*1 drafting faulty document: In into to constitute sufficient facts fails hardly presume con- event we can alleged offense, adept the defendant would be more at Sonnen- sustained. viction cannot solving 1920, problem Cir., Nor can berg States, 264 F. involved. United v. say this indictment meets 12(b) (2), F.R.Cr.P. U.S.C. Rule 327. (cid:127) clarity required by Rule 7 standard present of- part of the An essential (c). particular the absence fense is specific stamps, manner affixed in of conviction is re- (1). It is 5008(b) in Section described versed. The case is remanded to the dis- any stamps. just Even proceedings the lack trict court for further con- stamps showing requisite were opinion. sistent with this defense, unless is not on the container they proved affixedin it is also grand Here, prescribed manner. the jury crime described indicted for the statute, apparently no one the voided appeal. mistake until this discovered the charged by Concededly offense Sec- substantially (1) 5008(b) differ- repealed one stated ent than the longer stamps no need denote law. The payment quantity indicate the They tax. must however be af- Matter of the Petition of LAKE TANK- opening
fixed so as to be broken ERS CORPORATION for Exoneration purpose merely their show the de- Liability. from or Limitation of tax rather than its termination 268, No. Docket 23965. payment. Appeals United States Court of agree Second Circuit. cannot with the con We prejudice 17, defend tention no to the Argued 1956. Feb.
ant could from the admitted situ result April Decided ation. He was forced to defend elements an offense which are longer proscribed. For conviction un
der the new statute additional elements proved spelled
must are not out in the indictment. The defendant something guilty
have been but the adequate
indictment was notice of government the crime with which at charge
tempted to him. argued regulations
It is also
require stamps described old change- pending statute to be used stamp over return meth- collecting
od of tax. The defendant
could not discover that from indict-
ment, unless he made an exhaustive an- alysis statute, of the voided the new stat-
ute, date, the latter’s effective the old regulations regula- and the interim new legal tangle It
tions. have been Department
that misled the of Justice *2 July 10, yacht
On 1954 the Blackstone was down the Hudson River. tug, Cities, push- Petitioner’s Eastern towing No. L.T.C. proceeding up was the river. The Black- ran into stone the bow of L.T.C. No. capsized. persons Ten of the eleven The aboard Blackstone were rescued Cities, appellee’s The Eastern but dece- Appellee began was dent drowned. Supreme Court, in the York action County, against petitioner to re- damages cover loss alleging life, her husband’s petitioner’s part op- of its of both the eration other actions Four survivors begun Court, alleging in the State dam- ages aggregating $157,500. On filed, 6, 1954, petitioner in the court be- low, petition for its exoneration from petitios liability. to such amount bond as alleged September 23, vessel. with- On 1955 the ten occurred that the collision claimants, petition- appellee, filed than out fault on the stipulations agreeing usual was en- to in- er’s servants and that *3 alleged exoneration; that crease the it also amounts of their claims as to titled made, petition- judgments nor in to enter excess collision occurred without the that, stipulated waiving knowledge of privity if li- the and amounts and or er’s any judicata able, petitioner claim res the limit its of relative to to was entitled liability respect issue of interest limited of its with to to the value given day However, either of was same bond the vessels. On the both vessels. appellee stipulation reducing only $118,542.21, representing the filed a her for tug against tug petitioner claim East- as the interest to of freight. $100,000 pending Eastern On Cities to and as to the Cities and her ern restraining barge $150,000. agreed to 8, 1954, usual She also the begin- to issued, enjoining increase the amount of either of said the order was against ning pe- vessels, claims as prosecution to either of the of claims to stipu- proceed- except enter excess the limitation titioner against pe- ing; lated amounts of her claims not limited to the that order was them, tug. titioner as owner of either of and judicata she waived claim of res Appellee appeared specially moved and relative to the issue of limited petition and to vacate the to dismiss the of either of the vessels. restraining ground order, the on again Appellee value of moved for to include the modification bond failed restraining barge Judge the L.T.C. No. 38. order. Wein- interest in titioner’s Judge