June E. Berry, Etc. v. Pacific Sportfishing, Inc.

The sole question presented on this appeal is whether appellant’s claim is barred by the statute of limitations. The district court held that it is. We reverse.

Appellant’s claim is for the wrongful death of her husband, which occurred on appellee’s vessel “Fisherman” on July 13, 1962. On July 11,1963, appellant filed in the California Superior Court, Los An-geles County, an action against appel-lees for wrongful death. On February 5, 1964, appellees filed an answer in the state court, but did not assert lack of jurisdiction. Appellees did allege their intention to file, in federal court, a limitation of liability proceeding. On May 8, 1964, a pre-trial conference was held in the state court. Appellees, in their pre-trial statement, did not assert lack of jurisdiction, but again stated their intention to file a limitation proceeding. The statement was made a part of the state judge’s pre-trial order. The case was set for trial on October 5, 1964.

On July 16, 1964, appellees, as vessel owners, filed the present action in federal court, seeking limitation of liability. An injunction against prosecution of the state court action issued on July 17,1964. So far as appears, the state…