In re Crosby Fisheries

• Decision Date: 09 February 1928
• Docket Number: No. 11943.,11943.
• Citation: 24 F.2d 555
• Parties: In re CROSBY FISHERIES, Inc. THE SALMON KING.
• Court: U.S. District Court — Western District of Washington

24 F.2d 555 (1928)

In re CROSBY FISHERIES, Inc.

THE SALMON KING.

No. 11943.

District Court, W. D. Washington, N. D.

February 9, 1928.

G. F. Vanderveer, of Seattle, Wash., for claimant.

Schwellenbach, Merrick & Macfarlane and Bronson, Jones & Bronson, all of Seattle, Wash., for petitioner Crosby Fisheries, Inc.

NETERER, District Judge.

Claimant cites in support of his motion Carlisle Packing Co. v. Sandanger, supra; The Lotta (D. C.) 150 F. 219; Delaware River Ferry Co. v. Amos (D. C.) 179 F. 756; The Eureka No. 32 (D. C.) 108 F. 672; The Rosa (D. C.) 53 F. 132; The Great Western, 118 U. S. 520, 6 S. Ct. 1172, 30 L. Ed. 156; The Scotland, 105 U. S. 24, 26 L. Ed. 1001; and Hartford Acc. & Indemnity Co. v. Southern Pacific, 273 U. S. 207, 47 S. Ct. 357, 71 L. Ed. 612, in which Chief Justice Taft said, at page 216 of 273 U. S. (47 S. Ct. 359):

"The proceeding partakes in a way of the features of a bill to enjoin a multiplicity of suits, a bill in the nature of an interpleader, and a creditor's bill. It looks to a complete and just disposition of a many-cornered controversy, and is applicable to proceedings in rem against the ship as well as to proceedings in personam against the owner; the limitation extending to the owner's property as well as to his person."

This was an action to recover on a stipulation given in lieu of the vessel. At page 217 of 273 U. S. (47 S. Ct. 360), the Chief Justice further said:

"Where a court of equity has obtained jurisdiction over some portion of a controversy, it may and will in general proceed to decide all the issues and award complete relief, even where the rights of parties are strictly legal and the final remedy granted is of the kind which might be conferred by a court of law" — and enforced the liability upon the ad interim stipulation. At bar it was admitted that this court acquired jurisdiction by filing of the petition.

This court has uniformly, since White v. Island Trans. Co., 233 U. S. 346, 34 S. Ct. 589, 58 L. Ed. 993, entertained jurisdiction to limit liability where there was a single claimant or a single owner. The Supreme Court in White v. Island Trans. Co., supra, held that section 4283, R. S. (46 USCA § 183; Comp. St. § 8021), broadly declares that liability for any damages occasioned without the privity or knowledge of the owner, shall not exceed the value of the vessel and pending freight, and that the succeeding sections relate to procedure, and that plurality of claims is not essential.

The Court of Appeals of this circuit, in Shipowners' & M. T. Co. v. Hammond Lumber Co., 218 F. 161, held that the rule is established by the White Case, supra, that the Limited Liability Act of Congress authorizes a proceeding for limitation of liability "whether there be a plurality of claims or only one."

Circuit Judge Learned Hand, in The George W. Fields (D. C.) 237 F. 403, said: "It is now settled that a single claim will support a limitation proceeding."

Circuit Judge Rudkin, for the court, in Strong v. Holmes (C. C. A.) 238 F. 554, said that the value of the vessel or that there is but one claimant is immaterial.

To the same effect is The T. W. Wellington (D. C.) 235 F. 728; Tug No. 16 (D. C.) 237 F. 405; The Erie Lighter No. 108 (D. C.) 250 F. 490, and The Aquitania (D. C.) 14 F.(2d) 456.

Several of the cases cited by the claimant have been expressly disapproved. That liability may be limited where there is a single claim and a single owner as against a common-law action is stare decisis. The right asserted to a common-law action and a jury trial has likewise been determined against the claimant's contention in this court (The Victoria D. C. 3 F.2d 330) and by the Supreme Court in Re East River Towing Co. (The Edward), 266 U. S. 355, 45 S. Ct. 114, 69 L. Ed. 324, 1925 A. M. C. 33. In The Edward, the Circuit Court of Appeals of the Second Circuit certified to the Supreme Court two questions (291 F. 1017):

"1. If an action at law be brought, such as is described in Merchant Marine Act 1920, § 33 (41 Stat. 1007), can the prosecution thereof be enjoined by the injunction provided for in admiralty rule 51?

"2. Has Merchant Marine Act 1920, § 33, impliedly repealed the statute regarding limitation of liability of shipowners, so far as claims or suits based on personal injuries to or death of seamen are concerned."

And the court held that an action at law under section 33 of the Merchant Marine Act to recover damages for the death of a seaman from personal injuries suffered in the course of his employment is subject to the injunction provided for by admiralty rule 51 (Admiralty Rules of Practice, 254 U. S. 25), in aid of limitation of liability proceedings, and in answering the second question held that section 33 of the Merchant Marine Act did not impliedly repeal the statute regarding limitation of liability of the shipowner, so far as claims or suits based on personal injuries to or death of the seamen are concerned.

At page 367 of 266 U. S. (45 S. Ct. 115), in The Edward, supra:

"The short point is that the later act determines the extent of the seaman's substantive rights and the measure of damages. Panama R. R. Co. v. Johnson, 264 U. S. 375, 391, 44 S. Ct. 391, 68 L. Ed. 748. * * * If there is no surrender of the ship, which we presume is made relatively rarely, the limited liability statutes play no part. Section 33 has no relation to means of collection but only to...