M. However, the Ventura claimants have now agreed to voluntarily dismiss their claims without prejudice against T & B pursuant to Rule 41 of the Federal Rules of Civil Procedure. As such, even if there was any prejudice to D & M resulting from the third-party claims filed by the Ventura claimants, it no longer remains with the dismissal of that action.
Next D & M argue that this action should stay in admiralty court because there are other matters already pending before this Court such as the counterclaim and cross-claim filed by D & M against some of the claimants for negligence. Additionally, D & M contend that dissolving the injunction and allowing the claimants to proceed in state court would cause undue prejudice and delay because this case has been in federal court since 1991, and D & M have prepared their case with the mindset that it would be in federal court. D & M also contend that claimants are basically forum shopping, in that an unfavorable Coast Guard report which would be admissible under the Federal Rules of Evidence but not admissible in state court is the motivation for claimants' request to dissolve the injunction.
Despite D & M's objections, this Court is still not convinced that there will be any prejudice resulting from a dissolution of the injunction and allowing claimants to proceed in state court. We can appreciate the fact that this case has been in federal court since 1991, and to dissolve the injunction at this point will inconvenience the parties. However, it does not prejudice D & M's right to limit liability. See e.g. Universal Towing Co. v. Barrale, 595 F.2d 414 (8th Cir. 1979) (district court abused discretion in refusing to dissolve injunction, in part, on ground that claimant delayed in filing consent, where shipowners did not demonstrate any prejudice to right to limit liability). Because of the stipulation, claimants can only be awarded up to 2.2 million dollars, which is the amount of the limitation fund. Assuming the stipulation is adequate, there is no possibility that D & M will be liable for more than that amount, and their interests will be fully protected while proceeding in state court.
Further, they will still have an opportunity to litigate their claims against the claimants. Once the injunction is dissolved, D & M's claims against the claimants, which are derivative of the limitation action because they seek indemnity and contribution from the claimants, will become moot. However, nothing precludes D & M from refiling those claims in state court, nor do D & M claim that they will be precluded from doing so. See e.g. Puerto Rico Maritime Shipping Auth. v. Leith, 668 F.2d 46, 50-51 (1st Cir. 1981) (no abuse of discretion where court allowed voluntary dismissal by plaintiff when defendants did not allege they would be precluded from raising any defenses or claims in state court). Moreover, while the parties have already conducted all of their discovery at this point, their efforts have not been wasted because they can still use the fruits of their discovery efforts in state court. See id. at 50.
Nor do we think that claimants are merely forum shopping because of an unfavorable Coast Guard report. Claimants assert that the reason for the present motion at this point in time is that they originally thought their claims exceeded the limitation fund. However, in September, 1993, the Second Circuit Court of Appeals significantly limited the damages recoverable by a non-dependent parent in wrongful death and survival actions as governed by federal maritime law. See Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084 (2nd Cir. 1993), cert denied, 127 L. Ed. 2d 380, 114 S. Ct. 1060 (1994). Pursuant to that decision, claimants realized the potential value of the claim asserted on behalf of the estate of Nicholas Ventura was significantly reduced. In turn, the aggregate of the claims was reduced so as not to exceed the value of the limitation fund. Indeed, it appears that claimants filed their motion to vacate in November 1993, a little more than two months after the Wahlstrom decision.
Given that we do not believe there is any bad faith on the part of claimants, nor is there any prejudice to D & M with regard to their right to limit liability, we must vacate the injunction originally imposed by Judge Duffy because there is no longer a need for a concursus in admiralty court. In so stating, we are mindful of the conflict between the Act and the saving to suitors clause, and the policy of allowing claimants to proceed with their claims in a court with the right to a jury trial. As the Supreme Court stated in Lake Tankers :
there can be no reason why a shipowner...should be treated any more favorably than an airline, bus, or railroad company. None of them can force a damage claimant to trial without a jury. They, too, must suffer a multiplicity of suits. Likewise, the shipowner, so long as his claim of limited liability is not jeopardized, is subject to all common-law remedies available against other parties in damage actions.
Lake Tankers Corp. v. Henn, 354 U.S. 147, 154, 77 S. Ct. 1269, 1273, 1 L. Ed. 2d 1246 (1957).
