The opinion of the court was delivered by: GOURLEY
This is an action under the Jones Act, 46 U.S.C. § 688, and Maritime Doctrine of Unseaworthiness and for Maintenance and Cure. It is alleged in the Complaint that plaintiff, employed by the defendant in the capacity of a seaman, suffered personal injuries while engaged in assembling a fleet or tow of barges at defendant's loading dock located on the Monongahela River at Pittsburgh, Pennsylvania. An Answer was filed in due course. Several months later, defendant filed a Motion to Amend Answer to the Complaint, wherein it requested leave to assert the defense of limitation of liability of shipowners. This Motion is presently before the Court. Oral argument has been entertained, and, upon review of the pleadings, briefs and arguments of counsel, the Court concludes that the Motion should be granted.
In opposition to defendant's Motion to Amend, plaintiff does not assert any prejudice resulting from the failure of the defendant to plead the defense of limitation of liability but rather raises objections which may be characterized as objections to the sufficiency of the defense. Authorities are divided as to whether the legal insufficiency of a proposed amendment is a ground for denying leave to amend. 3 Moore's Federal Practice (2 ed.), § 15.08(4), p. 902. However, plaintiff merely would make a formal motion to strike or dismiss raising the same objections now presented, should the Court not consider these issues presently. Accordingly, the objections of plaintiff will be entertained at this time.
"(a) 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.
(b) In the case of any seagoing vessel, if the amount of the owner's liability as limited under subsection (a) of this section is insufficient to pay all losses in full, and the portion of such amount applicable to the payment of losses in respect of loss of life or bodily injury is less than $60 per ton of such vessel's tonnage, such portion shall be increased to an amount equal to $60 per ton, to be available only for the payment of losses in respect of loss of life or bodily injury. If such portion so increased is insufficient to pay such losses in full, they shall be paid therefrom in proportion to their respective amounts."
It is plaintiff's first contention that defendant may not invoke the aforesaid provision for the reason that plaintiff's injury occurred on a barge, which defendant asserts is not a "vessel" within the meaning of Section 183. Plaintiff relies upon Section 183(f) which provides that "as used in subsections (b), (c), (d) and (e) of this section * * *, the term 'seagoing vessel' shall not include * * * barges'." Concededly, a barge is not a "seagoing" vessel as that term is used in subsections (b), (c), (d) and (e) of Section 183.
Subsection (a), however, refers only to a "vessel," and it is clear that a barge may be a "vessel" within the meaning of that subsection. Authority for this conclusion is found in the express language of Section 188 of Title 46, U.S.C., which provides:
"Except as otherwise specifically provided therein, the provisions of sections 182, 183, 183b-187, and 189 of this title shall apply to all seagoing vessels, and also to all vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters." (Emphasis supplied.)
The same conclusion was reached in the case of In re Midland Enterprises, Inc., 296 F. Supp. 1356, 1360 (S.C. Ohio 1968), wherein the Court stated simply "a 'barge' may be a vessel. 46 U.S.C. § 183." See also 3 Benedict on Admiralty, 6th Ed., § 494, pps. 403-408.
A related issue is which of a number of vessels involved in the accident are properly to be regarded as "offending vessels" the value of which will limit liability. It is alleged in the Complaint that, at the time of the accident, plaintiff was standing on one of seven barges which were tied together as a fleet and which were moored to the deck. Plaintiff allegedly was attempting to fasten to the fleet an additional barge which was or had been brought downstream by defendant's tugboat "Aliquippa" when the accident occurred. Although the issue has been completely briefed by counsel for the respective parties, resolution of this issue must await a factual hearing wherein such matters as the ownership of the vessels, the existing contractual relationships, and, in particular, the role of the tugboat "Aliquippa" may be determined.
A further question has been presented as to whether a shipowner may seek a limitation of liability to the value of an offending vessel when it carries liability insurance on the vessel in an amount in excess of the value of the vessel, ascertained immediately after the accident. Section 183 of Title 46, U.S.C., provides no express exception to the right of a shipowner to limit liability to the value of the offending vessel in circumstances where the shipowner carries liability insurance in excess of the value of the vessel.
It would be difficult to read into Section 183 such an exception. The doctrine of limitation of liability is centuries old and antedates the institution of liability insurance. The advent and widespread use of maritime liability insurance suggests that a re-examination of the doctrine of limited liability might be warranted. However, Congress codified the doctrine in 1851 and then reconsidered and amended the codification in 1935, well after the advent of the institution of liability insurance, without providing any exception to the applicability of the doctrine where liability insurance is carried by a shipowner.
The Court is cognizant of those cases in which it has been concluded that the insurer of a shipowner, when sued directly by an injured third person under a direct action statute, may not assert the right of limitation of liability afforded to the insured shipowner. See, for example, Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S. Ct. 608, 98 L. Ed. 806 (1954) and In re Independent Towing Company, 242 F. Supp. 950 (E.D. La. 1965). However, such decisions have rested upon the premise that limitation of liability is a personal defense particular ...