Petition for Writ of Certiorari — Lake Tankers Corp. v. Henn

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: | |

, baie rt, Office. Supreme court US.4 .

‘ uf > SEP 24 1956

JOHN T. FEY, Clerk,

- 4

‘Supreme 4 Caurt_ of the Auited States: ae

October. re 1956 - : es )

— 4 5

i In the Matter |

: of the > | fed. te | ot

Petition of. LAKH TANKERS CORPORATION, |

Petitioner,

for exoneration from or limitation of liability.

LILLIAN M. HENN, awsintaeieeie: ,

Solas situceta

er onl

PETITION FOR WRIT OF CERTIORARI TO THE |

UNITED STATES COURT OF — FOR ‘THE

. _ SECOND ee

Evctne Unperwoop,

' Counsel for Petitioner,

27 William Street,

New York, N. Y.

’ :

INDEX

; PAGE

. Opinions below ...2......05.5. uses con oe ee

Jurisdiction ere Reta Clee Ce pn reer ee 2

Question presented Peery rr re Pte renee: Sree ©

Stapete Involved asd eT ee ‘Sectaiee

Rules Involved ee eee pieaseceuan

| Statement ...... anaes fo ee oes

Reasons for granting the writ — ,

‘I—The C ourt gonstrued the Statute contrary loos |

the rule esti blished by this OUTt.. see eeeeee + 6

i id

-11—Phe Court denied petitianer a concursus, con-

‘trary to the decisions of this Court ....... 3

II— The deleg Jattions to a State Court of the

determination of a vessel’s. ability m rem

es re Oe eT ree reer oa) ae

Conclusion .:.:...). tetas MEPS ERE TL | Speeane ees 14

APPENDIX:

’

Majority opitiion and judgment below :..... rene 19

opinion of Hineks, (. oF Pea ee, Ce

Memorandum inv iting acid aoyal br iefs for re-

ahs 9C

‘ hearing ...... Septet eee eee steeees ies 29

_ Per Curiam opinion granting rehearing in bane... 30 -

a ene een re ere been ars 32

Q | : : ae

oo ee Mecha awaN ay mines Crates Revers k awe © 33

a s o

/ ¢

— = - + + er + + + + * Of

| oe PAGE

‘Authorities Cited

CasEs: ie ey es ;

Alvah H. Boushell, The, 38 F. 2d°980 ...*....... y* a

Bordentown, The, 40 Fed. 682............ ere Am

_ Boraks, Petition of, 142 F. Supp. 364 ae re ae Fe

Briggs v. Day, 21: Fed. 727 ...........:. ere 10

Butler v. Boston and Savannah | S. S. Co. .» 1380 ..

-U. &. 587 .:..... reer res er erry sssvesseeds Gy 10

Captain Jack, The, 169 Fed. “ rer eer eres 7

Columbia, The, 73 Fed. 226 ...:.......... oy Fe 7

: wegen Pes, Bie UG. . GUGn . 5 wee decewins re 7

Flink v. ’Pakadini, ONT OW... 5k CM

George W. Fields, The, 237 Fed.403 ........... 10

Green, Ex Parte, 286 U.8. $37... ore au wegick ae

_ Harbor Towi ing Corp. v. Atlantic Mutual ti. Com- -

pany,, 189 F. 2d 409 ...... aus weet eae 7 4g

Hartford Accident and Indemnity Co. v: Southern

Pacific Co., Pilif@ 2 ee meaeeeal 7 9, 10, 11

Just vy. Chambers, 312 U.S. 383. kt enis0ss ohne eee ae

Kearhey, The, 3 F. Supp. 718 ...... a

Knickerbocker Tee Co. v. Stewart, 253 U. 8.149 .. 12

Lake Tankers Corp., Petition of .

_ Se? eee ee rere Terre ree

Wee A Th. Ge 6 ines oe eves :

103 FY. Geen Wl... ..0 085... ASB Aad eae noe ,

ar T, PE eee eek BY tgs a

Langnes v. Green, 282 U.S. 531 ................ ae

Larsefi v. Northland Transportation Co.,. 29% U.S.

Me iis ORE ys cs ee ee ae he ce ae wee 7

Liverpool ete: Nav. Co. v. Brooklyn Eastern Dis- _

\ trict Termmal, 257 U. 6. 46 ............: reer 3, 4, 12

. sus

ill

~ CASES (continued) : . | ©.

MeAllist Bros., Petition of, 96 F. Supp. 575 ... : 12

~ Maryland Casualty Co, v. Cushing, 347 U. 8. 409 .. 7,8,9 |

Morrision, In re, 147-U.S. 14 sneak Le leeeees ‘il

Norco, The, 66 F. 2d 651: i ee clare Ak Oe 12

Norwicls Company v. Wr ight, 13 Wall (80 U.-:S.) aes

Se ‘Sean Saeas eee Seyaetateredieee 53 Pic

' Providence & N. Y. S.S. Co. Vv. ‘Hill Mfg. Co., 109 :

U. S. 57 ER EPI: 8, 9, 10, 11

Red Cross Line v. Atlantic, Fruit Cie 264 U. 8.

. 109 Peengenentenreme ede er as cue ae cists ene 12

Red Star Berge Line, Petition of, 160 F. 2d 436 12

Richardson v. Harmon, 222 U.S. 96 ....... ae ‘ 8

“St. Paul Mercury Indemnity Co. v. Red, Cab (.. -

| 303 eS 2 eee ere ‘cae ke ere ek |

San Pedro, The, 223 U. S. 365 ....... srbesmeuses 11

Scotland, The, 105 U. S..24 ....:..5....... Sica ee

Slayton, Ex Parte, ee Se Sane eee ee _

Southern Pacific Co. v. Jensen, 244 U. 8. 205 .... 12

Spencer Kellogg & Sons, Ine. v. Hicks, 285 U.S.

hr ee rere rer ee ee en 10

Standard Dredging Co. v. Kristiansen, 67 F. od

a cvacw hes Rider ak akee ee tres ne 4,7

Texas Company, Petition of, 213 FB. 24 479 ......°: 4,9

_ Thompson Towing and Wrecking. Ass’n v. Mc-

, Gregor, 207 Fed. 209. .....2..2ccccseceseess A

Titanic, The, 233 UG. 7168 .:... oy rr een “ie

Transfer No. 21, The, 248 Fed. 459-..... Tree 3, 4, 7,12

Tug No. 16, The, SET PORATED dn ods Ce ao cvees 10

United States v. The Australia Star, 172 F. 2d

472 Suneencwenraeuee my nee Gebedenareneees

W. E: Hedger Transp. Corp. v. Gallotta, 145 F.

i pr rrr re er err rrr 12

Wood, Petition of, 124 F. Supp. Per ary ; 10

- =]

_~ --. - - - _— =

STATUTES:

_ Limitation of Liability Act of March 3, 1851

e. 43, 9 Stat..635 as amended (46 U.S. Code

See. 183(a) 184, 185) ..... Page ee eae i. a

. 2 ° a ad Porc - eter is

_ . MISCELLANEOUS: .

United States Supreme Court Admiralty Rules

iM, 36 3 S.A: nea i. | ree 2,10

——

-* al ;

“Supreme Court uf the Anited States

October Wien 1956

No.

ray

oN NG cong ng area eae In the Matter

| ” of the

Petition of Lake Tankers CorPonaTion, :

ea | Petitioner,

for exoneration from or limitation of liability.

a | Linuan M. Henn, Administratrix,

& i Respondent.

co)

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED. STATES COURT OF APPEALS F OR THE .

SECOND CIRCUIT

Lake Tankers Corporation prays that-a writ of. cer-'

tiorari issue to review the judgment of-the United States

Court of Appe ‘als for the Secopd Circuit entered on April

13,.1956, in this. proceeding bya shipOwner for limitation |

of —— under the Act: of March 3, 1851.

bdaas to Opinions Below —

The opinion of the Court of Appeals is reported at 232

F. 2d 573. It is printed in the Appendix, infra page 15,

et seq. and at page 9la of the record. Its memorandum

inviting additional briefs for the ‘re- hearing { in b is not ©

ie reported. It is printed in the Appendix infraf page. 29,

and at page 128a of the'record. Its per curiam opifon grant-

‘ing the. petition for 1 re- hearing i tn banc and- ‘adhering t to its

original decision is not yet reported. It is painted 1 in the

Appendix, infru page 30, and at page 173a of the record.

The opinion of Ryan, J. in the District Court is reported

- only at 1955 A. M. C.55. It is at page’26a of the regord.

first. and second opinions of Weinfeld, J. are. réporte at.

. 132 F. Supp. 504 and 137 F. Supp. 311. They are at page

+ 35a and page 57a of the record.

J atidlitibies, |

The judgment of the Court, of Appeals was enteréd on

April 13, 1956. (R. 106a). The petition for re-hearing |

in banc was granted and the original decision adhered to

on August 21,. 1996 (R. 175a).. The jurisdiction of this

Court is invoked under 28 U. S. C. §1254(1).0

Question Presented

Is, the owner of: ‘a tug and barge entitled to maintain a

proceeding for limitation of liability and to obtain a

concursus and one decision, binding, upon all parties as

., to the issues of liability, amount of the limitation fund

and the amounts to be recovered by the several. claimants,

when it is confronted with eleven death, personal* injury ;

- and, loss of property: claims, the aggregate of which is

. greater than the amount of its limitation fund as may be -

_- determined after trial?

, | |

Statute Involved

The applicable sections of the limitation statute are

46 U.S. Code §§ 183fa), 184, 185. They are printed in the

Appendix hereto, infra page 32. Subsection (b) and the

~ ensuing subsections of Section 183 provide for the statutory ~

fund of $60 per ton but-are limited to ‘Sseagoing’’ vessels

and are not sans oes here and are not ‘Teprinted..

> i

— ~«

\ Rules Involved .

The applicable 1 ales are U — fitates’ Sintinne Court

Admiralty Rules 061, 92, 53, The pertinent: sections

are reprinted: in Pt Appendix pas: infra page 33.

Statement

‘During the night of tp 9-10, 1954. petitioner’ Ss barge .

- No. 38, in tow of petitioner’s tug KasTERN CITIES, Was in

- collision, in the. Hudson River, with the yacht BLacksTonE,

which capsized. Ten of her eleven. passengers were rescued

put respondent’s husband has. ‘not reappeared. She began °

an action at law in the State Court against petitioner to.

recover $900, 000 for the death. Other: actions against peti-

tioner by the survivors claimed $157, 500 and petitioner

accordingly filed its petition for exoneration from or limi-

' tation of liability. eee

An interim stipulation was. given tn $118, 542. 21, the

_ value of the tug. The barge was without power and wholly

‘controlled by the tug; hence it was thought tha? a stipula-

- tion for the tug’s value was enough. Liverpool etc. Nav.

Co. v. Brooklyn Eastern District Terminal, ‘251 U. S. 48,:

53; The Transfer No. 21, 248 Fed: 459; 461 (2 Cir.).- Never-

theless petitioner offered to give such further interim

stipulation as the Court might require (R. 7a). The Court |

' approved the mmterim- stipulation as given and issued the

usual restraining order enjoining the prosecution | of the

actions at law. ee

Upon respondent’s motion tq’ Mailed the petition for

insufficient i#térim security the Court required petitioner

to give.an intérim stipulation for’the barge also. Petition

.of Laké Tankers Corp., 1955 A. M. C. 55 (not-reported’else-

where; R. 26a). ‘Petitioner then filed an additional interim — -

stipulation .for $165,000, the yalue of the barge. There-

after a filed her claim for $250,000. Claims were

gil ° | J

| r , | ¢ ; | | i 4 * . . i ,

, L 7

also filed “ the tén: survivors aggregating $9,525. The —

total was $259,525, more thar the value. of either the tug

or barge but less than the value of both.

, 4

Appellee then moved to vacate the rosettes order

so that she might proceed with her action at law, asserting

that-the claims aggregated less than the limitation fund;

relying upon Petition of Texas Company, 213 F. 2d 479 °

(2 Cir:), certiorari denied, 348 U. S. 829. The argument

was that the limitation fund was $283, 542, 21, the sum of the

_. two interim stipulations, and the claims were only $259,525.

Weinfeld, J., denied the motion holding that the amount oy

Of the fund, as distinguished from the sum of the two

interim stipulations, could not be determined unti: after

ero the fund will consist of the value only..of thé’

{s) at fault in rem. Only if both vessels are indi-

‘vidually at fault in rem will the value of both go into the

fund, This is settled law. Liverpool etc. Nav. Co.. v.

Brooklyn Eastern District Terminal; 251 U. S. 48; The -

Transfer No. 21, 248 Fed. 459 (C..A: 2); Standard. Dredg-

ing Co, v. Kristiansen, 67 F.2d 548 (C. A. 2), certiorari

denied 290 U. S. 704 ; Harbor Towing Corp. v. Atlantic .

Mutual Insurance Coumeen. 189 F.2d 409 (€. A. 4). The

judge therefore held that the premise underlying respond-

_ ent’s motion, i.e., that the fund exceeded the claims, was

false, and ‘denied the motion. * Petition of Lake Tankers

Corp., 132 F. Supp. 504 {R. 35a): However, in his*apinion

he suggested that respondent. cowd escape from the limita-

tion proceeding if she would apportion her. claim against

tug and barge and bring.the amount of the claims against

each vessel to less than its value. » Respondent fellowed this

suggestion and filed a. stipulation purporting to allocate

her claim as between tug and. barge,’but her claim against .

petitioner remained, the same, $200,000. The claims were

then, and still are, as follows:

Inthis

\ In pending —

proceeding actions atlaw

' Respondent :

~ allocated to tug ........... $100,000- ,

allocated. to barge ......... 150,000 - |

against petitioner .......%. 250,000 $500,000

Not allocated we een a oe

tug and barge: : s

Ce er eres erage 4,400. 32,500

RE Sav ecuene rssh otk nes 3,000 50,000

| SRG eae Sonera ae w=: 225 ‘25,000

no OR EI ene -*1,600 50,000

ae rhs on 50

jE See's cos 9 weeeseks $ 50

NE cap cs be Vee eEC race 20

SN casei ns cease ne Fas 20

SE Sa seecuaeusuee encores 50 |

ME Sie cues cutouts se cus 50

Total seveedessee " $259, 525 | $657, 500.

| ceeding 1 is $259,525.

The aggregate of claims against petitioner jn this sina

The‘ eventual liniitation fund, as ‘dis- —

tinguished from the interim security, will-only exceed the

claims if both vessels are held at fault.

Tf only one is

held at fault the fund will not be adequate and. a concourse ;

will be necessary to distribute it pro rata.

Which wessel

was.at fault, or whether both were, cannot be determined

- -until after isla,

" Whether‘ or not the fund ae to io Meee

-. eleven claims against petitioner

arise out of the. same

oecurrence and turn. upon the same facts ang law. A con-

rse will permit théir deeision in; ‘one proceeding: tae

result of which will be hkinding upon them vis-a-vis peti-

tionez, and also among. themselves..

The latter is an essen-

~ tial consideration if the fund should be inadequate..

Nevertheless, after apportioning her claim, respondent.

again moved to vacate the restraining order, this time on ©

exceed the siete fu

_them all in the limitation

tion of respondent’s action

-the ground that the “claims against each vessel were less |

’ than its value. ‘Weinfeld, J., granted this, motion, holding

that there are two-funds, each more than the elaims against

~ it. Petition of Lake Tankers ss artes 137 F. Supp.

* 311 (R. 57a). :

“On appeal a vided Court ‘alicmed, holding that con-

course will be granted only w hen necessary to distribute

an inadequate fund, that this single proceeding, by a-single

petitioner, must be regarded as if +i were two separate.

, proceedings because two vessels are involved, and that,

since the. claims allocated to éach vessel are. less than her

value, respondent-can not be held in the concourse of the

Jimitation proceeding. (R. 96a).

_In.a strong dissent, Hincks, C. Jo held that this single

proceeding, by.a s} gle petitioner, cannot be regarded -as

if it_were’two; thpt since the claims against petitioner —

the Admiralty Court must keep

“oceeding and that the prosecu- -—

at law w il be “wholly fruitless _

and nugatory’’ (R. 103a).-

Petitioner filed a petition for a re-hearing in. banc.

After four.months the Court filed its per curiam opinion.

granting’ the petition for re-hearing in banc but adhering

to its ariginal decision.. No reasons for the decision were .

stated. Judges Clark, Frank, Lumbard and Waterman

concureed, J udges Medina and Hincks. dissented.

_.REASONS FOR GRANTING THE 7

I. The Court ica the statute contrary to. the

rule established by this Court!

The majority rare pr waisted its dedinin wholly upon -«

the view that it ‘‘must”’ regard this single proceeding as if

it were two (infra. p, 20). There is no such compulsion‘ 1 in

the statute, the Admiralty Rules, or in precedent.

- 7 =e wee oS Sere OO eT

In fact there is ‘only one proéceding, only o one petitioner.

After a trial on* the allegations of fault against tug and

barge, if liability is found there will be only one limitation

fund, paid into court-by petitioner. Because there are two -

interim stipulations does not mean that there are two pro-.

ceedings. In numesous cases the courts have dealt with

single limitation proceedings by the owners of two or more

“x vessels w ithout finding it necessary to proeted as if there

weré two. United States * The Australia Star, 172 F. 2d

472 (2 Cir.) ;:Standard Dredging Co. v. Kristiansen, 67 F.

2d 548 (2 Cir.) ; The Transfer? No. 21, 248 Fed- 459 (2 Cir.); -

The Bordentown, 40 Fed. 682 ‘(S.: ‘D. N. Y.); The Captain

— Jack, 169 Fed. 455, (D. C. Conn.) ; The ‘Alvah H. Boushell, .

38 F. 2d 980 (4 Cir.) ; Thompson Towing & Wrecking Ass’n

. Vv. McGregor, 207 Fed. 209 (6 Cir.); The Columbia, 73 —

226 (9 Cir). : : '

To construe the statute ‘narrowly and wate as the

Court-did, is contrary to the rule, thoroughly established by

this Court, that the statute is to be construed liberally for’

the benefit of shipowners. Norw ich Company v. W right,

13 Wall (80 U. S.)-104,-121; Providence & N.Y. S.S.. Ce. v. ©

Hill Mfg. Co., 109 U.S: 578, 588-9; Butler v. Boston aad.

_ Savannah Steamship Co., 130 U. 8.527, 550-1; yicapane

.» Accident and Indemnity Co. v. Southern Pacific Co., 273

‘U.S. 207, 214-16; Flink v. Paladini, 279 U. S259, 62-3; Larsen

v. Northland Transportation Co., 292 U. S. 20, 24; nag v.

- Chambers, 312 U.S. 383, 385; Coryell’ v. Phipps, 317 U.

406, 411; —— Casualt Co, v. Caen: 347 U.S. i

“e

‘This Court has corisistently .adopted a -broad rather

than a restrictive interpretation of the statute. As the

Court pointed out’in Butler v. Boston and Savannah Steam-

ship Co:, 130 U: S. 527, -550, it was at first contended

that the Act did not apply to collisions but this ‘‘pretence”’

was rejected in- Norwich Company.-v: Wright, 13 Wall

(80 U. S.) 104. It was next insisted that the Act did’

not extend to loss by fire. but on restrietive view was

"rejected in’ Providence & N. Y- S. Co. v. Hill Mfg.

