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June 27, 1962

John A. WOUNICK, Libellant,

The opinion of the court was delivered by: ROSENBERG

This case came for retrial to the court in Admiralty upon its remand by the United States Court of Appeals for the Third Circuit. Wounick v. Pittsburgh Consolidation Coal Company, 283 F.2d 325 (1960).

The case was originally tried on the 20th day of April, 1959, in an action brought by the plaintiff in the District Court under the Jones Act, 46 U.S.C.A. § 688, on three counts: one, for negligence; two, for unseaworthiness; and three, for maintenance and cure. Because the complaint was filed thirteen days after the statute of limitations had run under the Jones Act, at the conclusion of its case, the defendant moved for a directed verdict on grounds, inter alia, that the complaint was filed too late. The motion was granted and the appeal to the Circuit Court followed.

 The Circuit Court ruled that since the statute of limitations under the Jones Act had run when the complaint was filed, the plaintiff had no subsisting rights under that act, but did have a claim in an action in admiralty. The court directed that the District Court give full consideration to all relevant facts pertaining to the issue of laches, and that the libellant be granted an opportunity to amend the libel and plead any facts negativing and excusing his delay. The pleadings were amended and the testimony relevant to laches was heard. It was stipulated by counsel that the testimony at the first trial be made a part of the record for the trial judge for the purpose of a determination of all issues in this case.

 This case arose from an accident on January 13, 1953, when the libellant sustained personal injuries while in the employment of the respondent company, and while working on the steamer Mongah, and its tow. Based upon information received from the libellant, himself, Captain John Smith of the steamer, prepared an accident report which was received in the appropriate office of the respondent on January 15, 1953.

 The report, in evidence, indicated that the accident happened at 6:30 o'clock A.M. on January 13, 1953, while the steamer, Mongah, was hooking up its tow at Lock No. 2 on the Monongahela River. The libellant was employed as a deck hand when he stepped on a pump box lid on the line deck of barge No. 341. The report indicated that the libellant had a bruised right knee and thigh, and further indicated no attending physician or hospital care was required, and that the employee returned to his work.

 Upon receipt of the report from Captain Smith, Captain James K. Hynde, who was in charge of the River Division for the respondent, and whose task it was to process all such reports, contacted Captain Smith and inquired specifically regarding the accident in the report. His investigation revealed that no medical attention was required, and that libellant had not asked to leave the vessel upon which he was working. Further inspection of the equipment showed no defect in the barge's hatches in any way. On the basis of this investigation, this report was filed in the personal file of John A. Wounick, and the matter was pursued no further.

 On April 1, 1954, the libellant retained Attorney S. Eldridge Sampliner of Cleveland, Ohio, to represent him in his claim for injuries against the respondent in this case. On April 13, 1954, Mr. Sampliner informed the respondent of his representation of the libellant, in his claim for damages as the result of personal injuries sustained by libellant early in 1953.

 Upon receipt of this letter, the respondent, through Mr. John Corcoran, Assistant Vice President, contacted its River Division and was informed of the report of January 13, 1953. A series of correspondence was transmitted between Mr. Sampliner and Mr. Corcoran between April and October of 1954. Counsel for the libellant, in addition to procuring medical reports, had urged his client to ascertain more facts about the circumstances of the accident, including the date of its incurrence.

 The amended libel and evidence produced at the second trial pleads justification for the filing of the original complaint by reason of the fact that libellant's counsel, S. Eldridge Sampliner, had been lulled into a sense of security by respondent's assurance that there would be an amicable settlement if suit were withheld, and the further assurance that if suit were entered, the respondent would delay and contest the libellant's claim.

 In spite of the fact that the court is not impressed by this testimony that a lawyer of Mr. Sampliner's ability and experience would be lulled into a false sense of assurance and inactivity, or be intimidated because of any ephemeral inducement or statements such as were offered as testimony in this case, there appears to be nothing in this case which would deprive the libellant of his remedy in Admiralty.

 By virtue of the opinion of the Circuit Court, the function of this court is clear and pointed. The Court ruled as follows: At Page 328 of 283 F.2d:

 'The case must, therefore, be returned to the district court for a full consideration of all the relevant facts pertaining to laches, e.g., that the defendant had knowledge of the accident from the day of its occurrence; that it had a list of possible witnesses from the same date; and that the complaint (libel) was filed only thirteen days following the running of the analogous three-year statute of limitations. On remand the plaintiff should also be granted an opportunity to amend his libel and plead any additional facts negativing prejudice and excusing his delay.'

 This court, after a review of all the evidence and the relevant exhibits, and after drawing reasonable inferences therefrom, and after a careful review of the proposed findings of fact and conclusions of law submitted by the respective parties, concludes that this action should not be dismissed because of laches. This court now finds and concludes that respondent did have knowledge of this accident from the day of its occurrence. The agent of the respondent, Captain Smith who stood in a paternal position to the injured seaman, ( Potter Title & Trust Company v. Ohio Barge Line, 3 Cir., 184 F.2d 432; Monteiro v. Paco Tankers, D.C., 93 F.Supp. 93), immediately related his report to Captain Hynde that the libellant was injured on January 13, 1953, after falling into a hatch.

 The respondent contends that it was confused because the accident which the libellant pleaded in his complaint was different from the accident which occurred on January 13, 1953, and that the respondent was, therefore, in no position to properly investigate the same. This position is contradicted by the evidence because Captain Hynde had contacted Captain Smith upon receiving the report of libellant's accident, and after further ...

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