THE FAIRWILL, 6853.

• Decision Date: 28 September 1944
• Docket Number: No. 6853.,6853.
• Citation: 56 F. Supp. 887,1944 AMC 1454
• Parties: THE FAIRWILL. Petition of SANDERS.
• Court: U.S. District Court — Eastern District of Virginia

56 F. Supp. 887

1944 AMC 1454

THE FAIRWILL.

Petition of SANDERS.

No. 6853.

District Court, E. D. Virginia.

September 28, 1944.

Baird, White & Lanning and Vandeventer & Black, all of Norfolk, Va., for petitioner, W. S. Sanders, and the tug Fairwill.

R. Arthur Jett, of Norfolk, Va., for R. C. Huffman Const. Co.

WYCHE, District Judge.

On November 5, 1942, in the Elizabeth River, Norfolk Harbor, the motor vessel Lillian Anne, owned by Eularia M. Gatewood, collided with Dump Scow 72-H in tow of tug Fairwill. The scow was owned by the R. C. Huffman Construction Company and the tug Fairwill by W. S. Sanders. On or about January 30, 1943, the R. C. Huffman Construction Company filed a libel against Eularia M. Gatewood, the motor tug Fairwill and W. S. Sanders to recover collision damages in the sum of $47,500, alleged to have been suffered by the scow. Because the motor vessel Lillian Anne was then under requisition to the Government, the United States was also made a party respondent. On February 12, 1943, Sanders filed a petition for exemption from, and limitation of, his liability under R.S. §§ 4281-4285, 46 U.S.C.A. §§ 181-185.

The petition, following the usual practice, prayed:

(1) That a due appraisal be had of the value of petitioner's interest in the tug Fairwill, etc., and that a Commissioner be appointed to make such due appraisal;

(2) That an order be entered either for the payment of the appraised value into court or, at the option of petitioner, for the posting of a stipulation for value in the amount of the appraised value, providing for the payment of the appraised value into the court as and when ordered by the Court; and

(3) That petitioner be permitted forthwith to file an ad interim stipulation for the estimated value of the tug Fairwill, as shown in affidavits filed with the petition, "such ad interim bond or stipulation to be continued in force and effect until the value of petitioner's interest in said tug and aforesaid pending freight (charter hire) and stores shall be fully determined and that the petitioner shall thereupon either pay the amount into court or shall enter a proper stipulation therefor, and thereupon cancel, terminate and discharge said ad interim bond or stipulation."

On the same day, following the customary practice, an ad interim stipulation was given for the value of the tug Fairwill at the end of its collision voyage on November 5, 1942, as estimated in affidavits annexed to the petition, to wit, the sum of $14,641.66 with interest at the rate of six per cent. per annum from the date of the collision, November 5, 1942. Thereupon, on February 13, 1943, an order was entered by the late lamented Judge Luther B. Way restraining the prosecution of any claims growing out of said collision except in the limitation proceeding, and directing that a monition issue requiring all persons claiming damages for any loss resulting from said collision to appear before "this Court" and make due proof thereof, and directing the marshal to release the attachment on the tug Fairwill.

W. E. Kyle, Esq., was duly appointed Special Commissioner to take proofs and report to the court his conclusions as to the value of the interest of the petitioner in said tug Fairwill on November 5, 1942. His report, filed on November 26, 1943, found the value of the owner's interest in the tug for the purpose of this limitation proceeding to be $18,030.

No exceptions having been filed to said report, the R. C. Huffman Construction Company, owner of the Scow 72-H, now moves before me for an order confirming the Special Commissioner's report and requiring petitioner to pay into the Registry of the Court, within ten days of the entry of the Order, the said sum of $18,030, plus interest thereon at the rate of six per cent. per annum from November 5, 1942, the date of the collision between the tug Fairwill and the Scow 72-H, or give a stipulation for the payment of said appraised value into court with interest at said rate from November 5, 1942.

The only matter in controversy before me is the item of interest, it being contended on behalf of the petitioner that the deposit of the appraised value, $18,030, without interest, or the giving of a stipulation for value with sufficient surety for the payment of said appraised value into court with interest at the rate of six per cent. per annum from the date of the stipulation would be a fulfillment of his obligation under general Admiralty Rule 51, 28 U.S.C.A. following section 723, which reads in part as follows: "Limitation of Liability—How Claimed. When any ship or vessel shall be libeled, or the owner or owners thereof shall be sued, for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or merchandise, shipped or put on board of such ship or vessel, or for any loss, damage or injury by collision, or for any act,...