Sailing Ships, Ltd.
Filing
60
ORDER DENYING SUMMARY JUDGMENT, AND DISMISSING THE LIMITATION ACTION AND LIFTING INJUNCTION re 46 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/12/12. --" The court lifts the injunction issued in this case to allow Alconcel to p roceed with his state lawsuit against Sailing Shipps under the Saving to Suitors clause. To preserve Sailing Shipps' right to have its claims for exoneration from and limitation of liability adjudicated in federal court, Sailing Shipps may file, once the state proceeding has been fully and finally adjudicated, another federal action for exoneration from or limitation of liability arising out of the incident in issue. The applicable filing fee is waived if Sailing Shipps provides the Cl erk of Court with a copy of this order upon filing any such new federal action. For any such refiled case, the filing date shall relate back to the date this action was filed so long as the refiled case is filed with this court within 60 days of when the judgment in the state action becomes final." ~ "If the procedure for refiling set forth in the previous paragraph becomes impractical or risks compromising any party's rights or otherwise prejudices any party, that party may, in lieu of the procedure set forth above, seek to reopen this case by filing an appropriate motion." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
In the Matter of the
Complaint of SAILING SHIPPS,
LTD., dba GEMINI CHARTERS,
)
)
)
)
Plaintiff,
)
)
vs.
)
)
)
JASON ALCONCEL,
)
)
Defendant/Claimant,
_____________________________ )
CIV. NO. 11-00171 SOM/BMK
ORDER DENYING SUMMARY
JUDGMENT, AND DISMISSING THE
LIMITATION ACTION AND LIFTING
INJUNCTION
ORDER DENYING SUMMARY JUDGMENT, AND
DISMISSING THE LIMITATION ACTION AND LIFTING INJUNCTION
I.
INTRODUCTION.
This action seeks a limitation of liability pursuant to
the Limitation of Liability Act, 46 U.S.C. §§ 30501-30512
(“Limitation Act”), which limits a ship owner’s liability for
someone’s injuries to the value of the ship if the owner had no
knowledge of conditions that caused the injuries and was not in
privity with the actor who caused the injuries.
Defendant Jason Alconcel, who fell off of a zodiac boat
while at sea, is seeking damages in state court from the
corporation that owns the zodiac, Plaintiff Sailing Shipps, Ltd.,
and from Chimo Shipp, who owns part of Sailing Shipps and who
operated the zodiac.
Limitation Act.
Sailing Shipps seeks application of the
Alconcel now moves for summary judgment on the ground
that, because Chimo Shipp is a part-owner of Sailing Shipps,
Sailing Shipps must have had knowledge of the conditions that
caused Alconcel’s injury or must be deemed to have been in
privity with Chimo Shipp.
Because the court cannot, on the
present record, conclude that limitation is out of the question,
the court denies Alconcel’s summary judgment motion.
In the alternative, Alconcel asks this court to allow
his negligence claim to proceed in state court by lifting the
injunction this court entered earlier restraining all other legal
proceedings against Sailing Shipps relating to Alconcel’s
injuries.
Alconcel also seeks a stay of this limitation action
pending resolution of the negligence claim.
Identifying no
prejudice to Alconcel if this action is dismissed instead of
stayed, the court dismisses this action without prejudice.
Once
the state court proceedings have been fully adjudicated, Sailing
Shipps may refile its claim in this court, as described in the
Conclusion of this order.
II.
FACTUAL AND PROCEDURAL BACKGROUND.
On February 22, 2008, Chimo Shipp, Jason Alconcel, and
two other friends took a zodiac boat owned by Sailing Shipps from
Lahaina Harbor, on the island of Maui, to a beach in Kaanapali,
Maui.
Def. Jason Alconcel’s Separate and Concise Statement of
Facts in Supp. of Mot. for Summ. J. at 4, ECF No. 47 (“Alconcel
2
Facts”).
While at sea, Alconcel fell backward off of the
zodiac’s rubber pontoon-like edge when Chimo Shipp, the driver of
the boat, allegedly made a wide turn.
Id. at 5-6.
Alconcel was
allegedly sucked under the zodiac and hit the zodiac’s propeller.
Id. at 6.
He suffered head injuries as a result.
