THE GRASSELLI CHEMICAL CO. NO. 4.
| Decision Date | 12 August 1937 |
| Citation | 20 F. Supp. 394 |
| Parties | THE GRASSELLI CHEMICAL CO. NO. 4. Petition of GRASSELLI CHEMICAL CO., Inc., et al. |
| Court | U.S. District Court — Southern District of New York |
Bigham, Englar, Jones & Houston, of New York City (Richard F. Shaw, of New York City, of counsel), for petitioners.
Barry & Sheller, of New York City (Alexander, Ash & Jones, of New York City, of counsel), for claimant Frank Conte.
This is a motion by one Frank Conte for an order sustaining his exceptions to the petition for limitation of liability filed herein by Grasselli Chemical Company, Inc., and E. I. Du Pont De Nemours, Inc., successors in interest as owners of the barge Grasselli Chemical Co. No. 4. Conte also seeks an order vacating an order of this court restraining him from prosecuting in the New York Supreme Court an action at law against the petitioners in this proceeding.
The petition for limitation of liability describes an accident which took place aboard petitioners' barge, while it was moored alongside the steamship Wind Rush on August 27, 1936. While the cargo of the barge was being loaded onto the steamship, a portion of the hoisting apparatus went awry, and three employees of the stevedoring company engaged in the work have asserted claims against petitioner for injuries sustained as a result of the accident. One of them is the moving party, Frank Conte.
On September 4, 1936, petitioners received written notice of the claim of Patsy Marotto, another of the persons injured in the accident. The petition for limitation of liability was not filed until March 23, 1937, more than six months after notice of Marotto's claim.
On June 5, 1936, 46 U.S.C. § 185, was amended (46 U.S.C.A. § 185), so as to read as follows:
The exceptions to the petition are based on the sole ground that under the above amendment (which is in reality a new section), the petition must be filed within six months after written notice of "a claim." It is contended that "a claim" means the first claim in point of time, and that if the petition for limitation of liability is not filed within six months after written notice of the first claim it may not be availed of at all with respect to any claim arising out of that particular accident or disaster.
The claimant Marotto heretofore moved this court for an order vacating a restraining order entered against the prosecution of his claim. This application was granted on May 25, 1937, by Judge Goddard, for the reason that the petition had not been filed within six months after written notice of the Marotto claim. Marotto's was the first claim in point of time, of which petitioner had written notice.
Petitioners contend, however, that although their petition for limitation of liability was late with respect to Marotto, it is timely as against Conte, the moving party herein, because filed within six months after notice of Conte's claim. The disposition of this motion depends entirely upon the construction to be given the new section 185 of title 46, United States Code (46 U.S.C.A. § 185). Apparently, the question has not heretofore been presented for determination.
In my opinion the proper construction to be given the new section is that it requires the ship owner to act promptly and, if he fails to file a petition for limitation of liability within six months after receipt of "a claim," he may not avail himself of the privilege with respect to any claims arising out of the particular accident or disaster in question.
Undoubtedly, it was the purpose of the new legislation (49 Stat. 1479) to cut down the rights and privileges of the ship owner. This becomes evident from a consideration of the amendment to section 183 of title 46 of the Code (46 U.S.C.A. § 183), which was enacted at the same time as section 185. Prior to these amendments there was no time limit upon the filing of a petition for limitation of liability. The purpose of the new section 185 was to set up a time limit where there was none before. The Senate Report upon this legislation (Senate Report No. 2061) says significantly (page 6 of the Report): ...
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