In re Complaint of Wepfer Marine, Inc.

• Decision Date: 09 November 2004
• Docket Number: No. 03-2202 B.,03-2202 B.
• Citation: 344 F.Supp.2d 1120
• Parties: In the Matter of THE COMPLAINT OF WEPFER MARINE, INC. FOR EXONERATION FROM OR LIMITATION OF LIABILITY.
• Court: U.S. District Court — Western District of Tennessee

344 F.Supp.2d 1120

In the Matter of THE COMPLAINT OF WEPFER MARINE, INC. FOR EXONERATION FROM OR LIMITATION OF LIABILITY.

No. 03-2202 B.

United States District Court, W.D. Tennessee, Western Division.

November 9, 2004.

COPYRIGHT MATERIAL OMITTED

Derrick S. Kirby, Gary T. Sacks, Goldstein & Price, St. Louis, MO, Louis J. Miller, Apperson Crump & Maxwell, PLC, Memphis, TN, for Petitioner.

Matthew H. Ammerman, Thomas C. Fitzhugh III, Fitzhugh & Elliott PC, Houston, TX, for Claimant Liberty Mutual Insurance Company.

John R. Smith, Brown Brasher & Smith, Memphis, TN, for Claimants Jose and Kimberlee Gonzalez.

ORDER GRANTING IN PART AND DENYING IN PART CLAIMANTS' MOTION TO DISMISS FOR LACK OF ADMIRALTY JURISDICTION

BREEN, District Judge.

In its petition filed April 3, 2003, Wepfer Marine, Inc. ("Wepfer") averred that it was the owner of barge ET-715, a steel-hulled river barge in the process of being broken up by Robinson Maintenance, Inc. ("Robinson") for scrap. Wepfer also owned a deck barge known as the No. 1 crane barge, which was used to accommodate a crawler crane in connection with longshoring work performed by Robinson on the Mississippi River. On March 13, 2002, the crane barge was positioned at or near mile 725 of the lower Mississippi River alongside a floating dry dock upon which the barge breaking was being conducted by, among others, the Claimant Jose Ramon Gonzalez. On that date, Gonzalez, allegedly employed by Robinson as a welder, barge breaker and barge repairman, was seriously injured while in the process of breaking barge ET-715. Gonzalez and his wife, Kimberlee Gonzalez, sued Wepfer in the Circuit Court of Shelby County, Tennessee for alleged injuries and other damages arising from the incident. Wepfer has brought this action claiming the benefit of the Limitation of Liability Act, codified at 46 U.S.C. §§ 181-95 (the "Limitation Act" or the "Act") as to both the river barge and the crane barge. The Gonzalezes and Robinson's insurer, Liberty Mutual Insurance Company, which paid compensation and medical expenses to Gonzalez under Robinson's Longshore and Harbor Workers' Compensation Act policy, have filed claims in this action against Wepfer.

The Act permits the owner of a vessel to "limit liability for damage or injury, occasioned without the owner's privity or knowledge, to the value of the vessel or the owner's interest in the vessel." Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 446, 121 S.Ct. 993, 1000, 148 L.Ed.2d 931 (2001). Originally enacted in 1851, the statute "was passed to encourage ship building and to induce capitalists to invest money in this branch of industry." In re Muer, 146 F.3d 410, 414 (6th Cir.1998) (citing Norwich & N.Y. Transp. Co. v Wright, 80 U.S. (13 Wall.) 104, 121, 20 L.Ed. 585 (1871)), cert. denied sub nom. Estate of Muer v. Karbel, 525 U.S. 1103, 119 S.Ct. 867, 142 L.Ed.2d 769 (1999) (internal quotation marks omitted). This purpose is achieved "by exempting innocent shipowners from liability, beyond the amount of their interest." Id. (citing Norwich) (internal quotation marks omitted). "When faced with liability for a maritime accident, a vessel owner may file a petition in federal court seeking limitation of liability" under the Limitation Act. Id. In seeking such limitation on liability, "a vessel owner also may request exoneration, or freedom from all liability," as the petitioner has in this case. See Cape Fear. Inc. v. Martin, 312 F.3d 496, 499 (1st Cir.2002).