Alconcel’s
Facts Ex. 2 (Deposition of Chimo Shipp) at 90:24-91:5, ECF
No. 49-1.
The zodiac is owned by Sailing Shipps.
at 2.
Alconcel Facts
Sailing Shipps is a Hawaii corporation half-owned by
Melany Shipp and half-owned by her three adult children,
including Chimo Shipp.
Id. at 1.
one-half of Sailing Shipps.
Chimo Shipp owns one-third of
Pl.’s Concise Statement of Facts in
Opp. to Claimant’s Mot. for Summ. J. at 6, ECF No. 55.
On February 18, 2011, Alconcel filed a negligence
action in Hawaii state court against Sailing Shipps and Chimo
Shipp.
Alconcel Facts at 6.
On March, 15, 2011, Sailing Shipps
filed the present action, seeking exoneration from or limitation
of its liability under 46 U.S.C. § 30505 and Rule F of the
Supplemental Rules for Certain Admiralty and Maritime Claims.
On
March 16, 2011, in accordance with Rule F(3), this court enjoined
the further prosecution of any action against Sailing Shipps
arising out of the incident in issue.
See ECF No. 11.
Alconcel now seeks summary judgment on the limitation
issue and dissolution of the injunction.
3
In the alternative, he
asks that this court allow his state court negligence action to
proceed by staying this limitation action pending resolution of
his negligence claim.
III.
SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
A moving party has both the initial burden of
production and the ultimate burden of persuasion on a motion for
summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court “the portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.
Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
“A fact is
material if it could affect the outcome of the suit under the
governing substantive law.”
Miller, 454 F.3d at 987.
When the
moving party bears the burden of proof at trial, that party must
satisfy its burden with respect to the motion for summary
judgment by coming forward with affirmative evidence that would
entitle it to a directed verdict if the evidence were
4
uncontroverted at trial.
Id. (quoting C.A.R. Transp. Brokerage
Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir.
2000)).
When the nonmoving party bears the burden of proof on
one or more issues at trial, the party moving for summary
judgment may satisfy its burden with respect to those issues by
pointing out to the court an absence of evidence from the
nonmoving party.
Miller, 454 F.3d at 987.
When the moving party meets its initial burden on a
summary judgment motion, “[t]he burden then shifts to the
nonmoving party to establish, beyond the pleadings, that there is
a genuine issue for trial.”
Id.
The court must not weigh the
evidence or determine the truth of the matter but only determine
whether there is a genuine issue for trial.
See Balint v. Carson
City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999).
On a summary
judgment motion, “the nonmoving party’s evidence is to be
believed, and all justifiable inferences are to be drawn in that
party’s favor.”
Miller, 454 F.3d at 988 (brackets omitted)
(quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).
Summary judgment may also be appropriate when a mixed
question of fact and law involves undisputed underlying facts.
See EEOC v. UPS, 424 F.3d 1060, 1068 (9th Cir. 2005); Colacurcio
v. City of Kent, 163 F.3d 545, 549 (9th Cir. 1998).
5
IV.
ANALYSIS.
A.
Summary Judgment is Not Warranted.
The Limitation Act allows a vessel owner to be
exonerated from liability or to “limit liability for damage or
injury, occasioned without the owner's privity or knowledge, to
the value of the vessel or the owner's interest in the vessel.”
Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 446 (2001).
The relevant provisions state:
(a) In general.--Except as provided in
section 30506 of this title, the liability of
the owner of a vessel for any claim, debt, or
liability described in subsection (b) shall
not exceed the value of the vessel and
pending freight. If the vessel has more than
one owner, the proportionate share of the
liability of any one owner shall not exceed
that owner’s proportionate interest in the
vessel and pending freight.
(b) Claims subject to limitation.--Unless
otherwise excluded by law, claims, debts, and
liabilities subject to limitation under
subsection (a) are those arising from any
embezzlement, loss, or destruction of any
property, goods, or merchandise shipped or
put on board the vessel, any loss, damage, or
injury by collision, or any act, matter, or
thing, loss, damage, or forfeiture, done,
occasioned, or incurred, without the privity
or knowledge of the owner.
46 U.S.C. § 30505.
Once the party seeking to recover damages
establishes what act or condition caused the injury, the vessel
owner bears the burden of proving lack of knowledge of the act or
condition and an absence of privity between the vessel owner and
6
the actor who caused the injury.
