The opinion of the court was delivered by: AVIS
The first question to be determined is with relation to the application of the libellant to amend his libel by setting out that an exemplified copy of the letters of administration granted to him in the State of Pennsylvania has been filed in the office of the Register of the New Jersey Prerogative Court. This amendment is offered because of the fact that counsel for the respondent questioned the jurisdiction of the Court to proceed, and claims that the libel should be dismissed by reason of its insufficiency in averment and a failure of compliance in fact with the alleged requirement that before the action was instituted the exemplified copy should have been filed. This contention is made because of the provisions of the New Jersey statute with relation to the prosecution of actions of a civil nature in the State courts. It is also applicable to actions of the same nature in the United States district court.
In the case of Buecker v. Carr, 60 N.J.Eq. 300, 47 A. 34, Vice Chancellor Grey, speaking for the Court of Chancery, held that "The object of the statute of 1896 [R.S.1937, 3:13-7] is to assure defendants that a party assuming to be an administrator under a foreign appointment was in fact what he claimed to be.
"This object, so far as the defendant is concerned, is fully attained by the filing of the exemplified copy at any stage of a pending suit at which he may assert his rights to the assurance." 60 N.J.Eq. page 308, 47 A. page 37.
It would appear that under the law in New Jersey the exemplified copy may be filed at any time before hearing.
"In this country, however, the procedure in admiralty does not conform to the laws of the various states but is uniform throughout the whole country." 2 C.J.S., Admiralty, § 70, page 146.
In the rules of practice in admiralty and maritime cases for the guidance of all Federal courts, promulgated by the United States Supreme Court December 6, 1920, it is provided in Rule 23 as follows: "In all informations and libels in causes of admiralty and maritime jurisdiction, amendments in matters of form may be made at any time, on motion to the court, as of course. And new counts may be filed, and amendments in matters of substance may be made, on motion, at any time before the final decree, on such terms as the court shall impose. And where any defect of form is set down by the respondent or claimant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms on the libellant." 28 U.S.C.A. following section 723.
This rule authorizes the amendment as to substance in a very broad way, and the cases cited thereunder indicate that the broadest powers are given to the court, in cases where merit is shown and with due onsideration for the rights of the opposite party.
In the case of The Hamilton, 2 Cir., 146 F. 724, the action had been instituted by the widow of decedent designated as "widow and executrix".
It appears that the right to recover under the law applied was in the widow and not in the executrix. The Circuit Court of Appeals held that the district court would have been justified in considering the word "executrix" as surplusage, but also approved of the action of the district court in allowing an amendment striking the words "and executrix", and said "That such an amendment was within the discretion of the court there can be no doubt." 146 F. page 728.
In the instant case the trial was had without specific objection challenging the right of the libellant to proceed. As a matter of fact, Mr. Long, representing the respondent at the hearing, when this question was raised, said: "I have no objection to the question if Mr. Axtel tells your Honor on the record that he intends to prove these letters by an exemplified copy of the letters." (Rec. p. 3.)
The motion to amend was made after the close of the taking of testimony, but the fact that the exemplified copy of letters had not been filed earlier, in no way prejudiced the respondent; it is purely technical, and the amendment does not involve in any way a new cause of action.
The exemplified copy has now been filed in the Register's office and another with the Clerk of this court. The fact that the libellant is qualified to proceed is not controverted.
The motion to amend will be allowed.
This brings us to the consideration of the right of the libellant to recover under the pleadings and evidence. The libel alleges that decedent, on or about February 19, 1933, was in the employ of respondent as a deck hand on the pumping dredge Tampa, operating in the inland waters of the State of Florida at or near Port Everglades. On the date aforesaid decedent was assigned with others to assist in the moving of a certain barge loaded with pipe used for conveying mud and water from the place where dredged to a place of deposit, and a certain derrick barge to the piers at Port Everglades. The power for the movement was a small tug or launch named Mary. This tug was estimated to be about 35 feet in lenght, 8 to 10 foot beam, and was equipped with a Diesel engine as motive power.
The evidence satisfies me that the barge was the first vessel back of the tug, and was connected to the tug by what is called a bridle, i.e., a hawser or rope attached a each of the forward corners of the barge, connected forward of the barge, forming a triangle, to which was attached a single line fastened to a bit on the stern of the tug. The distance between the tug and the barge was variously estimated from 15 to 25 feet. The derrick was fastened to the stern of the barge by ropes from the corner of each, so that the barge and derrick were in actual contact, comprising in effect a single vessel.
In this manner the tug and two proceeded from the vicinity of the dredge to the pier or wharf at Port Everglades, a distance of about two miles. At this port the water had a depth of approximately 35 feet, and had been ...