Hastie and Ganey, Circuit Judges, and Clary, District Judge.
This litigation is the aftermath of a disastrous collision in the Delaware River between the cargo ship Elna II, owned by Oskar Tiedemann and Co., and the tanker Mission San Francisco, owned by the United States and operated for the government by Mathiasen's Tanker Industries a private corporation. As a result of the collision, the Elna II was badly damaged, while the government owned tanker exploded and sank. Many members of the two crews were killed or injured.
Petitions for exoneration or limitation of liability were filed in the District of Delaware by both of the shipowners, Tiedemann and the United States, as well as Mathiasen's Tanker Industries. All claims arising out of the collision were brought within this proceeding.
In the first stage of the litigation the court tried the claims to exoneration and limitation of liability, denied all claims to exoneration, and duly decided that Tiedemann was entitled to limitation of liability, but that the United States and Mathiasen were not. 179 F. Supp. 227. On appeal, this court affirmed these decisions. 289 F.2d 237.
A second stage of the litigation followed in the district court. This involved the determination of the maximum dollar amount of Tiedemann's liability under the statutory scheme of limitation of liability. 46 U.S.C. § 183. In due course the court entered an order, dated April 16, 1962 and entitled "Final Decree", fixing $195,500 as the total amount of Tiedemann's limited liability for death and personal injury claims and property loss. Of this sum the court allocated approximately $180,000 to death and personal injury claims. The decree also provided "that upon payment into the registry of this Court of the sums hereinbefore set out, the petitioner, Oskar Tiedemann & Company should, and shall hereafter, be exonerated from any and all further liability of any and every nature whatsoever by reason of the collision between the USNS Mission San Francisco and petitioner's vessel, Elna II, * * *." There was no appeal from this decree. Tiedemann paid the full sum thus determined into the registry of the court.
A third stage of litigation involved hearings and a report by a commissioner, and subsequent decision by the district court, on the many claims which arose out of the collision and had been filed in this proceeding. Having paid the full amount of its limited liability into the registry of the court, Tiedemann did not participate in the hearings before the commissioner, since it seemed clear that the limitation fund would be consumed by the numerous claims chargeable against it aggregating several times $200,000.
After the commissioner had completed hearings on all claims and had filed his report, and with the matter before the court for decision on these claims, Tiedemann was advised for the first time that some claimants were now contending that unlimited liability should be imposed upon it for the full amounts of certain claims. Tiedemann then re-entered the proceedings to oppose these contentions. However, in its final decree making individual awards the court entered personal judgments against Tiedemann, additional to its already determined limited liability, aggregating $166,000 on claims of members of the crew of Tiedemann's ship Elna II for maintenance and cure necessitated by injuries sustained in the collision.
On this appeal Tiedemann urges that the court erred in imposing on it these personal obligations for maintenance and cure in addition to its overall limited liability as theretofore satisfied by the payment of $195,500.
At the outset we must decide whether the contention that liability for maintenance and cure should not be subject to limitation was properly entertained since it was not raised until after limited liability had been decreed, the maximum amount thereof determined, and that sum paid into court.
Tiedemann's petition for limitation of liability was filed in the District Court for the District of Delaware on March 19, 1957. The district court promptly ordered a monition to issue requiring all persons "claiming damages, indemnity or loss" by reason of the collision to appear and prove their claims in this action.*fn1 The court also restrained the institution or prosecution of any other action, suit or libel "of any nature arising out of, consequent upon, or in connection with * * * [the] collision * * *."
The several members of the crew of the Elna who are parties to this appeal responded to the monition by filing their individual claims reciting personal injuries suffered as a result of the collision and claiming both damages for negligent injury and maintenance and cure for the resulting periods of disability. These claimants also contended that the District of Delaware was not a proper forum for the limitation proceeding. The district court ruled against this contention and, upon appeal, we affirmed that decision. 259 F.2d 605. It is noteworthy that, while thus availing themselves of the first opportunity to challenge the jurisdiction of the district court, the members of the Elna crew made no contention that their maintenance and cure claims could not lawfully be subjected to such limitation of liability as was the principal relief sought by Tiedemann in this proceeding. This omission takes on added significance in the light of the provision of General Admiralty Rule 53 that a claimant's answer shall "state the facts and circumstances by reason of which * * right to limitation should be denied". 334 U.S. 869.
Hearing on the merits of Tiedemann's claim to exoneration or limited liability followed. On April 14, 1960, the district court entered an interlocutory decree ordering, among other things, that "the petition of Oskar Tiedemann and Company * * * for limitation of liability be and is hereby granted". The claimant crew members did not appeal from this decree, but the United States did. This court affirmed the decision that Tiedemann was entitled to limitation of liability. 289 F.2d 237. Here again, no contention was made that the decreed ...