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IN RE BSA

August 22, 1994

In the matter of the Complaint of BOY SCOUTS OF AMERICA, MOUNT DIABLO SILVERADO COUNCIL as owner of the vessel M/V ST. AMBROSE; and EXPLORER/SEA SCOUT POST NO. 248 as owner pro hac vice of the vessel M/V ST. AMBROSE for Exoneration From or Limitation of Liability.

MARILYN HALL PATEL, United States District Judge


The opinion of the court was delivered by: MARILYN HALL PATEL

Petitioners Boy Scouts of America, Mount Diablo Silverado Council ("Mt. Diablo") and Explorer/Sea Scout Post No. 248 ("Post No. 248" or "the Post") brought this action for exoneration from or limitation of liability pursuant to 46 U.S.C. § 183 on the basis of this court's admiralty and maritime jurisdiction. Now before the court are two motions for summary judgment, one by each petitioner, and claimant Patrick Sean Graham's motion to amend his answer and claim.

 Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order.

 BACKGROUND

 The facts relevant to this action can be summarized briefly. *fn1" On June 18, 1992, claimant Patrick Graham, then twenty-nine years old, sustained injuries when he dove off the vessel the M/V St. Ambrose ("the Ambrose") into shallow water. The Ambrose is a wooden vessel manufactured in 1954, which Mt. Diablo obtained from the United States Army in 1989. At all times relevant to this action, the Ambrose was owned by Mt. Diablo, and Post No. 248 was the owner pro hac vice. The Certificate of Documentation for the Ambrose stated that it was documented for "Coastwise Fishery."

 On June 18, 1992 the Ambrose was on a Post-sponsored summer cruise that had begun on June 12th. Aboard the vessel were two adults (Graham and William Brazil) and four youths, ages 13 to 16 (Jeremiah Brazil, Joshua Brazil, Keir Moorehead, and Joshua Cook). Graham was a volunteer adult leader who was not paid for his role on the Ambrose. At the time of the accident Keir Moorehead, age 13, was at the helm of the Ambrose and Jeremiah Brazil was the bos'n. Following William Brazil's instructions, Keir Moorehead slowly steered the vessel close to shore and intentionally beached it adjacent to Brannan Island. This beaching had been discussed at a ship board meeting, at which Graham was present. Deposition of Patrick Graham, at 501-02.

 According to Graham, no one on board told him not to dive in the water, and no one informed him that the vessel was beached. No one on board ordered Graham into the water, and he concedes that there was no urgency for him to get into the water. Rather, he entered the water in order to moor the vessel to keep it from drifting. Before diving, Graham walked to the outside stanchions of the vessel, stepped over the stanchions, and paused several seconds before diving into the water. He did not measure the depth of the water prior to diving, which, unbeknownst to him, was only roughly eighteen inches to three feet deep. As a result of his dive Graham sustained severe personal injuries, and was rendered a quadrapalegic.

 Graham filed a negligence action against petitioners in Contra Costa County Superior Court. On August 13, 1993 petitioners filed this action in federal court, seeking exoneration from or limitation of liability. By order filed August 18, 1993 this court issued a monition that the deadline for filing claims and answers to the complaint was September 14, 1993. On September 14, Graham filed an answer to the complaint, but made no affirmative claims. See Answer to Complaint for Exoneration from or Limitation of Liability. Three days later, and without leave of the court, Graham file what he captioned an "Amended Answer," a document identical to his first answer with an attached affirmative claim. See Amended Answer to Complaint. The affirmative claim alleged negligence against petitioners and sought $ 10 million in contribution and indemnity. Id. The court allowed the amended answer to be filed on September 22, 1993.

 On March 25, 1994 Graham filed an ex parte application for an order shortening time in which to file a motion for leave to file an amended claim. The proposed amended claim adds a jurisdictional basis (the Jones Act, 46 U.S.C. § 688), a charging allegation (that the Ambrose was unseaworthy and improperly manned), and changes the relief sought from contribution and indemnity to maintenance and cure. See Amended Claim for Damages. On April 13, this court ordered petitioners to file an opposition to the motion to amend, which they did on April 20. That motion has been submitted on the papers. On May 6, 1994 both Mt. Diablo and Post No. 248 filed separate motions for summary judgment, with Mt. Diablo joining in the Post's motion as well.

 At the hearing on this matter, it became apparent that further briefing was necessary on two issues: (1) Graham's status as a Jones Act seaman; and (2) Graham's entitlement to bring a claim for unseaworthiness. The parties filed simultaneous briefs on these issues on June 23, 1994, and the matter has been taken under submission.

 LEGAL STANDARD

 A. Leave To Amend

 Federal Rule of Civil Procedure 15(a) provides for the amendment of pleadings by leave of court and notes that such leave "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). However, the grant or denial of a motion to amend is committed to the discretion of the district court, and denial is proper where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see also Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir. 1991). An ...


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