              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT
                         _______________

                           m 98-60580
                         _______________


                        In the Matter of:
                    TREASURE BAY CORPORATION,

                                                Debtor.

                        HAM MARINE, INC.,

                                                Appellant,

                              VERSUS

                FIRST TRUST NATIONAL ASSOCIATION,

                                                Appellee.

                    _________________________

          Appeal from the United States District Court
            for the Southern District of Mississippi
                        (1:97-CV-488-BrR)
                    _________________________
                         April 16, 2001

Before SMITH and DENNIS, Circuit Judges, and ROETTGER,*
District Judge.

ROETTGER, District Judge:**

     Ham Marine Inc. appeals from the district court’s order

affirming the summary judgment entered by the Bankruptcy Court

against appellant in which the Bankruptcy Court determined Ham


     *
       District Judge of the Southern District of Florida, sitting
by designation.
     **
       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this opinion should not be published and is not precedent except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.
Marine Inc. did not possess a water craft lien pursuant to Miss.

Code Ann. § 85-7-7.   As this Court finds that any such lien would

be subordinate to appellee’s mortgage, we affirm.

                                  I.

     Treasure Bay Gaming & Resorts, Inc. (“TBGR”) issued notes to

finance the construction of a floating dockside casino in Biloxi,

Mississippi.   These notes evidenced the indebtedness of TBGR to

First Trust National Association (“First Trust”).    The proceeds

of these notes were lent to Treasure Bay Corporation (“Treasure

Bay”) a wholly owned subsidiary of TBGR in return for a first

preferred ship’s mortgage and further security in the form of a

deed of trust, leasehold deed of trust, assignment of rents,

security agreement, financing statement and fixture filing upon

all the assets of Treasure Bay.    TBGR then assigned all its

interests to First Trust.

     The Treasure Bay Biloxi Casino opened in April 1994.

Several months later Treasure Bay hired appellant, Ham Marine

Inc. (“Ham Marine”), to make certain modifications to facilitate

transportation of the casino barge in event of a hurricane and to

stabilize the casino barge to reduce motion sickness among its

patrons.   Ham Marine developed a hurricane evacuation plan which

was required of TBGR by the Mississippi Gaming commission.      In

case of a storm, the casino barge would be towed forty miles from

Biloxi to Pascagoula.   Modifications by Ham Marine readied the

casino barge for such a potential journey.    This work included

                                  2
reinforcement of the stern of the barge, construction of push

knees and tow devices, and construction of chains and anchors to

secure the barge on its arrival in Pascagoula.1

     Ham Marine was not paid for the work it performed and sought

to establish various liens including a water craft lien pursuant

to Miss. Code Ann. § 85-7-7.    On November 2, 1994, Ham Marine

filed suit in Mississippi Circuit Court for the enforcement of a

water craft lien for improvements made to the Treasure Bay

Casino.    On November 4, 1994, Ham Marine filed a Notice of Water

Craft Lien in the records of Harrison County, Mississippi.

     In December, 1994, an involuntary petition for relief under

Chapter 7 of the United States Bankruptcy Code, later converted

into a Chapter 11 petition, was filed against TBGR.     In

February, 1997, First Trust filed a motion for summary judgment

as to the priority of its encumbrances.    In June 1997, the

bankruptcy court granted the motion in favor of First Trust on

the grounds that the Treasure Bay Biloxi Casino was not a water

craft and, therefore, Ham Marine did not possess a water craft

lien.     Ham Marine filed a notice of appeal as to this order on



June 20, 1997.    The district court affirmed the bankruptcy



     1
      Subsequently, after instructions from the gaming commission
to remain in Biloxi during any storm, another contractor was hired
who welded the casino barge to the surrounding pilings converting
it into a semi-permanently moored structure.

                                  3
court’s decision.2

                                II.

     Appellant seeks review of the determination that the

Treasure Bay Biloxi Casino does not qualify as a water craft for

purposes of Miss. Code Ann. § 85-7-7.   A summary judgment is

reviewed de novo using the same standards applied by the lower

court.   Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.

1994).   In resolving issues of state law, the Court will

interpret a state statute in the manner the court believes the

state Supreme Court would.   F.D.I.C. v. Shaid, 142 F.3d 260, 261

(5th Cir. 1998).

     Miss. Code Ann. § 85-7-7 provides:

           There shall be a lien on all ships,
           steamboats and other water craft for work
           done or materials supplied by any person in
           this state for or concerning the building,

     2
      Also in February 1997, Treasure Bay, TBGR and First Trust
filed an amended joint plan of reorganization which classified Ham
Marine’s claim as both a secured and unsecured claim.    In August
1997, the bankruptcy court confirmed the plan identifying Ham
Marine as an unsecured creditor. Ham Marine did not appeal the
confirmation order.   First Trust contends that Ham’s appeal is
barred by the doctrine of res judicata as no appeal was taken from
the order confirming the plan.    However, on June 26, 1998, the
bankruptcy court entered an order recognizing the pendency of Ham
Marine’s appeal and its lack of jurisdiction concerning any issues
related thereto.   Alternatives to the handling of Ham Marine’s
claims were established so that distribution according to the plan
could proceed. In light of this reservation of right, the doctrine
of res judicata does not apply. See King v. Provident Life and
Accident Insurance Company, 23 F.3d 926 (5th Cir. 1994).     First
Trust also contends that this appeal is equitably moot. In the
Matter of: GWI PCS 1 Inc.,230 F.3d 788 (5th Cir. 2000). As the
resolution of this appeal does not alter the reorganization plan,
this issue will not be addressed.

