In re ECKSTEIN MARINE SERVICE, LLC.
Lorne Jackson worked as a seaman for Marquette Transportation Co. (Marquette). She suffered injuries on February 28, 2009 while working aboard Marquette's tug the ST. ANDREW. Jackson filed his original petition on March 17, 2009. This petition was served on April 28, 2009 and filed an answer on June 10, 2009. As a result of the pending litigation with Jackson, Marquette filed a limitation of liability proceeding on January 18, 2010. Jackson filed a motion to dismiss the limitation proceeding alleging that Marquette failed to file its limitation proceeding within six months as required by the Limitation Act. In response, Marquette contends that in a motion to dismiss a court cannot consider extrinsic evidence without converting the motion to dismiss into a motion for summary judgment. Without doing so, Marquette contends there is insufficient evidence to grant the motion to dismiss and if the court does convert the motion there remain genuine issues of material fact.
Did Marquette fail to file his limitation proceeding before the expiration of the six-month period for filing the limitation proceeding?
Under the Limitation Act, a ship owner seeking to limit his liability must be brought within six months after a claimant gives written notice of a claim. In the Fifth Circuit, a challenge to the timeliness of the filing is a challenge to the district court's jurisdiction to hear the petition for limitation of liability. Here, Jackson's motion raises a factual attack on the court's jurisdiction because it challenges the existence of subject-matter jurisdiction. When a court is addressing a factual attack to its jurisdiction it may consider matters that go beyond the pleadings, such as affidavits and testimony. Whether it considers these matters turns upon whether the attack on jurisdiction implicates the merits of the plaintiff's cause of action. If it finds that the attack implicates an element of the cause of action, the court should find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case.
Here, Marquette contends that its January 18, 2010 petition was timely filed because the written notice that begins the six month period must reveal a reasonable probability that the claim made is one subject to limitation. The written notice must inform the vessel owner of the details of the incident that the owner appeared to be responsible, that the claimant intends to seek damages, and that there is a reasonable probability that the potential claim is subject to limitation. The reasonable possibility test states that notice is sufficient if: (1) it informs the ship owner of an actual or potential claim (2) which may exceed the value of the vessel and (3) is subject to limitation. In this case, the main issue is whether the original petition provided notice that the injuries presented a reasonable possibility that the damages could exceed the value of the vessel, $750,000. The court explained that the purpose behind the six month period is to allow the vessel owner to investigate the claim against him so that he can determine whether the claims will exceed the value of his vessel. Here, Jackson suffered a severe injury with debilitating pain and suffering. Thus, there is no indication of any statement on which Marquette could rely in delaying filing a limitation proceeding.Under the Limitation Act, a ship owner seeking to limit his liability must be brought within six months after a claimant gives written notice of a claim.
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