Opinion
CIVIL ACTION No. 99-3839 SECTION: E/3.
April 20, 2000.
ORDER AND REASONS
Claimants in Limitation Joanne Leshe Manuel, Becky Manzella, and Harold Manuel (hereinafter "the Claimants") have filed a motion to dismiss the limitation of liability complaint of Hollywood Marine, Inc. ("HMI") for lack of subject matter jurisdiction, or alternatively, for failure to state a claim upon which relief can be granted. Limitation plaintiff HMI opposes the motion. Oral argument was requested and heard on the motion.
On June 15, 1999, Joanne Leslie Manual, the wife and now widow of Edward J. Manual, and Edward J. Manual, filed suit in the 34th Judicial District Court for the Parish of St. Bernard, State of Louisiana, against a number of defendants, including HMI, asserting causes of action under the Jones Act, 46 U.S.C. § 688, and the General Maritime Law for the damages sustained by Edward J. Manual while he was employed by defendants Barge Transport Co., Inc., Canal Barge Co., Inc., St. Pierre Towing Co., Inc., and Fryoux Tankerman Service, Inc., and worked aboard and served as a member of the crew of vessels owned by these defendants and vessels owned by HMI, and Cytec/American Cyanamid.
In the state court petition, petitioners allege that Edward Manuel was exposed to various carcinogens and toxic and hazardous substances carried as cargo on the vessels, including gasoline, petroleum products, butadiene, and acrylonitrile, and that these exposures were a substantial factor in causing malignant stomach cancer. He was diagnosed with malignant stomach cancer on January 19, 1999, and underwent a treatment regimen of surgery, radiation, and chemotherapy. His disease rapidly progressed, his perpetuation video deposition was taken, and he died on October 1, 1999, approximately two months after his forty-sixth birthday.
HMI admits that it was served with the state court petition on June 23, 1999. It filed the instant complaint seeking limitation of liability on December 22, 1999. Since it was filed within 6 months of the limitation of liability jurisdictional deadline pursuant to 46 App. § 185, albeit by one day, the complaint was timely.
Claimants, the surviving spouse and major children of Edward Manual, file this motion to dismiss the limitation action on a number of grounds. They agree that for purposes of the limitation, this is a single claim case, since the claims being asserted are wrongful death and survival actions of one person. The first basis upon which claimants urge dismissal is for lack of jurisdiction due to an alleged bad faith understatement of the appropriate limitation fund. The claimants contend that HMI has vastly understated the value of the limitation fund by using one barge out of the many upon which the decedent worked for the basis of the limitation fund, which they assert was in bad faith.
Regardless whether the limitation fund is understated or adequate, and indeed whether limitation petitioner posted any security within the six month limitation period, so long as the complaint of HMI seeking limitation of or exoneration from liability was timely filed within the six month period, this court has subject matter jurisdiction of the complaint. As plainly held by the Fifth Circuit in Guey v. Gulf Ins. Co., 46 F.3d 478, 481 (5th Cir. 1995), "under [46 U.S.C. App.] section 185, the simultaneous posting of security with the petition or the posting of security within six months is not a jurisdiction requirement." While there are other procedural vehicles available to the claimants to challenge the size of the limitation fund, since the posting of adequate security is not jurisdictional, the motion of claimants to dismiss the limitation complaint for lack of subject matter jurisdiction must fail.
The argument that the limitation petitioners are in bad faith because the identified only one barge is not supported by the record at this time. HMI has identified at least one barge on which plaintiff worked and may have been exposed to chemicals. It is entitled to seek limitation of liability in accordance with federal law. Whatever other issues arise from this limitation complaint, claimants have not demonstrated that this limitation action should be dismissed for lack of subject matter jurisdiction.
Claimants next argue that the limitation complaint must be dismissed for failure to state a claim because the claims asserted are for more than one distinct occasion. The "distinct occasion" rule contained in 46 U.S.C. App. § 183(d) provides that "[t]he owner of any such seagoing vessel shall be liable in respect of loss of life or bodily injury arising on distinct occasions to the same extent as if no other loss of life or bodily injury had arisen." A "seagoing vessel" is defined by the statute specifically to exclude "barges." 46 U.S.C. App. § 183(f). Thus, the distinct occasion rule does not apply to the vessel which is the subject of this limitation action. Even if it did, the fact that there were separate distinct occasions would not be cause to dismiss this petition, although it would gave rise to an argument that the claimants were not limited to the value of one barge when there were distinct occasions causing injury.
As concerns the claimants' policy arguments on the Savings to Suitors Clause, claimants may file a motion to lift the stay, so long as the proper stipulations are entered into and filed. A motion to lift the stay has not come before the Court and the outcome of any such motion is left for another day.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of claimants Harold Manuel, Joanne Manuel and Becky Manzella to dismiss this limitation complaint for lack of subject matter jurisdiction and/or for failure to state a claim upon which relief can be granted be and is hereby DENIED.