opinion granting by Ryan, wrote feld tion, D.C., an the mo- This was denied motion restraining 811, and, F.Supp. 137 on order in Jan- who continued 17, uary force, conditioned, however, upon peti- 1956 entered an order to that filing explicitly effect. order His was based an additional bond for the tioner’s failing barge, appellee’s stipulation (including par- on value of its interest releases, tial which sworn would be modified to she had be- restraint notary public). stipulation only to fore a In so as to in effect suits continue releases, agreed tug. against petitioner and she to as owner reduce against petitioner (1) her claim bond to then filed additional Petitioner tug barge (2) barge $165,000. as to the in the sum of for Appellee $150,000. thereupon filed, The other ten claims total- $9,525. proceeding, $250,000. her led claim Oth- claims, aggregating $9,525 filed er opinion, Judge In his said in Weinfeld rescued survivors. on behalf of the ten F.Supp. “In [137 312]: addition to moving Judge Appellee moved before claimant there are ten then others restraining possi- and the eleven claims all order constitute Weinfeld to vacate suit, theory ble claims which could be filed in this proceeding state court on as to her security that, on behalf as a result of the disaster total since the barge $283,542.- expired. has the time to file The bond amounted $259,525, up- totalled filed on behalf Eastern Cities 21 and the claims filing stipulations $118,542.21, appropriate is in the sum while the on the against her under with Court’s decision claims asserted in accordance Co., 479, stipulations filed of Texas F.2d the claimants are in Petition $109,525; bond should be lifted. limited to filed be- the restraint motion, opin- in an No. 88 half of the L.T.C. denied Weinfeld F.Supp. 504, D.C., reported sum of while claims as- ion against prejudice applica- stipulations to a further under the without serted appropriate $159,525. appellee are limited in the event claimants filed * ** bringing separate stipulations were filed all are now two claims There
against funds, to each vessel one for the and one for with- 576: clearly FRANK, Judge. fund is Each limitation Circuit of the claims- excess the total sum Co., 2 In Petition Texas stated, spe A each vessel. asserted'as Cir., 482, fol F.2d applied for which cial verdict be lows, here,'in principles applicable spell precise would- out the previous accordance with our decisions: imposed respect toeach ves (1) “Absent insufficient presumed sel. It is not liability' limiting statutory privilege of ap deny appropriate state court will plication forum, con in the nature of non special Thus in verdict. doctrine, (2) veniens the statute verdict, event, there under a gives ship-owner, sued in several suits *4 finding opera is of (even by per places) if in divers divers barge, 'tug tion and not of sons, advantage kinds of over moving recovery, under her claimant’s position. defendants in the Con same stipulation, the amount cofild not exceed ** granted ‘only course is to when Accordingly of her reduced claim. necessary in order distribute remaining judgment of her and the total ‘purpose adequate fund.’1 The of limita post limited bond claims would be proceedings prevent a mul is not to preclude re ed which would for tiplicity but, equitable of suits barge. posted the bond for sort to marshalling provide fashion, of as liability alternatively if And estab pro in rata of an sets—the distribution negligent op solely because of the lished among claimants, of adequate none barge, no recourse could eration of the ” 2 quoted paid We can be in full.’ whom posted bond for the be had as that, provisions 184 46of U.S.C.A. § tug. liability if should be Of course persons, when loss suffered several respect with to both the found “ vessel, ‘and the whole .barge, a would the prevail. different situation freight voyage, is not her for the suffi shipowner petitioner as Since compensation to make cient each of fully protected li limitation of they compensation them, shall receive vessel, ability is no as to there each * * * respec proportion to their why should not be claimant sound reason ”, pro losses’ and that the limitation tive permitted proceed her action with “ ceedings ap purpose ‘for are of her choice.” court—the forum the state * * * among portioning sum ” Appendix opinion court’s parties In the to this thereto.’ Subse- the quently, entitled Judge pertinent parts of are set forth we Matter said same stipu- appellee’s 1955, Corp., Cir., Weinfeld’s order and 2 229 F.2d Trinidad partial releases). (including George Towing her lation 423 and in J. Waldie Co. Judge petitioner order, Ricca, Cir., 900, From Weinfeld’s 2 901. v. 227 F.2d appealed.
