McCrary v. Seatrain Lines, Inc., 26834.
| Decision Date | 01 November 1972 |
| Docket Number | No. 26834.,26834. |
| Parties | David McCRARY, Plaintiff, v. SEATRAIN LINES, INC., a corporation, Defendant. HUDSON WATERWAYS CORPORATION, a corporation, Third-Party Plaintiff and Appellee, v. MARINE TERMINALS CORP., a corporation, Third-Party Defendant and Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Scott Matthew (argued), of Sikes, Pinney & Matthew, North Hollywood, Cal., for appellant.
Kenneth R. Chiate (argued), Gordon K. Wright, of Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., for appellee.
Graydon S. Staring, San Francisco, Cal., Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., for amicus curiae: States Steamship Co. & American President Lines, Ltd.
Before BROWNING and GOODWIN, Circuit Judges, and PLUMMER, District Judge.*
An injured longshoreman brought an action against a shipowner, alleging unseaworthiness, diversity of citizenship, and damages in excess of $10,000. The shipowner thereupon filed a third-party complaint for indemnity against the stevedoring company, employer of the injured workman, incorporating the original complaint by reference. In its answer the stevedoring company demanded trial by jury.
During the pretrial stages of this triangular litigation the injured workman settled his claim with the shipowner, leaving only the indemnity claim to be tried. At a pretrial conference, the district judge indicated that he would try the indemnity claim without a jury. After hearing further argument on the stevedoring company's demand for a jury, the court tried the case without a jury, and found in favor of the shipowner. The stevedoring company appeals, protesting the denial of trial by jury.
In the district court, the stevedoring company contended that the case was before the court under diversity jurisdiction; that its demand for a jury was timely and proper ; and that the court had no power to deny trial by jury. The stevedoring company relied upon Banks v. Hanover Steamship Corporation, 43 F.R.D. 374 (D.Md.1967).
The shipowner primarily contended that under Fed.R.Civ.P. 9(h) its claim was cognizable only in admiralty, and that under Rule 38(e) there is no right to a jury trial in an admiralty case. Alternatively, it suggested that if admiralty jurisdiction were not already present it had the unqualified right under Rule 15(a) to amend its third-party complaint with a Rule 9(h) statement identifying its claim as one arising in admiralty.
Both sides were claiming too much.
The district judge determined that the indemnity claim of the shipowner did lie solely in admiralty, and rejected the stevedoring company's motion for a jury trial. Having determined that the action would be tried without a jury, the district judge then rejected the shipowner's motion to amend its complaint to include the Fed.R.Civ.P. 9(h) language designating the claim as a maritime claim, apparently in the belief that the amendment would be redundant.
The third-party claim of the shipowner, however, did not lie solely in admiralty. It was ancillary to the injured...
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...being no right to a jury trial in cases cognizable only in admiralty, the motions for jury trial are denied. See, McCrary v. Seatrain Lines, Inc., 469 F.2d 666 (9th Cir. 1972). Upon the motion of defendants LTV, et al., however, this court shall exercise its discretion under Rule 39(c), F.R......
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Harrison v. Flota Mercante Grancolombiana, S. A.
...specified that the claim is brought pursuant to Rule 9(h). Furthermore, this case is clearly distinguishable from McCrary v. Seatrain Lines, Inc., 469 F.2d 666 (9th Cir. 1972). In McCrary, the court noted that the third-party claim was ancillary to the plaintiff's diversity claim and did no......
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Emerson G.M. Diesel, Inc. v. Alaskan Enterprise
...withdraw their demand for a jury trial without obtaining the defendant's consent. We considered this same issue in McCrary v. Seatrain Lines, Inc., 469 F.2d 666 (9th Cir.1972) and came to the opposite conclusion. In McCrary, a shipowner filed a third-party complaint for indemnity against a ......
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Williams v. Shipping Corporation of India, Ltd., Civ. A. No. 2874.
...amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Rule 15." See McCrary v. Seatrain Lines, Inc., 469 F.2d 666 (9th Cir.). It is important to note at this point that plaintiff's amendment of October, 1972, does not withdraw the original admi......