A reversal Wednesday from the U.S. Court of Appeals for the Eleventh Circuit revives a shipping company’s effort to limit its liability for vibration damage to nearby homes from the $56 million rebuilding of the Pinellas Bayway Bridge near St. Pete Beach.
It’s a case about clocks, ships, what holds up bridges—long poles called piles—and how they get under there. Also, it’s a cautionary tale about what can happen to valuable coastal real estate.
“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,” Judge Kevin Newsom wrote. In an opinion joined by Judge Stanley Marcus and Senior Judge R. Lanier Anderson, Newsom reversed Middle District of Florida Judge Mary Stenson Scriven’s dismissal of a limitation action filed by Orion Marine Construction Inc.
Jules Massee of Hamilton, Miller & Birthisel in Tampa made oral arguments for Orion at a November 2018 session in Jacksonville. Ryan Reese of Moore Bowman & Rix in Tampa represented the property owners. The attorneys could not be reached for comment.
Orion contracted with the Florida Department of Transportation in 2011 to rebuild the Pinellas Bayway Bridge in Pinellas County near St. Petersburg and Tampa. The state reported the project cost at $56.3 million.
Orion used four barges—valued at $1.2 million—to drive piles into the seabed.
“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,” Newsom said.
Orion filed a limitation action under the Shipowner’s Limitation of Liability 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,” Newsom said.
“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,” Newsom said. “Importantly here, to invoke the Act’s protection, the shipowner must bring a limitation-of-liability action in federal court ‘within six months after a claimant gives the owner written notice of a claim.”
When the owner files a claim within the six-month window—and creates a qualifying limitation “fund”—all related lawsuits “shall cease.” Those with claims then must pursue them through the “limitation proceeding,” Newsom said.
Newsom said the case presents “several interesting and important questions” about the Shipowner’s Limitation of Liability Act.
“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,” Newsom said. “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.”
Newsom said the company responded right away to investigate the early complaints. But the investigator reported the cracks were minor, old or cosmetic—or all three. Orion installed vibration monitors at two homes, finding a low or very low level.
By January 2015, the trouble reports increased. Orion filed its limitation action in response to the “flood of new complaints.”
Some of the homeowners who filed the early complaints moved to dismiss Orion’s limitation action, saying it was time-barred because the company had received notice of a claim more than six months beforehand. After a discovery period, Orion argued that none of the original complaints provided written notice or specific damage estimates, Newsom said.
Newsom noted the trial judge had no real case law to use as a guide. But the panel took a different view, agreeing with Orion on that the six-month period did not begin until more complaints—and more written notices—came in.
“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,” Newsom said.
Newsom disagreed with the lower court’s contention that Orion “did nothing” in response to the early complaints. Instead, he said, the company had no reason to suspect then that damages could exceed the $1.2 million value of the barges.
“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,” Newsom said. “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.”
The case is Orion v. Carroll, No. 17-11961.