DEVILS HOLE JETBOAT, LLC and NIAGARA JET ADVENTURES, LLC, as Owners or Owners Pro Hav Vice of a 2014, 33 foot M/V "GONAGO:GO:H III"

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

IN THE MATTER OF THE COMPLAINT

OF DEVILS HOLE JETBOAT, LLC and

NIAGARA JET ADVENTURES, LLC as

Owners or Owners Pro Hav Vice of a

2013, 33 foot M/V “GONAGO:GO:H I” For 17-CV-0166-LJV-JJM

Exoneration from or Limitation of Liability, DECISION & ORDER

Petitioners.

On February 22, 2017, the petitioners, Devils Hole Jetboat, LLC (“Devils Hole”),

and Niagara Jet Adventures, LLC (“Niagara Jet”), brought this action under the

Exoneration and Limitation of Liability Act (“Liability Act”), 46 U.S.C. § 30501, et seq.,

seeking to limit their liability to the claimants, Sarah and Scott Witkowski. Docket

Item 1. Before this Court is the Witkowskis’ motion to dismiss for lack of subject matter

jurisdiction. Docket Item 10.

BACKGROUND

I. FACTUAL BACKGROUND

On July 15, 2016, Sarah Witkowski was injured during a jet boat excursion with

Niagara Jet. Docket Item 10-1. The excursion is a thrill ride through whitewater rapids

near the Devil’s Hole whirlpool on the lower Niagara River. See id. at 4; see also

Docket Item 10-3 at 11-14. While on the ride, Sarah “complained about pain in her

side” but then told Niagara Jet staff that “she was fine.” Docket Item 16-3. Afterwards,

however, Sarah went to the emergency room and was diagnosed with a “[c]hest wall

contusion.” Docket Item 16-4. When Scott Witkowski told the owner of Niagara Jet,

Chris Bohnenkamp, about Sarah’s injury, Bohnenkamp agreed to pay Sarah’s $120

emergency-room copay and give the Witkowskis a free boating trip. Docket Item 16-5.

On July 22, 2016, Scott sent Bohnenkamp a text message, updating him on

Sarah’s condition:

[Sarah] is still in some serious pain. She had blood work done yesterday

and we’re waiting on results. She has a liver contusion as well as chest

. . . . We have been making copays for meds and doctor visits. She’s

keeping receipts on all of these. Hopefully we can come out and meet and

take care of this . . . . We are going on vacation 7/30 to 8/8. Hopefully

she’s not in this much pain for that.

Id. Bohnenkamp replied, “If you’re saying there’s more and possible [sic] even more on

top of [the $120 and free rides,] we will need to file a claim and let our insurance take

care of things.” Id. Scott said that “[he] [would] let [Bohnenkamp] know.” Id.

Bohnenkamp followed up with Scott a few days later to “check in,” but Scott did not

reply. Id.

On August 4, 2016, the Witkowskis’ attorney sent Niagara Jet a letter, subject

line “Re: Sarah Witkowski v. Niagara Jet Adventures,” which stated:

This is to advise that this office represents Sarah Witkowski with regard to

the above-captioned matter.

She suffered serious injuries while riding in one of your boats. At this time,

we are requesting that you have no contact with Mrs. Witkowski.

Please forward this letter to your insurance carrier so that they may

contact us regarding this incident.

Docket Item 10-2. A week later, the Witkowskis’ attorney sent Niagara Jet another

letter:

Kindly be advised that we the undersigned has [sic] been retained to

represent Sarah Witkowski with respect to injuries she sustained on your

boat on July 15, 2016.

At the current time, we are respectfully requesting that you notify your

insurance carrier of this occurrence so that we may deal with them going

forward from here.

We are also aware that you have had the conversations with the

Witkowskis where you stated that you had reviewed videotape of the

incident. By this correspondence we are asking that you retain that video

for future use.

Docket Item 10-5.

II. PROCEDURAL HISTORY

On September 29, 2016, the Witkowskis commenced a negligence action against

Niagara Jet, Docket Item 1 at 2, which was subsequently removed to this Court, Docket

Item 10-1 at 6. On February 22, 2017, Devils Hole and Niagara Jet commenced this

exoneration action under the Liability Act to limit their liability to the Witkowskis. Docket

Item 1. On February 6, 2020, the case was referred to United States Magistrate Judge

Jeremiah J. McCarthy for all proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B).

Docket Item 6.

