Loeber v. Bay Tankers, Inc.
| Decision Date | 06 March 1991 |
| Docket Number | No. 90-3537,90-3537 |
| Citation | 924 F.2d 1340 |
| Parties | , 59 USLW 2588 Charlene LOEBER, and Glen Loeber, Individually and on behalf of their minor daughter, Gretchen Loeber, Plaintiffs-Appellants v. BAY TANKERS, INC., and United States of America, Defendants-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John J. Cummings, III, Richard M. Martin, Jr., Cummings, Cummings & Dudenheffer, New Orleans, La., for plaintiffs-appellants.
Norman C. Sullivan, Jr., Peter B. Tompkins, Gelpi, Sullivan, Carroll & Laborde, New Orleans, La., Debra J. Kossow, U.S. Dept. of Justice, Torts Branch, Civil Div., Washington, D.C., John P. Volz, U.S. Atty., New Orleans, La., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before JOHNSON, SMITH, and WIENER, Circuit Judges:
The Plaintiffs-Appellants, Charlene and Glen Loeber, individually and on behalf of their daughter Gretchen Loeber, appeal the district court's order (1) sustaining the motion by the United States that summary judgment be granted, dismissing their suit against the United States for want of jurisdiction; and (2) denying the Loebers' motion to file a third amended and supplemental complaint in which they sought to have the court exercise pendent-party jurisdiction over Violet Dock Port, Inc. We affirm the grant of summary judgment and reverse the denial of the motion to file an amended complaint.
Plaintiff Glen Loeber was the first assistant engineer aboard the USNS POLLUX, a vessel owned by the United States. On June 13, 1988, the POLLUX was moored outboard of, and alongside, the USNS REGULUS, another vessel owned by the United States, which was moored at the Violet Dock Port in Violet, Louisiana. On that day while Glen's wife, Charlene, and his two daughters, Gretchen and Glennis, were visiting Glen and standing on the dock adjacent to the REGULUS, a wake from a passing merchant vessel, the M/V METEORA, allegedly caused the REGULUS to surge. That surge in turn caused the REGULUS' accommodation ladder to roll across the dock. The ladder struck Gretchen, knocked her down, and rolled along her legs, breaking her right femur bone. Both parents claim that they too sustained personal injuries while they were attempting to extricate Gretchen from beneath the ladder.
On June 2, 1989, seeking damages for their personal injuries, the Loebers filed the instant litigation pursuant to the Public Vessels Act (PVA), 46 U.S.C.App. Sec. 781 et seq. (1976), against the United States and Bay Tankers, Inc., the contract operator of the REGULUS. On November 9, 1989, the district court granted the government's motion to dismiss the Loebers' claims against Bay Tankers, their punitive damage claim, their claim under the laws of the State of Louisiana, and their request for a jury trial, none of which are permissible under the PVA.
At a preliminary pretrial conference on October 24, 1989, the government advised that because the Loebers' injuries occurred on land adjacent to navigable water and were allegedly caused by a vessel on navigable water, jurisdiction is based on the Admiralty Extension Act, 46 U.S.C.App. Sec. 740 (AEA) rather than on the PVA. The government charged that the Loebers had not satisfied the provision of the AEA that states, "no suit shall be filed against the United States until there shall have expired a period of six months after the claim has been presented in writing to the federal agency owning or operating the vessel causing the injury or damage." On November 21, 1989, the United States served a request for admission on the Loebers, asking them to admit that they had not filed a written claim with the Department of the Navy before they filed this suit. On December 19, 1989, the Loebers admitted that they had not filed a complaint. On February 7, 1990, the Loebers submitted a claim to the United States Department of the Navy.
Meanwhile, on December 30, 1989, the Loebers had also obtained leave of the district court to file their first amended and supplemental complaint in which they added as a defendant the owner of the M/V METEORA, Metropolitan World Maritime Corporation. They later filed a second amended and supplemental complaint in which they amplified their claims against Metropolitan and added Washington Aluminum Company as a new defendant.
