     Case: 12-31182       Document: 00512259468         Page: 1     Date Filed: 05/31/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 31, 2013
                                     No. 12-31182
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

In Re: In the Matter of: Marquette Transportation Company, L.L.C., as
Owner and Operator of the Towing Vessel Miss Katie, petitioning for
Exoneration from and/or Limitation of Liability

MARQUETTE TRANSPORTATION COMPANY, L.L.C., as Owner and
Operator of the Towing Vessel Miss Katie, petitioning for Exoneration from
and/or Limitation of Liability,

                                                  Petitioner - Appellant
v.

GREAT LAKES DREDGE & DOCK COMPANY, L.L.C.,

                                                  Claimant - Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-1448


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Petitioner-appellant       Marquette       Transportation       Company,       L.L.C.
(Marquette) appeals the district court’s dismissal of its limitation action as
untimely. Finding no error, we affirm.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-31182    Document: 00512259468     Page: 2   Date Filed: 05/31/2013




                                 No. 12-31182

                                       I.
      On January 20, 2011, claimant-appellee Great Lakes Dredge & Dock
Company L.L.C.’s (GLDD) dredge TEXAS ran aground in the Brownsville Ship
Channel while under the tow of Marquette’s tug MISS KATIE. For 17 days,
from January 31 to February 16, the TEXAS was out of commission while it was
being repaired. On February 18, 2011, Marquette’s claims manager emailed
GLDD’s claims manager requesting the invoice from the repair facility or
estimated repair costs and an estimate of costs unrelated to repairs. In a letter
dated February 24, 2011, GLDD summarized the facts of the accident and stated
its position that the “grounding and resulting damages to the TEXAS were
caused by the negligence of the crew of the MISS KATIE.” GLDD confirmed its
intention to hold Marquette responsible “for not only the physical damages
sustained by the TEXAS, but also the consequential damages sustained by
[GLDD] as a result of the accident.” The letter stated the cost of the repairs
related to the casualty as $636,970.06 and attached an invoice and also stated
that the casualty had placed “an enormous financial burden on GLDD, and one
that Marquette Transportation would eventually have to compensate GLDD for.”
The letter requested immediate payment for the repair costs, without prejudice,
“to mitigate GLDD’s damages, eliminate any future claim for interest, and
hopefully enable the parties to eventually resolve the remainder of the claim
without the need for costly and time consuming litigation.” Over the next
several months, the parties exchanged invoices for additional costs associated
with the repairs totaling $155,083, which Marquette paid.
      Throughout this process Marquette requested that GLDD submit a final
claim so the parties could settle the entire issue. The parties met on August 25,


                                       2
    Case: 12-31182     Document: 00512259468      Page: 3    Date Filed: 05/31/2013




                                  No. 12-31182

2011 in Chicago, at which time GLDD discussed its losses arising from the
grounding, including the impact the grounding had on its dredging operations.
GLDD advised Marquette that its anticipated losses, excluding costs Marquette
had already paid, were at least $2.3 million. GLDD did not submit a written
claim for economic losses until December 7, 2011, when it sent a letter stating
losses totaling $4,725,080.
      Six months later, on June 6, 2012, Marquette filed its claim for limitation
of liability and posted bond for the limitation fund in the amount of $2.1 million
(the alleged value of the MISS KATIE). On GLDD’s motion under Rule 12(b)(1)
of the Federal Rules of Civil Procedure, the district court dismissed the action
for lack of jurisdiction, ruling that Marquette’s limitation action was untimely.
Marquette appeals.
                                        II.
      We review de novo the district courts ruling on a motion to dismiss for lack
of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), including the
determination as to whether the limitation action was timely filed. In re
Eckstein Marine Service, LLC, 672 F.3d 310, 314 (5th Cir. 2012). However, fact
findings underlying the timeliness ruling are reviewed for clear error. Id. The
party asserting jurisdiction has the burden of proof on the question. Id.
                                       III.
      GLDD’s motion to dismiss asserted that Marquette’s limitation of liability
action was not timely filed and challenged the district court’s jurisdiction to hear
Marquette’s petition. The Limitation of Shipowner’s Liability Act allows a
vessel owner to limit its liability in certain actions for damages to the value of
its vessel (and pending freight). 46 U.S.C. § 30505. To secure this statutory


