Reply Brief for the Petitioner — Lake Tankers Corp. v. Henn

L ISRARY-. on _—

"SUPREME COURT. U 2 MAY 2 1957

ake | ‘Toffice “Supreme Court, U.S.

a - FILED

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F | JOMLT. FEY, Clerk.

=. Court of the United States

October Term, 1956 j sp

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No. 445 —

LAK K TANKERS CORPORATION,

LILLIAN M. HENN, Admx.,,

Petitioner,

against ©

Respondent.

On Writ oF CERTIORARI TO THE UNITED STATES Court OF

APPEALS FOR THE SECOND Circuit ©

eg

.REPLY BRIEF FOR PETITIONER

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H. Barton WILLIAMs,

KuGENE UNDERWOOD,

26 Broadway,

New York 4, N. Y.,

Counsel for Petitioner.

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TABLE CF CONTENTS|

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. Pots ‘a

ee

Io The amount of the first interim stipulation

i, Sec. 269 reer eee fy aie w hte ta cee er ye Sas

PAGE

Was proper ... 00. cee ce cee eee J

Th. Pe titioner does not admit. liability by claim —

ing limitation. ...... Ma -actiase a ee peueeeseua _ 3

-TH. The adequacy of the limitation —_ is not

established’ ................. nd wad 3 eee cas “oe 3

[V. Coneurstis ............ shah de dtcatiterae cn a

‘ V. Prosecution of the State Court action would

violate the Admiralty Court's: exclusive juris- |

diction of limitation. questions RIP pe loge )

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Table of Cases

Langnes’v. Greeu, 282 U.S, 531... ...: Sor ee _ we D

Liverpool ete. ‘Nav. Co. v. Brooklyn Eastern District

, Terminal, Te ae Se eae a eee eek: ?

Petition of Trinided Corporation, 229 F. 24 423

Petition of U nited States, 178 F. 2d 043 (2 Cir.) -.

Southern Pacifie‘Co. v. United States, 72 F. 2d 22. \

[PND 28 eee es te eeneeey ie alate eae a Se eee 3

| Sturgis v. Boyer, 24 How. (65 U. S.) ee eee. 2

Yuba Consolidated Gold Fields v. Kilkeary, 206 F.

Yd RS4 (O. Cir.) PE ere ore pea sa rae ty

»

_ Other “Authority

Pomeroy, Equity Juvigpradence, | oth Ed. 1941, Vol.

Suptrme Conirt of the United States

October Term, 1956

No. 445

ray

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LaKkE TANKERS CORPORATION,

. Petitioner,

against -

Lintran. M. Hens, Admx.,

Respondent.

Ox Writ or CarriakaARi TO THE UNITED. STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT.

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REPLY BRIEF FOR PETITIONER

1. The amount of the: first interim stipulation was-

proper. P ,

Respondent claims that petitioner ‘‘wrongly shaped the .

proceedings from the beginning .by filing a bohd only for

the tug’’ (Pp. 28) ‘“Sbeeause it knew that it was charged

with negigence inthe operation of the barge as well as

of the tug’’ (p. 16). There. is no proper basis for these

assertions. When the petition was filed respondent had.

made io separate charge of negligence in the operation

of the barge. Respondent’s complaint, which was peti-.

tioner’s only source of knowledge as to the basis of her

claim’ when the petition was filed, makes no separate claim

against the barge. The allegation was that the collision

oceurred - tides ,

fo

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‘see? golly through the negligence of Lake.

Tankers Corporation, by its agejts, servants, om?

ployees, officers and crew-in charge of the operation,

nianagement and control of said tug and barge, and

of the defendant Clyde Roan,- said vessel. Biack-

stoNE and the said barge as pushed by the ‘said

diesel tug were. caused to collide and come together’

(RR. 20). : poet

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° ‘ vali .

The only separate -mention of the barge was ‘as pushed

by the said diesel tug’) Petitioner knew, as, the petition

later alleged, that the barge was without motive power of

her own and was under the ‘control of the tug, and that

petitioner's “Sofficers aad crew in charge of the operation,

Inanagement ancd-control of said tug and barge’? were the

officers ancl, crew of the t tug. Since respondent’ . complaint =

thade no separate. allegation of negligence against the |

barge, or against any one claimed to have been in char ge

of her other than the tug’s crew, respondent is quite wrong

in contending that petitioner knew it was charged with

negligence in the operation of the barge separately from

the tug. Respondent first advanced this ¢laim in the aff-

davit filed in support of -her exceptions on the ground that

the first stipulation was inadequate (R. 17).

The law is well settled that there is no liability on the

part of a*barge wholly gnder ‘the control of the tug, ‘unless

‘she commits some personal fault of her own, separate and

apart from that of the tug. Sturgis v. Boyer, 24 How. (65

S.), 110, 122; Lirerpool ete. Nav. Co. v. Brooklyn Eastern

Disteict Términal, 251 U.S. 48 (and other cases cited on

page 7 of petitioner's main hrief).. Therefore, there was

‘then no need to give bond for the barge. “However, peti-

tioner did anticipate the possibility of a claim ‘against the

barge and, in its: petition, not only alleged its readiness

to Bive bond for the. value of its interest in the tug, but,

also, for ‘such additional interest as’ may be appropriate,

whenever the same shail be ordered by the Court’? (R, 4).

Thus respondent fails in.the argument that this proceed.

ing was “wrongly shaped.” ,

IL. Petitioner does not admit liability by claiming

limitation.

