Petition of A/S J. Ludwig Mowinckels Rederi

• Decision Date: 23 February 1967
• Docket Number: No. 64 Ad. 306.,64 Ad. 306.
• Citation: 268 F. Supp. 682
• Parties: Petition of A/S J. LUDWIG MOWINCKELS REDERI, as owner of the MOTOR VESSEL "RONDA" for exoneration from or limitation of liability.
• Court: U.S. District Court — Southern District of New York

268 F. Supp. 682

Petition of A/S J. LUDWIG MOWINCKELS REDERI, as owner of the MOTOR VESSEL "RONDA" for exoneration from or limitation of liability.

No. 64 Ad. 306.

United States District Court S. D. New York.

February 23, 1967.

COPYRIGHT MATERIAL OMITTED

Haight, Gardner, Poor & Havens, New York City, Charles S. Haight, Joseph C. Sweeney, New York City, of counsel, for petitioner.

Bigham, Englar, Jones & Houston, New York City, Donald M. Waesche, Jr., Douglas A. Jacobsen, New York City, of counsel, for Cargo claimants.

Healy, Baillie & Burke, New York City, Eikel & Goller, Houston, Tex., Nicholas J. Healy, III, New York City, Robert Eikel, Houston, Tex., of counsel, for movant (Bloomfield S.S. Co).

MEMORANDUM

TENNEY, District Judge.

On November 30, 1964, Bloomfield Steamship Company (hereinafter referred to as "Bloomfield") moved herein for an order pursuant to Rules 51 to 55, inclusive, of the General Admiralty Rules, and Rev.Stat. § 4285 (1875), as amended, 46 U.S.C. § 185 (1964), all relating to Shipowners' Limitation of Liability, amending and revoking a prior order of this Court entered herein on October 27, 1964, which allowed the petioner herein, A/S J. Ludwig Mowinckels Rederi (hereinafter referred to as "Mowinckels") to amend its petition to seek limitation of liability as to Bloomfield. Bloomfield further sought to have Mowinckels barred from seeking and attempting to limit its liability on the grounds that it had failed to seek such limitation within the six-month period required by statute, and to compel Mowinckels to dismiss an action in admiralty brought by it against Bloomfield in England.

In view of the complex nature of the litigation a brief chronological review of the proceedings prior to motion of November 30, 1964 would appear to be in order.

