United States District Court, E.D. Virginia, Norfolk Division
IN THE MATTER OF THE COMPLAINT OF VULCAN CONSTRUCTION MATERIALS, LLC, AS OWNER OF THE TUG JEANIE CLAY,
OPINION AND ORDER
G. DOUMAR SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Claimant and
Defendant-in-Limitation Robert W. Dervishian, Jr.'s
Motion to Dismiss Complaint in Admiralty Due to Lack of
Subject Matter Jurisdiction ("Motion to Dismiss"),
ECF No. 17. In such motion, Robert W. Dervishian
"Defendant-in-Limitation") requests dismissal of
the Complaint in Admiralty ("Limitation of Liability
Claim") filed by Vulcan Construction Materials, LLC
("Vulcan" or "Plaintiff-in-Limitation").
ECF No. 17, 1. For the reasons set forth below, the Court
DENIES Dervishian's motion. ECF No. 17.
PROCEDURAL AND FACTUAL BACKGROUND
to Dervishian, "[o]n February 22, 2018, Dervishian was
injured while working as an Operations Manager for his
employer, T. Parker Host." ECF No. 18 at 2. Dervishian
was "assisting with the mooring of barges at the
terminal located at Shirley Plantation in Charles City,
Virginia." Id. Dervishian was neither a seaman
nor an employee of Vulcan. Dervishian claims that
"Captain Kim Todd ("Captain Todd"), an
employee of Vulcan . . . was operating a tugboat owned by
Vulcan known as the Jeanie Clay." Id. According
to Dervishian's Complaint, much of which is denied by
Vulcan, "[t]here were four barges to be moored at
Shirley Plantation that day, identified... by No. NF-107,
M-3102, JS-111, and VM-202." ECF No. 18-2 at ¶ 10.
"The VM-202 was moored parallel and adjacent to the
bulkhead, and the JS-111 was to be moored to the VM-202 on
the starboard side of the VM-202." Id. at
¶ 12. Dervishian alleges that after Captain Todd
"push[ed] the two outside barges (the M-3012 and the
JS-111) north toward the bulkead" via the Jeanie Clay,
he "caused the Jeanie Clay to impact the JS-111 a second
time, which caused the port side of the JS-111 to collide
with the starboard side of the VM-202." Id. at
¶ 18. As a result, Dervishian alleges, "the VM-202
shifted, which caused Plaintiff to lose his balance and fall
approximately 7'10" from the deck of the VM-202 to
the deck of the JS-111." Id. Dervishian alleges
that he s"suffered multiple, severe injuries, including
left leg fractures requiring amputation of his left
leg." Id. at ¶ 19. Vulcan denies the
majority of these allegations. ECF No. 18-3 at ¶¶
for Dervishian represented that between February and April
2018, Dervishian's leg was amputated. Subsequently, on
April 19, 2018, a written note was hand-delivered to
Vulcan's Registered Agent. ECF Nos. 18 at 2; 18-1. Vulcan
does not dispute that it received such hand-delivered note.
See ECF No. 24 at 4 (admitting that "counsel for
Dervishian served Vulcan with a cryptic and vague notice of
representation letter on Vulcan."); see also ECF No.
18-1, Ex. C at ¶ 20 ("Vulcan admits its registered
agent received a letter on April 19, 2018.").
October 23, 2018, just over six months after delivering such
note, Dervishian filed a Complaint in the Circuit Court for
the City of Norfolk asserting a personal injury cause of
action against Vulcan and Captain Todd, seeking $45, 000,
000.00. ECF No. 18-2. Vulcan filed an Answer to the Complaint
on November 29, 2018. ECF No. 18-3.
December 17, 2018, Vulcan filed its Complaint in Admiralty,
"seeking exoneration from or limitation of liability to
the value of the JEANIE CLAY, or $375, 000." ECF No. 24
at 5. On January 22, 2019, Dervishian filed its Answer and
Claim, setting forth affirmative defenses and its claim
against Vulcan. ECF No. 22. On the same day, Dervishian filed
the instant Motion to Dismiss and supporting memorandum. ECF
Nos. 17, 18. Vulcan filed its Memorandum in Opposition to
Motion to Dismiss Limitation Petition on February 5, 2019.