In re Bowfin M/V, 339 F.3d
1137, 1137 (9th Cir. 2003) (per curiam) (citations omitted).
The underlying liability issue must normally be
determined before a court addresses the limitation issue.
As the
Ninth Circuit said in In re Hechinger, 890 F.2d 202, 207 (9th
Cir. 1989), “Once a proper limitation of liability petition has
been filed, the court must first determine what acts of
negligence or conditions of unseaworthiness caused the accident.
. . .
That is, a liability must be shown to exist.”
and modifications omitted).
(citations
The Ninth Circuit explained, “The
whole doctrine of limitations of liability presupposes that a
liability exists which is to be limited.
there is nothing to limit.”
If no liability exists
Id. (quoting Northern Fishing &
Trading Co., Inc. v. Grabowski, 477 F.2d 1267, 1272 (9th Cir.
1973)).
Alconcel is asking this court to adjudicate the
limitation issue before Sailing Shipps’ liability is resolved.
This court recognizes that, when no limitation was possible,
courts have sometimes dismissed limitation actions before any
determination of liability, thereby allowing injured parties to
have their claims adjudicated in their chosen forums.1
1
See Fecht
As discussed in Part B of this order, claims
asserted pursuant to the Limitation Act must be adjudicated in
federal court. However, under the Saving to Suitors clause, 28
U.S.C. § 1333(1), “state courts, with all of their remedies, may
adjudicate claims . . . against vessel owners so long as the
7
v. Makowski, 406 F.2d 721, 722-23 (5th Cir. 1969); Keliihananui
v. KBOS, Inc., Civ. No. 09-00151 JMS/LEK, 2010 WL 2176105, at *12
(D. Haw. May 24, 2010) (“Courts have found that where privity and
knowledge are apparent, the proper course of action is to allow
the injured party to bring its own action so that a jury may
determine negligence.” (citing Suzuki of Orange Park, Inc. v.
Shubert, 86 F.3d 1060, 1063 (11th Cir. 1996), and Fecht, 406 F.2d
at 722-23)); In re Skyrider, Misc. No. 89-0128 ACK, 1990 WL
192479, at *10 (“[T]he Ninth Circuit has intimated that it is
preferable to determine liability prior to proceeding to the
limitation determination.” (citing Hechinger, 890 F.2d at 207)
(emphasis added)).
In the present case, however, the court
cannot say that the existence of knowledge or privity is so clear
that limitation is impossible.
The present case is distinguishable from Fecht,
406 F.2d at 721.
In that case, the Fifth Circuit addressed the
limitation issue first because there was no question that the
owner of the boat in issue knew about the conditions that caused
the accident and thus did not qualify for protection under the
Limitation Act.
The claimant had been injured while the boat was
being operated by one of the individuals who owned the boat.
at 721-22.
Id.
The Fifth Circuit explained that “when an owner is in
vessel owner’s right to seek limitation of liability is
protected.” Lewis, 531 U.S. at 445, 121 S.Ct. 993.
8
control of and operating his pleasure craft he has privity or
knowledge with respect to its operation, therefore he is not
entitled to limitation for accidents arising from his
negligence.”
Id. at 722 (citations omitted).
Alconcel argues that the present case is analogous to
Fecht and to In re Complaint of Gary Ingoglia, 723 F. Supp. 512
(C.D. Cal. 1989).
In Ingoglia, a passenger was injured while on
a boat that struck a wave.
The boat owner had been operating the
boat when the injury occurred.
Id.
Relying on Fecht, the United
States District Court for the Central District of California
granted summary judgment in favor of the injured passenger in the
limitation action before liability was determined because it was
apparent that the boat owner had knowledge of his own alleged
negligence.
Id. at 514-15.
Alconcel argues that, because Chimo Shipp is a partowner of Sailing Shipps, this court should treat Chimo Shipp like
the boat owners in Fecht and Ingoglia.
He contends that Chimo
Shipp’s alleged negligence caused Alconcel’s injuries, and that
Sailing Shipps either had knowledge of the conditions that caused
Alconcel’s injuries or was in privity with Chimo Shipp.
However, unlike the boats in Fecht and Ingoglia, the
boat in this case was owned by a corporation.
