IN THE MATTER OF COMPLAINT OF TROPIGAS CARRIERS, INC.

• Decision Date: 26 February 1985
• Docket Number: No. 82-2729-CIV-EPS.,82-2729-CIV-EPS.
• Citation: 603 F. Supp. 940
• Parties: In the Matter of the Complaint of TROPIGAS CARRIERS, INC. As Owners of the Motor Vessel "FRED H. BILLUPS" For Exoneration From or Limitation of Liability.
• Court: U.S. District Court — Southern District of Florida

603 F. Supp. 940

In the Matter of the Complaint of TROPIGAS CARRIERS, INC. As Owners of the Motor Vessel "FRED H. BILLUPS" For Exoneration From or Limitation of Liability.

No. 82-2729-CIV-EPS.

United States District Court, S.D. Florida, Miami Division.

February 26, 1985.

Brett Rivkind, Miami, Fla., for plaintiff.

Murray Sams, Jr., Howard Hill Bennet, Miami, Fla., for claimant.

MEMORANDUM OPINION AND ORDER GRANTING CLAIMANT'S MOTION TO LIFT INJUNCTION; GRANTING MOTION FOR DUE APPRAISAL; REMOVING CASE FROM TRIAL CALENDAR; CANCELLING PRETRIAL CONFERENCE

SPELLMAN, District Judge.

On December 17, 1982, an action was filed in the Circuit Court of the Eleventh Judicial Circuit, Dade County, on behalf of Hector Franco for injuries he sustained while on board the vessel "FRED H. BILLUPS" on June 21, 1982. It is alleged that Plaintiff suffered "severe and permanent injuries as a result of negligence of the captain and crew of the vessel due to the failure of the defendant to properly inspect and warn the plaintiff of an unsafe, dangerous condition; this condition directly contributed to the plaintiff sustaining his injuries." It is also alleged that because proper and timely medical treatment was not provided by the Captain of the vessel, the Plaintiff suffered severe aggravation of his injuries. Punitive damages were claimed. See Hector Franco v. Tropigas Carriers, Inc., No. 82-24318, Dade County Circuit Court, Eleventh Judicial Circuit.

On December 17, 1982, Defendant Tropigas Carriers, Inc. filed in this Court its Petition for Exoneration from or limitation of liability. On January 12, 1983, this Court entered an injunction enjoining the prosecution of all other actions during the pendency of the instant proceedings. The Claimant now moves "for entry of an Order lifting the Injunction on January 12, 1983 in order to allow the pending state common-law action to go forward." Claimant's Motion is granted.

It is by now well-established that the federal courts have exclusive jurisdiction to determine whether or not the shipowner is entitled to a limitation of liability or is exempt from liability. See, e.g., Great Lakes Dredge & Dock Co. v. Lynch, 173 F.2d 281 (6th Cir.1949). Whether or not the Claimant should be barred from proceeding with the common law state court action pending the outcome of the limitation proceeding, however, hinges on whether or not there are single or multiple claims filed against the vessel owner. Courts have consistently held that where there is a single claim brought against the vessel owner, there is no reason to prevent the state court action from proceeding. See Petition of Red Star Barge Line, Inc., 160 F.2d 436, 437 (2nd Cir.), cert. denied, 331 U.S. 850, 67 S.Ct. 1741, 91 L.Ed. 1859 (1947).

Two United States Supreme Court cases established the practice of permitting a single Claimant to proceed with his state court suit. In the first of the two cases, Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931), the Court held that the district court should have allowed the state court action to proceed "retaining, as a matter of precaution, the petition for a limitation of liability to be dealt with in the possible but ... unlikely event that the right of petitioner to a limited liability might be brought into question in the state court." Id. at 541-42, 51 S.Ct. at 247.

In Green, the "unlikely event" occurred. In the state court, Green put in issue the right of the owner to limited liability, by challenging the seaworthiness of the vessel and the lack of the owner's privity of knowledge. When this was brought to the attention of the court in the limitation proceeding, further prosecution of the state court action was enjoined, but Green was given an opportunity to withdraw in the state court the issue as to the right of the owner to limited liability. This disposition of the matter was approved by the Supreme Court in the second case, Ex Parte Green, 286 U.S. 437, 52 S.Ct. 602, 76 L.Ed. 1212 (1932).

As far as can be gathered from Justice Sutherland's two opinions, at no time did Green concede the right of the vessel owner to limit. He was restrained from continuing the prosecution of his action if he insisted on putting in issue in that suit the owner's right to limited liability, but the lifting of the injunction was not conditioned upon his filing a concession of the right but upon his withdrawal of the issue from litigation in the state court. Now, however, a concession is required.

In 1947, the Second Circuit Court of Appeals determined that the Claimant must concede, to proceed with the common law action in state court, that the shipowner has the right to litigate in the federal court limitation proceedings all issues relating to limitation. Petition of Red Star Barge Line, Inc., 160 F.2d 436 (2nd Cir.), cert. denied, 331 U.S. 850, 67 S.Ct. 1741, 91 L.Ed. 1859 (1947). See also Petition of Moran Transportation Corp., 185 F.2d 386 (2nd Cir.1950), cert. denied, 340 U.S. 953, 71 S.Ct. 573, 95 L.Ed. 687 (1951).

The Green cases and the second circuit rulings were conclusively reaffirmed in Lakes Tankers Corp. v. Henn, 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957).^* In Henn, the Court discussed the Limited Liability Act, 46 U.S.C. §§ 181-196, and decided that the shipowner must not be able to "thwart" the claimant's right to a jury trial in state court:

The state proceeding could have no possible effect on the petitioner's claim for limited liability in the admiralty court and the provisions of the Act, therefore, do not control. It follows that there can be no reason why a shipowner, under such conditions, should be treated any more favorably than an airline, bus, or railroad company. None of them can force a damage claimant to trial without a jury. They, too, must suffer a multiplicity of suits. Likewise, the shipowner, so long as his claim of limited liability is not jeopardized, is subject to all common-law remedies available against other p

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