Walter E. Jappinen v. Canada Steamship Lines, Limited

417 F.2d 189, 1969 U.S. App. LEXIS 10471, 1970 A.M.C. 2404

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 10, 1969
• Docket: 19276
• Status: Published

Opinions

EDWARDS, Circuit Judge.

This is an appeal from denial of appel-ant’s motion to be allowed to file a late claim in admiralty. Canada Steamship Lines’ ship, the RENVOYLE, crashed into and sank the American steamer SYL-VANIA while the latter was moored to the dock at Port Huron, Michigan. Plaintiff-appellant, first mate on the SYL-VANIA at the time of the collision, claims that he received permanently disabling injuries as a result of that accident.

Subsequent to the crash, which occurred June 1, 1967, the owner of the vessel which was sunk sued defendant-appellee Canada Steamship, which then filed a motion in the United States District Court in Cleveland to limit liability and for an order of monition under 46 U.S.C. § 185 (1964) and Fed.R.Civ.P. Supplemental Rule F. Under this order claims were required to be filed by December 15,1967, and publication of the order was required in Cleveland and in Port Huron, the home port of the sunken vessel. Subsequently the court extended the time for filing claims one month. No publication was had in the small town in Minnesota where plaintiff lived. He claims that he had no knowledge of the order of limitation until May 24,1968 (at which time he was beyond the date for filing of claims set by the order).

His lawyers filed a petition on July 12, 1968, to be allowed to file a late claim, reciting the facts set out above. Appellee filed objection but did not dispute the facts. The District Judge denied this motion in a brief opinion relying upon Dowdell v. United States, 139 F. 444 (9th Cir. 1905).

The Dowdell case, however, is clearly not authority for what was done here. In Dowdell the late claim denied was five years late and the total proceedings had been terminated by final and unappealed decree.

In this case there had been no compromise or disposition of claims and no prejudice to any party is shown by appellee in the event appellant’s motion to file a late claim is allowed. The prejudice to appellant if the motion stands denied is obvious.

Under Admiralty law, the federal courts have a freely exercised discretion to allow late filed claims in the interest of justice. Texas Gulf Sulphur Co. v. Blue Stack Towing Co., 313 F.2d 359 (5th Cir. 1963); Petition of the United States, The Spring Hill, 172 F.2d 355 (2d Cir. 1949); Meyer v. New England Fish Co. of Oregon, 136 F.2d 315 (9th Cir.), cert. denied, 320 U.S. 771, 64 S.Ct. 83, 88 L.Ed. 461 (1943); Petition of Tugboat Dalzellea, Inc., 254 F.Supp. 298 (S.D. N.Y.1965); The City of Boston, 159 F. 257 (D.Mass.1906); A. Knauth, Benedict on Admiralty, § 518 (7th ed. 1968).

In Texas Gulf Sulphur, the Fifth Circuit said:

“In assaying the merits, we reaffirm the view many times expressed that the Admiralty is administered with equitable liberality and a simultaneous freedom from restraints or frustrations occasioned by technicalities or formal imperfections. Bombace v. American Bauxite Co., 5 Cir., 1930, 39 F.2d 867, 869, 1930 A.M.C. 826; Petition of N. J. Barging Corp. (Perth Amboy No. 1), S.D.N.Y., 1959, 168 F.Supp. 925, 928, 1959 A.M.C. 2532. Consequently, we readily accept the guiding principle elucidated by Benedict that ‘so long as the limitation proceeding is pending and undetermined, and the rights of the parties are not adversely affected, the court will freely grant permission to file late claims * * * ’ upon a showing of the reasons therefor. 3 Benedict, Admiralty § 518, p. 542 (Knauth ed. 1940). Several factors work in this direction. One certainly is the short limitation period which may be, as it was here, as short as 30 days. Rule 51. Another is that no formal process is served by the Marshal or a specially deputized person. Under the system, notice is to be brought home by a publication — often in a port or place remote from the claimants — plus the notice by mail of the type involved here.” Texas Gulf Sulphur Co., supra at 362, 363 of 313 F.2d.

Benedict states the general rule in Admiralty thus:

“Section 518. Late Claims.

“So long as the limitation proceeding is pending and undertermined, and the rights of the parties are not adversely affected, the court will freely grant permission to file late claims, upon an affidavit reciting the reason for the failure to file within the time limited. If the commissioner to receive claims has already rendered his report and finished his work, the court may require a supplementary report or may direct the clerk of the court to receive such late claim.

“After the ease has reached the point where the efforts of the timely claimants have obtained an offer of settlement, the court will not permit belated claimants to come into the proceedings and reap the benefit of the efforts of those who are-timely.”

In our view under the facts in this case, the District Judge clearly abused his discretion in denying appellant’s motion to be allowed to file a late claim. Since this conclusion determines this appeal, we find no need to deal with appellant’s second stated issue.

Reversed and remanded for further proceeding consistent with this opinion.