“Co., 109 U. S. 578. In the Hos ‘case the claim was

that the Act did not extend to claims for personal injury

and de ath, but again -this Court- rejected the’ narrow.

construction. In 1881-this.Court held that, although the Act

did not so provide expr essly, it. could be invoked by a British

shipowne rin the ease of a collision on the high seas between

ehis vessel and an American, vessel. The Scotland, 105 U. 8.

24. Years later this Court held, that the Act could be invoked

BY a British shipowner in respect of a disaster. suffered by

‘a British ship on the high seas where no Americvan vegsgel.

was involved, although it had. many times said in earlier

years that’ the principal purpose of’ the Act was to put

-American shipowners on a parity with foreign shipowners.

The Titanic, 233 U. S. 718. Indeed, this Court has long

since construed the Act broadly to hold that it is net limited

to maritime torts, Richardson v. Harmon, 222 U. S. 96, and

that it may be availed of by one who is only a stockholder of

a corporate shipow ner, Filink vy, Paladini, 279 U.S. 59.

In recent years there has been a gradual whittling away

of the limitation statute by courts seemingly out of sym-

‘ pathy -with the Congressional purpose. But the Congres-

sional purpose: has not been changed since the statute was

originally enacted in 1851. Following the: Morro CasTLE

disaster in 1934 the Congress. held extensive hearings ‘and .

_ reviewed the matter;thoroughly. The statute was not re-

pealed.. It was ‘modified somewhat, on points that do not’

touch. the problem here, and reaffirmed. See Mr. Justice

4) Frankfurter’ s review of the 1936 amendments to the statute

_ in Maryland Casualty Co. v. Cushing, 347 U.S. 409, 414-417.

The decision helow frustrates the reaffirmed*Congres-

sional purpose ‘and is a giant step toward the judicial

we of the. statute. :

eg Il. The Court denied petitioner a concursus, con-

_. trary to. the decisions of this Court. |

- Petitioner is confronted with eleven claims arising out: ,

of this collision.. This Court has held that a concursus .is

the heart of the limited liability statutes, and that the limi- -

tation proceeding. is like a bill in equity to enjoin a multi-

plicity of suits, looking to a complete disposition of a many

cornered controversy... Maryland Casualty Co. v. Cushing,

347 U. S. 409, 415; Hartford Accident and Indemnity Co.

v. Southern Pacikie Lo. $ 273 U. S. 207, 216; Butler v. Boston

‘and Savannah Steamship Co., 130 U..S. 527; 552; Prowi- .

dence d& N.Y. S. S. Co. v. Hill Mfg. Co., 109: U. S. 578,.

595-8; The Scotland, 105 ‘U.S. 24, 33; Ex Parte Slayton, .

105 U. S. 451, 452; Just v. Chambers, 312 U. S. 383, 385-6.

The deciston below requires petitioner ‘to litigate re-

spondent ’s clairn in her action at law outside.the limitation

proceeding. As it. appears at the moment the other ten

claims: will be heard tm the limitation proceeding. How-

ever, if the decision below is not reversed it, is almost -cer-

tain that the other teii will ask and obtain leave to proceed

with their actions at law.also. If the restraining order is

vacated to allow respondent. to proceed separately there is

no reason why it should not be vacated for the others. In

that event there will have tobe eleven trials and the purpose -

of the limitation statute will have been w holly defeated.

The ‘Court did not put Ns decision on the ground that

no concursus ‘will be necessary. The Court has evolved

ee rule’? that claimants in a limitation proceeding may

have the restraining order vacated, and may proceed with

their separate actions in other courts, if, even after‘jurisdic- -

tion has. been taken because the claims exceed the fund,

they, by concerted action among themselves for the obvious

purpose of defeating jurisdiction, reduce their clair s to an,

aggregate figure just below the probable fund. Petition

of Texas Company, 213 F. 2d 479 (2 Cir.). Here the

eleven clalins as filed i in this proceeding argregate $259,000.

and as filed in pending State court actions aggregate |

$657,500, yet petitioner’s limitation fund will not exceed

. $118,500, the value of: the tug; unless somehow the barge, |

without motive power. and wholly under the control of the ©

tug, is also held at fault.

But the Seaond Circuit's ‘‘rule’’ that an inadequate

fund is a prerequisite to maintaining a limitation proceed-

ing is at odds with several decisions of this Court. Admir-

- alty Rule 53 permits the petitioner to contest his liability.

If he does so successfully there will be no fund because there

is no liability. Nevertheless the proceeding may be main-

Aained. Butier v. Boston and Savannah Steamship Co.,

supra, 130 U. S. 527, 552; Hartford Accident and ludenewitar

Co. v. Southern Pucihe Co., supra, 243 U.-S. 207, 215.

' In the converse situation, where there is liability but

without limitation, i.e., there is not an inadequate fund

_to distribute, this Court has held that the Admiralty Court.

has both the power and the duty to continue the proceeding.

' Hartford Accident and Indemnity Co. v. Southern Pacific

Co., supra, 273 U.S. 207, 220; Just v. Chambers, 312 U.S.

383; Spencer Kellogg &é Sons, Ine. v.. Hicks, 285 U.S. 502,

512, ae e

In Providence &-N. Y. S. 8. Co, v, Hill Mfo. Co., supra,

109 U. S. 578, this Court assumed a situation. whéee, due to

the total loss of the vessel and the absence of freight money,

_there is no fund, yet held that the pr oceeding could be main-

tained. Later this’situation, actually arose and the proceed-

ing was sustained. Petition of Wood (The Susan), 124 F.

_ Supp. 540. So also where, after trial, the petitioner is held |

_, liable and granted the right. to limitation but the claims

prove to be less than the fund. The proceeding is not dis-

missed but the Court pays the claimants out of the fund and

repays the balance to the petitioner. Briggs v. Day, 21 Fed. —

727. Compare The George W. Fields, 237 Fed. 403; The

-Tug No. 16, 237 Fed. 405..

#6 11 .

Except for the recent decisions in the: Second Circuit:

Just referred to there is no rule that an inadequate fund .

is a prerequisite to the maintenance of a limftation proceed-

‘ing. The only prerequisite in-the decisions of this Court

has been the existence of multiple claims and a reasonable

apprehension that they will exceed the value of petitioner’s

interest in his vessel. Both conditions are fulfilled here.

When petitioner began this proceeding actions at law had

-been begun -against it aggregating: $697, 500. Since the

value of its.interest in both vessels and their pending

freight .was less than $300,000 petitioner was eminently

justified in filing its petition and claiming the benefits of

the statute. Jurisdictional facts then: being; present, the.

Admiralty Court unquestionably obtained jurisdiction. ‘The

effect Sf the’ reduction of the claims, and the allocation of

respondent’s claim between-tug and barge, has been, as the

matter stands on the decision below, to+deprive the

Admiralty Court of jurisdiction which had previously and

properly attached, -This is directly contrary to the rule

laid down by this Court in diversity cases. _ In such cases

this Court has held that if the claim exéeeds $3, 000, jurisdic-

’* tion attaches and a subsequent reduction in amount will

not deprive the Court ef jurisdiction. St. Paul Mercury

Indemnity Co. v. Red Cab Co., 303 U. S. 283. Any other

decision would place the Court’s jurisdiction at the whim

. of plaintiffs’ attorneys ; an unseemly situation.

Such “procedural manoeuvring’’ was not allowed in

Petition of Boraks, 142 F. Supp. | es —

III. The. lide to a State Court of the deter-

‘mination of a vessel’s liability i in rem is nugatory.

—~ The Federal ‘Court sitting in Admiralty has exclusive

« ssivisdiction of all questions affecting the limitation of

liability. Providence &d N.Y. S. S. Co. y. Hill Mfg. Co.,

109 U. &. 578; In re: Morrison, 147 U.S. 4; The San Pedro,

223 U.S. 3654 Hartford. Accident: and Indemnity ree

‘v. Southern: Pacific Co., supra, 273 U. S. 207 ; Langnes v

Green, 282 U. S. 531; Ex Parte Green, 286 U, S. 437.»

The soul st the limitation fund is a niatter exclusively

for fhe Admiralty Court. Petition of Red Star Barge Line,

160 EF. 2d 436 (2 Cir.);*W. E. Medger Transp. Corp.

v. Gallotta, 145 F. 2d 870 (2 Cir.); The Norco, 66 F. 28 651 ©

(9 Cir.) ; Petition of McAllister Bros., 96°F. Supp. 575;

The Kearny, 3F. Supp. 718. |

The Admiralty Court alone has the power to determine .

the liability of a vessel in rem. ‘The State Court is not

“compefent to adjudicate i in rem liabilities. Southern Pacific

Co. Vv. Jensen, 244 U.S. 205, 216; Knickerbocker Ice Co. v.

Stewart, 253-U..S. 149, 160; Red Cross Line v. Atlantic.

Fruit Co. 2@4 U..S. 109. Whether -the fund shall consist _

of the valugl of the tug, or the barge, or both will turn upon

whether either or both is at fault in rem. -Liverpool ete.

- Nav. Co. v. Brooklyn Eastern District Terminal, supra,

251 U. S. 48; The Transfer No. 21, 248 Fed. 459 -(2 Cir.).

' Necessarily, thereforegonly. the Admiralty.Court has juris-

diction to adjudicate the charges ‘of fault against tug and

barge. This being’ so, the prosecution of respondent’ s

action at law must be wholly nugatory.

The procedure of special verdict visualized by the court

below éould have no binding effect. Suppose the State _

Court were to hold both tug‘and barge, fix their aggregate

value at $283,000, and fix appellee’s damages at $250,000. |

But suppose also that in the: limitation proceeding ‘the

Admiralty Court, finding only the tug at fault, enters a

decree allowing petitioner to limit its lability: to ‘the. tug’s

value, $118,000. Which result prevails; what then is the

limit of petitioner’s liability? The Admiralty Court will —

then fix the tug’ s value as the limifation fund and per- .

petually enjoin all persons, including appellee, from pro-

‘ceeding against petitioner otherwise than against that °

fund. The State Court’s decision that liability flows from

- some fauli in respect of the barge as well, and its judgment

om, +

18.

for more dian the amount the Admiralty Court. fixes as the

limit of petitioner’s liability cannot possibly stand.

Suppose the State Court holds only the tug and values

her at $118,000, but in the limitation proceeding the Admi-

ralty Court holds both tug and barge. Petitioner has not

waived any right to claim res judicata as to the decisions of

‘the State Court. In this situation. the Federal Court fund

would be .$283,000: The other claimants would collect*a

maximum of* $9,525 and- petitioner would have* to. pay

appellee only $118,000 although her damages: are $250, 000

and there remained $155,475 iti the Admiralty Court. fund.

For a third possibility, suppose the Admiralty Court

‘holds petitioner not liable but the State Court finds liability.

Upon a finding of no liability the Admiralty Court will enter -—

_ the usual decree of exoneration which incorporates. a per- |

petual restraining order forbidding the prosecution of any

and all claims against petitioner arising out of this incident. ~

Either this would prevent appellee from collecting any

_ judgment.entered on the State Court’s finding of liability;

- rendering ‘the whole State Court’proceedings fruitless, or,

if the State Court judgment, were collected it would’ be in

‘contempt of the Admiralty Court’s decree and in violation .

of the mandate of the limitation statute.

Only hopeless confusion can result. from — re-

spondent to proceed separaiely. Whatever the State Court

decides as to the liabilities as between petitioner and

respondent, the other ten claimants will not-be bound; nor

will petitioner be bound as to them. This will necessitate

at least another trial of all the issues in the limitation

proceeding and if, as petitioner expects, the other ten ask

and obtain leave to proceed separately, ten other trials.

These could edsily result in several varying decisions as to

liability the sum of which can readily exceed the value of

the vessels.

Concursus is at tiie heart of the matter and this is

- plainly a case w here concursus is both desirable and neces-

x - 8.

sary. - Petitioner has complied with the requirements ‘of. |

the statute and the. Admiralty Rules and is entitled to

concursys. :

cniteamnae 7

For the: bormneiae reasons this petition for. a writ

of certiorari should be granted.

as Respesttalty submitted,

EvcENE, UnDERWoop,

Counsel for Petitioner.

New York, N. Y.,

September 21, 1956. °

cay —_

« Appendix —

zm Gunns of United States Court of Appeals, For the

Second Circuit, on Appeal From Order)

UNITED STATES. COURT OF APPEALS

For THE Seconp Circuit

No. 268—October Term, 1955.

‘(Argued February 17, 1956 Decided April 13, 1956. )

| Docket No. 23965

rN . 2

In the Matter

of the

Petition of Lake Tankers Corporation for Exoneration

: ‘from or Limitation of Liability.

yr . ™*

‘Before: | |

| Crakk, Frank and Hincks, aes

Circuit ‘i Judges.

° % - ?

- Appeal from an order, of/the United States District

Court for the Southern District of New York, entered by

Judge Weinfeld. Modified and aeainite as modified.,

- BURLINGHAM, Bowie & KENNEDY (New York,

New York), Proctors for Petitioner. :

Rosen & RosenyProctors for. Claimant- Appellee.

On J aly 10, 1954 the y ht. Blackstone was proceeding

down the Hudson River. P titioner’s tug, Eastern Cities,

ie | _ er ae ae

push- towing petitioner’s barge L. T. C. No. 38, was proceed-

ing up the river. The Blackstone ran into the bow of

L. T. C.,No. 38 and. capsized. Ten of the. eleven persons

aboard the Blackstone were rescued by ‘the Eastern Cities,

..-but appel ce’s decedent was drowned., Appellee began an

action in the New York Supreme C curt, Ulster County,

against petitioner to recover $500,000 damages for*the loss

/ of her husband’s life, alleging negligence on petitioner’ ~

part in respect of its operation of both. the tug and _ the

barge, Four other actions hy survivors were begun in the

‘State Court; alleging damages ager egating $157,000. On

October 6,°1954, petitioner filed, in the court below, a

petition for its exoneration from or limitation of liability.

The petition alleged that the collision occurred without ©

fault on the part of any of petitioner’ s servants and that

petitioner Wwas entitled to exoneration; it also alleged’ that

the collision occurred without petitiofier’s privity or knowl- .

edge and that, if liable, petitioner was entitled: to limit. its

liability to the‘value of its interest in both vessels. How-

ever, bond was given for$118,542:2], represeriting only’

the, value of petitioner’s interést in tug Eastern Cities and

her pending freight. On October 8, 1954, the usual restrain-

ing order was issued, enjoining the beginning or prosecu-

tio of claims against petitioner except in the limitation

proceeding; that order was not limited to the tug. 3

Appellee appeared specially. and moved to dismiss the~

‘petition and to vacate-the restraining 6rder, on the ground

~ that the bond failed to include the value of petitioner’s ii-

terest 'in barge L. T. C. No. 38. This motion was denied

by Judge Ryan, who continued the restraining order in

force, conditioned, however, upon petitioner’s filing’ an ad-

ditional bond for the value of its.interest in n the barge, .

failing which.the restraint would be-modified so-as-to-con-~

tinue in effect only as to suits against. petitioner as owner

of the tug. -Petitioner-then filed an additional bond for the

barge in the sum of -$165,000.. Appellee thereupon filed in

the limitation proceeding, her claim for $250,000. Other »

> ie

-selaims, aggregating $9,525 were filed on behalf of the ten

rescued survivors.

Appellee then moved before -Judge W einfeld to venate

the restraining order as:to her state court suit, on the

theory that, since the total se¢urity on behalf of. the tug .

and barge amounted to $283,542.21 and the claims totalled .

$25 99,925, upon the filing of appropriate. stipulations if, ac-

cordance, with this Court’s decision in Petition of Texas

Co., 213 F. 2nd 479, the restraint should be lifted. Judge

Weinfeld denied that motion (in an opinion reported in

132 F. Supp. 504) without prejudice to a further application

‘by appellee in the event appropriate stipulations were filed

bringing all claims against petitioner as to each vessel with-

in the amount of the bond as,to such vessel. On ‘September

23, 1955 the ten claimants, other than appellee, filed the

usual stipulations agreeing not to incréase the amounts of

their claims as made, nor to enter judgments in. excess of

-the stipulated amounts and waiving any claini of res judi-

to either of- the vessels. On the same day appellee filed a

stipulation reducing her claim against petitioner as to the

tug Mastern Cities to $100,000 and as te the barge to ©

$150,000. She also agreed not to increase the amount: of —

- either of said claims as to either of the vessels, or to enter

judgment in excess of the stipulated amounts of her claims —

against .petitioner as owner of gither of them, and she

waived any claim of res judicata rélative to the issue of

limited liability in respect of either of the vessels.

. Appellee again moved for modification of the restraining |

order, Judge Weinfeld wrote an opinion granting the mo-_

ee tion, and, on January 17, 1986, entered an order, to that :

effect. His order was xpi ly. based on appellee’s stipula-

_tion (including ‘partial releases, to. which she had sworn -

before a ilétary public)... In the stipulation and. partial

releases, she agreed to reduce her claim against. petitioner

(1) as to‘the tug to $100,000 and (2) as to the barge to

$150,000, “The other ten claims totalled $9,525.

cata relative to the issue of limited liability: with respect. .

~.. an Je 18 ces

: a

In his opinion, Judge Weinfeld said in part: ‘‘In addi-

tion to the moving claimant there are ten others and the

eleven claims constitute all possible claims which could be

filed in this proceeding as a result of the disaster and the.

time to file has expired. : The bond filed on behalf of the tug .

Eastern Cities is in the sum of $118, 542. 21, while the claims

asserted against her under .the stipulations filed by the

.. claimants are limited to $109,525; the bond fled on behalf -

of the barge L. T. C. No. 38'is in the sum of $165,000, while. »

- ‘the.claims asserted against her under the stipulations. filed ”

by claimants are limited to $159,525. * * * There are now

two separate funds, one for the tug and one for the barge.

Each limitation fund is clearly in excess of the total sum

of the claims asserted as against each vessel. - A. special.

verdict may be applied for which would spell out the pre-

cise liability that ‘niay be imposed with respect to each

vessel. It is not*to be. presumed that the state court will

deny an appropriate application for a spécial verdict. Thus

in the event, under a special verdict, there is a finding of

7 “negligence i in the operation of the tug and not of the barge,

_” the moving claimant’s recovery, under her stipulation, could

, not. exceed the amount of her reduced claim. Accordingly, —

the total of her judgment and the remaining claims would ©

be limited to the bond posted for the tug, which would

preclude resort to the:bond posted for the barge. And al-

ternatively if liability were established solely because of

the negligent operation of the barge, no recourse could he

had as against the bond posted for the tug. Of course i

. liability should be found with respect to both the tug and"

barge, a different situation would prevail. Since petitioner

as shipowner is fully protected in the limitation of liability

.as to each vessel, there is no sound reason why claimant

“should not be comaittel to proceed with her action in the.

. State court—the forum of her choice.’’

In the Appendix: to this court’s opinion are set forth

pertinent parts ofeJ udge Weinfeld’s order and of appellee’s

stipulation (including her partial releases). From Judge

Weinfeld’s order, petitioner has appealed.

