IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DELTA TOWING, LLC, et al.,

 :

Plaintiffs, :

 :

vs. : CIVIL ACTION 15-128-KD-M

 :

MIKE HOOKS, INC. et al.,

 :

Defendants. :

REPORT AND RECOMMENDATION

Pending before the Court are three1 Motions to Dismiss 

requesting the dismissal of the petition for exoneration 

from or limitation of liability filed by Mike Hooks, Inc. 

(See Motions at Docs. 57, 61, 62), (See Petition at Doc. 

51). The Motions to Dismiss have been referred to the 

undersigned for report and recommendation under 28 U.S.C. 

636(b)(1)(B) and Local Rule 72.2. After careful 

 

1 The first Motion to Dismiss was filed by Delta Marine 

Services, Inc., and Delta Towing, LLC, (“Delta”). (Doc. 

57). Attached to that Motion is a thorough brief setting 

out the facts and law based on evidentiary exhibits. (See 

Docs. 57-1, -2, -3, -4, -5). Subsequently, Claimants Billy 

Lee and James McBroom filed their own separate Motions to 

Dismiss, both of which adopt by reference the Delta Motion, 

brief, arguments, analysis, footnotes and exhibits included 

therein. (See Docs. 61, 62). For clarity, and from this 

point forward, the Court will reference the three Motions 

as “the Motions,” even though Delta’s Motion is the only 

Motion of the three to provide the Court with any legal or 

factual analysis. Each Motion to Dismiss will be shown and 

treated as granted on the docket sheet.

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consideration of the pleadings, the Motions to Dismiss, 

Responses and Replies, it is recommended that the Motions

to Dismiss be granted, and Mike Hooks, Inc.’s Petition for 

Exoneration From and Limitation of Liability be dismissed 

with prejudice for lack of subject matter jurisdiction

since the petition was untimely filed.

FACTS and PROCEEDINGS

The facts underlying the instant Motions stem from the 

capsizing of two boats, the M/V DELTA AMBER and M/V 

NICHOLAS, in the Mobile Ship Channel on October 13, 2014. 

It is undisputed that at all material times, Delta Towing, 

LLC, (“Delta”), owned the M/V DELTA AMBER, and Mike Hooks, 

Inc., (“Hooks”), is the owner of the M/V NICHOLAS. (Docs. 

57-1 at 2). On October 13, 2014, Claimant Billy Lee was a 

seaman and member of the crew of the M/V DELTA AMBER. 

(Doc. 61 at 2). Claimant James McBroom was employed by 

Mike Hooks as a boatman and was aboard the M/V NICHOLAS 

when it was realized that she was unseaworthy. Mike Hooks, 

Inc., and/or its employees, directed the M/V DELTA AMBER to 

tow the M/V NICHOLAS, which the M/V DELTA AMBER did. Once 

the vessels were fasted to each other, and all crew members 

from both vessels were aboard the M/V DELTA AMBER, 

conditions occurred which caused both vessels to capsize 

resulting in the crews of both vessels dismounting into the 

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open waters of Mobile Bay. Both vessels sank to the bottom

of Mobile Bay, and the crew was rescued by the Coastguard. 

(Doc. 66-4). Upon rescue, they were offered medical 

treatment onshore by emergency medical personnel. (Doc. 

66). Included in the crew who went overboard were 

claimants Billy Lee and James McBroom, among others.

Claimants Billy Lee, James McBroom and his wife, Kayla 

McBroom, have claimed personal injuries and damages 

stemming from the incident. Both Delta and Hooks have 

filed petitions for exoneration from or limitation of 

liability regarding the alleged injuries by the 

abovementioned claimants. (Doc. 3, 51). Initially, at 

least three different actions regarding this incident were 

filed with the Court- all were consolidated into the 

present action. (See Docs. 11, 29, 50, 51). At issue in 

the Motions to Dismiss is whether Hooks’ petition was 

timely filed inside the six-month limitations period. To 

answer that question, it must be determined whether Hooks 

received written notice of a claim sufficient to trigger

the six-month limitations period. 

