           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                                     No. 06-20540                       September 21, 2007
                                   Summary Calendar
                                                                      Charles R. Fulbruge III
                                                                              Clerk
ATWOOD OCEANICS INC

                                                  Plaintiff–Appellee
v.

ZUST BACHMEIER OF SWITZERLAND INC

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  4:04-CV-4028


Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
       Zust Bachmeier of Switzerland, Inc. (Zust) appeals the district court’s
denial of its summary judgment motion. We affirm.
       Atwood Oceanics, Inc. (Atwood) contracted with Zust in 2002 to be the
packer and freight forwarder of an Atwood Beacon Drillers Control Module
(DCM), which Atwood was shipping from the Port of Houston, Texas to the
Republic of Singapore. The vessel bearing the DCM left Houston on October 28,


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        No. 06-20540

2002 and arrived in Singapore on December 15, 2002. Upon inspection, it was
allegedly discovered that the boards covering the DCM’s HVAC openings were
broken and freshwater was in the cabin, causing $300,000 in damage. On
October 19, 2004, Atwood sued Zust on contract and tort theories to recover for
the damage to the DCM. Zust filed a conditional motion for summary judgment
on March 28, 2006, which the district court denied on May 2, 2006. Upon Zust’s
motion, the district court amended its order to comply with 28 U.S.C. § 1292(b)
to allow for the interlocutory appeal now before this court.1
       Zust challenges the district court’s determination that the notice provision
contained in the Terms and Conditions that governed the contractual
relationship between Zust and Atwood is void as a matter of law because it
violates section 16.071(a) of the Texas Civil Practice & Remedies Code.
       Section 16.071(a) states:
                  A contract stipulation that requires a claimant to give
                  notice of a claim for damages as a condition precedent
                  to the right to sue on the contract is not valid unless the
                  stipulation is reasonable. A stipulation that requires
                  notification within less than 90 days is void.2

Under Texas law, this statute “must be construed liberally in favor of the
common right of redress and strictly against contractual infringements of that
right . . . .”3




       1
          The district court granted and denied various other motions for summary judgment
filed by the parties in this case, but only the district court’s May 2, 2006 order denying Zust’s
March 28, 2006 conditional motion from summary judgment is before us on this interlocutory
appeal.
       2
           TEX. CIV. PRAC. & REM. CODE § 16.071(a).
       3
         Citizens’ Guar. State Bank v. Nat’l Surety Co., 258 S.W. 468, 469 (Tex. Comm’n App.
1924, judgm’t adopted) (analyzing TEX. REV. CIV. STAT. ANN. 5714, a predecessor to
section 16.071).

                                               2
                                          No. 06-20540

       The contract in this case provides:
               9. Presenting Claims: The Company shall not be liable
               for any claims of any kind (whether direct or for
               contribution or indemnity) not presented to it in writing
               within 90 days of either the date of loss or incident
               giving rise to the claim.

The parties do not dispute that Atwood failed to present its claim to Zust within
90 days, but the district court determined that this provision was void as a
matter of public policy because it violated section 16.071(a). We agree. This
provision requiring notice of a claim “within 90 days” is “[a] stipulation that
requires notification within less than 90 days” that is void under section
16.071(a).4
       Zust argues that Texas Rule of Civil Procedure 4 and Federal Rule of Civil
Procedure 6(a), which state that the day of the event is not included in the
computation of a period of time prescribed in a procedural rule, somehow extend
the notice requirement of the contractual provision beyond 90 days. But Zust
cites no authority supporting its contention that a rule of procedure explaining
how a court should compute a period of time contained in a procedural rule can
influence the timing of a contractual provision that does not incorporate the
Rules of Civil Procedure. This argument is therefore without merit.
       AFFIRMED.



       4
          See id. (“[A] stipulation for notice ‘within 90 days’ is ‘a less period than 90 days’ within
[article 5714's] prohibition.”); Taber v. W. Union Tel. Co., 137 S.W. 106, 108 (Tex. 1911) (“The
provision in the contract requiring that notice shall be given within 90 days after the filing of
the message we construe to mean that such notice shall be given before the expiration of 90
days after the filing of the message, and hence is void [under article 3379, a predecessor to
section 16.071].”); Ridglea Estate Condo. Assoc. v. Lexington Ins. Co., 415 F.3d 474, 478 (5th
Cir. 2005) (stating in dicta that “[s]ection 16.071 provides that stipulations requiring notice of
‘claims of damages’ within 90 days are unenforceable”). Cf. Lehtonen v. Clarke, 784 S.W.2d
945, 948 (Tex. App.–Houston [14th Dist.] 1990, writ denied) (holding that interrogatories
requiring answers “within 30 days” did not meet Texas Rule of Civil Procedure 168(4), which
provides that the time allowed “shall not be less than thirty days”).

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