3 F.2d 330 | W.D. Wash. | 1924
(after stating ing the facts as above). The motion must be denied. From the statements in the several claims filed it is clear that the condition that obtained in the steerage was common, and, if these claimants are entitled to recover, other passengers may have equal right, and the court cannot say that, if 43 claimants are entitled to $£5,000, exclusive of costs, the remaining 145 would not be entitled to more than the difference be
If the petitioner has a right to limit liability, it is the duty of this court to adjudicate tho rights between the parlies and not shirk responsibility by permitting claims for damages to be litigated in the state court. In Re East River Towing Co., the Supreme Comt, on December 8, 1924, said:
“The choice of a jury trial is given when things take their ordinary course, not to break in upon the settled mode of adjustment when the ship is given up.”
The Dauntless (D. C.) 212 E. 455, affirmed in Shipowners’ & Merchants’ Tugboat Co. v. Hammond Lumber Co., 218 F. 161, 134 C. C. A. 575, certiorari denied 238 U. S. 633, 35 S. Ct. 938, 59 L. Ed. 1498, has no application. The liability there was for a single claim, .and the value of the ship largely exceeded the amount thereof. In the Rosa (D. C.) 53 F. 132, it was held a petition in an admiralty court to limit liability and to restrain tho prosecution of a pending action must show the existence or probability of existence of other claims and need of an apportionment.
The order of this court fixing or limiting the time within which claims may be filed is not a bar to the prosecution of an action within the period limited by statute if this proceeding should he dismissed. Hence there is a probability of claims in excess of the value of the vessel and pending freight, and the right of limitation is not defeated by the fact that the claims upon which suit has been commenced do not amount to the admitted value of the ship where there is a probability that there may he other claims. The Defender (D. C.) 201 F. 189.
Proceeding's for limitation of liability may be maintained where the claims are less than the value of the vessel where the aggregate of the claims appears beyond question from the petition or otherwise. The George W. Fields (D. C.) 237 F. 403.
The motion is denied.