The opinion of the court was delivered by: Spatt, District Judge.
On April 3, 1997 and again on April 25, 1997, Moran (the
"petitioners") filed two limitation petitions seeking
Exoneration from or Limitation of Liability, pursuant to
46 App. U.S.C. § 183, et seq., on behalf of the barge TEXAS and
the tug HEIDE MORAN for any losses, damages, injuries, and
destruction incurred as a result of the December 6, 1996
incident in which a system of submarine electrical cables, that
lie on the floor of the Long Island Sound and that are owned by
the Long Island Lighting Company ("LILCO" or a "claimant") and
the Connecticut Light and Power Company ("CL & P" or a
"claimant"), were allegedly damaged.
On June 27, 1997, LILCO and CL & P filed claims against Moran
in both actions seeking damages for repair of the submarine
electrical cables that were allegedly damaged during the
December 6, 1996 incident. On the same day, LILCO and CL & P
filed a Third Party Complaint against Bayway Refining Company
("Bayway"), seeking indemnification under the LILCO/Bayway
contract for delivery of fuel which was being transported by the
The trial in this case is scheduled to begin six days from
today, on Monday, October 22, 2001. Presently before the Court
is a motion by LILCO and CL & P requesting a finding that Moran
be required to present its proof first at trial. Moran disputes
the arguments set forth by LILCO and CL & P and asserts that the
claimants bear the burden of going forward.
This case is brought pursuant to the Limitation of Liability
Act, see 46 App.U.S.C. § 183 et seq., which provides, in
Thus, generally speaking, if the owner of a vessel lacks privity
or knowledge of the negligence or unseaworthiness that resulted
in the loss or damage, the owner's liability cannot exceed the
value of its interest in the vessel, which is to be valued at
the end of the voyage on which the loss or damage occurred. See
Carr v. PMS Fishing Corp.,
, 4 (1st Cir. 1999).
The determination of whether the owner of a vessel is entitled
to limitation of liability requires a two-step analysis. See In
re Keys Jet Ski, Inc., 893 F.2d 1225, 1230 (11th Cir. 1990);
see also, Carr, 191 F.3d at 4 (limitation of liability
proceedings "lend themselves to a bifurcated analysis"); In re
Royal Caribbean Cruises, Ltd., 55 F. Supp.2d 1367, 1370
(S.D.Fla. 1999) (holding that in a limitation of liability
proceeding, the court must conduct a two-step analysis). "First,
the [C]ourt must determine what acts of negligence or conditions
of unseaworthiness caused the accident. Second, the [C]ourt must
determine whether the ship owner had knowledge or privity of
those same acts of negligence or conditions of unseaworthiness."
In re Keys Jet Ski, 893 F.2d at 1230 (quoting Farrell Lines,
Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976)); see Carr, 191
F.3d at 4; In re Royal Caribbean Cruises, 55 F. Supp.2d at
This two-step analysis engenders a divided burden of proof.
See Carr, 191 F.3d at 4. The claimant bears the initial burden
of proving negligence or unseaworthiness. See Carr, 191 F.3d
at 4; In re Keys Jet Ski, 893 F.2d at 1230; In re Royal
Caribbean Cruises, 55 F. Supp.2d at 1370; Hammersley v.
Branigar Organization, Inc., 762 F. Supp. 950, 954 (S.D.Ga.
1991) (holding that in a section 185 proceeding, the defendant
party, or claimant, must go forward by proving negligence or
unseaworthiness); In re Molai Shipping Corp., 569 F. Supp. 523,
523-24 (S.D.N.Y. 1983) (stating that the representative of the
deceased crew member has the burden of proving that the ship was
unseaworthy or the owner was negligent, and that the
unseaworthiness or negligence was a cause of the injury or
Once the claimant has proved negligence or unseaworthiness,
the burden of proof shifts to the petitioner shipowner to prove
lack of knowledge or privity. See Carr, 191 F.3d at 4; In re
Keys Jet Ski, 893 F.2d at 1230; Tug Ocean Prince, Inc. v.
United States, 584 F.2d 1151, 1155 (2d Cir. 1978) (stating that
the burden of proof as to the absence of privity or knowledge is
on the petitioners); In re Royal Caribbean Cruises,
55 F. Supp.2d at 1370; Hammersley, 762 F. Supp. at 954 (holding
that in a section 185 proceeding, after the claimant proves
negligence or unseaworthiness, the burden of proof shifts to the
petitioner to prove lack of privity or knowledge).
Applying these rules to the facts of this case, the Court
finds that LILCO and CL & P bear the burden of going forward at
trial by putting forth evidence that the damage or loss was
caused by unseaworthiness or negligence. Provided that the
claimants succeed in this first stage of the proceeding, the
burden will shift to Moran to establish that it "was not privy
to, and had no knowledge of, the decisive act of negligence or
condition of unseaworthiness." Carr, 191 F.3d at 4.
If this were a proceeding wherein Moran was a traditional
defendant asserting limitation of liability as an affirmative
defense, the Court might be persuaded by the claimants' argument
that Moran is required to "show how the loss occurred, together
with its lack of privity to or knowledge of the asserted cause."
Terracciano v. McAlinden Construction Co., 485 F.2d 304,
307-08 (2d Cir. 1973). Indeed, "[t]he two-step burden shifting
scheme so familiar to section 185 petitions . . . does not apply
where limitation is raised as a defense to an action."
Hammersley, 762 F. Supp. at 954. In those cases, the order and
burden of proof described in Terracciano, 485 F.2d at 307-08,
applies. However, where, as here, the case is brought pursuant
to the Limitation of Liability Act, 46 App.U.S.C. § 183 et
seq., the claimant proceeds first by proving negligence or
unseaworthiness, at which point the
burden shifts to the petitioner to prove lack of privity or
Having reviewed the submissions of the parties, and based on
the foregoing, it is hereby
ORDERED, that the claimants' motion for an order directing
the petitioners to proceed first at trial is DENIED; and it is
ORDERED, that when the trial commences, the claimants will
proceed first with the presentation of their evidence.
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