Balancing the right of claimants with the right of shipowners to limit liability, we find that by dissolving the injunction, both parties' interests are protected in this case. D & M's right to limit liability is protected by the stipulation, and claimants have the right to litigate their claims before a jury. The fact that D & M may have a tactical advantage by use of the Coast Guard report in federal court is not enough to deny claimants' right to pursue their cause of action under the saving to suitors clause. See e.g. Jefferson Barracks Marine Serv. v. Casey, 763 F.2d 1007, 1011 (8th Cir. 1985) (federal procedural rules shall not abrogate one's right to pursue cause of action under saving to suitors clause). As such, D & M's arguments are without merit.
D & M next argue that the stipulation filed by claimants is inadequate to protect their interests. D & M rely on a case decided by the Second Circuit Court of Appeals in 1955
as support for the following contentions: 1) that the stipulation is inadequate because each claimant did not specifically allege his reduced claim, rather, the stipulation only contains two lump sum damage claims on behalf of all the claimants; 2) that the claimants did not expressly agree to multiple representation by the attorneys in this case; and 3) that each claimant did not sign the stipulation so as to indicate express consent for reducing their claims.
Stipulations that have been found adequate in other cases have included a claim by claimants conceding the district court's retention of jurisdiction over limitation of liability issues, a consent to waive any claims of res judicata relevant to any limitation of liability based on judgments rendered in state court, a consent for priority of claims of indemnification for attorneys' fees and costs over the claims of claimants, and, a claim conceding the sufficiency of the limitation fund with regard to their individual claims.
See In Re Two "R" Drilling Co., Inc., 943 F.2d 576 (5th Cir. 1991); In Re Mister Wayne, 729 F. Supp. 1124 (E.D. La. 1989). The stipulation provided by claimants in this case sets forth the following: 1) a claim expressly conceding D & M's right to litigate all issues regarding limitation of liability in this Court; 2) a consent by each claimant waiving any claim of res judicata relevant to the limitation issue based on any judgment rendered in any state court; 3) a reduced damage claim for each claimant and a statement that the claimant will not seek to enforce any monetary judgment in excess of that amount in any state court action; and 4) that any claims for attorneys' fees by a co-defendant or third party will have priority over the claimants' claims. As previously stated, the aggregate of all stipulated claims amounts to 2.2 million dollars, which is the amount of the limitation fund.
From the stipulation, claimants have provided adequate protection as has been required by other courts when dissolving an injunction. There is no fear that D & M will be liable for more than 2.2 million dollars, therefore their right to limit liability has been protected, as is this Court's right to retain admiralty jurisdiction should an issue regarding limitation of liability arise. Further, we note that claimants have filed an amended stipulation and partial release which addresses each of D & M's concerns. For instance, each individual claimant has signed the stipulation, and has consented to the multiple representation by the attorneys. Given that claimants have addressed all of D & M's concerns, we leave the question of whether such additional elements are necessary to protect the shipowners' interest for another day.
In sum, claimants' motion to vacate the injunction must be granted. This case falls within an exception to the Limitation of Liability Act because the aggregate of the claims does not exceed the limitation fund and therefore a concursus is unnecessary. Since D & M's right to limit liability is adequately protected by the stipulation filed by claimants, claimants must be allowed to proceed in state court with a trial by jury as is their right under the "saving to suitors" clause of 28 U.S.C. § 1333.
An appropriate order follows.
AND NOW, this 13th day of April, 1994, upon consideration of the motion of claimants to vacate the August 27, 1991 order enjoining all proceedings against plaintiffs/third party defendants Dredging Equipment, Inc. and Morania Oil Tanker Corp., and all responses thereto, it is hereby ORDERED that claimants' motion is GRANTED, and it is further ORDERED:
1) that based upon the representations of the Ventura claimants to voluntarily dismiss their third party complaint against Morania No. 400 and Morania Tug & Barge pursuant to Rule 41 of the Federal Rules of Civil Procedure, the Ventura claimants shall file the appropriate motion to comply with their representations within ten (10) days from the entry of this Order; and
2) upon the dismissal of the above third party action, this Court will enter an Order vacating the August 27, 1991 order enjoining all proceedings against Dredging Equipment, Inc. and Morania Oil Tanker, Corp.; and
3) upon dismissal of the above third party action, this Court will enter an Order staying the limitation action and reserving to the parties the right to file a motion to reopen the matter should any limitation of liability issues arise.
BY THE COURT:
J. Curtis Joyner, J.