has liability Section 184 covers the Hupper Kennedy, Burlingham, Eu- & In the of “the owner” of vessel.” “the gene City, Underwood, New York bar, happens at it case titioner. vessels, owns two liable the conduct of either vessel or both. Rosen, Poughkeepsie, & Frank Rosen sepa Had each vessel been owned City, Mason, York for claimant- C. owner, each owner could in rate have appellee. proceeding. stituted a limitation So CLARK, FRANK here and owner could have instituted one Before Judges. HINCKS, proceeding Circuit such to limit its Bay Towing 388-389; Barge Petition Star Curtis Co. v. Red we cited 1. Here Inc., Cir., 436; Inc., Line, Moran, Cir., Tug 2 160 2 159 F.2d Kevin F.2d D.C., Aquitania, 456, 458, 273, 14 F.2d af 276. Cir., 2 F.2d firmed 20 Petition Moran Trans- 2. Here we cited Cir., Corp., portation F.2d tug, think, tug-owner however, and We Weinf eld’s to the value barge-owner to order should be amended to include the another following: judg- “If the value of claimant obtains a limit enlarge its ment in her cannot suit for an The owner court rights injunc- mere ex- amount excess of under the statute proceedings. permanently enjoining pedient coupling tion will issue the two her collecting from such excess unless the regard Accordingly, we must rests on a verdict al- just separate comprised if case it two locating the amount as between the libel- basis, On that ant as owner of the and as owner of For, affirm. we barge respectively. Thus if vessel, the or as owner of each jury exceeds and the (including appellee’s stipulation der and solely finds libelant liable owner comply partial releases) what tug, collecting enjoined she will be required Trinidad case. We jury If excess. finds order, stipulation, interpret solely libelant is liable as owner of the partial releases, to relate to *5 li barge, enjoined she will be from collect- ability petitioner personam the of in as ing any $150,000.” amount in excess of separately. owner of each All the vessel appar The other claimants are against tug’s petitioner claims as the ently proceed content to for a determina $109,525, owner come an amount less proc tion of their in claims the limitation $118,542.21 pe than the bond of as to eeding.3 possible It is that the court titioner’s as owner of that ves below, passing claims, may in on their sel; against petitioner all the claims as adjudge petitioner liable, not while barge’s owner come to appellee’s the state court in suit ad $165,000 amount less than the bond of judge otherwise. But such an eventual petitioner as owner of that vessel. Con ity present difficulty. will For the sequently, there was not an insufficient adjudication proceeding in the limitation respect petitioner’s liability in of concerning liability non-liability or either as owner of the or as owner the other claimants will not res serve as judicata estoppel by or or verdict for Judge said, As Weinfeld ver- against appellee suit, in her state court dict state court suit will decide adjudication concerning nor will the li petitioner whether is liable for the con- ability non-liability appellee’s or in state vessel, duct of either or neither or both court suit have such an effect for or vessels. That will suit not interfere against the other claimants the limita jurisdiction admiralty with the exclusive proceeding. affecting of the court below the limita- Modified and affirmed as modified. liability: (a) judgment tion of No operate (b) Ap- court can in rem. APPENDIX pellee’s stipulation (which includes a January 17, Weinfeld’s order any judicata waiver of claim of res rele- reads, part, as follows: vant to the issue of limited petitioner as owner of either the “Ordered that the motion of Lillian ** * barge) partial releases, the gether and her to- M. Henn for an order vaca- jurisdiction with the ting restraining reserved order entered herein court, prevent any the district 8th, effective to her determination the state court of pending Supreme Court, suit State either vessel. York, County, of New Ulster be and the suggests perhaps application Petitioner Moreover, to relax the proceed claimants restraining seek to order as to them must be problem elsewhere. The resultant seasonably, can- Trinidad; made said they appro- arise unless and until file the limitation was insti- priate stipulations partial year ago. releases. tuted a four months granted stipulators hereby respects in all same for value is reduced to following ; subject, however, condi- the sum of tions : “(c) that she will increase per- “1. that claimant shall amount of of said either claims prosecute vessels, in Su- mitted to her suit either of the said York, preme Court, stated, above State of County only judgment; stipulators any and its for value at injunction beyond Octob- “2. future date stated; so amounts enjoins 8th,
er
insofar as it
elsewhere
collection of
“(d)
judg-
that she will not enter
proceeding,
than in this
shall be
any
ment
stipulated
Court
excess of the
continued;
amounts
her claims
against petitioner
expressly
“3.
re-
Court
as owner of ei-
jurisdiction
vessels;
serves
to reestablish
ther
said
adjudicate
peti-
concourse and to
“(e)
hereby
any
that she
waives
right
to a
tioner’s
judicata
claim of res
relevant to the
event
ulti-
the funds should
issue
spect
limited
with re-
mately prove
inadequate;
to be
vessels,
to either of said
based
“4.
