The opinion of the court was delivered by: BYERS
The libelant, a longshoreman employed by Pittston, impleaded respondent, was injured on December 21, 1950, while working in the lower hold No. 1 on the S.S. American Scientist, then lying at Pier 12, Staten Island, which was an Army Base. The cause of his injury was the fall from a pallet which was being lowered into the hold, of a bundle of three tractor treads bound together by a rope or cable.
He sustained serious injury to his left foot and ankle, the nature and extent of which need not be now stated.
The libel was filed in January of 1952 in the Southern District whence it was duly transferred to this court. That libel sought recovery in personam from United States Lines as owner of the ship involved.
In June of 1952, the respondent filed a petition impleading Pittston and one year later both filed a petition impleading William Spencer & Son Corp., and it will be observed that this was within three years of the date of the accident.
The case was tried in this court from May 22 to May 26, 1956; at the conclusion of the trial it was stated that the libelant would consent that the original libel be dismissed; it may be stated in parenthesis that this was said to be the result of settlement negotiations between the libelant and the ship owner respondent.
There are but two questions now requiring determination: The first is purely technical, and the second is equally meritorious.
On June 20th and prior to the receipt of the briefs of counsel, libelant made a formal motion to amend the pleadings and to conform them to the proof; that motion was opposed on the part of Spencer on the grounds that to grant it would in effect permit the amendment of the libel after the statute of limitations had run against the libelant; on the further ground that the libelant had never asserted a direct claim or cause of action against Spencer 'because of the libelant's failure to answer and adopt the impleading petition;' that if the libel were to be so amended the result would be that a cause of action against Spencer would be asserted for the first time.
It will be convenient therefore to dispose of the motion as part of the entire case.
The technical question is directed to the alleged failure of the libelant to comply with the relevant portions of the 56 Admiralty Rule, 28 U.S.C.A., which is entitled,
'Rule 56. Right to bring in party jointly liable
'In any suit, whether in rem or in personam, * * * respondent * * * shall be entitled to bring in any other * * * person (individual or corporation) who may be partly or wholly liable either to the libellant or to such claimant or respondent by way of remedy over, contribution or otherwise, growing out of the same matter. This shall be done by petition * * * or at any later time during the progress of the cause that the court may allow. Such petition shall contain suitable allegations showing such liability, and the particulars thereof, and that such * * * person ought to be proceeded against in the same suit for such damage, and shall pray that process be issued against such * * * person to that end * * * such suit shall proceed as if such * * * person had been originally proceeded against; the other parties in the suit shall answer the petition * * * such new party shall answer the libel * * *.'
While it is true that this libelant did not file an answer to the impleading petition that sought to bring Spencer into the cause, it is thought that he did the equivalent in that his proctor filed an affidavit in connection with the motion which was verified May 28, 1953, from which the following is quoted:
'* * * The accident occurred December 21, 1950 at the New York Port of Embarkation located in Staten Island, Pier 12, Stapleton, S.I. The facts, as borne out by records of the Department of the Army, particularly the Marine Casualty Investigation Department, shows that William Spencer and Sons Corporation, or its agents, servants or employees, had performed certain stevedoring services for the railroad carriers, and that the cargo involved in the accident was placed on certain loading pallets by employees of the William Spencer Company, Inc. and that the storing or loading of these heavy tank belts were performed by William Spencer & Sons Corp.
'Besides the claim of the Libelant that the winch which was lowering these platforms into the No. 1 hold was defective, the Libelant will also endeavor to establish that the tank belt fell from pallet because it was improperly placed on the belt in the first place by William Spencer & Sons ...