Before CLARK, FRANK and HINCKS, Circuit Judges.
In Petition of Texas Co., 2 Cir., 213 F.2d 479, 482, we stated, as follows, the principles applicable here, in accordance with our previous decisions: "Absent an insufficient fund (1) the statutory privilege of limiting liability is not in the nature of a forum non conveniens doctrine, and (2) the statute gives a ship-owner, sued in several suits (even if in divers places) by divers persons, no advantage over other kinds of defendants in the same position. Concourse is to be granted 'only when * * * necessary in order to distribute an inadequate fund.'*fn1 The 'purpose of limitation proceedings is not to prevent a multiplicity of suits but, in an equitable fashion, to provide a marshalling of assets - the distribution pro rata of an inadequate fund among claimants, none of whom can be paid in full.'"*fn2 We quoted the provisions of 46 U.S.C.A. § 184 that, when loss is suffered by several persons, "'and the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of them, they shall receive compensation * * * in proportion to their respective losses'", and that the limitation proceedings are "'for the purpose of apportioning the sum * * * among the parties entitled thereto.'" Subsequently, we said the same in Matter of Trinidad Corp., 2 Cir., 1955, 229 F.2d 423 and in George J. Waldie Towing Co. v. Ricca, 2 Cir., 227 F.2d 900, 901.
Section 184 covers the liability of "the owner" of "the vessel." In the case at bar, it happens that petitioner owns two vessels, and may be liable for the conduct of either vessel or both. Had each vessel been owned by a separate owner, each owner could have instituted a limitation proceeding. So the owner here could have instituted one such proceeding to limit its liability as tug-owner to the value of the tug, and another proceeding as barge-owner to limit its liability to the value of the barge. The owner cannot enlarge its rights under the statute by the mere expedient of coupling the two proceedings.
Accordingly, we must regard this case just as if it comprised two separate limitation proceedings. On that basis, we affirm. For, in respect of petitioner's liability as owner of each vessel, the order and appellee's stipulation (including her partial releases) comply with what we required in the Trinidad case. We interpret the order, the stipulation, and the partial releases, to relate to the liability of petitioner in personam as the owner of each vessel separately. All the claims against petitioner as the tug's owner come to $109,525, an amount less than the bond of $118,542.21 as to petitioner's liability as owner of that vessel; all the claims against petitioner as the barge's owner come to $159,525, an amount less than the bond of $165,000 as petitioner as owner of that vessel. Consequently, there was not an insufficient fund in respect of petitioner's liability either as owner of the tug or as owner of the barge.
As Judge Weinfeld said, a special verdict in the state court suit will decide whether petitioner is liable for the conduct of either or neither vessel, or both vessels. That suit will not interfere with the exclusive admiralty jurisdiction of the court below affecting the limitation of liability: (a) No judgment of the state court can operate in rem. (b) Appellee's stipulation (which includes a waiver of any claim of res judicata relevant to the issue of limited liability of petitioner as owner of either the tug or the barge) and her partial releases, together with the reserved jurisdiction of the district court, prevent any effective determination by the state court of the value of either vessel.
We think, however, Judge Weinfeld's order should be amended to include the following: "If claimant obtains a judgment in her state court suit for an amount in excess of $100,000, an injunction will issue permanently enjoining her from collecting such excess unless the judgment rests on a special verdict allocating the amount as between the libelant as owner of the tug and as owner of the barge respectively. Thus if the judgment exceeds $100,000 and the jury finds libelant liable solely as owner of the tug, she will be enjoined from collecting any excess. If the jury finds that the libelant is liable solely as owner of the barge, she will be enjoined from collecting any amount in excess of $150,000."
The other claimants are apparently content to proceed for a determination of their claims in the limitation proceeding.*fn3 It is possible that the court below, in passing on their claims, may adjudge the petitioner not liable, while the state court in appellee's suit may adjudge otherwise. But such an eventuality will present no difficulty. For the adjudication in the limitation proceeding concerning liability or non-liability to the other claimants will not serve as res judicata or estoppel by verdict for or against appellee in her state court suit, nor will the adjudication concerning liability or non-liability in appellee's state court suit have such an effect for or against the other claimants in the limitation proceeding.
Modified and affirmed as modified.
Judge Weinfeld's order of January 17, 1956 reads, in part, as follows:
"Ordered that the motion of Lillian M. Henn * * * for an order vacating the restraining order entered herein on October 8th, 1954 with respect to her suit pending in the Supreme Court, State of New York, Ulster County, be and the same hereby is in all respects granted subject, however, to the following conditions:
"1. that claimant shall be permitted to prosecute her suit in Supreme Court, State of New York, Ulster County only to judgment;
"2. that the injunction of October 8th, 1954, insofar as it enjoins collection of the judgment elsewhere than in this ...