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In re Complaint of Vulcan Construction Materials, LLC

United States District Court, E.D. Virginia, Norfolk Division

May 7, 2019




         This 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 ("Dervishian" or "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.


         According 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 ¶¶ 10-18.

         Counsel 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.").

         On 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.

         On 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.


         The 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).

         Dervishian 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.

         The 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. 2006)).

         The 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.

         There 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 ...

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