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SCF Waxler Marine, L.L.C. v. Aris T M/V

United States Court of Appeals, Fifth Circuit

October 29, 2018

SCF WAXLER MARINE, L.L.C., Plaintiff
v.
ARIS T M/V, Defendant In re: In the Matter of the Complaint of Cenac Marine Services, L.L.C., as Owner and Operator of the M/V LORETTA CENAC, BARGE CTCO 338, BARGE CTCO 339, and BARGE CTCO BARGE 357B, for Exoneration From or Limitation of Liability CENAC MARINE SERVICES, L.L.C., etc. Petitioner VALERO REFINING - NEW ORLEANS, L.L.C.; MOTIVA ENTERPRISES, L.L.C., Third Party Plaintiffs Claimants - Appellants
v.
CONTINENTAL INSURANCE COMPANY; AGCS MARINE INSURANCE COMPANY; NEW YORK MARINE AND GENERAL INSURANCE COMPANY; STONINGTON INSURANCE COMPANY; NATIONAL SPECIALTY INSURANCE COMPANY; LLOYD'S SYNDICATES, Third Party Defendants - Appellees
v.
SHELL CHEMICAL, L.P., Claimant - Appellant

          Appeals from the United States District Court for the Eastern District of Louisiana

          Before STEWART, Chief Judge, and JONES and ENGELHARDT, Circuit Judges.

          CARL E. STEWART, CHIEF JUDGE

         A stream of litigation followed a marine accident that resulted in damages estimated to exceed $60 million. The underlying fault or liability for that accident is not at issue on appeal. Rather, Valero, Shell, and Motiva ask this court to resolve whether the excess insurers of one of the involved vessels may limit their liability to that of the insured vessel. On a partial motion for summary judgment, the district court held that the Protection and Indemnity policy covering the vessel has a Crown Zellerbach clause thereby permitting the excess insurers to limit their liability to that of the insured vessel.

         Valero, Shell, and Motiva timely appealed, asserting that this court has jurisdiction to hear an appeal of that interlocutory order under 28 U.S.C. §1292(a)(3). Because we lack appellate jurisdiction, we DISMISS.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On January 31, 2016, bulk carrier Aris T collided with a tank barge, a towing vessel, and two facility structures along the Mississippi River upriver from New Orleans. Prior to the accident, the Aris T was proceeding upriver as two towing vessels, the Elizabeth M. Robinson and Loretta G. Cenac, were moving downriver toward their respective destinations. Both towing vessels were pushing ahead three loaded tank barges, each barge 300 feet long and 54 feet wide. Despite communications between the captains of each vessel about facilitating the Loretta G. Cenac's attempted pass of the Elizabeth M. Robinson, an accident occurred after the Aris T struck the portside of an empty tank barge which in turn struck another tank barge. The barges were connected by the stern to the bow of towing vessel SCF Vision moored at a dock owned by Valero Refining - New Orleans ("Valero"). In the aftermath of this initial collision, the Aris T, still moving upriver, struck another towing vessel as well as multiple berths owned by Shell Chemical, L.P. ("Shell") and Motiva Enterprises ("Motiva"). Both tank barges, the facility dock, and the SCF Vision sustained damage.

         On February 2, 2016, SCF Waxler Marine, LLC, owner and operator of damaged towing vessel SCF Vision, filed suit against the Aris T in the Eastern District of Louisiana. Soon thereafter, Valero, Shell, and Motiva also filed actions against the Aris T. Seeking to limit its liability for damages resulting from the accident, the Aris T filed a Verified Complaint in Limitation under the Limitation of Liability Act (46 U.S.C. §§ 30501-12), arguing that it was not at fault for the accident. The vessel most relevant to this appeal-the Loretta G. Cenac through its owner Cenac Marine Services, LLC ("Cenac")-similarly filed a Verified Complaint for Exoneration from or Limitation of Liability. The district court consolidated that action along with others related to the accident. The Exoneration Complaint sought declaratory relief from the district court providing that Cenac was not liable or, if found liable, that its liability be limited to the value of Cenac's interest in the vessels involved-$14, 602, 365 (value of the vessels plus freight).

         Louisiana's Direct Action Statute permits persons sustaining damages in accidents occurring in Louisiana to bring direct actions against insurers of the individual alleged to have caused the accident. La. Rev. Stat. Ann. 22:1269. Subject to a handful of exceptions not applicable here, a direct action may not be brought against the insurer alone. See id. at B(1)(a)-(f). On January 24, 2017, Valero, Shell, and Motiva exercised this right, impleading Cenac's Primary[1] and Excess[2] Insurers pursuant to Federal Rule of Civil Procedure 14. They claimed that the Excess Insurers, by virtue of Louisiana's Direct Action Statute, were liable to Valero, Shell, and Motiva for all damages sustained in the accident that were the fault of Cenac.

         Valero, Shell, Motiva, and the Excess Insurers[3] then quarreled about whether the primary P&I policy, issued by the Primary Insurers and followed by all Excess Insurers, had language indicating that the insurers could limit their liability to that of the Loretta G. Cenac. That is, whether the P&I policy contains a "Crown Zellerbach clause." See Crown Zellerbach Corp. v. Ingram Indus., Inc. 783 F.2d 1296 (5th Cir. 1986) (en banc).

         Valero, Motiva, and Shell filed a motion for partial summary judgment to settle the Crown Zellerbach issue. On September 6, 2017, the district court sided with the Excess Insurers, denying the motion. More specifically, the district court concluded that the following provision satisfied Crown Zellerbach's requirements for an insurer to limit its liability:

The Assurer hereby undertakes to make good to the Assured or the Assured's executors, administrators and/or successors, all such loss and/or expense as the Assured shall as owners of the vessel named herein have become liable to pay and shall pay on account of the liabilities, risks, events and/or happenings herein set forth . . . .

         Valero, Motiva, and Shell timely appealed on October 5, 2017. They assert that this court has jurisdiction to hear the appeal pursuant to 28 U.S.C. § 1292(a)(3).

         II. ...


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