The opinion of the court was delivered by: IRENAS
This matter appears before the court on a motion to dismiss, filed by defendant Luke Gillespie ("Gillespie") and joined by defendants Jennifer Magro ("Magro") and Anita Hally ("Hally"). Because plaintiff Beesley's Point Sea-Doo, Inc. ("Beesley's") failed to timely file its petition for limitation of liability pursuant to 46 U.S.C. § 185, we will grant defendants' motion and dismiss the complaint in its entirety.
This dispute arises out of an accident which occurred on July 8, 1993. The accident involved two rented jet-skis that are owned by Beesley's Point Sea-Doo. One was operated by Magro, with Hally as a passenger. The other was operated by Gillespie, with Maureen Cook ("Cook") as passenger. On July 5, 1996, Gillespie filed a complaint against Beesley's, Hally and Cook. The complaint was served on Beesley's on July 24, 1995, as reflected on the docket of the Superior Court of New Jersey, Cape May County, Law Division. On July 6, 1995, Cook filed a complaint against Beesley's, Magro, Hally, and Gillespie. This complaint was served on Beesley's on August 11, 1995, as entered on the docket of the Superior Court of New Jersey, Camden County, Law Division.
The Cook and Gillespie complaints were consolidated and transferred to Atlantic County. On November 22, 1995, Beesley's filed an amended answer to both complaints, including the affirmative defense that liability is limited under the Limitation of Liability Act, 46 U.S.C. §§ 181-188. On January 23, 1996, Beesley's filed the instant complaint seeking exoneration from or limitation of liability pursuant to 46 U.S.C. § 181-188. Beesley's claims that recovery should be limited to the Beesley's interest in the two jet-skis. Beesley's alleges that the jet-ski operated by Gillespie was worth $ 2,000. The one operated by Magro is valued at $ 2,300.
The Supplemental Rules for Certain Admiralty and Maritime claims provide that a complaint for limitation of liability must be filed in the appropriate district court not later than six months after receipt of a claim in writing. Fed. R. Civ. P. Supp. F(1) (emphasis added). Likewise, the applicable statute provides: "The vessel owner, within six months after a claimant shall have given to or filed with such owner written notice of claim, may petition a district court of the United States of competent jurisdiction for limitation of liability." 46 U.S.C. § 185. This complaint was timely filed if we measure from the date Beesley's was served with the Superior Court complaints.
The applicable statute and rule, however, do not require notice of the claim to come in the form of a formal complaint. Gillespie notified Beesley's of his potential claims by letters that pre-date the complaint. Measuring from those dates, Beesley's missed its six-month window of opportunity to file a petition for limitation of liability. The pleading of the affirmative defense of limitation of liability in the state court answer did not toll the six-month time restriction. See Vatican Shrimp Co., Inc. v. Solis, 820 F.2d 674, 682 (5th Cir.), cert. denied, 484 U.S. 953, 98 L. Ed. 2d 371, 108 S. Ct. 345 (1987).
Notice of a claim is sufficient to trigger the start of the six-month statutory period if the writing informs the vessel owner of an actual or potential claim, which may exceed the value of the vessel. See Doxsee Sea Clam Co., Inc. v. Brown, 13 F.3d 550, 554 (2d Cir. 1994). It is well-settled that letters sent by claimants to vessel owners may constitute notice of claim. See Doxsee, 13 F.3d at 554; Okeanos Ocean Research Found., Inc., 704 F. Supp. 412 (S.D.N.Y. 1989). To determine whether a letter is sufficient to constitute written notice of a claim, we must consider 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 [hereinafter "the Richardson factors"]. See Matter of Loyd W. Richardson Constr. Co., 850 F. Supp. 555, 557 (S.D. Tex. 1993)(quoting Rodriguez Moreira v. Lemay, 659 F. Supp. 89, 91 (S.D. Fla. 1987)). Thus, whether or not a particular letter constitutes notice depends upon its specific content.
In this case, Beesley's received multiple letters that qualify, either individually, or together, as notice in writing of pending claims arising out of the July 8, 1993, accident. Gillespie's attorneys sent several pieces of correspondence both to Beesley's and to Beesley's insurance company. These mailings were sent and received in 1993 and 1994, long before the six months prior to the filing of the instant complaint.
On September 13, 1993, Oliver Frey, former attorney for Gillespie, wrote to "Sea Isle Wave Runner/Jet Ski Rentals," stating that he represented Gillespie "in regard to the injuries that [Gillespie] sustained while riding a jet-ski which was rented at [Beesley's] establishment" and advising Beesley's to turn the letter over to its insurance company or attorney immediately. Beesley's argues that this letter is insufficient to serve as notice of a claim because it merely advised an incorrect entity of Gillespie's representation. Beesley's contends that the letter failed to address any of the Richardson elements because it (1) failed to present a demand of a right or supposed right, (2) failed to blame Beesley's for any damages and (3) did not call upon Beesley's for something due to Gillespie. We disagree.
Plaintiff's application of the Richardson factors is too narrow. We must look to the "whole tenor" of the letter when determining whether it constituted notice. See Doxsee, 13 F.3d at 554. A letter from an attorney that informs a vessel owner of the attorney's representation of a person who was injured while operating that owner's vessel and advises the owner to contact its insurance company is sufficient to put the owner on notice of a potential claim. See Complaint of Bayview Charter Boats, Inc., 692 F. Supp. 1480, 1485-86 (E.D.N.Y. 1988)(finding that letter by attorneys informing ferry owner of representation of swimmer in connection with his personal injuries and requesting owner to refer letter to insurance and/or legal representative was sufficient "notice of claim" even though letter did not contain a threat of legal proceedings).
Frey wrote another letter dated September 16, 1993, addressed to "Sea Isle Sea Doo Jet Ski Rentals, Inc.," reiterating that he represented Gillespie "in regard to his injuries while using one of your jet-skis." Once again, he requested: "Please turn this matter over to your insurance carrier or your attorney immediately and have them contact me." Again, Beesley's contends that the letter is insufficient notice because it was sent to an incorrect entity merely to advise them of Gillespie's representation. We find that the letter included more information than plaintiff acknowledges and that its content was sufficient to provide notice. The letter reiterated that Gillespie was injured while using "one of [the plaintiff's] jet skis" and that the matter should be turned over to an insurance carrier. Thus, it provided notice that Gillespie was allegedly hurt by Beesley's vessel and that there was reason for Beesley's insurance company to get involved. See Bayview, 692 F. Supp. at 1485-86. Furthermore, Gillespie's attorney received a response to his letter dated September 16, 1993. By letter dated September 29, 1993, ...