vessel owners the first right is a substantive right the right to limit liability to the value of its interest which is usually the value of vessel or the vessels pending freight  the second right is really a procedural right it's the right to bring a case in federal court in order to marshal all claims against the petitioner into bring this specific time type of proceeding is granted by statute and if the six months statute of limitation runs before the petition is brought the federal court no longer has subject matter jurisdiction to hear that conversation i'm happy to brief it for a let me let me just sort of follow up on that subject concern me as well because as i read the law congress has to provide a clear statement that the time requirement is judged and when you read what they did here you don't find any such statement from congress that they meant for this to be jurisdiction and there are important differences that flow from that as well because whatever the district court did or did not do it did not simply look at the complaint and any documents that were made a piece or part of the complaint that went far beyond the right the complaint both sides put in a good deal of evidence which would effectively have converted into a rule fifty six summary judgment motion  function if not in form but if indeed that's the standard then where the district court is not in a position where it can result in the side material facts and dispute whereas on the twelve b one the district court where there's a factual issue there is obliged to make findings of fact and reach these determinations as a matter of jurisdiction you follow what i'm saying so affectively if there is a material fact in dispute here and maybe there is maybe there is and i don't know and we're looking at it under fifty six rather than twelve b one then the district court was not in a position to resolve that and it might actually have to go back to the district court because these might be actual issues to be tried do you follow what matter it seems to me if it isn't jurisdictional it might well matter because how the district court grapples with fact is very different if it's arising on the twelve be  dismissed for lack of subject matter jurisdiction as opposed to rule fifty six is there material question of fact in dispute would you otherwise be entitled to judgment as a matter of law or do you follow what i'm sort of laying speaking i think that i'm just the label you placed on it may or may not be significant is all i'm saying but just speaking for myself this is not does not look jurisdictional to me this looks like a claims processing rule that comes up all the time under the statute of limitations congress did not tell us clearly in the words or substance that they meant t jurisdictional if that's right where do we go from here know to be honest i mean this is not something that i was i understand and in fairness to you we did not and perhaps we ought to have flagged the issue in advance and said we fit or be prepared to to discuss it with that fire away and we'll give you the time to make your argument and we're just sort of giving you some of our thoughts of the things that trouble us i made the distinction between the substantive right that's granted by the act and the right to this type of proceeding because we're only dealing with the the right to file a federal petition we're not dealing with the substantive right that orion has to limit liability under the act that's a separate section that comes under three zero five zero five not three zero five eleven in the act because the basis of the dismissal was an time it's very important to examine the six month statute of limitations and the eleventh circuit has acknowledged two tests one that i refer to as the doxy mccarthy test and the other is the test there's never been a determination of which test takes precedent there's never been a determination of which test applies in different factual scenarios  but consistently the eleventh circuit how applied to both tests whenever being asked to review whether a proper notice under the act was given to a vessel on or what the what doxy mccarthy test right to maroubra is something about value or it's the thing about moran that has always struck me as odd that there's nothing in that three part test about value or amount so you might have just charters though there's never been a determination of which test is superior for example or whether they're supposed to be read together this court has read them together and i think that that's probably the most appropriate test is to to thread them together and look at it that way why do we have these two different kind of evolutionary chains of tests i think it comes from it's very clear in mccarthy they examine it quite a bit is that the typical manner that a vessel owner gets notice of a claim is through a lawsuit and when you look at them are rare a test it's describing a complaint that's what that is it's a demand i blame you pay me right as opposed to mccarthy drew a distinction between letters that are sent and mccarthy said well look there's no there's no prejudice there's no harm in the delay  filing a petition for a limitation if there's no lawsuit pending that's what the six month statute by the way was designed to do because originally the acted not have a six month statute of limitations that was added because what was happening is that ship owners would go through a trial get a judgment and then go and file a limitation a petition so basically to curb that abuse the abuse of vessel owners the six month statute was put in but mccarthy recognised that now the pendulum has kind of swung the other way that the the potential for shipowner to a reasonable possibility of a claim that exceeds ship absolutely and that gets us to the reasonable possibility discussion which reasonable possibility if you read several of the different cases it's clear that the reasonable possibility has to be on the page within the four corners actual knowledge that there was an accident actual knowledge of other claims does not trigger that six months statute of limitation so you have to read the reasonable possibility that exists in the document