              Case: 17-11961     Date Filed: 03/20/2019   Page: 1 of 33


                                                                          [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-11961
                           ________________________

                    D.C. Docket No. 8:15-cv-01136-MSS-TGW

ORION MARINE CONSTRUCTION, INC.,
as owner of Barges M-1801, M-1802,
M-1701 and M-1402, their engines, tackle,
appurtenances, equipment, etc., in a cause
of exoneration from or limitation of liability,

                                                               Plaintiff - Appellant,

                                        versus

ELIZABETH CARROLL,

                                                                          Defendant,

DANIEL F. BOWEN, et al.,

                                                                          Claimants,

MARK DAWSON,
CHRISTINE M. DAWSON,
                                                             Claimants - Appellees.
                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (March 20, 2019)
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Before MARCUS, NEWSOM, and ANDERSON, Circuit Judges.

NEWSOM, Circuit Judge:

      This admiralty appeal requires us to navigate uncharted waters in order to

determine what constitutes sufficient notice of a claim under the Shipowner’s

Limitation of Liability Act, 46 U.S.C. §§ 30501, et seq. The Act establishes a

procedure by which a shipowner can limit its liability for certain claims involving

one of its vessels to the value of the vessel plus its then-pending freight. Id. §

30505(a). Importantly here, to invoke the Act’s protection, the shipowner must

bring a limitation-of-liability action in federal court “within 6 months after a

claimant gives the owner written notice of a claim.” Id. § 30511(a). If the owner

meets the six-month statutory deadline, and then creates a qualifying limitation

“fund,” all related lawsuits against the owner “shall cease,” leaving the claimants

to pursue their rights in the limitation proceeding. Id. § 30511.

      In connection with a large bridge-construction project in Florida, Orion

Marine Construction used four barges to drive piles into the seabed. After

numerous local residents complained that their homes had been damaged by

vibrations caused by the barges’ pile-driving activities, Orion filed a limitation

action under the Act. Claimants Mark and Christine Dawson moved to dismiss

Orion’s suit, arguing that Orion had received adequate notice of the claims against

it more than six months before it filed, that the action was therefore time-barred,


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and, accordingly, that the district court lacked subject matter jurisdiction. The

district court agreed and granted the Dawsons’ motion to dismiss. We reverse.

      This appeal presents several interesting and important questions about the

meaning and operation of the Act:

      First, does § 30511(a)’s six-month filing deadline erect a jurisdictional

barrier to suit, as the Dawsons contend and the district court concluded? We hold

that it does not, and that it is instead (like most timely-filing requirements) a non-

jurisdictional claim-processing rule.

      Second, what constitutes “written notice of a claim” within the meaning of

§ 30511(a)? We hold that in order to trigger the six-month filing period, a

claimant (not someone else) must provide the shipowner or its agent (not someone

else) with written (not oral) notice that reveals a “reasonable possibility” that his

claim will exceed the value of the vessel(s) at issue.

      Third, does a shipowner incur a duty to investigate known or potential

claims immediately upon receipt of a claimant’s notice, as the district court

concluded? We hold that it does not, and that the duty to investigate arises only if

the notice reveals the required “reasonable possibility.”

      Finally, did Orion receive the statutorily required written notice—revealing

a reasonable possibility of claims that would exceed the value of its barges—more




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than six months before it filed its limitation action? We hold that it did not, and,

accordingly, that its suit was timely filed.

                                           I

                                           A

      The pertinent facts here are undisputed. In 2011, Orion―a company

specializing in marine construction―contracted with the Florida Department of

Transportation (FDOT) to rebuild the Pinellas Bayway Bridge in Pinellas County,

Florida. As part of the project, Orion’s barges were used to drive concrete piles

into the bay floor. Hundreds of local residents complained that the vibrations

created by Orion’s pile-driving damaged their surrounding properties, and 247 of

them eventually filed formal claims in the limitation action that gave rise to this

appeal.

      Early on, though, the claims trickled in slowly. Between March 2012 and

June 2014, only nine residents lodged complaints—typically alleging cracks in

their homes, patios, and driveways, or leaks in their pools—with either Orion,

FDOT, or Orion’s third-party administrator, FARA Insurance. We focus here on

these first nine claimants because they (alone among the 247) made their

complaints before November 11, 2014—and thus, critically, more than six months

before Orion filed suit on May 11, 2015.




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      In response to a few of these early complaints, Orion dispatched an

investigator to assess the alleged damage. Some of the cracks that he observed, he

reported, were “old,” and others were “minor” and “cosmetic.” As for one of the

reported pool leaks, he found that it was “just a crack in a PVC pipe.” Orion

installed vibration monitors at two residents’ homes; the numbers came back “low”

at one and “very, very low” at the other.

      According to Orion, around December 2014 or January 2015 it began to

receive property-damage claims “in bulk” from a public adjuster, beginning with

11 additional complaints during those two months alone. This flood of new

claims, Orion says, prompted it to file its limitation action on May 11, 2015.

                                            B

      Mark and Christine Dawson—who lodged one of the original nine

complaints—moved to dismiss Orion’s action on the ground that it was untimely

and, therefore, that the district court lacked subject matter jurisdiction. Orion’s

action was time-barred, they asserted, because Orion had received “written notice

of a claim” within the meaning of 46 U.S.C. § 30511(a) prior to November 11,

2014―and thus earlier than the statutorily specified six-months mark before it

filed. Orion responded that none of the nine original claims provided it with

proper notice under the Act because (1) a number of the complaints were not

“written,” as the Act requires, and (2) in any event, the complaints failed to reveal


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a “reasonable possibility” that the claims would exceed the aggregate value of the

four vessels used during the bridge construction.

