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IN RE GREAT LAKES DREDGE & DOCK CO.

August 3, 1995

In the Matter of the Complaint of GREAT LAKES DREDGE & DOCK COMPANY, Owner of the tug ARTHUR F. ZEMAN, JR., for Exoneration from or Limitation of Liability. In the Matter of the Complaint of LONE STAR INDUSTRIES INC./NEW YORK TRAP ROCK CORP., Owners pro hac vice of Barges #8, #10, #11, #19, #44, #68, #79, #80 and #90, for Exoneration from or Limitation of Liability.

William C. Conner, Sr. United States District Judge


The opinion of the court was delivered by: WILLIAM C. CONNER

CONNER, Senior D.J.:

 Plaintiff Great Lakes Dredge & Dock Company ("Great Lakes") and plaintiff Lone Star Industries Inc./New York Trap Rock Corp. ("Lone Star") have brought separate actions for limitation or exoneration of liability pursuant to 46 U.S.C. § 183(a) and Fed. R. Civ. P. Supplemental Rule F. Certain of the claimants *fn1" in both actions have made timely requests for a jury trial of their claims. For the following reasons, the claimants' request that a jury be empaneled is granted.

 BACKGROUND

 A. Factual and Procedural Background

 On July 30, 1992, a tug owned by Great Lakes was pushing nine scows owned by Lone Star on the Hudson River near Yonkers, New York. The tug and barges collided with a pleasure boat carrying three people. The owner of the pleasure boat, Edward L. Palmer, and his brother, James Edward Palmer, were killed. James J. Palmer, son of James Edward Palmer, was injured.

 On August 31, 1992, Great Lakes filed this action seeking limitation or exoneration of liability under 46 U.S.C. § 183(a). On the same date, this Court entered an Order approving plaintiff's stipulation of the value of the vessel as $ 1,100,000 and enjoining the filing of any suits outside the limitation proceeding.

 On December 18, 1992, Karen Palmer, the wife of Edward L. Palmer, filed claims on her own behalf and as the proposed administratrix of her husband's estate. Those claims allege damages to herself, the decedent and the boat totalling $ 5,000,000. The pleading contains a demand for a jury trial. On January 8, 1993, Jennie S. Palmer, the wife of James Edward Palmer, filed a claim as administratrix of her husband's estate and James J. Palmer filed a claim on his own behalf. Those claims allege damages to the decedent and James J. Palmer totalling $ 40,000,000. The pleading does not contain a demand for jury trial.

 On February 25, 1994, Jennie S. Palmer, on her own behalf and as administratrix of her husband's estate, and James J. Palmer filed suit against Lone Star and the Estate of Edward L. Palmer in New York State Supreme Court. On July 21, 1994, Karen Palmer, on her own behalf and as Administratrix of the Estate of Edward L. Palmer, filed suit in New York State Supreme Court against Lone Star and the captain and helmsman of the tug.

 In response, Lone Star filed an action seeking exoneration or limitation of liability in this Court on September 9, 1994. The case was designated as related to the limitation action previously filed by Great Lakes. This Court entered an Order on September 21, 1994, approving Lone Star's stipulation of the value of the barges and their cargo as $ 990,000, staying the state actions, and enjoining the filing of any further suits outside of the limitation proceeding.

 On November 9, 1994, Karen Palmer filed claims against Lone Star that are identical to those she filed against Great Lakes. Her pleading again includes a demand for a jury trial. On November 10, 1994, Jennie S. and James J. Palmer also filed claims against Lone Star that are identical to those they filed against Great Lakes, with an additional claim by Jennie S. Palmer on her own behalf. Their pleading does not include a demand for a jury trial.

 Great Lakes is a Delaware corporation with its principal place of business in Illinois. Lone Star Industries, Inc. is a Delaware corporation with its principal place of business in Connecticut. New York Trap Rock, Inc., the division of Lone Star Industries that owns or charters the barges involved in the collision, is a Delaware corporation with its principal place of business in New York. *fn2" All of the claimants and the deceased individuals are or were residents of New York.

 Both of the limitation actions were before Judge Vincent L. Broderick until his death, although they were never formally consolidated. The Great Lakes action was transferred to us on March 22, 1995. We held a conference with the parties on April 12, 1995, at which we granted permission for the parties to brief the issue of whether the claimants are entitled to a jury trial of their respective claims. At that time, we were informed of the existence of the related Lone Star action, which was subsequently transferred to us on April 26, 1995.

 B. Legal Background

 The Limitation of Liability Act (the "Limitation Act"), 46 U.S.C. §§ 181-89, provides that:

 
The liability of the owner of any vessel, . . . for any loss, damage, or injury by collision . . . done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not . . . exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.

 46 U.S.C. § 183(a). The Second Circuit has described the primary purpose of the Limitation Act as "providing a marshalling of assets [and] the distribution pro rata of an inadequate fund among claimants, none of whom can be paid in full." In Re Complaint of Dammers & Vanderheide & Scheepvaart Maats Christina B.V., 836 F.2d 750, 755 (2d Cir. 1988).

 A vessel owner faced with potentially large liability arising from a collision may apply to the district court for a determination of whether exoneration or limitation is appropriate. See Fed. R. Civ. P. Supplemental Rule F. Once the limitation action has been filed, the district court "shall enjoin the further prosecution of any action or proceeding against the plaintiff or the plaintiff's property with respect to any claim subject to limitation in the action." Fed. R. Civ. P. Supplemental Rule F(3). All potential claimants must then file their claims against the shipowner in the limitation action.

 Sitting in admiralty, the district court then conducts a proceeding, known as the "concursus," in which it inquires as to whether there was negligence and, if so, whether it was without the privity or knowledge of the vessel owner. If limitation is granted, the district court then determines how the limitation fund should be distributed. See Dammers, 836 F.2d at 755. If limitation is denied, the district court may dissolve the injunction against other proceedings, permitting suits to go forward against the vessel owner in other fora. See Red Star Towing & Transp. Co. v. The Ming Giant, 552 F. Supp. 367, 371 (S.D.N.Y. 1983).

 Because there is no right to a jury trial in actions instituted in admiralty, see Fitzgerald v. United States Lines Co., 374 U.S. 16, 20, 10 L. Ed. 2d 720, 83 S. Ct. 1646 (1963); Dammers, 836 F.2d at 755; see also Fed. R. Civ. P. 38(e), and because the claimants are enjoined from proceeding in other fora once a limitation action is commenced, this procedure necessarily denies claimants their right to pursue their claims before a jury. Dammers, 836 F.2d at 755; see also In Re Complaint of Poling Transp. Corp., 776 F. Supp. 779, 782 (S.D.N.Y. 1991). This result is, however, in direct conflict with 28 U.S.C. § 1333, under which the court has jurisdiction over the limitation action. See Dammers, 836 F.2d at 755; Poling, 776 F. Supp. at 782. That section provides:

 
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
 
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which ...

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