IN RE BLOOMFIELD STEAMSHIP COMPANY, 6205.

• Decision Date: 13 March 1964
• Docket Number: No. 6205.,6205.
• Citation: 227 F. Supp. 615
• Parties: In the Matter of BLOOMFIELD STEAMSHIP COMPANY, as Owner of the STEAMSHIP LUCILE BLOOMFIELD, Praying for Exoneration from, or Limitation of, Liability.
• Court: U.S. District Court — Eastern District of Louisiana

227 F. Supp. 615

In the Matter of BLOOMFIELD STEAMSHIP COMPANY, as Owner of the STEAMSHIP LUCILE BLOOMFIELD, Praying for Exoneration from, or Limitation of, Liability.

No. 6205.

United States District Court E. D. Louisiana, New Orleans Division.

March 13, 1964.

Eikel, Feltner & Goller, Robert Eikel, Houston, Tex., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert B. Acomb, Jr., New Orleans, La., for Bloomfield Steamship Co.

Haight, Gardner, Poor & Havens, Charles S. Haight, New York City, Terriberry, Rault, Carroll, Yancey & Farrell, Walter Carroll, Jr., Benjamin W. Yancey, New Orleans, La., for Charles S. Haight, Haight, Gardner, Poor & Havens, and A/S J. Ludwig Mowinckels Rederi.

Bigham, Englar, Jones & Houston, New York City, Montgomery, Barnett, Brown & Read, John P. Hammond, Henry

J. Read, New Orleans, La., for International Paper Co., Pathe Equipment Co., National Ben Franklin Ins. Co. of Pittsburgh, Pennsylvania, Hanover Ins. Co., Ingersol-Rand Co., Seeburg Corp. and Atlantic Mutual Ins. Co.

No. 6205, Division D.

AINSWORTH, District Judge.

On October 1, 1963, the SS LUCILE BLOOMFIELD, owned and operated by Bloomfield Steamship Company, collided on the high seas outside the Port of LeHavre, France, with a Norwegian flag vessel, M/V RONDA, owned by A/S J. Ludwig Mowinckels Rederi. The RONDA continued to LeHavre but capsized and sank at the quay as a result of a fracture to her hull. The LUCILE BLOOMFIELD was able to resume her voyage and return to the United States.

International Paper Company, et al., owners of cargo aboard the RONDA, filed a libel on October 9, 1963 in the United States District Court for the Southern District of New York against Bloomfield Steamship Company in personam and the SS LUCILE BLOOMFIELD in rem to recover for damages sustained as a result of the collision. Sixteen days later, on October 25, 1963, Bloomfield Steamship Company, as owner of the SS LUCILE BLOOMFIELD, filed its petition in this court praying for exoneration from, or limitation of, liability. On the same day we issued a monition order in the usual form under 46 U.S.C.A. § 185, restraining and enjoining the beginning of prosecution of any and all suits, actions or legal proceedings of any nature against petitioner and the SS LUCILE BLOOMFIELD, except in the present proceedings, in respect to any claim arising out of the collision, until the hearing and determination of this proceeding. The order was duly published in a daily newspaper in New Orleans. The restraining order was served by petitioner on Messrs. Haight, Gardner, Poor & Havens, New York attorneys for the RONDA, and a copy was mailed to Mowinckels, owner of the RONDA, at Bergen, Norway.

A few minutes after the filing of the limitation proceeding, and without knowledge thereof, Westchester Fire Insurance Company, underwriter of cargo aboard the RONDA, filed a libel in this court against the SS LUCILE BLOOMFIELD and Bloomfield Steamship Company; the libel was later withdrawn on December 16, 1963.

On January 24, 1964, proceedings were instituted in an admiralty court in England by Mowinckels, owner of the RONDA, against Bloomfield and the LUCILE BLOOMFIELD. The LUCILE BLOOMFIELD was seized at Southampton, England, by the Admiralty Marshal and released only after furnishing security in the amount of $420,000.