FRANE, Circuit Judge: ae : ‘

_ In Petition of Texas. Co. .. 213 F. 2nd 479, 482 (C. A. 2,

_ we stated, as follows, the principles applicable here, ‘in

aecordance with our previous decisions: ‘‘Absent an in-

sufficient fund, (1) the statutory privilege of limititg lia-

bility is not in the nature of. a forum non conveniens

doetrine, and.(2) the statute gives a ship-owner, sued in

several suits (even if in divers places).by divers persons, .

no. advantage over other kinds of defendants in‘ the same

position. Concourse is to be granted ‘only when * * *

necessary in order to distribute an inadequate fund.’?

The purpose of limitation proceedings is not to prevent

a multiplicity of ‘suits, but in equitable fashion, to provide

‘a marshalling of assets—the distribution pro rata. of ‘an

inadequate fund among claimants, rione.of whom can be

“paid in full.’’? We quoted the provisions of 46 U.S. C. A.

Section 184 that, ween Ioss is suffered by several persons,

‘cand the, whole vessel, and her freight. for the voyage, is

not sufficient to make compensation to each of them, they

shall receive compensation * * * im proportion to their

- respective losses,’’ and that the limitation proceedings are

‘‘for the purpose of apportioning the sum * * * among the

parties entitled: thereto.”’ Subsequently, we said the same

in Matter of Trinidad Corp., — F. 2nd. — (C. A. 2,

December 28, 1955) and in George J. Waldie Towing Co. v.

Ricca, 227 F. 2nd 900, 901 (C. A. 2).

Section 184 covers the liability of ‘‘the owner’’ of “the .

vessel.’’? In the case at bar, it happens that petitioner owns

two vessels, and may be liable for the conduct of either

vessel or both. Had each vessel been owned by a separate

1 Here we cited Curtis Bay Towing Co. v. Tug Kevin Moran, Inc.,

159 F. 2nd 273, 276 (C. A. 2).

2 Here we cited Petition of Moran Transportation cans., 185 F.-

2nd 386, 388-389 (C..A. 2); Petition of. Red Star Barge Line, Inc.,

160 F. 2nd 436 (C. A. 2) ; The Aquitania, 14 F. 2nd 456, 458, affirmed

20-F. 2nd 457 (C. A. 2).

B-

’

gow ner, each owner could have instituted a limitation _pro-

ceeding. So the owner he ‘re could have instituted one such

proceeding to limit its/Aiability as tug-owner to the value’

‘of the tug, and another proceeding as barge-owner to limit .

its liability to the a a the barge. The owner cannot

enlarge its rights under the statute by the mere expedient

‘of coupling the two proceedings.

-. Aecordingly, we must regard this case iat as if it com- .

prised two separate limifation proceedings. On that basis, ‘

we affirm. For; in respect of petitigner’s liability ax: owner

of each vessel, the order and appéllee’s stipulation (includ-

ing her partial releases) comply with what we required in

the, Trinidad case. ‘We.interpret the order, the stipulation,

and the partial releases, to relate to the liability of peti-

tioner in personam as the owner of each: véssel separately.

All the claims against petitioner as the tug’s owner come

- to $109,525, an-amount less than the bond of $118,542.21 as.

to petitioner’s liability as owner of that vessel; all the

claims against petitioner as the barge’s owner come to

$159,525, an amount less than the bond of $165,000 as peti-

tioner ‘as owner of that vessel. Consequently, there was

not an insufficient fund in respect of. petitioner’s ‘liability

either as owner of the tug or as owner of the barge.

As Judge Weinfeld said, a special verdict in the state

court suit will decide whether petitioner is liable for -the

conduct of either or neither vessel, or both vessels. That

_suit will not interfere with the.exclusive admiralty juris-

diction of the court below affecting -the limitation of lia-

bility: (a) No judgment-of the ‘state court can operate in

rem. (b) Appellee’s. stipulation (which includes a waiver

of any claim of res judicata relevant to the issue of limited

liability of petitioner as owner of either. the tug or the.

barge) and her partial releases, together with the reserved .

. jurisdiction of the district court, prevent any effective de-

termination by. the state court of the value of either vessel.

We think, however, Judge. Weinfeld’s order should be

amended to include the following: ‘‘If claimant obtains a

=. |

vs -_

judginent | in hér state court suit for an amount in excess

of $100,000, an injunction will issue per manently enjoining

her from collecting such excess unless the judgment rests

on a special verdict allocating the amount as between the

libelant as owner of the tug and as owner of the barge re-

spectively, Thus.if the judgment exceeds $100,000 and the

=e jury finds libelant liable solely as owner of the tug, she

will be enjoined ‘from collecting any excess. If the jury |

"finds that the libelant is liable solely as owner of the barge, ;

she will be enjoined from. collecting any amount in excess

of $150, 000.’’ ° :

The other claimants are apparently content. to proceed :

for a determination of their claims in the limitation pro-

ceeding.’ It is possible that the court below, in. passing

on their claims, may adjudge the petitioner not liable, while

‘ the state court in appellee’s suit: may adjudge otherwise.

But such an eventuality will present no difficulty. For the

adjudication in the limitation proceeding concerning lia-

bility or non-liability to the other claimants will not serve

‘as res judicata or estoppel by verdict for or against ap-

- pellee in her -state court suit, nor will the® adjudication.

concerning liability or non- liability in appellee’s state court

uit have such an effect for or saan the other claimants _

in the limitation proceeding.

Modified and affirmed as modified.

3 Petitioner suggests that peritaps the other claimants may seek to ~

~ proceed elsewhere. The resultant problem cannot arise unless and

until they: file appropriate stipulations and ‘partial releases. More-

over, an application to relax the restraining order as to them must be

made seasonably, as we said in Trinidad ; and the-lmitation proceed-

ing was: instituted a year and four months ago.

—* es

APPENDIX,

Judge Ww einfeld’s order of ‘January | 17, ae reads, in

part, as follows:

‘‘Ordered that the motion of Lillian M. Henn * * * for

an order vacating the restraining order entered herein on

October 8th, 1954 with respect, to her suit pending in the

. Supreme Court, State of New. York, Ulster County,. be

and the same ‘hereby is in all respects granted subject,

however, to the following conditions :.

1. ‘that claimant shall be perntitted to prosecute

her suit in Supreme Court, State of New York, Ulster

' County only to judginent ;

2. that the injunction of Octaber 8th, 1954, inso- .

far as it enjoins collection of the judgment elsewhere

than in this proceeding, shall be continued ;

3. that the Court expressly ‘reserves juvialiction .

to reestablish a concourse. and to adjudicate the peti-

tioner’s right to a limitation in the event that the

funds should ultimately prove to be inadequate ¥

4. that in no event shall this claimant: recover

from the fund an amount. in excess of her claim as

- * reduced by the partial releases heretofore given until

| ‘all other claims have been satisfied i in full;

5. that the Court further retains jurisdiction of

_this proceeding against the event that petitioner’s —

right to limit liability of either the tug Eastern |

Cities or barge L. T. C. No. 38 should be questioned

in any other forum.”’ =

_ Appellee’s stipulation — partial releases read, in part,

as foltows :

‘$1, She reiterates and affirms the terms of the written

stipulation, heretofore executed by her’ on September 6th, as

. 1955, duly acknowledged before a Notary Public of the

i?)

State of New York, Dutchess. County, and filed herein on

September 23rd, 1955, providing:

(a) that her elaim as against the tug. Eastern

' aCities, the ad interim stipulation for value. filed on

bho

its behalf, the petitioner and its stipulators for value —

is reduced to the sum of $100,000; -

(b) that her claim as against the ene L. T. c.

No. 38, the ad.interim stipulation for value’ filed ow

_ its behalf, the petitioner and its stipulatore for value

is a re to the sum of $1! 30,000 ;

(c& that she will not increase. the amount of |

either of said claims as against either of the said

vessels, as above stated, or the petitioner and its.

stipulators for value at ns future baad beyond the

‘amounts so stated; .

(d) that she will not enter r judgment i in any (" ourt

‘in excess of the stipulated amounts of her claims

against petitioner as owner of either of said vessels ;

(e) that she hereby waives any claim of Tes judi-

cata relevant to the issue of limited liability , with

. respect to either of said vessels, based on a- judg-

ment in any other Court.

. As her unconditional patti’ release she represents:

(a) that the total amount of all claims filed here-

_ in as against the tug Eastern Cities and -the peti-

tioner, as ‘her owner, is $109,525; the total amount of

_all claims. filed herein as against the barge L. T, C.

No. 38 and the petitioner, as her owner, is $159,525;

“(b). that in consideration of the entry of.an order

upon this-stipulation, pursuant to the decisions of

Honorable Edward Weinfeld, United States District

» Judge; dated December 29th and 30th, 1955, modify-

_ ing the injunctive order entered herein October. 8th,

1954, to permit the prosecution of her suit in

. Supreme Court, State of New York, Ulster: County,

she ‘hereby releases and. forever discharges the peti-~

tioner, its successors and assigiis and the tug East-

ern Cities and the barge L. T. C. No. 38 uncondi-

tionally but partially to the extent hereinafter de-

scribed from all causes of action whatsoever, in law,

in admiralty or in equity which. against them she

ever had, now has or. which her successors hereafter

shall or: miay. have by reason of the death of Robert

C. Henn on July 10th, 1954, resulting from.a colli-

sion between the motor yacht Blackstone, on- which

he was a passenger, with the barge L. T. C. No. 38.

in tow of the tug Eastew: Cities, in the Hudson

_ River; it being the intent and purpose of this release .

that it be partial to the extent of the.difference be-

tween the amount of her claim originally filed herein’

in the sum of $250,000. and. the reduced amount of

her claim heretofore, stipulated as.against the tug

Eastern Cities of $100,000, so that the amount here-

by released as to such tug and the petitioner is

$150,000; and it being the further intent and pur-

pose of this release that it be partial to the extent of

the difference between the amount of her claim orig-

inally filed herein in the sum of $250,000 and the

reduced amount of her claim heretofore stipulated

as against-the barge L. T. C. No. 38 of $150,000, so

‘that the amount hereby released as to such barge

_ * and the eo is $100,000.

3. She vonsents to, and hereby nathorises her proctors,

Rosen & Rosen, to submit an order to the Court for entry

and providing: .

‘ (a) that she shall be permitted to prosecute her

suit in Supreme Court, State of New York, Ulster

County only to judgment:

(b) that the injunetion of October 8th, 1954, in-

sofar as it enjoins collection of the judgment else-

where than in this proceeding, shall be continued ;

tion to reestablish a concourse and to adjudicate the

petitioner’s right to a limitation in the event that the

funds should ultimately prove to be inadequate;

- (d) that in no event shall this claimant recover

from the fund an amount .in excess of her claim as

_reduced by the partial releases heretofore’ given

until all other claims have beer satisfied in full;

(e) that the Court further retains jurisdiction of

‘this proceeding against the event that -petitioner’s |

right to limit liability of either the tug Eastern

Cities or barge L. T. C. No. 38 should be questioned

‘. in any other forum.

= .

In WITNESS Waueneor, I hive. hereunto:set my hand and

seal, as the Administratrix of the Estate of Robert C.

Henn, deceased, the 7th day of January in the year One

Thousand Nine Hundred and KF ifty-stx.

LILLIAN M. Henn L.S.

. Administratrix of the Estate of

_ Robert C. Henn, deceased

(Verified on January 7, 1956, by Lilhan M. Henn, as.

claimant.)’’

Hincks, Circuit Judge (dissenting) :

My brothers"Say: ‘‘We must regard this case just as if

it comprised two separate limitation proceedings. ‘ On that

basis, we affirm.’’? Even if I agreed-that this treatment of

the situation is correct, I should still be constrained to

dissent. For on that basis, in the tug proceeding the

claimant’s claim is for damages caused by the tug in the

i amount as reduced by stipulation, of $100,000, andthe own-

er’s liability depends on the fault of the tug; in the barge -

proceeding the claim is for damages caused by the barge in

the reduced amount of $150,000, and the owner’s s liability

depends.on the fault of the barge.

Such being the situation, suppose the state court. on a

genegal verdict enters judgment in favofot the claimant

-. in excess of $100,000. What :possible effect can sucha

judgment have? It appears to me that it, would be wholly,

uncollectible in either limitation. proceeding. Under the’

amendment of ‘the order: below required by the court’s’

_ opinion, the claimant will be enjoined ‘*from collecting

such excess.’’ Under an original provision of the order,

the claimant is enjoined from all ‘collection ‘‘of the judg-

ment elsewhere than in this [the limitation], proceeding.”

' The general judgment will not be res judicata on the issue

of liability in the tug proceedings ; it does not import a

finding of fault by the tug.. Likewise, in the barge. proceed-

ings;\it does not import a finding of fault’in the barge.

Thus, notwithstanding the judgment, the i issue of. liability

will be open in both proceedings.

Or suppose that in the state-court the claimant obtains.

a judgment on a general verdict in an amount say of $5000

and being disappointed in the amount thereof decides

_ to press -her claims in ‘the limitation proceedings. On no

| theory of res judicata or collateral estoppel can the owner

use the state court judgment as decisive on the issues.

It wilk not -bar prosecution of the claim in the tug pro-

ceedings, because it-did not adjudicate that the tug was

not at fault. And so in the barge proceedings. The limita-

tion court, perhaps after all the other claims have been .

heard and adjudicated, wilt have to hold a full-fledged —

trial for its determination of: the claimant’s claim, wth }

a result which may or may not be more satisfactory to’ the

claimant.

) 27

Thus considered, the disposition of the court, in my view,

subjects the parties to the labor and. expense of litigation

_avhich well may prove to be’wholly fruitless and nugatory.

That such may prove to hg the result, T think more than

_ arémote possibility. For that ‘result will follow unless in

the state court-trial the judge shall require the jury to

find specially whether the plaintiff’s injury (if caused by

the owner’s negligence) was caused by negligence in its:

conduct of the tag or by negligence in the barge» W ithout

special findings, it would be necessary for the jury to

determine only whether a proved act of negligence caused

the plaintiff’ s.injury. The requirement of special findings ~

will require the jury'to’determine also whether a proved

act of negligence was part of the conduct of a particular )

vessel,—a determination which under the evidence may in-

volve confusion and difficulty. The plaintiff might prove

an act of negligence and yet, fail to prove that the act was

a part of the owner's conduct of a partIcular vessel. . Ii

my opinion, it is by no means unkkely that the judge would

- refuse a request to require special findings om. the ground

that the request if granted would inject into the case .an

additional issue the solutiOn of which is not. essential to

the decision of the case under. the law of the state. It may

‘ also be observed: that if a» special verdict were required

~- and claims of.error should be predicated on the disposition

-of that additional issue, the parties would be without the

usual remedy by motion or appeal. For it is hardly to be

supposed that the trial court or an appellate court would ©

‘give relief for an error ‘pertaining to an issue which under

the law of the state did not affect he validity of the judg-

ment.

My brothers cite our former decisions i in Tex ras, Trinidad

and other cases forthe proposition that a claimant’s choice |

of forum should be protected and that the Limitation Act

‘does not entitle an owner to a determination in the limita-..

tion proceedings of its liability toa multiplicity. of claim-

ants growing out. of a multiple tort except in cases in

which by reason of an: 1 inadequate fund a concursus is

required. But these cases went no further than to permit

litigation at law which would be dispositive,—not litigation -

which may prove to be nugatory. I think it an unwarranted

and undesirable extension of the Texas doctrine. to sane!

tion procedure whereby two trials, one at law and the other

in the limitation praceedings, may be required for a final ,

‘determination of the issues of a single claim.

I would hold that we have ‘here one proceeding for the

limitation: of the owner’s personal, indivisible, liability to

the appellee, among other claimants, on her single indi-

visible claim. I deprécate sanction for a procedure where-

by indivisible causes of actions and indivisible liabilities

may be split’and their respective fragments may be liti-

gated in separate proceedings. If, as I think, this is a.

single limitation proceeding, even though. two vessels are

involved, the claims concededly exceed the furid which may

be fixed, and the Texas doctrine is inapplicable. —

(Memorandum. Inviting Additional Briefs for Rehearing )

UNTED STATES. COURT: OF APPEALS °

Seconp C1rcvulit

In the Matter

Perition or LAKE TANKERS Conr., |

“ns fo

Lituian M. Hex} ete.,

ony 3 Claimant-Appellee.

fay

. Before: hey

Crank, Chief Judge, Frank and Hixcks, Circuit Judges.

The petition will be considered by all of the six judges

upon the briefs, appendices, and memoranda of the parties.

The court suggests that counsel may find it appropriate

_ to file new briefs restating in succinct form the points. they .

wish to make, with a recitation of what has happened in

thé ease, so that the additional judges now to consider the

matter may be able to understand the questions at issue

without the necessity of re-examining too many separate

‘documents. Since counsel have exchanged briefs exten-

sively to date, it would seem appropriate that if they now

file such new briefs they do so simultaneously within a

reasonable time, to be arranged after conference with the

Clerk... | | .

(Opinion of United States Court of Appeals, For the

- Second Circuit, on Petition for Rehearing en banc)

_. UNITED STATES COURT OF APPEALS

For. THE Seconp Circuit

No. 268—October hank: 1955.

(Petition filed June 7, 1956 Decided August 21, 1956. )

- Docket No, 23965"

Matter of the Petition of Lake ‘TANKERS Corporation for.

0 Exoneration from or Limitation of Liability.’

,; ae

Before: , ; |

| ' .Cuark, Chief Judge, and

Frank, Mepina, Hincxs, LumMBarp,

and WatTERMAN, Circuit Judges.

- On Petition for Rehearing en banc.

‘ Bururncuam,. Hupperr & Kennepy, New York

- City (Eugene Underwood and H. Barton

: Williams, New York City, of counsel), for

Lake Tankers Corporation,. pelitiontr-sppe-

lant. —

Rosen & Rossen, Poughkeepsie, N. Y., and ioe: :

& Mason; New York City (Frank C. Mason,

_ New York City, of counsel), for Liilian M.

Henn, claimant-appellee, in opposition.

Per CurRIAM:

Petition for rehearing en banc of our decision, 2 Cir., 232

F. 2d 573, affirming as modified the decision; D. C. S. D.

N. Y., 137 F. Supp. 311, granted. Upon due and further 7

consideration by the entire court of the appeal on the merits

and of the able additional briefs submitted by counsel for

the respective parties, we.adhere to our original decision,

Judges Clark, Frank, Lumbard, and Waterman, concurring,

J — Medina and Hincks ee:

32.

_ (Limitation Statute. Title 46 U.S, Code §§183(a), 184, 185)

_ **$483(a). The liability of -the owner of any

vessel, whether American or foreign, for any em-

bezzlement, loss, or destruction by any person of any

property vs *, or for any loss, damage, or injury

by collision * * * done, occasioned, or incurred with-

out the privity or knowledge ‘ot such ow ner. or owners,

shall not, except in. the cases provided for in -sub-

section (b) of this section, exceed the amount or

value of the interest of such owner in such vessel,

and her freight then pending.”’ :

“*§ 184. Whenever any ‘such embezzzlement, loss,

or destruction is suffered * * * and the w hole value

_ of the yessel, and her freight for the voyage, is not

sufficient to make compensation to each of them, they

shall receive, compensation from. the owner of the

' vessel in proportion to their respective losses; and

for that purpose * * * the owner of the vessel ote

may take the appropriate proceedings in any court,

for the purpose of apportioning the same for w hich

the owner of the vessel may be liable among the par-

ties entitled thereto. ~ ;

**§ 185. The vessel owner * *.* may petition.a

district court of the United States of competent

jurisdiction for limitation of liability within the pro-

visions:of this chapter and the owner (a) shall de-

posit with the Court, for the benefit of claimants, a

sum’ equal to the amount or value of the interest of

_ such owner in the vessel and freight, or approved

security therefor, and in addition. such sums, or .

approved security therefor, as the Court may from ~

time to time fix as necessary. to earry out the provi-

sions of § 183 of this title *** *. Upon compliance |

with the requirements of this section ail claims and

proceedings against the owner with respect to. the

‘matter in question shall cease.’

