In re River Construction Inc., as Owner and operator of the RC-100 for Exoneration from or Limitation of Liability

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN THE MATTER OF THE
COMPLAINT OF RIVER
CONSTRUCTION INC., AS
OWNER AND OPERATOR OF
THE RC-100 FOR
EXONERATION FROM OR
LIMITATION OF LIABILITY
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CIVIL ACTION NO. 4:22-cv-2413
MEMORANDUM AND RECOMMENDATION
Pending 	before 	the 	Court1 is 	BWC 	Terminals 	LLC 	f/k/a 	Contanda
Terminals, LLC’s (“Contanda”) Motion for Leave to File First Amended Answer
and Claim (ECF No. 111). 	Based on a review of the motion, arguments, and
relevant 	law, 	the 	Court 	RECOMMENDS 	Contanda’s 	motion 	(id.) 	be
DENIED.
I. 	Background
This dispute arises from the construction of terminal facilities owned by
Contanda. 	(ECF No. 1). 	On October 14, 2020, Russell Marine, LLC (“Russell
Marine”) sued Contanda in the 295th Judicial District Court, Harris County,
Texas, where Russell Marine asserted claims for breach of contract, quantum
meruit, declaratory judgment, and attorney’s fees (the “State Court Action”).
1 On April 30, 2024, this case was referred to the Undersigned for all purposes
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF
No. 88).
United States District Court
Southern District of Texas
ENTERED
May 13, 2026
Nathan Ochsner, Clerk
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(ECF No. 1-2). 	On November 23, 2020, Contanda asserted a general denial,
affirmative defenses, and a counterclaim against Russell Marine. (ECF No. 1-
3). 	On January 20, 2022, in response to Contanda’s Counterclaim, Russell
Marine filed a First Amended Third-Party Petition, adding River Construction
Inc. (“River”) and other Contanda contractors. (ECF No. 1-4).
On July 20, 2022, River filed the instant limitation action. (ECF No. 1).
On July 26, 2022, the Court issued an Order Approving Petitioner’s Ad Interim
Stipulation 	for 	Value 	and 	Directing 	Issuance 	of 	Notice 	and 	Restraining
Prosecution of Claims. (ECF No. 4). The order required any claimant desiring
to contest River’s right to exoneration from or limitation of liability to file their
respective claims, under oath, on or before September 9, 2022, or be defaulted.
(Id.). 	The order also required River to provide notice in accordance with Rule
F of the Supplemental Rules for Certain Admiralty and Maritime Claims.
(Id.). 	A Notice to Claimants of Complaint for Exoneration from or Limitation
of Liability was issued on July 27, 2022 (ECF No. 5) and River provided proof
of notice published in the newspaper in Harris County for four consecutive
weeks (ECF No. 38-1).
The only persons, firms, corporations, or entities that have submitted
claims 	against 	River 	within 	the 	allotted 	time 	were 	Russell 	Marine 	and
Contanda. (See ECF Nos. 14, 24). In making its claim, Contanda reserved the
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right “to supplement and amend its Claims as necessary and appropriate
through the discovery of additional information relevant hereto.” (ECF No. 14
at 5).
However, on March 17, 2023, the District Judge dismissed Contanda’s
claims for contribution, indemnity, and attorney’s fees because “Contanda does
not contend that it has made a direct claim” and “not only are these claims [for
contribution/indemnity/attorney’s fees] one step removed from a direct liability
claim, but they are, at best, unripe claims that can never ripen unless the
pleadings change.” 	(ECF No. 72 at 6). 	Later, on June 1, 2023, the District
Judge stayed the instant case until the conclusion of the State Court Action.
(ECF No. 82).
On June 21, 2024, Contanda filed a Seconded Amended Answer and
Counterclaim in the State Court Action, asserting direct claims against River
for breach of contract and negligence as well as contribution and indemnity
claims. 	(See ECF No. 115 at 6–7). 	Because Contanda asserted a direct claim
in the State Court Action, River filed a Motion to Re-Open Limitation Action
and 	Re-Establish 	Limitation 	Injunction, 	requesting 	“an 	Order
administratively 	reopening 	this 	limitation 	action 	and 	re-establishing 	the
limitation 	injunction 	originally 	issued 	on 	July 	26, 	2022 	(Rec. 	Doc. 	4),
prohibiting any and all claims from being filed against River Construction or
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against the RC-100 outside of this Limitation Action.” (ECF No. 90 at 1). On
August 19, 2024, the Court granted the motion and held:
Civil 	Matter 	No. 	4:22-cv-2413 	is 	hereby 	reopened 	and 	the
limitation injunction originally issued by this Court on July 26,
2022 (ECF No. 4) is hereby reinstated, restraining, staying, and
enjoining 	any 	and 	all 	actions, 	suits, 	and 	proceedings 	already
commenced 	and 	commenced 	or 	prosecuted 	hereafter, 	and 	all
actions, 	suits, 	or 	proceedings 	of 	any 	nature 	and 	description
whatsoever in any jurisdiction against Limitation Petitioner, River
Construction, or against the crane barge, the RC-100.