      Because it “lacked sufficient factual information” about which of the

original nine claims were made when, to whom, and in what form, the district court

denied the Dawsons’ motion without prejudice and ordered the parties to conduct

limited discovery on the timeliness issue. Discovery revealed a hodge-podge of

formal and informal oral and written complaints, which were submitted to various

employees at Orion, FDOT, and FARA. When FDOT received complaints, it

memorialized them in written summaries or emails, which it then forwarded to

Orion. FARA typically responded to the complaints that it received by

acknowledging them, disclaiming any assumption of coverage, advising that

construction was ongoing, requesting copies of—or that the claimant maintain

records of—photos and repair quotes, and agreeing to investigate further. In an

effort to impose some order—and to facilitate our own analysis—we will group the

complaints into the following categories: (a) oral complaints that were (i) made to

and memorialized in writing by Orion or (ii) made to and memorialized in writing

by FARA or FDOT and then forwarded to Orion; and (b) written complaints that

were (i) made to FARA and then forwarded to Orion or (ii) made to FDOT and

then forwarded to Orion.




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       Based on the information obtained during discovery, Orion emphasized that

none of the nine original claimants had provided “written notice” to it and that only

four had provided written notice to anyone—two to FDOT and two to FARA.

Moreover, Orion said, none of the nine presented specific damage computations (in

any form) before November 11, 2014. Estimates that Orion received after the

completion of the bridge revealed the total amount of claimed damages by written

notice to be $164,901.10 and the total from all pre-November 11, 2014 notices

(both oral and written) to be $330,046.22.1 Because neither number exceeds the

aggregate value of the four barges used during the

construction―$1,258,217.00―Orion contended that the nine original claimants’

notices didn’t start the six-month clock on its obligation to file a limitation action.

Rather, Orion reiterated, “[i]t was not until a public adjuster began signing up

claimants in droves in December 2014 . . . that [it] was reasonably on notice the

claims may exceed the value of its vessels.” Accordingly, Orion argued, its May

11, 2015 filing fell comfortably within the six-month period prescribed by the Act.

                                                C

       Following discovery, the Dawsons renewed their motion to dismiss,

reiterating that because Orion’s action was untimely under § 30511(a), the district



1
 Orion explained that because two of the claimants never filed claims in the limitation action or
made specific demands, their estimated damages remain unknown.

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court lacked subject matter jurisdiction over the case. The district court granted

the motion and dismissed Orion’s complaint, concluding that “Orion was aware or

should have been aware that claims against it would likely exceed the value of the

vessel[s] . . . certainly no later than November 11, 2014,” and, accordingly, that its

limitation action filed on May 11, 2015 was “untimely and must be dismissed for

lack of jurisdiction.”

      In so holding, the district court admitted that it was “[w]ithout any case law

directly analogous to the case at hand” and, accordingly, that it had to “extrapolate

from the available precedent to determine whether the nine [original] complaints

constituted notice.” In so doing, it considered all nine pre-November 11, 2014

notices “in the aggregate” and the sufficiency of those communications “as a

whole.” Significantly, as to the form of notice, the district court concluded “that

both the written complaints Orion received directly from the [c]laimants or by

forward from the FDOT, and the memorialized oral complaints Orion received

[either directly or from FDOT or FARA] constitute ‘written’ notice under the Act.”

The district court further reasoned that the complaints that Orion received before

November 11, 2014 triggered a duty—which it found Orion breached—to

investigate any “potential” additional claims that might be asserted by owners of

other properties in the surrounding area.




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      Orion timely appealed to this Court, arguing that the district court erred in

concluding (1) that § 30511(a)’s six-month filing requirement is jurisdictional and

(2) that the nine original claimants provided adequate notice under the Act. In

support of the latter contention, Orion argued that the district court erred by

holding (a) that even oral complaints, if later memorialized, satisfy the Act’s

“written notice” requirement, (b) that the nine pre-November 11, 2014 notices

identified “limitable” claims even though the record revealed no reasonable

possibility that the alleged damages (no matter how measured) would exceed the

value of the barges used during construction, and (c) that Orion was obligated to

investigate the possibility of additional claims immediately upon receipt of the

initial complaints.

      We consider those issues in turn.

                                           II

      We begin, as we must, with jurisdiction. A number of courts—including at

least two of our sister circuits—have held, as the district court did here, that

§ 30511(a)’s six-month time bar constitutes a jurisdictional limitation. See, e.g., In

re Eckstein Marine Serv., L.L.C., 672 F.3d 310, 315 (5th Cir. 2012); Cincinnati

Gas & Elec. Co. v. Abel, 533 F.2d 1001, 1003 (6th Cir. 1976). We disagree.

      Not long ago, in Secretary v. Preston, 873 F.3d 877 (11th Cir. 2017), we had

occasion to survey the Supreme Court’s recent precedent outlining the distinction


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between true jurisdictional limitations and non-jurisdictional “claim-processing”

rules—and, in particular, concerning the jurisdictional-ness of statutory time bars.

See id. at 881–82. What we said there—about ERISA’s six-year statute of

repose—applies here pretty much foursquare. As a general matter, we observed

that in recent years, “the Supreme Court has set out to impose some discipline on

the previously slippery use of the term ‘jurisdictional.’” Id. at 881. “In so doing,”

we recounted, “the Court has emphasized—repeatedly—that statutory limitation

periods and other filing deadlines ‘ordinarily are not jurisdictional’ and that a

particular time bar should be treated as jurisdictional ‘only if Congress has clearly

stated that it is.’” Id. (quoting Musacchio v. United States, 136 S. Ct. 709, 716–17

(2016)). Establishing the required clear statement, we explained, is a tall task—a

party must “demonstrat[e] that ‘traditional tools of statutory construction . . .

plainly show that Congress imbued a procedural bar with jurisdictional

consequences.’” Id. (quoting United States v. Kwai Fun Wong, 135 S. Ct. 1625,

1632 (2015)).