The capsizing incident wherein claimants were injured 

occurred on October 13, 2014. Kevin Hirschfield with H&H 

Claims Consultants was assigned by Hooks to investigate and 

handle the “sinking of the tender boat Nicholas while being 

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towed by the Delta Amber.” (Doc. 57-2). Michael Bush Sr., 

with M.G. Bush Safety and Claims was assigned by Delta to 

handle the claim regarding the M/V DELTA AMBER. (Id.). As 

early as October 31, 2014, Hirschfield, via emailed letter, 

wrote Bush to place Bush and Delta on “notice for any and 

all costs associated with the matter, including but not 

limited to damages, repair costs, salvage/recovery fees, 

surveyor fees, vessel downtime, etc. (Id.). 

McBroom hired attorney Taylor Hale to represent him in 

recovery for his injuries. On November 6, 2014, Hale sent 

Mike Hooks, Inc. a letter indicating his representation of 

McBroom regarding the capsizing incident. (Doc. 57-3). 

The letter mentions the involvement of the M/V DELTA AMBER, 

but not the M/V NICHOLAS. The letter also states that it 

serves as notice to Hooks that all future correspondence in 

reference to the incident should be directed to Hale and 

his office as legal representatives of the McBrooms. 

(Id.). The letter closes with the request that copies of 

any and all statements, whether oral, recorded or written, 

which have been obtained from anyone in connection with the 

accident be forwarded to Hale and his office. (Id.). 

On November 12, 2014, Hale wrote Hirschfield a letter 

stating that he represents McBroom “in his claim for 

personal injuries suffered as a result of an accident 

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occurring on October 13, 2014, aboard the M/V DELTA AMBER.” 

(Doc. 57-3). Hale requested that copies of all statements 

obtained as a result of the incident be forwarded to him. 

(Id.). Hale closed the letter stating, “[a]s we discussed, 

Mr. McBroom suffered personal injuries, including mental 

and psychological injuries, as a result of this accident, 

and therefore I request authorization for Mr. McBroom to be 

evaluated by his family physician for a recommendation of a 

treatment course as soon as possible.” (Id.). 

Notably, on November 18, 2014, Hirschfield emailed 

Bush a letter indicating that since his first October 31, 

2014, letter to Bush, Mike Hooks, Inc., “has received the 

attached correspondence from W. Taylor Hale of the Hale Law 

Firm in Lake Charles, Louisiana. As you will note per the 

attached,2 Mr. Hale advises that he represents Mr. James 

McBroom for personal injuries suffered during the incident 

in question. Please note that Mr. McBroom was serving as a 

deckhand onboard the NICHOLAS at the time of the sinking in 

question. Mr. McBroom has since resigned his employment 

with Mike Hooks, Inc. and retained counsel.” (Doc. 57-3 at 

1). The letter further states “[w]e understand per our 

conversation with Attorney Hale that Mr. McBroom’s injuries 

 

2 The referenced attachment is the November 6, 2014 letter 

from Hale to Mike Hooks, Inc. previously referenced, supra, 

p. 3.

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are ‘mental and psychological’ in nature. Subsequent to 

our conversation with Mr. Hale, he forwarded the attached 

November 12, 2014, correspondence, which requested that 

Mike Hooks, Inc. authorize Mr. McBroom’s referral to his 

primary care physician for recommendations for a course of 

treatment. Mike Hooks, Inc. intends to authorize this 

initial evaluation once additional details on the 

claimant’s primary care physician are received. 

Additionally, per our conversation with Attorney Hale, we 

have been advised that he will also be issuing a letter of 

representation directed to your client, and therefore we 

expect that you will be receiving same in the near future.” 

(Id. at 1-2). The letter closed with Hirschfield stating 

that “the purpose of this correspondence is to place Delta 

Marine Service, Inc. and the M/V DELTA AMBER on notice for 

any all costs expended by Mike Hooks, Inc. in relation to 

this alleged injury claim.” (Id.). 

