# Petition for Writ of Certiorari — Lake Tankers Corp. v. Henn > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0317%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1957 - **Citation:** 354 U.S. 147 ## Text : | | , 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 ) a — 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 a 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 tl | 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 ae ~ 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 a —— -* al ; “Supreme Court uf the Anited States October Wien 1956 No. ray Vv 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) a. 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 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 2 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 > ce 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 © 7 = 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. : a © 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 * e ae 10 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 —_ as « 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., % e - 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 » a > 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- 20 ’ 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. i —* 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, 24 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 ; (c) that the Court expressly reserves jurisdic- 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 26 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. \ 4 ) 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. — oo (Memorandum. Inviting Additional Briefs for Rehearing ) UNTED STATES. COURT: OF APPEALS ° Seconp C1rcvulit 0 In the Matter of Perition or LAKE TANKERS Conr., | “ns fo Lituian M. Hex} ete., ony 3 Claimant-Appellee. fay Vv . 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... | | . a 30 (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 Vv 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. 31 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.’ a (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 x \ * b 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 ........ 10 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 yu 7. 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 iT “ ‘ . 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. S a 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. ee 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- = Jr 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- we . 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). & af \ \ in \ : . \16 \ a Ls ; | 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 8 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- we 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 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. > 94 ‘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 f 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. a 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, s / 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. : ae Section 185 says that “The. pessel aw ner * * © may peti- 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 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. ‘ b 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, ‘the Admiralty © ourt fixes as ‘ the limit of petitioner's s liability a. i _ her at $118,000, but in the limitation proceeding th Court holds both tug and barge. Petitioner has not Waived: a : 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 , . P a7 . 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. ha 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. a EUGENE Unverwoot, ' 26 Broadway, New York 4, N: Y., Counsel for Petitioner. H. Barton WI uiaMs, of Counsel. 3 a ° . . a , 39 J ° ; \ . Appendix cea The Limitation Statute as’ printed in, 71 le 46 U. s. C. A. prov ides: ». o § 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 inju [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0317%3A2. Public record. Not legal advice.