United States District Court, N.D. Illinois, Eastern Division
IN THE MATTER OF: THE PETITION OF ROBERT G. LAURITSEN, AS THE OWNER OF A 2002 18FT TRACKER, TUNDRA POWER VESSEL, FOR EXONERATION FROM OR LIMITATION OF LIABILITY, Petitioner.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiff Robert G.
Lauritsen's petition for exoneration from or limitation of
liability pursuant to 46 U.S.C.App. §§ 183, 185. This matter is
also before the court on Damage-Claimant The Estate of Larry A.
Lauritsen's ("Estate") motion regarding Supplemental Rule F
proceedings. For the reasons stated below, we grant the Estate's
motion and deny Plaintiff's motions.
Plaintiff alleges that he is the owner of a 2002, 18 foot,
Tracker Tundra power vessel. On July 28, 2003, the vessel was on
Lake Erie. According to Plaintiff, around 8 a.m. Larry Lauritsen, a passenger on the vessel, fell
overboard and drowned. Plaintiff has come before this court
seeking exoneration from or limitation of liability pursuant to
46 U.S.C.App. § 183(a), 185 of the Limitation of Shipowner's
Liability Act. In accordance with Section 185 Plaintiff has
deposited the vessel in question with International Fidelity
Insurance Company ("Fidelity") and Plaintiff contends that
Fidelity has agreed to act as the surety for payment of the value
of the vessel, its freight, and cargo, totaling $25,000.00.
Plaintiff claims that he has provided the letter of undertaking
which serves as the required bond in the amount of the vessel,
plus six percent yearly interest. Having filed the above
mentioned security, Plaintiff asks the court to approve the
$25,000 figure as the value of his vessel and approve the
undertaking by Fidelity. Plaintiff also seeks an injunction to
stay all proceedings against the Plaintiff as owner of the vessel
in question with respect to the incident in question. Plaintiff
also asks the court to set a monition period during which all
claimants must file their claims.
The Estate has appeared in the instant action and has filed a
motion concerning Supplemental Rule F proceedings. The Estate
contends that Plaintiff has not met the requirements of the
Supplemental Rules for Certain Admiralty and Maritime Claims,
Rule F(2) and therefore requests that the court deny Plaintiff's
motion to set a monition period. DISCUSSION
We first note that, although Plaintiff characterizes his
initial filing as a petition, it is properly characterized as a
complaint. See e.g. Joyce v. Joyce, 975 F.2d 379, 381 (7th
Cir. 1992). The Estate contends that Plaintiff has not met the
requirements of Supplemental Rules for Certain Admiralty and
Maritime Claims, Rule F(2), which govern 46 U.S.C.App. §§ 183,
185 of the Limitation of Shipowner's Liability Act. Plaintiff
filed the instant action pursuant to 46 U.S.C.App. § 183(a)
("Section 183") and 46 U.S.C.App. § 185 ("Section 185") which
state the following:
§ 183. Amount of liability
(a) Privity or knowledge of owner; limitation
The liability of the owner of any vessel, whether
American or foreign, for any embezzlement, loss, or
destruction by any person of any property, goods, or
merchandise shipped or put on board of such vessel,
or for any loss, damage, or injury by collision, or
for any act, matter, or thing, loss, damage, or
forfeiture, done, occasioned, or incurred, without
the privity or knowledge of such owner or owners,
shall not, except in the cases provided for in
subsection (b) of this section, exceed the amount or
value of the interest of such owner in such vessel,
and her freight then pending.
46 U.S.C.App. § 183.
§ 185. Petition for limitation of liability; deposit
of value of interest in court; transfer of interest
The vessel owner, within six months after a claimant
shall have given to or filed with such owner written
notice of claim, may petition a district court of the United States of competent jurisdiction for
limitation of liability within the provisions of this
chapter and the owner (a) shall deposit with the
court, for the benefit of claimants, a sum equal to
the amount or value of the interest of such owner in
the vessel and freight, or approved security
therefor, and in addition such sums, or approved
security therefor, as the court may from time to time
fix as necessary to carry out the provisions of
section 183 of this title, or (b) at his option shall
transfer, for the benefit of claimants, to a trustee
to be appointed by the court his interest in the
vessel and freight, together with such sums, or
approved security therefor, as the court may from
time to time fix as necessary to carry out the
provisions of section 183 of this title. Upon
compliance with the requirements of this section all
claims and proceedings against the owner with respect
to the matter in question shall cease.
46 U.S.C.App. § 185. Sections 183 and 185 are governed by
Supplemental Rules for Certain Admiralty and Maritime Claims,
Rule F ("Rule F"). Joyce, 975 F.2d at 381 n. 2. Rule F(2)
requires a plaintiff to "set forth the facts on the basis of
which the right to limit liability is asserted and all facts
necessary to enable the court to determine the amount to which
the owner's liability shall be limited." In re In re Bisso
Marine Co., 2003 WL 1193683, at *1 (E.D. La. 2003) (quoting
Fed.R. Civ. P. Supp. Rule F(2)). Rule F(2) also requires a plaintiff
to "state the voyage if any, on which demands sought to be
limited arose, with the date and place of its termination. . . ."
Plaintiff has set forth the date and time of the termination of
the voyage indicating that the drowning occurred on July 28,
2003, around 8 a.m incident. However, Plaintiff has not
sufficiently set forth the place of its termination. Plaintiff
asserts the voyage occurred on Lake Erie. However, Lake Erie is
an extremely large body of water. We find that such a general
reference to the location of the voyage is insufficient. See In re Sunshine II v. Beavin,
808 F.2d 762, 764 (11th Cir. 1987) (stating that since fault
by the owner of the vessel impacts the applicability of the
Limitation of Shipowner's Liability Act, the complaint must be
"full and complete."). Neither has Plaintiff set forth sufficient
fact to enable the court to determine the amount that his
liability should be limited. Although Plaintiff has provided the
necessary letter of undertaking, he has not provided sufficient
facts indicating that he is entitled to any protection under the
Limitation of Shipowner's Liability Act. Plaintiff merely states
in a conclusory fashion that the drowning "was not due to the
fault, design, neglect or want of due care on the part of the
Petitioner. . . ." (Compl. Par. 4). However, Plaintiff offers no
facts whatsoever to accompany this general legal conclusion.
Thus, Plaintiff has not provided sufficient allegation that would
allow the court to proceed further in this action.
Plaintiff cited In re Ingoglia, 723 F.Supp. 512, 513 (C.D.
Cal. 1989) and argues that the case supports his assertion that
the Estate's arguments are improper at the dismissal stage of
proceedings. First of all we note that Plaintiff cited to the
wrong Federal Supplement volume number and failed to include a
page number. Second, any such finding in Ingoglia would be
dicta because in the case the court was addressing a summary
judgment motion. Id. at 515. Third, Ingoglia is merely
persuasive authority and is not controlling precedent. Fourth,
the court merely indicated that "a determination of limitation"
of liability would be improper at the dismissal stage. Id. We
are not holding that Plaintiff's liability must be determined at this juncture. Rather, we are holding that Plaintiff has not
provided even the bare-bone facts necessary to indicate the
potential absence of fault by Plaintiff thereby making the
limitation of liability possible. Therefore, we grant the
Estate's motion and deny Plaintiff's motion for injunctive relief
and for a monition period. We shall give Plaintiff leave until
October 21, 2004 to file an amended complaint.
Based on the foregoing analysis, we deny Plaintiff's motion for
injunctive relief and Plaintiff's motion to set a monition
period. Plaintiff is given until October 21, 2004 to file an
amended complaint. All other pending motions are denied as moot.
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