On June 26, 2015, some seven months after Hale sent 

his first letter to Mike Hooks, Inc., Hooks filed a 

petition for exoneration from or limitation of liability 

(Doc. 51), to which Delta filed a Motion to Dismiss for 

lack of jurisdiction due to the petition being filed 

outside the statutory six month limitations period. (Doc. 

57). Claimants Billy Lee and the McBrooms joined in 

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Delta’s Motion to Dismiss. (Docs. 61, 62). Mike Hooks, 

Inc. filed its Response to the Motions, (Doc. 66), and 

Delta filed its Reply thereto. (Doc. 69). The Motions 

have been briefed and are ripe for consideration.

DISCUSSION

Section 30511(a) of Title 46 of the United States Code 

states that any action for limitation of liability brought 

by an owner of a vessel “must be brought within 6 months 

after a claimant gives the owner written notice of a 

claim.” The vessel owner must file a complaint in the 

appropriate district court within six months after receipt 

of a written notice of a claim and must deposit with the 

court a sum equal to the value of the owner’s interest in 

the vessel. See Supplemental Admiralty and Maritime Claims 

Rule F of the Federal Rules of Civil Procedure; Lewis v. 

Lewis & Clark Marine, Inc., 531 U.S. 438 (2001). “The time 

limit imposed by [this section] is strictly enforced,” 

Paradise Divers v. Upmal, 402 F.3d 1087, 1090 (11th Cir. 

2005), and the remedy for noncompliance with its statute of 

limitations is dismissal of the action. Id. at 1089, 1091.

All claims concerning the vessel must thereafter be 

filed in federal court, which hears the case without a jury 

and determines whether the owner is liable and entitled to 

limit liability to the value of the vessel and its freight. 

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Lewis at 448. Again, the six-month limitations period is 

strictly enforced and is triggered when the owner receives 

written notice of the claims. 46 U.S.C. § 30511(a). 

Hooks asserts that the Hale letters did not provide

written notice sufficient to place him on notice that 

McBroom would be filing a claim against the vessel owner. 

In turn, Hooks contends that the six-month limitations 

period was not triggered because Hale’s letters were merely 

a request for cure instead of notice of a claim. 

While the Limitation of Liability Act does not define 

what constitutes written notice of a claim, the Eleventh 

Circuit recognizes two common and similar methods for 

determining the sufficiency of a notice of claim under the 

Act, namely, the Doxsee and Moreira tests. Under the 

Doxsee test, “notice will be 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.” Upmal, 402 F.3d 1087, 1090(citing Doxsee Sea 

Clam Co. v. Brown, 13 F.3d 550, 554 (2d Cir. 1994). In In 

re Complaint of McCarthy Bros. Co./Clark Bridge, 83 F.3d 

821, 829 (7th Cir. 1996), the Seventh Circuit cited Doxsee 

as the “most authoritative case,” and adopted its standard. 

The Seventh Circuit clarified that “the written notice must 

reveal a ‘reasonable possibility’ that the claim made is 

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one subject to limitation.” Id. (citing In re Complaint of 

Tom-Mac, Inc., 76 F.3d 678, 683 (5th Cir. 1996). 

“The second test of sufficiency is found in many 

district court cases: the writing must (1) 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.” See Rodriguez Moreira v. 

Lemay, 659 F.Supp. 89, 91 (S.D.Fla. 1987). Under either 

test, this Court concludes that the Hale letters were 

sufficient to put Hooks on notice of McBroom’s potential 

claim as early as November 6, 2014, but not later than,

November 18, 2014. The writings also provided sufficient 

notice that actual or potential claims could likely exceed 

the value of the vessel NICHOLAS, which was estimated to be 

a mere $12,000 at the time of the capsizing. (Doc. 51 at 

6). Assuming that November 18, 2014, is the first and 

latest date on which Hooks learned of the McBrooms’ 

potential claim, the petition was filed some seven months 

and eight days after such notice was received, and is,

therefore, untimely and due to be dismissed. 

