                  United States Court of Appeals,

                           Fifth Circuit.

                            No. 94-30191.

   TEXACO, INC., as owner, praying for exoneration from and/or
limitation of liability, et al., etc., Petitioners-Appellees,

                                 v.

   Paul WILLIAMS and Harrison Ellender, Claimants-Appellants.

                          March 21, 1995.

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

Before REYNALDO G. GARZA, DeMOSS and BENAVIDES, Circuit Judges.

     REYNALDO G. GARZA, Circuit Judge:

                             Background

     On August 24, 1993, a fire and an explosion occurred on the

T/B BUSTER LEE, a barge owned by Texaco, Inc. (Texaco) and bare

boat chartered by Texaco Exploration and Production, Inc. (TEPI).

Appellants Ellender and Williams, employees of TEPI, were severely

burned in the accident. Appellant Ellender filed a Jones Act claim

in Louisiana state court.    On October 18, 1993, Texaco and TEPI

filed a complaint in federal court seeking exoneration from or

limitation of liability.      The district court issued an order

staying Ellender's state court action and restraining Williams from

filing a similar state claim.     Appellants filed answers in the

limitation proceeding, seeking damages in excess of $8 million.

These claims exceeded the value of the vessel, valued by Texaco at

$125,000.   Claimants then filed a motion to lift the stay, seeking




                                  1
to pursue their rights under the savings to suitors' clause.1                  The

district court denied their motion and this appeal ensued.

                                    Discussion

         The   issue      before   this   Court   involves   "a    recurring   and

inherent conflict" between the exclusive jurisdiction vested in

admiralty courts by the Limitation of Liability Act2 and the common

law remedies embodied in the saving to suitors clause of 28 U.S.C.

§ 1333.3       The Limitation Act provides that the liability of a

shipowner shall not exceed the value of the vessel at fault and her

pending freight if the casualty occurred without the privity or

knowledge      of   the    shipowner.         Federal   courts    have   exclusive

jurisdiction over suits invoking the Act, "saving to suitors ...

all other remedies to which they are otherwise entitled."4

         When a shipowner invokes the Act the federal court may stay

all other proceedings against the shipowner arising out of the same

accident and require all claimants to timely assert their claims in

the limitation court. The purpose of the limitation is to preserve

the right of the shipowner to limit its liability in a federal

forum to the value of the vessel and her pending freight.5                     The


     1
      28 U.S.C. § 1333.
     2
      46 U.S.C.App. § 183.
     3
      In re Dammers & Vanderheide & Scheepvaart Maats Christina
B.V., 836 F.2d 750, 754 (2d Cir.1988).
     4
      28 U.S.C. § 1333.
     5
      Magnolia Marine Transp. v. LaPlace Towing Corp., 964 F.2d
1571, 1575 (5th Cir.1992) (citing Langnes v. Green, 282 U.S. 531,
543, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931)).

                                          2
problem is that "one statute [gives the complainant] the right to

a common-law remedy, which he [may seek] in the state court;                      and

another    statute     [gives    the    shipowner]       the   right    to    seek   a

limitation of liability in the federal district court."6                          The

courts    have   attempted      to   resolve      this    conflict     by    creating

exceptions to the exclusive jurisdiction of the federal courts.

Initially,       two    exceptions        were     recognized:              (1)   the

single-claim-inadequate-fund                  situation,        and     (2)       the

multiple-claim-adequate-fund situation.                  In Ex parte Green,7 the

Supreme Court held that a single claimant seeking damages in excess

of the limitation fund may proceed outside of the limitation action

if the claimant agreed not to raise issues to be decided in the

limitation court.        In Lake Tankers Corp. v. Henn,8 the Supreme

Court    faced   the   issue    of     multiple    claims      that   exceeded    the

limitation fund.       The Court held that the claimants could proceed

outside of the limitation proceedings if they relinquished their

rights to damages in excess of the amount of the limitation fund.9

The Court reasoned that in this situation, the "state proceeding

could have no possible effect on the petitioner's claim for limited

liability";      both the shipowner's right to limit liability in a

federal forum and the claimants' rights to pursue their state law

     6
        Langnes, 282 U.S. at 539-40, 51 S.Ct. at 246.
     7
        286 U.S. 437, 52 S.Ct. 602, 76 L.Ed. 1212 (1932).
     8
        354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957).
     9
      The respondent filed stipulations agreeing to neither
increase the claims, nor to enter into a judgment in excess of
these amounts, and waived any claims of res judicata.

                                          3
remedies under the savings to suitors clause were protected. Under

this backdrop,       the   Fifth       Circuit   has    held       that,    with   proper

stipulations, claimants may proceed outside the limitation action.

        In Magnolia Marine Transport v. LaPlace Towing Corp. multiple

claimants sought to recover damages in excess of the limitation

fund pursuant to their saving to suitors rights, that is, outside

of the limitation action.              This Court reasoned that a singular

claimant may pursue a state court claim after filing several

stipulations.        First,      the    claimant       must    stipulate      that   the

admiralty court reserves exclusive jurisdiction to determine all

issues     related   to    the   shipowner's       right      to    limit    liability.

