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IN RE UNITED STATES LINES

July 9, 1985

In the Matter of the Complaint of UNITED STATES LINES, INC., As Bareboat Charterer of the S.S. AMERICAN TRADER for Exoneration From or Limitation of Liability, Plaintiff


The opinion of the court was delivered by: LEVAL

MEMORANDUM AND ORDER

PIERRE N. LEVAL, U.S.D.J.

 United States Lines, Inc., as owner and bareboat charterer of the vessel S.S. AMERICAN TRADER petitions in admiralty for limitation of its liability pursuant to 46 U.S.C. § 185. Death claimaints Marcia J. Rose, Alfredo Valverde, Lieselotte Bello and Shirley Becker move to dismiss the petition as time-barred under 46 U.S.C. § 185.

 Facts

 The following facts are undisputed: On November 30, 1983, a large wave hit the vessel, S.S. AMERICAN TRADER, while she was en route from California to Hawaii causing the death of four crew members, Dennis Rose, Oscar Bello, Kaliko Chang, and Alfredo Valverde. On about December 24, 1983, Marcia Rose's attorneys notified U.S. Lines by certified letter that they had been retained to represent her in "an adversarial proceeding" as to all matters arising out of the death of her husband, Dennis Rose.

 The following suits were then filed against U.S. Lines seeking damages for the deaths of the four crew members: (1) in federal court on January 13, 1984, by Lieselotte Bello for the death of her husband, crew member Bello, seeking $500,000 damages; (2) in federal court on April 13, 1984 by Shirley Becker for the death of her uncle, crew member Chang, seeking $1 million in damages; (3) in New York state court on July 6, 1984 by Marcia Rose and her two children for the death of her husband, crew member Rose, seeking $35.5 million in damages; and (4) in New York state court on October 25, 1984 by the New York County Public Administrator on behalf of crew member Valverde for $2 million in damages.

 On October 10, 1984, U.S. Lines filed this petition. It seeks to limit U.S. Lines' liability for damages arising out of the accident to the value of the vessel, plus pending freight, the amount of $15,861,474.83, on the contention that the injuries were incurred withouT the privity or knowledge of the owner. The claimants move to dismiss the petition on the grounds it was not filed within six months after plaintiff received notice of the Bello lawsuit as required by 46 U.S.C. § 185(a).

 The matter at issue is not necessarily the shipowner's right to limitation of liability. Limitation of liability may also be pleaded by an owner in answer to a lawsuit without a six-month bar. Se Deep Sea Tankers, Ltd. v. Long Branch, 258 F.2d 757, 772-73 (2d Cir. 1958)(shipowner can raise plea of limitation under 46 U.S.C. § 183 in answer to complaint even where § 185 petition would be timed-barred), cert. denied, 358 U.S. 933, 3 L. Ed. 2d 305 , 79 S. Ct. 316 (1969). By this petition, U.S. Lines seeks certain procedural advantages and possibly also economic advantages resulting from the posture in which the limitation claim is raised.

 Discussion

 Title 46 U.S.C. § 185 provides, in relevant part:

 
The vessel owner, within six months after a claimant shall have given to or filed written notice of claim, may petition a district court of the United States of competent jurisdiction for limitation of liability within the provisions of this chapter. *fn1"

 When the shipowner receives written notice of a claim, he has six months "to investigate whether the amount of the claim or other claims likely to be the subject of litigation arising out of the same occurence may exceed the value of his ship." Matter of the Complaint of Morania Barge No. 190, Inc., 690 F.2d 32, 33 (2d Cir. 1982); see Grasselli Chem. Co. No. 4, 20 F. Supp. 394, 396 (S.D.N.Y. 1937)(if shipowner fails to file petition within six months of receiving first claim, right to file petition is lost entirely as to all subsequent claims arising out of the same occurence). Moreover, the owner must file the petition within six months after receiving written notice of any claim even if it is not clear how many claims will be filed or what their total amount will be. See Morania Barge, 690 F.2d at 34; In re Allen Spooner & Sons, Inc., 253 F.2d 584, 586 (2d Cir.)(shipowner can file petition even when the notice of claim is equivocal and amount of claim is not stated), appeal dismissed, 358 U.S. 30, 3 L. Ed. 2d 48, 79 S. Ct. 9 (1958).

 In Morania Barge, however, the Court of Appeals made an exception to the six-month rule. It held that the limitations period begins to run "only upon its appearing that there is a reasonable possibility that the claims would exceed the value of the ship." Id. at 34. There plaintiff had continually stated in the complaint and bill of particulars that he was seeking damages of $366,563.94, an amount substantially less than the value of the ship and freights. Four and one-half years after the action was begun, plaintiff amended the complaint to increase the amount of the damages to $2.5 million, which exceeded the amount of the shipowner's fund. The shipowner filed a petition for limitation. The district court dismissed the petition as time-barred, but the Court of Appeals reversed, holding that the shipowner had a right to rely on the amount of damages stated in the complaint, noting that the shipowner had no reason to believe that the amount claimed would exceed the value of the fund.

 U.S. Lines contends that the Morania Barge exception should apply in this case. It argues that until the Rose lawsuit was filed in July 1984 claiming $35.5 million it had no reason to believe that the total number of claims would exceed the limitation value. Until July 1984, only two other claims had been filed, one (Becker's claim) based on an attenuated relationship between the decedent and the claimant (uncle and niece). Moreover, when the ship had docked after the accident in January 1984, the United States Coast Guard had made an ...


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