Petition of Texas Co.

• Decision Date: 18 October 1948
• Docket Number: No. 154-314.,154-314.
• Citation: 81 F. Supp. 758
• Parties: Petition of TEXAS CO. The LATIN AMERICAN.
• Court: U.S. District Court — Southern District of New York

81 F. Supp. 758

Petition of TEXAS CO.

The LATIN AMERICAN.

No. 154-314.

United States District Court S. D. New York.

October 18, 1948.

Barry, Wainwright, Thacher & Symmers and Pyne, Lynch & Smith, all of New York City (Joseph M. Brush and Edward C. Kalaidjian, both of New York City, of counsel), for petitioner.

Purdy, Lamb & Catoggio, of New York City (Thomas J. Irving, of New York City, of counsel), for claimant, Andrew Verbesky.

LEIBELL, District Judge.

The Texas Company as owner of the steamtug Latin American instituted a proceeding in this Court on February 26, 1948 for exoneration from or limitation of liability. 46 U.S.C.A. § 183. The tug, with a barge alongside (the Texas 373), was in a collision with the Victory II, a fishing vessel, in the Kill Van Kull on August 16, 1947. In the limitation proceeding Andrew Verbesky as owner of the Victory II filed a claim on May 28, 1948 for $15,000 damages to his vessel. A number of passengers on the Victory II have filed claims for personal injuries in a total amount of $57,500. The value of the tug "Latin American" is put at $30,000.

The Texas Company now moves for leave to file a petition under the 56th Admiralty Rule, 28 U.S.C.A.¹ impleading Andrew Verbesky and the Victory II in the limitation proceeding, asserting that if the Texas Company is "held liable to any of the claimants in this proceeding, it is entitled to indemnification or contribution from the Victory II and its owner, Andrew Verbesky".

The petition which the Texas Company begs leave to file contains the following prayer for relief: "Wherefore, petitioner prays that process in due form of law may issue against the oil screw Victory II, her engines, etc., and that all persons claiming any interest therein may be cited to appear and answer under oath all and singular the matters aforementioned, and that process in personam in due form of law may issue against Andrew Verbesky citing him to appear and answer under oath all and singular the matters set forth herein and that the respondent may be proceeded against as if originally made a party herein and if the court shall find that the claimants are entitled to a decree then that such a decree be entered against the respondent herein and that petitioner have such other and further relief in the premises as to the court may seem just."

It was alleged in the petition of the Texas Company for exoneration from or limitation of liability that Verbesky, as owner of the Victory II, had filed a libel in the Eastern District against the Texas Company to recover damages, in the sum of $15,000. It does not appear that Verbesky has filed a limitation proceeding in respect to the Victory II in any district.

The proctors for Verbesky oppose the present application of the Texas Company on the grounds that the 56th Admiralty Rule does not apply, that no party may be impleaded in a limitation proceeding, and that the owner of the vessel who brings the limitation proceeding cannot recover anything from anybody in that proceeding. Verbesky's proctors argue that by filing a claim in this limitation proceeding Verbesky has not made a general appearance herein, and that the filing of the claim was in a way mandatory because the limitation proceeding restrains Verbesky and every one else from instituting or prosecuting any claim against the Texas Company except in the limitation proceeding. The court file in this case does not contain any formal notice of appearance by Verbesky in this proceeding or any answer of Verbesky to the Texas Company petition for exoneration or limitation of liability. Other claimants have answered the petition.

The order entered on the Texas Company petition for exoneration or limitation of liability on February 26, 1948, contained, among others, the following provisions: "Ordered, that a Monition issue out of and under the seal of this court against all persons claiming damages for any and all losses, damages or injuries occasioned by or resulting from the collision between the tow of the steamtug Latin American and the fishing boat, Victory II on August 16, 1947, citing them to appear before this court and file their respective claims in writing and under oath with the Clerk of this court on or before the 1 day of June, 1948, at 10:30 o'clock in the forenoon, and to serve copies thereof on the proctors for the petitioner on or before the return day of the monition and to prove the same in accordance with the rules and practice of this court on notice to all parties and with liberty also to anyone filing a claim as aforementioned to answer the allegations of the petition herein under oath; and it is further

* * * * * *

"Ordered, that except in the present proceeding the beginning or prosecution of any and all suits, actions or legal proceedings of every nature or description whatever, against the steamtug Latin American and the petitioner or either of them in respect of any claim arising out of the collision between the steamtug Latin American and her tow and the fishing boat, Victory II which occurred on August 16, 1947, be and they hereby are stayed and restrained until the hearing and determination of this proceeding; * * *"

The monition contained, among others, the following provisions: "You Are Therefore Commanded to cite all persons claiming damages for any loss, damage or injury occasioned by or resulting from this collision to appear before this court and file their respective claims, in writing and under oath with the Clerk of this court at the United States Courthouse, Foley Square, New York 7, New York on or before the 1st day of June 1948 at 10:30 o'clock in the forenoon and to serve copies thereof on the proctors for the petitioner, and

"You Are Also Commanded to cite such claimants as desire to contest the claims of the petitioner and appear and answer the petition herein under oath on or before the last named date, or within such further time as the court may grant and to have and receive such relief as may be due;"

The limitation of an owner's liability when his vessel has been in collision is provided for by statute. 46 U.S.C.A. § 183 states in part:

"§ 183. Amount of liability; loss of life or bodily injury; privity imputed to owner; `seagoing vessel'

"(a) The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person of any property, goods or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.

"(b) In the case of any seagoing vessel, if the amount of the owner's liability as limited under subsection (a) is insufficient to pay all losses in full, and the portion of such amount applicable to the payment of losses in respect of loss of...