204 F. 295 | S.D.N.Y. | 1912
(after stating the facts as aboye). The affidavit of Mr. Brougham sets forth that he did not read the injunction or monition order handed to him. This is no excuse. He is declared in contempt, of which he may purge himself by tendering a consent to the discontinuance of the action of Natsch within one week.
The motions made to lift the injunction raise a point of great importance, which in my opinion (after consulting the authorities cited) is not open in this court. The recent precedents all point one way. I feel sure that the settled practice and almost universal opinion in this district for many years is expressed by In re Myers Excursion & Navigation Co. (D. C.) 57 Fed. 240, affirmed as The Republic, 61 Fed. 109, 9 C. C. A. 386; and The Eureka (D. C.) 106 Fed. 672.
The first of these litigations illustrates the view that the sole function of a limitation proceeding was to limit recovery in the event of a l'imitable liability being found. If the liability was not capable of limitation, the proceeding was at an end. Both in the District Court and the appellate court, this doctrine is not asserted but is assumed. The Eureka, supra, is but another illustration of the same doctrine in holding that no ground for an admiralty limitation proceeding existed, if the only thing to be limited was the extent of one man’s recovery. It was held that the statute in terms limited the proceeding to a “pro rata distribution [in] cases in which there are several distinct claims.” The case last cited has been openly departed from in The Hoffmans (D. C.) 171 Fed. 455, and this upon the distinct ground (page'461) that:
“If there is more than one forum in which shipowners can obtain relief under the statute, it would seem that the right of selecting the court rests with them.”
The assumption which underlies the action of the courts in The Republic, supra, has been distinctly denied in the Ninth Circuit by In re Pacific Mail S. S. Co., 130 Fed. 76, 64 C. C. A. 410, 69 L. R. A. 71, and Oregon, etc., Co. v. Portland S. S. Co. (D. C.) 162 Fed. 912. Whatever doubt might be left after reading these cases is, I think, set at rest by Dowdell v. U. S. District Court, 139 Fed. 444, 71 C. C. A. 288, a case which is resolvable into the following statement, viz., that where a petitioner had taken the usual proceeding, had limited the time within which claims might be offered, and was thereafter declared to possess no right of limitation, such petitioner was still protected by the original proceeding against any claim not filed within the time limited.
It does not appear from any of these cases what would be the effect of an ultimate denial of limitation upon a party injured who had never
Again without discussion the doctrine of all the cases last cited has received practical approbation by our Circuit Court of Appeals. In re Jeremiah Smith & Sons, 193 Fed. 395, 113 C. C. A. 391. An inspection of the record on appeal in this case shows that, although two possible claimants appeared and answered, only one filed a claim, so that, when the Circuit Court of Appeals issued its mandate, it practically directed the District Court to proceed to assess damages in an ordinary suit in personam for personal injuries.
One further step has been attempted in Delaware River Ferry Co. v. Amos (D. C.) 179 Fed. 756, where as against a single claimant, whose demand was obviously less than the value of the res, the petition was dismissed. It thus appears that District Courts have been commanded by Circuit Courts of Appeal to maintain the concourse of claimants and give full damages in proceedings brought for limitation after limitation denied.
It follows that the query suggested by these motions is this: Why-should this court authorize proceedings in other tribunals, when it has power to dispose of the matter itself as part of a properly pending litigation? The petitioners outflank this inquiry by denying that any power exists in the corirt to mitigate the severity of the statute, pointing out that the injunction is unnecessary and unimporant, and that the filing of the petition and issuance of the monition automatically stop all other litigation by legislative power, which is higher than the mandate of a court. The San Pedro, 223 U. S. 365, 32 Sup. Ct. 275, 56 L. Ed. 473.
No opinion is expressed on this point. .Tt is unnecessary to do so; for, if a limitation proceeding is but the exercise of the statutory right, of a shipowner (under some circumstances) to bring his creditors into concourse, it must follow that this court should not (if it can) intrust to any other tribunal full and complete adjudication of the rights of all persons properly brought into court. It makes no difference that death cases are of such a nature that some proceeding for the enforcement of the asserted right must be brought within a time limit. To such claimants this tribunal is open. The only reason for their not coining in is a desire for a jury trial. Such trial is not a part of the right; it is no more than an incident of the remedy.
The motions to modify the injunction are severally denied.