no event
on a
shall
other Court.
recover from
claimant
the fund
partial
“2. As her unconditional
as re-
amount in excess of her claim
represents:
release she
hereto-
duced
releases
*6
“(a) that the total amount of all
given until all other claims
fore
against
claims filed herein as
the
full;
have
been satisfied
tug
petition-
Eastern Cities and the
the
“5.
that
Court further
re-
er,
owner,
$109,525;
as her
jurisdiction
proceeding
tains
of this
total amount of all claims filed here-
against
petitioner’s
event that
against
barge
as
L.T.C. No.
right
to limit
of
barge
either
petitioner,
owner,
and
as her
tug
Cities or
L.T.C.
Eastern
$159,525;
any
questioned in
No. 38
should
“(b) that in consideration of the
other forum.”
entry
upon
stipula-
of an order
this
stipulation
Appellee’s
partial re-
and
tion, pursuant
to the decisions of
read,
part, as
leases
follows:
Weinfeld,
Honorable Edward
Unit-
“1.
affirms
She reiterates and
Judge,
ed States District
dated De-
stipulation,
the terms of
written
30th, 1955, modify-
cember 29th and
Sep-
on
heretofore executed
her
ing
injunctive
order entered
acknowledged
1955, duly
6th,
tember
8th, 1954,
permit
herein
Notary Public of the State
before a
prosecution
of her suit in Su-
York,
County,
Dutchess
and
New
Court,
preme
York,
State
23rd,
September
on
filed herein
County,
hereby
she
releases
1955, providing:
discharges
petition-
forever
and
against
“(a)
her claim
that
as
assigns
er, its successors and
tug
Cities,
ad in-
Eastern
tug
Eastern Cities and the
stipulation for
filed on
terim
value
barge
unconditionally
L.T.C. No'. 38
behalf,
and its
its
partially
but
to the extent herein-
stipulators for value
is reduced
described
all
after
causes of
$100,000;
the sum of
whatsoever,
law,
action
in ad-
against
miralty
against
“(b)
equity
her claim
which
as
barge
had,
she ever
now
L.T.C. No.
ad in-
them
has or
stipulation filed
her successors hereafter
shall
terim
on
behalf,
petitioner reason of the
its
have
death of
given
10th, 1954,
July
fore
until all other claims
Robert C. Henn on
resulting
full;
between
have
satisfied in
been
from a collision
Blackstone,
yacht
on
the motor
“(e)
further
re-
Court
passenger, with the
which he was a
jurisdiction
tains
against
of this
barge
No. 38 in tow
L.T.C.
the event that
tug
Cities,
the Hudson
Eastern
right
limit
of either
being
pur-
River;
intent
it
barge
Eastern Cities or
L.T.C.
pose
it be
of this
release
questioned
38No.
should be
difference be-
to the extent
other forum.
orig-
her
the amount of
claim
tween
inally
Whereof,
“In
I
Witness
have
sum of
filed herein
my
seal,
hereunto set
hand and
as
amount
and the reduced
the Administratrix of the
Estate
heretofore, stipulated
her
claim
Henn, deceased,
Robert C.
the 7th
against
Cities of
Eastern
as
day
January
year
One
hereby
$100,000, so
the amount
Fifty-
Thousand
Nine Hundred
and the
such
released
six.
being
$150,000; and
it
titioner
“Lillian M. Henn L.S.
purpose of
intent and
the further
Administratrix of the
Estate
partial to the
release that it be
Henn,
Robert C.
deceased
between the
of the difference
extent
“(Verified
January 7, 1956, by
originally filed
claim
amount of her
Henn,
claimant.)”
Lillian M.
$250,000 and
in the sum of
herein
claim
amount
the reduced
HINCKS,
stipulated
(dissenting).
Circuit
heretofore
barge
$150,000, so
38 of
L.T.C. No.
My
say:
regard
brothers
“We must
hereby
released
the amount
just
comprised
sepa-
this case
as if it
two
petitioner is
such
and the
rate
On that
$100,000.
basis, we affirm.”
claims may fixed, doctrine is and the Texas
inapplicable. RYNO, Appellant,
Charles A.
v. America,
UNITED STATES Appellee.
No. 14793. Appeals
United States Court Ninth Circuit.
April