                      UNITED STATES COURT OF APPEALS
                               FIFTH CIRCUIT

                                    ____________

                                     No. 01-41245

                                 (Summary Calendar)
                                    ____________


            INTERNATIONAL SHIPBREAKING LIMITED LLC,


                                        Plaintiff-Counter Defendant- Appellant,

            versus


            L C SMITH; TUG ELSBETH II, her engines, tackle, etc. in rem,


                                        Defendants-Appellees,

            and

            SMITH MARITIME

                                        Defendant-Counter Claimant- Appellee.



                      Appeal from the United States District Court
                          For the Southern District of Texas
                                USDC No. B-01-CV-48

                                     June 11, 2002


Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*

       International Shipbreaking Limited LLC (“ISL”) appeals the district court’s partial grant of

summary judgment in favor of Smith Maritime (“Smith”) dismissing all of ISL’s claims and granting

summary judgment to Smith on one of its counterclaims. ISL also appeals the district court’s order

denying its motion to amend its complaint. ISL has failed to show that triable issues of fact exist with

respect to any of its claims or that the district court erred as a matter of law by granting summary

judgment in favor of Smith. ISL has also failed to show that the result in this case would have been

different had it been permitted to amend its complaint prior to the district court’s summary judgment

ruling. We therefore affirm. The motions that have been carried with this case are both denied.1

       This case arises out of the sinking of a naval destroyer during towage. The United States

Navy entered a contract with ISL (“the Navy contract”) for the dismantling of two of its

decommissioned destroyers, the USS COCHRANE and the USS STODDERT. Pursuant to the Navy

contract, ISL was responsible for dismantling the ships, disposing of hazardous waste, and selling

scrap materials. As part of its contractual obligations, ISL was also responsible for towing both ships

from Pearl Harbor, Hawaii to its facility in Brownsville, Texas and for purchasing insurance for the



       *
        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.
       1
         While this appeal was pending, Smith filed a motion for partial dismissal, arguing that this
court lacks jurisdiction to review the district court’s denial of ISL’s motion to amend its complaint
because it is an interlocutory order. Because the district court’s ruling on this motion may have
affected its decision to grant summary judgment to Smith on ISL’s claims, we have jurisdiction to
review it. See Cal. Advocates for Nursing Home Reform v. Creekside Care Convalescent, No.
97-15398, 1998 WL 75831, *3 (9th Cir.) (unpublished opinion) (citing Nat’l Am. Ins. Co. v. Certain
Underwriters, 93 F.3d 529, 540 (9th Cir. 1996)). Thus, Smith’s motion for partial dismissal is
denied. ISL’s request for attorneys’ fees incurred as a result of responding to the motion to dismiss
is also denied.

                                                  -2-
vessels.

       Thereafter, ISL entered into a contract with Smith Maritime (“the Towcon”) for towage of

the destroyers from Pearl Harbor to Brownsville. Smith then dispatched its tug to Pearl Harbor to

tow the destroyers in tandem to Brownsville. Approximately two weeks into the tow, a crewmember

aboard the tug alerted the crew that the USS STODDERT appeared heavy with a starboard list.

Later that morning, one-third of the USS STODDERT’s main deck aft was reported to be awash and

the bow was elevated. The tow wire was then cut.

       For the next few hours, the tug stood by until the weather cleared enough for a salvage party

to board the ship and assess the situation. Smith contacted the United States Coast Guard, the United

States Navy, and ISL to discuss their options. Thereafter, Smith directed the tug’s captain to order

all hatches opened to allow the USS STODDERT to sink. The USS COCHRANE was delivered to

ISL in Brownsville.

       ISL then filed suit against Smith for negligence in the towing of the destroyer and breach of

the warranty of workmanlike service implied in the contract between ISL and Smith. In its answer,

Smith counterclaimed that ISL breached its contract with Smith due to its failure to pay the final

installment due to Smith under the contract and the unseaworthiness of the tow. Smith then filed a

motion for summary judgment on ISL’s claims and its counterclaims. After Smith filed its motion

for summary judgment, but before the district court ruled on the motion, ISL filed a motion to amend

its complaint. The district court then granted in part Smith’s motion for summary judgment. In a

separate order, the district court denied ISL’s motion to amend its complaint on the ground that it

would not change the outcome of the summary judgment order. ISL appeals both rulings.

       We review a district court’s grant of summary judgment de novo. McClendon v. City of


                                                -3-
Columbia, 258 F.3d 432, 435 (5th Cir. 2001). We will affirm a district court ’s grant of summary

judgment when, viewing the evidence in the light most favorable to the nonmoving party, the record

reflects that no genuine issue of material fact exists, and the moving party is entitled to judgment as

a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). We

review a district court’s denial of a motion for leave to amend its complaint for abuse of discretion.

Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981).

        ISL first argues that the district court, when ruling on Smith’s summary judgment motion,

failed to address its intentional tort and fraud claims. This argument has two subparts. First, ISL

argues that it included sufficient allegations of intentional conduct in its original complaint to put

Smith on notice of its intentional tort claim. Alternatively, ISL argues that, had the district court

allowed ISL to amend its complaint, it would have clarified its intentional tort claim and added a new

fraud claim.