Second, the claimant must stipulate that no judgment will be

asserted against the shipowner to the extent it exceeds the value

of the limitation fund.            "But even in multiple-claimant cases,

admiralty courts still should allow state court claims to proceed

under proper stipulations."10            Multiple claimants may reduce their

claims to the equivalent of a single claim by stipulating to the

priority in which their claims will be paid from the limitation

fund.     Similarly, in In re Two "R" Drilling Co.11 this Court held

that a shipowner's rights are protected when multiple claimants

file proper stipulations. A deckhand drowned while working for Two

"R" Drilling Co., and the widow brought claims on behalf of her

children,     the    deceased,     and     herself.           The    plaintiff     filed


     10
      Magnolia, 964 F.2d at 1576 (citing In re Dammers, 836 F.2d
at 754).
     11
          943 F.2d 576 (5th Cir.1991).

                                           4
stipulations conceding the right of the shipowner to litigate all

issues relating to limitation of liability in a federal forum and

agreed not to enforce a judgment in excess of the limitation fund.

This Court approved of the procedure and affirmed the district

court's ruling to lift the stay, stating, "[w]here the claimant

concedes the admiralty court's exclusive jurisdiction to determine

all issues relating to the limitation of liability, the district

court should lift any stay against the state proceeding."12

     Recently, in Odeco Oil and Gas Co. v. Bonnette13 this Court

faced the very issue presently before this Court.          Odeco was

performing safety drills on a fixed platform in the Gulf of Mexico,

when five members of the crew boarded an escape capsule suspended

90 feet above the water.     Someone in the capsule pulled the wrong

lever, releasing the capsule from the platform;          the capsule

plunged into the Gulf seriously injuring all of its passengers.

Odeco filed an action for a declaratory judgment and, in the

alternative, to limit its liability in federal court. The district

court issued an order staying any further litigation against Odeco

arising from this incident.      The claimants filed personal injury

suits in state court and filed answers in the district court,

requesting that the stay be lifted.     The district court lifted the

stay, allowing the claimants to pursue their claims in state court.

     The Odeco court stated, "claims may proceed outside the


     12
          Id. at 578 (citations omitted).
     13
      4 F.3d 401 (5th Cir.1993), cert. denied, --- U.S. ----,
114 S.Ct. 1370, 128 L.Ed.2d 47 (1994).

                                   5
limitation action (1) if they total less than the value of the

vessel, or (2) if the claimants stipulate that the federal court

has   exclusive     jurisdiction     over      the   limitation    of   liability

proceeding and that they will not seek to enforce a greater damage

award until the limitation action has been heard by the federal

court."14      This Court reasoned that if the claimants seek to take

advantage of their savings to suitors remedies in state court, we

must accede to this choice if the shipowner's rights to limit are

protected by stipulations.

      Appellee contends that we should not lift the stay for two

reasons.       First, by following Odeco and lifting the stay we are

creating a third exception to the exclusive jurisdiction of our

admiralty courts.           The Supreme Court has authorized only two

exceptions:            the       single-claimant-inadequate-fund             and

multiple-claimant-adequate-fund exceptions.              If a claimant proves

that it meets one of these exceptions, then it must enter into

stipulations to protect the shipowner's rights.                   Entering into

stipulations does not in and of itself create an exception.

      Though we find this reasoning persuasive it is not in accord

with Fifth Circuit law.             The case law is clear that if all

claimants       stipulate    that   the       federal   court     has   exclusive

jurisdiction over limitation issues and the claimants will not seek

to enforce a greater damage award than the limitation fund, the




      14
           Odeco, 4 F.3d at 404.

                                          6
claimants may proceed outside of the limitation action.15            While we

may have reservations concerning the breadth of this exception16 and

the correctness of condoning a multiplicity of law suits,17 some of

which will be duplicitous, we are bound to follow Fifth Circuit

law.18

         Second, Appellee argues that Odeco is "entirely different and

distinguishable"      from   the   facts   presently   before     this   Court.