On October 1, 1963, the M/V RONDA, owned and operated by Mowinckels, collided with S.S. LUCILE BLOOMFIELD, owned and operated by Bloomfield, in international waters off the entrance to the port of Le Havre, France. RONDA proceeded into the port of Le Havre and thereafter capsized at dock, so that she and her cargo were lost. Promptly thereafter, Atlantic Mutual Insurance Company and others, insurers or owners of cargo on M/V RONDA (hereinafter referred to as "cargo") brought suit in this court against Bloomfield on October 9, 1963 and against Mowinckels on October 11, 1963. Following the institution of suit by cargo, and on October 25, 1963, Bloomfield moved for exoneration from or limitation of liability in the District Court for the Eastern District of Louisiana, New Orleans Division, and Mowinckels was duly served with a monition and restraining order in that proceeding. Mowinckels appeared on November 22, 1963 in the action brought by cargo in this court (i. e., the District Court of the Southern District of New York), and on January 16, 1964 commenced an action in admiralty against Bloomfield in the High Court of Justice, London, England, in which proceeding after the subsequent arrest of the S.S. LUCILE BLOOMFIELD, Bloomfield filed a $425,000 bond. Bloomfield's motion to dismiss the action in the English court was denied on April 24, 1964. The Lucile Bloomfield, 1964 1 Lloyd's L.Law Rep. 324, 329. Bloomfield moved to dismiss the limitation proceeding in Louisiana and to hold Mowinckels and its attorneys in contempt for having violated the restraining order by instituting suit in England. On March 13, 1964, the District Court in Louisiana dismissed Bloomfield's limitation proceeding on the ground that Bloomfield was in fact doing business in New York and that, therefore, Rule 54 of the General Admiralty Rules was not complied with, because limitation proceedings should have been filed in the Southern District of New York. The Court further held that Mowinckels was not in contempt on the ground that the injunction had no extraterritorial effect. In Matter of Bloomfield S.S. Co., 227 F.Supp. 615 (E. D.La.1964), aff'd sub nom. Bloomfield S.S. Co. v. Haight, 363 F.2d 872 (5th Cir. 1966) (per curiam), cert. denied, 386 U.S. 913, 87 S.Ct. 864, 17 L.Ed.2d 785 (U.S. Feb. 13, 1967). Bloomfield thereupon, on March 30, 1964, instituted a limitation proceeding in the Southern District of New York (64 Ad. 303), posting a bond of $750,000. A monition and restraining order were served on Mowinckels on April 7, 1964. Also, on March 30, 1964, Bloomfield filed a libel against Mowinckels in the Louisiana Court to recover collision damages, which proceeding was subsequently transferred to this court (66 Civ. 3575). The following day, March 31, 1964, Mowinckels instituted a limitation proceeding in the Southern District of New York (64 Ad. 306), specifically excepting Bloomfield. On April 17, 1964, cargo moved to dismiss Mowinckels' limitation proceeding in New York on the grounds, among others, that the petition was defective by reason of the exclusion of Bloomfield in violation of Rule 51 of the Rules of Practice in Admiralty and Maritime Cases, and that petitioner had failed to deposit with the court its entire interest in RONDA. Cargo not having filed any claims in the Mowinckels limitation proceeding, their time to do so was extended nunc pro tunc by this court by order dated May 22, 1964 until ten (10) days from the determination of the motion to dismiss. In an opinion dated October 6, 1964, this Court held that Mowinckels' exclusion of Bloomfield was not proper, and accordingly directed that Mowinckels' petition be dismissed unless Mowinckels should, within ten (10) days of the entry of an order based on such decision, file an amended petition pursuant to Rule 23 of the Admiralty Rules, extending the application of the petition for exoneration or limitation of liability and the accompanying restraining order to Bloomfield. In the Matter of A/S J. Ludwig Mowinckels Rederi, 64 Ad. 306, S.D.N.Y., Oct. 6, 1964. An order based on such decision was duly entered on October 27, 1964. Pursuant to said decision, the time for filing answers and claims was extended to ten (10) days after the filing of the amended petition nunc pro tunc as of May 26, 1964.¹ Thereafter, on November 30, 1964, Bloomfield moved to dismiss the amended petition for failure to file within the six-month statutory period, and to stay the admiralty proceedings instituted by Mowinckels against it in England. No similar motion was made by cargo, but they participated as amicus curiae in the arguments on the motion. A determination by this Court, at least as to the motion to stay the English proceedings, having been deferred until a determination by the Court of Appeals for the Fifth Circuit of the dismissal by the District Court in Louisiana of the Bloomfield limitation proceeding and contempt action,² some brief mention should be made of events transpiring since the within motion was instituted on November 30, 1964. In July 1966, the collision liability aspects of the action in England were tried, resulting in both vessels being found equally at fault. Bloomfield appealed from this decision on October 27, 1966. The Bloomfield and Mowinckels limitation proceedings in this court have been consolidated for trial and a pre-trial order entered on November 18, 1966. Mowinckels claims that the decision of the English court is res adjudicata in the limitation proceedings here. The cargo claims filed in the limitation proceedings herein are alleged to approximate $2,000,000 for lost cargo and to represent more than 80 per cent of the value of the cargo aboard RONDA. Cargo claimants with claims alleged to approximate $450,000 are proceeding against Bloomfield and against Mowinckels in The Tribunal de Commerce, at Le Havre, France, the principal claim relating to NATO cargo shipped on board RONDA by the United States. It would appear clear, however, that in view of the limitation proceedings and the collision damage action, all presently in this district, a substantial concourse of claimants exists here. In view of the existence of such concourse, Bloomfield, by motion dated November 21, 1966, sought leave to withdraw so much of its motion of November 30, 1964 as related to the order of October 27, 1964—i. e., that portion of the motion which requested this Court to enter an order dismissing Mowinckels' petition insofar as the petition and restraining order applied to Bloomfield—and to amend said motion so as to seek an order, pursuant to Supplemental Rule F(3) of the Federal Rules of Civil Procedure, specifically enjoining Mowinckels from further prosecution of the English proceedings. Cargo objects to the withdrawal by Bloomfield of the portion of its prior motion as preventing a determination of an issue of great importance to cargo, which cargo may no longer be in a position to bring before the Court on their own motion.³ (Rule 9(l) of the General Rules of this court.) Regardless of cargo's status to object, it would appear advisable in the present posture of the Mowinckels proceeding to determine whether there is legal basis for that proceeding. Accordingly, that part of Bloomfield's motion of November 21, 1966, as relates to the validity of the October 27, 1964 order, will be considered as withdrawn and the Court will consider, with respect to that order, the motion of November 30, 1964 as originally made but as amended with reference to Supplemental Rule F(3).

However, insofar as Bloomfield's motion may purport to combine its motion of November 30, 1964, to stay the English proceedings made in the Mowinckels limitation proceeding, with a similar motion in the Bloomfield limitation proceedings, it is in violation of General Rule 9(o) (2) of this court. To the extent that, in its motion of November 21, 1966, Bloomfield may now seek an order in the Bloomfield limitation proceeding directing Mowinckels to make and prosecute all claims against Bloomfield in Bloomfield's limitation proceeding within such time as this Court may direct or be barred thereafter, it clearly has made a new motion in...