Email Constitutes Notice To Trigger Time to File for Limitation Fifth Circuit

Email Constitutes Notice To Trigger Time to File for Limitation Fifth Circuit

By: Mark T. Tufts

In re: RLB Contracting, Inc., 2014 U.S. App. LEXIS 22727 (5th Cir., Dec. 3, 2014)

What constitutes sufficient notice to the vessel owner to trigger the 6 month period within which to file for limitation?  As a result of an allision between a fishing vessel and a dredge pipe on the dredge “Jonathan King Boyd,” one passenger in the fishing vessel was killed and several other injured.  Prior to filing suit, counsel for plaintiffs and two counsel for RLB exchanged correspondence via email.  The issue was whether this written communication served as notice under the Limitation of Liability Act to trigger the six month period within which the vessel owner could file for limitation.

The court per curiam (and consisting of a quorum of two judges) opinion phrased the matter as follows:(1) whether a series of letters, none of which constitutes notice on its own, may be considered together to find notice in the aggregate, (2) whether Daniel's letters convey a "reasonable possibility" of a potential claim, and (3) whether those letters establish a "reasonable possibility" that the amount of the claim might exceed the value of the Vessel.Considering the facts within this framework, the court held that the written communication here satisfied these standards and serve as notice under the Limitation Act in lieu of filing a complaint.The incident occurred on July 1, 2011.  The parties corresponded through October, 2011. After a hiatus of 7 months, counsel for plaintiffs sent one last offer to mediate and possible state or federal venues for suit.  Shortly thereafter, counsel for plaintiffs informed the vessel owner’s attorneys that he had been instructed to file suit in state court before a particular judge. The suit was served on July 2, 2012.  The vessel owner filed a limitation complaint on December 28, 2012.The panel rejected the argument advanced by the vessel owner that the court should adopt a bright line test: "A clear list of required statements and demands would provide guidance to future claimants and vessel owners alike."  The court noted two problems with this approach:First, regarding damages, we have held that the risk of uncertainty lies with the vessel owner. It would be inconsistent to reverse that risk when it comes to notice of a potential claim. Second, mandating that written notice contain "magic words" or specific elements might well impose a requirement not found in the statutory text.It consequently adopted the “analytical approach” asserted by the plaintiffs as more compatible with precedent and that it was factually inconceivable that the claimant in limitation had no notice.The hyperlink to the decision is:http://www.ca5.uscourts.gov/opinions/pub/14/14-40326-CV0.pdf