Diamond v. Beutel, 16489.
Decision Date | 08 August 1957 |
Docket Number | No. 16489.,16489. |
Parties | Melville DIAMOND, as the Administrator of the Estate of P. M. Diamond as owner of the 23-foot Higgins Speedboat, Official Number 18J1555, Appellant, v. Deborah BEUTEL and Marion D. Hopwood, Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
David S. Batcheller, Douglas D. Batchelor, Miami, Fla., Smathers, Thompson & Dyer, Miami, Fla., of counsel, for appellant.
Herschel W. Carney, Melbourne, Fla., Jerome Silver, Cleveland, Ohio, Edward L. Trader, Melbourne, Fla., George E. Patterson, Jr., Miami, Fla., for appellees.
Before RIVES and CAMERON, Circuit Judges, and DAWKINS, Sr., District Judge.
This appeal is from a decree dismissing a petition for limitation of liability for the reason that the vessel owner did not make the petition "within six months after a claimant shall have given to or filed with such owner written notice of claim." 46 U.S.C.A. 185.1 As originally filed, the petition was by P. M. Diamond, the owner of a 23-foot Higgins Speedboat. On March 21, 1954, the boat, in charge of an operator for the owner, grounded in the waters of the Indian River with seven persons aboard, and, as a result, the appellees claimed that they suffered severe injuries.
It is without dispute that the owner knew of the accident, and that, upon his instructions, his secretary wrote and mailed the following letter:
Complying with that letter, the attorney for one of the appellees gave the following written notice of her claim:
Mr. Herberich replied:
The Insurance Company to which he had referred the claim made further reply as follows:
Appellant insists that the notice of claim was not "given to or filed with such owner" within the meaning of the statute and cites the authorities listed in the margin.2 The authorities relied on by appellees are likewise listed in the margin.3
The critical clause, "within six months after a claimant shall have given to or filed with such owner written notice of claim," was added to the statute by amendment on June 5, 1936, 49 Stat. 1480. Judge Swan, speaking for the Second Circuit, has well said:
Petition of Goulandris, 2 Cir., 1944, 140 F.2d 780, 781.
Under the statute, the vessel owner is the person to whom the written notice of claim must be given, or with whom it must be filed. There is, however, nothing, either in the letter of the statute or in the purpose for which it was enacted, to prevent the owner from appointing an agent to receive the notice, as he might do for the service of process.
Under Rule 4(d)(1), Federal Rules of Civil Procedure, 28 U.S.C.A., service of a summons and complaint upon an individual defendant in a civil action may be made by delivering a copy of the summons and complaint to "an agent authorized by appointment" to receive service of process. Rule 2 of the Admiralty Rules, 28 U.S.C.A., is not so specific, though the cases would indicate that like service would be sufficient.
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In re Definitive Marine Surveys Inc.
...of his liability, and even after final judgment had gone against him might still file his petition for limitation." Diamondv. Beutel, 247 F.2d 604, 606 (5th Cir. 1957) (quoted authority omitted). Congress added the deadline "to change the old rule and require the shipowner to act promptly i......
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Definitive Marine Surveys Inc. v. Tran
...of his liability, and even after final judgment had gone against him might still file his petition for limitation." Diamond v. Beutel , 247 F.2d 604, 606 (5th Cir. 1957) (quoted authority omitted). Congress added the deadline "to change the old rule and require the shipowner to act promptly......
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In re Petition Albergo
...the purpose of the amendment "was to curb the abuse of delays by shipowners in filing limitation actions." Id. See also Diamond v. Beutel, 247 F.2d 604, 606-07 (5th Cir. 1957)3 ("It is conceded by the plaintiff that the purpose of the six months provision was to change the old rule and requ......
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In re Brava Cruz, L.L.C.
..., 13 F.3d at 553 ("It is settled that a notice of claim may be received by an agent of the vessel owner.") (citing Diamond v. Beutel , 247 F.2d 604, 607 (5th Cir. 1957) ).3 Although the Court accepts Torres's Sur-Reply so that the record contains the additional briefing, the Court would hav......