(United States Supreme Court Rules 51,. 52, 53, 54)

‘(Rute 51. The owner or owners of any vessel. .

who shall desire to claim the benefit of limitation of ~

liability * *,* may, file a petition in the proper district

court * * *. With his petition the petitioner. may, if

he so elects, file an interim stipulafion, with sufficient

sureties or an approved corporate surety, for the

payment ‘into Court whenever the Court shall so

order, of the aggregate. amount of the value of peti-

tioner’s interest in the vessel * * *. ie

‘*Upon the filing of such interim stipulation:-* * *

the Court shall issue a monition * * *.

‘‘The said Court shall also, on the application of.

the petitioner, make an order to restrain the further

prosecution of all and any suit or suits against the

petitioner and/or. said vessel in respect of any claim

or claims subject to limitation in the proceeding.

‘(Rue 52. *.* * Proof of all claims which shall

be filed in pursuance of said monition shall there-

‘after be made before a commissioner *** * and on

confirmation of said commissioner’s report * * * the

‘ moneys paid or secured to be paid into Court as

aforesaid ® * * shall upon determination of liability

be divided pro rata * * * amongst the several claim-

ants in proportion to the amount of. their respective

claims * * °. | es fae

; ‘Rute 53. In the proceedings aforesaid, the

petitioner shall. be at liberty to contest *his liability,

or the liability of said vessel, * * °,

‘Rute 54. The said petition shall be filed and

the said proceedings had in any district court of the

United States in which said vessel has been libeled

*.* * or, if the said vessel has-not been libeled, then

in the district court for any district in which the

owner hag been sued ***.’’- *

& ; : . A P

BRIEF

FOR.

PETITIONER

Pas eee T Gtlce -Soprome Court, US

a FILED

7 LIBRARY — : APR 4 1957

“SUPREVE COURT.US. . } | ee

ms OuT FEY, Clerk |.

isin Court af the United States

} October ‘tom, 1956"

No. 445

LAKE TANKERS CORPORATION,

teh See Pa, * ’ ‘ : Petitioner,

‘against |

LILLIAN M. HENN, Adi ce

. Respondent. -

On Writ or Certiorarr te-tHE UNITED States Court or

APPEALS FOR THE SECOND CIRCUIT

\ *

BRIEF FOR PETITIONER *

KiucENE UNpERWwoon, \

26 Broadway, P

New York 4, N. Y.,

Counse! for Petitioner.

H. Barton WHLuiaAMs, | -

INDEX

~ Opinions Below ..... prec oy ery SEPT rr rrr eer oysek us

NS 5s cio. auc, evudeuanee sain vere

-—_ _- , : :

Question rer. Leer arr ry ee

Statute and Rule Involved ee gr rey rere ae

Statement of Case reue cee wae ans ee Seay ee

‘Summary of Argument awa tee re Wa ee

ARGUMENT:

% Upon the filing of. the wilt the District

Court acquired jurisdiction of the proceeding

Il. Jurisdiction‘once obtained is not lost by’ re-

ducing the claims to an amount less than the

‘fund ee ee RRO tas se apie) ase vases :

Analogy of-the Diversity Cases ...........

IIT. Cone ursus is not contingent upon the eXist-

ence of an inadequate fund .............0..

1. No Liability ...... Steen chee ees 7

"2 Ne Limitation ee ne renee owing Sees ae

3 No: Fund fh showers Gee

4. Adequate Fund . ee ee rs es

Seeond Circuit Cases .............. |

- Single Claim Cases ............:..

IV. The claims in this proceeding exceed the

amount of the possible fund ‘and petitioner is

entitled to a concursus for their disposition. .

A.. This Single. Proceeding * Need Not Be

Nexarded As If It Were Two ........

PAGE

B. The Prosecution of Respondent's State

-Action Woukl ‘Violate the Admiralty

“ ~ Court's Exelusive Jurisdiction of All

sar Questions Affecting Limitation of Lia-’ >

by ey | PN A ree Sere yrs ee 3

Coneluston ee Pie ae wes Retna erty. aac ears 38

Appendix, 6. = OE a aie uae MOON ee 39

Limitation Statute .... PP rate W Seale aie TAre W's wes a og

Supreme Court Tales 01-90 0.0... ee ee eee ei

: 9 : iff

Cases Cited

Alvah H. Boushell, “he, 38 F. 2d 980 (4 Cir)... ... 30, 31

‘Andersen y. Alaska S.S. Co., 22 F. ‘2d 522 (9 'Cir.).. 13

Aquitania, The, 14 F. 2d 456, aff'd 20°F. _— 457 i.

Ce AE seeks en eee ess sree Ore eee 22, 23

Bordentown, The, 40 Fed. 682° (S. Dd. a y. eres xe ae

La ee ae ea iy) - Anes ee 18, 20

British Transport Comm's v. U nited States, 230: rr.

hi 189 (4th Cir.), cert. granted’352 UL 8: 821. .... 20)

3utler v. Boston Steamship Co, 130 EF,

‘ : : sae) a : 6 : .

Captain Fack, The, 169-Fed. 495;(D. .C. Conn.) . 2.5. 7 030

Columbia, The, 73 Feds 226 (9 Cir.) ee MPN Gog ee qi 31

Coryell v. Phipps, 817 U.S. 4060 0. ee % 5

Curtis Bay Towing. te v. Tug Kevin Moran, Ine., |

loo BL 2d 27B (CC. A. 3. ee ae Set g el ee ee

Hinks v. Paladini, 279 0 ‘Ss. i tabs *: 39

- Hartford Necident and Jridenmnity Co. . Southern ~

Pacifie Co., 278 U.S: 207... 00.... 13.1 16. 18, 19; »(), 32, 33

Garden City, The, 26 Fed. 766 02 .0,....000060. aha |

George J. Waldic Towing Co. vy. Rica, 2 22 7 F, Ad 900

2 eo ee Base Sesame ch ae

_ Glide, The, 167 U.S. 606 620.0000... ne

Greon, Ex parte, 286, S. ee Pore tre

S. 327. .: .16,.17,4

iii.

PAGE

Harbor Towing Corp. v. Atlantic Mutual Insurance

— Co.; 189 F.2d 409 (¢, rg 4 as ee ae Pe eae Be

Hine . The v. Trevor, 4 Wall. (71 it ). a5... es eae a

John K. Gilkinson, The, 150 Fed. 454, and’ 156 Ped.

i. Sh MA SE RMR es ita 1s he “oe 1:

Just y, Chambers, 312 U. 383 Ra ae eT ee 17, 19, 3:

Kearney, The, 3 F Supp. 418 (K. ee is 34

Knie kerboeker ew Co. v. Stew art, 253 U.S. 149... 28

Langues Vv. Green, BN. By OE ssa een ces 20, 33, 37

Larsen v. Northland Transportation Co., 292 F. S. 20 "32°

| Liverpool, ete: Nay. Co. vy, Brooklyn Eastern District * .

Terminal, 21 Se ee eee ee reas », 67 (, 28

MeDonald y. Patton, 240-F, 2d 424 (4 Cir. re Mee aS 4.4

Maryland Casualty Co. v. Cushing, 347 U, . 408... 15, 32

Morrison, We eer 0. Oe yee... erie &

Moses Taylor, The; 4 Wall. (71 U.S.) 4110.02... a ae

Munson Inland Lines Ine. vy. Insurance Co. of North. ty

America, 36 F.2d 269 (S. DN: ¥. 1929)... 00 20

Norco, The, 66 F wen GO (8 OW) ws esd ccc. va.

Norw ich Company v. W right, 13, Wall. 104 Sh eon 10, 24, 32.

Petition of “Boraks, 142 F. Supp. 364 2.00000... - 24°

. Petition of Cunard 8.8. Co., Ltd., 17 F. 2d 120... 25.

Petition of Lake Tankers ( “orporation, 152 F. Supp. a as

ENG ie ee eee er Pireeamiretee Orcs no. aha |

Petition of Lake Tankers ( a Shia 137 F. Supp:

MEE cha eawc ae eed Feu Mek e Sew ae dla Cows a oe 0.

Pe ‘tition of MeAflister Bros... 96 i Supp. 975 (Ee D:. -

reg Ue eee gy ee ee koa 34

Petition of Moran Trans, Corp, 185 F. 2d 386 )

| Oe Ne | Wine eee nan eice ARE ee ia eae aaa 22

Petition : Red Star Rang Line Inc., 160 PF. 2d $36

Wi eR ied ss NCH ESAS Goud cy eee. fc. ae eee

“Petition 5 Te. ‘xas Co., 213 F.2d 479, CL AL cort. den. .s

a IP ge ee nee ea © + + 20, 27,38

“ ‘ . i .

: | PAGE

Petition of Trinidad ( ‘orporation, 229 F, 2d 423 (2d ee

Mek iticetvike oe Aa A 27, 28, 33, 34

Petition of Wood (The yr vite 124 F. Supp. 540... 19

Providence & N.Y. SoS, Co, . "Hall Mfg. Co, 109

eee ae ee cetsae ee Coen 11, 16, 20, 32,33 —

Red Cross Line vy. Atlantic Fruit Co., 264 C8 ee... BB

Richardson vy. Harmon, 222 U.8..96 .............0. 0 37

San Pedro, The, 223 U.S. 365 ....... Clas See eee 12, 33

San Rafael; The, 141 Fed. : 200 (9 CA) oaks oe 31

Scotland, The, 105 U.S. 24 ne ee ee re bk: > 17, 2, 33

~ Slayton, Ex parte, 105.U.8. || ere eeecraeaney 17

Spencer Kellogg Co. v. Hicks, 285 U.S. 502 20.02... : 19

Southern Pacifie Co. v. Jensen, 244 U.S. 205....... ae

Standard Dre dging Co. v. Srltliecn 67 FP. 2d 548

((. A. 2), certiorari denied 290 U.S. 704 .. 2 +...7, 28, 30

St. Panl Mercury Indenmity Piccamds v. Red Cab ~ |

Company, 303 U.S. 285 .4...... Sapa er ene eNees 14, 24

Thompson Towing & Wrecking Ass‘i v. MeGregor,

207 Fed. 209 (6 Cir.) .0......0.. Ces Caen a.

— Titanic, The; 233 ©. S. 718 2.2.2... ere rey he 33

TFoilchester, The, 42 Fed: TOO «vie ks case stawk aa 13

Transfer No: 21, The, 248 Fed. 459 (2 Ciz. Paws ‘47, 28, 30

iuited States v. The Australia Star, 172 F, 2d 472

Cio Ss Beerreremrer srr r aces as Pere fees. ».. 30,31

i I. Hedger Transp. € orp. Vv. Gallotta, 145 F.2d

Oe t2 Abs as bee pecs creo tree 34

White ¥. Island Transportation Company, 283 U.S...

REN Maes re Ske a eee eae ee 25)

. Vv

- Statutes Cited

PAGE

28. S.C. 6194851) ree 20

28 UL S.C. 61881 es, ee na oa Pee a i

Title 46, U; S. Code $§ 183, 184, 185..............- 9

Title 287 U.S. Code Rules ‘51-54 00.00... ccc. 3

Other Authorities Cited

‘Chafee, Bills of Peace -With Multiple Parties, 45

Harv. L. Rev. 1297, 1312 (1982) ....:0.:0........ 20

Note, 66 Yale L, J..121- (1956) ......0.... epee e 50

Supreme Court uf the Huited States

October ‘Term, 1956

-' No. 445. —

. - L :

Lakk TANKERS CORPORATION, |

Petitioner,

against

Linuian M. Henn, “Admx., | :

Respondent.

Ox Warr or Certiopari TO.THE UNITED STATES COURT OF

APPRALS FOR THE SECOND ‘CIRCUIT:

- BRIEF FOR PETITIONER |

; _ Opinions Below

The first opinion in the District Court, that of Ryay, s..

‘is reported only at’ 1955 A. M. ©. 55.- It is at page 21 of

the record. . The first and second opinions of WErxFeELp, JJ.,

are reported at 132 F. Supp. 504 and 137 F. Supp. 311.

The first opinion of the Court of Appeals is reported at’,

232 F.2d v3 and is at page 07 of the record. Its memo-

randum inviting additional briefs for the reheari ing im banc

is not reported;.it. is at page 81 of the record. Its per

curiam opinion granting the petition for rehearing in bane

but adhering to its original decision is reported at 235 F.

2d 783 and-is at page 82 of the record. |

Jurisdiction

The judgment of the Court of Appeals was entered on

April 18, 1956 (R. 69). The petition for rehearing in’ banc

‘was granted and the original decision. adhered to on Au-

cust 21, 1956 (R. 82). The petition for certiorari was filed

on September 24, 1996 and was granted November’ 19, 1956.

“The jurisdiction of this Court rests on 28 UL. SoCy & 124501)...

, Question Presented’ |

‘Is the owner of a tug and barge entitled to maintain a

proceeding for limitation of liability and to obtain a

cohcursus and one decision, binding upén all parties ‘as

to. the isswes of liability, amount of -the limitation fund

and the amounts to be recovered by the several claimants,

When it is confronted with. elever death, personal injury

and loss of property. claims, the aggregate of which is |

ereater than the amount of its limitation fund as mav he

sdetermined. after trial?

Statute and Rule Involved

The pertinent portions of the limitation statute,” Title

46 UsS. Code, §§ 183-ef seq., are as follows: |

—**$183(a). The liability of the owner of any

vessel, whether American or foreign, for any em-

bezzlement, loss, or destruction by.any person of any

property *.* *, or for any loss, damage, or injury

by collision * * * done, oceasioned, or incurred with-,

out the privity or knowledge of such owner or owners,

shall not, except in the eases provided for in sub-

section (b) of this section,, exceed the amount or _

value of fhe interest of such owner in such vessel,

and her freight then pending.** :

* The entiré ‘statute is printed in. the appendix hereto.

Sub-seetion (li) and the ensuing sub-sections of $185

provide for the statutory. fund of $60 per ton but are

limited to **seagoing’**tessels and are not applicable here.

‘*$ 184. Whenever any such embezzlement, loss,

‘or destruction is. Suffered * * * and the whole value

of the vessel, and her freight for the ‘voyage, is not

sufticient to make compensation to each of them, they

shall ‘receive compensation: from the owner of the

vessel in proportion to their respective losses; and

for that purpose * * * the owner of the vessel * * *

may take the appropriate proceedings in any court,

- forthe purpose of apportioning the-same for which

the owner of the vessel may be liable among the par: .

ties entitled thereto. | .

“$185. The vessel owner * * * may. petition a

district court of the United States of competent

‘Jurisdiction for limitation of liability within, the -

provisions of this chapter and the owner (a) shall de:

posit with the Court, for the benefit of claimants, a°

sum equal to the amount or value of the interest of -

such owner in the vessel and freight, or approved

. security therefor, and in addition such sums,’ or

approved security therefor, as the Court may from

time to time fix as necessary to carry out the provi-

sions of § 183 of this title * * *. Upon compliance

with the requirements of this section all claims and

proceedings against the owner with respect. to the

matter in question shall cease.” ay

The pertinent sections’ of the Supreme Court Admiralty

“Rules,® Title 28, U.S. Code, Rules, are as follows: |

hereto.

“Ree ol. The owner or owners of any: vessel

who shall desire to claim. the benefit of limitation of

liability * * * may file a petition in the proper district

court " "*. -With his petition the petitioner may, if

he so elects, file an ‘interim stipulation, with sufficient

suretics or an approved. corporate surety, for the

* Rules 51-55 are printed in their entirety in the ippendix

payment into’ Court whenever the Court) shall so

order, of the aggregate amonnt of the value of peti-

tioner’s interest in the vessel * * .

“Upon the filing of such interim stipulation *

the Court shall issue’ a ‘monition :

**The said Court shall also, on the application of

the petitioner, make an order to restrain the further

prosecution of all and any suit or suits against the

‘ petitioner and/or said vessel in respect of any claim

or claims subject to limitation in the proceeding.

‘Rune 52. *.* * Proof of all claims which shall

be filed in pursuance of said monition’ shall there-

“after be made before a commissioner * * * and on

confirmation of said commissioner’s report * - * the

moneys paid or seeured to be paid into Court as

aforesaid * * * shall upon determination of liability

he divided pro rata * * * amongst the several claim-

ants in oi tain to the amount of their ——

claims * * * ;

‘‘Rure ‘53. In the ienoediias aforesaid, the

petitioner shall be at liberty to contest his liability.

or the liability of said vessel, aes

“Rue 54. The said. petition shall be ftled anc

the said proceedings had in any district court of the

United States in which said vessel-has been ‘libeler|

x * #

in the district court. for any ‘dist#iét in which the

owner has heen sued * * *.”’ .

Statement of Case.

» Shartly hefore 1:00 A. M., July 10, 1954, the vacht

Buackstone was proceeding south in the Hudsow River.

with eleven men on board, returning to Poughkeepsie from

a moonlight “exeursion to Kingston. Petitioner’s tug

Eastern Crries; push-towing petitioner's barge Lre No.

3X, was proceeding up the Hudson River. The Buacksroxe

or, if the said’ vessel has not been libeled, then .

ran into the bow of No. 38, capsized and sank. Ten of the

eleven persons aboard were rescued by the Eastern Crttks,

but respondent's = decedent has not re: ‘ppeared.

Respondent ges an action ip the New York Supreme

Court, Ulster County, to recover $500,000 damages for. the .

loss of her husband’s life. Additional actions at law were

brought against petitioner by Clyde W. Roan, owner of the

Biackstoner, claiming $7,500 for: property damage and’

$25,000 damages for pérsonal injury, by Robert E. Cruz,

claiming. $25,000 damages for personal injuries, and by

“John E. Strong and Charles A® Carlson, each of whom

claimed $50,004) damag 1s for personal injuries,

- The aggregate of. these five suits was $657,500 and. six

of the persons aboard the BLackstonkr remained to be heard .

from. The value of the Eastern Cittes Was about $110,000

and the value of No. 38 about $165,000. The pending freight

‘was $8,542.21. Thus petitioner was faced with suits elaim-

ing $374, 000 more than the value of its interest in the ves-

sels, with six additional suits still to. be expected. Accord:

ingly petitioner filed, in the-United States Distriet Court:

for the Southern Distriet of New York, its- petition for

exoneration from or limitation of liability and claimed the

benefit of the Limitation of Liability Statutes, Title 46,

U.S. Code, $$ 188(a), 184 and 185. The petition (R. 1)

contained the allegations yequired by Supreme Court Ad-

miralty Rule 51 and, purshant to that rule, petitioner filed

an interim stipulation fégr the payment into court, when-

ever the court might sa a of the value of its interest in the

vessel (R. 7). The amount of this interim stipulation was

$118,542.21, being the value of the Eastern Cities plus the

pending freight. No, 58 was without. power and was

wholly controlled by the tug; therefore, it Was thought that

the Eastern Cities was the ‘vessel’? and that a —

tion for her value was enough. Liverpool, ete. Nav. Co,

fh.

