amended libel are sufficient to overcome the presumption of prejudice to the respondent.
We have been unable to find a case in which this question was directly presented and ruled upon by the court. However, we have found indications in the language of opinions showing that the court was following the view taken by libellant here. Thus in the case of Redman v. United Fruit Co., 2 Cir., 1950, 185 F.2d 553, the court, having concluded that the libellant had shown no excuse for his delay in bringing suit, stated:
'The question remains whether the United Fruit Company has been shown not to be prejudiced by the delay.' At page 554.
We cannot believe that admiralty law today would direct us to punish the libellant for his inexcusable delay in bringing suit by dismissing the libel when that delay was shown to have occasioned no prejudice to the respondent.
We come, therefore, to the final question presently before us -- whether the amended libel states facts which (if proven) are sufficient to show that the respondent has not been prejudiced by this delay. In this regard, the libel states:
'Libellant avers that members of the crew of the S.S. 'Black Tomoe' were present at the scene of the accident immediately after the occurrence and thus the officers and members of the crew of the vessel had immediate knowledge that a serious injury to a longshoreman had occurred. Libellant avers that respondent had full opportunity to make an immediate investigation and did or should have immediately made such investigation.'
The gist of these averments is that had respondent acted with reasonable prudence at the time of the accident, it would now have in its possession a full accident report, including statements of witnesses made while their memories were still fresh. In fact, the libel avers that respondent did make such an investigation.
We think that libellant should have the opportunity to prove these averments. If libellant can prove that an agent of respondent, whose duties included reporting such accidents to respondent's proper personnel, either saw the accident or was told about it, we think respondent should then have made an investigation. This is not placing an unreasonable burden (based on hindsight) on respondent. Reasonable prudence would have dictated the careful investigation of such an accident, especially in view of the large numbers of law suits currently being brought by longshoremen against shipowners for any injury sustained aboard ship.
We are therefore entering the following order:
The respondent's peremptory exceptions to the amended libel are dismissed on condition that the trial judge is convinced by libellant's evidence that respondent, through its authorized agents, had knowledge of the accident at or about the time of its occurrence. If the trial judge is not so convinced, the respondent's peremptory exceptions are sustained.
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