      More particularly, the considerations that we emphasized in Preston in

concluding that ERISA’s statute of repose is not jurisdictional lead us to the same

conclusion about § 30511(a). First, we observed that the language of the provision

there at issue “d[id] not ‘speak in jurisdictional terms or refer in any way to the

jurisdiction of the district courts.’” Id. at 882 (quoting Arbaugh v. Y & H Corp.,


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546 U.S. 500, 515 (2006)). “When,” we said, “a statute ‘speaks only to a claim’s

timeliness, not to a court’s power,’ it should be treated as non-jurisdictional.” Id.

(quoting Kwai Fun Wong, 135 S. Ct. at 1632). Just so here. Section 30511(a)’s

language—“[t]he action must be brought within 6 months”—does not “plainly

show that Congress imbued” the deadline “with jurisdictional consequences.”

Kwai Fun Wong, 135 S. Ct. at 1632. Rather, it “reads like an ordinary, run-of-the-

mill statute of limitations, spelling out a litigant’s filing obligations without

restricting a court’s authority.” Id. at 1633 (internal quotation marks and citation

omitted). In short, § 30511(a)’s text reveals a filing deadline of the sort that the

Supreme Court has consistently called a “quintessential claim-processing rule[].”

Henderson v. Shinseki, 562 U.S. 428, 435 (2011).

      Second, and relatedly, we stressed in Preston that Congress’s “use of

mandatory language”—there, “No action may be commenced”—does not alone

impart jurisdictional significance. “The Supreme Court,” we noted, “has flatly

‘rejected the notion that all mandatory prescriptions, however emphatic, are . . .

properly typed jurisdictional.’” 873 F.3d at 882 (quoting Henderson, 562 U.S. at

439). Not even sweeping proscriptions like “no action shall be brought,” Jones v.

Bock, 549 U.S. 199, 220 (2007), and “shall be forever barred,” Kwai Fun Wong,

135 S. Ct. at 1633–38, will do the trick. See Preston, 873 F.3d at 882. Rather, we

summarized, “[u]nder clear Supreme Court precedent, it is only an express


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reference to jurisdiction, not firmness more generally, that counts.” Id. Section

30511(a)’s mandatory phrasing, therefore—“The action must be brought within 6

months”—provides no basis for inferring a jurisdictional limitation.

      Finally, just as in Preston, “[s]tatutory context”—and in particular, the

location of the time bar within the statute’s architecture—confirms § 30511(a)’s

“non-jurisdictional character.” Id. Here, as there, Congress situated the filing

period among provisions that describe the standards and procedures that govern the

cause of action—and (well) away from those that allocate jurisdiction. Congress,

that is, didn’t write the six-month bar into 28 U.S.C. § 1333(1), which gives federal

district courts original jurisdiction over “any civil case of admiralty or maritime

jurisdiction.” Instead, it placed the time limit in Chapter 305 of Title 46, which is

titled “Exoneration and Limitation of Liability” and which prescribes the

mechanics of shipowner suits—liability caps, apportionment, personal-injury and

wrongful-death actions, etc. (Tellingly, § 30511(a)’s six-month deadline is

repeated in Rule F(1) of the Supplemental Admiralty and Maritime Claims Rules,

which are located in an addendum to the Federal Rules of Civil Procedure.) The

fact that here—again, just as in Preston—Congress “separat[ed]” the filing

deadline from the jurisdictional grant fortifies our determination that § 30511(a)’s

six-month “time bar is not jurisdictional.” Preston, 873 F.3d at 882 (quoting Kwai

Fun Wong, 135 S. Ct. at 1633).


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       “Because we find no clear textual indication” that § 30511(a)’s six-month

time bar “was intended to limit courts’ subject matter jurisdiction,” id.—because,

in short, it does nothing “special, beyond setting an exception-free deadline,” Kwai

Fun Wong, 135 S. Ct. at 1632—we hold that the provision is an ordinary non-

jurisdictional claim-processing rule, and that the district court erred in concluding

otherwise.2

                                             * * *

       Where, you might ask, does that leave us procedurally? Fair question.

Given the peculiarities of this particular case, the proper course, we think, is to

evaluate the merits of the parties’ contentions—about whether the nine original

(i.e., pre-November 11, 2014) claimants gave Orion notice sufficient to commence


2
  We are untroubled by the fact that our holding in this respect places us athwart the consensus of
courts to address § 30511(a)’s jurisdictional status. Many of the decisions holding—or
assuming, really—that § 30511(a) limits courts’ subject matter jurisdiction predate the Supreme
Court’s recent effort to “bring some discipline” to the use of the term “jurisdictional.”
Henderson, 562 U.S. at 435. Moreover, and in any event—and with respect—we think that
many of the § 30511(a) decisions represent the sort of “drive-by jurisdictional rulings,” Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010), that the Supreme Court has condemned.
See, e.g., Cincinnati Gas, 533 F.2d at 1003 (relying on a 1939 district court decision for the
proposition that if a deadline is a condition precedent then it must be jurisdictional—a
mechanical rationale that the Supreme Court has since rejected); Complaint of Tom-Mac, Inc., 76
F.3d 678, 682 (5th Cir. 1996) (assuming that § 30511(a)’s predecessor’s filing deadline is
jurisdictional without elaboration or citation to authority); In re Waterfront License Corp., 231
F.R.D. 693, 699 (S.D. Fla. 2005) (same); In re Eckstein, 672 F.3d at 315 & n.11, n.12 (relying on
Cincinnati Gas, Complaint of Tom-Mac, and In re Waterfront License Corp., as well as an earlier
Fifth Circuit decision holding the Federal Tort Claims Act’s statute of limitations is
jurisdictional—a decision that the Supreme Court has since expressly abrogated); In re
Complaint of RLB Contracting, Inc., 773 F.3d 596, 601 & n.5, 602 & n.14 (5th Cir. 2014)
(relying without analysis on In re Eckstein).