Brooklyn Bustern District Terminal, 2 251 U. $48, 535 . The

Transfer No. 21, 248 Fed, 499, 461 (2 Cir.). — peti-

tiorier, in its petition, avowed its readiness and willingness

to give a stipulation for the payment into court of the value

oft * ‘sueh additional interest as may be appropr late when-

ever the same shall be’ orden red’? (R. 4).

The interim stipulation for the vahie of the KASTERN

CiriEs’was approved by the Court and the Court, parsuant.

‘to the third paragraph of Supreme Court Admiralty Rule

al, thereupon issued its monition against all persons

asserting claims in respect of which the petitidner sought -

limitation, citing them to file their claims in the limitation

proceeding. Pursuant to the final paragraph of Supreme

~ Court Admiralty Rule 51,.the District Court also issued its

order restraining all persons from prosecuting claims aris-_

ing out of the collision elsewhere than in the limitation pro-

ceeding (R. 10).

“+ Respondent then appeared specially and moved to dis-

_miss the petition on the asserted ground that the interim

stipulation Was Inadequate because it did not include the

value of No. 38. The District ‘Court, Ryan, J., granted the.

motion because there was’a separate claim of negligence on

the part of No, 38 and required petitioner to give an Addi-

tional stipulation for-her value, Petitioner promptly filed

au additional interim stipulation for $165,000 ‘and peti-

tioner raises no question here as to the tab abies of that

requirement,

Thereafter, re sponde nt filed or. claim: in the limitation’

proceeding for $250,000, one-half the amount sued for in

the State Court action, although that action remained; and

still remains, pending without reduction in the a7 dammin.

Each of the ten survivors filed separate claims for personal

injuries and for property damage, the aggregate of: these

heing, as filed in the limitation proceeding, $9,525, “The |

total of all claims filed in the limitation proceeding was,

therefore, $259,525. This total exceeded the yalue of the

KWASTERN CITIES ai exceeded the value of No. 38, but was

less than the aggregate’ value of both.

In this posture,’ respondent moved to vacate the re-

. straining order so. that she might proceed’ with her action

sat, law, asserting that the claims aggregated less than peti-.

tioner’s. limitation fund. She relied upon Petition of

Texas Company, 213 F. 2d 479 (2 Cir.);.certiorari denied

348 U.S. 829.° Her argument wa§ that the limitation . fund

was $283,542.21, the sum of the two interim stipulations

and, because the claims were only $259,525, petitioner

needed no concursus because the fund was adequate to pay

all in full. However, respondent confused the amount of

the eventual limitation fund with the sum of: the interin’

stipulations, which were no more than security for the

eventual fund and WeEINFELD, J. denied the motion, hold.

‘ing that the amount of the fund could not be determined wn-

til after trial because the fund will consist of the value |

only of the vessel(s) at fault in rem. This is settled law.

Liverpool, etc. Nav. Co. «. Brooklyn Eastern District Ter-

wg 251 U.S. 48; The Transfer No. 21, 248 Fed. 459

(, A. Fe id ‘Dredpina Co. *& Kristiansen, 67 F.2d

548 ie A. 2), certiorari denied 290 U.S. 704; Harbor Tow- ;

ing.Corp. v. Atlautic Mutual Insurance .Co., 189. F. “ 409

(C. A.4). The Judge therefore heli that the premise/under-

lying respondent’s motion was false and denied the motion. |

Petition of Lake Tankers Corporation, 132 F. Supp. 504

(R. 42). However, in his opinion the Judge suggested

that respondent could escape the restraining order and the —

concursus of the limitation proceeding if she would ap-

- portion her claim against tug and barge and bring the.

amounts of the claims against éach vessel to a sum less

than its value. Respondent followed this suggestion and

filed a stipulation stating her claim against tug and barge

in separate amounts, but. her claim against petitioner re-

mained the same, viz. $250,000. The claims were then, and

still are, as follows: ~s ,

Respondent. : , Irfthis | In pending

net | proceeding actionsat law

allocated to tug ........... $100,000

allocated to barge ........ 150,000 _

against petitioner eee 250,000 ~ $500,000

Not allecated as between ? Ps

tug and barge:. ;

‘Roan ...... Ree trrd ea . 4400 ') 32,500

Carison ......: (Oeil ae 30,000

a. eres epee Pare 25,000 -

RN Ces oO tena cae secon Jae - 30,000

ef. nr ee a 50. A

0 ee err rere 30

ER ei coy eek ees ~. 50

Maymond ..........+. py ee 50

Cady ..... a eat ete 0

ee are Se re 50 .

Eee $259,525 ° © $657,500

Thus the aggregate of claims against petitioner in this

proceeding remaineg $259,525. The eventual limitation

fund, as distinguished from the juterim seeur ity, will exceed

the claims only if both vessels are held at fault. If. only

cone is held at fault the fund will not be adequate and a con-

course Will-be- necessary to distribute it.pro rata. Whether

either vessel was at: fault, or whether both were, cannot be

determined until after trial. °

—. Whether or not the fund- proves to be adequate, the

an ven claims against’ petitioner arise ont. of the same

deeurrence and turn upon the same facts an@ law. A. con-

course will permit their decision in one proceeding the |

result of. which will be binding upon them vis-a-vis peti-

tioner, ail also among themselves. The latter is an éssen-

tial consideration if the fund should be inadequate.

" Nevertheless, after apportioning her claim, respondent

again moved to vacate the restraining order, this time on

the ground that the claims against each vessel wére less

than its value. Weinfeld, J., granted this motion, holding

that there are two fungls, each more than the‘claims against’

it Petition. of Lake Tankers Corporation, 187 F. Supp. :

‘ee appeal a ‘divided Court affirmed, holding that con-,

-eourse will be granted only when necessary to distribute

‘an inadequate fund, that this single proceeding, by a single

- petitioner, must be regarded as if it were two separate.

proceedings because two vessels are involved, and that,

since the claims allocated to each vessél are less than its

“value, respondent ean not be held in the concourse of the’

limitation proceeding (R. 57).

In a strong dissent, Hincks, (. J., held that this single

proceeding, by a single petitioner, cannot be regarded as

if it were two; that: since the claims against petitioner

exeeed the possible fund the Admiralty Court must keep

them’ all in limitation proceeding and.that the prosecu-

ton bf respondent’ s:action at law-will be ‘‘wholly fruitless |

and nugatory’’ (R. 66).

Petitioner filed a petition for a re-hearing 7 bane.

. After four months the Court: filed its per curiam opinion °

«ranting the petition for rg-hearing in. banc but. adhering.

to its original.decision. No reasons:for the’ decision ‘were

stated. Judges Clark, Frank, Lumbard and Waterman

‘coneurred; Judges Medina and Hincks’ dissented (R. 82).

in \

: . \16

; | i ; Summary of Argument a

The limitation: proceeding was propeaty brought. The

Admiralty Court aequired full jurisdiction, and. the prose-.

cution of elaiins in the State Court actions. was properly

enjoined, because the aggregate of the several claims ex-

ceeded the value of petitioner’s interest in na vessels. The '

E CB8urt’s jurisdiction, proper ly acquired and taken, isnot:

subject to defeasance at the whim of claimants’ counsel:

bv. redueing or purporting to allocate the claims. Despite

oe a « « ‘

these. maneuvérings the claims still exceed the possible

amount. of the fund and p&titioner- iss entitled to a concursus -—

for their. disposition.

ARGUMENT

|. Upon the filing of the petition the District Court

acquired. jurisdiction of the proceeding. (

fe)

In Norwich fompany Vv. We ‘right, 13 Wall. 104, this Court

recognized th need for ‘rules ‘to guide ‘the shipowner in.

seeking. the ‘pPotection of the Limitation Statutes, which

contain .o procedural. prov isions, and coincident with that

decision promulgated the Rules (supra, pp. 3-4; “ae pp.

44-50). a

Rule 51 of the Supreme Court. Admiralty Rules does not

condition the Court's juvisdiciion of a limitation petition

_upon an allegation that the claims exceed the value of the

petitioner?s interest in the vessel. Rule 51 specifies what

alfour tions must be made and requires that “the amount

all demands including ‘all unsatisfied liens or elaims of

engoin contract or in tort, arising on that voyage’ be.

‘tated. It also provides for an ex-parte interim appraisal

of the value of the petitioner’s interest in the vessel, ete,

or alternatively for the transfer of the petitioner’ S interest

toa trustee: In its third paragraph Rule 51 provides tha:

upon the filing of ‘an imterim stipulation or a sirrvender to.

a trustee ‘‘the court shall. issue a monition,. © 7 "" and in

its last paragraph-Rule 51 provides that apon the applica

tion of the. petitioner the Court shall restrain. the further:

prosecution of all claims except in the limitation proceed

“ing. The rule contains no mr yuirement that the claim-~

exceed the fund in fact or that the petitioner so allege.

The same is true of the statute, . Title 46 U.S. Cade,

Section 185, As samended in 1936, provides that the ship-

owner may file his petition within 6 months after a claim

ant shall-have given written notice of claim. It does hel

require that the amount claimed execed the value of ‘the

petitioner’s interest in the vessel. Section 185. further

provides that the petitioner, having filed his petition and

given the required security, may have an order directiny |

that ‘‘all claims'and pedecedings, against the owner with |

respect to the. matter, in question shall cease’

It eannot be’ ‘denied that néither the statute nor the rules

require that the claims exceed the fund, or that petitioner

so allege; before the.Court can take jurisdiction.

In this case, however, actions had been begun against

petitioner claiming an aggregate of $657,500 before the

petition was filed and the ‘value of the petitioner's ‘ititerest

in the two vessels was ‘not more than $283,500. If) there

were a requirement that the claims exceed. the value of thie

vessel(s) it was obviously met.

IL Jurisdiction once obtained is not lost by reduc-

ing the claims to an amount less than the fund.

Mn. Providence & Nv. ¥..8.-S. Co. v. Hill Mig. Co

#109-U. S. 578, this Court, over 70 years ago, held that Wari-

diction Once obtained should be kept to a-fin’l determina-

tien of the whole dispute. The Court said: : y

oe © after ‘proceedings have been commenced

in the proper. District Court, m pursuance thereof,

ee the proseeution pari passu of distinct suits’ in dif-

: "ferent courts, or even in the same court by separate

te claimants, against the shipowners, is, and ust neces-

sarily he, utterly: repugnant to such proceedings and

<nby ersive of their object t ands purpose’ (pe 594).

“Proceedings, under the act having been duly

instituted in this court, it acquired ‘full jurisdiction.

of the subject-matter; and having taken such juris-

‘diction, and procured control ef ‘the vessel and

freight (or their value), constituting the fund to ‘he

‘distributed, and issued its monition to-all parties to

appear and: present their claims, it became the duty:

_ of all courts before which any of such claims were

prosecuted, upon being properly certified of the

proecedings, to»: pend further action upon said

claims ** (p. ny). : ‘

In re Morrison, V4i U.S, 14, this Court said: 3 \

; op hie filing of the Tibel: and petition ‘of the steam-

ship company, ‘with the ‘offer to give. a stipulation,

couferred jurisdiction upon the court, and: no, sub-

sequent irregularity in procedure could take away:

‘such jurisdiction’? (p. 34).

In The San Pedro, 293 U. S. 365, this Court recited that

there had been due appraisment of the vatue of the owner's

interest, that’a proper stipulation for value had bee en given ”

and that a monition had thereupon duly issued., This, the

Court said, cemented tlre jurisdiction of the Distriet Court:

‘In that situation, the Jurisdiction of the court

to fiear and determine every claim in that proceed.

ing bee ame exclusive, Tt w as then the duty of every

other court, Federal or state, to stop all further

ile “proceedings in separate suits upon claims to whieh

rt the limited liability act Speers’ (p. 372)

In pense Accident and Indemaity Co. v. Southern

Pacifie ('9.,.273 U, 8. 207, this Court. said: .

“Phe jurisdiction of the admiralty court attaches

in rem and in. personam by reason of the custody

of the res put by the petitioner into its hands. The

court of admiralty, in working out its jurisdiction, |

acquires: the right to marshal all claims, whether of

strictly admiralty origin or not, and to give effect

-to them by the apportionment of the res and by

judgment in personam aeainst the owners, -so far

“as the court may. deeree ** * 7° (pp. 217-8). ‘

‘

In Anderson Vv. Alaska S.S. Co.,. 09 B 9d 532 €9 Cir.),

. eo? : Pd :

the ¢ fourt said:

‘‘Nor is it, material fiat the agg) regate amount

of the claims presented was less than the appraised.

value, because the right of limitation depends on

ee the probable amount of the elaips: against the vessel

. at the date of filing the petition, not on the amount

of the claims accel ni ed or allowed’?* (p. 9384,

italies ours).

. The Johu K. t Hilkinson, 150 Fed. 454, and 156 Fed. 868 ;

The Tolchester, 42 Fed. 180; The Garden City, 26 Fed. T66,

and Brig. IS. Day. »1 Fed. 727, are to the same effect. .

‘Analogy of the Diversity Cases:

The analogy betweelr the present vase and those arising .

under Section 1331-of Titlé 28, U. S. Code, is strong. The

jurisdictional amount is $3,000. This Court has flatly held.

that the jurisdiction of the District Court attaches upon the

allegation, in coon" faith, that more than $3, OM) is inv ‘olved

14.

wnd may not be defeated by a subsequent reduetion in the

amount of the glaim. In St. Pan Mercury Indemnity

EE he SL U.S. 283, this Court

said: 2 , )

ots And though, as here, the plaintiff after removal,

“by stipulation, by affidavit, or by amendment of bis

pleadings, reduces the claim below ; the requisite

amount, this does not deprive the Distriet ( ‘ourt of

jurisdiction.

“Thus events ocqurring subsequent to removal —

which reduce the amount recoverable, whether be-

yond the plaintiff’s control or the result of his voli-

tion, do not oust the District ‘Court's jurisdiction -

onee it has attached”’ (pp. 292-3). oa

The € ourt ent aee

‘ «We think this well established: rule is supported

by ample reason. If the plaintiff could, no matter

how bona fide his original.claimn in the state court,

reduce the amount of his demand to defeat federal,

* jurisdiction the defendant’s supposed statutory right

of removal would be’subject to the plaintiff’ S cupric:

The claim, whether well or ill founded in fact, fixes

the right of the defendant to remove, and the plaintitt

ought not to be-able to defeat that right and bring

the cause back to the state court at “his election”

(p. 294).

- Compare MeDonald vy. Pation, 240 FB, 24.424 (4 Cir.).

These precepts apply with full force here. Petitioner,

confronted with five suits for sums that aggregated $374,000

more than. the value of its two vessels, in good faith filed its

petition seeking limitation of liability “and a concursus. ‘

Respondent, who sued for $300,000 in the State Court, filed

her claim in this proceeding for half that, $250,000, cand

Roan, Carlson, Cruz and Strong, who had ‘sued for an

aggregate of $157,500 in their State Court actions, filed -

claims in this proceeding for only .$8,229. The: six others

filed claims for only $50 each in this proceeding. This

brought the aggregate to $259,525, just below-the value of

petitioner's two vessels and the pending freight, $283,500.

Obviously these reductions were made by claimants acting

in concert for the very purpose. of questioning the Ad.

miralty jurisdiction.

"Iti is not for them to Say that the amoumts of their claim’

as originally. filed were not stated in good faith. -There is

no reason why jurisdiction of. a limita‘ion proceeding

should depend on the claimants’ caprice.

lil. Concursus is not contingent upon the existence

di an inadequate fund. |

The existence of several claims arising out ef.the same

maritime accident or disaster is alone enough to give the

Admiralty Court jurisdiction to bring all the parties into

concourse and determine all the rights and liabilities in

one proceeding. This Court has said many times.that one

of the purposes of the Act was to bring all the parties into

‘concourse and that the ‘proceeding is analogous to an

equity proeceding to enjoin a multiplicity of suits,

In Maryland C asualty Co. v. Cushing, 347 U.S. 409,

Mr. Justice Frankfurter ae two reasons for conelud-

ing that the Louisiana statute permitting direct suits

against liability underwriters could not apply to maritime

‘policies. His first was that it encroached ‘‘upon the federal

statutory ‘system for bringing: all claims into concourse’

(p. 417). It was only as his second reason that he men-

tioned that the limited liability feature of the Act might

be frustrated if the Louisiana statute were-sustained. This

clearly points up the dual purpose of the Act as this

Court has uniformly construed it: (1) to bring claims into

concourse and, (2) to limit the shipowner?s liability to the

value of his interest in his. vessel. At pages 414-17. Mr.

Justice Frankfurter reviewed the 1936 amendments to the

Act, quoted at length from the Congressional hearings

and from eartier kecisions as to its purpose and said:

“The heart of his system is a ‘concursus of ‘all

claims té ensure the prompt ‘and economical disposi-

tion of controversies : wlrich there are often a mul-

titude of chaimants’* (pt 419). ; :

In Harttord alecident and Indemnity Co. v. Southern

Pacific Co., ver U. S. 207, Mr. Chief Justice Taft:

emphasized the impokance of a concursus and said:

‘The procee ding partakes ina way of the features .

of a bill toe njoin a multiplicity of suits, a bill in the

nature of an interpleader, and a creditors bill. -It

looks to a complete and -just disposition of a many

cornered conttoversy,’* * °° °°. (p. 216). :

_ In Butler v. Boston Steamship Co., 130 U.S. 527,

Mr. Justice Bradley, who probably had more to-do with the

¢arly-delineation of the meaning of the Act than any other

wustice of the. Court, referred t

“The beneficent object of the law ill one the

ship owner to bring all parties into concourse who —

have claims arising out of the disaster or loss, and

thus to — A multiplicity of actions, oe

(p. 2

In Prosideace @N.Y.8. S:Co. v. Hill Mfaq. o.. “supra,

109 CLS. 578, Mr. Justige Bradley earlier wrote: a

‘*The inconveniences that may arise from prevent- ,

ing or arresting the prosecution of separate suits

aa aw

. by the claimants are no greater in this case than in -

the case where proceedings at law are arrested for

the purpose of having an investigation in a court of.

equity; or where distinct and ‘separate suits are

restrained for the purpose. of settling a common

| controversy in a single proceeding, as in the case of

bills for preventing a multiplicity of suits, and in.

eases of bankruptey’’ (p. 596).

See also The Sc eel supra, 105 U.S. 24, 33; Ex parte.

Slayton, 105 U. S. 451, 452; and Just v. Chambers, supra,

312 U.S. 883, 385-6.- ~ ’

There are five pia, ‘in which the shipowner may

invoke the Act without an ‘‘inadequate fund”

(1) where there is no liability:

(2) where there Is liabality without limitation ;

(3) where there is liability with the right to limit but

nothing of ‘value remains of the vessel and there is no

freight or passage money ; 7

(4) where there is liability with the right to limit but

the fund exceeds the proved claims, and aa

(5) where, as in this case, after the filing of the petition

and. the claims it is made to appear that the claims are

less than the value of petitioner’s inter ‘est in the vessel.

