismiss the Rule 14(c) Tender is GRANTED.

I. Background

In October 2014, while the tow boat M/V Delta Amber was hip-towing the dredge tender 

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M/V Nicholas, they capsized in rough water in Mobile Bay. Billy Lee, Captain of the M/V Delta 

Amber, filed a complaint alleging general maritime negligence against Hooks, the owner of the 

M/V Nicholas. Lee designated his claim as within the admiralty or maritime jurisdiction pursuant 

to Fed. R. Civ. P. 9(h)1 (doc. 30; Civil Action No. 15-0295-KD-N). Hooks filed a complaint against 

Delta alleging omissions and/or acts of fault and negligence by Delta as the owner, broker or charter 

of the M/V Delta Amber (doc. 11, Civil Action No. 15-0136-KD-N). Ultimately, the actions were

consolidated with Delta’s petition for exoneration and limitation (Civil Action No. 15-0128-KD-N). 

James and Kayla McBroom and David and Janet Curtis filed claims in the limitation action. All 

parties have filed numerous counterclaims, cross-claims and third party claims. 

Relevant to this motion, in his original complaint, Lee brought one count for negligence 

alleging that Hooks as the owner of the Nicholas breached its duty to Lee to provide a seaworthy 

vessel for towing. Lee alleged that the unseaworthy condition of the Nicholas, improper bilge 

pumps which caused the vessel to take on water, resulted in the capsize of the Nicholas and the 

Delta Amber (doc. 30) 

Hooks answered the complaint and raised affirmative defenses. Hooks also counterclaimed 

against Lee alleging liability to Hooks because of Lee’s fault, negligence, acts or omissions in the

operation of the Delta Amber, which caused the Nicholas and the Delta Amber to sink. 

Hooks made a third party demand against Delta alleging liability to Hooks because of the 

omissions and/or acts of fault and negligence of the crew of the Delta Amber including Captain Lee. 

Specifically, Hooks alleged that Lee navigated the Delta Amber at an excessive speed and in an 

 1 Certain Underwriters at Lloyd's London & Certain Ins. Companies v. Cameron Int'l Corp., 2016 

WL 3199354, at *1 (S.D. Tex. Feb. 11, 2016) (“A defendant may invoke Rule 14(c)(1) whenever 

the plaintiff has asserted a claim which has been specifically identified in the complaint as one in 

admiralty pursuant to Rule 9(h), or (2) when it is apparent from a reading of the complaint that 

admiralty jurisdiction is the only basis for federal subject matter jurisdiction over the action.”) 

(quoting Harrison v. Glendel Drilling Co., 679 F. Supp. 1413, 1418 (W.D. La. 1988)).

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improper manner by suddenly changing course and speed, that he failed to reduce speed when the 

Nicholas was caught on the port rail, and that the crew failed to have proper equipment on board

(Doc. 33, p. 10-13). 

Delta answered the third party demand and counterclaimed against Hooks. Delta alleged 

that Hooks was negligent in tendering the unseaworthy Nicholas for tow and negligently navigating 

the Nicholas, which caused it to take on water and cause both vessels to capsize (Count One). Delta 

also claimed indemnification and contribution from Hooks for the damage to the Delta Amber and 

the injury to her crew (Count Two) (doc. 53, p. 6-14). 

Lee moved to amend his complaint against Hooks and the motion was granted.2 On 

amendment, Lee re-alleged claims from his original complaint: Count I for unseaworthiness as to 

the Nicholas against Hooks and Count IV for negligence against Hooks alleging that it owed a duty 

to provide a seaworthy vessel for towing, but instead provided the unseaworthy Nicholas. He also 

added Count III for negligence per se against Hooks on basis that certain conditions on the Nicholas 

violated federal safety regulations. 

Lee also added claims based on the new legal theory that Hooks was the manager, operator 

or charterer of the Delta Amber, exercised control over that vessel, and therefore, owed certain 

duties to the crew of the Delta Amber including Lee as Captain. Lee alleged that the crew of the 

Nicholas created the unseaworthy condition of the Delta Amber and that Hooks breached its duty to 

the Delta Amber crew to have the Nicholas manned by a seaworthy crew (Count I). Lee brought 

Count II for unseaworthiness as to the Delta Amber alleging again that the unseaworthiness of the 

Nicholas and its crew created an unseaworthy condition on the Delta Amber. Last, Lee brought 

 2

 Lee’s motion for leave to amend was made beyond the deadline for amendment of pleadings 

November 20, 2015. However, the Court found that Lee had exercised diligence in pursuing 

discovery and that good cause existed to allow a modification to the Rule 16(b) Scheduling Order 

for the “narrow purpose of allowing Plaintiff Lee to amend his complaint” (doc. 117, p. 3). 

