137 F. Supp. 311 | S.D.N.Y. | 1955
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 opex-ation 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.
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.
There are now two separate funds, one for the tug and one for the barge. Each limitation fund is clearly in excess of the total sum of the claims asserted as against each vessel. A special verdict may be applied for
Finally, the Court retains jurisdiction of the limitation proceeding in the event the petitioner’s right to limit liability of each vessel should be questioned.
The motion is granted. Settle order on notice.
. D.C., 132 F.Supp. 504.
. Cf. Petition of Texas Co., 2 Cir., 213 F.2d 479, certiorari denied Texas Co. v. United States, 348 U.S. 829, 75 S.Ct. 52; George J. Waldie Towing Co., Inc., v. Ricca, 2 Cir., 227 F.2d 900.
. 132 F.Supp. 504, 506-507.
. New York Civil Practice Act, §§ 458, 459.
. Ex parte Green, 286 U.S. 437, 440, 52 S.Ct. 602, 76 L.Ed. 1212.
. Standard Dredging Co. v. Kristiansen, 2 Cir., 67 F.2d 548.
. Cf. Curtis Bay Towing Co. v. Tug Kevin Moran, Inc., 2 Cir., 159 F.2d 273, 276.