and that's clear and more rare and fact once that reasonable possibility of ray's that's when the six months start picking and i think there was some confusion in the district court because they talk about that our reading of it was that you get six months to investigate and then six months to file a claim that's not what we said it all the six months starts once reasonable possibility is raised what are the examples of reasonable possibility i think i think doxies a great example actually because you have  the rule actual potential claim which makes see the value of the vessel and is subject to limitation in what was the communication what was the writing that was given in doxie it's a single claimant personal injury and he had already at that time had one hundred ten thousand dollars in meds that within the four corners of a document one hundred ten thousand and meds and counting that's at least a half a million dollars case that's so you would say like  it's also the very first i believe it's the very first limitation case that the fifth circuit has ever considered whether something other than a complaint satisfies notice the r o b case attorney so if he's communicating as a group to the to the vessel owners representatives and he is describing things like multiple injuries p t s d graphic photographs and here's the thing there was a fatality you don't need a whole lot of description after that you know that that's adequate notice now cracked stucco i have a pool leak you know these property damage claims of which orion actually received written notice are really de minimus in the scheme of of of these kinds of claims all of these claims all of these cases are personal injury claims with a lot of of dollar value to them but look at marina barge the marina barge case is a property case it's a fuel contamination case and it was started to be litigated with  with almost like a some certain that was represented to the barge company and then all of a sudden the amend their complaint and it's i think it went from three hundred thousand to two and a half million at which point the barge company said as as we interpret the requirement of written notice under the asset two is for yes for it's the first actually the first for it was dawson lawson or  white and alan they were the first four and they're the only ones that served written notice prior to the november eleventh two thousand and fourteen we use that as a cutoff because otherwise it would be timely our petition turn reduced it to writing and submitted it to ryan because i take it if you say it's only four of the nine you're excluding that category of folks who complain to f d o t why would  be sufficient to alert f d r which in turn told her ryan in writing that would be written notice wouldn't well i'm just looking at the literal terms of the statute right it would have gotten through you would have gotten notice from f d o two which had its own rights and duties as well that is correct first of congress didn't do us any favors when it just  notice it's not just written notice and it's from claimant to owner from claimant to on right and that is that is the black letter of the law and we're supposed to take congress's as what they said what i meant by that about the written notice of a claim is what is a sufficient notice here's here's the equivalent here's the here's the problem i have with with the idea that it's being called into f dot and then f dot is sending written notice hey i got a phone call t would not be subject to limitation because orion has a personal contract with t which takes it out of any limitation action we haven't indemnification obligation that we can't skirt by filing i just want to say that the one part of the judge's order that we take real issue with is this this idea this that if if a ryan had investigated we would have been put on notice of all of these additional claims and that is on the court orders docket six thirty four and it's page twenty three of the order  constant vibration monitoring going on during the entire project there were public hearings meetings held where anyone who was having problems with the construction project could come and bring the air their grievances  o'brien's representative went out to the different properties as they found out about any issues very early on and found that there really wasn't much going on including specific complaint about what making right now well it's that but also to somehow ferret out claims that hadn't even been brought yet and if i may and i realize i think that's pretty clear in the case law at least of the fifth circuit in the eckstein or l b contracting opinions that limitation act provides a benefit to but the ship owners that if they do not comply with the six month time requirement you're out you don't get to you know get to enjoy this grandiose protection that the law affords the ship owners and certainly i guess is sort of an alternative to that we don't believe that that even matters at this because there really is no dispute we have a district court opinion that comprised thirty some odd pages with sixteen pages a finding of fact that said that this twelve and so the shipowner in this case is elected to challenge on legal grounds but really at this point in the case i'm not aware of any disputed fact that's been briefed for this court to look at under the clearly erroneous standard let me ask you to help me how do we review this case if we were to conclude that this is not a matter of subject matter jurisdiction doesn't mean you're wrong on the six months doesn't mean you're right it's just not a jurisdictional requirement therefore what the district court did was something different even though he called a jurisdictional whether is a well b six motion a summary reparative missing my question if we assume this doesn't go to subject matter jurisdiction you're wrong your colleague was wrong the district court was wrong the supreme court's told us that these are generally claims processing rules unless congress clearly events then intend to make it yours take should know and if we were to conclude that's not what congress did here whatever it is it isn't twelve b one district court gender