(ECF No. 100 at 7).
On October 10, 2025, Contanda filed the instant Motion for Leave to File
First Amended Answer and Claim (ECF No. 111). 	Contanda seeks to assert
negligence and breach of contract claims against River. (See ECF No. 111-1).
II. 	Legal Standard
Supplemental Admiralty Rule F(4) states: “For cause shown, the court
may enlarge the time within which claims may be filed.” F ED. R. C IV . P. SUPP .
R ULE F(4). 	In Texas Gulf Sulphur Co. v. Blue Stack Towing Co., the Fifth
Circuit 	established 	the 	framework 	for 	how 	district 	courts 	are 	to 	apply
Supplemental Rule F(4) to determine whether to allow late claims in maritime
limitation of liability actions. 	313 F.2d 359, 362 (5th Cir. 1963). 	Texas Gulf
explained that courts “readily accept the guiding principle . . . that so long as
the limitation proceeding is pending and undetermined, and the rights of the
parties are not adversely affected, the court will freely grant permission to file
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late claims . . . upon a showing of the reasons therefor.” Id. Thus, courts weigh
three factors in determining whether a claimant may file a late claim against
a 	limitation 	petitioner: 	(1) 	whether 	the 	proceeding 	is 	pending 	and
undetermined, (2) whether granting the motion will adversely affect the rights
of the parties, and (3) the claimant’s reasons for filing late.” Golnoy Barge Co.
v. M/T SHINOUSSA, 980 F.2d 349, 351 (5th Cir. 1993). “‘Relief from a tardy
claim . . . depends on an equitable showing.’” Id. (quoting Texas Gulf, 313 F.2d
at 363). 	Whether to grant leave to file a late claim is within the sound
discretion of the district court. 	In re Trace Marine Inc., 114 F. App’x 124, 127
(5th Cir. 2004).
III. 	Discussion2
Contanda seeks leave to file a First Amended Answer and Claim. (ECF
No. 111 at 3). 	As discussed, “a district court ruling on a motion to file a late
claim, 	should 	consider 	(1) 	whether 	the 	proceeding 	is 	pending 	and
undetermined, (2) whether granting the motion will adversely affect the rights
2 River also argues Contanda’s breach of contract claim is subject to the limitation of
liability because it contemplates a breach in the performance of River’s crew of employees
working about the RC 100, not the owners of the RC 100, personally, and is therefore time-
barred. (ECF No. 114 at 7–10). Contanda does not appear to respond to this argument. (See
ECF No. 115). Further, River argues all of Contanda’s claims are barred by the applicable
statutes of limitations. (ECF No. 114 at 10–11). Again, Contanda does not appear to address
this argument other than denying that its claims in the limitations action are untimely. (See
ECF No. 115 at 8). 	Because the Court resolves the instant motion on other grounds, the
Court need not reach River’s alternate arguments.
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of the parties, and (3) the claimant’s reasons for filing late.” Golnoy Barge, 980
F.2d at 351; see also Tex. Gulf, 313 F.2d at 363.
River 	argues 	Contanda’s 	request 	should 	be 	denied 	because, 	when
considering the Texas Gulf factors, (1) the proceeding is neither pending nor
undetermined, (2) granting Contanda’s motion will adversely affect the rights
of the parties, and (3) Contanda cannot explain its reason for failing to pursue
a timely claim. (ECF No. 114 at 14–23). The Court will address each argument
in turn.
a. Whether The Proceeding Is Pending and Undetermined
In 	determining 	whether 	a 	case 	is 	“pending 	and 	undetermined” 	in
reference to a limitation proceeding, courts are generally guided by the stage
of the litigation, the terms of discovery, settlement efforts, and the setting of a
trial date. 	See Plaquemine Point Shipyard, LLC v. Kirby Inland Marine, LP,
472 F. Supp. 3d 313, 315 (E.D. La. 2020).
River argues the first Texas Gulf factor weighs heavily in favor of
denying the untimely3 claim because the litigation has proceeded for nearly
five years and the introduction of Contanda’s new claims at this late stage
would further prolong the action. 	(ECF No. 114 at 16). 	River adds that
3 Contanda denies that its claim is untimely. (ECF No. 115 at 8). However, because
River alleges Contanda’s claim is untimely, Contanda’s reply addresses the applicable
standard. (Id.).
