     Case: 13-30739   Document: 00512637804   Page: 1   Date Filed: 05/21/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                        Fifth Circuit

                                                                       FILED
                               No. 13-30739
                                                                     May 21, 2014
                                                                    Lyle W. Cayce
                                                                         Clerk
STEPHEN MARSHALL GABARICK, on behalf of himself and all others
similarly situated; ET AL,

                                        Plaintiffs
v.

LAURIN MARITIME (AMERICA) INCORPORATED; ET AL,

                                        Defendants


AMERICAN COMMERCIAL LINES, L.L.C.,

                                        Plaintiff-Appellant
v.

D.R.D. TOWING COMPANY, L.L.C.,

                                        Defendant-Appellee

UNITED STATES OF AMERICA,

                                        Intervenor-Appellee



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


Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
    Case: 13-30739     Document: 00512637804       Page: 2   Date Filed: 05/21/2014



                                   No. 13-30739
      American Commercial Lines (“ACL”) sought a declaratory judgment that
certain vessel chartering agreements with D.R.D. Towing Company, LLC
(“DRD”) were void ab initio. The district court dismissed the action pursuant
to the equitable doctrine of judicial estoppel. It found that ACL’s position in
the declaratory judgment action—that the charters were void ab initio—
clearly contradicted its earlier position in a related proceeding that the
charters were valid, which had been accepted by the district court.            ACL
appeals from the district court’s dismissal and seeks remand with instructions
to declare the charters void ab initio.
                                          I
      ACL is a marine transportation enterprise that operates a fleet of barges
and tugboats. ACL contracted with DRD to operate some of its tugs, including
the MEL OLIVER. 1 This contractual relationship was created and governed by
two charter agreements. Under the “Bareboat Charter,” ACL chartered its
tugboat to DRD at the rate of $1 per day. Then, under the “Fully Found
Charter,” DRD agreed to crew the tug and charter its services to ACL.
      In the early morning of July 23, 2008, the MEL OLIVER was pushing an
ACL barge, loaded with fuel oil, along the Mississippi River near the City of
New Orleans. The DRD steersman operating the tug was unlicensed, in
violation of Coast Guard regulations. As it moved towards its destination, the
MEL OLIVER veered off course and collided with the tanker M/V
TINTOMARA. The force of the impact separated the tug from the barge, which
floated downriver and sank upstream of the Crescent City Connection Bridge.
Three hundred thousand gallons of fuel oil were discharged into the
Mississippi.



      1 An amendment to the initial charter substituted the MEL OLIVER for the PAM D,
the vessel originally listed in the agreement.
                                          2
    Case: 13-30739    Document: 00512637804     Page: 3   Date Filed: 05/21/2014



                                 No. 13-30739
      Several lawsuits followed. The United States brought an action against
ACL under the Oil Pollution Act, 33 U.S.C. § 2701, et seq. DRD pleaded guilty
to criminal charges for its role in the collision. ACL, DRD, and entities with
interests in the M/V TINTOMARA (“the TINTOMARA interests”) each filed
interpleader actions to limit, or preclude, their liability arising out of the
collision under general maritime law. These limitations actions were
consolidated and tried together (“the limitations action”). Lastly, ACL filed the
instant declaratory judgment action to have the charter agreements with DRD
declared void ab initio. Relying on DRD’s admissions in its criminal guilty plea,
ACL sought to prove that DRD entered into the charters with the intent to
violate their terms, thereby perpetrating fraud in the inducement.
      Initially, the declaratory judgment action and the limitations action
proceeded in parallel. The district court denied ACL’s motion for partial
summary judgment in the declaratory judgment action, finding a dispute of
material fact concerning DRD’s intent to deceive ACL when forming the
charters. Then, over ACL’s objection, the district court granted two motions: it
consolidated the declaratory judgment action into the limitations action, and
it stayed the declaratory judgment action pending resolution of the limitations
action. The stay order was entered pursuant to 28 U.S.C. § 2361, which
permits a federal court to stay actions in state and federal courts during the
pendency of a related interpleader. The district court’s stay order stated that
“the declaratory judgment action should be stayed pending resolution of the
instant action.”
      The limitations action was tried to the bench. Among the arguments
offered to the court, ACL asserted that, pursuant to the valid charters, DRD
was the owner pro hac vice of the MEL OLIVER. The district court accepted
this argument, finding that fault for the collision lay solely with DRD, in
personam, and with the MEL OLIVER, under DRD’s control, in rem.
                                       3
     Case: 13-30739       Document: 00512637804         Page: 4    Date Filed: 05/21/2014