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Count V for Jones Act negligence. Lee alleges that he was a ‘borrowed servant” of Hooks because 

of the control exercised by Hooks over the Delta Amber and her crew; and therefore, Hooks owed 

Lee a safe place to work (Doc. 118). 

In response, Hooks filed an answer, affirmative defense, counterclaim against Lee, third 

party demand against Delta, and the Rule 14(c) tender (doc. 120). Pursuant to Fed. R. Civ. P. 14(c), 

Hooks tendered Delta as a direct defendant such that Delta “must defend” Lee’s claims as well as 

Hooks’ third party demand against Delta (doc. 120, p. 12). Hooks demanded judgment in its favor 

and against Delta. (Id.). Hooks did not demand judgment in favor of Lee. 

II. Statement of the law

Delta now moves to dismiss the Rule 14(c) tender (doc. 124). Rule 14, captioned “ThirdParty Practice”, sets forth in relevant part, as follows: 

(c) Admiralty or Maritime Claim.

(1) Scope of Impleader. If a plaintiff asserts an admiralty or maritime claim under 

Rule 9(h), the defendant or a person who asserts a right under Supplemental Rule 

C(6)(a)(i) may, as a third-party plaintiff, bring in a third-party defendant who may 

be wholly or partly liable--either to the plaintiff or to the third-party plaintiff--for 

remedy over, contribution, or otherwise on account of the same transaction, 

occurrence, or series of transactions or occurrences.

(2) Defending Against a Demand for Judgment for the Plaintiff. The third-party 

plaintiff may demand judgment in the plaintiff's favor against the third-party 

defendant. In that event, the third-party defendant must defend under Rule 12 

against the plaintiff's claim as well as the third-party plaintiff's claim; and the 

action proceeds as if the plaintiff had sued both the third-party defendant and the 

third-party plaintiff.

Fed. R. Civ. P. 14(c). 

Rule 14(c) allows a defendant to implead a person who may be directly liable to a plaintiff 

for at least a portion of the plaintiff’s claims against the defendant. Generally, impleader is 

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desirable in maritime and admiralty actions because of “the possibility of inconsistent results in 

separate actions, the alternative of conducting two actions involving substantially the same 

evidence, and the possibility of the third party [and its assets] disappearing.” 6 Charles Alan Wright 

& Arthur R. Miller, Federal Practice and Procedure § 1465 at 481 (3d ed.) (April 2016 Update) 

(bracketed text added): Texaco Exploration & Production Co. v. AmClyde Engineered Products

Co., 243 F.3d 906, 910 (5th Cir. 2001) (“This unique liberal joinder policy served to reduce the 

possibility of inconsistent results in separate actions, eliminate redundant litigation, and prevent a 

third party's disappearing if jurisdiction and control over the party and his assets were not 

immediately established.”) 

III. Analysis

A. Sufficiency of the Pleading

“To survive a motion to dismiss, a [third party demand] must contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) 

(bracketed text added). “A claim has facial plausibility when the [claimant] pleads factual content 

that allows the court to draw the reasonable inference that the [respondent] is liable for the 

misconduct alleged.” Id. (bracketed text added); see Pharma Supply, Inc. v. Stein, 2015 WL 

392084, at *4 (S.D. Fla. Jan. 28, 2015) (applying Twombly and Rule 8(a) to find that defendants’ 

counterclaims and third-party complaint failed to satisfy pleading requirements). 

Hooks’ demand and tender state as follows: 

Third Party Demand and Rule 14(c) Tender

71.

Mike Hooks re-asserts, adopts, and incorporates by reference herein each 

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and every one of its allegations in support of its third party demand3 against Delta 

Towing, LLC and Delta Marine Services, Inc.

72.

Pursuant to Fed.R.Civ.Proc. 14(c), Mike Hooks tenders Delta Towing, 

LLC and Delta Marine Service, Inc. as a direct defendant such that Delta Towing, 

LLC and Delta Marine Service, Inc. must defend against Billy Lee’s claim as well 

as the third party demand of Mike Hooks.

73.

WHEREFORE, after due proceedings had, Third Party Plaintiff Mike 

Hook, Inc. prays that there be judgment in its favor and against Defendants Delta 

Towing, LLC and Delta Marine Services, Inc.; that Third Party Plaintiff be 

awarded all its damages; that Third Party Plaintiff be awarded costs, attorney fees, 

and pre and post judgment interest; and for all other general and equitable relief to 

which it is entitled.

