213 F.2d 479
Petition of TEXAS CO.THE WASHINGTON.
No. 222.
No. 266.
Docket 23008.
Docket 23064.
United States Court of Appeals Second Circuit.
Argued April 7 and 8, 1954.
Decided May 26, 1954.

On November 15, 1952, the Tanker Washington, owned by The Texas Company, collided with the U. S. S. Ruchamkin at sea near Cape Henry, Virginia. As a result, eight personal injury and death actions were filed against The Texas Company in the district court, and a libel was filed by the United States, as owner of the U. S. S. Ruchamkin in the United States District Court for the Eastern District of Virginia. The total damages sought in all these suits was $2,225,180, on April 17, 1953, The Texas Company commenced limitation proceedings in the court below and filed an ad interim stipulation for value in the sum of $2,109,957.58. The usual injunction order was issued against the commencement or prosecution of all suits or proceedings except in the limitation proceeding and a monition issued to all claimants to file their claims on or before June 2, 1953.
The plaintiffs in the pending suits, other than the United States, moved before Judge Ryan for modification of the injunction order, to permit the movants to proceed with their suits but reserving to the court below "the determination of the issue of exoneration from or limitation of liability." Judge Ryan, by an order dated November 17, 1953, denied the motion. He wrote an opinion reading as follows:
"Petitioner, as owner of the tanker Washington has petitioned for exoneration from or limitation of liability under 46 U.S.C.A. §§ 183-9. This motion is to modify a restraining order dated April 17, 1953 which enjoined suits brought by individual claimants.
"Section 183(a) 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.' Movants allege that the sum total of claims against the vessel is less than the value of it and her freight, that this Court has no jurisdiction to grant limitation of liability and consequently no power to enjoin individual actions.
"It appears, however, that the total of the claims originally made was greater than the value of the vessel, although some of these claims were reduced subsequent to the filing of the petition for limitation. The fact that claims greater than the value of the vessel and cargo were asserted gave the Court jurisdiction to entertain the petition for limitation. This jurisdiction is not divested by subsequent diminution of claims. The Tolchester [D.C.], 42 F. 180, and The John K. Gilkinson [D. C.], 150 F. 454. The individual suits may not be allowed to continue even for the purpose of ascertaining damages. The Tolchester.
"Supreme Court Admiralty Rule 54 [28 U.S.C.A.] provides that the petition for limitation of liability, if the vessel has not been libeled, may be brought in the district court for any district in which the owner has been sued in respect to any such claim. Eight actions have been commenced in this district. Venue has been properly laid and the restraining order was proper.
"Since I have concluded that subsequent reduction of claims does not affect jurisdiction, it will serve no useful purpose to withhold decision on this motion pending the contemplated filing of additional stipulations of reduction.
"Motion denied."
Before Judge Weinfeld, the United States moved to transfer the libel instituted against it by The Texas Company to the United States District Court for the Eastern District of Virginia, to be there tried with the libel which the United States had there previously instituted against The Texas Company. The United States also moved to modify the injunction order so as to permit the suit in the Virginia district to go forward. There was presented to Judge Weinfeld a stipulation by the various plaintiffs, including the United States, that they had reduced their claims so that in the aggregate they amounted to $1,754,333.93.1 It appears that these stipulations were also at some time presented to Judge Ryan.
The stipulation by the plaintiffs other than the United States stated that they would not increase the amount of their claims at any future date if The Texas Company's petition for limitation of liability were forthwith dismissed. However, in this court, on the argument of the appeal, all the claimants advised this court that they will file an amended stipulation in the district court agreeing that their claims will never be increased, that the claimants will not enter judgment in any court in excess of the stipulated amounts, and that any claim of res judicata relevant to the issue of limited liability, based on a judgment in any other court, is waived.
Judge Weinfeld granted the motion of the United States. His order, dated January 29, 1954, reserved for determination by the court below, The Texas Company's right to all other relief prayed for in its limitation petition. His opinion is reported in 116 F.Supp. 915.
From Judge Weinfeld's order, The Texas Company has appealed; from Judge Ryan's order, the claimants who had moved before him for modification of the injunction have appealed.
Thacher, Proffitt, Prizer & Crawley, New York City (Joseph M. Brush, New York City, of counsel), for Texas Co.
J. Edward Lumbard, U. S. Atty. for Southern District of New York, New York City (Louis E. Greco, New York City, of counsel), for the United States.
Sterling & Schwartz, New York City (Marvin Schwartz and Betty Olchin, New York City, of counsel), for claimants.
Before CHASE, Chief Judge, and SWAN and FRANK, Circuit Judges.
FRANK, Circuit Judge.