As shown below, in the first four. situations it is estab;

lished that the courts will take jurisdiction of the limitation

proceeding although there is no need for a concourse to

distribute an inadequate fund.

1. No | Liability.

Supreme ¢ ‘ourt Admiralty Rule 53 expressly prov ides

that the petitioner shall be at liberty to contest his la-

bility—as appellant does here (R. 4). The shipowner’s

detiial of liability does not ‘divest the Court of. jurisdiction.

In Butler v. Boston SS. Pa. ‘supra, 4 30. U. 927, Mr. Jus-_

tice Bradley wrote: |

‘*\jlegations that the owners themselves were in

fault cannot affect the jurisdiction of the court to

entertain a cause of limited Ji: thility, for that is one

of the princtpal issues to be tried in such a cause”

(p. 592; italies ours). :

Obviously if the petitioner may contest his liability it

is possible that there may -be no liability and therefore no

oceasion tO distribute any fund, adequate or inadequate.

‘Nevertheless petitioner ean compel the claimants to come

into concourse for.a determination of the question of lia-

hility in a single proeceding. ° |

In Hartford Accident and Indemnity Co. v. Southern.

Pacific Co., supra, 273 U.S. 207, this-Court stated. - order

of proof at the trial of a limitation proce eding, viz.:

«he * it shall be determined, first, whether the .

owner and hijs vessel are liable at all: second, whether

the ownersmay avoid'all hability except that of the

vessel and pending freight; third, what the amount

of the just claims are, and, fourth, how the fund in’

_- court should be divided between claimants*’ (p. 215).

Inasmueh-as there may be no liability, it is quite possible

that the claimanis may: be turned aWay without the distri-

bution of any fund. Yet they will have, been compelled to

come into concourse;on the question of liability. Plainly,

‘therefore, this is one situation where the’ existence of an

inadequate fund is not essential to the Gourt*s jurisdiction.

There is no need to determine ‘4what the amount of the.

just claims are’* until after the question of liability has

heen decided, | “iF

2. ‘No Limitation.

The District Court, having tried the case and held that

the petitioner is liable without limitation, not only hgs‘the -

power but the duty to keep jurisdiction and settle the cou-

hee in its entirety. Hartford Accident Co.v. Souther

Pacific Co., supra, 273 U.S. 207; Just v. Chambers, 312 U.S.

383 ; Spencer Kellogg Co. v. Hicks, 285 v. S. 2. j

This; therefore, is ieceitine ‘situation which shows that -

‘an inadequate fund is not necessary to a CONCUTSUS. .

3. No aia:

In cre idence & N. Y.S. 8. Co. v. Hill Mfg. Co., supra,

109 U. S. 578, this Court assumed a situation where the

_ vessel was totally lost and there was no freight ‘money

i.e,, no fund at all, and censidered whether a petition would

lie on those facts. The argument was that no petition

would lie because, there being no fund, ‘the vessel owner

had no need ‘to bring the claimants into concourse to dis-

tribute it. This Court held that nevertheless a_ petition

would lie.

To like effect, in Petition of Wood, 124 F. Supp. 540;

the petition alleged that the vessel was a total loss and

that there was no pending freight “or. any limitation

.tund. A motion was made to dismiss the petitiou, or in the -

‘alternative to allow the claimants to pursue their common

law remedies, because there was no fund for distribution.

Judge Goddard denied the motion, holding that the exist- |

ence of an inadequate fund is not a prerequisite to the

maintenance .of a imitation proceeding.

4. Adequate Fund.

_ - Where, after trial, petitioner is held liable and is granted: -

the right of limitation but the proved claims are less than

the fund, the petition is not dismissed; rather the claimants |

are paid in, full and the balance is. repaid to’ the petitioner. -

Briggs v. Day, 21 Fed. 727. |

The foregoing review of. the possible situations: abun-

dantly establishes that-limitation petitions may not prop-

erly be restricted to the situations where the fund is not

sufficient. Jurisdiction has been taken and retained: in

-four of the possible situations _where there is not an

inadequate fund. The same reasons, exist for retaining

jurisdiction in this case because of the eleven claims aris- -

ing out of.the one collision and sinking., The similarity of

the limitation, procedure to the Bills of Peace in equity

to prevent’ multiplicity of*actions in striking and has not

‘been ignored. > See Chafee, Bills of Peace With Multiple

Parties, 45 Harv. L. Rev. 1297, 1312 (1932).. Hartford.

Accident. Co. v. Southern Pacific Co., 273 U.S: 207, 216;

Providence. & N. -. S. S. Co. #. Hill Mito. o. 1909 UT.

O78, 096. a ;

The liberal third party practice under the Supreme

Court Admiralty -Rule 56 also looks to the disposition of

many. claims in one action. Munson Inland Lings Inc. v.

Insurance Co, of North America, 36-F. 2d 269 (S. D: N.-Y.

1929); British’ Transport Comm’s ‘¥. United, States, 230

KY. 2d 139 (4th Cir.) cert. granted 352 Uy S. 821, No. 247:

seo Note 66, Yale i. J. 124 (1956). Concursus has only been

denied by the Second Cireuit.and the rule” there is now

discussed, (0. , ; a

« as .

Second Circuit Cases. :

The Court below retied prinvipally upon its own decision

in Petition of Texas Co., 212 F. 2a 479, CL X. 2, cert. den.

B48 U.S. 829. In that ease the claims originally made

exceeded the fund but, as In the case at bar, the claimants

in concert reduced their claims to an aggregate less than

the fund for the ‘transparent purpose of avoiding the

. Jimitation proceeding. The Court -held that a limitation.

‘proceeding cau be eee only where there is need to

distribute an inadequate fund.

The Court put considerable emphasis on the prov ision

-in Title 46, U: S. Code, * Section 184 that the owner of the

. vessel, may fake appropr iate preceenimgs ‘for the pur-

pose of apportioning the sum’’ te. the fund, among the

parties: entitled thereto. Section..184 has remained un-

touched since 1877. However, Section 185 of Title 46,

U.S. Code was amended in 1936 and provides ‘that

. “The vessel owner, within six months after a

: elaimant shall have given to or filed with such owner

written notice of claim, may petition a district court

of the United States of competent jurisdiction for a

limitation of lability within the provisions of this

chapter * * *.°’ eo

Nothing is said in Section 185, as amended in 1936,

about apportioning any fund. But the significance at-

tached by the Court to the words of Section 184 was mis-

placed because Section 185 permits the filing of a petition

where there has been,uo more than written notice. of one

claim, and there is no- -requirement that that claim, or the .

aggregate of the potential claims, exceed the prospective

limitation fund. |

in view of the six, months’ requirement.of Section 185

the Second Cireuit!s ‘rule’’ could easily deprive a ship-

owner, otherwise entitled, of the henefit of the statute.

Suppose a disaster involving numerous injuries and‘losses

of ‘life, that two claims are filed immediately, but that,

‘deliberately or otherwise, the others are withheld until

more than six months haye gone by. If the two claims are

Jess than the fund a proceeding for limitation brought with.

in the six months might be dismissed. On the other hand,

Mo .proceeding brought after the’ passage of six months

could be sustained heeause of the provisions of Section 18).

99 seit es ;

—

The great bulk of authorities on the question does not

seem to Have had the Court's attention in Petition of

Teras Co. The Court seine four vases to support its view.

Curtis esd Towing Co. v. Tug Kevin Moran, Inc., 159 ¥.

2d 273, C. C. A. 2; Petition of Moran Trans. Corp:, 185

FP. 2d 386 : “A. 2 Petition of Red Star Barge Line, Inc.,

160 FY. 2d 486, C. C. A. 2 and The Aquitania, 14 FL 2d 456,

aff'd 20 BF. 2d 457 ©. C. AL 2. pe: ?

Two of these cases, Petition of Moran Trans. Corp.

and Petition of Red Steuer Barge Line, Tne. were cases

where enly one possible claim was involved. Single claim

‘ases seem to have little bearing-on a case such as this

W arsine 11 claims were filed. Such cases are discussed infra,

pages 2-27. o ot

Cea Bay Towing Co. v.. Tug Kevin Moran, Inc. and

The. Aquitania may be discussed together because both.

involved situations, decidedly - different from the present”

one, where it was apparent when the petition was. filed.

‘that the aggregate of the claims could not even approach

the amount of the fund and where it might be said that the ©

petitions were improvidently filed, possibly not in good faith.

ih the Curtis Bay case the value .of the petitioner’s tug.

. the fund, was $209,000, yet when the petition was filed

six months jJater the amount of the damage Was known

‘and it was apparent that it did not. exceed $17,000. Mean»

time suits had been-hegun in Pennsylvania and it seems

to be suggested in the opinion ‘that the petition may. have

heen filed as mueh te bring the litigation to New York as

for anv other purpose: The Court by L. Hand, C. F.,

stated the position: for whieh we contend, rz.

“Tt is true that linjitation’ proceedings are not

merely auxiliaries to the distribution of an made-

quate fund among a number of claimants" (p.2 75)

but, velying: solely upon “The Aquitaria, éind mcs

without reviewing the great hody of authority to the con-

trary, directed that the restraining order. be va eated.

. Fhe Aquitania*first came before A, N. Hand, then D. J.,

on a motion to dismiss where the moving parties were less

inhibited in- stating their ground than were the .meving

parties in:the Curtis Bay case, te. ‘“that -the limitation

procérding is not taken in good faith, -hecause there ean -°

he no possible occasion for limiting liability .when the

claims are so far less than the property to be surr ‘endered”’

«p. 457). The Aquitaniahad sunk a fishing-boat about the

@ize-of one of hey own life’ boats. Her owner - filed an .

giiterin stipulation. in the amount of $9,225,000. ‘Action€ :

for the deaths of five men who were the crew, of the fishing

. boat had been br ought in the ag ‘eyegate amount of $205,000.

Judgé Hand considered it signifi: int that the surety on the

. interim stipulation had been allowed ‘by the Federal Tyeas-

ury and the State Insurance Department to furnish a bond.

in the amount .of $9,225,000 upon the assurance that the

habihty did- not exeeed $311,000. In this case some, but

by no meafis all, of the carlier autliorities were referred.to

and. the Judge, despite the tremendous disparity between

the fund and.the aggregate of the claims, refused to grani

the motion beeause the petition was in’ proper form ‘and

the matter relied upon could be set up hy answer. How-

ever, he referred the matter to-a special commissioner to: -

determine \ hether the claims could possibly equal the fund.

~The commissioner reported that the claims-could not ~

exceed $210,000 whereupon the Court’ reaffirmed its earlier”

view that the statitte applies, angl it is proper to file a peti-

tion, only where theresis at least: some chance that the.

claims will exceed’ the fund. Petition of Cunard S.'S. Co.

. Ltd., 17 F. 24 120. .On appealethe Court affirmed on the

xame ground. The Aquitania, 20 PF. 2d toi; ©. C. rie Mg

Reflection will make it clear that The Aquitania and the

‘Curtis Bay eases represent a rule not applicable here, In

hoth ¢ cases the propriety of the petition was attacked at the

threshold by motion te determine whether the ‘petitions —

“had been filed in good faith. The rule for’ ‘which arom

ae | 2

cases stand may perhaps be stated tttus: Where the peti-

tioner at the time of ‘filing the petition. knows that the

aggregate of all.claims cannot possibly equal the value

of his interest in the vessel, it will be considered ‘that he

does not file in good faith and jurisdiction does not attach.

That is a vastly different situation front the one at bar

where there can be no’ doubt that.the petitioner in good

faith feared that thee ‘aims would execed the fund. Perhaps

-in the last analysis it can be said that the attaching of-

jurisdiction: depends upon whether or not petitioner secks

‘the benefit of the statute in good faith. If he does not, i.e.

if it is reasonably apparent when the petition is filed that

the claims cannot exceed the fund, jurisdiction never at-

—taches but if, when the: petition is filed, petitioner reason-

ably and in good faith fears that the aggregate of the

claims will exceed the fund, jurisdiction does attach and,

onee attaching, persists until. the entire controve ersy” has

heen disposed -of. Any ; -other result would place the)

Court's jurisdiction at the whim of ‘the claimant’s attor-

neys, an unseemly situation. . The claimants here, by con-

cert, have arbitrarily reduced their claims to just below

the maximum limitation fund for the’ purpos of depriving

the’ Admiralty: Court. of jurisdiction: in fact the stipula-

tion reducing the claims was presented (and obviously

procured) by respondent’s attorney. Such maneuvering _

was not allowed in Petition of Boraks, 142 F. Supp. 364.

This is substantialty - the rule in ‘the diversity cases.

In St. Paul Mercury Indemnity Co. v. Red Cab Company,

rating 303 U. S. 283, this Court square! held that if the.

aim of jurisdictional amount ix sfapparently made. in.

pst faith’? and not ‘eolorable for the purpose of con-

ferring. jurisdiction’’, the amount stated in the complaint

‘is conclusive and «“Eyents oveurring subsequent to the

-institution of suit which reduce the amount recoverable

helow the statutory limit do not oust jurisdiction’’ (pp.

288-90). This is a reasonable and workable rule and ‘is

consistent with all Sie author ities from Norwi ich Company

Ww right, supra, 13 W all: 104, decided in 1872, down to

Petition of Teras Company. supra, 213 F.2d 479, decided

in 1954. |

In ee ich Company v.. Wright, supra, 13 Wall. 104,

this ¢ ‘ourt held that it was enough that it was @ 0

eee

. the damage to “the schooner, and her cargo, together

with the damage arising from the loss of the steam-

er’s cargo, vreatly exceeds the value of the steamer

'. and her freight fer the voyage’’ (p. ie.

> In-The Scotland, supra, 105 i 8. &, ig Court held:

that the. rules were intended to iced th® filing of a

_ limitation petition ‘‘where they fshipowners |] were entitled,

or conceived themselves entitled, to the law of limited re-

sponsibility’ (De 33; Italies ones).

. Single Claim Cases.

alleged by the libellants [ petitioner s} that

Cases atv only one claim, where :no i elaimtie

is reasonably possible, are something of an exeeption to the

general rule. Even as to such” eases, where’ there is ne

‘need for concourse because there is only one claim. the he

ix no doubt whatever that a limitation: proceeding may be

brought and will be sustained. White vo Island Transporta-

tion Company, 233 U.S. 346. .

-The only real difference be ‘tween | single claim cases and

multiple ‘claim cases is that in the former the claimant may.

iu, the diseretion of the Court, be allowed to proceed (to

establish liability and the amouiit of his elaim outside tlic

limitation proceeding provided he coneedes the vesse!

owner's. right . limitation of liability. In Lanaues’ v:.

Green, 282 U. 931, Green sued Langnes in the. State

Court to recover for leies sustained on the latter's.

vessel. On the eve of trial Langnes hegun a limitation

~ proceeding and the Distriet Court issned a an order restrain.

ing the prosecution’ of the State Court action. Green .

moved to dissqlve the restraining order on thé ground that

the State Court had jurisdiction because there was only

one possible claim. This motion was denied and the limita-.

ion proceeding went to trial. The Court held that there

was no liability\and did rot!reach thé question of the right

limitation of liability. | 'Gireen appealed; the Circuit '

‘ volt reversed and directed the District. Court. to dismiss

the. jimitation p oceeding for want. of jurisdiction. This

Court dealt. prjmarily with Green’s claim that: the ship-

..owner should have sought his limitation by proper pleading

in the State Court action because there was only one claim.

This: Court questioned ehether the petition had been

jiled in good faith because, in view of the nature of the acci-

dent, it seemed that there could not possibly bé any other.

claimant (p. 540)... Nevertheless the Court héld that the

vessel owner was, entitled to invoke the limitation-act and

thatthe juestion whether the action at law. should be

allowed to proceed was one! of sound judicial diseretion

and not a. matter of right on the aud of the single claim-

ant (pp. 540-1). | :

The. Court remanded the case with directions to die

‘Green to procéed with the State Court action upon condi- |

tio that he concede. Langnes’ right to limitation, ‘Upon

the .refnand Green refused to conéede+ Langnes’ right to

limit and-,the Distriet Court réfused to modify the re-

_ straining order. "Thereupon Green moved in this Court for

leave to- fileca petition for writ of mandamus against the

District Court to show.cause why he should not be allowed

to proceed in the State Court: Er parte Green, 286 U.S.

437. This Court maintained its. earlier view, held that the

District: € ‘ourt was right.in refusing to vacate the restrain-

+5 ing’ order: w hile the right to limitation of habilty was in

issue, and ‘denied Green’ s motion. The. Court said:

“It is clear from our opinion that the State Court

- has no jurisdiction to determine the question of the

6 »

owner’s right to a limited liability,.and that if the

value of the vessel be not accepted-as the limit of the

owner’s liability, the Federal Court is authorized to

resume jurisdiction and dispose of the whole case

(pp. 489-440, italics ours).

There is nothing in Langnes v. Green, or the single

claim cases that folow it, that conflicts with the points

previously made in this brief. .

The fundamental -distinetion between the single claim -

and the multiple claim:cases is that no concourse is. neces-

sary to avoid a multiplicity of trials either on the question

of liability or on the question of limitation. Obviously’

‘there is no analogy between the single claim case and this,

“one where there are eleven claimants either in or tr ying to

get out of the limitation proceeding.’ -Concursus here is re-

quired,

IV..The claims in ‘this proceeding exceed the

amount of the possible fund and. petitioner is entitled

_. to.a concursus for their disposition.

J ao

There is no‘ doubt that where the claims number more

than one and exceed the limitation-furid petitioner has an

absglute right under the statute and. decisions of all courts

to bri ings all claims against it into concourse so that: si

Admiralty Court may, if liability is decreed, distribute

inadequate fund. Even the ‘‘rule’’ evolved in the Secon "

(‘ireuit requires that the aggregate of claims must be sup-

stantially less than .the fund: before the. restraining order

will be relaxed. Petition of Trinidad 4 ‘orporation, 229 F.

Id 423 (2a: Cir.); George J ‘Waldic. Towing Co: ¥. Ricca,

227 F. 2d 900 (2d Cir.); Petition of Texas Company, 213

F. 2d 479 (2d Cir.); Curtis Bay Touring Co. v. Tug Kevin

Moran Inc., 159 F. 2d 273 (2d Cir.) ; Petition of Moran:

Fransportation Corp., 185 F. 2d 386 (2d Cir.). as

28 -

In Petition of. Trinidad Corporation. the claims were

less than the fund but not by a margin large -enough to

wsatisl'y the. Court and it refused té relax the restraining

order, Mer toe

In this proeéeding the claims ¢ aggregate $259, 525. But

it cannot be said whether: the amount'of the limitation fund

will be $118,500 (tug’s value) or. $165,000 ¢barge’s value)

or $283,000 (value cf both). until. after there has been) a

trial on the merits for this reason: Petitioner owned both

tug and barge, valued at $118,500 and $165,000 respectively. :

The limitation fund will consist-of the value of only ‘the,

vessel or vessels individually at fault ix rem. Liverpool ete.

i ‘Co. x. Brooklyn Eastern ‘District Terminal, 251: U.S.

; The Pransfe No. 21, 248 Fed. 459 (2 Cir. ys Standard |

Die dging Co. v. Kristiansen, 67 F. 2d 548 (2 Cir.), cer-

tiorari denied 200 - S. 704; Harbor Towing Corp. v. Atlan.

