87 F. Supp. 127 | S.D.N.Y. | 1949
Plaintiff, a seaman, seeks to recover under the Jones Act, 46 U.S.C.A. § 688, for injuries sustained on October 12, 1945. Defendant was a general agent under the wartime standard form of agency agreement. Defendant moves for permission to serve an amended answer pleading as a separate and complete defense, that it was at the time acting as such general agent for the United States as owner of the S. S. William Blount, on which plaintiff was em. ployed.
Defendant explains its failure to plead this defense in its original answer by its reliance on Hust v. Moore-McCormack Lines, 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534.
To permit the amendment would result in dismissal of the complaint. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317; to deny permission to amend would, in effect, grant plaintiff the right to recover under the Jones Act against one who is not his employer within the provisions of the Act, as well as give him a jury trial which he does not have against his employer, United States of America.
The proper exercise of discretion dictates that the amendment be permitted. That plaintiff’s rights to proceed against his employer have been barred is a matter for legislative consideration and remedy.
