Silver Slipper Casino Venture LLC v. Does , 264 F. App'x 363 ( 2008 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 31, 2008
No. 07-60330
Charles R. Fulbruge III
Clerk
In Re: In the Matter of: SILVER SLIPPER CASINO VENTURE LLC,
Owner of the President Casino-Broadwater, Official No.
995650, for Exoneration from or Limitation of Liability;
SILVER SLIPPER GAMING LLC, As Owner Pro Hac Vice of the
President Casino-Broadwater, Official No. 995650, for
Exoneration from or Limitation of Liability
-------------------------
SILVER SLIPPER CASINO VENTURE LLC, Owner of the President
Casino-Broadwater, Official No. 995650, for Exoneration from
or Limitation of Liability; SILVER SLIPPER GAMING LLC, As
Owner Pro Hac Vice of the President Casino-Broadwater,
Official No. 995650, for Exoneration from or Limitation of
Liability
Plaintiffs - Counter Defendants - Appellants
v.
JOHN DOES, Etc
Defendant
ELI INVESTMENTS LLC
Counter Claimant - Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:06-CV-00158
No. 07-60330
Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
JENNIFER W. ELROD, Circuit Judge:*
Plaintiffs-Appellants (collectively “Silver Slipper”) appeal the district
court’s dismissal of their complaint for lack of admiralty jurisdiction under 28
U.S.C. § 1333(1). For the reasons discussed below, we AFFIRM.
I.
Silver Slipper owned the President Casino-Broadwater, a casino barge that
was permanently moored in the Broadwater Beach Marina in Biloxi, Mississippi.
The marina was almost completely surrounded by a land mass occupied by a
parking lot, except for an opening about equal to the width of the casino that
provided a means of ingress and egress for yachts moored in the marina. The
casino was mounted on a steel barge moored to six steel dolphins using heavy
“H” beams and received water and electricity from land-based sources. It was
three stories tall and contained gaming facilities, restaurants, and other
entertainment facilities.
On August 29, 2005, Hurricane Katrina ripped the casino free of its
moorings, carried it several thousand feet across the flood waters and a highway,
and crashed it into a hotel owned by Eli Investments, LLC (“Eli”). Silver Slipper
subsequently filed suit seeking exoneration from or limitation of liability under
the Limitation of Liability Act, 46 U.S.C. § 181 et seq.1 Eli answered Silver
Slipper’s complaint and filed a counterclaim, seeking recovery of damages from
the casino’s collision into its hotel. Eli then filed a motion to dismiss Silver
Slipper’s complaint, which the district court granted on the basis that Silver
Slipper could not establish admiralty jurisdiction under 28 U.S.C. § 1333(1). 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
After Silver Slipper filed its complaint, 46 U.S.C. § 181 et seq. was recodified as 46
U.S.C. § 30501 et seq.
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No. 07-60330
district court reasoned that because the casino was indefinitely moored in a
marina, received electricity and water from land-based sources, and was not
practically capable of being transported over water, it was not a “vessel” for
purposes of admiralty jurisdiction.
On appeal, Silver Slipper argues that regardless of whether its casino
would have been considered a vessel while moored in the marina, Hurricane
Katrina “‘resurrected’ [and] breath[ed] new life into her,” thereby demonstrating
that the casino was capable of being used for transportation over navigable
waters and was therefore a vessel for purposes of admiralty jurisdiction.
II.
We review de novo the district court’s dismissal of Silver Slipper’s claim
for lack of admiralty jurisdiction. See, e.g., Musslewhite v. State Bar of Texas, 32
F.3d 942, 945 (5th Cir. 1994).
The Limitation of Liability Act provides that a vessel owner’s liability for
certain claims may be limited to the value of the owner’s interest in the vessel
at the termination of the voyage and the freight monies earned by the vessel
owner during the voyage. See 46 U.S.C. § 30501 et seq. Silver Slipper may
invoke limitation of liability under the Act only if admiralty jurisdiction exists
under 28 U.S.C. § 1331(1). See Guillory v. Outboard Motor Corp., 956 F.2d 114,
115 (5th Cir. 1992) (“The Limitation of Liability Act does not confer jurisdiction
upon federal courts. That must come from our admiralty jurisdiction . . . .”). For
admiralty jurisdiction to attach, Silver Slipper “must satisfy the conditions both
of location and of connection with maritime activity.” Strong v. B.P. Exploration
& Prod., Inc., 440 F.3d. 665, 669 (5th Cir. 2006). In applying the location test,
we “determine whether the tort occurred on navigable water or whether the
injury suffered on land was caused by a vessel on navigable water.” Id.The issue in this case is thus whether Silver Slipper’s casino constituted
a vessel for purposes of admiralty jurisdiction. Applying well-settled law, we
hold that it did not. In Stewart v. Dutra Construction Co., the Supreme Court
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explained that the term “vessel” as used in 1 U.S.C. § 3 “includes every
description of water-craft or other artificial contrivance used, or capable of being
used, as a means of transportation on water.” 543 U.S. 481, 489 (2005). The
Court also emphasized, however, that “a watercraft is not ‘capable of being used’
for maritime transport in any meaningful sense if it has been permanently
moored or otherwise rendered practically incapable of transportation or
movement.” Id. at 494. Accordingly, we agree with the district court’s
conclusion that the casino, which was permanently moored in a marina, received
electricity and water from land-based sources, and was not practically capable
of being transported over water, did not constitute a vessel for purposes of
admiralty jurisdiction.
While it is true, as Silver Slipper contends, that this court has interpreted
Stewart as signaling “a significant broadening of the set of unconventional
watercraft that must be deemed vessels,” Holmes v. Atl. Sounding Co., Inc., 437
F.3d 441, 448 (5th Cir. 2006), Stewart did not expand the term to include
permanently-moored casinos. Such is evident from the fact that Stewart cited
Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 570 (5th Cir.
1995), for the proposition that a “floating casino was no longer a vessel where it
‘was moored to the shore in a semi-permanent or indefinite manner.’” Stewart,
543 U.S. at 494.
Moreover, in a subsequent case, we specifically held that, “[e]ven after
Stewart, an indefinitely moored floating casino . . . is not a ‘vessel’ for purposes
of admiralty jurisdiction.” De La Rosa v. St. Charles Gaming Co., Inc., 474 F.3d
185, 188 (5th Cir. 2006). Much like Silver Slipper’s casino, the casino at issue
in De La Rosa was “moored to the land by lines tied to steel pilings [and]
receive[d] water, telephone lines, sewer lines, cable television and data
processing lines from land-based sources,” and “[i]ts operations [were] entirely
gaming-related, and not maritime in nature.” Id. at 187. Notwithstanding
Silver Slipper’s attempt to distinguish Pavone and De La Rosa by arguing that
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No. 07-60330
its casino was “definitely in navigation” when it struck the hotel, the unfortunate
fact that Hurricane Katrina blew the casino across a highway and into a hotel
did not suddenly transform a non-vessel into a practically navigable watercraft.
III.
Finding no error in the district court’s dismissal of Silver Slipper’s claim
for lack of admiralty jurisdiction, we AFFIRM.
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