On April 16, 2020, the Witkowskis moved to dismiss for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Docket Item 10. The

Witkowskis argued that their attorney’s letter of August 4, 2016, constituted a “claim in

writing” and that the lawsuit to limit liability, commenced more than six months after that

letter was received, therefore was untimely under 46 U.S.C. § 185 and Supplemental

Admiralty Rule F. Docket Item 10-1 at 1. On May 7, 2020, Devils Hole and Niagara Jet

responded, Docket Item 15, and on May 14, 2020, the Witkowskis replied, Docket Item

17.

On July 10, 2020, Judge McCarthy issued a Report and Recommendation

(“R&R”) finding that the Witkowskis’ motion to dismiss should be denied because “the

August 4, 2016 letter failed to trigger the six-month deadline under 46 U.S.C. §

30511(a).” Docket Item 26 at 7. First, Judge McCarthy found that the August 4 letter,

sent only to Niagara Jet, did not notify Devils Hole of the Witkowskis’ claim. Id. at 4.

Second, as to Niagara Jet, Judge McCarthy found that the letter “fail[ed] to cast blame

for the incident [on Niagara Jet], . . . failed to state that the Witkowskis would seek

payment from Niagara Jet,” and did not “suggest[] a ‘reasonable possibility’ that the

claim could exceed $245,000[, the value of the vessel].”1 Id. at 5-6.

On July 24, 2020, the Witkowskis objected to Judge McCarthy’s R&R, Docket

Item 29, and on August 18, 2020, Devils Hole and Niagara Jet responded, Docket

Item 31.

DISCUSSION

A district court may accept, reject, or modify the findings or recommendations of

a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district court

must review de novo those portions of a magistrate judge’s recommendation to which a

party objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

The Witkowskis object to Judge McCarthy’s R&R on the ground that the August 4

letter was written notice sufficient to trigger the six-month deadline, making the

exoneration action untimely. Docket Item 29. More specifically, the Witkowskis argue

1 On April 27, 2017, the fair market value of the boat on which Sarah was injured

was determined to be $245,000. Docket Item 3-1.

that the August 4 letter blamed Niagara Jet for Sarah’s injuries and notified Niagara Jet

that their claim might exceed the value of the vessel, $245,000. Id. at 10, 13.

This Court has carefully and thoroughly reviewed the R&R; the record in this

case; the objection and response; and the materials submitted to Judge McCarthy.

Based on that de novo review, the Court accepts and adopts Judge McCarthy’s

recommendation to deny the Witkowskis’ motion to dismiss.

I. EXONERATION AND LIMITATION OF LIABILITY ACT

The Liability Act provides that “[t]he owner of a vessel may bring a civil action in a

district court of the United States for limitation of liability under this chapter . . . within 6

months after a claimant gives the owner written notice of a claim.” 46 U.S.C. §

30511(a). “The statute is a time bar with respect to a vessel owner’s filing of a petition

for limitation of liability.” Complaint of Morania Barge No. 190, Inc., 690 F.2d 32, 33 (2d

Cir. 1982) (citing Deep Sea Tankers, Ltd. v. The Long Branch, 258 F.2d 757, 772 (2d

Cir. 1958), cert. denied, 358 U.S. 933, 934 (1959); In re Allen N. Spooner & Sons, Inc.,

253 F.2d 584, 585 (2d Cir. 1958), appeal dismissed, 358 U.S. 30 (1958)). Therefore, a

court does not have subject matter jurisdiction over an exoneration action filed after the

six-month deadline expires. Matter of Bullet Services, Inc., 422 F. Supp. 3d 784, 786

(E.D.N.Y. 2019) (citing In re Complaint of Pinand, 638 F. Supp. 2d, 357, 359 (S.D.N.Y.

2009) (“[T]here is substantial authority for [the] contention that the six[-]month

requirement is a condition precedent that a vessel owner must plead and prove, without

which an admiralty court lacks subject matter jurisdiction.”).

Section 30511(a) does not specify what kind of writing is necessary to trigger the

six-month clock. Doxsee Sea Clam Co. v. Brown, 13 F.3d 550, 554 (2d Cir. 1994).

“Nevertheless, it is settled that letters sent by claimants to vessel owners may constitute

notice of a claim.” Id. (citing Spooner, 253 F.2d at 586; In re Spearin, Preston &

Burrows, Inc., 190 F.2d 684, 686 (2d. Cir. 1951); Complaint of Okeanos Ocean

Research Found., Inc., 704 F. Supp. 412, 414 (S.D.N.Y. 1989)). To determine whether

a claimant’s letter provides sufficient notice, the Second Circuit “employ[s] a broad and

flexible standard of review—reading letters of notice in their entirety and considering

their ‘whole tenor.’” Id. (quoting Spooner, 253 F.2d at 586).

