Higginbotham v. Mobil Oil Corporation, 29071.

• Citation: 436 F.2d 8
• Decision Date: 29 December 1970
• Docket Number: No. 29071.,29071.
• Parties: George W. HIGGINBOTHAM, Plaintiff-Appellant, v. MOBIL OIL CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

436 F.2d 8 (1970)

George W. HIGGINBOTHAM, Plaintiff-Appellant, v. MOBIL OIL CORPORATION, Defendant-Appellee.

No. 29071.

United States Court of Appeals, Fifth Circuit.

December 29, 1970.

Jack C. Benjamin, John Poitevent, New Orleans, La., for plaintiff-appellant.

George B. Matthews, New Orleans, La., for defendant-appellee.

Before TUTTLE, BELL and AINSWORTH, Circuit Judges.

TUTTLE, Circuit Judge:

The appellant complains of the denial of a motion for permission to amend a "libel and complaint in admiralty." The effect of such denial would be to require the rejection of a personal injury claim of libellant because the claims asserted in the proposed amendment constitute a claim under the Death on the High Seas Act, 46 U.S.C.A. § 761, et seq., as to which the statute itself provides a two-year limitation period. See 46 U.S.C.A. § 763. This court allowed an interlocutory appeal.

According to the libel filed by the decedent, Higginbotham, his trawler, MISS ELLEN, collided with a fixed unlighted steel structure belonging to the Mobil Oil Corporation on the night of June 9, 1965, as the MISS ELLEN, manned by a crew of three, and seaworthy in all respects, was proceeding some sixty miles off the coast of the state of Louisiana. Because of the significance of the reservation of the libellant's "right to amend and supplement this article of the libel, and prove same at the trial of the case," we here quote the entire third article:

"The Trawler MISS ELLEN manned by a crew of three and seaworthy in all respects was proceeding in a westerly direction off the coast of the State of Louisiana in the waters of the Gulf of Mexico on the night of June 9, 1965, as she approached an area where the lights of structures were observed at a distance. It was later ascertained that this was Block 87 of the Ship Shoal Area.

"At approximately 9:00 p. m. on June 9, 1965 there was a lowcast ceiling and it was very dark, when suddenly the MISS ELLEN collided head-on with an unlighted, fixed steel structure that was sounding no horn, siren or whistle signals. Just after the moment of impact the engine of the MISS ELLEN was reversed and it was observed that her bow stem was broken by the impact. It was observed by the crew of the MISS ELLEN that the object that their vessel collided with was unlighted, showing no reflective materials and emitting no sound signals.

"The MISS ELLEN started taking water despite the fact that her pump was put into operation. Fortunately another vessel arrived on the scene and rescued the crew of the MISS ELLEN. The United States Coast Guard was advised of the collision. Later that night it was observed that the unlighted fixed steel structure or platform had some 35-gallon drums stored on it. It was estimated that a lighted platform, No. 87 owned by Mobil Oil Corporation, was eastnortheast of the unlighted structure at a distance of approximately 150 yards.

"Libellant reserves the right to amend and supplement this Article of the libel and to prove same at the trial of this case."

The libel then alleged in Article IV the specific acts of negligence, and denied any contributory negligence. We quote the entire Article V:

"By reason of the premises, libellant has sustained damages directly attributable to the collision and foundering of the MISS ELLEN, presently estimated to amount to the sum of Fifty Thousand and No/100 ($50,000.00) Dollars.

"Libellant reserves the right to amend this Article to set forth his damages with particularity and to increase his claim if further or additional damages are discovered."

One year later, almost to the day, following the accident, Higgenbotham filed his complaint and libel. Two days later, on June 9, 1966, Higginbotham died. The complaint was served on defendant on June 20, 1966, and the answer was filed on August 12, 1966. Nothing else appears in the record until September 5, 1968, when plaintiff served interrogatories on the defendant. Answers to the interrogatories were filed on October 9, 1968.

On October 25, 1968, decedent's widow, as the duly qualified administratrix of his estate, by and through counsel other than counsel who filed the original complaint, filed her motion to substitute herself as party plaintiff, under the authority of 46 U.S.C.A. § 761, et seq., and to amend the original complaint by supplementing and amending Article V of the original libel to read as follows:

"By reason of the premises, the said George W. Higginbotham sustained damages directly attributable to the collision and the foundering of the Miss Ellen, including damage to his vessel and personal injuries which ultimately resulted in his death."

The amendment alleged proper dependency provisions and then sought to amend by alleging under Article VIII "as a result of the foregoing, plaintiff is entitled to recover for the damage to her deceased husband's vessel, including damages for detention and loss of use; she is entitled to recover damages for the loss of support, contributions and subsistence given to her and her children by the same George W. Higginbotham, and the prospect thereof. * * *" It is also alleged that she was entitled to other losses resulting from his death and that the total amount of said damages, including pain and suffering, totalled $500,000. The proposed amendment also demanded punitive damages in the sum of $500,000.

Upon oral hearing, counsel for the defendant objected to the granting of the motion to file the supplemental and amended complaint, and, following oral argument, the trial court entered an order denying the motion to amend.

Both in the trial court and here, the parties agreed that the issue was whether the libel and complaint contained language broad enough to include a cause of action for personal injuries, as well as property damage, both parties agreeing that unless the language was thus broad, then the trial court properly denied the tendered amendment in view of the fact that by the time the amendment was tendered, seeking recovery under the provisions of the Death on the High Seas Act, the statutory period of two years had expired.

Moreover, both parties, as well as the trial court, recognized the basic principle with respect to the allowing of amendments, whether in admiralty or in other actions in the federal courts. The trial court stated:

"Pleadings should be liberally construed, Beacon Theatres, Inc. v. Westover, 79 S.Ct. 948, 359 U.S. 500, 3 L. Ed.2d 988 (1959); and if the complaint be ambiguous or unclear, it should be construed in a manner most favorable to the pleader. DeWitt v. Paul, 366 F.2d 682 (9th Cir., 1966); Metropolitan Life Insurance Co. v. Fugate, 213 313 F.2d 788 (5th Cir., 1963). We are aware, as noted in Virgin Islands Corp. v. W. A. Taylor Co., supra 202 F.2d 61, that to dismiss a complaint on the bare

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