In the instant motion, the Claimants, Liberty Mutual Insurance Co. and the Gonzalezes, seek dismissal of this proceeding on two grounds: (1) lack of admiralty jurisdiction based on barge ET-715 vessel status and (2) the untimeliness of Wepfer's petition. Although the Claimants do not identify the procedural rule pursuant to which their motion is brought, the Court assumes, as both arguments are jurisdictional, see Complaint of Tom-Mac. Inc., 76 F.3d 678, 682 (5th Cir.1996); In re UFO Chuting of Haw., Inc., 233 F.Supp.2d 1254, 1256 n. 2 (D.Haw.2001), they intended to invoke Rule 12(b)(1) of the Federal Rules of Civil Procedure, which allows the court to dismiss an action for lack of subject matter jurisdiction. Anderson v. United States, 317 F.3d 1235, 1236-37 (11th Cir.2003), cert. denied, 540 U.S. 965, 124 S.Ct. 429, 157 L.Ed.2d 309 (2003) (No. 02-1822) (applying Fed.R.Civ.P. 12(b)(1) to a request for dismissal of complaint for lack of admiralty jurisdiction). The court is permitted to weigh the evidence in order to satisfy itself that jurisdiction in fact is present. See Marina Entm't Complex. Inc. v. Hammond Port Auth., 842 F.Supp. 367, 369 (N.D.Ind.1994).

The United States Constitution extends the power of the federal courts "to all Cases of admiralty and maritime jurisdiction." U.S. Const. art. III, § 2, cl. 1. Title 28 U.S.C. § 1333(1) confers on the district court exclusive jurisdiction over "[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." Traditionally, the test for admiralty jurisdiction was whether the injury occurred in navigable waters. See Masherah v. Dettloff, 968 F.Supp. 336, 338 (E.D.Mich.1997) (citing Thomas v. Lane, 23 F. Cas. 957 (C.C.D.Me.1833)). In 1948, Congress changed the rule by enacting the Extension of Admiralty Jurisdiction Act, which broadened admiralty jurisdiction in the district courts to include all cases of damage or injury "caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." See id. (citing Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 209-10, 83 S.Ct. 1185, 1187-88, 10 L.Ed.2d 297 (1963)).

With respect to this case, the federal courts enjoy exclusive admiralty jurisdiction to determine limitation of liability for a vessel owner under the Limitation Act. In re Muer, 146 F.3d at 417. The Act does not, however, provide an independent ground for jurisdiction in this Court. Sea Vessel Inc. v. Reyes, 23 F.3d 345, 348 n. 6 (11th Cir.1994). When subject matter jurisdiction has been challenged, the party invoking such jurisdiction bears the burden of establishing its existence. Fernandez v. Haynie, 120 F.Supp.2d 575, 577 (E.D.Va.2000), aff'd, 31 Fed.Appx. 816, 2002 WL 451824 (4th Cir.2002).

In Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), the Supreme Court discussed the long history of admiralty jurisdiction and refined the parameters thereof, articulating as follows:

[A] party seeking to invoke federal admiralty jurisdiction... over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. The connection test raises two issues. A court, first, must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce. Second, a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.

Jerome B. Grubart, Inc., 513 U.S. at 534, 115 S.Ct. at 1048 (citing Sisson v. Ruby, 497 U.S. 358, 363-65 n. 2, 110 S.Ct. 2892, 2896-97 n. 2, 111 L.Ed.2d 292 (1990)) (internal citations and quotation marks omitted). The location test requires that the injury occur in "navigable waters of the United States" and be caused by a "vessel." Id. at 534-35, 115 S.Ct. at 1049. The Court further explained that the first prong of the connection test turns "on a description of the incident at an intermediate level of possible generality." Id. at 538, 115 S.Ct. at 1051. As to the second, the court is to "look to whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." That is, the court is to inquire into whether the tortfeasor's activity

on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand. Navigation of boats in navigable waters clearly falls within the substantial relationship; storing them at a marina on navigable waters is close enough; whereas in flying an airplane over the water, as in swimming, the relationship is too attenuated.

Id. at 539-40, 115 S.Ct. at 1051.

It is the assertion of the Claimants that, because barge ET-715 had been removed from navigation and was being cut up for scrap at the time the incident occurred, it was therefore no longer a "vessel" for purposes of admiralty jurisdiction. In its responses to Liberty Mutual's first request for admissions, Wepfer admitted that barge ET-715 was being dismantled for scrap at the time of the accident, that the vessel had been permanently withdrawn from navigation at the time of the injury, that Wepfer had requested Robinson to break the barge for scrap, and that prior to the incident portions of the barge had already been removed for scrap. (Liberty Mut. Ins. Co., Jose Gonzalez, and Kimberlee Gonzalez' Joint Mot. to Dismiss for Lack of Admiralty Juris., Ex. 1, pp. 5-6.) It argues in response to the instant motion, however, that vessels incapable of navigation retain vessel status so long as they previously carried persons or cargo over navigable waters.

"[P]recisely what constitutes a `vessel,' for purposes of admiralty and maritime jurisdiction, has never been stated by Congress or the courts with comprehensive clarity." Complaint of Dillahey, 733 F.Supp. 874, 882 (D.N.J.1990) (quoting 7a J. Moore & A. Pelaez, Moore's Federal Practice § 215 (2d ed.1988)). Rather, "each case depends on its particular facts; and structures shade off from what is obviously a vessel to what is obviously not." Id...