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§ 30511(a)’s six-month clock—under a summary-judgment standard. For reasons

just explained, despite its label, the Dawsons’ Rule 12(b)(1) motion to dismiss for

lack of subject matter jurisdiction is more accurately considered a Rule 12(b)(6)

motion to dismiss for failure to state a claim. Because the district court considered

materials outside the pleadings in deciding the Dawsons’ motion, though—and

indeed, affirmatively directed discovery—that motion may properly be converted

into a motion for summary judgment. See Fed. R. Civ. P. 12(d). Given that (1) the

parties here conducted discovery on the timeliness issue, (2) the Dawsons

alternatively framed their motion as one for summary judgment and Orion

maintained that it should have been reviewed under a summary-judgment rubric,

(3) the parties agree (and have reiterated before us) that there are no disputed

material facts, and (4) the parties further agree that the timeliness issue is squarely

presented on appeal, we feel confident proceeding to decide the merits under a

summary-judgment standard, reviewing the district court’s decision de novo. Cf.

Miller v. Herman, 600 F.3d 726, 731–33 (7th Cir. 2010) (confronting a similar

“procedural hiccup” and opting to treat a Rule 12(b)(1) motion as a Rule 12(b)(6)

motion, which was properly converted to, and thus reviewed as, a summary-

judgment motion).




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                                          III

      Our consideration of the merits comprises several issues, which we will

address in turn. First, which of two competing doctrinal tests—which we have

acknowledged but have never (until now) had to choose between—governs the

determination whether a claimant’s notice is sufficient under § 30511(a)? Second,

what forms and methods of notice qualify as “written notice” within the meaning

of the Act? And third, what does it mean for a claimant’s notice to reveal—as we

hold it must in order to start the statutory clock and trigger a duty to investigate

additional claims—a “reasonable possibility” that his claim will exceed the value

of the shipowner’s vessel(s)?

                                           A

      Because the Act doesn’t define “written notice of a claim,” courts have been

left to formulate tests to determine whether a claimant’s notice suffices under

§ 30511(a). Under one, which originated in the Second Circuit’s decision in

Doxsee Sea Clam Co. v. Brown, “[n]otice will be sufficient if it informs the vessel

owner of an actual or potential claim . . . which may exceed the value of the vessel

. . . and is subject to limitation.” 13 F.3d 550, 554 (2d Cir. 1994) (internal citations

omitted). The Seventh Circuit has since adopted the Doxsee standard with one

important refinement—elaborating on the word “may,” that court held that “the

written notice of a claim must reveal a ‘reasonable possibility’ that the claim made


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is one subject to limitation.” In re Complaint of McCarthy Bros. Co./Clark Bridge,

83 F.3d 821, 829 (7th Cir. 1996) (citing Complaint of Tom-Mac, 76 F.3d at 683).

The competing test requires only that the claimant’s notice (1) demand a right or

supposed right, (2) blame the vessel owner for any damage or loss, and (3) call on

the vessel owner for anything due. See Rodriguez Moreira v. Lemay, 659 F. Supp.

89, 91 (S.D. Fla. 1987).

      We have twice noted the existence of these two tests―first in Paradise

Divers, Inc. v. Upmal, 402 F.3d 1087 (11th Cir. 2005), and then, a year later, in

P.G. Charter Boats, Inc. v. Soles, 437 F.3d 1140 (11th Cir. 2006). On both

occasions, we found it unnecessary to choose between them. The district court

here did the same thing, concluding that the claimants’ notices satisfied both. But

for reasons that we’ll explain, the distinction between the two standards actually

matters here. Although we have described these two tests as “similar,” Paradise

Divers, 402 F.3d at 1090, there is one crucial difference: What we’ll call the

“Doxsee/McCarthy test” entails an amount/value element that the “Moreira test”

does not—namely, it requires that the notice reveal a “reasonable possibility” that

the claim will exceed the value of the offending vessel(s). No one―not even

Orion―disputes that the claimants’ notices would meet the Moreira standard.

Instead, Orion contends that the claimants’ notices fail the Doxsee/McCarthy test

because the notices (even considered in the aggregate) failed to convey a


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reasonable possibility that the claims’ total value would exceed the value of its

barges.

      With the lines thus drawn—and because we agree that Orion can’t win under

Moreira but has a fighting chance under Doxsee/McCarthy—the time has finally

come for us to decide which standard to apply. The answer, we think, is clear. For

starters, the Doxsee/McCarthy test is the most widely-accepted among our sister

circuits—in addition to the Second and Seventh Circuits, the Fifth has also

embraced it, see In re Eckstein, 672 F.3d at 317—and indeed, it has been described

as the “most authoritative.” Paradise Divers, 402 F.3d at 1090 (quoting McCarthy

Bros., 83 F.3d at 829). The Moreira test, by contrast, while perhaps once “found

in many district court cases,” id., does not appear to have been adopted by any

circuit court, and generally seems to have fallen into desuetude since Doxsee was

decided.

