237 F. 405 | S.D.N.Y. | 1916
(after stating the facts as above). Judge Brown held in The Garden City (D. C.) 26 Fed. 766, 770, that it was not jurisdictional to allege and prove that there were other claims, when the value of the vessel was greater than the claim actually made, yet it is perfectly clear (page 772) that he did not consider the question irrelevant whether or not such claims were possible. His language in Briggs v. Day (D. C.) 21 Fed. 727, 731, shows the same opinion. Similarly Judge Adams, in The Hoffmans (D. C.) 171 Fed. 455, 462, assumed that, if there were not even “the merest possibility” of future claims, the petition might not lie. The same idea is shown in The George W. Fields (D. C.) 237 Fed. 403, filed April 12, 1915, and in The Defender (D. C.) 201 Fed. 189. If that “merest possibility” do not exist, the petition has been held bad. Shipowners’, etc., Co. v.
It has now been finally decided that a single claim is enough to sustain the petition (White v. Island Trans. Co., 233 U. S. 346, 34 Sup. Ct. 589, 58 L. Ed. 993), contrary to the early impression in this district (the Rosa [D. C.] 53 Fed. 134), and it may be urged that, since theliniitation could be effectively enforced by a state court, where there was only a single claim, that case should be taken as holding that the petition lies, even when the single claim is less than the value of the vessel. Yet in White v. Island Transportation Co., supra, the claim was larger than the value, and all that the case necessarily decides is-that the shipowner in that event has his option of forums; it need not be taken to decide that, where there is no need of any limitation at all, he may enjoin the usual common-law remedies, which are, indeed, preserved by the statute.
If so, the shipowner ought not to be allowed to avail himself of a merely colorable possibility, to say nothing of a manifest impossibility,: such as existed in Shipowners’, etc., Co. v. Hammond Lumber Co., supra. Although the allegation of this petition—i. e., that there “may be” other claims—be not necessary, yet an allegation in the answer might be a defense that there was no possibility of any such. I do not mean to decide that question here, because it is not necessary. I only mean to say that, if it be a good defense, at least the respondent must undertake the burden of establishing it, and that he may not do-so by affidavit, but must do so by trial. White v. Island Trans. Co., supra, 233 U. S. 350, 34 Sup. Ct. 589, 58 L. Ed. 993. In short, a-shipowner as such is prima facie entitled to the privilege, and the limitation will be denied' him, if at all, only when the respondent can show that it can have no possible value to him. Consequently a mere affidavit like this does not require any answer; if it did, the shipowner must look about and learn the facts at his peril. The best that thurespondent can do is by traverse to the petition or by defense in his answer to prove that there is no’ such possible danger.
This application is therefore denied, but the cause may have a preference, if the respondent wishes it.