The Doxsee Test

Doxsee requires notice sufficient to inform the vessel 

owner of an actual or potential claim, which may exceed the 

value of the vessel and which is subject to limitation. 

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Doxsee Sea Clam Co. v. Brown, 13 F.3d 550, 554 (2d Cir. 

1994). After the NICHOLAS capsized, Hooks hired a third 

party claim consulting company, H&H Claims Consultants, 

whose letter from H&H to Hooks plainly acknowledges that 

Hooks was aware of the claims asserted against it by 

McBroom. The letter, in no uncertain terms, addresses 

McBroom’s status as a deckhand aboard the NICHOLAS, Hale’s 

representation of McBroom, his claim for personal injuries 

suffered as a result of the incident, and that the injuries 

are mental and physical in nature. (Doc. 57-3 at 1). 

Hooks contends that neither of Hale’s letters to Hooks 

or H&H mention the NICHOLAS, but only the DELTA AMBER; that 

no indication of the extent or value of his injuries were 

mentioned; or that any claim or damage might be subject to 

limitation. (Doc. 66 at 4). Hooks states that, at most, 

the letters simply request Hooks to authorize initial 

medical treatment as McBroom’s employer, and that such 

treatment is “cure” and not subject to limitation. (Id.). 

Hooks further states that the purpose of requiring 

precision in the written notice requirement is twofold: 1) 

to allow the vessel to be surrendered to a trustee, or to 

post security in the amount of the value of the vessel and 

its freight; and 2) to preserve the vessel owner’s right to 

file a petition for exoneration or limitation of liability 

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which the owner could not do if the claimant sent a cryptic 

letter insufficient to notify the vessel owner of a claim. 

(Doc. 66 at 4-5).

Though the Court agrees with the purpose of precision 

in notice-giving, it is not persuaded by Hooks’ arguments

otherwise. In keeping with precedent, the six-month 

limitation period will be strictly enforced. It is plain 

to the Court that Hooks was on notice of the potential 

claim because it hired and had written communications with 

H&H Claims Consultants regarding the potential claim well 

before the limitations period expired. It is also plain to 

the Court that McBroom’s potential injuries would exceed 

the $12,000 value of the vessel. Though neither Hale 

letter provided a precise figure on the alleged damages 

sought, common sense and a general working knowledge of 

today’s economy and medical care costs would tell any 

reasonable person that the injuries incurred due to the 

capsizing of a vessel would easily exceed the very modest 

amount of $12,000. See Upmal, 402 F.3d 1087, 1091 (11th 

Cir. 2005)(“it would be unreasonable to conclude that 

Upmal’s claim did not exceed the modest value of the 

vessel, which was $50,000”). 

As a whole, the Doxsee test requires that notice 

provided be “sufficient to inform [the vessel owner] of the 

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reasonable possibility that a damages claim for personal 

injury in excess of the value of the vessel would be 

brought by [the claimant].” Doxsee, 13 F.3d 550, 554 (2d 

Cir. 1994). Considering all of the communications between 

Hale, Hooks and Hirschfield, and given the seriousness of 

the facts underlying the Motions, the Court concludes that 

the Hale letters did provide the vessel owner with the 

“reasonable possibility” that McBroom could claim damages 

in excess of $12,000. Therefore, the six-month limitations 

period to file a petition for exoneration from or 

limitation of liability was triggered as early as November 

6, 2014, but not later than November 18, 2014, and Hooks’ 

petition is therefore untimely. 

Moreira

Under Moreira, the Court likewise finds that the 

notice provided by Hale was sufficient. Moreira requires 

that a claimant’s written notice demand a right, blame the 

vessel owner for any damages or losses and call upon the 

vessel owner for anything due the claimant. Rodriguez 

Moreira v. Lemay, 659 F.Supp. 89, 91 (S.D.Fla. 1987). The 

Court is in agreement with Delta that the H&H letter from 

Hirschfield to Hooks, and the letters from Hale, were 

sufficient to put Hooks on notice of the McBrooms’ claims. 

