PETITION OF LAKE TANKERS CORPORATION

• Decision Date: 29 December 1955
• Parties: Petition of LAKE TANKERS CORPORATION for exoneration from or limitation of liability.
• Court: U.S. District Court — Southern District of New York

137 F. Supp. 311

Petition of LAKE TANKERS CORPORATION for exoneration from or limitation of liability.

United States District Court S. D. New York.

December 29, 1955.

Rosen & Rosen, Poughkeepsie, for claimant Lillian M. Henn, Paul Rosen and Frank C. Mason, New York City, of counsel.

Burlingham, Hupper & Kennedy, New York City, for petitioner. Eugene Underwood and H. Barton Williams, New York City, of counsel.

WEINFELD, District Judge.

The claimant again moves to lift a restraining order entered in the limitation proceeding so as to permit her as administratrix of the estate of her late husband to proceed with her suit against petitioner in the New York State Supreme Court to recover damages for decedent's wrongful death. She there charges petitioner with negligent operation of its tug and barge as a result of which it collided with a yacht on which her husband was a passenger. The yacht sank and the decedent was drowned. The complaint alleges that petitioner's negligent conduct as owner of both the barge and the tug contributed to the death of her husband. The essential facts are set forth in the Court's prior ruling which denied an earlier motion for the same relief, but without prejudice to a renewal in the event appropriate stipulations were filed to bring the total claims as against each vessel within the amount of its bond.¹ Such stipulations have now been filed by all claimants.

In addition to the moving claimant there are ten others and the eleven claims constitute all possible claims which could be filed in this proceeding as a result of the disaster and the time to file has expired. The bond filed on behalf of the tug Eastern Cities is in the sum of $118,542.21, while the claims asserted against her under the stipulations filed by the claimants are limited to $109,525; the bond filed on behalf of the barge LTC No. 38 is in the sum of $165,000, while the claims asserted against her under the stipulations filed by claimants are limited to $159,525. The claimants have further agreed that their claims will never be increased, that they will not enter judgment in any court in excess of the stipulated amounts, and that any claim of res judicata relative to the issue of limited liability, based upon a judgment in any other court, is waived.² Nonetheless the petitioner contends that the motion to vacate the restraining order must again be denied because the amount of the administratrix' claim has not been reduced — "it has only been allocated as between tug and barge" and the aggregate of the claims remain as before. I cannot agree. The claimant has in fact reduced her claim as against each vessel. She will be entitled to the aggregate of her separate and reduced claims only if she succeeds in fastening liability by reason of the negligent operation of both the tug and the barge. As I stated in my earlier opinion: "* * * While it is true liability is charged against the barge * * * as well as the tug, it may eventuate that only the tug will be found liable, in which event the bond posted for the barge could not be availed of."³

There are now two separate funds, one for the tug and one for the barge. Each limitation fund is clearly in...