Complaint of Tom-Mac, Inc., TOM-MA

• Decision Date: 05 March 1996
• Docket Number: No. 95-20125,INC,TOM-MA,95-20125
• Parties: In re in the Matter of the Complaint of, as Owner of the M/V Marcon I, Official No. :524371, For Exoneration from or Limitation of Liability. , Plaintiff-Appellee, v. Rosa BIELA, et al., Claimants-Appellants, and Julitta Jo Phillips, Claimant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 678

76 F.3d 678

1996 A.M.C. 1244

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, Claimant-Appellant.

No. 95-20125.

United States Court of Appeals Fifth Circuit.

March 5, 1996.

Michael B. Hughes, Galveston, TX, Charles M. Brackett, Houston, TX, Michele Barber Chimene, Douglas W. Poole, Mcleod, Alexander, Powel and Apffel, Galveston, TX, for plaintiff-appellee.

Fidel Rodriguez, Jr., San Antonio, TX, Lawrence Irwin Zinn, San Antonio, TX, for Beila.

M. Bruce Fort, Texas City, TX, for Juanita Jo Phillips.

William G. Neumann, Jr., Krist, Gunn, Weller, Neumann & Morrison, Houston, TX, for Yates and Bobby Phillips, Sr.

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 Phillips (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 Tom-Mac'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 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 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 Tom-Mac, 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 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 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, Tom-Mac filed an answer to this claim, pleading the Limitation Act as 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,...