$

Respondent argues that the claim:of limitatfon of lia;

“bility is one Deunteadon and avoidance and that the fault

of each of the vessels is to be taken for granted, citing

Southern Pacific Co. v. United States, 72 F. 2d 212. (2 Cir.),

‘ad Petition of United States, 178 F. 2d 243 (2 Gir.) (pp.

9-10, 30). But this is true only where liability is admitted

or after liability has been. established-at trial. In “both

cases cited by respondent lability had been determined .

before the point now referréd to- was discussed. Never-

_ theless, respondent’s whole argument seems based upon

the misconeeption that, even at this preliminary stage in

the proceeding, fault on the part of both tug and barge

must be presumed. ‘This is the basis of her argument that

there already are two funds. Plainly this is not so. Ad-

miralty Rule 53 expressly provides that ‘‘the petitioner

shall be at liberty to contest his liability, er the liability .

ot said vessel’*, Petitioner has done so in this case. See

Articles I: ‘ourth and Tenth of athe petition (R. 2-4). The.

Distriet Court ree were this -trom the beginning. See —

opinion of Kyan, J . (R. 2 [

Ti The adequacy of the limitation iad is’ not ,

established. |

Respondent makes no attempt to meet petitioner's argu-

ment that a limitation proceeding may properly be begun,

‘and other suits restrained, if. when it is begun, the, claims

exceed the pessible fund.

_ Nor does respondent deny that, when this petition was

filed, the claims against petitioner amounted to more than

double the value of tug and harge put together.

~ Nor’ does respondent attempt to dispute petitioner's

point. that, once jurisdiction has attached, it is not subject

to defeasance by claimants’ reducing their claims, *

Respondent's argument is based on the premise that,

the fund will be adequate and begs the question. There is

not yet any fund. The claims aggregate $259,025, more

than either the tug or the barge is worth. It can not how be

said that the fund will surely exceed’ the claims, unless ‘this

single proceeding must! be considered as if it were two,

with separate funds for tug and barge, and unless respond-

ent s cause of the action is split and allocated part to each—-

and that is the question ] resente d here. Respondent’s posi-

tion on this question is wholly theoretical. It exalts the

‘concept of the juristic entity.of tug and, barge, and ignores

the fact that petitioner is the only juristie person in court,

and that the claims,. said to be asserted against tug and

barge, are in fact directed against petitioner 7m personam

and its general funds. 0 ea

IV. Paiieiiawe.

Although arguing that concurstis is generally abhorrent,

respondent. makes no attempt. to meet the arguiment, at

pages 17-20 of petitioner's brief, that in four out of the five

' possible situations in which the shipowner may invoke the

Act without there being an inadequate fund, the Court will

take and keep jurisdiction. Indeed, The Court of Appeals

for the Second Cireuit is apparently willing, if asked, to

look outside the Limitation Act for authority to require a

coneursus where the claims do not éxceed the fund.” In.

Petition of. Trinidad C orporation, 299 BF, 24-423, the opin-.

ion. concludes :

“We conclude with this final caveat ‘as to the scope

of this opinion. In holding that the limitation statute

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confers, no power on the-district court to* maintain

i concourse once it has found that the fund is ade-

quate, we de not hold that the court is without power

derived from other sources in a proper case to enjoin

a miultiplicity of actions.” For-this appeal has been

pitched solely on the effect of the limitation statute”

(p. 481).

The Court may have had in mind a bill of peaee, which still

survives’ with notable vitality. See Yuba Consolidated

Gold Fields v. Kilkeary, 206 F. 2d 884 (9 Cir.), and Pom-.

eroy, Equity Jurisprudence, 5th Hd. 1941, Vol. 1, See. 269.

Respondent ‘s argument that it is merely a matter of

judicial diseretion whetlier to vacate the injunction. as to

on also begs.the question because it assumes that the fund

must inevitably exceed the claims (p. 10). The only case

in which this Court has held it'te he a matter of discretion

is Laungnes v. Gregn, 282 UC. $8. 531, a single claim case dis-

eussed at pp. 25.2% of petitioner’s main brief.

V. Prosecution of the State Court action would vio-

late the Admiralty Court’s exclusive jurisdiction of limi- :

tation questions.

Although arguing otherwise (pp. 28-33), »respondent

concedes the point that demonstrates that the prosecution

of her State Court action must be.nugatory. She agrees

see * * * that the Admiralty Court has exclusive juris-

diction of all questions affecting limitation and that

the amount’ of the fund is exclusively for the Ad-

‘miralty Court to administer’’ (p. 80).

The yardstick for the amount ef the fund is the indi-

“vidual liability of.tug- and/or barge (petitioner’s miain

brief, p. 7). Respondent concedes, therefore, that the fix.

-ing of such lability ‘‘is exelusively for the Admiralty

Court’. But if she prosecites her State Court action,

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and if petitioner is held for negligence of both tug and

barge, the fund must equal the value of both; but since,

iis respondent now concedes, the amount of the fund is

exclusively for the Admiralty Court to determine, only

the Admiralty Court can determine in any binding way

whether. the tug and/or the barge is guilty of separate”

fault. We have discussed this question at pages 33-37 of

our main brief.

Ps ? w

For the reasons stated, it is respectfully submitted |

that the judgment of the Court below should be re-

versed and the restraining order reinstated..

Dated: New York, N. Y., April 30, 1957.

_* KuGexne Unprerwoon,

26 Broadway,

New York 4, N. Y..

Counsel for Petitioner.

H. Barton, WILLIAMS,

uf Counsel,

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