      More substantively, the key distinction between the two tests—namely, that

Doxsee/McCarthy incorporates an amount/value element (in the form of the

“reasonable possibility” showing) that Moreira doesn’t—underscores the

superiority of the former. Doxsee/McCarthy’s reasonable-possibility requirement

serves the six-month limitation period’s purpose by encouraging shipowners to act

promptly while at the same time eliminating consideration of small-value cases

unlikely to benefit from the Act’s protection. In contrast, by requiring a shipowner


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to initiate limitation proceedings regardless of the amount likely at issue, the

Moreira test would (1) “obligate a shipowner to go to the expense of posting

security and taking the other steps necessary to commence a limitation proceeding”

even when the claims indicate that doing so would be “wholly unnecessary,” (2)

“encourage claimants to understate the amount of their damage in the hope that the

shipowner would be misled into not filing a timely petition for limitation,” and (3)

“serve no purpose other than to clog the courts with unneeded petitions and cause

great expense to shipowners without in any way benefiting claimants.” Complaint

of Morania Barge No. 190, Inc., 690 F.2d 32, 34 (2d Cir. 1982).

      For all of these reasons, we hold that the Doxsee/McCarthy test is the

controlling standard for determining the sufficiency of notice under § 30511(a).

                                          B

      That leads us to the question whether claimants’ notices here satisfied the

Doxsee/McCarthy standard—which, as we have described it before and adopt it

today, requires a claimant to give the shipowner written notice that reveals a

“reasonable possibility” of a claim that exceeds the value of the vessel(s). See P.G.

Charter Boats, 437 F.3d at 1143.

      Orion argues that claimants’ notices fail this test (1) because some of them

were not “written” at all, as § 30511(a) plainly requires, and (2) because, in any

event, the notices—even including those made orally—“never demonstrated a


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reasonable possibility of a claim exceeding the value of the vessel, and to this day,

even added together, Claimants’ filed claims do not.” Br. for Appellant at 21. The

Dawsons, by contrast, contend that the district court properly determined that the

pre-November 11, 2014 claims―when considered in the aggregate and including

the oral complaints that were later reduced to writing―provided notice sufficient

to allow Orion to evaluate its overall exposure, and thus triggered Orion’s duty to

investigate and to file suit within six months.

                                           1

      First things first: Which of the pre-November 11, 2014 complaints qualify as

“written notice” within the meaning of the Act? And more particularly, what of

the district court’s conclusion “that both the written complaints Orion received

directly from the Claimants or by forward from the FDOT, and the memorialized

oral complaints Orion received [either directly or from FDOT or FARA] constitute

‘written’ notice under the Act”? Put simply, in so holding, the district court erred.

Section 30511(a) couldn’t be clearer about what we have called its “writing”

requirement. See P.G. Charter Boats, 437 F.3d at 1143. The statute says, in no

uncertain terms, that the six-month filing period begins to run when “a claimant

gives the owner written notice of a claim.” 46 U.S.C. § 30511(a). Broken down

into its constituent parts, that straightforward provision requires that the claimant




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(not someone else) give the owner (not someone else) written (not oral) notice of

his claim.

      As noted earlier, the complaints lodged by the original nine claimants can be

grouped into the following categories: (a) oral complaints that were (i) made to and

memorialized in writing by Orion or (ii) made to and memorialized by FARA or

FDOT and then forwarded to Orion; and (b) written complaints that were (i) made

to FARA and forwarded to Orion or (ii) made to FDOT and forwarded to Orion.

We will consider each type of complaint in turn.

                                          a

      As an initial matter, we think it clear—contrary to the district court’s

determination—that the memorialized oral complaints don’t qualify.

      The complaints that were made orally to Orion and that it later reduced to

writing—those are easy. No reasonable interpretation of § 30511(a)’s text—

requiring that the “claimant give[] the owner written notice”—could include a

vessel owner’s own written notes recording a claimant’s oral report. In that

circumstance, no “written notice” has been provided at all—by anyone, to anyone.

What about the complaints that were made orally to FARA and/or FDOT, which

they then memorialized and forwarded to Orion? Closer, but still no cigar. In that

circumstance, Orion might have received written notice from someone, but it




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didn’t receive written notice from a claimant, as § 30511(a) expressly requires. 3

The fact that someone, somewhere has reduced an oral communication to writing

doesn’t transform an invalid oral notice into a valid written notice under the Act.4

                                                b

       What, though, about the written notices provided by the claimants to FARA

and/or FDOT, which were then forwarded to Orion? Much closer. The Second

Circuit has held that “[i]t is settled that a notice of claim may be received by an

agent of the vessel owner,” Doxsee, 13 F.3d at 553, and that seems right to us as a

matter of hornbook agency law. See, e.g., Restatement (Third) of Agency § 5.03



3
  The district court suggested that FDOT was a “potential claimant” by way of the
indemnification provision in Orion’s contract—and therefore, that the oral claims memorialized
by FDOT could constitute written notice by a claimant. That is incorrect. The Supreme Court
has made clear that contracts entered into by vessel owners are personal and not subject to the
Act. See, e.g., Am. Car & Foundry Co. v. Brassert, 289 U.S. 261, 264 (1933); Richardson v.
Harmon, 222 U.S. 96, 106 (1911). Accordingly, no claim made by FDOT against Orion
pursuant to their contract would be subject to limitation, and FDOT could never be a “claimant”
in a limitation action.
4
  In support of its conclusion that the memorialized oral complaints should be considered, the
district court cited only the magistrate’s report and recommendation in Paradise Divers for the
proposition that “although a notice of claim must obviously be in writing, the notice need not
take any particular form.” Doc. 634 at 16 (quoting In re Paradise Divers, Inc., No. 03-10021
CIV, 2003 WL 25731109, at *4 (S.D. Fla. Nov. 9, 2003)). But that statement doesn’t support the
district court’s position. Rather, the Paradise Divers R&R sought only to clarify what other
circuits have expressly held―that informal written notice, such as a letter sent by a claimant or
his attorney, will suffice under the Act in lieu of a formal complaint. See, e.g., RLB Contracting,
773 F.3d at 603; Doxsee, 13 F.3d at 554. The Act’s plain text still requires that the claimant
provide written notice to the owner. 46 U.S.C. § 30511(a).
        The district court also emphasized that Orion acted on the memorialized oral
complaints—and thus, the theory presumably goes, had actual knowledge of them. But even
actual knowledge of alleged damage is no substitute for the written notice required by the Act.
See, e.g., Moreira, 659 F. Supp. at 91.