A claimant’s letter “must actually inform a shipowner of the claimant’s intentions

to seek recovery from the owner.” Complaint of N.Y.T.R. Transp. Corp., 105 F.R.D.

144, 146 (E.D.N.Y. 1985) (citing Petition of Anthony O’Boyle No. 1, 51 F. Supp. 430

(S.D.N.Y. 1943); Spearin, 190 F.2d at 684). “Mere knowledge of the event in question,

however, is not enough to commence the running of the statutory time period.”

Okeanos, 704 F. Supp. at 414. Accordingly, “a report to the [vessel] owner’s insurance

company is not sufficient,” nor is “a document given to a vessel owner simply listing the

extent of damage caused by the vessel and not specifically contending that the owner is

liable for the damage.” Id. (citing O’Boyle, 51 F. Supp. at 431; Petition of J.E.

Brenneman Co., 157 F. Supp. 295, 297 (E.D. Penn. 1957)). In contrast, a letter

informing a shipowner that a claimant may press a claim “over and above the amount of

insurance collectible” is sufficient. See Spooner, 148 F. Supp. at 586.

In addition, the notice must “reveal a reasonable possibility that the claims may

exceed the offending vessel’s value.” Orion Marine Construction, Inc. v. Carroll, 918

F.3d 1323, 1337 (11th Cir. 2019); see also Morania Barge, 690 F.2d at 34.

II. SUFFICIENCY OF NOTICE

A. The August 4 letter did not blame Niagara Jet.

The Witkowskis contend that the August 4 letter was sufficient because it “put

[the p]etitioners on notice that [Sarah] had retained a lawyer, suffered serious harm on

their vessel, and placed responsibility for the incident on [the p]etitioners by requesting

to contact their insurer.” Docket Item 29 at 11. In support of this argument, the

Witkowskis compare the August 4 letter to a claimant’s letter that the Eastern District of

New York found to be sufficient in Complaint of Bayview Charter Boats, Inc., 692 F.

Supp. 1480 (E.D.N.Y. 1988).2 This Court disagrees.

The Court agrees with Judge McCarthy that unlike the Bayview letter, which

blamed the claimant’s injuries on “[Bayview’s] gross negligence,” the Witkowskis’

“August 4 letter does not mention negligence or blame Niagara Jet [ ] for the incident.”

Docket Item 26 at 4-5. The fact that Niagara Jet knew “the vessel on which the incident

occurred” and that Sarah required medical attention, see Docket Item 29 at 11, does not

translate into Niagara Jet’s knowing that it might face liability for Sarah’s injuries, see

Okeanos, 704 F. Supp. at 414 (knowledge of underlying facts is not sufficient notice).

2 The Bayview letter states, in pertinent part:

Please be advised we represent Joseph Russo in connection with the

serious personal injuries he sustained on the above date due to the gross

negligence of your employee Jack Goeghan in connection with the

operation of an outboard motor boat in the course of his employment with

Bayview Charter Boats. Please refer this letter to your insurance and/or

legal representative and have them contact the undersigned at their

earliest convenience.

Bayview, 692 F. Supp. at 1485.

In fact, both letters that the Witkowskis sent to Niagara Jet notified Niagara Jet

only that the Witkowskis would file an insurance claim, and that is not enough to trigger

the statutory clock. See id. In particular, the Witkowskis’ second letter stated that they

would “deal with [Niagara Jet’s insurance] going forward,” implying that the Witkowskis

would not contact Niagara Jet directly again. See Docket Item 10-5. Until then, the

Witkowskis and Bohnenkamp had been discussing only reimbursement of medical

payments and a free boat ride, Docket Item 16-5, so the statement that the Witkowskis’

attorney would deal with the insurance company presumably referred to such

reimbursement. Indeed, that appears to be exactly what Bohnenkamp understood

when he last communicated with Scott Witkowski. See id. (“we will need to file a claim

and let our insurance take care of things”).

Neither letter threatens a possible claim against Niagara Jet, see Spooner, 148

F. Supp. at 586, asserts Niagara Jet’s negligence, or advises Niagara Jet to contact its

own attorney, see Bayview, 692 F. Supp. at 1485. And Bohnenkemp’s statement that

“this was turning into an incident” does not show that Niagara Jet was on notice of the

Witkowskis’ forthcoming claim, as the Witkowskis contend. See Docket Item 29 at 11.

