The opinion of the court was delivered by: JONES
The petition and stipulation for petitioner's maximum liability with approved surety were filed on November 25, 1949. The monition issued November 30, 1949 and notice was published in several newspapers on December 5, 1949 and every seventh day thereafter until March 27, 1950. The date of the second publication was December 12, 1949.
It is conceded that petitioner filed its petition and stipulation with approved surety well within the six month period provided in 46 U.S.C.A. § 185. However, the claimants contend that petitioner did not comply with the requirements of Rule 51, Admiralty Rules, as amended June 21, 9148, 28 U.S.C.A.; and that is the chief ground of their exceptions. It is apparent that (1) the monition did not direct persons asserting claims to file their claims with the Clerk of Court, and to mail a copy of each claim to the proctor for the petitioner; but it did direct the claimants to file claims with this Court through a Commissioner, where, by Rule 52, they eventually are to be proved (third paragraph, Rule 52); (2) the notice of the monition published in the newspapers was not in the same form as the notice found in Rule 51, but it is substantially the same, and that is all that is required; (3) petitioner, not later than the day of the second publication, December 12th, did not (a) mail a copy of the notice to every person known to have made any claim in writing, (b) in cases involving death, mail a copy of the notice with a copy of Rule 52 to every decedent at his last known address, (c) in cases involving death, mail a copy of the notice with a copy of Rule 52 to every person known to have a claim on account of the death of the decedent. For the purpose of decision we may assume that all the exceptors herein gave petitioner written notice of their claims before December 12th and that petitioner failed to mail the required notice to all of the exceptors. Petitioner, however, asserts that notice to all known claimants was given although not strictly in accordance with Rule 51, and has submitted affidavits to that effect.
It also may be assumed for the purpose of decision that the omissions in the monition and notice of monition are such that it can be said that petitioner has not followed the procedure outlined in Rule 51. Frankly, the petitioner followed the old procedure, and overlooked the 1948 amendments.
During oral argument exceptors receded from the position taken in their briefs, that all proceedings for limitation of liability under Section 185 and the admiralty rules must have been accomplished within six months.
But claimants contend that a valid monition must have issued, or a defective monition must have been corrected, within the six months provided by Section 185 for filing the limitation petition.
Briefly stated the excepting claimants mainly now contend (1) that petitioner's failure to comply with Rule 51 is fatal to contingent jurisdiction and calls for dismissal; (2) that granting the petitioner the right to retrieve its jurisdictional status by the proposed issuance of new monition and notices would be the same as permitting the commencement of a new action, barred by the six-months limitation.
Save for an impressive briefing of the question and serious insistence upon oral argument I should not have thought there could be any doubt about the matter.
This special statute, Section 185, Title 46, for initiating limitation actions in admiralty has in it such clear and express provisions for complete and exclusive jurisdiction, that once attaching, no subsequent procedural irregularity, subject to correction, would be fatal to that jurisdiction.
Even those who press this motion must concede that this statutory proceeding is intended and designed for the marshalling of all claims against the vessel and owner, and for the purpose of their complete and final disposition whether limitation ultimately is or is not granted.
The purpose of the recent amendments to Rule 51 was to prevent default for failure to file claims.
Exceptors, at great length in their briefs, developed the theory that the new requirements in Rule 51 are jurisdictional in nature. This, it seems clear to me, is not the case although decision does not wholly depend on such a determination. The same result would be reached however the requirements of Rule 51 may be defined and applied.
The courts apparently acquire jurisdiction when the petition and stipulation are filed. Section 185, Title 46 ...