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(Am. Law Inst. 2006) (observing that, as a general rule, “[f]or purposes of a

principal’s legal relations with a third party, notice of a fact that an agent knows or

has reason to know is imputed to the principal if knowledge of the fact is material

to the agent’s duties to the principal”). And for that matter, even Orion admits that

“written notice provided to an agent might be imputed to the principal.” Reply Br.

for Appellant at 6. So the sufficiency of the written notices sent to FARA and/or

FDOT hinges on whether they were Orion’s agents.

      It seems reasonably clear to us—and no one here disputes—that FARA was

Orion’s agent for claims-processing purposes. FARA had at the very least

apparent―and probably even actual―authority to act on Orion’s behalf; indeed, it

was hired specifically to assist Orion with the adjustment of claims. See

Restatement (Third) of Agency §§ 3.01, 3.03 (describing actual and apparent

authority). Accordingly, any claimant who gave written notice to FARA, as

Orion’s agent, satisfied § 30511(a)’s writing requirement.

      Those who gave written notice only to FDOT (which the claimants describe

as Orion’s “project partner”) stand on different footing. So far as we can tell, the

record contains no evidence that Orion—as the would-be principal—made any

“manifestation” that would have clothed FDOT with either actual or apparent

authority to accept claim notices on Orion’s behalf. See id. §§ 3.01, 3.03

(emphasizing that the “manifestation” that gives rise to an agent’s authority must


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emanate from the principal). Perhaps not surprisingly, then, the record

demonstrates that when FDOT received complaints, it simply—and consistently—

redirected them to Orion rather than attempting to process them. 5 Because FDOT

(unlike FARA) had no authority to act as Orion’s agent for claims-processing

purposes, written notice provided to FDOT didn’t meet § 30511(a)’s written-

notice-to-owner requirement.

                                           * * *

       So to sum up, the district court erred in holding that all of the claims—oral

and written, and to whomever communicated—constituted “written notice” to the

“owner” under § 30511(a). Complaints delivered orally and later reduced to

writing (by anyone) don’t qualify. Nor do the written complaints submitted to

FDOT, which had no authority to act as Orion’s claims-processing agent. Only the

written complaints submitted in writing to Orion—either directly or through

FARA, its agent—satisfy § 30511(a)’s “written notice” requirement.

                                              2

       Having said that, even if we were to consider―as the district court

erroneously did―the oral and written complaints lodged by all nine of the pre-


5
 In fairness, the record does reveal one instance in which an FDOT employee sent a copy of a
property-damage form to a claimant with instructions that the claimant complete the form and
copy her on the submission “so that [she could] make sure Orion receive[d] the documentation.”
Dispositively, though, that “manifestation”—assuming it was one—wasn’t made by Orion,
which (as explained in text) agency law requires in order to establish apparent authority.

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November 11, 2014 claimants, their notices still fail the Doxsee/McCarthy test

because they don’t reveal a “reasonable possibility” that the claims, even

considered (as the district court put it) “in the aggregate,” would exceed the value

of Orion’s barges.6 Here’s why.

                                                 a

       It is undisputed that the four Orion barges involved in the pile-driving were

valued, collectively, at no less than $1,258,217.00. The question, then, is whether

the nine original claimants’ notices revealed a reasonable possibility that their

claims, collectively, would exceed that amount. It is clear to us that they didn’t.

       Let’s first review the sort of damage that the claimants alleged. In general,

the homeowners complained that Orion’s pile-driving had caused (1) external

cracks in their homes’ walls, chimneys, porches, and driveways, (2) internal cracks



6
  Although there is nothing in the Act explicitly stating that the value of claims should be
considered cumulatively, we will assume for present purposes that it is permissible to do so, as
no one here seems to dispute that we may aggregate the value both of individual property
owners’ claims and of Orion’s four barges for purposes of determining whether the claimants’
notices reveal the required “reasonable possibility.” We do note a distinction between this case
and the Fifth Circuit’s decision in RLB Contracting, on which the district court here relied. In
particular, the district court pointed to the Fifth Circuit’s statement that § 30511(a)’s “statutory
text does not foreclose the possibility of aggregate notice; it only requires the claimant to give
‘the owner written notice,’ not a written notice.” 773 F.3d at 603. To be clear, though, RLB
Contracting was different—the court there sanctioned aggregating multiple notices from a single
claimant pertaining to a single incident, not (as here) multiple notices from multiple claimants
arising out of multiple incidents. And while the Fifth Circuit was correct that the statute does not
require a written notice, it does require “written notice of a claim.” 46 U.S.C. § 30511(a)
(emphasis added). Even so, we needn’t tarry on the aggregate-notice issue here, because, as we
explain in text, even if we consider all nine of the original claimants’ notices together, they don’t
reveal a reasonable possibility that the claims would exceed the value of Orion’s four barges.
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in drywall and around windows, ceilings, and fireplaces, and (3) leaks in their

swimming pools and related water lines. The most extensive—and arguably most

serious—complaints came from Mary White. After lodging a general complaint

about damage in May 2012, she filed a more detailed grievance a year later.

