The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF GABRIEL CIVIL ACTION
LASALA, AS OWNER OF THE 2016
WORLD CAT MODEL 295CC, FOR NO. 18-11057 c/w
EXONERATION FROM OR LIMITATION 18-11138, 19-9706
OF LIABILITY 19-9798, 19-9819
SECTION D (2)
THIS DOCUMENT RELATES ONLY TO DOCKET NO. 18-11057
ORDER
Before the Court is the Motion to Dismiss under Federal Rule of Civil
Procedure 12(b)(6), or Alternative Motion for Summary Judgment filed by Sally
Presser and Dale Presser.1 Claimant has filed an Opposition,2 and the Pressers have
filed a Reply.3 After careful consideration of the parties’ memoranda and the
applicable law,-and finding that Claimant may be entitled to limit his liability, the
Court denies the Motion.
I. FACTUAL BACKGROUND
This case arises from a boat’s allision with a fixed platform. Gabriel Lasala
owned a 2016 World Cat Model 295CC vessel.4 On the evening of April 28, 2018,
Lasala was aboard the vessel with Dale Presser, his minor son, C.P., Randall
Patterson and Marc Junot.5 As they were proceeding out to the Gulf of Mexico, the
1 R. Doc. 4.
2 R. Doc. 5.
3 R. Doc. 8.
4 R. Doc. 1 at 2 ¶ IV.
5 Id. at 2 ¶ VI.
vessel struck a fixed platform owned by Cantium L.L.C.6 Various individuals aboard
the vessel suffered injuries.7 It is undisputed that the vessel was a pleasure craft
owned by Lasala in his personal capacity, and further that he was navigating the
vessel at the time of the allision.8
Lasala later filed this action under the Ship Owner’s Limitation of Liability
Act, seeking to limit his liable to the cost of the vessel, which he alleges is valued at
$1,300.9 Various other suits arising from the same facts and circumstances were
also filed. Foremost Insurance Company (“Foremost”), the insurer of Lasala, sued
Cantium, the owner of the fixed platform.10 The Pressers and others aboard the
vessel sued Foremost, Lasala’s insurer.11 Lasala also sued Foremost and Cantium.12
These matters have been consolidated.13
The Pressers now move to dismiss Lasala’s limitation action, arguing that he
fails to state a claim, or, in the alternative, that summary judgment is appropriate.14
The Pressers argue that because Lasala was the owner of his own pleasure vessel,
and because he was operating it himself at the time of the allision, he cannot limit
his own liability as the damage cannot be said to have occurred “without his privity
of knowledge.” The Pressers rely heavily on Fecht v. Makowski15 to argue that Fifth
6 Id. at 2 ¶ VI.
7 Id. at 2 ¶ VI.
8 Id. at 2 ¶ IV-V.
9 See generally R. Doc. 1.
10 See Docket No. 19-9819.
11 See Docket No. 18-11138; Docket No. 19-9706.
12 See Docket No. 19-9798.
13 See R. Docs. 13-14.
14 R. Doc. 4.
15 406 F.2d 721 (5th Cir. 1969).
Circuit law is clear that Lasala, as “owner at the helm,” may not limit his liability in
these circumstances.
Lasala opposes the Motion. He contends that Fecht was later limited by
another Fifth Circuit case, Farrell Lines, Inc. v. Jones.16 He further argues that the
allision was caused by Cantium’s negligence in failing to light its fixed platform, and
not by his negligence, and therefore he should be allowed to limit his damages to the
cost of the vessel. The Pressers have filed a Reply, in which they seek to distinguish
the cases cited by Lasala.
II. LEGAL STANDARD
To overcome a defendant’s motion to dismiss, a plaintiff must plead a plausible
claim for relief.17 A claim is plausible if it is pleaded with factual content that allows
the court to reasonably infer that the defendant is liable for the misconduct alleged.18
But, no matter the factual content, a claim is not plausible if it rests on a legal theory
that is not cognizable.19 In ruling on a motion to dismiss, the Court accepts all well-
pleaded facts as true and views those facts in the light most favorable to the
plaintiff.20 However, the allegations must be enough to raise a right to relief above
the speculative level on the assumption that all of the complaint’s allegations are
16 530 F.2d 7 (5th Cir. 1976).
17 Romero v. City of Grapevine, Tex., 888 F. 3d 170, 176 (5th Cir. 2018) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
18 Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (citing Iqbal, 556 U.S. at 678).
19 Shandon Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F. 3d 1029, 1032 (5th Cir. 2010)
(per curiam).
20 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).
true.21 “[C]onclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.”22
III. ANALYSIS
The Limitation of Liability Act allows the owner of a vessel to limit his liability
for certain claims to the value of the vessel and pending freight.23 The claims subject
to limitation “are those arising from any embezzlement, loss, or destruction of any
property, goods, or merchandise shipped or put on board the vessel, any loss, damage,
or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done
occasioned, or incurred, without the privity or knowledge of the owner.”24 The
Limitation Act provides that a vessel owner such as Lasala may limit its liability only
if it shows that the fault causing the loss occurred without its “privity or
knowledge.”25 It is the final phrase in the statute—“without the privity or knowledge
of the owner”—that is at issue here. Because Lasala was navigating his own pleasure
craft at the time of the allision, the Pressers argue that Lasala clearly had “privity or
knowledge” and therefore cannot limit liability. Lasala retorts that because it was
the negligence of Cantium in failing to light its platform, and not his negligence, he
should be allowed to limit his liability under existing Fifth Circuit law.
The Pressers primarily rely upon Fecht v. Makowski,26 a fifty-year-old Fifth
Circuit case, to argue that Lasala had privity as a matter of law solely by being the
21 Bell Atlantic v. Twombly, 550 U.S. 544, 545 (2007).
22 Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (internal citations omitted).
23 46 U.S.C. § 30505.
24 Id. § 30505(b).
25 Id.
26 406 F.2d 721 (5th Cir. 1969).
owner and operator of the vessel and therefore cannot be allowed to limit his liability.
In that case, Makowski was operating his pleasure craft when it struck a submerged
object. He petitioned to limit his liability. The Fifth Circuit held that the petition
should have been dismissed, because Makowski had “privity or knowledge” as a
matter of law. Specifically, the Fifth Circuit stated “when an owner is in control of
and operating his pleasure craft he has privity or knowledge with respect to its
operation, therefore he is not entitled to limitation for accidents arising from his
negligence.”27
Seven years later, the Fifth Circuit fashioned a new test that seemed to be in
tension with Fecht. In Farrell Lines, Inc. v. Jones, the Fifth Circuit explained:
The determination of whether a shipowner is entitled to
limitation employs a two-step process. First, the court
must determine what acts of negligence or conditions of
unseaworthiness caused the accident. Second, the court
must determine whether the shipowner had knowledge or
privity of those same acts of negligence or conditions of
unseaworthiness. Knowledge or privity of any fact or act
causing the accident is not enough for denial of limitation;
it is only knowledge or privity of negligent acts or
unseaworthy conditions which trigger denial of
limitation.28
Claimant argues that Farrell Lines governs, and the Court may not deny
limitation until there has been a determination made of “what acts of negligence or
conditions of unseaworthiness” caused the accident.
27 Id. at 722 (emphasis added).
28 Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976).
In addition to Farrell Lines, several other cases suggest that Fecht has limited
applicability. In Petition of M/V Sunshine II,29 the same judge who wrote Fecht
analyzed the Fecht decision. He described the holding of Fecht as a “precatory
statement [that] is hardly a legal principle.”30 The Court continued:
In short, in most circumstances negligence in operation
will be sufficiently connected to the owner on board his own
small vessel and operating it that he will be found to have
privity or knowledge, but this common sense recognition of
how the facts will usually work out is not an ineluctable
doctrine to be applied at the pleading stage, on conclusory
and disputed allegations, as a substitute for the knowledge
necessary to lead a court to a rational decision.31
Finally, he described Fecht’s holding as “a useful tool directed toward proper
decision and not a talisman.”32 Petition of M/V Sunshine instead endorsed the two-
step analysis of Farrell Lines.33
In In re Muer,34 the Sixth Circuit similarly endorsed the two-step analysis of
Farrell Lines and rejected the approach of Fecht, holding that dismissing a case on
summary judgment because the captain was aboard the vessel “would obviate the
claimant’s burden to demonstrate negligence or unseaworthiness.”35 In re Muer thus
further emphasized the tension between Farrell Lines and Fecht. As another judge
of this district has written “[T]he Fifth Circuit has repeatedly . . . failed to follow or
extend Fecht on numerous occasions.”36
29 808 F.2d 762 (11th Cir. 1987).
30 Id. at 765.
31 Id. (emphasis added).
32 Id.
33 Id. at 764.
34 146 F.3d 410 (1998).
35 Id. at 415.
36 In re South Coast Boat Rentals, Inc., No. 98-3452., 1999 WL 615180, at *3 (E.D. La. Aug. 12, 1999).
The Court finds that Claimant has the better of the argument, and that the
two-step analysis laid out in Farrell Lines is the proper approach here. Although
Fecht remains Fifth Circuit law, the Court is mindful of how Farrell Lines constrains
and modifies Fecht. In short, barring an uncontested showing of negligence on the
part of the vessel owner or unseaworthiness, neither of which has been shown at this
juncture, the Court finds that dismissal of the limitation action at this stage
improper.
IV. CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss is DENIED.
New Orleans, Louisiana, November 25, 2020.
(end 2 Veter
WENDY B. VITTER
UNITED STATES DISTRICT JUDGE