Weldon v. United States

• Decision Date: 05 June 1933
• Docket Number: 2785.,No. 2784,2784
• Citation: 65 F.2d 748
• Parties: WELDON v. UNITED STATES et al. UNITED STATES et al. v. WELDON et al.
• Court: U.S. Court of Appeals — First Circuit

65 F.2d 748 (1933)

WELDON v.UNITED STATES et al.

UNITED STATES et al. v.WELDON et al.

Nos. 2784, 2785.

Circuit Court of Appeals, First Circuit.

June 5, 1933.

Francis J. Carney, of Boston, Mass. (J. Frank Scannell, John A. Canavan, and William J. Killion, all of Boston, Mass., on the brief), for Weldon.

Myron H. Avery, Admiralty Atty., U.S. Shipping Board, of Washington, D.C. (A. Chesley York, Asst. U.S. Atty., of Boston, Mass., on the brief), for the United States and the United States Shipping Board, etc.

John E. Macy, of Boston, Mass., for respondentB.A. Carroll Stevedoring Co.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

MORTON, Circuit Judge.

These are cross-appeals from three orders, the first, denying the motion of the United States to implead as defendant the B.A. Carroll Stevedoring Company, Inc.; the second, denying Weldon's motion to amend his libel by substituting said stevedoring company as libelant; and the third, holding in effect that an offer of proof made by the libelant was insufficient in law to warrant a decree in his favor, and directing that the libel be dismissed.The United States has appealed from the first order and the libelant from the other two orders.The appeal of the United States becomes moot if the libel was properly dismissed.

Weldon was a stevedore employed by the Carroll Company.In the libel it is alleged that he was seriously injured by the breaking of a ladder which was a permanent part of the vessel on which he was at work.This vessel, the Seattle Spirit, was owned by the United States Shipping Board Merchant Fleet Corporation, a government agency.Weldon elected to take compensation from his employer, the Carroll Company, under the Longshoremen's and Harbor Workers' Compensation Act(33 USCA §§ 901-950).After having been paid substantial sums as compensation by the Carroll Company, he filed this libel against the United States, as owner of the vessel, under the Suits in Admiralty Act(46 USCA §§ 741-752), claiming that his injuries were caused by the negligence of the vessel or her owner.

The libel expressly states that the sums recoverable under it have been assigned by force of law, i.e., by the Longshoremen's Act, to his employer, the Carroll Company, and that the libel is brought for the benefit of himself and that company under the provisions of said act.The Longshoremen's Act provides that suits under it must be brought within two years after the date of the injury.The libel itself was seasonably filed; but the libelant's motion to substitute the Carroll Company as libelant was not filed until long after the two years had expired.

The District Judge held that he was without power to allow the amendment, apparently taking the view that it sought to introduce a new cause of action.The first question is whether this ruling was right.We are of opinion that it was not.No new cause of action was introduced by the proposed amendment.The claim on which the libel rested was in no way altered.By the amendment it was sought merely to substitute a new partyplaintiff.This was permitted to be done in Missouri, Kan. & Tex. Ry. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann. Cas. 1914B, 134, a case which, like the present one, depended on a statutory right.In that case action was originally brought by the widow of the decedent on a claim under a state statute.After the statute of limitations had expired, she was permitted to amend by substituting herself as administratrix as plaintiff and making a claim under the Federal Employers' Liability Act(45 USCA §§ 51-59).Here the substitution was hardly more than a formality because, as has been said, the libel stated in explicit terms that it was brought for the benefit of the Carroll Company.The Wulf Case fully covers the present one.It is unnecessary to decide whether the libel as it stood without amendment could have been proceeded on.Cases in which the defendant was not brought into court until after the period of limitation had expired stand on a very different footing.SeeDavis, Agent, v. Cohen & Co., Inc., 268 U.S. 638, 45 S.Ct. 633, 69 L.Ed. 1129.

The appeal of the United States from the order denying its motion to implead the Carroll Company as defendant requires a further statement of facts.The Carroll Company was doing stevedore work on the Seattle Spirit under a general contract between it and the Merchant Fleet Corporation, dated February 8, 1928.This contract is of rather complete character, containing nineteen numbered clauses and covering about ten pages in the record.It provides:

"13.The Stevedore shall at its own...