There, she said that her home had “sustained substantial damage from the work

that is being done building the new Byway bridge.” In particular, she complained

about “cracking in every room in [her] home (including around the windows and

ceilings, and . . . along [her] marble fireplace),” “cracks in [her] new cement

driveway,” “dropped pavers in [her] patio,” “a leak in [her] swimming pool,” and

“a wet spot in [her] downstairs room.” Six months thereafter, White followed up,

alleging that she “had additional cracks in all [her] rooms.”

      Another homeowner, Robert Orsi, lodged a series of complaints, the most

descriptive of which alleged damage to his “chimney and . . . front entrance,”

“cracks . . . above [his] door [that] made opening the door all the way difficult,”

and cracks “at the top of [his] stairs” that he feared suggested “issues with the

concrete header over the doorway.” Another couple, Mark and Christine

Dawson—the appellees here—repeatedly complained about “damage to [their]

swimming pool”—in particular, about “damage to [the] lines to [the] swimming

pool caused by pile driving vibration.” They also alleged, more vaguely, that “[i]n

addition to the pool leaks,” they had “a list of other issues that have happened, and


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continue to happen.” The other homeowners’ complaints were similar, albeit less

detailed—“leak in [my] pool,” “cracking on [my] ceiling,” “cracks in [my] home,”

“a lot of damage,” etc.

      As already noted, in response to several of the early complaints, Orion sent

one of its agents to investigate. He determined that the alleged damage to White’s

home was “minor” and “cosmetic,” that the cracks in Orsi’s house were “old” and

that the damage was “very minor cosmetic stuff,” and that the Dawsons’ pool leak

was “just a crack in a PVC pipe.” Orion installed vibration monitors at White’s

and Orsi’s homes; the numbers registered “low” at Orsi’s and “very, very low” at

White’s.

      The question, then, is whether these notices revealed a reasonable possibility

that the claims—in the aggregate, we have said we will assume—would exceed the

barges’ $1,258,217.00 value. We think it clear that they didn’t. In explaining why

not, it will be useful to compare this case with two recent Fifth Circuit decisions

that have unpacked the reasonable-possibility standard. In Eckstein, a shipowner

contended that a claimant’s state-court complaint failed to reveal a reasonable

possibility that his claim would exceed a vessel’s $750,000 value. In disagreeing,

the Fifth Circuit emphasized the seriousness of the claimant’s physical injuries,

sustained when he became “entangled in a line and was pulled into a mooring bit.”

672 F.3d at 313. The claimant’s injuries were not only gruesome—according to


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eyewitness testimony, his “foot was hanging off of his leg at . . . a 90 degree angle”

and there was “blood everywhere”—but also “permanent and catastrophic.” Id. at

317–18. He required “multiple surgeries including debridement, the insertion of

hardware to treat his bone fractures, and a skin graft.” Id. at 318. In his complaint,

he sought “compensation for the remainder of his lifetime, including past loss of

earning, future loss of earning capacity, past and future disability, past and future

disfigurement, past and future medical and hospital expenses, past and future pain

and mental anguish, and maintenance and c[u]re.” Id. at 317. The Fifth Circuit

held that the claimant’s complaint “alleging catastrophic and permanent injuries

raised at least a reasonable possibility that his claim might exceed” the ship’s

$750,000 value and, accordingly, that “it was [the shipowner’s] responsibility to

conduct an investigation, and to file a limitation action within six months.” Id. at

319.

       The Fifth Circuit faced the reasonable-possibility issue again in RLB

Contracting. In that case, a fishing boat carrying a family had collided with a

ship’s floating dredge pipe; “[a]ll occupants of the fishing boat were thrown

overboard, suffering various physical injuries, and [a child] was killed.” 773 F.3d

at 599. Following Eckstein, the court held that a series of letters sent by the

family’s lawyer—including one emphasizing “the nature of the injuries, bystander

claims, graphic photos, [and] the PTSD claims”—revealed a reasonable possibility


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of a claim exceeding the vessel’s $750,000 value. Id. at 600. Put simply, the Fifth

Circuit concluded, the shipowner “should have realized that an action involving the

death of a child would easily exceed $750,000 in potential damages.” Id. at 606.

      Needless to say, the nature and severity of the property damage alleged here

pale in comparison to the claims for “permanent and catastrophic” personal injuries

in Eckstein and wrongful death in RLB Contracting. And on the other side of the

ledger, the value of the vessels here—more than $1.2 million—is significantly

higher than in those cases. Even considering the notices provided by all nine of the

original claimants, we hold that they failed to reveal a reasonable possibility of

claims exceeding the value of Orion’s four barges.

                                            b

      In concluding otherwise, the district court relied not on an empirical (or even

anecdotal) valuation of the pre-November 11, 2014 claims—or a comparison of

those claims with the acknowledged value of Orion’s barges—but rather on twin

determinations (1) that Orion had a duty to investigate both known and potential

claims “immediately” upon receiving the homeowners’ notices and (2) that it failed

to do so. The key passage of the district court’s opinion:

      Had Orion fulfilled its obligation to investigate immediately upon
      knowing of the claims and the uncertainty of their value or if it had
      simply filed its petition to limit liability in the face of this uncertainty,
      it would have either discovered that its losses were much greater than
      the specific claims about which it knew or it would have limited its
      liability in any event from all claims known or unknown occasioned
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      by the alleged injury caused by its pile-driving activity. Instead Orion
      did nothing, and that inaction is fatal to its Complaint to limit liability.

Doc. 634 at 23. In so concluding, the district court erred, both as a matter of law

and as a matter of undisputed fact.

