194 F. Supp. 956 | S.D.N.Y. | 1960
These are motions to open the default, in each of the subject actions.
In the four libels, 14 alien seamen, former members of the crew of the-S/S “Santa Despo”, seek recovery for overtime wages pursuant to the laws of' Panama, liquidated damages under 46-U.S.C.A. §§ 596 and 597 for withheld*
Libellants strongly argue that Admiralty Rule 39, 28 U.S.C.A.,
I will not attempt to determine this contested issue since, in any circumstance, I believe that the respondent has not made sufficient showing to warrant the opening of the defaults. In any case, civil or admiralty, whether the judgment or decree be final or interlocutory, a showing of a meritorious defense is necessary before the default will be opened
Respondent states in each of the moving papers that—
“ * * * it is obvious that the libel herein is typical of the proceedings instituted by discharged seamen for grossly exaggerated claims for unpaid wages, in virtually all of which recoveries, whether by settlement or by trial, are but for small fractions of the amounts originally claimed; * *
Perhaps a study of all the libels filed by alien seamen for unpaid wages would prove that most claims have been exag
“As we have repeatedly told you over the telephone, at the time that this action was referred to us, the company which was the owner of the S.S. Santa Despo had gone out of business, the vessel itself was sold and from what we have been able to learn recently, is presently wallowing in mud fiats in a foreign country and will probably never sail the seas again.”
We are thus left with the conclusion that the only consideration tending towards a finding that the claims are highly inflated is the bald statement of respondent’s counsel that they must be because all of such claims are highly inflated. Such a statement does not establish the existence of a meritorious defense.
The second argued for defense has also not been shown. It is hornbook law that one who would seek to avail himself of the benefits of a release obtained from a seaman has the burden of showing that the seaman has not been overreached.
Since there is no showing of a meritorious defense, the motions to open up the defaults of the wage claims are denied.
The personal injury claim in the Bardis action stands on a different footing, however, from the wage claims. Clearly Admiralty Rule 28 applies and the court has jurisdiction to entertain the motion since the decree is interlocutory. The respondent has shown, at least prima facie, a meritorious defense because Bardis, at the time of the discharge from the vessel, was examined by a doctor in San Francisco and found fit for duty. He was then taken to New York at the expense of respondent and examined by another doctor, who reached the same conclusion. Whatever laches the respondent might be guilty of the libellant is equally guilty of since the ordered inquest has never been taken. Accordingly, the respondent may be relieved from the default to the extent that it may contest damages at any inquest which may subsequently be taken. This relief from the default is contingent on respondent posting an undertaking in the amount of $5,000 to cover a possible decree on the personal injury claim.
The motions are disposed of as indicated above.
An order shall be settled on each motion.
. Reopening default decrees
“The court may, in its discretion, on motion of the respondent or claimant and the payment of costs, rescind the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against him, and grant a rehearing thereof at any time within sixty days after the decree has been entered, the respondent or claimant submitting to such further orders and terms in the premises as the court may direct; and the term of the court shall be deemed extended for this purpose until the expiration of such period of sixty days.”
. Default on failure to answer
“If the respondent or claimant shall omit or refuse to make due answer to the libel upon the return day of the process, or other day assigned by the court, the court may pronounce him to be in contumacy and default and thereupon shall proceed to hear the cause ex parte, and adjudge therein as to law and justice shall appertain. But the court may set aside the default and make the application of the respondent or claimant admit him to make answer to the libel on such terms as the court may direct.”
. 49 C.J.S. Judgments § 290.
. North American Continental Co. v. The El Cuis, D.C.E.D.N.Y.1952, 107 F.Supp. 436.
. Garrett v. Moore-McCormack Co., Inc. 1942, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239. See also 40 U.S.C.A. § 600.