Appeals from the United States District Court for the Eastern
District of Louisiana
STEWART, Chief Judge, and JONES and ENGELHARDT, Circuit
E. STEWART, CHIEF JUDGE
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.
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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.
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).
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 and Excess 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.
Shell, Motiva, and the Excess Insurers 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
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 . . . .
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).