588. Amendment
Defendant was permitted to file amended answer to plead that at time of injury he was acting as agent of United States although result would be to dismiss complaint; denial would grant plaintiff right to recover against one not his employer and permit jury trial to which he was not entitled against United States. Murphy v Parry Navigation Co. (1949, DC NY) 87 F Supp 127, 1949 AMC 2084.
Defense of limitation of liability may be asserted in answer even though it be served and filed more than six months after owner of vessel receives written notice of claim; but, in instant case, defendant was not permitted to amend his answer to set up such defense two years after filing original answer and on eve of trial. Odegard v E. Quist, Inc. (1961, ED NY) 199 F Supp 449.
589. Impleader
Shipowner against whom seaman brought action under 46 USCS Appx section 688 for personal injuries inflicted upon him by fellow crew member could implead assailant as third-party defendant. Codrington v United States Lines Co. (1958, DC NY) 168 F Supp 261, 1958 AMC 2233.
Oil wells owner and operator’s third-party admiralty demand against doctor must be dismissed, where injured employee sued owner and operator under Jones Act (46 USCS Appx section 688) and requested jury trial, owner and operator then sued doctor for negligent treatment of injured employee under Rule 14(c), and finally employers and employee settled their original action, because absent specific assertion in original plaintiff’s complaint that admiralty jurisdiction is claimed under Rule 9(h), third-party plaintiffs cannot properly invoke Rule 14(c) direct demand for judgment against third-party defendant. Harrison v Glendel Drilling Co. (1988, WD La) 679 F Supp 1413.
590. Counterclaims
Actions in personam to recover damages caused by collisions in navigable waters not being within exclusive jurisdiction of admiralty can be raised as counterclaims to actions under 46 USCS Appx section 688. Carstens v Great Lakes Towing Co. (1945, DC Ohio) 71 F Supp 394.
Third party defendant in 46 USCS Appx section 688 action could not counterclaim against plaintiff for indemnity. Cavelleri v Isthmian Lines, Inc. (1961, SD NY) 190 F Supp 801.
Counterclaim based upon seaman’s employment contract or theory of unjust enrichment in regard to employment may be asserted by defendant in 46 USCS Appx section 688 suit. Bergeria v Marine Carriers, Inc. (1972, ED Pa) 341 F Supp 1153, 16 FR Serv 2d 1268.
Voluntary payments of maintenance and cure made to seaman can be raised as offset or counterclaim in action by seaman under 46 USCS Appx section 688. Royle v Standard Fruit & S.S. Co. (1944) 184 Misc 348, 52 NYS2d 407, affd 269 App Div 762, 54 NYS2d 778.
591. Miscellaneous
Where owner of tug and barge was notified of plaintiff’s injury claim by letter mailed Aug. 8, 1956, and he filed his complaint on Feb. 5, 1957, and served it on Feb. 8, 1957, defendant’s answer, pleading in partial defense limitation of liability, served Feb. 26, 1957, was not too late. Murray v New York C. R. Co. (1961, CA2 NY) 287 F2d 152, 87 ALR2d 681, 1961 AMC 1118, cert den 366 US 945, 6 L Ed 2d 856, 81 S Ct 1674.
Defendant’s answer stated that it “admits that at all the material times mentioned in the complaint a person bearing a name similar to the plaintiff’s intestate was in the employ of the United States on board a certain vessel at an agreed rate of wages under merchant shipping articles and was a member of the crew,” and this was sufficient admission that deceased seaman was member of crew. Ledesma v Dichmann, Wright & Pugh, Inc. (1947, DC NY) 74 F Supp 752, 1947 AMC 1500.