        After reviewing ISL’s original complaint, we agree with the district court that ISL did not

sufficiently plead an intentional tort claim. In its original complaint, ISL states that “Plaintiff’s claim

is for negligence and breach of warranty of workmanlike service.” The only reference to intentional

conduct was made in a separate paragraph of the complaint: “During the voyage, the USS

STODDERT was lost and/or was intentionally scuttled in the Pacific Ocean due to the negligence

and breach of warranty of workmanlike service provided by Smith, its tug, and its crew. Although

the pleading requirements under Rule 8 of the Federal Rules of Civil Procedure do not require an

inordinate amount of detail or precision, we believe this single reference to intentional conduct

couched in negligence and breach of warranty claims was insufficient to put Smith on notice of an

intentional tort claim. See St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 434 (5th Cir. 2000)


                                                   -4-
(stating that although a complaint does not need to include “magic words” to allege a claim, it must

state factual allegations from which a claim conceivably could be made); FED. R. CIV. P. 8 (requiring

only “a short and plain statement of the claim showing that the pleader is entitled to relief”).

        We have also reviewed ISL’s amended complaint to determine whether it would have changed

the outcome on summary judgment. In its amended complaint, ISL adds more references to

“intentional acts” and “fraud.” ISL still fails, however, to allege sufficient intentional conduct

entitling it to relief.2 ISL also fails to make any attempt to plead its new fraud claim with

particularity, as required by the Federal Rules of Civil Procedure. See FED. R. CIV. P. 9 (requiring

pleader to state the circumstances constituting fraud with particularity). Even assuming ISL’s

amended complaint satisfied the notice pleading requirements of Rules 8 and 9 of the Federal Rules

of Civil Procedure, ISL failed to present sufficient summary judgment evidence to create a fact issue

for the jury.3 As a result, we co nclude that the district court did not abuse its discretion when it

denied ISL’s motion to amend its complaint. See Addington v. Farmer’s Elevator Mut. Ins. Co., 650

F.2d 663, 667 (5th Cir. 1981) (“Clearly, if the complaint as amended would still be subject to

dismissal, no abuse of discretion occurs when the amendment is denied.”).

        Second, ISL argues that the district court erred when it dismissed its negligence claim against


        2
         In its brief on appeal, ISL attempts to clarify its claim based on “intentional acts” as a claim
for intentional interference with contractual relations. We find no reference to a claim for intentional
interference with contractual relations in any of ISL’s submissions to the district court, including
ISL’s response to Smith’s summary judgment motion. Because ISL makes this argument for the first
time on appeal, it is waived. Vogel v. Veneman, 276 F.3d 729, 733 (5th Cir. 2002).
        3
         The only evidence in the summary judgment record supporting ISL’s sabotage theory is the
affidavit of a crew member of the tug consisting largely of speculation and hearsay. See Fed. R. Civ.
P. 56(c) (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.”).

                                                  -5-
Smith based on the rule stated in Robins Dry Dock & Repair Co. v. Flint. In Robins Dry Dock, the

Supreme Court held that, in maritime law, where a claimant sustains no physical damage to property

in which it has a proprietary interest, no recovery is available for economic losses where a maritime

tort is unintentional.4 ISL argues that the rule stated in Robins Dry Dock does not apply here

because, by virtue of its contract with the Navy, it had a non-ownership proprietary interest in the

USS STODDERT at the time the ship sank.

       We have previously recognized a narrow exception to the rule stated in Robins Dry Dock for

certain non-ownership proprietary interests. In Bosnor S.A. de C.V. v. Tug L.A. Barrios, we held that

a bareboat charterer had a sufficient proprietary interest in the damaged property to state a cause of

action for its economic losses. 796 F.2d 776 (5th Cir. 1986). We reasoned that “[a] bareboat

charterer stands in the shoes of the owner of the vessel for the duration of the charter and is

responsible for managing and maintaining the ship.” Id. at 783. If the vessel is damaged, the

bareboat charterer is o rdinarily responsible to the shipowner for the damage; in essence, the

shipowner retains only a right of reversion. Id.; see Torch, Inc. v. Alesich, 148 F.3d 424, 427 (5th

Cir. 1998) ( “The essence of a bareboat charter is the complete surrender of possession and control

by the vessel owner to the charterer.”). ISL argues that, under its contract with the Navy, its

responsibility for the USS STODDERT was analogous to that of a bareboat charter and thus the




       4
         Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927) (holding that time charterer,
who did not have a significant property interest in the ship at issue, could not maintain a negligence
action against dry dock company for delaying in the performance of repairs to the ship and preventing
the time charterer from operating the ship); see Reserve Mooring Inc. v. Am. Commercial Barge Line
L.L.C., 251 F.3d 1069 (5th Cir. 2001) (holding that a mooring operator was precluded from
recovering economic damages from a barge owner who, by sinking its barge, blocked vessels from
mooring there, in the absence of physical damage to the mooring facility).