Chimo Shipp is a
shareholder in the corporation, not a direct part-owner as an
individual.
When a shareholder’s negligence is in issue, the
9
corporation had knowledge of the negligence or was in privity
with the shareholder only if the shareholder was a managing
officer or a supervisory employee.
See United States v. Standard
Oil Co. of Cal., 495 F.2d 911, 917 (9th Cir. 1974); Admiralty
Towing Co. v. Woolen, 290 F.2d 641, 648 n.5 (9th Cir. 1961) (“The
knowledge or privity of a corporate owner must always be imputed.
When a corporate owner is involved the significant question is
how high in the ranks of the corporation was the individual who
had the privity or knowledge.” (citations omitted)); The Princess
Sophia (In re Canadian Pac. Ry. Co.), 61 F.2d 339, 346 (9th Cir.
1932) (“When the owner is a corporation, the privity or knowledge
must be that of its managing officers.”).
Nothing in the record
establishes that Chimo Shipp is a managing officer or supervisor.
Thus, the present record does not demonstrate that Sailing Shipps
may be deemed to have known of Chimo Shipp’s alleged negligence,
or that Sailing Shipps was in privity with Chimo Shipp.
The court is unpersuaded by Alconcel’s citation to
Flink v. Paladini, 279 U.S. 59 (1929), in support of his position
that Chimo Shipp’s status is sufficient to establish that Sailing
Shipps had knowledge of Chimo Shipp’s alleged negligence.
Although the Supreme Court stated that, when a corporation owns a
boat, its stockholders are also owners of the boat under the
Limitation Act, Alconcel takes that statement out of context.
Flink addressed whether a stockholder could seek the protection
10
of the Limitation Act to limit the stockholder’s own liability
when, under state law, that stockholder could be held personally
liable for the debts of the corporation.
The Supreme Court was
not addressing whether a stockholder’s acts or knowledge could be
imputed to the corporation such that the corporation would be
held responsible for the stockholder’s negligence.
Moreover, the parties identify no reason that this
court must determine the limitation issue first.
In Fecht, 406
F.2d at 722-23, the Fifth Circuit held that the district court
should have dismissed the limitation action even though liability
had not yet been determined to allow the claimants to adjudicate
their claim in state court, which they were entitled to do under
the Saving to Suitors Clause, 28 U.S.C. § 1333.
Id. at 722-23.
The Fifth Circuit explained:
where no limitation is possible the damage
claimants are entitled to have the injunction
against other actions dissolved, so that they
may, if they wish, proceed in a common law
forum as they are entitled to do under the
saving to suitors clause. 28 U.S.C. § 1333.
. . . The reason for enjoining state court
suits is to distribute effectively a limited
fund in a single proceeding, not to
[“]transform the [Limitation] Act from a
protective instrument to an offensive weapon
by which the shipowner could deprive suitors
of their common-law rights . . . .[”] Lake
Tankers Corp. v. Henn, 354 U.S. 147, 152, 77
S.Ct. 1269, 1272, 1 L.Ed.2d 1246, 1251
(1957).
Id.
Accord Ingoglia, 723 F. Supp. at 515 (citing Fecht, 406 F.2d
722-23).
In the present case, as discussed below, the limitation
11
issue need not be decided before Alconcel can adjudicate his
claim in state court.
The court thus declines to resolve the
limitation issue before Sailing Shipps’ alleged liability is
determined.
B.
Lifting the Injunction.
As an alternative to his summary judgment motion,
Alconcel asks this court to lift its injunction and allow his
negligence claim to proceed in state court.
The court agrees
that lifting the injunction is appropriate.
Under 28 U.S.C. § 1333(1), “Federal Courts have
exclusive jurisdiction over admiralty and maritime claims.”
Lewis, 531 U.S. at 440.
Admiralty and maritime law involves a
variety of rights, duties, rules, and procedures, including the
Limitation Act.
Under the Limitation Act, a federal district
court is the proper adjudicator of Limitation Act claims.
Id.
at 448.
While statutorily granting exclusive jurisdiction to
federal courts over admiralty and maritime claims, § 1333(1) also
“sav[es] to suitors in all cases all other remedies to which they
are otherwise entitled.”
