CG WILLIS, INCORPORATED v. United States

• Citation: 202 F. Supp. 67
• Decision Date: 13 December 1961
• Docket Number: No. 313.,313.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: C. G. WILLIS, INCORPORATED, owner of THE Barge KAY and THE Tug WILLISTON, Libellant, v. UNITED STATES of America, owner of THE FS-219, in personam, Respondent.

202 F. Supp. 67

C. G. WILLIS, INCORPORATED, owner of THE Barge KAY and THE Tug WILLISTON, Libellant, v. UNITED STATES of America, owner of THE FS-219, in personam, Respondent.

No. 313.

United States District Court E. D. Virginia, Newport News Division.

December 13, 1961

Seawell, McCoy, Winston & Dalton, Robert M. Hughes, III, Norfolk, Va., for petitioner.

C. V. Spratley, Jr., U. S. Atty., Norfolk, Va., Harold G. Wilson, Trial Atty., Admiralty and Shipping Section, Dept. of Justice, Washington, D. C., for respondent.

WALTER E. HOFFMAN, Chief Judge.

By an interlocutory decree dated January 3, 1961, the Court held that the respondent was liable for the damages sustained by libellant as the result of a collision occurring on April 4, 1956. The parties not having agreed upon the damages, an order of reference was entered on February 10, 1961, submitting the matter to a commissioner for the ascertainment of damages. While the inquiry was before the commissioner, a pre-trial conference was scheduled but proctor for respondent failed to appear. The commissioner advised proctors by letter dated March 30, 1961, as to the procedural rules to be followed in the presentation of the claims for damage including, in part, the following:

"At the pre-trial conference, the commissioner made the following rulings:

* * * * * *

"As to claims for cargo loss and surveyor's fees, paid receipts showing such losses and expenses will suffice to prove the fact of such losses and expenses and the extent of same."

As filed, the libel made no mention of any claim for cargo loss. The pertinent paragraph of the libel relating to damages reads:

"Seventh: As a result of the said collision, the Barge KAY sustained severe physical damage to her bow, both above and below the water line, and to other parts of the vessel, as well as to her equipment; libellant has further incurred survey, tug and pilotage charges, and damages as a result of detention during repairs, in a total amount of at least $30,000.00, as far as is now ascertainable. No part of such expenses and loss have been paid by respondent, although duly demanded. Right is reserved by the libellant to amend its libel in the event that damages exceed the amount mentioned."

At the subsequent hearing before the commissioner on May 4, 1961, the respondent was initially represented by an Assistant United States Attorney due to the absence of the attorney from the Admiralty and Shipping Section of the Department of Justice. Testimony was introduced reflecting that libellant had actually paid the cargo losses aggregating $2,345.72. Later during said hearing the attorney for the Admiralty and Shipping Section appeared and moved to strike any evidence relating to cargo loss on the ground that it was not alleged in the libel. The evidence was admitted and the commissioner found, by his report filed September 15, 1961, that libellant was entitled to recover for the cargo loss if the Court saw fit to permit an amendment to the libel.

On May 23, 1961, libellant filed a motion to permit an amendment to the libel including the item of cargo loss. We have for consideration the propriety of permitting an amendment to the libel to include an item of omitted damage after the statute of limitations has expired. Under the liberal interpretation of Admiralty Rule 23, 28 U.S.C.A. and the authority of Deupree v. Levinson, 6 Cir., 186 F.2d 297, 303, cert. den. 341 U.S. 915, 71 S.Ct. 736, 95 L.Ed. 1351, the amendment should be granted. This is not a situation in which a third party paid the loss and endeavors to seek a recovery after the statute has run. The libel was filed on November 28, 1956. All claims for cargo loss had been paid by libellant prior to that date. As of the date of the filing of the libel the cargo owners had been fully compensated by libellant....