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IN RE NEW JERSEY BARGING CORP.

October 15, 1958

Petition of NEW JERSEY BARGING CORPORATION (DEL.), a corporation, for exoneration from or limitation of liability as owner of THE Barge PERTH AMBOY NO. 1


The opinion of the court was delivered by: CASHIN

Report of Commissioner To Take Proof on Claims.

To the Honorable Judges of the United States District Court for the Southern District of New York:

 By order of this Honorable Court (JOHN M. CASHIN, United States District Judge), made and entered in this proceeding on May 31, 1956, I, Sanford H. Cohen, was appointed Commissioner to take proof concerning: (1) the compliance of all filed claims with the monition, the Admiralty Rules of the Supreme Court of the United States and the rules and practice of this Court, (2) the amount and validity of all filed claims, and (3) the priority, if any, of all filed claims, and upon the completion of such proofs to report thereon with all convenient speed to this Court with the evidence taken before me in respect of the claims and my opinion concerning the stated matters. I duly filed my oath as such Commissioner with the Clerk of this Court on or about September 27, 1956.

 I therefore respectfully report that up to and including July 30, 1957, the date of closing of hearings herein, there were presented to and filed in the Court various claims, which claims are listed in Schedule 'I' attached to and made a part of this report. The claims in question number 155, and aggregate the sum of $ 603,612.27, as appears on Schedule 'I' referred to. Each and every claimant listed in Schedule 'I' received due notice of the commencement of the hearings before the Commissioner.

 A number of such claims were expressly withdrawn by the claimants filing same, a schedule of the claims so withdrawn being attached to and made part of this report as Schedule 'II'.

 In addition, a number of claims were abandoned and defaulted upon, default being noted by the Commissioner who in this report recommends dismissal of the claims in question, a list of such claims being attached to and made part of this report as Schedule 'III'. Prior to the default being noted as last stated, the Commissioner caused to be sent to each of the claimants who had not theretofore appeared, or to his attorney if at one time he had appeared by attorney, a letter advising the particular claimant or his attorney that there had been no appearance on the claimant's behalf pursuant to any of the notices served upon the claimant and that his claim would be heard on a date specified in the letter, at which time he would be required to appear and present his evidence or his default would be entered. Sample forms of letters so sent out are Exhibits 103, 155 and 156.

 Attached hereto is a list of the claims remaining to be determined by the Commissioner, such claims being the claims set forth in Schedule 'I' after eliminating therefrom the claims set forth in Schedules 'II' and 'III', a list of the claims so remaining to be determined to and made part of this report, with the recommended damage allowance.

 At the outset, the Commissioner is confronted with questions raised by the petitioner as to compliance of filed claims with the monition, with the Admiralty Rules of the Supreme Court and with the rules and practice of this Court.

 Question of Compliance of Filed Claims with the Monition.

 The monition required all cited persons claiming damages for any loss, damage, injury or destruction to:

 'serve and file with the Clerk of this Court at the United States Court House, Foley Square * * * their respective claims for any and all losses, damages, and/or injuries in writing and under oath, and serve copies thereof on the proctors for the petitioner on or before the 1st day of February, 1955 at 10 o'clock in the forenoon * * *.'

 This requirement was in conformity with Rule 52 of the Admiralty Rules of the Supreme Court of the United States, 28 U.S.C.A. specifying that:

 'Claims shall be filed with the Clerk of the Court in writing under oath and a copy shall be served upon the proctor for the petitioner on or before the return day of the monition.'

 With respect to certain other claims, a copy of the claim was not filed with the Clerk of the Court on or before February 1, 1955, as the monition required.

 With respect to certain other claims, a copy of the claim was not served on the proctors for the petitioners on or before the same February 1, 1955 date prescribed in the monition.

 With respect to still other claims, the claim was not verified by the claimant, verification having been either by the proctor for the claimant or having been entirely omitted.

 Further in this report, in the examination of the individual claims and the testimony in support thereof, reference is made to the above situations as to each of the claims.

 The petitioner contends that the question whether a late claim, or a claim in any way not complying with the monition, should be allowed despite non-compliance is not one of the matters referred to the Commissioner and that the latter should merely report in each instance whether the claim complied with the monition, leaving it to the Court to determine the legal consequences and effect thereof.

 The order of reference states:

 'Ordered, Adjudged and Decreed that the matter of the claims herein be and it hereby is referred to Hon. Sanford H. Cohen, Esqs., 16 West 46th Street, New York City, as Commissioner, to take such proof as may be offered concerning (1) the compliance of all filed claims with the monition, the Admiralty Rules of the Supreme Court of the United States and the rules and practice of this Court, (2) the amount and validity of all filed claims and (3) the priority, if any, of all filed claims and upon the completion of said proofs to report thereon with all convenient speed to this Court with the evidence taken before him in respect of the claims and his opinion concerning the stated matters aforesaid;'

 My powers as Commissioner are, of course, strictly limited and confined by the terms of the order of reference and it would obviously be improper for me to go beyond. Mitchell v. Kelsey, D.C.N.Y., 17 Fed.Cas.No.9,663; Waterman v. Morgan, D.C.N.Y., 29 Fed.Cas.No.17,259.

