In re Reading's Petition, Civ. No. 6528.

• Decision Date: 02 January 1958
• Docket Number: Civ. No. 6528.
• Citation: 169 F. Supp. 165
• Parties: Petition of Eugene P. READING, Elizabeth, New Jersey, Owner of the Motorboat The CROW'S NEST IIA, her engines, etc., for exoneration from or limitation of liability, civil and maritime.
• Court: U.S. District Court — Northern District of New York

169 F. Supp. 165

Petition of Eugene P. READING, Elizabeth, New Jersey, Owner of the Motorboat The CROW'S NEST IIA, her engines, etc., for exoneration from or limitation of liability, civil and maritime.

Civ. No. 6528.

United States District Court N. D. New York.

January 2, 1958.

Bigham, Englar, Jones & Houston, New York City, Carter & Conboy, Albany, N. Y., for petitioner, John L. Quinlan, John B. Shields, New York City, of counsel.

Millington & Garlick, Lake George, N. Y., for claimant, George H. Beaudin, William W. Millington, Lake George, N. Y., of counsel.

Abelove & Myers, Utica, N. Y., for claimant, Daniel S. Vetromile, Milton A. Abelove, Utica, N. Y., of counsel.

FOLEY, District Judge.

This proceeding under the Federal Limitation of Liability Statutes (46 U.S. C.A. § 183 et seq.) seeks for the petitioner, Eugene P. Reading, exoneration from liability or limitation of liability under such provisions. Such right to contest or limit liability in this fashion by a vessel owner is prescribed in United States Supreme Court Rule 53 of Admiralty Practice, 28 U.S.C.A. The claimants are two in number. One, Vetromile, was a guest aboard Reading's 26-foot Chris Craft semi-cabin cruiser with four other guests and Reading aboard when it lay at a dock adjoining his wife's summer home at Lake George, N. Y. The other claimant, Beaudin, a mechanic from an established boat firm, Scott M. Henderson, Inc., of Cleverdale, Lake George, had come aboard at Reading's request because he could not start the engine, and was there only a few minutes when a violent explosion occurred. There is in the testimony the sharp clash usual in negligence cases as to events just previous to and at the time of the happening of the explosion. Vetromile and Beaudin, as the only claimants here, seek money damages for personal injuries. The factual issues presented as to liability and responsibility based upon fault or lack of due care are simple of solution and such problems are passed upon daily in the Courts of New York.

It is not necessary to discuss the history and intent of the Limited Liability Act. Although Beaudin started his personal injury action in the Supreme Court of New York, Warren County, where he lives and where Lake George is situated, his action was enjoined on the eve of his jury trial and after slight resistance he submitted to this complex federal legislation and procedure. Vetromile has also accepted this limitation proceeding as his day in court.

There are recent excellent reviews of the important cases, history and purpose of the Act by the highest authority. Lake Tankers Corp. v. Henn, 354 U.S. 147, 150-153, 77 S.Ct. 1269, 1 L.Ed.2d 1246; Maryland Casualty Co. v. Cushing, 347 U.S. 409, 413-416, 74 S.Ct. 608, 98 L.Ed. 306. It is a complex subject, and as Mr. Justice Holmes told us long ago: "General propositions do not decide concrete cases." Lochner v. State of New York, 198 U.S. 45, 74, 25 S.Ct. 539, 547, 49 L.Ed. 937. However, it is difficult to apply sensibly the prime and important principle declared inherent in this Act, namely, to encourage investment in American Shipping, and reason what significance an explosion of a motorboat of a well-to-do owner upon an inland lake bears to the safeguarding of such fine objective. Mr. Justice Black, in his dissent in Maryland Casualty, supra, 347 U.S. at page 432, 74 S.Ct. at page 621, puts it rather bluntly: "But neither the Act nor its history indicates a purpose to encourage investment in insurance companies by limiting their liabilities."

Also, in this situation there is not much need to marshal assets in equitable fashion because the fund is $100, and I am sure the claimants would not fight too hard over that distribution. Petition of Texas Co., 2 Cir., 213 F.2d 479, 482; In re Wood's Petition, 2 Cir., 230 F.2d 197, 199, 200, N. 11, cases cited therein. The harsh fact is present that two claimants who desire a jury trial are being deprived of it. If there were only a single claim such effect would be discountenanced. (Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520; In re Putnam, 2 Cir., 55 F.2d 73, 75), and if the fund were greater than the claims the claimant would not be deprived of her common law remedies in the State Courts involving trial by jury. Lake Tankers, supra, 354 U.S. at page 153, 77 S.Ct. at page 1272. These rigid qualifications are not present here, but it seems to me if this Act is to be employed as an offensive weapon, as in the instance here, with a simple accident and few claimants, judicial means of discretion should interpose or legislative changes should be made. Petition of Colonial Trust Co., 124 F.Supp. 73, 76; Vol. 3, Benedict on Admiralty, 6th Ed., page 590. It is true the size of the motorboat is unimportant under the Act and present judicial construction. (46 U.S.C.A. § 188; Petition of Colonial Trust, D.C., 124 F.Supp. 73; Petition of Hocking, D.C., 158 F.Supp. 620; Petition of Liebler, D.C., 19 F. Supp. 829). I do not read Blackler v. F. Jacobus Transportation Co., 2 Cir., 243 F.2d 733 as carte blanche authority for injunction and concursus in all these situations. If complicity in the fault is obvious, in my judgment, it should not be granted when the claimants resist. See also Deep Sea Tankers v. The Long Branch, 2 Cir., 258 F.2d 757, 772.

My review of the testimony and depositions, and recollection of the witnesses who appeared before me, will not allow the placing of liability and responsibility for this unfortunate accident upon owner Reading. The foundation of liability for negligence is knowledge, or what is deemed in law to be the same thing, namely, opportunity by exercise of reasonable diligence to acquire knowledge of peril which subsequently results in injury. Nisbet v. Van Tuyl, 7 Cir., 241 F.2d 874. Issues of negligence call for the exercise of common sense and sound judgment under the circumstances of particular cases. Schultz v. Pennsylvania Railroad Co., 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668. Failure to guard against a remote possibility of accident, or one which could not in the exercise of ordinary care be foreseen, does not constitute negligence. Lane v. City of Buffalo, 232 App.Div. 334, 338, 250 N.Y. S. 579. If the doctrine of unseaworthiness has any effect under the pertinent facts in this case where a boat is at a dock about to be or being checked by a mechanic, such unseaworthiness, if any, does not preclude limitation unless it exists with the owner's privity or knowledge. Vol. 3, Benedict on Admiralty, 6th Ed. page 382; The Spare Time II, D.C., 36 F.Supp. 642, 644; The Pegeen, D.C., 14 F.Supp. 748, 750, 752-753.

Applying all these standards, the evidence does not disclose any definite fault in the boat or its engines known to the petitioner or that should have been known to him in the exercise of reasonable care, or any neglect of duty on his part to ascertain danger or peril...