28 U.S.C. § 1333(1).
The Supreme Court
has recognized that “[s]ome tension exists between the Saving to
Suitors clause and the Limitation Act.
One statute gives suitors
the right to a choice of remedies, and the other statute gives
12
vessel owners the right to seek limitation of liability in
federal court.”
Lewis, 531 U.S. at 448.
In Lewis, 531 U.S. at 440-41, an injured deckhand
filed a state lawsuit.
In anticipation of that suit, the
vessel’s owners had filed a complaint for exoneration from and
limitation of liability.
Id. at 441.
After noting the “tension”
between the deckhand’s right to seek redress in state court and
the vessel owner’s right to seek exoneration from and limitation
of liability in federal court, the Supreme Court reiterated the
need to preserve the rights of both parties.
Id. at 449.
The
Supreme Court ruled that the district court had the discretion to
dissolve the injunction issued in the Limitation Act case and to
allow the state court action to proceed under the Saving to
Suitors clause if the vessel owner’s rights under the Limitation
Act were preserved:
The district courts have jurisdiction over
actions arising under the Limitation Act, and
they have discretion to stay or dismiss
Limitation Act proceedings to allow a suitor
to pursue his claims in state court. If the
district court concludes that the vessel
owner’s right to limitation will not be
adequately protected--where for example a
group of claimants cannot agree on
appropriate stipulations or there is
uncertainty concerning the adequacy of the
fund or the number of claims--the court may
proceed to adjudicate the merits, deciding
the issues of liability and limitation. But
where, as here, the District Court satisfies
itself that a vessel owner’s right to seek
limitation will be protected, the decision to
13
dissolve the injunction is well within the
court’s discretion.
Id. at 454 (internal citations omitted).
The Ninth Circuit has also held that, “where a single
claim is involved, . . . the injunction must be dissolved unless
the owner can show that his right to a limitation of liability
will be prejudiced.”
In re Complaint of Ross Island Sand &
Gravel (“Ross Island”), 226 F.3d 1015, 1017 (9th Cir. 2000).
See
also Lewis, 531 U.S. at 451 (recognizing that courts of appeals
have permitted claimants to proceed with their claims in state
courts when there is only a single claimant).
“Under the ‘single claimant exception,’ if only one
claim has been filed and ‘nothing appears to suggest the
possibility of another claim,’ a district court is required to
dissolve its injunction to permit the single claimant to pursue a
separate action and jury trial.”
Ross Island, 226 F.3d at 1017
(quoting Newton v. Shipman, 718 F.2d 959, 962 (9th Cir. 1983)).
Before a court may dissolve the injunction a claimant must do the
following:
(1) [stipulate] that the value of the
limitation fund equals the combined value of
the vessel and its cargo; (2) waive the right
to claim res judicata based on any judgment
rendered against the vessel owner outside of
the limitation proceedings; and (3) concede
the district court’s exclusive jurisdiction
to determine limitation of liability issues.
14
Id.; accord In re Complaint of the San Francisco Bar Pilots,
2006 WL 16879, at *2 (N.D. Cal. Jan. 3, 2006).
Generally, such a
stipulation adequately protects a vessel owner’s rights.
See
Lewis, 531 U.S. at 452-54.
Sailing Shipps’ rights under the Limitation Act are
protected by Alconcel’s stipulations.
The parties stipulate:
(1) that the value of the limitation
fund equals the combined value of the vessel
and its cargo;
(2) that Claimant ALCONCEL waives the
right to claim res judicata based on any
judgment rendered against Limitation
Plaintiff outside of the limitation
proceedings; . . .
(3) that the district court has
exclusive jurisdiction to determine
limitation of liability issues after the
conclusion of the action in Hawai`i state
court, if any.
(4) that Limitation Plaintiff may refile a complaint under the Limitation of
Liability Act and that the date of filing of
the complaint shall relate back to the filing
of the original Limitation of Liability
Complaint in Civil No. 11-00171.
(5) that Claimant ALCONCEL agrees not
to raise a defense to the re-filed Limitation
of Liability Complaint based upon the six (6)
month time limit to bring actions under the
Limitation of Liability Act.
Stipulation Re: Single Claim Exception 3-4, July 6, 2012.