                                      No. 13-30739
       Following judgment in the limitations action, with the parties’ consent,
the district court proceeded to try the declaratory judgment action on the bench
trial record from the limitations action. The court then granted the United
States permissive intervention, as its interests in the Oil Pollution Act suit
could be affected by a declaration that the charters were void ab initio. 2 After
further briefing, in which the United States urged judicial estoppel, the district
court dismissed the declaratory judgment action with prejudice, determining
that “ACL’s complaint seeking declaratory judgment to void the charters
between itself and DRD is barred by judicial estoppel.” The court determined
that it could not declare the charters void ab initio because it had “already
accepted ACL’s argument that valid bareboat charters existed . . . .” ACL
appeals from the dismissal, and from the district court’s earlier denial of
partial summary judgment.
                                             II
       We review a district court’s decision to invoke judicial estoppel for abuse
of discretion. Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir.
2003). “A trial court abuses its discretion when it bases its decision on an
erroneous view of the law or a clearly erroneous assessment of the evidence.”
United States v. Caldwell, 586 F.3d 338, 341 (5th Cir. 2009).
                                             A
       Judicial estoppel is an equitable doctrine that defies “inflexible
prerequisites or an exhaustive formula.” New Hampshire v. Maine, 532 U.S.
742, 751 (2001). The doctrine “prevents a party from asserting a position in a
legal proceeding that is contrary to a position previously taken in the same or


       2 In seeking to void the charters, ACL’s apparent objective is to defeat the United
States’ ability to recover from ACL under the Oil Pollution Act, believing that such recovery
is only possible if ACL was in contractual privity with DRD.
        DRD filed for bankruptcy and did not oppose ACL in the declaratory judgment action.
Nor has DRD submitted briefing in this appeal.
                                             4
     Case: 13-30739       Document: 00512637804          Page: 5     Date Filed: 05/21/2014



                                       No. 13-30739
some earlier proceeding.” Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5th
Cir. 1996); see also New Hampshire, 532 U.S. at 749 (“The doctrine of judicial
estoppel prevents a party from asserting a claim in a legal proceeding that is
inconsistent with a claim taken by that party in a previous proceeding.”)
(quoting 18 Moore’s Federal Practice § 134.30, p. 134–62 (3d ed. 2000)). One of
the doctrine’s purposes is “to prevent litigants from playing fast and loose with
the courts.” Hall, 327 F.3d at 396. And, ultimately, judicial estoppel protects
“the integrity of the judicial process.” United States ex rel. American Bank v.
C.I.T. Constr. Inc. of Texas, 944 F.2d 253, 258 (5th Cir. 1991). In this circuit,
at least two requirements must be met before a party’s argument may be
judicially estopped. Id. First, the estopped party’s position must be “clearly
inconsistent with its previous one,” and second, “that party must have
convinced the court to accept that previous position.” Hall, 327 F.3d at 396. 3
                                              B
       In the limitations action, ACL claimed that the charter agreements made
DRD the owner pro hac vice of the MEL OLIVER. The validity of the charters
is a necessary predicate to this claim. The district court adopted ACL’s position


