Kutger v. United States, 672.
| Decision Date | 18 December 1958 |
| Docket Number | No. 672.,672. |
| Citation | 169 F. Supp. 104 |
| Parties | Joseph P. KUTGER and Samuella Sue Kutger, his wife, Libellants, v. UNITED STATES of America, DeWitt W. Smith, as Custodian of the Eglin Air Force Base Consolidated Non-Appropriated Welfare Funds, and the National Surety Corporation, a New York Corporation, Respondents. |
| Court | U.S. District Court — Northern District of Florida |
James W. Middleton, Fort Walton, Fla., John A. Madigan, Jr., of Caldwell, Parker, Foster, Madigan, Oven & Moriarty, Tallahassee, Fla., for libellants.
Keen, O'Kelley & Spitz, Wilfred C. Varn, U. S. Atty., Talahassee, Fla., for respondent.
Libellants, husband and wife, initiated action against respondents under the provisions of 46 U.S.C.A. § 741 et seq., and 46 U.S.C.A. § 781 et seq., alleging that the wife suffered injuries while she was a passenger in a motor boat which collided with another boat under the ownership, custody, or control of respondents Smith and United States.
By separate answers these respondents respectively seek to invoke the protective provisions of 46 U.S.C.A. § 183 (a) limiting liability to the value of the offending vessel. To this libellants have excepted to both answers on the grounds that the defense of limitation of liability has not been timely filed. They urge that the provisions of Title 46 U.S.C.A. § 185 make it mandatory that a vessel owner petition for limitation of liability within six months after a notice of claim has been filed and that the provisions of Section 183(a), supra, are inapplicable.
A review of the legislative history and operation of these statutes and cases arising thereunder does not support libellants' contention. The statutory right to limit liability is found in 46 U.S.C.A. § 183, which provides that liability of a vessel owner shall not exceed the value of the vessel so long as the owner is without privity or knowledge. It has long been the rule that this right to limit may be set up as a defense in the answer. The Scotland, 1881, 105 U.S. 24, 33-34, 26 L.Ed. 1001.
In 1936 amendment to the Limitation Liability Act was adopted, limiting to six months the time in which shipowner must petition after receiving written notice of claim (46 U.S.C.A. § 185). It is undisputed here that no attempt has been made by either of the respondents to avail themselves of this amendment, but they have sought to evoke the protective provisions of 46 U.S.C.A. § 183(a) as a defense by answer to the libel. It is also clear that such answer was filed more than six months from the initial date of libellants' claim. It is the contention of the libellants that the petition for limitation of liability as set forth in the 1936 amendment is now the exclusive means by which a shipowner may insulate himself. To this the Court cannot ascribe, based upon an examination of the purpose which the Congress intended by such legislation. In 1851 our maritime industry was given a favored position by the enactment of what is now 46 U.S.C.A. § 183(a) granting the shipowner the "substantive" right to limit liability. Over three-quarters of a century later what is now Section 185 of Title 46 was adopted, giving to shipowner a "procedural" device for limitation of liability whereby the owner within six months of claim could tender the vessel or value thereof in Court and cause the marshaling of all outstanding claims against him, thereby avoiding a multiplicity of suits. The purpose of limitation of liability by petition was to aid shipowners rather than circumscribe liability. Prior to the 1936 amendment, the defense of limitation of liability could be accomplished by answer, and there appears no sound reason to find that Congress intended to withdraw that privilege. See The Chickie, 3 Cir., 1944, 141 F.2d 80, 84-85. For other cases, see Moran Towing & Transportation Co. v. United States, D.C.S.D.N.Y. 1948, 80 F.Supp. 623; Cantey v. McLain Line, Inc., D.C.S.D.N.Y.1941, 40 F.Supp. 887; Carpenter v. Mary R. Mullins, Inc., D.C.D.Mass.1940, 33 F.Supp. 10. For a Florida case, see Coryell v. Pilkington, D.C.S.D.Fla.1941, 30 F.Supp. 142, 145, affirmed sub nom. Coryell v. Phipps, 5 Cir., 1942, 128 F.2d 702, affirmed 1943, 317 U.S. 406, ...
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