The opinion of the court was delivered by: PLATT
Martin Coleman moves for an order permitting him to file a claim in the limitation proceeding and the Third-Party Defendants (except the Third-Party Defendant Rowayton Boatworks) move for an order dismissing the cross-claims of the Fourth-Party Defendant Martin Coleman as against them. There is also pending before this Court the question of whether the claimant and third-party plaintiff Barbara Buzan's demand for a jury trial should be stricken.
On August 28, 1973, while the 47' "KENNER SWANEE" 1969 Houseboat known as the Tralee was docked and refueling at Marine Basin Marina in Brooklyn, New York, an explosion occurred in the yacht's engine compartment and she was destroyed by fire. In the accident Barbara Buzan and Martin Coleman, the yachtowner's son, were injured.
On February 25, 1974, complainant, James F. Coleman, as owner of the yacht, filed a complaint in this Court seeking exoneration from or limitation of his liability as a shipowner under 46 U.S.C. § 183 et seq. Pursuant to an order dated February 26, 1974, of this Court, (Judd, J.), complainant was directed to and did publish notice of the instant proceeding in the New York Law Journal. This order also directed that the Clerk issue a notice to all persons asserting claims with respect to which the complaint seeks limitation and exoneration "admonishing them to file their respective claims with the Clerk of this Court in writing and to serve on the attorneys for the complainant a copy thereof on or before April 17, 1974 or be defaulted . . . ".
The only claim
received by complainant was one made by claimant, third-party plaintiff Barbara Buzan. On April 17, 1974, Ms. Buzan filed an answer and claim in this limitation proceeding and in May of 1975 issued third-party summonses and complaints against the above-named third-party defendants.
Thereafter, on December 11, 1975, and March 26, 1976, the third-party defendants Kohler Manufacturing Company ("Kohler") and Rex Marine Center ("Rex Marine"), respectively, filed fourth-party complaints against Martin Coleman as to which (although the same were never served upon him) he on June 6, 1979 appeared, answered and interposed counterclaims as well as his claim in this limitation proceeding.
Asserting that Martin Coleman's claim was not timely, since it was not made within the deadline set by this Court's order of February 26, 1974, the attorneys for James F. Coleman returned these papers and Martin Coleman made this motion.
Rule F(2) of the Supplemental Rules for Certain Admiralty and Maritime Claims prescribes that the complainant's complaint for limitation:
" . . . shall state the voyage, if any, on which the demands sought to be limited arose, with the date and place of its termination; the amount of all demands including all unsatisfied liens or claims of liens, in contract or in tort or otherwise, arising on that voyage, so far as known to the plaintiff, . . . "
Rule F(4) of said Rules provides, in pertinent part, that:
"The plaintiff not later than the day of second publication shall also mail a copy of the notice to every person known to have made any claim against the vessel or the plaintiff arising out of the voyage or ...