Sailing Shipps does not show that it will be prejudiced
if Alconcel is permitted to litigate his negligence claim in
state court.
Sailing Shipps argues that Alconcel’s negligence
claim against Sailing Shipps overlaps with evidence relevant to
whether Chimo Shipp’s alleged negligence can be imputed to
15
Sailing Shipps under the Limitation Act, such as whether Sailing
Shipps knew about the incident or whether Chimo Shipp was
employed in a managerial capacity at Sailing Shipps.
Sailing
Shipps says that allowing the negligence action to proceed in
state court will “invade the exclusive purview” of this court to
decide limitation issues.
Because Alconcel has waived his right to assert claim
preclusion and issue preclusion and concedes that this court has
exclusive jurisdiction over limitation issues, this court will
not be precluded from making rulings and findings necessary to
adjudicate the limitation issue.
Moreover, the court does not
envision state court factual findings germane to whether Chimo
Shipp’s alleged acts or knowledge should be imputed to Sailing
Shipps for Limitation Act purposes.
Alconcel’s negligence claim
against Sailing Shipps is based on a respondeat superior theory,
under which “an employer may be liable for the negligent acts of
its employees that occur within the scope of their employment.”
Wong-Leong v. Hawaiian Independent Refinery, Inc., 76 Haw. 433,
439, 879 P.2d 538, 544 (Haw. 1994).
Whether a shareholder’s
negligence may be imputed to a corporation turns on whether that
owner is a managing officer or a supervisory employee, not on
whether that owner was acting in the scope of his or her
employment when the injury occurred.
16
The court is also unpersuaded by Sailing Shipps’
argument that allowing a state court to adjudicate the negligence
claim will result in excessive delay and additional expenses.
Such concerns do not outweigh Alconcel’s right under the Saving
to Suitors clause to seek redress in state court.
Cf. In re
Hyatt Corp., 262 F.R.D. 538, 547 (D. Haw. 2009) (affirming a
magistrate judge’s conclusion that claimants’ right under the
Saving to Suitors clause to state court remedies weighed in favor
of bifurcating a case so that the claimants could pursue their
damages in state court).
Finally, despite its statement that litigating the
negligence issue in state court will lead to inconsistent
results, Sailing Shipps fails to explain how a state court ruling
on negligence might be inconsistent with a federal court’s ruling
on limitation.
Because Sailing Shipps’ Limitation Act rights will be
protected by Alconcel’s stipulations, this court lifts the stay
issued in this case to allow Alconcel to proceed against Sailing
Shipps in state court.
V.
CONCLUSION.
Alconcel’s motion for summary judgment is DENIED.
The
court lifts the injunction issued in this case to allow Alconcel
to proceed with his state lawsuit against Sailing Shipps under
the Saving to Suitors clause.
17
The court DENIES Alconcel’s request to stay this
action.
Instead, this action is DISMISSED pursuant to the
court’s discretion, set forth in Lewis, 531 U.S. at 454.
To preserve Sailing Shipps’ right to have its claims
for exoneration from and limitation of liability adjudicated in
federal court, Sailing Shipps may file, once the state proceeding
has been fully and finally adjudicated, another federal action
for exoneration from or limitation of liability arising out of
the incident in issue.
The applicable filing fee is waived if
Sailing Shipps provides the Clerk of Court with a copy of this
order upon filing any such new federal action.
For any such
refiled case, the filing date shall relate back to the date this
action was filed so long as the refiled case is filed with this
court within 60 days of when the judgment in the state action
becomes final.
In other words, if Sailing Shipps files another
federal petition for exoneration from and limitation of liability
arising out of the incident in issue within 60 days of completion
of the latest of state trial proceedings, completion of state
appellate proceedings, or any remand or appeal therefrom, that
newly filed petition shall be timely.
If the procedure for refiling set forth in the previous
paragraph becomes impractical or risks compromising any party’s
rights or otherwise prejudices any party, that party may, in lieu
18
of the procedure set forth above, seek to reopen this case by
filing an appropriate motion.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 12, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
In the Matter of the Complaint of Sailing Shipps, Ltd.; Civil No. 11-00171 SOM/BMK;
ORDER DENYING SUMMARY JUDGMENT, AND DISMISSING THE LIMITATION ACTION AND LIFTING
INJUNCTION
19
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