(Doc. 120, p. 12). 

Rule 14(c)(1) addresses the “scope of impleader” in an admiralty or maritime action and 

provides that a third-party plaintiff such as Hooks may bring in a third-party defendant like Delta 

“who may be wholly or partly liable -- either to the plaintiff or to the third-party plaintiff-- for 

remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of 

transactions or occurrences.” Fed. R. Civ. P. 14(c)(1). In Intern.l Marine, LLC v. FDT, LLC, 2014 

WL 7240143 (E.D. La. Dec. 19, 2014) (appeal dismissed (Oct. 19, 2015)), the Eastern District of 

Louisiana discussed the purpose of Rule 14(c) as follows: 

Rule 14(c) “permits a defendant to implead a third-party defendant for two purposes: 

(1) to seek contribution or indemnification from the third-party defendant, and (2) to 

tender the third-party defendant to the plaintiff.” Ambraco, 570 F.3d at 242. When 

the third-party plaintiff invokes the 14(c) tender option, the plain language of Rule 

14(c)(2) requires that the tender of the third-party defendant to the plaintiff is 

 3

 Hooks alleged that Delta was the owner of the Delta Amber, employer of her crew and Captain 

Lee and responsible for their acts, omissions, fault and/or neglect. Hooks alleged that the crew and 

Captain Lee were negligent in navigating the Delta Amber at excessive speed, failing to reduce 

speed, making an improper change of course and speed, and failing to have proper equipment, and 

that Delta failed to employ a properly trained captain and crew (doc. 33, p. 1). 

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automatic. In pertinent part, Rule 14(c)(2) provides that if the third-party plaintiff 

“demand[s] judgment in the plaintiff's favor, then the third-party defendant must 

defend against both the plaintiff's claim and against the third-party plaintiff's claim.

Fed.R.Civ.P. 14(c)(2) (emphasis added). Under such circumstances, “the action 

proceeds as if the plaintiff had sued both the third-party defendant and the third-party 

plaintiff.” Id.

2014 WL 724013, at *9 (citing Ambraco, Inc. v. Bossclip B. V., 570 F.3d 233, 243 (5th Cir. 2009)). 

Hooks states that he tenders Delta as a “direct defendant” under “Fed. R. Civ. P. 14(c)” who 

“must defend against Billy Lee’s claim as well as the third party demand of Mike Hooks” (doc. 

120, p. 12). Thus it appears that Hooks is seeking to tender Delta to Lee. See, Royal Ins. Co. of 

America v. Southwest Marine, 194 F.3d 1009, 1018 (9th Cir. 1999) (finding the Rule 14(c) tender 

sufficient although it did not contain specific language demanding judgment against the third-party 

defendant in favor of the plaintiff). 

Delta asserts that Hooks fails to state a factual basis from which Delta could plausibly be 

liable. Hooks responds by pointing to its original third party demand that alleged that Delta was 

responsible, based on the negligence of the crew of the Delta Amber, for the capsizing incident. 

These allegations are sufficient to put Delta on notice of the basis of the tender to Lee’s claims.

B. Untimely amendment to pleading 

Delta argues that the instant Rule 14(c) tender should be dismissed because it was made 

beyond the November 19, 2015 deadline for amendments to pleadings and joinder of parties. 

Hooks responds that he could not have plead a Rule 14(c) tender of Delta to answer and defend 

Lee’s new claims (which are based on Hooks’ status as a manager, operator or charterer or entity in 

control of the Delta Amber) until those claims were raised in Lee’s amended complaint. 

The court disagrees. As of April 8, 2015 (Doc. 8) and again on June 18, 2015 (Doc. 33), it 

was Hooks position that Delta was responsible for the capsizing of the Amber Delta and the 

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Nicholas. Hooks was also aware that as of June 2, 2015, Lee was no longer claiming that Delta was 

at fault. Although Lee has asserted new theories of why Hooks is liable, Hooks has always claimed 

that Delta is liable for the capsizing incident instead of Hooks. Thus, Hooks could have tendered 

Delta in its original answer to Lee. 

III. Conclusion

Upon consideration of the foregoing, the motion to dismiss Hooks’ Rule 14(c) tender of 

Delta is GRANTED. 

DONE and ORDERED this the 7th day of October 2016. 

s/ Kristi K. DuBose 

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE 

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