141 F.Supp. 795, but the Court of Appeals reversed, saying:
'* * * approach to modern admiralty as to modern civil procedure should be to permit convenient practice where we know of no authority that forbids.' 235 F.2d at page 143.
Certainly to permit impleader in this case is to permit 'convenient practice'. All liability issues can be concentrated in one proceeding. And although Storr is a Pennsylvania citizen, it will impose no hardship upon him to be impleaded in this jurisdiction for, because by his complaint in this court in the law action and his answer to the petition for limitation of liability, he has already obligated himself to litigate in this forum issues concerning the same facts that will be involved in trying the issues tendered by the impleading petition.
This impleader, however, presents an added factor not found in any of the reported cases considering the effect of Admiralty Rule 56 on limitation proceedings. That factor is the complicating presence of a concurrent law action on the same facts brought by the damage claimants against the petitioner for limitation. The law action is permitted by the 'saving clause' of 28 U.S.C. § 1333 which decrees that the federal district courts 'shall have original jurisdiction, exclusive of the courts of the States, of:
'(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.'
The policy of admiralty has been to infringe the right to jury trial under the saving clause as infrequently as possible. See Petition of Healing & Son, Inc., D.C.D.N.J.1954, 124 F.Supp. 46. Thus, where there is only one claim against a petitioner in limitation and no more are possible or reasonably expected the limitation action will lie dormant until the jury action against the petitioner in limitation is completed and it need be activated only in the event that the recovery at law exceeds the value of the ship plus her pending freight. Langes v. Green, 1931, 282 U.S. 531, 51 S. Ct. 243, 75 L. Ed. 520; Ex parte Green, 1932, 286 U.S. 437, 52 S. Ct. 602, 76 L. Ed. 1212; Waldie Towing Co. v. Ricca, 2 Cir., 1955, 227 F.2d 900, 901 and cases cited. An analogous principle is that in the event that the maximum of all claims is less than the available fund, admiralty will ordinarily permit the damage claimants to proceed in their law actions, the necessity for limitation being non-existent. Petition of Texas Co., 2 Cir., 1954, 213 F.2d 479, certiorari denied Texas Co. v. United States, 1954, 348 U.S. 829, 75 S. Ct. 52, 99 L. Ed. 653. And when it is decided that there is no right to limitation, admiralty permits the damage claimants to elect whether to return to their law actions, In re Wood's Petition, 2 Cir., 1956, 230 F.2d 197, or to remain in admiralty and utilize its jurisdiction for the assessment of damages. Hartford Accident & Indemnity Co. of Hartford v. Southern Pacific Co., 1927, 273 U.S. 207, 47 S. Ct. 357, 71 L. Ed. 612; Just v. Chambers, 1941, 312 U.S. 383, 668, 61 S. Ct. 687, 85 L. Ed. 903; The James Horan, 10 F.Supp. 363, D.C.D.N.J.1935, affirmed 3 Cir., 1935, 78 F.2d 870, certiorari denied Warner-Quinlan Co. v. Swan-Finch Oil Corp., 1935, 296 U.S. 621, 56 S. Ct. 142, 80 L. Ed. 441. Of course, when the fund is limited and the total of claims exceeds it in amount recourse to the law action is not permitted. This is because of the interests of the claimants in minimizing one another's damages in their efforts to secure for themselves a greater share in the pro rata distribution. See Petition of Trinidad Corporation, 2 Cir., 1955, 229 F.2d 423, 428.
Based on the foregoing principles this should be approximately the future procedural course of this case,
subject to the right of the parties to make appropriate stipulation otherwise:
1. The limitation action, including the impleader of Storr, will go to trial. There the right of Horace A. Hocking to limit his liability will be decided. Since his petition for limitation of or exoneration from liability necessarily involves the issue of his fault, that, too, will be decided and the result of the resolution of that issue will be res judicata in other litigation involving these claimants on the one side and Horace A. Hocking on the other. Algoma Central & Hudson Bay Ry. Co. v. Great L.T. Corp., 2 Cir., 1936, 86 F.2d 708; British Transport Commission v. United States, supra, 230 F.2d at page 144; Petition of Texas Co., supra, 81 F.Supp. at page 762. At the same time the issue of Storr's fault tendered by the impleader will also be tried, and under the Algoma and British Transport cases that question will also be res judicata in future proceedings involving these parties.
2. If Hocking is exonerated, he will be out of the case, but if Storr has been found at fault the remaining claimants may have damages against him.
3. If limitation is allowed damages will be apportioned in the limitation proceeding. Petition of Trinidad Corporation, supra. At the same time any allowable recovery against Storr may be pursued by the other claimants as well as any permissible recovery over against Storr by Hocking.
4. If limitation is denied it will have been decided that Hocking is personally at fault and under In re Wood's Petition, supra, the claimants may elect to have a jury trial in the law action of the issue of damages against Hocking. The principle of comparative negligence will apply, Pope & Talbot, Inc., v. Hawn, 1953, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143, and Hocking may seek to diminish the damages of claimants other than Storr by proving them negligent. As to Storr his negligence will already have been decided; and if he was found at fault the jury will have to hear evidence in order to determine its degree. The jury action will also consider the liability of Horace L. Hocking, which remains to be tried on these damage claimants' complaint in their law action.
5. In the event that Storr was found at fault and if he is liable by way of remedy over to Hocking for all or part of the damages awarded to the other claimants by the jury, there must be a return to the limitation proceeding to afford Hocking his remaining relief under the impleader.
Counsel for the petitioner may present an order in conformity with this opinion after obtaining consent as to its form only from counsel for the claimants. If such consent cannot be had, petitioner's counsel may move for settlement of the order.