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Contanda could have raised its negligence and breach of contract claims prior
to the September 9, 2022 deadline. 	(Id. at 17). 	River also notes that this
limitation action was rendered as a single claimant action as a result of
Contanda’s original claim being dismissed on March 17, 2023, which “forc[ed]
[River] into litigation for years in state court.” 	(Id. at 17–18). 	As such, River
contends that:
allowing Contanda to assert an entirely new claim in the limitation
proceeding after the discovery deadline has passed in the State
Court Action – which was allowed to proceed because of Contanda’s
failure to file a substantive claim in the first place, remains highly
contradictory and negates the express protections to which a vessel
owner is entitled and Petitioner has asserted under the Limitation
Act.
(Id. at 18). 	Finally, River points out that, on the eve of trial in state court,
Contanda “filed significant $6,000,000 direct claims against Petitioner in the
State Court Action which clearly implicates the limitation fund amount of
$432,000.”4 (Id.).
4 River also argues that “single limitation claimant, Russell Marine, reached a
settlement with Contanda, leaving no remaining claimants in Petitioner’s limitation action.”
(ECF No. 114 at 18). Contanda responds that “any settlement between claimants Contanda
and Russell Marine is inconsequential to the Court’s analysis of timeliness.” (ECF No. 115
at 10). 	The Fifth Circuit has noted that a limitation proceeding is at least “partially
determined” when a petitioner in a limitation action had settled with one claimant and was
in settlement negotiations with another. In re Trace Marine, Inc., 114 Fed. App’x at 127. As
such, because River has not been involved with a settlement in this case, the Court finds the
settlement between Contanda and Russell Marine does not weigh into the Court’s analysis.
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In response, Contanda argues there has been “absolutely no litigation or
determinations made with respect to River’s limitations action.” (ECF No. 115
at 10). Contanda also maintains this case remains pending and undetermined
because there is no pending trial date or governing docket control order. (Id.).
Contanda does not respond to River’s arguments on discovery or the delay in
raising its negligence and breach of contract claims.
The Court finds this factor to be neutral. While a trial date has not been
set and River has not extended settlement offers, the parties have allegedly
completed substantial amounts of discovery in state court. “Courts have found
a case pending and undetermined when a trial date has not been set . . . .”
Plaquemine Point Shipyard, 472 F. Supp. 3d at 315 (citing In re R & B Falcon
Drilling USA, Inc., No. 02-cv-0241, 2003 WL 296535 (E.D. La. Feb. 10, 2003)).
“However, the 	opposite is 	true 	when 	parties have completed 	substantial
amounts of the discovery or if the petitioner has already extended settlement
offers to the timely claimants.” 	Id. at 315–16 (citing In re Complaint of
Clearsky Shipping Corp., No. 96-cv-4099, 2000 WL 1741785, at *2 (E.D. La.
Nov. 22, 2000)). 	As such, the Court finds the first Texas Gulf factor neither
weighs in favor of or against Contanda’s request.
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b. Whether Granting the Motion Will Adversely Affect the Rights of
the Parties
“The determination of whether a late claim will adversely affect the
parties takes several factors into consideration, including the stage of the
litigation.” 	Matter of D & S Marine Serv., L.L.C., 767 F. Supp. 3d 437, 441
(S.D. Tex. 2025), report and recommendation adopted sub nom. D&S Marine
Serv., LLC v. Lott, No. 4:24-cv-03575, 2025 WL 1805167 (S.D. Tex. June 3,
2025) (collecting cases). 	Similar to the first factor, courts consider how far
litigation has progressed, including whether discovery has occurred or a trial
date has been set. Id. at 441–42.
River argues that allowing Contanda leave to amend would result in an
overwhelming amount of prejudice. (ECF No. 114 at 18–19). River reiterates
that, after the claims deadline passed, the case was litigated for nearly two
years, discovery was conducted, and River has only evaluated the claims of
Russell Marine as it was the only party claiming against it. (Id. at 19). River
also argues it has lost the ability to seek contribution from potentially liable
third parties and provides the following example:
[B]ecause Contanda waited nearly five years (and three years past
the limitation claims deadline) to bring its direct claim against
[River] 	in 	Harris 	County, 	when 	[River] 	sought 	to 	designate
responsible 	third 	parties 	under 	the 	Texas 	Civil 	Practice 	&
Remedies 	Code 	§ 	33.004, 	Contanda 	filed 	an 	Opposition 	to
numerous 	parties 	being 	designated 	based 	on 	the 	applicable
statutes of limitation for breach of contract (4 years) and negligence
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(2 years) under Texas law. 	Further, as part of the limitation
action, [River] previously filed a Third-Party Demand against
Lloyd Engineering and tendered Lloyd as a direct defendant to
Contanda, asserting that Lloyd was responsible for any damages
suffered by Contanda. 	This Third-Party Demand was rendered
void by the dismissal of Contanda’s Claim. 	If Contanda were
allowed to bring a late claim now, [River] would have to re-assert
this Third-Party Demand against Lloyd, but would again be met
with arguments under the statute of limitations, as Lloyd has
already filed against Contanda in Harris County.
(Id. at 19–20 (emphasis in original)).
Conversely, Contanda argues that equity and the specific circumstances
of this litigation support a late filing. (ECF No. 115 at 11). Contanda restates
that there is no governing scheduling order or trial date set in this case. (Id.).
Contanda adds that there is “[n]o question” that River knew Contanda would
file a claim and that River will not be prejudiced because “the only discovery
conducted has occurred in the state court action and fully involved both River
and Contanda.” (Id. at 11–12).
The Court finds this factor weighs against Contanda’s request. 	The
Court is particularly persuaded by River’s argument that it has lost the ability
to seek contribution from potentially liable third parties (ECF No. 114 at 19–
20), which Contanda does not address in its Reply. See In re Trace Marine Inc.,
114 F. App’x at 127 (5th Cir. 2004) (considering as part of the court’s analysis
of the second factor that the petitioner relied on a certain number of claimants
when making litigation decisions that would be adversely affected if a motion
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to file a late claim was granted). 	As such, given the stage of litigation, the
Court finds the second Texas Gulf factor weighs against Contanda’s request
c. 	The Claimant’s Reasons for Filing Late
Ultimately, “‘[r]elief from a tardy claim . . . depends on an equitable
showing.’” 	Golnoy Barge, 980 F.2d at 351 (quoting Texas Gulf, 313 F.2d at
363). 	Courts have explained that the provided reasons must “meet the
applicable standard of ‘good cause’ as articulated by this Circuit.” Plaquemine
Point Shipyard, 472 F. Supp. 3d at 316 (collecting cases); see also In re Trace
Marine Inc., 114 F. App’x at 128 (“The court further stated that because the
reasons provided by the claimants for why they filed untimely did not justify
their seven-month delay, equity did not favor allowing their motion to file late.”
(emphasis in original)).
River contends that, while courts have allowed late filed claims in
limited circumstances, none of those circumstances exist in the instant case.
(ECF No. 114 at 21). 	River further asserts that Contanda has had enough
information to file its claims prior to the September 9, 2022 claims filing
deadline and that to assert otherwise would be “disingenuous and patently
false.” (Id. at 22). As such, River argues that Contanda cannot establish good
cause. (Id. at 21). 	Conversely, Contanda argues that it has complied with all
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governing deadlines in both this case and the state court action. (ECF No. 115
at 12–13).
River is correct that courts have allowed leave to file late claims when
circumstances include “lack of notice, an unusually short monition period,
inability to speak the language in which the notice was published, [or] lack of
publication in the attempted claimant’s geographical area.” Clearsky Shipping
Corp., 2000 WL 1741785, at *2. 	However, Contanda does not argue that any
of these circumstances apply in this case. Further, while Contanda maintains
it complied with all governing deadlines, it does not explain why its claims
could not have been filed prior to the September 9, 2022 claims filing deadline.
(See ECF No. 115 at 12–13). 	Thus, the Court finds Contanda has not met its
burden of establishing good cause. 	See In re Trace Marine Inc., 114 F. App’x
at 127. 	As such, the Court finds the third Texas Gulf factor weighs against
Contanda’s request.
IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Contanda’s Motion
for Leave to File First Amended Answer and Claim (ECF No. 111) be DENIED.
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
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and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
Should this Memorandum and Recommendation be adopted by the
District Judge, the parties are ORDERED to file a new proposed scheduling
order 	within 	ten 	days 	of 	the 	Order 	adopting 	the 	Memorandum 	and
Recommendation.
SIGNED in Houston, Texas on May 13, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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