Texaco     sought   exoneration    from    or   limitation   of   liability.19

     15
      Complaint of Port Arthur Towing M/V MISS CAROLYN, 42 F.3d
312, 316 (5th Cir.1995); Odeco, 4 F.3d at 404.
     16
      But Odeco indicates that this should not be the focus of
our concern. "If the purpose of the Limitation Act were to
accomplish judicial efficiency as well as limitation of
liability, this case would clearly call for [a] concursus
proceeding. But the Supreme Court explained in Lake Tankers, 354
U.S. at 152-53, 77 S.Ct. 1272-73, that liability may and should
be limited consistent with preserving the claimants' right to
proceed in the fora of their choice." Odeco, 4 F.3d at 404-05
(emphasis added).
     17
      But see Pershing Auto Rentals, Inc. v. Gaffney, 279 F.2d
546, 550-51 (5th Cir.1960) (citing Petition of Texas Co., 213
F.2d 479, 482 (2d Cir.) (stating that the "purpose of limitation
proceedings is not to prevent a multiplicity of suits but, in an
equitable fashion, to provide a marshalling of assets—the
distribution pro rata of an inadequate fund among claimants, none
of whom can be paid in full"), cert. denied, 348 U.S. 829, 75
S.Ct. 52, 99 L.Ed. 653 (1954)); Petition of Moran Transp. Corp.,
185 F.2d 386, 389 (2d Cir.1950) (stating the same), cert. denied,
340 U.S. 953, 71 S.Ct. 573, 95 L.Ed. 687 (1951).
     18
      See Port Arthur Towing Co., 42 F.3d at 316 (stating that
when the shipowner is not exposed to liability beyond the
limitation fund the savings to suitors clause controls); Odeco,
4 F.3d at 404-05 (quoted supra ); Magnolia Marine Transport, 964
F.2d at 1576 (stating that under proper stipulations, multiple
claimants should still be allowed to proceed with their state
court claims).
     19
      Rule F of the Supplemental Rules for Certain Admiralty and
Maritime Claims provides that "[t]he complaint may demand
exoneration from as well as limitation of liability." Therefore,

                                      7
Echoing the district court, Appellee contends that the case before

us is a "serious exoneration" suit and Odeco did not discuss

exoneration.     Accordingly, Odeco should be restricted to suits

seeking limitation of liability only.

     We find this argument unpersuasive for two reasons.          First,

shipowners routinely seek exoneration and limitation of liability

in the alternative.      In fact, Odeco filed a declaratory judgment

action requesting the court to determine that the capsule was not

a vessel, that the injuries were not caused by the vessel's

negligence, and that any action for damages was barred by § 905(a)

of the Longshore and Harbor Worker's Compensation Act.        Though the

Odeco court did not label this action as one of exoneration, we

must recognize it for what it is.         If any court had entered a

declaratory judgment on one of these issues, Odeco would have been

exonerated. For this reason, we find that "exoneration" was before

this Court in Odeco.     Second, Appellants have agreed to stipulate

that the limitation court is not bound by any decisions by other

courts   on    issues   relating   to   limitation   of   liability   and

exoneration.    Therefore, the shipowner's right to limit liability

and litigate the issue of exoneration in federal court is protected

by stipulation.    For these two reasons, we are compelled to follow

Odeco.


Texaco may assert its exoneration claim along with its limitation
claim. Accord Providence and New York Steamship Co. v. Hill Mfg.
Co., 109 U.S. 578, 595, 3 S.Ct. 379, 390, 27 L.Ed. 1038 (1883)
(stating that the questions to be settled in the proceedings are
"first, whether the ship or its owners are liable at all ... and,
secondly, if liable, whether the owners are entitled to a
limitation of liability").

                                    8
          During    oral    argument       Appellants       agreed    to    enter   into

stipulations that would protect any rights Appellee alleged in the

federal     court     pleadings,          including        the    right    to   receive

exoneration, and agreed to consolidate their suits and litigate

them in one state trial.         We direct the district court to evaluate

these new stipulations, and to consider the following issues and

suggestions    in    determining          the   adequacy     of    the    stipulations.

First, if a direct action claim has been or may be asserted against

the underwriters of Texaco and TEPI in state court, then the

stipulations       may     include    a    waiver     by    Williams      and   Ellender

similarly protecting these insurance carriers from collection of

any state court judgment unless and until the federal court's

limitation of liability proceeding determines that Texaco and TEPI

were not entitled to either exoneration from or limitation of

liability.20       Second, the district court should determine if any

potential derivative actions exist;                 if so, then the stipulations

should cover these as well.                 Third, the district court should

determine if the casualty gave rise to any environmental claims

that were timely filed;              if so, the stipulations should require

     20
      We note that "the Act itself affords ... underwriters no
right of limitation." Magnolia, 964 F.2d at 1576. This opinion
should not be construed to create a right for underwriters to
limit their liability or to take shelter under stipulations
protecting the shipowner. Any right to limit an underwriter's
liability is purely contractual in nature. "[T]he underwriters
are not entitled to a stipulation in their favor." Id. (emphasis
added). We are not requiring the claimants to enter into
stipulations protecting the underwriters; however, because the
claimants were so willing to enter into any stipulation, so as
"to take advantage of the perceived magnanimity of ... [state]
juries," we are suggesting this stipulation. Odeco, 4 F.3d at
405.

                                            9
joinder of the claimants.      If the stipulations cover all potential

claimants   and   adequately    protect   Texaco's   right   to   receive

exoneration or to limit liability, then the stay should be lifted,

allowing Appellants to pursue their saving to suitors remedies.

     We reverse the district court's refusal to lift the stay, and

remand this action to the district court to evaluate the adequacy

of Appellants' new stipulations consistent with this opinion.

     REVERSED and REMANDED.




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