1
1. The United States has moved to dismiss The Texas Company's appeal from Judge Weinfeld's order. The motion is denied. We have jurisdiction of the appeals. See W. E. Hedger Transp. Corp. v. Gallotta, 2 Cir., 145 F.2d 870; Curtis Bay Towing Co. v. Tug Kevin Moran, Inc., 2 Cir., 159 F.2d 273.


2
2. Although the claims as originally filed exceeded the fund (or stipulated value) of $2,109,957.58, they have now been reduced by stipulation so that the fund is about $350,000 in excess of all filed claims. As a consequence, we do not have the problem of a distribution of an insufficient fund contemplated by the statute. For 46 U.S.C.A. § 184 provides that, when loss is suffered by several persons, "and the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of them, they shall receive compensation * * * in proportion to their respective losses", and that the limitation proceedings are "for the pur- pose of apportioning the sum * * * among the parties entitled thereto."2


3
We have several times announced the principles which we think must apply here: Absent an insufficient fund (1) the statutory privilege of limiting liability is not in the nature of a forum non conveniens doctrine, and (2) the statute gives a ship-owner, sued in several suits (even if in divers places) by divers persons, no advantage over other kinds of defendants in the same position. Concourse is to be granted "only when * * * necessary in order to distribute an inadequate fund."3 The "purpose of limitation proceedings is not to prevent a multiplicity of suits but, in an equitable fashion, to provide a marshalling of assets — the distribution pro rata of an inadequate fund among claimants, none of whom can be paid in full."4 We see nothing to the contrary in Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, where the claims aggregated $600,000 and the Court was advised the valuation was but $25,000.


4
3. The Texas Company asserts, however, that the record shows there are or may be persons injured by the collision who have not yet filed but who may later file claims which, together with those already filed, may exceed the fund. But, as in Curtis Bay Towing Co. v. Tug Kevin Moran, Inc., 2 Cir., 159 F.2d 273, on the facts here — with the maximum amount of the filed claims fixed by stipulation — there is little likelihood that other claims will be asserted before they are barred by applicable statutes of limitation or otherwise. As in that case, the district court will retain jurisdiction of the limitation proceeding, so that if, "by some chance * * * other claims should appear which will make a concourse proper, a concourse can take over the situation as it then is * * *." Accordingly, we deem irrelevant the argument of The Texas Company as to ouster of the jurisdiction of the court below.


5
4. For the reasons stated in Judge Weinfeld's opinion, we think his order correct.5 It will be affirmed on the condition that the proffered amendment to the stipuation will be filed promptly in the district court. On the same condition, we reverse Judge Ryan's order.



Notes:


1
 The United States stipulated that its entire claim, theretofore stated as $800,000, was $601,833.93, and that any contingent claims it had asserted for hospitalization and pensions were merely by way of setoff which would arise when and if the Texas Company should pay an injury claim and then assert such payment as part of the Texas Company's alleged claim against the United States


2
 Emphasis added


3
 Curtis Bay Towing Co. v. Tug Kevin Moran, Inc., 2 Cir., 159 F.2d 273, 276


4
 Petition of Moran Transp. Corp., 2 Cir., 185 F.2d 386, 388-389. See also Petition of Red Star Barge Line, Inc., 2 Cir., 160 F.2d 436; The Aquitania, D.C., 14 F.2d 456, 458, affirmed, 2 Cir., 20 F. 2d 457


5
 This court has heretofore dismissed the appeal from Judge Weinfeld's order transferring to the Virginia district the suit by The Texas Company against the United States