He Mutual Ins. Co., 189 F.2d 409 (4 Cir. ). i ae

The. im rem Bes ofa veasil can only be determined

by an admfr alty court. Southern Pacific Co. v. Jensen, 244

U. 8. 203; Knickerbocker Ice.Co. v. Stew ‘art, 253 U.S. 149;

The Moses Tailor, 4 Wall. (71 VU. B,): 411: The Hine v.

Trevor, 4-Wall. (71 U.S.) 555; The Glide, 167 U.S. 606;

Red Crass ‘Line vy. Mlantic Fruit “ 0., 264.0. S109.

Since-the amount of the fund eannot he determined until

after trial ittis not pr esently possible to say that the fund

“will. exceed. the claints and that no coucourse will be neces- .

sary. to distriinite an inadequate, fund. Obviously, there-

fore, the decision ,allowing respondent to proceed in the

state court isa coniplete de -parture- even from the ‘tule’

recently evolved in the Second Cireuit.. -

| ‘

Lt iS no answer to say that the claims as against the

iug have been reduced to an aggregate less than her value

and the claims against. the barge similarly reduced. By — .

_ _apportianing her claim as hetween tug and barge respond-

¢ ° ent does no more than engage not to claim the value of :

‘

*« & &

terest of such owner inssuch vessel * * *.°?. ey ser

- she has not sned ‘either; nor need -she, for. petitioner has °’

‘s

the -barge if the barge is held without fault, or the value |

of the tug if the tug is held blameless. Bat this is no coneces. .

‘sion whatever beeatise it.is settlhd law that if the barge Is

not. individually. at fault in rem. petitioner need rot sur-

render lier value; and similarly as to the tug (suprasp. 28).

Moreover, the statute deals with claims: against the

owner, not the vessels themselves. |

Section 183¢ (n). says that “The liability of the owner

shall not

*s 2

~execed the amount or value of the in-

* * 99 5

Section 184 says that the claimants ‘‘shafl receive com-

pensation fromthe owner’’ and that it is ‘the oguer of.the

vessel’ Wha ‘‘mayv t take appr opriate proceedings~in any

come nS. :

tion a district court * * * for limitation of liability ? (italics

ours). — | ; .

Since the’ statute so plainly deals with the habilbity

of the oiner, and the pwner's right to Hring proceedings

to’ limit that liability, it is patently idle to consider respond< .

ent’s engagenient not to collect any ultimate judgment from.

the barge if it i<held blameless, or from the tug if it is held

hiameless. She could egollect from neither im any event for

viven adequate bond to pay prov ed claims up to the value

of whichever one, or both, is to he the measure of its lia-

se hility—if such is decreed.

Claims which respondent asserts‘are against petitioner's.

inanimate property, tug and barge, are in truth and in fact

claims against petitioner itself,- the only juristic person

seeking limitation of Halility arising out of this collision.

The unde spn fact is that, whether allocated to the tug or

the barge, or any other — of petitioner's property,’ the

eleven claims areregate $259,500... If proved, they will he

“ane itter

50)

paid by pei ivioner out of its general funds 1 in amounts whieh

~ubstantially exceed - the amount at which the limitation

‘fund may be fixed. Therefore it cannot now be said that -

the fund will-be adequate, or that there will be no need to

. distribute an inadequate fund; hence, even under the Second

‘Circuit “rule", petitioner is entitled to assert its statutory

right in this proceeding and to hold respogdent and the

other claimiuts theréin for the disposition of the entire

‘

“A. This ae Proceeding Need Not Be ‘Regarded -

As If It Were Two.

The foundation upon which the degision of the majority

below rests is that they ‘‘must’’ regard this single proceed-

ing as if it were two-(R. 61). The language of the statute,

Title 46 U. S..Code §§ 183-188, does not impose the con-

straint felt by the majority and its opinion does not rely

upon the statute. The same is true of the Supreme Court

Rules, Admiralty Rules 51-54, Title 28°U. S. Code, Rules,

which spell out the procedure with considerable particn-

larity:, The majority opinion does. not rely upon: the rules,

> The decision of the majority is unprecedented. No prior

decision. -imposes the constraint. felt by the majority and —

it cites none. There are numerous cases in which the courts

havé dealt with: limitation petitions by the owncr of two or

- more vessels without feeling any constraint or embarrass-_

ment because separate petitions -could have ‘been filed.

And this is true both in™tases where the value of the sec-

ond vessel has not been surrendered “originally as well

as in cases where securjty has. been given. for the seconil

vessel but she has not been held liable. United States v.

The Australia Star.°172 F. 2d 472 (2 Cir.); Standard.

Dredging Cow. Kristiansen, 67 F. 24 548 (2 Cir.) ; The

Transfér No. 21, 248 Fed. 459 (2 Cir.); The Bordentown,

40 Fed. 682 (S. D. N. Y.); The Captain Jack, 169 Fed, 455

(D. CL Conn.) : The Alvah H. Boushell, 38 F.2d 890 (4.

‘

Cir.) ; Thompson Toiwing & Wrecking Ass'n v. Metiregor,

207 Fed. 209 (6 Cir.) ; The Columbia, 73 Fed. 226 (9 Cir.).

Moreover; where the owner of two vessels has sought to

obtain limitation but surrendered fhe value of only one,

and where, after trial, the courts have found that faults-of-

hoth contributed, they have not, in any instance we can

find, directed that a s¢parate pr oceeding be begun. On

the contrary, they have cither ordered that the value of the

second vessel be brought-into the pending, single proceed-

ing, United States v. Australia Star, supra, 172 F.2d 472

pegasus Alvah I. Boushell, supra, 38 F. 2d 890

(4 Cir.), or they have dismissed the proceeding’ entirely.

The San ea 141 Fed. 270 (9 Cir:).

The reason advaneed by the majority for ’ feeling the

constraint upon, which its -decision is’ based is’ that. the

owner ‘‘eould have” eoaiden, Seabee proceedings im

respect of each vessel, from which it concludes that ‘¢The

owner ean not enlarge -its rights under the’ statute by

the mere expedient of coupling the two proceedings’’ (R.

61). The worst that can be ‘said: for petitioner’s position

is that it had the option to begin.a single, or two, proceed-

ings. It exercised its option and began one. That was the

chain right under the statute and the rules and

such advantages as it may gain from the exercise of its right

‘an not justly be taken away. But there is no ) question of -

any enlargement of” petitioner’s, rights. .-It has. the un-

questioned right under the stagitte to petition for litnita-

tion of ‘liability and it seeks, if held liable ‘at all, only

to do what the statute permits, it to do ina proper case,

viz.-limit its liability to the value of its interest in the vessel

or, vessels at fault, A solution of the problem is not ad-

vaqee by referring ta the filing of a Single petition as a

‘mere éxpedient”’ zs |

W ithout, computsion by statute, rule or precedent, and

with the slenderest-of reasons, ‘the majority below has laid

-. to the lower courts. Uniformly and over-a per iod of 75

—

*.. 20

down a rule.that will largely emasculate the statute where

two or-more vessels of single: ownership are involved.

The majority's approach to statutory construction is dia-

metrically contrary to the instructions given by this Court |

years the Court has declared that the statute is to.be con-

-strued liberally and not ‘gqudgingly for the benefit-of-ship-———

owners. Norwich C pinaeone Se . Wright, 13 Wall 104, 121;

Providence & N.Y. S. S. @o. v. Hill Mfg. Co., 109 U.S.

978, 588-9; Butler v: Boston. Stenmship Co., 130 U. S.

* 527, 550-1; Hartford Accident Cot ve Southern Pacific

Co., 203 UL S. 207, 214-16; Flink v. Paladin 279 U.S. 59,

62-3; Larsen v. Northland Transportation. Co., .292 U.S.

20, 24; Just v. Chambers, 312 U. S. 383, 385; Coryell v.

Phipps, 317 U.S. 406, 411; Maryland Casnalty Co. v. Cush-

ing, 847 US. 409, 414. : 7

This Court has_held that the statute itself is waly' an

outline of the plan intended by Congress for the benefit

‘of shipowners and that its full breadth and scope were .

(eft to be prescribed by’ judicial authority. Providence —

\&@ N.Y. S. 8S. Co. v. Hill Mfg. Co., supra, 109 Ut S. 578,

590. And this Court has, over the span of almost a century,,

-consistently adopted a broad rather than a restrictive in

“terpretation of the statute. ‘As the Court pointed out in

Butler v. Boston Steamship Co., supra, 130 U.S. 527, 550,"

it was at first contended that,the Act did not apply to col-

‘lisions but this ‘‘pretence’’swas rejected in Norwich Com-

pany v. Wright, 13 Wall 104; and it wés next insisted that

the: Aet did not extend to loss by fire, but’ this restric-

tive view was rejected in Providence & N..¥. 8. 8. Co. v.-

Hill Mfq. Co., 109 U. S. 578. In the Butler case the claim

was that the Aet did not extend to claims for personal

. injury and death, but again the Court rejected the narrow

construction. In 1881 the Court held that, althowgh the

Act did not.so provide expressly, it conld be invoked by‘ |

a British shipowner in the case.of a collision on the high —

seas between his vessel and an Ametican vessel. The Scot-

land, 105 U.S. 24. Years later the'Court held that the Act

could be invoked by ‘a British shipowner in respect of. a

“ disaster suffered by a British ship on the high seas where

no American vessel was involved, although the Court had> —

many times said in eariicr years that the principal. purpose

—--ef the Aetavas-té put American shipowners oma parity with

~ foreign shipowners. The Titanic, 233 U.S. 718. Indeed,

his.Court has long since construed the Act so broadly as

2 hold that it is not limited to maritime torts, Rachardsou

. Harmon, 222 U.S. 96, and that it may be’availed of by

one who is only a stockholder of a corporate re

Plink v. Paladini, 279 U.S. 58.

B. The eel of Respondent’s State Court Action |

Would Violate the Admiralty Court’s Exclusive Juris-

diction of All Questions semaines’ Limitation of

Liability. :

. The Admiralty Court has exclusive jurisdiction of all

questions’ affecting’ limitation of liability:. Providence &

Na¥.S.S.Co.v. Hill Mfg. Co.,.109 U. S. 578; Ln. re Morrison,

dent and Indemnity Company v. Souther Pacific Co., supra,

273-0. 8. 207. -And this is‘ true’ although, in single claim

| Cases, or cases Where the fund will exceed the claims, ques-

tions of liability aid amount of damages may be determined

“in other Courts. Langnes v. Green, 282 U.S. 531; Ex Parte

(rreen, 286 U. S. 487; Petition of Red Star Barge Lane,

160 F. 2d 436 (C. C. A. 2); Petition of Texas Company,

213 F.2d 479 (C. A a: 2) 3 Petition of Trinidad Corporation,

supra, 229 F. 2d 49: > (2 Cir.) "George JOW aldic Towing

Co. v. Ricca, supra, 297 F. 2d 900, 901 (2 Cir. Ss

The amount of the ieaitialion fund aI is at the

very heart of limitation aid is a matter exclusively for the

Admiralty Court. In Petition of Red Star Barge Line,

supra, 160 F, 2d 436 (2 Cir.), the sole claimant in the limi-

147. U.S. 14; The San Pedro, 223 U. S965; Hartford Acci- .

. e

tation proceeding was permitted to proceed with her action

at law only after shé had conceded, -among other things,

the correctness of the amount of the limitation fund’ as

claimed by petitioner, i.e.-she was not allowed to litigate .

the amount of the fund outside. the limitation proceeding.

To the same effect are W. E. Hedger Transp.Corp: v.

Gallotta, 145 F. 2d 870, 872 (2 Cir.); The Norco, 66 F. 2d

- 651, 652 (9 Cir.) ; Petition of McAllister Bros., 96 F. Supp.

575, 576 (EB. D. N. Y.}; The Kearney, 3 F. Supp. 718, 720-1

'(E. D.N. Y.). Pose |

‘Here the District Court thought that the Ulster County

jury could ‘‘spell out the precise liability that may. be im-

_ posed with respect-to each vessel’’ (137 F. Supp. 311 at 313).

But this would be to allow the jury to determine whether the

‘Statutory ‘‘vessel’’ was the tug alone, or the barge alone,

or both, and so to fix the-xalue of petitioner’s interest in.

‘the *‘vessel’*) As the casé¥* just cited show, this is’ so

much a part of the shipowner’s statutory right as to fal!

within the exclusive provinee of the Admiralty Court.

Franksand Clark, C. JJ., say. (R: 61-2) that the State

Court suit will not interfere with the exclusive ;admiralty®

jurisdiction because there can he no ‘effective determina: ¢

tion by the state court of the value of either vessel.’’ But.

this observation wholly misses the point. It is not a mat-

ier of fixing the dollar vatue of tug and barge but a inat-

ter of determining their liabilities. On the District Court's

hypothesis the State Court will determine whether . pets-

tioner’s liability affses from the fault of the tug, or the

barge,or both. If such determination is binding it will- fix,

is between petitioner and respondent, the amount of peti-

‘tioner’s. limitation fund because that fund is measured

.. by the yardstick of liability of tug or barge or both. But

the eases cited last above demonstrate, and the majority

do not deny, that only the Admiralty Court has jurisdiction |

_ to fix the amount of the fund. Since the State Court eannot

. . bind the Admiralty Court because the latter has exclusive -

[#)

& .

a tk * 85

¢ : : e

jurisdiction to determine the ‘amount of the fund jt neces-

sarily follows that the whole State Court action must be

nugatory.

Respondent has, as requir ed, stipulated that she “waives -

any elaim of res judicata relevant to the issue ‘of limited

liability ’’ (R..54). Therefore, any verdict in‘ the ‘Ulster | ~

County action purporting to determine the liability of either .

tug-or barge, or fix its value, is not binding and those ques-.

tions will have to be litigated again in the Admiralty Court.

Furthermore, so much of the.verdict ag fixes the amount

of appellee’s damages’ will be void as to the other claimants ...

_—+ta the find because they are ‘not parties to the Ulster

County action, yet they have a ‘right to contest with appel-

lec, and with each other, all questions of quantum of dam-

age. Petition of Trinidad Corporation, supra, 229 F.

2d 423, 428 (2 Cir. ).- The other claimants in this proceed-

~ ingshave not signed stipulations as were required of ather:,

claimants insPetition of: ‘Trinidad Corporation, supra (R.

47-50). ;

The procedure of spovial verdict visualized by the Die:

trict Judge would create such inscrutable problems as to

ly avoided at almost any cost. Suppose the jury: were: to

hold both tug and barge, fix their aggregate value at,

$283,000, and fix appelleé’s damages at $250,000. But sup-_,

pose also that ai the limitation proceeding the Admiralty

Court, finding only the tug at fault, ‘enters a déeree allow-

ing’ petitioner to linwt its liability to the tug’ S value, $118,000.

Which result prevails; what then ‘is the limit of petitioner’s

‘liability? | The Admiralty Court will then fix the tug’s

value as the limitation fund and perpetually enjoin all per-

sons, including 1 respondent, from proceeding against peti-

tioner otherwise. than against that fund. The State Court’s

decision that lrability flows from some fault in respect of the

barge as w ell, and its judgment for more than. the amount,

_ her at $118,000, but in the limitation proceeding th

Court holds both tug and barge. Petitioner has not Waived:

: ee oe

cannot porsthly stand. The statute expressly provides that,

where lack of privity or knowle dge is established, the. tia:

bility of the owne rg! shall not * * * exeeed the amount or

value of the interest of such owner in such vessel’*, Title

-46-U. S. Code § 183(a). But if the jury. finds liability on

, the part of Wh tug and barge and awards the $250,000

claimed, respondent will seek to issue execution on the judg-

ment against petitioner’s bank accounts.. Unless enjoined

this will- certainly result in petitioner’s payirtg more than

the value of its interest in the tug. held at faul

Admiralty Court, _thus nullifying the statute.

Suppose the Ulster jury holds omy the tug.

any right to claim res judicata as to the decisions of the

State Court—and it does.not. In this situation the-Federal |

Court fund would be $283,000. The other claimants would

* collect a maximum. of $9,525 and petitioner would have. to

pay responderit onl¥ $118,000 although her damages are

"7 50,000 and there remained a hits im the Admiralty

Court fund. fis

” For a third. possibility,” suppose ie Adivalty Court:

‘holds petitioner not liable but the State. Court finds lia-

—ratés a perpet aal restraining order forbidding the prose-

bility. Upona finding of no liability the Admiralty Court.

will enter the usual decree of exoneration which incorpo-

cution’ of atiy and all claims against petitioner arising out

of this ineident. Either this would prevent respondent

s. from collecting any judgment entered on the State Court’s

finding of liability, rendering ‘the whole State Court- pro-

ceedings fruitless, or, if the State. Court judgment were

collected it would he,in contempt of the®. ‘Admiralty Court’s

decree and in violation of the mandate of the limitation

statute. iia oe

The majority of the panel say that this possibility ‘will

present no diffieulty’’ (R. 62). To petitioner the difficulty

seems insuperable. , .

by the

. The dissenting judge (Hincks, Js) “recognized the

fruitless result of allowing pce s State Court action -

to ‘ng te After examining the possible results: in the

State Court he said:

“T ‘hus consjdered the disposition of the court, in

my ‘view, subjeets.the parties to the labor.and ex-

pense of litigation which may prove to be wholly

fruitless and nugatory.

That such may prove to: be. the result, I. think,

is more than.a remote possibility. For that result

will follow unless in the state court: trial the judge

shall | require the jury find specially whether the.

plaintiff’ s injury (if caused by the owner's negli-

* gence) was caused by negligence 'i in its conduct of the

tug or by negligence in the barge. * * *. In my

opinion, it is by no means unlikely that the judge

would refuse a request to require special findings _

on the grounds that the request if granted would

inject into the case an additional issue thé solution

of which is-not essential to the decision of the case

under the law of the state. * * *

| deprecate -sanction for a. procedure whereby

indivisible causes vf actions and indivisible liabilities.

may be split and their respective fragments -may

he litigated i in bir pr oceedings"” (R. 67).

Even in the single hin cases, where no conconrse is

needed because there is only one claim, the Slaimant is not

entitled, as of right, to try the issue ‘of liability in the State.

Court. Even there it is discretionary with the Admiralty

| Court whether or not ‘to modify the restraining order.

Langnes v. Green, supra, 283 U. S: 531, and Ex parte

Green, supra, 286 U. S. 437. Even if, in the ease at bar,

petitioner were not entitled to a concourse as of right, the

court should have exercised its sound judicial discretion

and refused to modify the restraining order hecause there

‘are.eleven claimants against a fund that will be large

énough to pay all in full only if the barge, which was wholly

“under the control of the tug, should somehow be held at .

fault jointly with the tug. y

. Dated: ene York, N. Y., March 29, 1957.

sho , ‘

CONCLUSION

. For the reasons stated it is respectfully gubsnitped

that the judgment of the Court below should be re-

versed and the restraining sane reinstated.

EUGENE Unverwoot,

' 26 Broadway,

New York 4, N: Y.,

Counsel for Petitioner.

H. Barton WI uiaMs,

of Counsel.

° . . a , 39 J ° ; \ .

Appendix cea

The Limitation Statute as’ printed in, 71 le 46 U. s. C. A.

prov ides: ».

