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THE KEARNY

April 13, 1933

THE KEARNY; In re NEWARK EXPRESS & TRANSPORTATION CO. et al.


The opinion of the court was delivered by: INCH

INCH, District Judge.

Motion to dissolve a restraining order issued by this court in proceedings to limit liability.

On January 27, 1932, Thomas Johnsen, a deckhand on the steam lighter Kearny, was hurt. He claims he was injured by being "crushed between the said steamlighter and a vessel lying in the harbor of New York."

 On September 23, 1932, he commenced a common-law action against the owner and operator of the said steam lighter by service of a summons and complaint in the state Supreme Court, Kings county. On October 15, 1932, that defendant duly answered, and the action was duly noticed for trial, and an application for a preference was made and granted for a trial on January 16, 1933.

 A little more than a week before the said trial would have been reached, and on January 5, 1933, the said owner of the steam lighter duly filed in this court its petition for limitation and exoneration of liability. The usual restraining order was issued which has resulted in thus far preventing the trial at common law.

 On January 16, 1933, Johnsen filed a claim in this limitation roceeding in the sum of $50,000, based on the same cause as set forth in his complaint. On February 23, 1933, the time for other claimants to file, which had been February 15, 1933, was duly closed by an order of this court noting the default of all other claimants.

 The commissioner thereafter reported that the only claim filed was that of Johnsen. There is nothing in the papers to indicate that there are any other claims.

 Johnsen now wants to try his action in the state court. He asks that the restraining order be dissolved or modified to permit him to do so.

 The petitioner objects and insists on Johnsen proving his claim in the admiralty proceeding.

 This clash of rights has repeatedly been before the courts. It seems to me the law has been established by the Supreme Court as to most, if not all, of the situations presented by such conflict.

 In the first place Johnsen, as a deckhand, has a right to a common-law action, with trial by jury. Panama R. Co. v. Vasquez, 271 U.S. 557, 46 S. Ct. 596, 70 L. Ed. 1085, title 46 U.S.C. § 688 (46 USCA § 688) section 24 (3) Judicial Code, title 28 U.S.C. § 41 (3), 28 USCA § 41 (3).

 On the other hand, the owner of the vessel has right to limit its liability, on proof of certain facts, to its interest in that vessel. R.S. § 4283, title 46 U.S.C. § 183 (46 USCA. § 183).

 The mere fact that there is but one claim filed, provided it is large enough, does not affect the situation. White v. Island, etc., Co., 233 U.S. 346, 34 S. Ct. 589, 58 L. Ed. 993.

 The Supreme Court has held that a right to trial by jury, thus here given to Johnsen, should not be arbitrarily taken away by the exercise of the admiralty right of petitioner. Langnes v. ...


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