DISTRICT COURT, E.D. NEW YORK
September 26, 1940
The opinion of the court was delivered by: BYERS
BYERS, District Judge.
Claimant seeks an order dismissing the petition for limitation because the petitioner is shown to have replaced the steering wheel and part of the steering gear of the tug Mattie, which was surrendered to a trustee, after the collision which caused claimant's damage, but prior to the filing of the petition.
This is said to constitute a failure to comply with the statute (Title 46 U.S.C. § 185, 46 U.S.C.A. § 185) which in terms permits the "deposit with the court * * * a sum equal to the amount or value of the interest of such owner in the vessel and freight * * * or (b) at his option shall transfer * * * to a trustee * * * his interest in the vessel and freight * *."
So much of the statute is not essentially different from the statute examined in The City of Norwich (Place v. Norwich & N.Y. Transp. Co., 118 U.S. 468, 6 S. Ct. 1150, 1156, 30 L. Ed. 134. It was there said in construing the law: "* * * but it enables the owner to lay out money in recovering and repairing the ship, without increasing the burden to which he is subjected."
In Boston Marine Ins. Co. v. Metropolitan Redwood Lumber Co., 9 Cir., 197 F. 703, a vessel's value after the collision was reduced for the purposes of limitation, by salvage and towing charges to port.
The claimant hints that there was something sinister in the replacement of so much of the steering gear, after this collision. That is argumentative and speculative in the extreme, and nothing in the statute indicates that a vessel owner loses any right to repair or maintain his vessel because it has been in a collision, and because he may wish to surrender it to a trustee in a limitation proceeding.
Issues respecting unseaworthiness and owner's privity can be fully explored on the trial of the cause, and the replacements referred to may be pertinent thereto, but no reason has been shown for dismissing the petition.
Motion denied. Settle order.
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