On February 16, 1990, the United States moved for summary judgment seeking dismissal of the Loebers' claims for failure to comply with the requirements of the AEA. In a Minute Entry dated April 6, 1990, and entered April 9, 1990, the district court granted that motion. On April 24, 1990, the court denied the Loebers' motion for leave to file a third amended and supplemental complaint which sought to add Violet On May 7, 1990, the Loebers filed a motion requesting the court to reconsider both its April 6th grant of summary judgment and its April 24th denial of leave to file the third amended and supplemental complaint. In a minute entry dated June 20, 1990, the court denied the motion for reconsideration. On July 18, 1990, the Loebers filed a notice of interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(a)(3) from the denial of reconsideration.
Dock Port, Inc. as a defendant under the theory of pendent-party jurisdiction.
Jurisdiction, if any, in this case rests upon the AEA. Section 740 unambiguously states that "jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage has been done and consummated on land." 1 (emphasis added). Because the REGULUS was a vessel on navigable water and allegedly caused the injuries to the plaintiffs while they were on an adjacent dock, the AEA clearly applies. See Turner Terminals, Inc. v. United States, 177 F.2d 844, 846 (5th Cir.1949).
46 U.S.C.App. Sec. 740. The AEA's requirement that a written claim be presented six months before a suit is filed is jurisdictional. Turner, 177 F.2d at 846; Hahn v. United States, 218 F.Supp. 562, 565 (E.D.Va.1963) (citing Turner, 177 F.2d 844). The principle is well settled that when the sovereign consents to be sued, "the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941). The Loebers brought suit on June 2, 1989, over eight months before they submitted a written claim to the Department of the Navy, the federal agency owning the REGULUS. Because the Loebers failed to comply with a jurisdictional requirement explicitly expressed in the controlling statute, the district court lacked jurisdiction to entertain their suit against the United States.
The Loebers' action against the United States is also time barred. The AEA states:
That as to any suit against the United States for damage or injury done or consummated on land by a vessel on navigable waters, the Public Vessels Act [46 U.S.C.App. Sec. 781 et seq.] or Suits in Admiralty Act [46 U.S.C.App. Sec. 741 et seq.], as appropriate, shall constitute the exclusive remedy of all causes of action....
46 U.S.C.App. Sec. 740. Accordingly, a two-year statute of limitations applies, as neither side disputes, to the Loebers' suit against the United States. See 46 U.S.C.App. Sec. 745 ("Suits as herein authorized may be brought only within two years after As the Loebers' cause of action arose on June 13, 1988, they had until June 13, 1990, to file suit. Because the AEA mandates a six-month waiting period from the filing of a claim to the filing of a suit, the Loebers had until December 13, 1989, to submit a written claim to the Department of the Navy if they desired to file suit before the statutory period expired on June 13, 1990. By December 13th they had not done so; instead, they waited to submit a claim until February 7, 1990. Consequently, their claims are time barred.
the cause of action arises...."); McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed.26 (1951) ().
The government notes that the Loebers filed two more complaints against the United States in this matter. Those complaints are not part of the record on appeal. Nevertheless, we note that the filing of those complaints does not affect the outcome of this appeal. The Loebers apparently filed their second suit against the United States on June 12, 1990, one day before the two-year limitation period expired. They filed that suit, however, less than six months after they had submitted their claim to the Department of the Navy on February 7, so the Loebers again failed to comply with the jurisdictional requirement. See Turner, 177 F.2d at 846 ().
The Loebers' third suit was filed on August 21, 1990, more than six months after submitting the claim to the responsible federal agency but also more than two years after the occurrence of the incident which, the Loebers allege, caused their injuries. The third suit too is time barred because the Loebers filed it over two months after the two-year limitation period had expired.
The Loebers claim that the two-year limitation period should have tolled during the six-month waiting period. Two courts have...
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