Dept. of Transp. and Dev. V. Kition Shipping
| Decision Date | 02 September 2009 |
| Docket Number | Civil Action No. 08-77-JVP-CN.,Civil Action No. 08-452-JVP-CN. |
| Parties | State of LOUISIANA, through its DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. KITION SHIPPING CO., LTD., V. Ships Switzerland S.A., et al. In re Crescent Towing & Salvage, Co., Inc., as Owner and Operator of the M/V Margaret F. Cooper, Praying for Exoneration from or Limitation of Liability. |
| Court | U.S. District Court — Middle District of Louisiana |
Kirk Norris Aurandt, Daigle, Fisse & Kessenich, PLC, Covington, LA, for State
of Louisiana, through its Department of Transportation and Development.
Robert B. Fisher, Jr., Derek A. Walker, Thomas D. Forbes, Chaffe McCall, LLP, Stanley Jerome Cohn, Frederick Lewis Parks, Jr., Scott Rodgers Wheaton, Jr., Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, David Michael Flotte, Willard P. Schieffler, Mark A. Pivach, Pivach, Pivach, Hufft, Thriffiley & Nolan, LLC, Belle Chasse, LA, Jon A. Van Steenis, Kirk Norris Aurandt, Michael D. Fisse, Daigle, Fisse & Kessenich, PLC, Covington, LA, for Kition Shipping Co., Ltd., V. Ships Switzerland S.A., et al.
RULING
This matter is before the court on a Motion to Strike and/or Dismiss the State of Louisiana's In Rem Claim (doc. 39) filed by defendant, Kition Shipping Co., Ltd. The matter was referred to Magistrate Judge Christine Noland who, on May 4, 2009, 2009 WL 1664621, issued a report and recommendation (doc. 50) to which there were several objections and replies to objections by all parties. The matter was then referred back to Magistrate Judge Noland for further consideration and recommendation (doc. 60).
The court has carefully considered the petition, the record, the law applicable to this action, the first report and recommendation (doc. 50) and the Report and Recommendation of United States Magistrate Judge Christine Noland dated July 24, 2009 (doc. 64). Both parties have has filed objections which merely restate legal argument and do not require de novo factual findings under 28 U.S.C. § 636.
The court hereby approves the July 24, 2009 report and recommendation of the magistrate judge and adopts it as the court's opinion herein.
Accordingly, the Motion to Strike and/or Dismiss the State of Louisiana's In Rem Claim (doc. 39) is hereby DENIED. The State of Louisiana, through the Department of Transportation and Development shall be allowed to perfect in rem jurisdiction over the M/T KITION through arrest/seizure up until the commencement of trial in this matter.
The Cross-Motion Requiring Defendants to Post Security for the State's In Rem Claims and to Supplement Discovery Responses regarding Vessel Location (doc. 41) is hereby GRANTED IN PART, in that the Kition Interests shall be required to promptly supplement their discovery responses whenever they receive new or corrective information concerning the KITION's location and upcoming voyage(s), until the discovery deadline expires in this matter, and DENIED IN PART, in that the Kition Interests should not be required to post security as a result of their having pled a limitation of liability defense in their answer.
The DOTD's request to have the NTSB and USCG reports and the Times-Picayune newspaper article offered as evidence by the Kition Interests, and all references thereto, excluded is hereby GRANTED.
Considering the foregoing, the Motion for Leave of Court to File Responsive Pleading (doc. 69) is hereby GRANTED for purposes of having plaintiffs arguments on the record.
This matter is before the Court pursuant to the Ruling dated June 10, 2009, 2009 WL 1664609 (R. Doc. 60), wherein the Motion to Strike and/or Dismiss the State of Louisiana's In Rem Claim (R. Doc. 39) filed by defendant, Kition Shipping Co., Ltd. ("Kition Shipping"), and the CrossMotion Requiring Defendants to Post Security for the State's In Rem Claims and to Supplement Discovery Responses regarding Vessel Location (R. Doc. 41) filed by plaintiff, the State of Louisiana, through the Department of Transportation and Development ("DOTD"), were referred back to the undersigned for further consideration in light of certain arguments raised in the parties' objections to the undersigned's May 4, 2009 Report and Recommendation (R. Doc. 50).