                                         3
    Case: 12-31182     Document: 00512259468      Page: 4   Date Filed: 05/31/2013




                                  No. 12-31182

benefit, the Act requires that vessel owners file their petition to limit liability
“within 6 months after a claimant gives the owner written notice of a claim.” 46
U.S.C. § 30511(a). An action not filed within the six-month period should be
dismissed as untimely. In re Eckstein Marine Service, LLC, 672 F.3d at 314-15.
      The purpose of the statute is to require a shipowner to act promptly to
gain the benefit of the statutory right to limit his liability. In re Morania Barge
No. 190, Inc., 690 F.2d 32 (2d Cir. 1982). The timeline is triggered when written
notice received from the claimant reveals a “reasonable probability” that the
claim will exceed the value of the vessel indicating that the vessel owner might
benefit from the protections of the Act. In re Eckstein Marine Service, LLC, 672
F.3d at 317. Under Fifth Circuit law, the reasonable probability standard
      is not toothless, [but] it is also not particularly stringent. Once 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. 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."
Id. at 317-318 (citations omitted).
      The district court carefully engaged in a fact-intensive inquiry into the
circumstances of this case and properly concluded that GLDD’s written notice
in the letter dated February 2011 gave Marquette notice that there was a
reasonable probability of a claim exceeding the value of the MISS KATIE. We


                                        4
    Case: 12-31182     Document: 00512259468     Page: 5   Date Filed: 05/31/2013




                                  No. 12-31182

agree based on the following statements in the letter and facts discovered during
Marquette’s investigatory period.
*     After the collision, the TEXAS was out of commission for 17 days.
*     GLDD requested reimbursement for repairs of $636,970.
*     The letter stated that it intended to hold Marquette responsible for
      consequential damages arising from the accident, which GLDD
      characterized as creating “an enormous financial burden.”
*     The partial release submitted with the letter stated that payment of repair
      costs would not release GLDD’s other claims including “loss of use of the
      vessel and/or any other items of damage that may be recoverable,
      including but not limited to damages that might be related to salvage or
      pollution prevention or abatement, business interruption, or other
      consequential/ incidental damages.”

      Marquette argues that the limitations period did not run from the
February letter because despite its repeated requests to GLDD to finalize and
quantify its claim, GLDD did not quantify its claim for economic losses until
December 7, 2011. We agree with the district court that the February 2011
letter, although it only quantified an amount for physical damages, clearly
stated GLDD’s intent to claim full consequential damages arising from the
accident involving Marquette’s vessel. The clear implication of our case law is
that “a claimant need not prove or even specifically allege that his damages will
exceed the value of the vessel in order to trigger the six-month deadline. So long
as the reasonable possibility standard has been met by the claimant’s
allegations, the vessel owner bears the risk even if the total value of the claim
is uncertain.” Id. at 319. (Finding reasonable probability that claim for personal
injury without specifying a sum would exceed the value of the vessel. Claimant
claimed that injuries permanently and substantially impaired him and
requested damages including post and future loss of earnings, medical expenses,


                                        5
    Case: 12-31182    Document: 00512259468     Page: 6   Date Filed: 05/31/2013




                                 No. 12-31182

mental anguish and maintenance and care.) See also In re TOM-MAC, Inc., 76
F.3d 678 (5th Cir. 1996)( Holding the six-month deadline was triggered as to a
tug and a barge by a claim that TOM-MAC was the owner and operator of a fleet
of vessels, among which was the allegedly unseaworthy barge where the accident
occurred, where question remained whether the barge was a vessel implicated
by the Act.)
                                      IV.
      The district court did not err in concluding that the six-month deadline
was triggered by the February 2011 letter and that Marquette’s June 2012
petition is therefore untimely filed. For the foregoing reasons, the judgment of
dismissal is AFFIRMED.




                                       6