      First, as to the law: The district court stated (and restated) that Orion had a

legal duty to investigate known and potential property-damage claims

“immediately” upon learning of them. For support, the court quoted the Fifth

Circuit’s decision in RLB Contracting, which in turn quoted that court’s earlier

decision in Eckstein:

      The purpose of the reasonable possibility standard is to place the
      burden of investigating potential claims on the vessel owner:

             The Limitation Act provides generous statutory
             protection to the vessel owners who reap all of its
             benefits. When there is uncertainty as to whether a claim
             will exceed the vessel’s value, the reasonable possibility
             standard places the risk and the burdens associated with
             that risk on the owner. In other words, if doubt exists as
             to the total amount of the claims or as to whether they
             will exceed the value of the ship the owner will not be
             excused from satisfying the statutory time bar since he
             may institute a limitation proceeding even when the total
             amount claimed is uncertain.

Doc. 634 at 20 (quoting RLB Contracting, 773 F.3d at 602 (quoting Eckstein, 672

F.3d at 317–18)) (additional internal quotation marks and citations omitted).

      The district court, though, prematurely cut short its quotation from RLB

Contracting. Just two sentences later—and again invoking its earlier decision in


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Eckstein—the Fifth Circuit clearly explained when a shipowner’s duty to

investigate arises: “‘[O]nce a reasonable possibility has been raised, it becomes

the vessel owner’s responsibility to initiate a prompt investigation and determine

whether to file a limitation action.’” 773 F.3d at 603 (quoting Eckstein, 672 F.3d

at 317) (emphasis added). RLB does not say―as the district court here phrased

it―that the shipowner has an “obligation to investigate immediately upon knowing

of the claims.” And in fact, Eckstein, which RLB followed, flatly rejects the

district court’s investigate-immediately-upon-receipt position: “The Limitation

Act’s six-month timeline does not automatically begin to run when a vessel owner

learns a claimant has filed a lawsuit. It is triggered only if and when the written

notice reveals a ‘reasonable possibility’ that the claim will exceed the value of the

vessel, and therefore that the vessel owner might benefit from the Limitation Act’s

protection.” 672 F.3d at 317 (emphasis added).

      We think that the Fifth Circuit has it exactly right. While we agree with the

district court that a claimant’s notice needn’t include a specific demand for

damages, and while it’s true that the vessel owner bears the burden of

“uncertainty” and “doubt” as to the amount of alleged damages, it remains the case

that the claimant’s notice must reveal a reasonable possibility that the claims may




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exceed the offending vessel’s value. It is at that point—but not before—that the

shipowner’s duty to investigate arises.7

        Because Orion’s duty to investigate didn’t arise “automatically” or

“immediately” upon the filing of claims, it didn’t violate that duty in the way the

district court concluded. Indeed, and to the contrary, because (for reasons already

explained) the claimants’ notices here didn’t reveal a reasonable possibility of

claims exceeding $1,258,217.00, Orion’s duty to investigate never materialized—

meaning, by definition, that it couldn’t have violated that duty, as the district court

held.

        Now, briefly, as to the facts: It simply isn’t accurate, as the district court

said, that “Orion did nothing.” Doc. 634 at 23. As already explained, the

undisputed facts demonstrate that, in response to the first several complaints, Orion

sent one of its agents to investigate. That agent visited the White, Orsi, and

Dawson residences, observed the alleged damage, and conducted vibration

monitoring. He concluded that the problems were either “old,” “minor,” or

“cosmetic”—or perhaps all three—and that the vibration measurements ranged


7
  And to be clear, the Fifth Circuit is hardly alone in concluding that a shipowner’s duty to
investigate does not arise “automatically” or “immediately,” but rather only if and when a
claimant’s notice reveals a reasonable possibility of a claim that exceeds the vessel’s value. The
Second and Seventh Circuits have said the same thing, see McCarthy, 83 F.3d at 829 (“[T]he
written notice of claim must reveal a ‘reasonable possibility’ that the claim made is one subject
to limitation.” (emphasis added)); Doxsee, 13 F.3d at 554 (“Notice will be sufficient if it informs
the vessel owner of an actual or potential claim . . . which may exceed the value of the vessel . . .
and is subject to limitation.” (emphasis added)).
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from “low” to “very, very low.” Thus, faced with claims of uncertain value—and

even without concluding that the notices underlying those claims revealed the

requisite “reasonable possibility”—Orion investigated and determined (in its

opinion, with certainty) that the alleged damage was minor.

                                       * * *

      In sum, the notices that Orion had received prior to November 11, 2014

didn’t reveal a reasonable possibility that the residents’ claims would exceed the

value of its four barges, and Orion’s preliminary investigation confirmed that

conclusion. Had Orion bulled ahead with a limitation action at that point—as the

district court concluded the law required—it would have “serve[d] no purpose

other than to clog the courts with [an] unneeded petition[].” Morania Barge, 690

F.2d at 34.

                                          IV

      For the foregoing reasons, we hold as follows:

      1.      The six-month filing deadline specified by 46 U.S.C. § 30511(a) is a

non-jurisdictional claim-processing rule, and a shipowner’s failure to meet it does

not deprive the district court of subject matter jurisdiction but rather provides a

basis on which to dismiss the owner’s limitation action on the merits.

      2.      In order to trigger § 30511(a)’s six-month filing period, a claimant

(not someone else) must provide the shipowner or its agent (not someone else)


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with a written (not oral) notice that reveals a “reasonable possibility” of a claim

that will exceed the value of the vessel(s) at issue.

      3.     A shipowner’s duty to investigate known or potential claims does not

arise immediately upon receipt of a claimant’s notice, but only if the notice reveals

a reasonable possibility that the underlying claim exceeds the value of the

vessel(s).

      4.     The notices provided by the first nine claimants here—i.e., those who

lodged complaints before November 11, 2014—failed to reveal the required

reasonable possibility, and thus neither started the six-month clock nor obligated

Orion to investigate.

      REVERSED AND REMANDED.




                                           33
