In re Biloxi Casino Belle Inc.
| Decision Date | 10 January 1995 |
| Docket Number | Bankruptcy No. 94-0853SEG. Adv. No. 940944SEG. |
| Parties | In re BILOXI CASINO BELLE INCORPORATED. CHARLES N. WHITE CONSTRUCTION COMPANY, Plaintiff, v. MRA, LTD., d/b/a Casino Belle of Tunica; et al., Defendants. |
| Court | United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Mississippi |
COPYRIGHT MATERIAL OMITTED
William H. Leech, Samuel C. Kelly, Jackson, MS, for Charles N. White Constr. Co.
Jeff D. Rawlings, Jackson, MS, Ellen Werther, New York City, for debtor.
T. Glover Roberts, Dallas, TX, for Unsecured Creditors Committee.
Mark N. Parry, New York City, Henry E. Chatham, Jr., Jackson, MS, for First Trust Nat. Ass'n.
Andrew J. Kilpatrick, Jr., P.A., Jackson, MS, for Ferguson Enterprises, Inc.
On November 2, 1994, the plaintiff, Charles N. White Construction Company ("White Construction"), filed a Motion for Summary Judgment on its Complaint for Declaratory Judgment against the defendants listed herein. White Construction seeks a declaration in its favor that (1) the Biloxi Belle II Casino and the Southern Belle Casino do not constitute "vessels" for purposes of federal admiralty and maritime matters and the Ship Mortgage Act, 46 U.S.C. § 30101 et seq. and (2) First Trust National Association ("First Trust"), a defendant herein, does not possess a first preferred ship/ fleet mortgage on the Biloxi Belle II Casino and the Southern Belle Casino pursuant to the Ship Mortgage Act, 46 U.S.C. § 30101 et seq.
On November 23, 1994, First Trust filed its Cross-Motion for Summary Judgment and Opposition to White Construction's Motion for Summary Judgment, without supporting affidavits. Also on November 23, 1994, the Official Committee of Unsecured Creditors filed its Response in Support of White Construction's Motion for Summary Judgment, likewise without supporting affidavits. Finally, on December 2, 1994, the Debtor, Biloxi Casino Belle, Incorporated, filed its Response in Support of White Construction's Motion for Summary Judgment, with a supporting Affidavit of Neal Miller.
The Court hereby finds that the following facts are undisputed:
FINDINGS OF FACT
1. On or about August 1, 1993, Charles N. White Construction Company contracted to construct alterations and improvements to four barges, thereby converting them into a floating, dockside casino known as the Southern Belle. See Exhibit "A" to White Construction's Complaint for Declaratory Judgment. On or about October 12, 1993, First Trust National Association filed, with the United States Coast Guard, its purported first preferred fleet mortgage on the barges which formed the foundation for the Southern Belle Casino. See Exhibit "F" to First Trust's Answer and Counterclaim.
2. On or about November 2, 1993, White Construction contracted to construct improvements to two barges furnished by the Debtor with the intention to produce a floating dockside casino known as the Biloxi Belle II Casino. See Exhibit "C" to White Construction's Complaint for Declaratory Judgment. On or about June 1, 1994, the Debtor ordered work on the Biloxi Belle II Casino suspended and White Construction stopped work at that time. Affidavit of Neal Miller at 7. On or about June 21, 1994, First Trust National Association filed, with the United States Coast Guard, its purported first preferred ship mortgage on two barges which formed the foundation of the Biloxi Belle II Casino. See Exhibit "H" to First Trust's Answer and Counterclaim.
3. The Southern Belle Casino is located at Commerce Landing in Robinsonville, Tunica County, Mississippi. Affidavit of Neal Miller at 3. The renovations to the Biloxi Belle II Casino are partially completed on barge foundations and said casino is currently located at 13039 Seaway Road, Gulfport, Harrison County, Mississippi. Affidavit of Neal Miller at 7.
4. The Southern Belle Casino was not designed nor intended to be used, nor is it capable of being used, as a means of waterborne transportation. Affidavit I of Charles N. White at 2-3, Exhibit "1" to White's Motion, Exhibit "2" to White's Motion, Affidavit of Terry Warren at 1-5, Exhibit "3" to White's Motion; Affidavit of Neal Miller at 3-8. Instead, for the reasons set forth below, the Southern Belle Casino was designed and constructed to be permanently moored for exclusive use as a floating dockside casino.