Furthermore, the Hirschfield letter to Hooks states 

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“[p]lease note that the purpose of this correspondence is 

to place Delta Marine Service, Inc. and the M/V DELTA AMBER 

on notice for any and all costs expended by Mike Hooks, 

Inc. in relation to this alleged injury claim.” (Doc. 57-

3). While the language in Hirschfield’s letter is not at 

issue, it nonetheless proves that the two Hale letters were 

interpreted by Hooks and Hirschfield as notice of a 

potential claim for which recovery from Hooks would be 

sought by McBroom. 

In sum, the Court finds Hooks’ assertion that it

lacked notice of potential injury claims to be inconsistent 

with its actions following the casualty. Hooks’ position 

that it was not on notice of any potential claim from the 

October 13, 2014 incident, despite having a vessel sink to 

the bottom of Mobile Bay, having three crew members bobbing 

in the open waters of Mobile Bay, receiving the Hale 

letters on behalf of a former crew member, hiring an 

adjuster/claims handler to handle the matter on its behalf, 

and having said claim handler correspond with Delta in 

order to place them on written notice of any costs expended 

in relation to the incident, is unreasonable in the Court’s 

opinion. The assertion that the Hale letters were merely a 

request for cure is also inconsistent with the course of 

action Hooks took after the incident. Considered in total, 

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the whole tenor of the Hale letters could not be reasonably 

taken to be anything other than notice, and said notice 

provided was sufficient to trigger the six-month 

limitations period to file a petition.

Ambiguity Inquiry

In its Reply, Delta notates a final point in Upmal in 

which the parties in that case were in agreement that where 

an alleged notice of claim is ambiguous, the law requires 

the vessel owner to oblige the claimant to make his 

position clear, or else the limitations period may not be 

triggered. The Second Circuit also addressed the issue 

stating, “it is indeed reasonable to require [the vessel 

owner] to make the claimant define his position. If the 

claimant refuses to do so, it may be that the period does 

not begin to run until” an explanation is provided. In re 

Allen N. Spooner & Sons, Inc., 253 F.2d 584, 586-87*** 

(1958). See also Complaint of Morania Barge No. 190, Inc., 

690 F.2d 32 (2d 1982)(adopting Spooner). 

Though the Court in Upmal did not ultimately reach the 

issue of such ambiguity, the instant record does not 

reflect that Hooks was unclear as to the purpose of the 

letters, or that it requested any clarification from any 

claimant where any communication could have been read as 

ambiguous.

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Therefore, because Hooks was on notice of the 

potential claim no later than November 18, 2014, and 

because Hooks failed to address any alleged ambiguity at 

any point preceding these Motions, the Court finds that its 

petition for exoneration from or limitation of liability 

was untimely filed outside the six-month limitations 

period; hence, this Court is without subject matter 

jurisdiction. It is therefore recommended that the Motions 

to Dismiss be granted and the petition be dismissed. 

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be 

served on all parties in the manner provided by law. Any 

party who objects to this recommendation or anything in it 

must, within fourteen (14) days of the date of service of 

this document, file specific written objections with the 

Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 

72(b); S.D. ALA. L.R. 72.4. The parties should note that 

under Eleventh Circuit Rule 3-1, “[a] party failing to 

object to a magistrate judge's findings or recommendations 

contained in a report and recommendation in accordance with 

the provisions of 28 U.S.C. § 636(b)(1) waives the right to 

challenge on appeal the district court's order based on 

unobjected-to factual and legal conclusions if the party 

was informed of the time period for objecting and the 

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consequences on appeal for failing to object. In the 

absence of a proper objection, however, the court may 

review on appeal for plain error if necessary in the 

interests of justice.” 11th Cir. R. 3-1. In order to be 

specific, an objection must identify the specific finding 

or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before 

the Magistrate Judge is not specific. 

DONE this 25th day of September, 2015.

s/ BERT W. MILLING, JR 

UNITED STATES MAGISTRATE JUDGE

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