[B]Case Name: [/B]International Ship Repair & Marine Services v. Estate of Wilfredo Morales-Montalvo
[B]Date Decided: [/B]January 12, 2010
[B]Court: [/B]U.S.D.C. M.D. Florida, Tampa Division
[B]Judge: [/B]Judge Merryday
[B]Citation: [/B]2010 WL 181575 (M.D.Fla.)[B]Background:
[/B]This action was brought on behalf of the estate of Wilfredo Morales Montalvo, who died aboard a floating dry dock owned by International Ship Repair and Marine Services.
Following Mr. Montalvo’s death, the claimants filed a petition for pure bill of discovery, which would enable the claimant to ascertain the basis for, and proper defendant to any potential claim arising from Mr. Montalvo’s death.
Claimants amended their complain asserting a wrongful death claim against International Ship. International claimed exoneration from, or limitation of, liability for any and all loss, damage, death, injury, or destruction relating to the death of Mr. Montalvo.
Claimants moved for summary judgment asserting that the dry dock was not a “Seagoing vessel” as defined by the Limitation Act, (2) International Ship’s action was not timely filed and (3) International ship had privity or knowledge of negligent conditions.
[/B]Did this Court grant claimant’s motion for summary judgment holding that International Ship could not invoke a limitation of liability?
[/B]Claimants argued that the dry dock was not a vessel as defined by the Limitation Act. They argued that the primary use was a stationary structure and a mere extension of the land, it possessed no means of self-propulsion, steering, and is not suitable for practicable navigation/transportation and that the drydock could theoretically provide transportation if towed but that it was not fit for navigation or transportation.
This Court found that the claimant failed to show the absence of genuine issues of material fact whether the dry dock is a “vessel” under the Liimitation Act. The testimony relied upon by the claimant did not establish either that the dry dock is not suitable for practicable navigation or transportation or that it is not practically capable of maritime transportation.
Second, claimants argued that International Ship failed to respond timely and assert its limitation. However, this court found that claimants failed to send any latter that constituted a written notice of claim. Neither letter sent to International demanded a right or supposed right, blamed International Ship for Mr. Montalvo’s death, or demanded that International Ship provide something due to the claimant.
Finally, because Mr. Mantalvo was not an employee of International Ship, he was not a member of the class sought to be protected under OSHA regulations. Therefore, International Ship’s violation of an OSHA regulation failed to establish negligence as a matter of law.
Accordingly this Court denied claimant’s motion for summary judgment.
Important in a Limitation action by a defendant is the timeliness requirement. After receiving [I]written notice of a claim[/I] the owner of a vessel has six months to sue under the Limitation Act. [/B]
[B]Whether a writing constitutes a “written notice of a claim” can be examined by two separate tests. (1) Notice is 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. And under the second test a writing (1) Must demand a right or supposed right, (2) Blame the vessel owner for any damage or loss and (3) Call upon the vessel owner for anything due to the claimant. [/B]
[B]Steve Gordon [/B]