       3 ACL asserts that there are three requirements for judicial estoppel applicable in this
case, relying on our precedent in In re Superior Crewboats, Inc., 374 F.3d 330, 335 (5th Cir.
2004). The purported third element is that “the non-disclosure must not have been
inadvertent.” Id. This element is not applicable in the instant case; we apply it only when the
judicial estoppel is based on the non-disclosure of a claim in a prior bankruptcy proceeding.
ACL has not directed us to any non-bankruptcy case that applied this factor. Superior
Crewboats is a bankruptcy case. And, indeed, this requirement does not logically apply
outside of the bankruptcy code’s disclosure procedures—the requirement necessarily
presumes that a “non-disclosure” has occurred, and it is concerned with the party’s intent
behind the non-disclosure. In New Hampshire v. Maine, the Supreme Court did indicate that
judicial estoppel might be inappropriate “when a party’s prior position was based on
inadvertence or mistake.” New Hampshire, 532 U.S. at 753. However, the facts of New
Hampshire and this case are distinct. In New Hampshire, inadvertence is addressed in
conjunction with the Court’s analysis of whether New Hampshire fully understood the
significance of its previous position as to its border with Maine. Here, there is no question
that ACL understood the significance of asserting that the charter agreements were, or were
not, valid.
                                              5
    Case: 13-30739    Document: 00512637804     Page: 6   Date Filed: 05/21/2014



                                 No. 13-30739
in deciding that DRD was solely liable for the collision. After lift of the stay
order in the declaratory judgment action, ACL then asserted that the charters
were void ab initio—that is, they never came into existence because of DRD’s
alleged fraud in the inducement. These two positions are clearly inconsistent,
and, moreover, the district court adopted the first position in its judgment
resolving the limitations action. See Hall, 327 F.3d at 396.
      Here, ACL argues that its two positions are not inconsistent, claiming
that, in the limitations actions, it only posited the “agreements were intended
to be valid charters.” Simultaneously, ACL asserts that the district court’s
actual holding in the limitations action was that “there was no act or omission
of ACL which caused or contributed to the collision”—not that the charters
were actually valid instruments. Under ACL’s reasoning, the district court’s
judgment in the limitations actions established that ACL “intended” and
“expected” that the charters would be valid, not that they were actually
binding. Accordingly, under ACL’s view, there is no inconsistency between its
positions.
      ACL’s characterizations of its previous argument and the district court’s
holding are unavailing. In the limitations actions, ACL did not argue that the
charters were merely “intended” to be valid. Rather, it actively opposed the
TINTOMARA interests’ position that the charters were “crewing agreements,”
which did not render DRD owner pro hac vice of the tug. ACL asserted that
“there is no evidence that [the charters] were anything other than what they
purported to be, valid and customary charters.” Most significantly, throughout
the limitations action, ACL argued the position that, pursuant to the charters,
“DRD became owner pro hac vice” of the MEL OLIVER. This legal fiction of
general maritime law is only tenable if the charters were in fact valid
agreements. Accordingly, we reject ACL’s claim that its positions in the two
actions are not inconsistent. Similarly, we reject ACL’s assertion that the
                                       6
    Case: 13-30739     Document: 00512637804     Page: 7   Date Filed: 05/21/2014