Bloomfield contends that it is not amenable to service of process in New York growing out of the libel filed in the federal court in the Southern District of New York, because it is not doing business in the State of New York. Two related motions are presented for decision, namely, the motion of Bloomfield against Haight, Gardner, Poor & Havens, New York counsel for the RONDA, and Mowinckels, owner of the RONDA, for contempt for prosecuting its claim in the English admiralty court after issuance of our restraining order on October 25, 1963, and the motion to dismiss the limitation proceeding for lack of jurisdiction.

I.

Haight, Gardner, Poor & Havens and the owners of the RONDA excepted to the contempt action, contending that the owners of the RONDA are not parties to the limitation proceeding and that our restraining order of October 25, 1963 can have no extra-territorial effect beyond the limits of the United States as would prohibit bringing an action in an English court, even if New York counsel for and the owners of the RONDA were aware of our restraining order, having been served with copies thereof as heretofore stated.

We assume arguendo the wellpleaded allegations of the motion for contempt. From these allegations it is averred that Haight, Gardner, Poor & Havens and the RONDA'S owners knew of the existence of our restraining order when they caused their English solicitors to file a libel in the English admiralty court and caused the vessel to be seized. However, an order or decree in a limitation proceeding is given mere domestic and not international recognition. Gilmore and Black, The Law of Admiralty, p. 739. Justice Holmes's opinion in The Titanic, 233 U.S. 718, 34 S.Ct. 754, 58 L.Ed. 1171 (1914), clearly assumes the merely domestic effect of a limitation decree, according to Gilmore and Black (p. 739). In his opinion Justice Holmes said (233 U.S. 718, 732, 34 S.Ct. 754, 756, 58 L.Ed. 1171):

"The question is not whether the owner of the Titanic by this proceeding can require all claimants to come in, and can cut down rights vested under English law, as against, for instance, Englishmen living in England, who do not appear."

Litigants who chose to sue the owners of the TITANIC in United States courts were limited in their recovery by the American law of limitation which was held to be applicable rather than the English limitation law despite the fact that the TITANIC was a British flagship lost on the high seas after collision with an Atlantic iceberg.

In the related case of The Titanic, 2 Cir., 1915, 225 F. 747, foreign claimants who had filed in the American limitation proceeding were permitted to withdraw their claims though it appeared that the purpose of the withdrawal was to proceed in the English courts where a better recovery could be had. The court held that the district court could not retain jurisdiction for the reason that if it released the claimants they might get relief in some other tribunal. It said (225 F. p. 748):

"When they have withdrawn they are as free from it for all purposes as if they never had been parties."

That being true, a potential claimant who has not filed his claim in the United States limitation proceeding has the right to pursue his claim in a foreign court if he so chooses and can obtain jurisdiction. The fact that the owners of the RONDA and their counsel were aware of the limitation proceeding here when they caused their libel to be filed in an English admiralty court does not preclude them under such circumstances from seeking enforcement of their rights in the English courts. British Transport Comm. v. United States (The Duke of York — Haiti Victory), 354 U.S. 129, 77 S.Ct. 1103, 1 L.Ed. 2d 1234 (1957). See also Kloeckner Reederei Und Kohlenhandel G.M.B.H. v. A/S Hakedal, 2 Cir., 1954, 210 F.2d 754; Motor Distributors v. Olaf Pedersen's Rederi A/S, 5 Cir., 1956, 239 F.2d 463. In The Duke of York, the Supreme Court held that an injunction against suits being filed in foreign jurisdictions would be ineffective unless comity required its recognition. Comity as between the United States and Great Britain is not shown to exist.

The motion for contempt is denied.

II.

The motion to dismiss the limitation proceeding is grounded on lack of jurisdiction for failure of petitioner to comply with Supreme Court Admiralty Rule 54 which provides as follows:

"Rule 54. Courts having cognizance of limited liability procedure

"The said petition shall be filed and the said proceedings had in any District Court of the United States in which said vessel has been libeled to answer for any claim in respect to which the petitioner seeks to limit liability; or, if the said vessel has not been libeled, then in the District Court for any district in which the owner has been sued in respect to any such claim. When the said vessel has not been libeled to answer the matters aforesaid, and suit has not been

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