ECF No. 24. Dervishian filed its Reply Brief on February 11,
2019. ECF No. 26.
OVERVIEW AND APPLICABLE PRINCIPLES OF LAW
Court's analysis here hinges on whether the April 18,
2018 note was sufficient to constitute notice of a claim
under 46 U.S.C. § 30511(a), which 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 a claimant gives the owner written notice of a claim.
46 U.S.C. § 30511(a) (emphasis added).
argues that the Complaint in Admiralty should be dismissed
due to Vulcan's failure "to file the instant action
within six months of its receipt of Dervishian's written
Notice of Claim as required by 46 U.S.C. §
30511(a)" ECF No. 17 at 1. In response, Vulcan argues
that the April 19, 2018 note from Dervishian was insufficient
to satisfy the notice requirement and that Dervishian's
"state court complaint is what actually put Vulcan on
notice of a limitable claim under the Limitation Act."
ECF No. 24 at 1.
purpose of the Limitation of Liability Act is "to
protect and encourage maritime commerce[.]" Standard
Wholesale Phosphate & Acid Works. Inc. v. Travelers Ins.
Co., 107F.2d 373, 376 (4th Cir. 1939). In order to avail
himself of such limitation, however, "the vessel owner
must file his petition within six months from the day he
receives appropriate notice." In re Complaint of Big
Deal, Inc., 765 F.Supp. 277, 278 (D. Md. 1991),
aff'd, 958 F.2d 367 (4th Cir. 1992) (per
curiam). The purpose of this six-month requirement was to
"curb the . . . dilatory practice of a vessel
owner's waiting 'until after the question of
liability ha[s] been litigated and determined against the
shipowner* to institute a limitation action."
Int'l Ship Repair & Marine Servs. v. Estate of
Morales-Montalvo, No. 8:08-cv-1617-T-23AEP, 2010 WL
181575, at *3 (M.D. Fla. Jan. 12, 2010) (quoting Paradise
Divers, Inc. v. Upmal, 402 F.3d 1087, 1090 (11th Cir.
statute does not elaborate on what constitutes appropriate
notice, although "[i]t is well-settled that a letter
sent by a claimant (or claimant's attorney) to a vessel
owner may constitute notice of a claim, and such notice may
be sufficient to trigger the six month statute of
limitations." Norfolk Dredging Co. v. Wiley,
357 F.Supp.2d 944, 947-949 (E.D. Va. 2005) (citing
Standard Wholesale, 107 F.2d 373)). However,
"[b]ecause the statute requires vessel owners to post
security" or transfer their interest in the vessel to a
trustee "at the time of filing a limitation of liability
action, courts have traditionally been hesitant to require
that such an action be filed in response to a vague letter
which fails to specifically threaten suit or give some
approximation as to the extent of the owner's
liability." Norfolk Dredgin, 357 F.Supp.2d at
948; see also In re Complaint of Okeanos Ocean Research
Foundation, Inc., 704 F.Supp. 412, 416-17 (S.D.N.Y.
1989) ("[i]t is not reasonable to require an owner to
take this action when claimant sends an ambiguous
letter"); In re Petition of Allen N Spooner &
Sons, Inc., 253 F.2d 584, 586-87 (2d Cir. 1957) (Hand,
J., concurring) (requiring owner to post security or
surrender ship when claimant's position is
"equivocal" seems unreasonable). As such, "a
claimant must make his intentions clear in order to trigger
the six month statute of limitations." Okeanos,
704 F.Supp. at 416-17.
are two key tests courts have employed to determine the
sufficiency of a letter. Under the first test, sufficiency is
determined by the following factors: "whether the letter
(1) informs the vessel owner of claimant's 'demand of
a right or supposed right,' (2) blames the vessel owner
for 'any damage or loss,' or (3) calls upon the
vessel owner for something due claimant." Norfolk
Dredging Co., 357 F.Supp.2d at 947-48 (quoting In re
Loyd W. Richardson Constr. Co.,850 F.Supp. 555, 557)).
Under the second test, courts "place[ ] heavy emphasis
on whether the letter" indicates "a reasonable
possibility that the claim[ ]" may "exceed the
value of the ship." Norfolk Dredging, 357
F.Supp.2d at 948; see also In re Salty Sons Sports
Fishing, Inc.,191 F.Supp.2d 631, 637 (D. Md. 2002)
(finding that "knowledge that a prospective claimant has
engaged counsel and is investigating medical ...