stand if you look at it on the roof fifty six the trial judge has to draw all inferences in favor of the nonmoving party it's very different than under twelve  one and then the trial judge has to ask whether there are material facts in dispute in which case he cannot resolve them whereas if it's under twelve b one not only may he he's old bly to make months and thirteen months of consecutive pile driving that's a continuous tort spanning two years we had in effect a residential area with single family homes multifamily housing homes that are waterfront arguably would carry more value than other homes you know one home in this area alone could be valued at just about where the ship owner alleges their limitation fund comprises the one point two communication these were multiple communications chains and chains of emails they were given to orion itself his project man its project managers they were given to its project partner the florida department of transport and their information specialist they were given to mr li fara services in any rate even if let's just consider the court for a second considers that this wasn't written notice orion is written notice we know this because orion's third party o'brien white and then in the body as we acknowledge receipt of your call so let me go right to the question again so four of the nine gave written notice and the other five did not you agree with that through f d o t which in turn reduced it in writing and scented to orion did they comply with the statutory requirement in your view that absolute zero then your so your view is that a notice was specifically to o'reilly ok i'm asking is itself is your view that the written notice was sufficient from all mine yes or sir absolutely i would the notice of been sufficient from those claim simply picked up the phone and called orion but never submitted anything in writing to all ryan and then internally orion prepared some e mails that went back and forth that wouldn't be written notice from specifically that's easy correct that's written orders then there's another group of i think it was three who communicated with f d o t orally f d o t then reduced it to writing and sent it to orion and then the third group would have been to who simply called o but nothing in writing you agree with respect to the last two there's no written notice from them i would agree with that i would agree ok so we're down to seven now and that's what the trial court of the first four is written notice whether it's good or not is another question of whether it's sufficient or not is another question there's red notices to for i'm asking about the three in the middle the three who gave oral notice to partners their personnel or holding themself out to be and each one of them information specialist f t of these claims department they were all receiving these things and this too you know seems somewhat inequitable but this burden on two hundred folks two hundred residential to to know who exactly to send their notice to me this is a huge government project to convert the million dollars these folks don't know who did you notice to they're just calling people up saying hey you know the pile driving you agree that two did not give written notice they're out so then we're looking at the first four who gave written notice and the additional three through f d o t not because f t o t was a claimant but because f t o t was an agent four claims that were all adjacent to ground zero that was the first leg of constraint two thousand and twelve knowing that there were going to be two more years of pile driving eighteen more piles that you're into a heavy residential area waterfront properties certainly we would november twenty fourth november twenty fourth what changed in that month that would somehow apprised them oh no we need to pursue our limitation and so judge scruton went back through the record to see what changed what kind of claims had they been admit that they were on notice at that point so even their own logic doesn't follow now they claim that a public adjusting firm was recruiting claimants to come in but if you look record closely that didn't happen until jerry so the question that they've never been massey you've reserved two minutes and thank you judge marcus big deal made about a two year voyage and all this pile driving during that entire two years it was just those nine those first nine claims those were the only complaint if we were if we were shaking people's houses to the ground i'm quite certain that there would have been a whole lot more project partner these terms business terms whatever you want to call them do not define the relationship i'm quite certain i'm i honestly don't know if the arayan contract is in the record it should be but i'm pretty sure that we're prohibited from being being an agent of dot and vice versa i think there's a disclaimer of agency principles there f dot is arayans client that's the relationship there and they own the bridge which is why there's the calls going into them even if you count all of the nine as judge andersen noted if you add them all up at their face value of their claims without ever any any scrutiny to the bills you still don't get anywhere near the value of arayans vessels it's about twenty six percent so even if you consider all of the nine notices it's of no moment finally the term notice i think this is actually lake a term there's a term of art noticed for purposes of the statute but also being put on notice is also a phrase and what has happened here is that the judge and opposing counsel has latched on to the fact that ryan represented that we didn't know until around december that there were all of these other claims in the hopper so we wrote it down as that's when we had notice we're not saying that we had written notice at that point we're just saying that that's the only time that we had any notice and as far it is in graham kenyon's deposition about the public adjuster the claims that representation letters hadn't actually i think started coming out in december but there were these town hall meetings that the public adjuster was holding to bring people in and orion was excluded from those so that's where the