 Nevertheless, it is my view that as Commissioner appointed by the Court to report to the Court on the proof, 'with the evidence taken before me in respect of the claims and my opinion concerning the stated matters', I should go beyond a mere mechanical transmitting of the claims asserted to be in technical noncompliance with the monition and rules, but rather should give my opinion concerning these matters as the order of reference appears to indicate and require.

 Fundamentally, it is to be borne in mind, the procedure and practice of admiralty in this country is extremely liberal, the rules governing such practice being even less technical than those in equity. Deupree v. Levinson, 6 Cir., 1950, 186 F.2d 297, certiorari denied 34u U.S. 915, 71 S. Ct. 736, 95 L. Ed. 1351; Rice v. Charles Dreifus Co., 2 Cir., 1938, 96 F.2d 80; Bombace v. American Bauxite Co., 5 Cir., 1930, 39 F.2d 867; The Cleona, D.C.S.D.N.Y.1930, 37 F.2d 599; The Speybank, D.C.D.Md.1928, 28 F.2d 436; Cataldo v. United States, D.C.S.D.N.Y.1952, 108 F.Supp. 560.

 In the Deupree case, supra, the Court stated, in language which appears to apply fully to this situation (Allen, C.J. 186 F.2d at page 303):

 'It has always been the practice in American admiralty courts to allow the parties every opportunity to place their whole case before the court and to enable the court to administer substantial justice between the parties. It is therefore the long-established rule that omissions and deficiencies in pleadings may be supplied and errors and mistakes in practice in matters of substance as well as of form may be corrected at any stage of the proceedings for the furtherance of justice. 2 Benedict on Admiralty (6th Ed.), 557.'

 In the Rice case, supra, the Circuit Court in this Circuit stated likewise (96 F.2d at page 83):

 'procedure in the admiralty is proverbially plastic'.

 In the Bombace case, supra, the Court stated with even more clear applicability (Foster, C.J., 39 F.2d at page 869):

 'Admiralty permits extreme liberality in pleading and practice, and technicalities are not allowed to interfere with the due administration of justice. The Syracuse, 12 Wall. 167, 20 L. Ed. 382.'

 In the Cleona case, supra, District Judge Woolsey emphasized the lack of technicality of admiralty procedures and practice, as follows (37 F.2d at page 600):

 'fortunately, admiralty practice is plastic. It is largely judge-made, and consequently not technical -- in fact, it is less technical than equity practice.'

 In the Speybank case, supra, the Court similarly stated (28 F.2d at page 437):

 'It is well settled that admiralty proceedings partake of the nature of proceedings in equity, so that the importance which the common law attaches to formalities is, to a large extent, ignored.'

 In the Cataldo case, supra, the situation was well reviewed and summarized by District Judge Irving R. Kaufman, as follows (108 F.Supp. at page 563):

 'The respondent further excepts to the amended libel on the ground that it was not timely served, in that it was served several days beyond the time allowed in an order of Judge McGohey of this Court. The order permitted the amended libel to be served on or before August 29, 1952.

 'On August 1, 1952 the libellant served on the proctors for the respondent 'a notice of amendment' to the libel. No objection was made to this 'notice' at the time it was served. When no answer was forthcoming by the early part of September, 1952, proctor for libellant called this to the attention of the proctors for the respondent and was informed that the 'notice' was being disregarded as insufficient and that an amended libel would be necessary. On September 11, 1952, libellant's proctor served and filed an amended libel to which this exception is directed.

 'It would be an injustice, indeed, to defeat the libellant's right to a determination on the merits upon a ground so narrow.'

 'Volume 2, Benedict on Admiralty, page 556 et seq. discusses the policy of the admiralty courts and it is clear from it that it has always been the practice in the American admiralty courts to allow the widest latitude in pleading to the parties, so that the case may be placed before the court, in toto, on its merits, without permitting mere technicalities to interfere with this right.

 'At page 557 Benedict states that it has always been the policy of American admiralty courts 'never to allow a party to overcome his adversary by the mantraps and spring guns of covert chicanery, or by the surprises and technicalities of mere pleading or practice. Therefore, on proper cause shown, omissions and deficiencies in pleadings may be supplied and errors and mistakes in practice, in matters of substance as well as of form, may be corrected at any stage of the proceedings, for the furtherance of justice."

 When force is ascribed to these clear and often repeated expressions by the Court, it becomes manifest that narrow technicalities such as the petitioner may be here seeking to invoke should not come in the way of the principal task that courts of admiralty are called upon to perform, namely, the doing of substantial justice between the parties.

 Benedict on Admiralty (6th ed., vol. 3, Sect. 518) says on the subject specifically of 'late claims':

 'So long as the limitation proceeding is pending and undetermined, and the rights of the parties are not adversely affected, the court will freely grant permission to file late claims, upon an affidavit reciting the reasons for the failure to file within the time limited. If the commissioner to receive claims has already rendered his report and finished his work, the court may ...


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