That “incident” could just as well be a contested insurance dispute about medical

payments or a simple inconvenience.

The Court also agrees with Judge McCarthy that the subject line of the August 4

letter—“Re: Sarah Witkowski v. Niagara Jet Adventures—does not qualify as sufficient

written notice. Docket Item 26 at 5-6. In Doxsee—a case the Witkowskis cite for the

proposition that “utilizing a potential case caption at the top of the letter [ ] provides

notice of a potential lawsuit,” Docket Item 29 at 11—the claimant’s letter used a similar

subject line but also made “specific reference to ‘a claim against’ Doxsee” and

demanded payment for specific itemized medical bills, Doxsee, 13 F.3d at 554. The

Witkowskis’ letter, in contrast, does neither of those things.

In sum, Judge McCarthy was correct in finding that the letter was not sufficient to

trigger the six-month deadline.

B. The August 4 letter did not put Niagara Jet on notice of a claim that

might exceed the value of the vessel.

The Witkowskis also argue that the August 4 letter gave Niagara Jet notice that

their claim might exceed the value of the vessel, $245,000, because it identified Sarah’s

injuries as “serious.” Docket Item 29 at 13. According to the Witkowskis, “[t]he tenor of

the letters is simply inconsistent with a claim for a simple contusion.” Id. Although the

Court agrees that the letters suggest something more than a minor injury, that does not

mean that they raise a claim valued at a quarter million dollars or more. In fact, the

letters and their context suggest something far different.

Niagara Jet initially agreed to compensate the Witkowskis with $120 and a free

boat ride. Docket Item 16-5. On July 22, 2016, the Witkowskis indicated that they

would be seeking more, but nothing from the letters or their context suggests that the

Witkowskis would seek over $244,880 more. Scott made light of Sarah’s injuries, joking

to Bohnenkamp that Sarah should “get a trophy for 1st injury on your boat.” Id. The two

letters and text messages show that at least as of July 22, 2016, less than two weeks

before the August 4 letter, the Witkowskis apparently still planned to vacation from July

30 to August 8, 2016. See id. And those text messages suggested that the Witkowskis

were interested in nothing more than repayment for medical expenses. See id. (text

message from Scott to Bohnenkamp on July 22, 2016: “We have been making copays

for meds and doctor visits. She’s keeping receipts on all of these. Hopefully we can

come out and meet and take care of this.”); id. (Bohnenkamp’s response: “If you’re

saying there’s more and possible [sic] even more on top of [the $120 and free rides,] we

will need to file a claim and let our insurance take care of things.”). So read in context,

the letters simply advised that the Witkowskis had engaged attorneys to help them

pursue such repayment.

Neither the motion to dismiss nor the objection points to anything more

suggesting that when Niagara Jet received the letter on August 4, Bohnenkamp knew

that Sarah was injured so severely that the Witkowskis would seek more than $245,000

in compensation. Likewise, the Witkowskis offer nothing giving notice of their intent to

pursue a negligence claim. Because the Witkowskis and their attorneys never advised

Niagara Jet of the extent of Sarah’s injuries, how much the Witkowskis would seek in

compensation, or even the type of compensation the Witkowskis planned to pursue, the

August 4 letter did not raise the “reasonable possibility” that their claim might exceed

$245,000. Orion, 918 F.3d at 1337.

The Witkowskis also argue that the August 4 letter obligated Niagara Jet “to

investigate the severity of the injury.” Docket Item 29 at 11. But as Judge McCarthy

correctly noted, “a shipowner’s duty to investigate arises” only after a claimant’s letter

“reveal[s] a reasonable possibility that the claims may exceed the offending vessel’s

value.” Docket Item 26 at 6. So the Witkowskis’ objection puts the cart before the

horse: Any duty a shipowner has to investigate damages after Liability Act notice is

given does not relieve a claimant of her burden to provide sufficient written notice in the

first place.

Therefore, even if the August 4 letter had given Niagara Jet sufficient notice of a

potential claim for negligence, that notice still would have been insufficient to trigger the

six-month deadline.

CONCLUSION

For the reasons stated above and in the R&R, the Witkowskis’ motion to dismiss,

Docket Item 10, is DENIED. The case is referred back to Judge McCarthy for further

proceedings consistent with the referral order of February 6, 2020, Docket Item 6.

SO ORDERED.

Dated: October 30, 2020

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE