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CENTRAL HUDSON GAS & ELEC. CORP. v. EMPRESA NAVIER

February 25, 1994

CENTRAL HUDSON GAS AND ELECTRIC CORPORATION, Plaintiff,
v.
EMPRESA NAVIERA SANTA, SA, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 I

 The judgment has been partially satisfied pursuant to a bond posted for release of the Vessel. Central Hudson now pursues in personam claims set forth in 90 Civ 6369 and 91 Civ 1539 against the bareboat charterer of the Vessel, the defendant Empresa Naviera Santa SA ("Empresa"). Central Hudson moves for summary judgment against Empresa based upon its role as bareboat charterer and its knowledge of and opportunity to participate in the trial leading to the judgment. Empresa moves to dismiss Central Hudson's complaint and to vacate an attachment of another of its vessels, the Santa Rosa De Lima (the "Second Vessel") in New Orleans. Central Hudson's motion is granted; Empresa's motions are denied. Central Hudson may submit a proposed judgment within 30 days of the date of this memorandum order, on 15 days' notice to Empresa.

 II

 Empresa filed a "Claim of Owner" of the Vessel on July 3, 1990, prior to trial of the in rem suit against the Vessel, and conceded in its answer that it had a "bareboat hire purchase charterparty" with respect to the Vessel and was the employer of the crew of the Vessel as of January 16, 1988. As such at the time of the harm to Central Hudson's power lines, Empresa was responsible for the damages caused. The Barnstable, 181 U.S. 464, 468, 45 L. Ed. 954, 21 S. Ct. 684 (1901); Santiago v. United States, 102 F. Supp. 425, 426 (SDNY 1952).

 Empresa had ability and full and fair opportunity to participate in the 88 Civ 359 (VLB) litigation; it has not denied being kept informed of the litigation and participating in its strategy. The issues in this case and in 88 Civ 359 (VLB) are identical; they were actually litigated and decided, and the issues determined were necessary to a valid final judgment on the merits. Accordingly, Empresa is bound by the judgment. Parklane Hosiery Co v. Shore, 439 U.S. 322, 331-32, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979); Beck v. Levering, 947 F.2d 639 (2d Cir 1991); Gelb v. Royal Globe Ins Co, 798 F.2d 38, 44 (2d Cir 1986), cert. denied 480 U.S. 948, 94 L. Ed. 2d 794, 107 S. Ct. 1608 (1987).

 III

 Empresa claims that the same res judicata which causes it to be bound by the judgment in the case against the Vessel makes that judgment a bar to claims against Empresa. This contradicts the nature of in personam responsibility as well as that of res judicata. In personam liability is important precisely in situations where a vessel cannot be found or does not provide an adequate source of funds to pay for damages incurred by its improper operation. Res judicata protects parties against duplicative litigation, not against suits designed to collect unpaid portions of judgments already entered, for which the defendant involved is responsible. See generally Belcher Co v M/V Maratha, 724 F.2d 1161, 1163 (5th Cir 1984).

 In a variant of this contention, Empresa relies on the former doctrine that one could not pursue both in rem and in personam claims in regard to the same matter. Burns Bros v. Central RR, 202 F.2d 910 (2d Cir 1953); Sullivan v. Nitrate Producers', 262 F. 371 (2d Cir 1919); Bailey v. Sundberg, 49 F. 583 (2d Cir 1892). This doctrine was abrogated by Rule C(1)(b) of the Supplemental Rules for Certain Admiralty and Maritime Claims, adopted February 18, 1966 and amended effective December 1, 1991, which provides:

 
Except as otherwise provided by law a party who may proceed in rem may also, or in the alternative, proceed in personam against any person who may be liable.

 See Belcher Co v. Alabama, Inc., 724 F.2d 1161, 1163 (5th Cir 1984).

 Moreover, Central Hudson is not seeking additional damages by way of this in personam action, but rather merely to collect the unpaid balance ...


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