a. The Southern Belle Casino is constructed on a platform built out of the remnants of four (4) barges. In July, 1993, four barges were pulled into the basin where the Southern Belle Casino is currently located. Prior to placing the barges at the project site, the site was graded and two concrete pads were poured at the location where the Southern Belle Casino was to be stationed. The barges were then placed upon the concrete pads and the boat basin was drained. The barges remained on dry land from July, 1993 through January, 1994, at which time the barges were refloated. Each barge was 220 feet long and 52.5 feet wide. To accommodate construction, the barges were arranged in a rectangular configuration with two barges side-by-side and the other two in line behind them. Next, the abutting bows and sterns were removed and additional steel pieces were attached to make one solid steel perimeter around all four barges. In addition, steel members and steel plates were welded along the entire length of the inboard sides of each barge to form a single watertight structure. This work was completed by October 12, 1994, with the four barges being completely welded together. Affidavit of Terry Warren at 2-3; Affidavit of Neal Miller at 4-5.
b. Charles N. White Construction Company erected structural steel on the Southern Belle Casino barge platform to a height of approximately 64 feet above the deck. In addition, White poured a ground floor concrete slab which covers the entire length of the reconstructed barges and concrete slabs for the second and third floors. This work was covered with a roof, exterior skin and other construction work to comprise the Southern Belle Casino. Affidavit of Terry Warren at 3; Affidavit of Neal Miller at 5.
c. The Southern Belle Casino is currently situated in a self-contained basin which is built up from the ground level. The basin is comprised on three sides of steel sheet piling. The fourth side is enclosed by an earthen dam which is reinforced by vertical steel piling, horizontal steel piping, large external rip-rap stone, and a concrete water control structure. In order to remove the Southern Belle Casino from this basin, the concrete earthen dam would have to be torn out, an asphalt road and two other earthen dams would have to be demolished and the milelong canal leading to the Mississippi River would have to be flooded. Affidavit I of Charles N. White at 3; Affidavit of Terry Warren at 3, 5; Affidavit of Neal Miller at 7.
d. The Southern Belle Casino is permanently moored through extensive connections to land-based structures and utilities. Affidavit I of Charles N. White at 3; Affidavit of Terry Warren at 3; Affidavit of Neal Miller at 5-6.
e. The Southern Belle Casino has no means of self-propulsion, no rudder, no anchor, and no steering mechanism. Affidavit of Terry Warren at 4; Affidavit of Neal Miller at 6. The Southern Belle Casino has no self-contained power, water, fire protection, sewerage, or life safety or rescue systems. Affidavit of Terry Warren at 3-4; Affidavit of Neal Miller at 5-6. The Southern Belle Casino has no navigational equipment or navigational lights. Affidavit of Terry Warren at 4; Affidavit of Neal Miller at 6. The Southern Belle has no life rafts, no life vests nor any other standard marine life-saving equipment. Affidavit of Terry Warren at 4; Affidavit of Neal Miller at 6. The Southern Belle has no captain or crew. Affidavit of Terry Warren at 4; Affidavit of Neal Miller at 6.
f. The Southern Belle is not positioned in a navigable waterway and is not subject to tides or currents of any kind. Affidavit I of Charles N. White at 2-3; Affidavit of Terry Warren at 5; Affidavit of Neal Miller at 7.
5. The Biloxi Belle II Casino was not designed nor intended to be used, nor is it capable of being used, as a means of waterborne transportation. Affidavit II of Charles N. White at 2-3; Affidavit of Neal Miller at 7-8. Instead, for the reasons set forth below, the Biloxi Belle II Casino was designed and constructed to be permanently moored for exclusive use as a floating dockside casino.
a. The Biloxi Belle II Casino is designed to be structurally and architecturally similar to the Southern Belle Casino. Upon completion, the Biloxi Belle II Casino will consist of three stories and extend approximately 70 feet above the deck of the owner furnished barges. Affidavit II of Charles N. White at 2; Affidavit of Neal Miller at 8.
b. The Biloxi Belle II Casino is designed to be permanently moored through extensive connections to land-based structures and utilities. Affidavit II of Charles N. White at 2-3.
c. The Biloxi Belle II Casino does not have nor is it designed to have a means of self-propulsion, a rudder, an anchor or a steering mechanism. Affidavit II of Charles N. White at 2-3; Affidavit of Neal Miller at 8. The Biloxi Belle II Casino has no nor is it designed to have self-contained power, water, fire protection, sewerage or life safety and rescue systems. Affidavit II of Charles N. White at 2; Affidavit of Neal Miller at 8.
d. The Biloxi Belle II Casino has no and is not designed to have navigational equipment and navigational lights. Affidavit II of Charles N. White at 2; Affidavit of Neal Miller at 8. The Biloxi Belle II Casino has no and is not designed to have life rafts, life vests or any other standard marine life-saving equipment. Affidavit II of Charles N. White at 2; Affidavit of Neal Miller at 8.
e. The Biloxi Belle II Casino is not scheduled to have a captain or crew. Affidavit II of Charles N. White at 2; Affidavit of Neal...
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