                                  No. 13-30739
district court did not accept its position in the limitations action. The district
court’s judgment establishes that it found “there was a valid bareboat charter
that invested DRD with ownership pro hac vice along with a valid time charter
that recognized DRD’s status as ‘owner’ vis-à-vis ACL’s charter position in the
latter charter.” It is clear that the validity of the charters was central to the
district court’s judgment.
      Next, ACL contends that its positions in the limitations action and the
declaratory judgment action are not inconsistent because, in the limitations
action, its position that the charters were valid was one of several alternative
arguments. In addition to arguing the charters were valid, ACL also asserted
the affirmative defense that the charters were void ab initio. Under this theory
of the case, ACL claimed that there was no agreement between ACL and DRD
for use of the tug, which DRD possessed illegally. It is true that alternative
arguments are widely permitted, even if they are inconsistent. See Fed. R. Civ.
P. 8(d)(3) (“A party may state as many separate claims or defenses as it has,
regardless of consistency.”). But, in the context of judicial estoppel, the fact
that a party’s previous position was an alternative argument is not
determinative. The second prong of our judicial estoppel analysis requires that
the party “must have convinced the court to accept that previous position.”
Hall, 327 F.3d at 396. This makes all the difference. Once a court has accepted
and relied upon one of a party’s several alternative positions, any argument
inconsistent with that position may be subject to judicial estoppel in
subsequent proceedings.
      We take guidance from New Hampshire v. Maine, in which the Supreme
Court estopped New Hampshire from making an argument about its maritime
border with Maine that had been one of New Hampshire’s alternative
arguments in a previous proceeding. In the previous proceeding, litigated in
the Supreme Court during the 1970’s, “New Hampshire offered two
                                        7
    Case: 13-30739     Document: 00512637804      Page: 8   Date Filed: 05/21/2014



                                  No. 13-30739
interpretations” of its border with Maine based upon language from King
George II’s 1740 decree fixing the boundary at the “Middle of the River.” New
Hampshire, 532 U.S. at 751–52. First, in the terms of a proposed consent
decree, New Hampshire claimed that the “Middle of the River” was the center
of the river’s main navigable channel. Id. at 751. Second, New Hampshire
asserted that the charter referred to the geographic middle of the river. Id.
Ultimately, the 1970’s dispute was resolved by the consent decree. The Court
“accepted New Hampshire’s agreement with Maine” that the charter indicated
the center of the navigable channel—accepting one of the State’s two
alternative arguments. In the subsequent proceeding in 2001, the Court
applied judicial estoppel notwithstanding the fact that New Hampshire had
taken alternate positions in the 1970’s proceeding. The relevant focus was that
the “record of the 1970’s dispute makes clear that this Court accepted New
Hampshire’s [position].” Id. at 752.
      Lastly, ACL asserts that there is no inconsistency because its argument
in the limitations action, that the charters were valid, “leads to the same result
as ACL’s position” in the declaratory judgment action. Certainly, ACL might
obtain similar results with inconsistent arguments in these two cases—
avoiding liability for the collision and liability for clean up costs. But judicial
estoppel is not controlled by consistency of a party’s desired objectives. The
doctrine focuses on the consistency of a party’s arguments as accepted by the
court, and seeks to “prevent[ ] internal inconsistency.” Ergo Science, Inc., v.
Martin, 73 F.3d 595, 598 (5th Cir. 1996).
                                        C
      Next, ACL contends that judicial estoppel is inapplicable because the
district court’s order staying the declaratory judgment action prevented it from
arguing that the charters were void ab initio. ACL asserts that “[i]t is merely
trying to make the arguments that were stayed during the trial” of the
                                        8
    Case: 13-30739     Document: 00512637804     Page: 9    Date Filed: 05/21/2014



                                  No. 13-30739
limitations action, and that it “never had the opportunity to address the other
defense that the charters were void ab initio.” In ACL’s view, the district
court’s stay order obliged it to argue that the charters were valid in the
limitations action, and, accordingly, applying judicial estoppel would be
inequitable.
      Judicial estoppel is not permitted “if it was the court, not the party, that
instigated the first position that the party later chose to abandon.” 4 In Zedner
v. United States, 547 U.S. 489, 503 (2006), a criminal defendant signed the
District Court’s waiver form purporting to prospectively waive his rights under
the Speedy Trial Act to secure a continuance. In a subsequent appeal, the
defendant argued that prospective waivers are invalid. The government
asserted a judicial estoppel defense because “petitioner’s [prospective] express
waiver induced the district court to grant a continuance . . . .” Id. The Court
refused to apply judicial estoppel, in part, because, “it was the District Court
that requested the waiver and produced the form for petitioner to sign.” Id. at
505. In fact, the District Court’s prospective waiver form was “apparently of its
own devising.” Id. at 494. Thus, the Court found that the “[p]etitioner did not
succeed in persuading the District Court to accept the proposition that
prospective waivers of the Speedy Trial Act are valid,” the position later
contradicted. Id. at 505 (alterations and internal quotations omitted). Zedner
establishes that judicial estoppel is inapplicable when the court requires the
party to adopt the position it later seeks to contradict.
      Here, the district court’s stay order did not require ACL to adopt the
position that the charters were valid. Unlike the waiver form in Zedner, which




