Down South Marine, L.L.C. v. Williams , 478 F. App'x 865 ( 2012 )

Case: 11-31211 Document: 00511890358 Page: 1 Date Filed: 06/18/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 18, 2012
No. 11-31211
Summary Calendar Lyle W. Cayce
Clerk
In re: In the Matter of the Complaint of DOWN SOUTH MARINE, L.L.C., as
Owner and Operator of the Mr. Gage, and LEBLANC MARINE, L.L.C., for
Exoneration from or Limitation of Liability
DOWN SOUTH MARINE, L.L.C.; LEBLANC MARINE, L.L.C.,
Petitioners–Appellants
v.
DAVID WILLIAMS; TERRENCE HANKTON,
Claimants–Appellees
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CV-1083
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Petitioners–Appellants Down South and LeBlanc Marine appeal the
district court’s order dismissing their limitation of liability action, see 46 U.S.C.
§ 30511, for a lack of adverseness between the parties. Because we agree with
*
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not be published and is not precedent except under the limited circumstances set forth in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.
Case: 11-31211 Document: 00511890358 Page: 2 Date Filed: 06/18/2012
No. 11-31211
the district court that no indemnity agreement existed between Down South and
Country Boy, and thus there was no claim at issue between the parties, we
AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
This action arises from injuries allegedly incurred by David Williams and
Terrence Hankton while aboard the flat-bottomed work boat M/V MR. GAGE.
The M/V MR. GAGE is owned and operated by Down South Marine, LLC (“Down
South”). Country Boy Construction and Environmental (“Country Boy”)
chartered the M/V MR. GAGE from Down South. Before doing so, Down South
and Country Boy entered into an oral contract, whereby Down South agreed to
list Country Boy as an “additional insured” on their its insurance policy. Both
Williams and Hankton filed personal injury claims separately against Country
Boy in Louisiana state court. Upon learning of the Williams’s and Hankerton’s
personal injury suits, Country Boy sent a demand letter to Down South seeking
indemnity.
Down South then filed this limitation of liability action in the United
States District Court for the Eastern District of Louisiana. Leblanc Marine, LLC
(“LeBlanc”) joined that action as the employer of the M/V MR. GAGE’s operator.
Neither Down South nor LeBlanc is a party to Williams’s and Hankerton’s
underlying personal injury suits. The district court dismissed the Appellants’
action for lack of subject-matter jurisdiction, finding that there was no case or
controversy at issue. Down South and LeBlanc timely appealed.
II. STANDARD OF REVIEW
Jurisdictional questions are questions of law and reviewed de novo by this
court. A.I.M. Controls, L.L.C. v. Commissioner, 672 F.3d 390, 392 (5th Cir.
2012). If the district court resolved questions of fact in order to make a decision
as to jurisdiction, those fact issues are reviewed for clear error. Rodriguez v.
Christus Spohn Health Sys. Corp., 628 F.3d 731, 734 (5th Cir. 2010).
Case: 11-31211 Document: 00511890358 Page: 3 Date Filed: 06/18/2012
No. 11-31211
III. DISCUSSION
Section 30511 states: “The owner of a vessel may bring a civil action in a
district court of the United States for limitation of liability under this chapter.
The action must be brought within 6 months after the claimant gives the owner
written notice of a claim.” 46 U.S.C. § 30511. By its terms, section 30511
requires that a vessel owner must have a claim brought against it in order to
bring a limitation of liability action. Here, the only possible claims against
Down South and LeBlanc would stem from their relationship with Country Boy.
Ben LeBlanc stated in his deposition testimony that he orally agreed with
Country Boy to add Country Boy as an additional insured on their insurance of
M/V MR. GAGE only; Mr. LeBlanc never agreed to indemnify Country Boy. The
only evidence of a possible indemnity agreement is the demand letter from
Country Boy to Down South. Further, this letter states that because Country
Boy is an additional insured on the insurance policy, they demand Down South
to indemnify and defend them. There does not appear to be any separate
indemnity agreement upon which Country Boy relies.
It is clear that adding a person to one’s insurance policy does not give rise
to indemnification. See Travelers Llyods Ins. Co. v. Pac. Emp’rs Ins. Co., 602
F.3d 677, 682 (5th Cir. 2010) (“A contract provision that extends direct insured
status as an additional insured is deemed to be separate and independent from
the indemnity agreement.”). Because there is no indemnity agreement, there
is no claim against Down South or LeBlanc that would allow them to invoke
§ 30511.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.