                                 4
            repairing, fitting, furnishing, supplying or
            victualing such ships, steamboats or other
            water craft, and for the wages of the persons
            employed on board such vessel, boat, or
            craft, for work done or services rendered, in
            preference to all other debts due and owing
            from the owners thereof. The said lien shall
            expire six months after the claim is due
            unless judicial proceedings have been
            commenced to assert it.

     As appellant concedes that the Treasure Bay Biloxi Casino is

not a ship or steamboat, the inquiry turns to the meaning of the

phrase “other water craft”.    The Mississippi Code provides no

definition.    In Archibald v. Citizens’ Bank of Louisiana, 1 So.

739 (1887), the Mississippi Supreme Court recognized an

enforceable water craft lien with respect to a barge.       In so

doing, the court did not set forth the attributes of the barges

involved.     As the defining characteristics of a barge are not

set forth, this case sheds no light on whether the Treasure Bay

Biloxi Casino is a type of barge which would qualify for a water

craft lien.

     However, review of the legislation permitting the existence

of floating dockside casinos under Mississippi law sheds light on

their classification.    In approving gambling, the Mississippi

legislature set forth that gaming was to take place on a vessel

or cruise vessel in navigable waters.     See Miss. Code Ann. §§



97-33-1(a) and (b).    Miss. Code Ann. § 27-109-1 defines a “cruise

vessel” as:


                                  5
               a vessel which complies with all U.S. Coast
               guard regulations, having a minimum overall
               length of one hundred fifty (150) feet and a
               minimum draft of six (6) feet and which is
               certified to carry at least two hundred (200)
               passengers; and the term “vessel” shall mean
               a vessel having a minimum overall length of
               one hundred fifty (150) feet.

       In King v. Grand Casinos of Mississippi, Incorporated-

Gulfport, 697 So.2d 439 (1997), the Mississippi Supreme Court

discussed the nature of these dockside casinos in a Jones Act

case requiring the interpretation of federal law.       Although

ruling the casino barge was not a vessel for purposes of the

Jones Act, the court noted that these casinos could be viewed

entirely differently from the perspective of Mississippi law.      In

advocating the position that a casino is a vessel for purposes of

the Jones Act, Justice McCrae underscores this point by stating

in dissent “. . . the majority fails to take into consideration .

. . the legislative directive limiting gaming activities to

vessels located on certain navigable waterways . . . .” Id. at

443.       As Mississippi law confers these gambling barges with

vessel status, it follows that those who provide repair services

would qualify for the protection afforded by the state’s water

craft lien statute.3

       3
          If the Court were to draw an analogy with federal law,
the Treasure Bay Biloxi Casino might qualify as a vessel under
Fifth Circuit precedent.    Ham Marine seeks a maritime lien for
modifications made to the Treasure Bay Biloxi in order to transport
it to safe harbor in the event of a hurricane. There is authority
in cases dealing with claims for repairs rendered a vessel which
                                                     (continued...)

                                     6
     However, it is unnecessary to reach a conclusion with

reference to the status of the Treasure Bay Biloxi Casino in

order to affirm the district court.   Appellee argues that even

were appellant to possess a water craft lien under Miss. Code

Ann. § 85-7-7, the decision of the Bankruptcy Court should be

affirmed as appellee’s claim would have priority by virtue of its

first preferred ship’s mortgage under 46 U.S.C. § 31322.    46

U.S.C. § 31326(b) provides that a preferred mortgage lien has

priority over all claims against a vessel except for expenses and

fees allowed by the court, costs imposed by the court, and

preferred maritime liens.   A preferred maritime lien is defined

as one arising before a preferred mortgage is filed; for damage

arising out of maritime tort; for wages of a stevedore; for wages

of the crew of a vessel; for general average; or for salvage.     46

U.S.C. § 31301(5).

          Appellant’s water craft lien would not fall into these

categories and would, therefore, be subordinate to appellee’s

preferred mortgage.    While appellant advances equitable concerns

in its brief, the priority of a mortgage holder will not be

subordinated absent inequitable conduct by the mortgagee which

     3
      (...continued)
give rise to claims for maritime liens that a type of water craft,
long afloat, readily towable, and entirely capable of being used,
even if inefficiently, in transportation is a vessel. See Miami
River Boat Yard, Inc. v. 60' Houseboat, Serial No. SC-40-2860-3-62,
390 F.2d 596 (5th Cir. 1968); Pleason v. Gulfort Shipbuilding Corp.,
221 F.2d 621 (5th Cir. 1955); and Campbell v. Loznicka, 181 F.2d 356
(5th Cir. 1950).

                                 7
results in injury to other creditors or confers an unfair

advantage to the mortgagee.   There is no inequitable conduct by

the mortgagee in the instant case rising to the level requiring a

finding of equitable subordination such as in Custom Fuel

Services, Inc. v. Lombas Industries, Inc., 805 F.2d 561 (5th Cir.

1986).

     Accordingly, the summary judgment entered by the bankruptcy

court and affirmed by the district court is hereby AFFIRMED.




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