§ 183. Amount of liability; loss-of life or bodily injury;

ptivity imputed to owner; “seagoing vessel”. 7

‘(a) The liability of the owner of any vessel, whether

American or foreign, for any embezzlement, loss, or destruc-

tion by any person of any property, goods, or merchandise

shipped or put on board of such vessel, or for any loss, dam- . .

age, or injury by collision, or for any act, matter, or thing,

loss, damage, or forfeiture, done, occasioned, or " jeurred,

Without the privity or knqwledge of. such owner. or owners,

shall nap, except in the cases provided for in subsection (b)

of this Section, exceed the amount -or value of the’ interest

of such.owner in such v essel, and her freight then pending.

(b) In Gee- ‘case of any, seagoing vessel, if the amount of -

the owner’s liability -as limited under subsection ‘(a) is 1n-.

sufficient to pay all losses in full, and the portion of such

amount applicable to’ ‘the payment of losses. in respect. of °

loss of: life or bodily injury is less than $60 per ton of Such

vessel’s tonnage, such portion shall be increased to An

amount .equal to $60 per ton, to be av ailable only for the

payment of losses in respect of loss of life or bodily injury.

If such portion so increased is insufficient. to pay such losses

ini full, they shall be paid therefrom in pr oportion to uated

_vexpective amounts. ' ¢. ;

() es the purposes of this section the tonnage of 4

seagoing stean’ or motor vessel ‘shall be her gross tonnage

‘without deduction on account of engine room, and the ton-

nage of a seagoing sailing ‘vessel shall be her registered

tonnage: Provided, That there shall not be included-in such

tonnage any space occupied by seamen or P appr entices and. -

approptiated to their use,

ape aa

commence!

40.

(d) The owner of. any, such seagoing vessel shall , be

liable. in respect of loss of life or bodily injury arising on

distinet occasions to the. same extent as if. no other loss. of.

life or hodily injury had arisen.

(e) In respect of loss of life or bodily injury the privity

or knowledge of the master of a seagoing vessel er of the

super intendent or managing agent of the Owner thereof, at

or. prior to ‘the conimencement of each voyage, shall be’.

deemed conclusively the privity or knowledge of the owner

of such vessel. -

(f) As used in. subsections (b), (ec), (d) and (e) of this

section and in section 183b of this title, the term ‘seagoing

vessel’? shall not include pleasure yachts, tugs, towboats,

towing.vessels, tank vessels, fishing vessels or their tenders,

self-prepelled’ lighters, nondescript self-propelled vessels,

canal boats, scows, car floats, barges, lighters, or nonde-—

script mon- self- propelled vessels, even though the same may

be seagoing vessels within the meaning of such terms as.

used in section, 188 of this title. (As amended Aug. 29, 1935,

“6, 804, §1, 49 Stat. 960; June 5, 1936, ¢. 521; §1, 49

Stat, 1479. -

§ LR8b.- ~ Stipulations limiting time for filing > eal and

suit.

**(a) It s} all be unlawful for: the maneaet, . sient, 2

inaster, or ower of any sea-voing vessel (other-than tugs,

barges, fishing vessels and their tenders) . transporting

passengers or nyerchandise. or property. from. or between

ports of the U nited States and foreign ports to provide by...

rule, contract, regulation, or otherwise a shorter period for

-giving notice of, or filjng claims for loss of life, or ‘bodily =

injury, than six months, and for the institution 6f suits on:

such ckaims, than one year, such period for institution of

suits to-be computed from the day when the death or injury

oceurr ‘ed. :

vey,

e ®

(b) Failure to. give such notice, where lawfully pre-

scribed in such contract, shall not har any such claim—_

- (1) If the owner or master of the vessel. or his agent

had knowledge of the injury, damage, or loss and the court-

determines that the owner has not heen prejudiced by the

failure to give such notice; nor

(2) If the court excuses such Siibene on the ground that

for some satisfactory reason. such notice could not be given:

nor :

)

Pm °

(3)-Unless objection ‘to such failure is. raised by the

owner.” | ee cae. a oe

(ce) If a person who is entitled to recover on any such

‘* glaim is mentally incompetent or a minor, or if the action is. —

one for wrongful death, any lawful limitation of time pre- .

‘scribed in such contract shall not be applicable so long ax

-no legal representative has been appointed for such incom-

- petent, minor, or decedent’s estate, but shall be applicable .

from the date of the appointment of such legal representa-

tive: Provided, however, That such appaintment be made

within three years after the date of such —s ‘or ware:

(R. S. § 4288A, as added Aug. 29, 1935, . 804, 63; 49

Stat. 960. ae a 2 fe

ate | 1&Be. Stipulatioas limiting liability for negligence in-

valid. rang a | eek

It shall be unlawful for the inanager, agent, master or

owner of any vessel transporting passengers between. ports:

of the U nited States or between any such port anda foreign:

coe “port to insert in any rule, ‘regulation, contract, or agree-

ment any: provision or limitation (1) purporting, in. the

event of loss of life of -bodily injury arising from the negli-

venee or fault of such’owner or his servants, to relieve such _

owner, master, or agent from liability,-or from liability

beyond any stipulatéd amount, for such loss or injury, 07

-' (2) purporting in sugh event to lessen, weaken, or avoid

the right of any claimant tova trial by court of competent

jur si tion on the question of liability for such loss or in- .}

jury, or the measure of damages therefor. . All such provi-

sions or limitations tontained in any such rule, regulation, ,

contract, or agreement.are hereby declared to: be against

* ublic policy and shall be null and void and ne no effect.

(RS. 4288B, as added. June 5, 1986, ¢. 521, $2, 49 Stat.’

A480.) en | |

184. Apportionment of compensation. Whenever any

sie hh embezzlement, toss, or ‘destruction is suffered by sev-

-. eral freighters or owners of goods, wares, merchandise, or

‘any property whatever, on the same voyage, and the whole

value of the vessel, and her freight for the voyage, is not

pufficient to make compensation to each of them, they shall

receive compensation from the owner of the vessel in pro-

portion to their respective losses; and for that purpose the

freighters and owners of the property, and the owner of.

the vessel, or any of them, may take ‘the appropriate pro-

ceedings in-any court, for the purpose of apportioning the

-unr for which the owner of the vessel may be liable among

ihe parties entitled thereto. (Re S. 64284; Feb, 27, 1877,

¢. 69, $1, 19 Stat, 251.) - oa ee "

| 1p, Petition for limitation of liability; deposit of value

of interest in court; transfer of interest to trustee.

The vessel owner, within six months after a claimant

shall have given to or filed with such owner written notice

vf claim, may petition a district court of the United States

the vessel and freight, or approved secur ‘ity therefor;

ae in addition suck, sums, or approved security therefot,

“as the court may from time to time fix as necessary to

‘ | i

of egmpetent jurisdiction for limitation of liability within -

‘the provisions of this chapter and the owner. (a) shall de-

posit with the court, forthe benefit of claimants, a sum °

~~ to the amount or value of the interest of such owner’

énrry out the provisions of section 183 of this title; or (b)

at his option shall transfer, for the benefit of claimants, to

a trustee to be appointed by the court his interest, in the

vessel and freight, together with such sums, or approved

security therefor, as the court: “may, from time to time, fix

as necessary to carry out the. provisions of section 183 of

this title.. Upon compliance with the requirements. of this

section all claims and proceedings ‘against the owner’ with:

respect to the matter in question shall cease. (As amended -

of any vessel, in case he shall man, vietual, and navigate

sueh vessel at his own expense, or by his own procurement,

‘shall be deemed the owner of such vessel within the meaning

of the: provisions of this chapter relating to the limitation,

of the liability. of the owners of vessels; and such vessel,

when so chartered, shall be liable in the same manner as if

navigatedsby the owner thereof. (R.S. § 4286. y

§ 187. Remedies reserved. Nothing in sections 182-185,

»r 186 of this chapter shall be construed, to take. away or |

affect. the remedy to which-:any party may be entitled,

against the mastei, officers, or seamen, for or on account

of any embezzlement, injury, loss, or destruction of mer-

chandtse, or property, put on board any vessel, ‘or on.

account of any negligence, fraud, or other malversation of

ips master, officers, or seamen, respectively, nor to lessen

r take away any responsibility to which any master or

seamen of any aessel may by law be liable, notwithstanding

such*master or seaman may be ‘an owner or part ownet

of the vessel, (R. S: 4 } 4287.) °

“+ § 188, ‘Limitation: of liability t owners applied to all

aida. |

. Except’ as otherwise specifically provided therein, the

provisions of sections 182, 185, 183b-187, and 189 of this

44 -

. ; ‘

‘title shall apply to’ all seagoing vessels, and also -to, all

vessels used on lakes or rivers or in inland navigation,

including canal boats, barges, and lighters. As amended

June 5, 1936, ¢, 521; ¢ 4, 49 Stat. 1481. |

_ 789, Limitation of liability of owners of. vessels. for

debts.

The indivfiual liability of a shipowner. shall be limited.

to the proportion of any or all debts and liabilities that his

individual share of the vessel bears to thé whole; and the

aggregate liabilities of all the ow ners of a vessel on’account

‘of the same shall not exceed the value of such vessels and

freight pending: Provided, That this provision shall not

prevent-any claimant ‘from joining all the ow ners: ‘in .one

action; nor shall the same apply to wages due to persons

employed by said shipowners. (June 26, 1884, e. 121, §18,

23 Stat. 57.) .

The Admiralty rules provide:

“on

Rule 51. Limitation of liability—how claimed "2

«The owner or owners of any vessel who shall desire to

claim the: benefit of limitation of liability provided for in

the third and fourth sections’ of the Act of. March 3, 1801,

entitled ‘‘An ‘Act to limit the liability of shipowners and

for other purposes’’ (Sections 183 to 189 of* Title 46 of

the U.S. Code, 46 U.S. C. A. §§ 183-189) as now or here-

after amended or supplemented, may file a petition in the

proper District Court of the United States, as hereinafter.

specined. Such petition shail set forth the facts and cir-

cumstances on which limitation of liability is claimed, and

pray proper relief in that behalf; It shall also state facts

showing that the.petition is filed in the proper district;

the voyage on which the demands sought to be limited

arose, fe! the, date and place of its termination; the

amount of all denen including | all unsatisfied liens or

‘claims of Hen, in contract or in tort, arising on that voyage,

~ =

so far as known to the ‘petitioner, arid what suits, if amy,

are pending thereon; whether the vessel was damaged, lost

or abandoned, and, if so, when-and where; the value of

t® vessel at the close of the voyage ory in case of wreck,

the value of her wreckage, strippings or proceeds, if any,

and where and ‘in whose possession ‘they are; and the

~ amount of any pending freight recovered or recoverable.

If any of the above particulars ave not fully known to the

petitioner, a statement of such particulars accor ding to the

best knowledge, information, and belief of the petitioner

shall be sufficient. With his petition the petitioner may,

if he so cleets, file an interim. stipulation, with sufficient

sureties or an approved corporate surcty,. for the payment

into court whenever the court shall so order, of the aggre-

gate amount of the value of petitioner’s interest Jin the

vessel at the close of the voyage or, in case of wreck, the

value of. the wreckage, strippings‘ or proceeds, and of. any

pending freight’ recovered or recoverable, with interest at

.six percent per annum from the. daté of the. stiphlation,

and-eosts. If such interim. stipulation is’ filed, it shall‘ be

A. * 9° x ‘ . . a

“accompanied by an affidavit or affidavits of a competent

person or persons corroborating the statement in the peti-

tion as to value of the vessc’, ar her wreckage, ete., and

her freight. Said court, having caused due appraisement

to be-had_of the value. of petitioner’ s interest in the vessel,

or her wreckage, ete., and her freight shall make an order

for the payment of. the same into court, or for the. giving

of a stipulation, with sufficient sureties or an approved

corporate surety, for the payme ut thereof into court with

interest at six percent per annum from the date of the

stipulation, whether interim or final, and costs, whenever

the same shall be ordered; or, if the petitioner shall so *

elect, the court without such appraisement shall make an

‘order for the transfer by the petitioner of his interest. in

such vessel, or her wreckage, ete.,and freight ‘to a trustee

_to be appointed by the court under the fourth section of

said Act.

465

2 | :,

If a ‘surrender of petitioner’ s interest in the vessel or

her ‘wreckage, ete, is offered to be made. to a trustee, the

petition must further show any prior, paramount liens —

thereon, and what voyage or trips, if any, she has. made.

since the voyage or trip on which the claims sought to be

limited arose, and any existing liens arising upon any such

subsequent voyage or trip, with the amounts and causes

thereof, and the namés and: addresses ‘of the lienors, so

/ far as known: and whethér the vessel sustained any .injury

upon or by reason of such.subsequent voyage or trip.

| Upon the filing of such interim stipulation, or upon de-

os termination of value by appraisal and compliance with the

court’s order with respect thereto, or upon compliance with

a surrender order, as the case may be, the court shall issue

i monition against all persons. asserting claims in respect

. to which the petition seeks limitation, citing’ them to file —

their respective claims with the Clerk of ‘said court and to

serve on or mail .to the proctors for the petitioner a copy

‘ thereof on or before a date to be named in said writ which

- shall be not less than 30 days after, issuance of the same,

_% which time-the court, for cause shown, may enlarge.

é. ~ Notice of the monition shall be published in such news-

paper or newspapers as the couft .by rule or order may

direct in Substantially the following form, once in each

week for four successive weeks before the return day of the

monation.: a :

United Btites District Court

: 2 a ee |

Notice of Petition for Exoneration from or. Limitation

‘of Liability |

iS (Filed ..... pause td )

co Notice is given that ‘en cae has filed a petition pursi-

ant to Title 46: U. S. Code, §¢ 183-189, 46 U. S. C. A. §§ 183-

189, claiming the right to exoneration from or limitation

? \

of liability for all claims Diced the voyage of the

i ee yO Se aws ve termipating ou

All persons having such claims must file them, under.

oath, as pees ided in United States Supreme Court 5 a

alty Rule 52,°with the Clerk of this Court, at the U.

‘Court Howen at ........ and serve on or mail: to the es

tioner’s proétors ....:... at ........ a copy on or before

Parma aren or he defaulted. Personat attendance is not

required,

.. Any claimait desiring to contest the claims of ~péti-

tioner must file an answer to said petition, ‘as required by

_ Supreme Court Admiralty Rule 53, and serve on or mail to

vetitioner’s proetors a copy. | . Pe tee

° .

. e

Pe | : U.S. Marshal.

The petitioner not later than the day of second publica-

‘tion shall also mail-a copy of the above notice (copy of the

monition need not’be mailed).to every person known tp have

made anv claim against the vessel or the petitioner arising.

out of the voyage or trip on which. the claims sought to

he limited arose. In eases involving death a copy of such

notice, together with a copy of Rule 52, shall be mailed to

the decedent at his last-known address, and also to any

person who shall be known to have made any claim on ae-

count of such death.

The said court shall also, on the application of the peti-

tioner, make an order to restrain the further prosecution

of all and any suit or suits against the petitioner and/or

said vessel in respect to any claim or claims subject to

Jimitation in the proceeding. Amended June—2+,+4948-—--.

a :

Rule - 52. Filing and proof of claim in limited liability

proceedings

Claims shall be filed with ,the Clerk of the Court in

writi#e under oath and a copy shall be served upon the

proctor for the petitioner on or before the réturn day of

the monition. Each claim shall speeify: the various. ‘allega-—

tions of fact upon which. the claimant relies in support of

his claim,:the items ‘thereof, and the dates dn whith the

same accrued. ‘Within thirty days after the return day of

the monitNan or within such time as the Court’ thereafter

may allow, the petitioner shall mail to the proctor for each

claimant (or if the claimant have no proctor.to the claim-.

ant himself) a list setting forth (a) the name of each claim- -

unt, (b) the name and address of his proctor or attorney

(if he is know n to have one), (¢c) the nature of his claim,-

~ i.e. whether property loss, ‘property damage, death, per-

sonal injury, ete., and (d) the amount thereof. n

Whenever an interim stipulation has. been filed as pro-

vided in Rule ol, any person claiming damages as afore-

sald, who shall ati filed his claim under oath, may file an

exception comtroverting the value of the vessel at the close

of the vovage, or,.in case of wreck, the value of her wreck-

age, strippings or proceeds, and the amount of ther pending

freight, and the, amount: of. the interim stipulation. based

tliereon, and thereupon the court: shall cause due appraise-

ment to be had of the value of petitioner’s interest in the

vessel, or her wreckage, ete., and her freight: and if the .

court finds that the amount. of the interim stipulation is

ejther insufficient or excessive, the court shall make an

order for the payment of the proper amount into court or,

ax the ease may be, for a reduction in the amount of the

stipulation or for the giving of an additional stipulation.

Proof, of all claims which shall be filed in pursuance

of said nionition shall thereafter be made before a coni-

-- missioner to be designated by the court, or before the court

“as the court may determine, subject to the right of any

person interested to question or controvert the same; but

no objection to any claim need, be filed by*any party to the

proceedings ; and on the completion of said proofs, the

commissioner shall make report, or the court its findings—

on the claims so proven, and-ne-comfirmation of said com-

“missioner’s report, after hearing any exceptions thereto,

or on such finding by the court, the moneys paid or secured

to he paid into court’as aforesaid’or the proceeds of said

‘vessel, or her wreckage, ete., and freight (afver payment

of costs and expenses) shall upon determination of liability

- be divided pro rata, subject to all provisions of law. thereto,

appertaining, amongst the several claimants in proportion

- to the amount of their respective claims, duly proved and

confitmed as aforesaid, saving, however, to all parties any

priority, to w hich. “they. may helegally entifled. Amended —

June 21, 1948.

Rule 53.. Rights of owner to contest liabilit and of

claimants to contest exoneration’ from liability for limita-

tion of liability of owner

‘r shall be:at

of said ves-

rements

In the proceedings aforesaid, the petition

liberty to contest his liability, or The liabitit

_ sel, provided he shall have complied with the re

of Rule 51 and shall also have given a kond for costs and |

* provided that in his petition he shall state the facts and

cipcumstauces by reason of which exoneratien from liability

~ F ‘ ) , oo: = 9 -

‘is Glaimed; and any person claiming damages as aforesaul

whovshall have filed his claim under oath and intends to.

contest the right to exoneratiop or limitation, shall file an

‘answer to such petition, and ¢¥erve a copy on:proctor for

wtitioner, and may contest the right of the owner or owners -

| ’ ‘ ~

oO an exoneration from liability or to |

of said-vessel, eithe

a linyitation of liability under the said Act of Congress, or

both, provided sueh answer shall in suitable allegations

state the faets and circumstances by reason of which. lia- i

bility is claimed or right to limitation should be denied.

Amended June 21, 1948,

~s*

- .:. eee

4 | f

Rule 54. Courts having cognizance of limited liability .

procedure

The said petition Shall be filed and. the said proceedings

had in any District Court of ‘the United’ States in which

said vessel has been libeled to answer for any claim in:

respect to which the petitioner secks to limit liability; or,

- if the. said vessel has not heen libeled, then in the District

respect to any such claim. When the said vessel. has not

been libeled to answer ,the matters aforesaid, and suit has

not heen commenced against the said owner, the said pro-

ceedings may be had in the District Court of the district

in which the said vessel.may be, buf if said vessel is not

within any district and no suit has been

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.