The opinion of the court was delivered by: EGAN
Plaintiff, a member of the crew of defendants' ship S.S. 'Hoosier State,' claims that on November 26, 1957, while in the port of Pusan, Korea, he was injured in the course of his duties because of defendants' negligence and because of the unsafe and unseaworthy condition of the vessel. As is customary in such cases, he brought two suits against defendants, one in admiralty (No. 175 of 1958) and the other in tort (civil action No. 24467). They are consolidated for trial and pre-trial purposes.
The standing order of October 23, 1958 of this Court requires the filing of pretrial memoranda by counsel in all cases. The order requires plaintiff's memorandum to contain, inter alia, the following:
'A. A brief summary statement of both the facts of the case and counsel's contentions as to the liability of defendant * * *.'
The defendant's obligation is as follows:
'Defendant's counsel in his pretrial memorandum shall note, with the same degree of particularity as required by plaintiff, under correspondingly lettered paragraphs, significant comments indicating areas of agreement or disagreement regarding the material in plaintiff's memorandum. Where there is disagreement with respect to items in paragraphs A, B, D or E, counsel should briefly set forth his client's contentions or position on such matters * * *.'
Plaintiff has filed a pre-trial memorandum, paragraph A of which sets out, in some 28 lines, the plaintiff's account of the accident in issue, and, in 4 lines, the plaintiff's contentions as to the liability of the defendants, viz., defendants' negligence and the ship's unseaworthiness.
Federal Rule of Civil Procedure 16, 28 U.S.C.A., provides that a pre-trial conference should consider:
'(1) The simplification of the issues;
'(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
'(6) Such other matters as may aid in the disposition of the action.'
We agree with the plaintiff's contention that the pre-trial Judge will not be able to conduct the pre-trial conference effectively unless he is aware of the areas of agreement and disagreement between the parties regarding the relevant facts. Accordingly we hold that defendants' pre-trial memorandum has failed to comply with the standing order of October 23, 1958.
The defendants will be required to file a pre-trail memorandum whose paragraph A indicates the areas of factual agreement ...