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In re Complaint of McAllister Towing & Transportation Co., Inc.

United States District Court, S.D. New York

October 10, 2014

In the Matter of the Complaint of Plaintiffs, McALLISTER TOWING & TRANSPORTATION CO., INC., as Owner, and McALLISTER: TOWING OF NEW YORK, LLC, as Owner Pro Hac Vice, of the Tug PATRICE McALLISTER for Exoneration from/or Limitation of Liability

OPINION AND ORDER

HENRY PITMAN, Magistrate Judge.

I. Introduction

By notice of motion dated July 9, 2014 (Docket Item 79), proposed claimants Collin Ahrens, Mohamed Allali, Russel Henchman, Eric Nightlinger and Mark Philipps ("Proposed Claimants") move for an Order pursuant to Supplemental Rule F(4) and (5) of the Supplemental Rules for Admiralty and Maritime Cases permitting them to file claims and answers nunc pro tunc in this limitation action.[1]

All parties to this action and the Proposed Claimants have consented to my exercising plenary jurisdiction pursuant 28 U.S.C. ยง 636(c).

For the reasons set forth below, the Proposed Claimants' motion is denied.

II. Facts

A. The Fire Aboard the PATRICE McALLISTER and Related Facts

This action arises out of a fatal fire that occurred aboard the tug boat, the PATRICE McALLISTER, on March 27, 2012.

While traveling in international waters on Lake Ontario, en route from Toledo, Ohio to New York, New York, a fire broke out in the engine room of the PATRICE McALLISTER. At that time, the crew of the vessel was comprised of the Proposed Claimants and Matthew Hoban, who was assigned to the engine room. Hoban suffered extremely serious burns to almost 100% of his body as a result of the fire and had to be airlifted off the vessel by the Canadian Coast Guard. He died approximately 18 hours after the fire in a Canadian hospital. The record does not indicate that any other crew members sustained burns although they do claim other injuries.

Prior to the March 27, 2012 fire, the PATRICE McALLISTER's owner had retained Ohio Machinery Company, doing business as "Ohio CAT" ("Ohio CAT"), to perform certain overhaul work on the vessel's engines. What role, if any, Ohio CAT's work played with respect to the fire and the injuries suffered by the crew is one of the major issues in this litigation.

In late April 2012 - approximately one month after the fire - McAllister Towing & Transportation Co., Inc. and McAllister Towing of New York, LLC, the owner and charterer, respectively, of the PATRICE McALLISTER (collectively, "McAllister"), negotiated releases with the five Proposed Claimants. Four of the Proposed Claimants executed the releases in return for a payment of $25, 000; one of the Proposed Claimants received $35, 000 for his release. The releases each provided, among other things, that each of the Proposed Claimants releases and discharges

any cause or thing whatsoever from the beginning of the world to the day or date of this RELEASE, relating to the casualty involving the M/V PATRICE McALLISTER on March 27, 2012.
RELEASOR(S) also conveys and assigns to McAllister Towing and Transportation Co., Inc. as Owner and McAllister Towing of New York, LLC as Owner pro hac vice of the tug PATRICE McALLISTER, all rights to any credits or set-offs in the limitation proceeding entitled "Complaint of Plaintiffs McAllister Towing & Transportation Co., Inc. as Owner and McAllister Towing of New York, LLC as Owner Pro Hac Vice of the tug PATRICE McALLISTER for exoneration from or limitation of liability" at the Southern District of New York (Civil Action No. 12 CIV. 2505 (LAK)).

(Declaration of John P. James in Support of Motion to File Claims & Answers Nunc Pro Tunc, dated July 9, 2014 (Docket Item 80) ("James Decl."), Ex. 1). Four of the Proposed Claimants contend that they executed their releases without consulting maritime counsel (Reply Declaration of John P. James in Support of Motion to File Claims & Answers Nunc Pro Tunc, dated July 30, 2014 (Docket Item 95) ("James Reply Decl."), Exs. 1, 3-5). Proposed Claimant Nightlinger admits that he consulted with an attorney prior to executing ...


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