      418B CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE & PROCEDURE,
JURISDICTION § 4477 (2d ed. 2014).
                                        9
    Case: 13-30739        Document: 00512637804           Page: 10     Date Filed: 05/21/2014



                                        No. 13-30739
articulated a particular position, the instant stay order only delayed resolution
of the declaratory judgment action until the limitations actions concluded.
       The stay issued pursuant to 28 U.S.C. § 2361, which permits a federal
court to stay pending actions when exercising jurisdiction over an interpleader
action. The statute provides that “a district court may issue its process for all
claimants and enter its order restraining them from instituting or prosecuting
any proceeding in any State or United States court affecting the property,
instrument or obligation involved in the interpleader action until further order
of the court.” 28 U.S.C. § 2361 (emphasis added). This statute only permits a
court to restrain “a proceeding”, it provides no authority to control the course
of other proceedings, or to require a party to take certain positions in other
proceedings. 5 Under this authority, the district court’s stay order provided
simply that “the declaratory judgment action should be stayed pending
resolution of the instant action.” Nothing in the text of this order restricts the
scope of ACL’s potential arguments in the limitations action. While the order
stayed the declaratory judgment action, in which ACL sought to have the
charters declared void ab initio, it did not prevent that argument from being
raised in the limitations action, nor did it compel the argument that the
charters were valid.
       In addition to the limited statutory authority and the particular
language of the district court’s stay order, ACL’s claim that the stay prevented



       5 Similarly, FED. R. CIV. P. SUPP. R. F(3), which addresses limitation of liability in
admiralty and maritime claims, such as the instant case, supports this understanding of the
statute’s scope. The rule provides that, “[o]n application of the plaintiff the court shall enjoin
the further prosecution of any action or proceeding against the plaintiff or the plaintiff’s
property with respect to any claim subject to limitation in the action” (emphasis added). Like
§ 2361, Supplemental Rule F(3) only empowers a court to enjoin the prosecution of other
actions. The rule does not permit a court to foreclose particular arguments in cases not
subject to the stay.

                                               10
    Case: 13-30739    Document: 00512637804      Page: 11   Date Filed: 05/21/2014



                                  No. 13-30739
it from arguing the charters were void ab initio in the limitations action is
belied by the fact that it did make that argument. In the limitations action, one
of ACL’s alternative positions, “was that the Bareboat and Fully Found
Charters and the amendment were void ab initio and DRD was illegally in
possession of the MEL OLIVER at the time of the collision.” Under this theory,
ACL alleged that it was not liable for the collision because it had no connection
to the tug at the time of the accident—DRD was the true possessor, though
unlawfully. In short, ACL was able to take this position in the limitations
action. The declaratory judgment stay order did not foreclose this position, or
require the argument that the charters were valid.
      Rather, it appears that ACL chose to assert that the charters were valid
in the limitations action. This is not the same as a district court requiring a
party to take a specific position, as in Zedner. In complex litigation such as
this, litigants must routinely make strategic choices and weigh for themselves
the consequences of each option. While the stay order put ACL to a choice, it
neither forced ACL to argue that the charters were valid, nor prevented it from
arguing that the charters were void ab initio. Accordingly, the district court
did not require ACL to adopt the position it later sought to contradict, and it is
not inequitable to apply judicial estoppel.
                                       III
      For the foregoing reasons, we hold that the district court did not abuse
its discretion in dismissing the declaratory judgment action on grounds of
judicial estoppel.
      AFFIRMED.




                                       11