On February 10, 2007, the oil tanker vessel, M/T KITION ("KITION"), while attempting to undock from Apex Dock No. 2 with a compulsory pilot aboard and three tugs assisting, collided with a pier of the Interstate 10 bridge where it crosses the Mississippi River in Baton Rouge, Louisiana. The collision caused damage both to the vessel itself and to the fendering system that protects the bridge.1
Following the collision, the KITION, after offloading her cargo, remained in the Port of Baton Rouge to undergo repairs for damages sustained during the collision. Those repairs were performed by Boland Marine & Manufacturing Co., L.L.C. ("Boland") and were completed on February 26, 2007. After the repairs were completed, a dispute arose between Boland and KITION concerning the costs of repair. On March 1, 2007, Boland filed a complaint in this Court, alleging that full payment had not been received for the repairs it made to the KITION. In the complaint, Boland prayed for relief from this Court, including the arrest and judicial sale of the KITION pursuant to Rule C of the Supplemental Rules for Admiralty Claims. This Court thereafter ordered the U.S. Marshal for the Middle District of Louisiana to arrest the KITION at her berth in the Port of Baton Rouge. On March 2, 2007, the dispute between Boland and Kition Shipping over repair costs was resolved amicably, and the KITION was released from arrest. On that same date, approximately three (3) weeks after the collision with the Interstate 10 bridge, the KITION departed the physical jurisdiction of the Middle District of Louisiana.
Nearly a year later, on February 6, 2008, the State of Louisiana, through the DOTD, filed the present suit to recover damages for the repair and replacement of the bridge components that were damaged during the collision with the KITION. In the complaint, the DOTD asserts both in personam claims against the registered owner of the KITION (Kition Shipping), the KITION's insurer (UK Club), and other parties, including the compulsory pilot aboard the KITION and the owners of the tug boats assisting the KITION at the time of the accident, as well as in rem claims against the KITION. In Paragraph 3 of the complaint, the DOTD alleges that "[t]he M/T KITION is within the district or will be within the district while the action is pending" and requested that in rem service be withheld.
The Kition Interests filed an Answer to the DOTD's "Verified Complaint" and "First Verified Complaint" on August 22, 2008, wherein they asserted a limitation of liability defense pursuant to the laws and statutes of the United States.2 They have not posted security for the DOTD's in rem claims against the KITION.
In its present motion, Kition Shipping seeks to have the DOTD's claims against the KITION struck or dismissed because the DOTD has failed to perfect in rem jurisdiction against the KITION by arresting her under Rule C of the Supplemental Rules for Admiralty Claims when it had "every opportunity to do so while the ship was in port for three weeks after the casualty that is the subject of this litigation."
As mentioned above, the DOTD has also filed a cross-motion, seeking to have the Court require the defendants to post security for the State's in rem claims against the KITION because the KITION is presumptively liable in rem for the destruction of state property, because the Kition Interests have pursued relief under the limitation of liability laws of the United States, and because the Kition Interests have invoked this Court's in rem jurisdiction through the filing of affirmative claims in this litigation, including cross-claims, discovery responses, and an objection from the KITION herself. Through its crossmotion, the DOTD also seeks to have the Court require that discovery/interrogatory responses submitted herein by the Kition Interests be supplemented on a continuing basis concerning the vessel's location.
(A) In rem jurisdiction via seizure/arrest of vessel:
As discussed in the undersigned's previous report, the central issue in Kition Shipping's motion to strike and/or dismiss is whether the DOTD has perfected in rem jurisdiction over the KITION. There are two (2) ways for a federal court to properly obtain in rem jurisdiction over a vessel: (1) seizure (or arrest, attachment, or process, etc.) of the vessel within the forum court's territorial jurisdiction, and/or (2) consent to jurisdiction. Lee v. Pearcy Marine, Inc., 1994 WL 759929 (S.D.Tex. 1994). Seizure is governed by Rule C(3) of the Federal Rules of Civil Procedure, Supplemental Rules for Admiralty and Maritime Claims.3 Since the essence of a court's power to exercise in rem jurisdiction over a vessel is the presence of the vessel within the court's territorial jurisdiction, in rem process can only be served within the forum district. Id. The DOTD concedes in this case that the KITION has not been within the territorial boundaries of this district at any time since this litigation was filed and has not been arrested, served, seized, or otherwise attached, despite the fact that this suit has been pending for over a year.
The Federal Rules of Civil Procedure are applicable to admiralty actions "except to the extent they are inconsistent with [the] supplemental [admiralty] rules." Fed.R.Civ.P. Supplemental Admiralty Rule A. Thus, under Fed.R.Civ.P. 4(m), when a plaintiff fails to serve a defendant within one hundred twenty (120) days, a court may either dismiss the action without prejudice, or direct that service...
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