                                                 -6-
exception to Robins Dry Dock applies. 5

        After reviewing the evidence in the summary judgment record, we find ISL’s obligations

under the Navy co ntract insufficient to create a non-ownership proprietary interest in this case.

Contrary to ISL’s assertions, the Navy did not surrender complete control of the vessel to ISL in the

Navy contract, but specified the manner in which ISL was to perform its contractual duties. More

importantly, the Navy retained substantial financial responsibility for the USS STODDERT. The

Navy contract required that both the ISL and the Navy be named as co-insureds, stated that the cost

of insurance was included in the contract payment to ISL, and provided that the Navy would

indemnify ISL for losses not compensated for by insurance. Based on the Navy’s continued

responsibility for these liabilities, ISL cannot fairly be said to possess a proprietary interest in the USS

STODDERT.         Rather, ISL’s interest in the USS STODDERT was limited to its economic

expectation under its services contract with the Navy. As a result, the district court properly granted

summary judgment in favor of Smith on ISL’s negligence claim.

        Third, ISL argues that the district court erred when it dismissed its claim for breach of the

warranty of workmanlike service implied in the Towcon.6 According to the district court, the

Towcon did not contain such an implied warranty because the parties explicitly provided for the




        5
        To support its contention that it had a proprietary interest in the USS STODDERT, ISL
notes that it “gained possession and control” of the USS STODDERT from the Navy, that it was
responsible under its contract with the Navy to procure and maintain insurance for the ship, that it
was solely responsible for towing the ship from Pearl Harbor to Brownsville, and that it had control
over the dismantling of the ship and the disposal of scrap material and hazardous waste.
        6
        See Stevens v. East-West Towing Co., 649 F.2d 1104 (5th Cir. 1981) (recognizing an implied
warranty of workmanlike service in a towing contract).

                                                    -7-
allocation of risks between them.7 ISL suggests now that we should imply a warranty of workmanlike

service because the risk allocation provision relied upon by the district court is against public policy

and void. See Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955) (holding that a party may not

insulate himself from all liability caused by his own negligence).

       After reviewing the Towcon and the relevant case law, we agree with the district court’s

conclusion that the Towcon does not include a warranty of workmanlike service. Specifically, we

agree with the district court’s reasoning that Smith and ISL, both commercial entities, were free to

allocate contract risks between themselves and to disclaim implied warranties. See Employers Ins.

of Wausau v. Suwannee River Spa Lines, 866 F.2d 752, 764 (5th Cir. 1989) (stating that, in a

commercial context, parties are generally capable of allocating the risk of defective performance of

a contract for services). Moreover, we note that the provision at issue here differs from the provision

invalidated in Bisso because it does not shelter Smith from all liability. Rather, Smith retained

substantial exposure to liability vis-a-vis an identical provision allocating risk of damage to the tug

to Smith “whether or not the same is due to breach of contract, negligence or any fault on the part

of the Hirer [ISL].” We have previously upheld exculpatory provisions where a party has retained

sufficient exposure to liability to deter negligence. See Todd Shipyards Corp. v. Turbine Serv. Inc.,

674 F.2d 401, 410 (5th Cir. 1982) (upholding red letter clause limiting defendant’s liability for


       7
        Specifically, the court noted that the parties, both commercial entities and sophisticated
contractors, contracted as follows:
       The following shall be for the sole account of the Hirer [ISL] without any recourse
       to the Tug Owner [Smith], his servants or agents, whether or not the same is due to
       breach of contract, negligence or any fault on the part of the Tugowner, his servants
       or agents:
       (1)     loss or damage of whatsoever nature, howsoever caused to or sustained by
               the tow.


                                                  -8-
negligence and breach of contract to $300,000). Because the contract between ISL and Smith did

not contain an implied warranty of workmanlike service, the district court properly granted summary

judgment in favor of Smith on this claim.

         Finally, ISL argues that the district court erred when it granted summary judgment in favor

of Smith on its breach of contract counterclaim. Specifically, ISL argues that it was relieved of its

obligation to pay the final installment under the contract because Smith breached the Towcon when

it sank the USS STODDERT. We have already determined that ISL’s breach of contract claim fails

because the contract between Smith and ISL did not contain an implied warranty of workmanlike

service. Moreover, as the district court noted, the fact that the USS STODDERT sank before the

completion of towage did not relieve ISL of its obligation to pay the final installment to Smith. The

parties contemplated the risk of loss of the tow and expressly provided that payment was due

“without any discount, deduction, set-off, lien, claim or counterclaim . . . fully and irrevocably earned

at the moment it is due . . . Tug and/or Tow lost or not lost.”8 Because ISL expressly bargained for

the undertaking and not the result, it was obligated to make its final payment on the contract

regardless of the sinking of the USS STODDERT. Thus, the district court properly granted summary

judgment in favor of Smith on its counterclaim.

         For the foregoing reasons, the district court’s partial grant of summary judgment in favor of

Smith is AFFIRMED. Smith’s motion for partial dismissal and ISL’s motion for attorneys’ fees are

DENIED.




         8
          We also note that the USS COCHRANE was successfully towed by Smith to Brownsville,
Texas.

                                                  -9-
