The opinion of the court was delivered by: BRYAN
This proceeding for exoneration from or limitation of liability arises out of a collision between petitioner's fishing vessel 'Clipper' and claimants' fishing vessel 'Eunice-Lillian' which sank as a result.
The collision occurred on June 12, 1958 approximately 100 miles at sea while the Eunice-Lillian was proceeding from fishing grounds in the Atlantic with a catch of scallops to her home port of New Bedford, Massachusetts, and while the Clipper was on her way to the fishing grounds from her home port of New Bedford, Massachusetts.
The Clipper was tied up at Fulton Fish Market in New York when this proceeding was commenced, and this is the basis of this court's jurisdiction.
The claimants, who are the owners of the Eunice-Lillian, move, pursuant to the 54th Rule in Admiralty, 28 U.S.C.A., and 28 U.S.C. § 1404(a), to transfer the proceeding to the United States District Court for the District of Massachusetts.
28 U.S.C. § 1404(a) provides:
'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.'
As Circuit Judge Lumbard, sitting in the district court, said in New Jersey Barging Corp. v. T.A.D. Jones & Co., D.C.S.D.N.Y., 135 F.Supp. 97, 100:
'These latter words 'where it might have been brought' are, it seems to me, dispositive of the issue before us. Since petitioner had not been sued and his vessel had not been libelled when he brought this action, the only proper venue under Admiralty Rule 54 was 'in the District Court of the district in which the said vessel may be * * *.' Since the vessel was in this district the proceeding could not have been brought elsewhere; therefore according to the clear language of 1404(a) it cannot be transferred elsewhere now under that provision * * *.'
The reasoning of the New Jersey Barging Corporation case applies to the case at bar. I therefore hold, following Judge Lumbard's decision there, that the cause is not transferable under Section 1404(a) since the vessel was in this district when the proceeding was brought and the proceeding could not then have been brought elsewhere.
The next question is whether the transfer provisions of the 54th Rule in Admiralty are applicable to the case at bar. Rule 54 provides:
'The said petition shall be filed and the said proceedings had in any District Court of the United States in which said vessel has been libeled to answer for any claim in respect to which the petitioner seeks to limit liability; or, if the said vessel has not been libeled, then in the District Court for any district in which the owner has been sued in respect to any such claim. When the said vessel has not been libeled to answer the matters aforesaid, and suit has not been commenced against the said owner, the said proceedings may be had in the District Court of the district in which the said vessel may be, but if said vessel is not within any district and no suit has been commenced in any district, then the petition may be filed in any District Court. The District Court may, in its discretion, transfer the proceedings to any district for the convenience of the parties.' (Emphasis supplied.)
While petitioner argues that the last sentence of Rule 54 relating to transfers applies only to cases where the petitioner has the option, under the rule, of commencing the action in any district court, I do not so read the rule. I agree with Judge Lumbard that this provision applies to any situation where the forum chosen by petitioner 'is clearly inconvenient for most of the parties and a substantially more convenient forum is available.' New Jersey Barging Corp. v. T.A.D. Jones & Co., supra, at page 101. Cf. In re Petition of Baker-Whiteley Towing Co., D.C.D.Md., 145 F.Supp. 904; Petition of Southern Steamship Co., D.C.D.Del., 132 F.Supp. 316; Petition of Backman, D.C.D.Del., 122 F.Supp. 896.
The question, therefore, is whether the balance of convenience of the parties warrants a transfer of this proceeding to ...