Opinion
Civil Action No. 96-4099 Section "G" (1).
August 8, 2000.
MEMORANDUM AND ORDER
Background
This admiralty proceeding arises from the December 14, 1996 allision of the M/V BRIGHT FIELD with a portion of the Mississippi riverfront at New Orleans known as the New Orleans Riverwalk. The background has been set forth in prior orders and will be repeated herein only as necessary to the present motion.
As early as December 15, 1996, several lawsuits were filed in state and federal courts in response to the allision. On December 18, 1996, plaintiff Clearsky Shipping Corporation, as owner, and COSCO (U.K.) Shipping Company, Ltd., as manager, of the M/V BRIGHT FIELD, filed a petition for exoneration from or limitation of liability in this district, pursuant to 46 U.S.C. § 183 et seq. and Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims ("Admiralty Rules")
By Order entered on February 28, 1997, I set April 30, 1997 as the deadline for the filing of claims and answers in the limitation proceeding. By agreement of the parties, the deadline was extended to May 30, 1997, a date falling more than five months after the allision. Notice of the May 30, 1997 deadline was published in accordance with the requirements of Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims. Indeed, notice was published for six (6) consecutive weeks in the New Orleans Times-Picayune. Plaintiffs in limitation defaulted on all non-filing claimants on August 25, 1997.
In accordance with Local Rule 7.2E and my Order entered on August 6, 1997, permission to file late claims may be sought only by way of a motion noticed for hearing.
By motion filed on July 3, 2000, Anna Marie Miller seeks leave to file a late claim in this proceeding. She alleges that she was present at the Riverwalk at the time of the allision and was injured as a result of the allision. In her motion, Ms. Miller advises that plaintiffs in limitation oppose the filing of her claim, but no written opposition has been received by the court as of August 3, 2000.
Discussion
When a limitation of liability proceeding is instituted in federal court, the court is empowered to establish a monition period during which all claimants must file their respective claims under pain of default. Rule F (4) of the Supplemental Rules requires actual individual notice of the deadline for filing claims to all persons known to be asserting claims and notice by publication to all others. Nevertheless, Supplemental Admiralty Rule F (4) provides that "[f]or cause shown, the court may enlarge the time within which claims may be filed."
See Fed.R.Civ.P., Supp.R. for Certain Admiralty and Maritime Claims ("Supplemental Rules"), F (4).
Id.
Id.
Although relief from a tardy claim is not a matter of right, it is within the court's discretion and, applying equitable principles, late claims are often permitted. The Fifth Circuit has recognized that "so long as the limitation proceeding is pending and undetermined, and the rights of the parties are not adversely affected, the court will freely grant permission to file late claims . . . upon a showing of the reasons therefor." Pursuant to this equitable principle, the Circuit has adopted a framework to guide district courts in exercising their discretion to allow or refuse late claims. A district court should consider (1) whether the proceeding is pending and undetermined; (2) whether granting the motion will adversely affect the rights of the parties; and (3) the claimant's reasons for filing late.
Texas Gulf Sulphur Co. v. Blue Stack Towing Co., 313 F.2d 359, 363 (5th Cir. 1963) (citations omitted).
Id. at 362 (citing 3 Benedict, Admiralty § 518, p. 542).
Golnoy Barge Comnany v. M/T SHINOUSSA. et al, 980 F.2d 349, 351 (5th Cir. 1993) (citing Texas Gulf, 313 F.2d at 363).
My discretion to grant relief from the expiration of the claims deadline and default is limited to circumstances where cause is shown. Common examples of the requisite cause include, inter alia, lack of notice, an unusually short monition period, inability to speak the language in which the notice was published, and lack of publication in the attempted claimant's geographical area. Benedict suggests that a motion for leave to file a late claim must be supported by an affidavit detailing the reasons for his or her delay in filing a claim.
Supplemental Rule F (4); Texas Gulf, 313 F.2d at 362;American Commercial Lines. Inc. v. United States, 746 F.2d 1351, 1353 (8th Cir. 1984).
See. e.g., American Commercial Lines, 746 F.2d at 1352.
See. e.g., Texas Gulf, 313 F.2d at 360, 362 (30-day monition period).
See. e.g., Sagastume v. Lampis Navigation Ltd., 579 F.2d 222, 223 (2d Cir. 1978).
See. e.g., Jappinen v. Canada Steamship Lines. Ltd., 417 F.2d 189 (6th Cir. 1969).
3 Benedict, Admiralty, § 83 and Form No. 83-1 (1975 Supp. 1996).
As cause for filing her claim approximately three and a half years after the proceeding was initiated, Ms. Miller, by affidavit, represents that she is a resident of Jersey Shore, Pennsylvania. She further avers that in January 1997 she retained Dudley Anderson of Anderson, Mathers Dincher, located in Williamsport, Pennsylvania, to represent her, advising Mr. Anderson of the Bright Field litigation and providing all of the documentation to her attorney immediately upon its receipt. On June 2, 1999, Ms. Miller received a certified letter from Leonard Davis, one of the lead counsel for claimants in this proceeding, that it appeared that no claim had ever been filed on her behalf. Ms. Miller has now retained new counsel in Pennsylvania to handle her claim.
See Affidavit of Anna Marie Miller.
Id.
I previously have found cause to allow late claims where there was lack of notice, e.g., because claimants lived outside the geographical area of publication. Ms. Miller does not suggest that she never had notice; indeed, she retained counsel and attests that she provided counsel with some unidentified form of "documentation" relevant to her claim. While I do not desire to punish a claimant for her attorneys' neglect, I find it difficult to understand why, between January 1997 when she retained counsel and June 2000 when she received word from Mr. Davis, Ms. Miller made no attempt to follow up on the status of the Bright Field litigation.
Absent greater detail concerning the "documentation" referred to by Ms. Miller, and the reasons she did not confer with her attorneys between January 1997 and June 2000, I am not prepared to allow this late claim to be filed.
Accordingly,
IT IS ORDERED that the motion for leave to file a late claim on behalf of Anna Marie Miller IS DENIED pending Ms. Miller's submission of a more detailed affidavit.