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March 5, 1954

Otto S. TAYLOR, Libellant,
Max P. CRAIN and Mason W. Crain, now amended to Max P. Crain and Jacqueline B. Crain, Administratrix of the Estate of Mason W. Crain, deceased, Respondents

The opinion of the court was delivered by: MARSH

The libellant filed his libel on January 30, 1950, in Admiralty No. 165, against Crain Brothers, Inc. This action was discontinued at the trial. On August 15, 1950, he filed his libel against Max P. Crain and Mason W. Crain *fn1" at No. 181 in Admiralty, alleging that while he was employed as a deckhand by the respondents, he was injured on May 28, 1945, because of the unseaworthiness of the vessel on which he was working and because of negligence for which respondents are liable.

On October 3, 1951, he filed his libel for maintenance and cure in Admiralty No. 205.

 Mason W. Crain died on November 6. 1951. His death was suggested by counsel for respondents on March 4, 1952. On December 3, 1953, a few days before trial, the libellant moved to substitute the administratrix of the estate of the decedent as a party respondent.

 Counsel for the administratrix objected to the substitution, averring as his sole reason in opposition that more than two years had elapsed since the death of Crain and citing Rule 25(a)(1) of the Rules of Civil Procedure, 28 U.S.C.A. *fn2" This objection was overruled and the substitution allowed prior to the trial because the court thought that the action for unseaworthiness survived and that the Federal Rules of Civil Procedure 'do not apply to proceedings in admiralty', Rule 81(a)(1). In addition, no prejudice to the estate was shown likely to result by allowing the delayed substitution, whereas a refusal conceivably might result in serious prejudice to libellant.

 Pursuant to the mandate of the Court of Appeals in Taylor v. Crain, 3 Cir., 1952, 195 F.2d 163, reversing, D.C., 98 F.Supp. 149, and our practice in Slepski v. Dravo Corp., D.C.W.D.Pa.1951, 104 F.Supp. 89, and Crumrine v. Jones & Laughlin Steel Corp., D.C.W.D.Pa.1951, 104 F.Supp. 92, testimony was taken on the issue of laches, on which issue the court makes the following

 Findings of Fact

 1. Libellant filed his libel on August 15, 1950, alleging that injuries suffered on May 28, 1945, were caused by unseaworthiness and negligence.

 2. At the time of the accident Max P. Crain, one of the respondents, was the captain of the vessel on which the injury occurred. This captain did not, as alleged in the libel, promise employment to libellant if he did not make a claim on account of his injuries, nor did he threaten to black-list him if he did file a claim.

 3. The other respondent, Mason W. Crain, who died November 21, 1951, did not in his lifetime, promise libellant steady employment or state that he would prevent libellant from obtaining employment with other firms if a claim were filed. The evidence offered to prove that this decedent made such a statement to this libellant on May 29th or 30th, 1945, is incredible.

 4. Respondents had prompt notice of libellant's injuries and libellant made a claim with respondents' insurance carrier, New Amsterdam Casualty Company, on July 6, 1945, and entered into an agreement for compensation at the rate of $ 18 per week under the Workmen's Compensation Laws of Pennsylvania, approved July 20, 1945, by the Bureau of Workmen's Compensation. *fn3"

 5. The delay of over five years in filing the suit for unseaworthiness in admiralty is inexcusable.

 6. The respondents were not prejudiced by the failure of libellant to file his libel for unseaworthiness for this period.


 Libellant attempted to prove by Alda Mae Wright that the delay in filing his libel over five years after the accident was excusable. Mrs. Wright testified that she was present in libellant's room shortly after the accident over eight years ago, and overheard a conversation between libellant and Mason W. Crain, the deceased respondent. She testified that Mr. Crain said to libellant, 'If you do not bring suit I will see you have a job as long as you live, but if you do bring suit I will have you black-balled off the river.'

 Mrs. Wright was illiterate. She cleaned the rooms in the rooming house where libellant lived. She was unable to describe Mr. Crain correctly. She said she never saw him with his hat off. She said she observed him talking to libellant three times subsequent to the conversation mentioned, but on those occasions, it appears, she was not permitted to overhear the conversations.

 In view of the fact that respondents were insured and the insurance company promptly took up with libellant the matter of his injuries, and entered into a compensation agreement on July 6, 1945 (albeit erroneously) to pay him compensation in accordance with the Pennsylvania Workmen's Compensation laws, we find it too difficult to believe that Mason Crain, without any proved benefit to his firm, tried to intimidate libellant. It is equally difficult to give credence to Mrs. Wright's testimony that she, the cleaning woman, was on hand and permitted by Crain to overhear the stultifying part of his conversation with libellant.

 Further, within eight months after the accident, libellant, voluntarily so far as is appears, left respondents' employment and went to work for another company, and since then, for several other companies. His willingness, without protest, to so quickly disregard the alleged promise of lifetime employment is another circumstance tending to brand it and the threat as fabrications.

 However, libellant has proved that respondents were on notice of his fall and injuries on the day of the event and, through their insurance company, had timely opportunity to investigate the accident, review the details, and ascertain the names of witnesses. Moreover, there has been hardly more than a suggestion on behalf of respondents that they have been prejudiced by the delay. The trial demonstrated that the eyewitnesses and the employment records were available. With respect to the element of prejudice, we think libellant has sustained his burden of proof. Accordingly, the motion for dismissal on the ground of laches will be denied. Cf. Loverich v. Warner Co., 3 Cir., 1941, 118 F.2d 690, 693, citing United States v. Alex Dussel Iron Works Inc., 5 Cir., 1929, 31 F.2d 535, 536.

 Conclusions of Law

 1. The libellant's suit predicated on negligence under the Jones Act, 46 U.S.C.A. § 688, is barred by the three-year limitation period, 45 U.S.C.A. § 56, Taylor v. Crain, 3 Cir., 195 F.2d 163, at page 164, supra.

 2. The libellant's case at No. 181 in Admiralty predicated on unseaworthiness in admiralty is not barred by analogy to the Pennsylvania two-year statute of limitations, 12 P.S.Pa. § 34, because the respondent was not prejudiced by the delay.

 3. Respondents' motion to dismiss on the ground of laches will be denied.

 On the merits of Nos. 181 and 205 in Admiralty, the court makes the following

 Findings of Fact

 1. Libellant at the time of filing his libel on August 15, 1950, was a citizen of Pennsylvania and resided in the City of Pittsburgh. At the time of trial ...

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