DISTRICT COURT, E.D. NEW YORK
August 16, 1940
THE JOSEPH O'DONNELL. THE S & H NO. 1; DALY
SOUND & HARBOR TOWING CORPORATION
The opinion of the court was delivered by: ABRUZZO
ABRUZZO, District Judge.
This is a motion to strike out part of the answer.
The libel in this action was originally filed on January 5, 1939. An amended libel was filed December 15, 1939. On November 6, 1939, an interlocutory decree pro confesso was entered, but subsequent to that date, the default was opened and Sound & Harbor Towing Company was given further time to file its answer. On April 5, 1940, the respondent set up the issue of limitation of liability.
The statute involved is Section 185, Title 46 U.S.C.A., as amended June 5, 1936, c. 521, section 3, 49 Stat. 1480, providing as follows: "The vessel owner, within six months after a claimant shall have given to or filed with such owner, written notice of claim, may petition a district court of the United States of competent jurisdiction for limitation of liability within the provisions of this chapter * * *."
Counsel for the libellant claims that under this statute the six months' period began to run on June 30, 1938, the date of the survey of the barge. If this date is rejected, counsel for the libellant asserts, then the time began to run on January 5, 1939, when the libel was originally filed in this court.
The respondent evidently takes the position that December 15, 1939, the date of the filing of the amended libel, is the pertinent date, and that the six months' period began to run at that time. Therefore, respondent feels that the statute was properly set up when its answer was filed on April 5, 1940.
Respondent's position is untenable. The six months' period began to run at least on January 5, 1939, the date of the filing of the libel.
The motion is therefore granted. Settle order on notice.
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