Petition for Writ of Certiorari — Kilkenny v. Atlantic Richfield Co.

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In The ' JAN 26 1997

Supreme Court of the Hnitdy States"

October Term, 1986

GLORIA LEE WEISS MARMION KILKENNY, Personal

Representative of the Estate of MATTHEW KANE MARMION,

DECEASED,

Petitioner,

vs.

ATLANTIC RICHFIELD COMPANY, ARCO MARINE, INC.,

and ARCH TANKERS, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

MARVIN I. BARISH

MARK S. PEARLSTEIN

| MARVIN I. BARISH LAW OFFICES

Attorneys for Petitioner

615 Chestnut Street

Suite 1201

Philadelphia, Pennsylvania 19106

(215) 923-8900

5144

tz - *NJ (201) 257-6850°NY (212) 840-4640¢PA (215) 563-5587

@rs.ime. MA (617) 542-1114°DC (202) 783-7283*USA (800) 5 APPEAL Q 7

QUESTIONS PRESENTED FOR REVIEW

1. Where in an action brought under the Jones Act the record

contained facts that supported the conclusion that Atlantic

Richfield Company, acting through its agents and employees was

guilty of negligence, did not the district court err when it granted

summary judgment on the basis that the vessel was neither owned

nor operated by Atlantic Richfield Company?

2. Whether the court below misconstrued Schiavone v.

Fortune, ___. U.S. ___, 106 S. Ct. 2379 (1986), and thereby

erred in dismissing petitioner’s amended complaint against

respondents Arco Marine, Inc. and Arch Tankers, Inc. where,

pursuant to Federal Rule of Civil Procedure 15(c), the claims

asserted against these respondents in the amended complaint

should have related back to the date of the original complaint

and were therefore not time barred?

LIST OF PARTIES

The parties to this action in the United States Court of

Appeals for the Ninth Circuit were as follows: Gloria Lee Weiss

Marmion Kilkenny, as Personal Representative of the Estate of

Matthew Kane Marmion, Deceased, Plaintiff-Appellant; and Arco

Marine, Inc., Arco Tankers Inc., and S.S. ARCO Alaska,

Defendants-Appellees.

iii

TABLE OF CONTENTS

Page

Questions Presented for Review.................0e008: i

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aa see Chee 6 54h 66.06 aveaseee ss ill

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EE RG iy OE ee er 2

lesa eens sinie dives cesses 2

ches cncebeesuasensecsesbve 3

EEE 3

B. Statement of Material Facts.................... 3

Ee 9

I. Thecourt erred in granting summary judgment when

in fact the record contained clear evidence that Arco,

acting through its employees and agents were negligent

and that this negligence was the proximate cause of

a eta i ag a il a a a 9

II. The court below erroneously applied Fed. R. Civ. P.

15(c) when it recognized that petitioner was mistaken

in failing to join certain parties and where the

Contents

Page

respondents (Arco Marine and _= Arch

Tankers)admitted that they had notice of the suit

within the limitations period and were not prejudiced

et Ts ok sas edie bees a Le ie 12

eR ep ara pee Oe a ere ye nes rg nN bape Neary 23

TABLE OF CITATIONS

Cases Cited:

Anderson v. Atchison Topeka & Santa Fe R. Co., 333

SR EE Gs vale en6 bab esd cede a kawere een 9

Bailey v. Central Vermont Railway Co., 319 U.S. 350 (1943)

SF ELEN Gd SESS REL e Nd TE eats BAGS bees raw 9

Blair v. Baltimore & Ohio R. Co., 323 U.S. 600 (1945)

Po sack ele ee ea ace ek a es eee si Gale a 9

Carter v. Atlanta & Saint Andrew Bay R. Co., 338 U.S. 430

NE oa lee ar iia Lees Biel cal 9

Continental Casualty Co. v. City of Richmond, 763 F. 2d

I alae a 9

Dutka v. Southern Railway Co., 92 F.R.D. 375 (N.D. Ga.

RT En aha tipian maby age gg eure SOUR Eye pee yh pr 15

Ellis v. Union Pacific R. Co., 329 U.S. 649 (1947) ...... 4y

Gabriel v. Kent General Hospital, Inc., 95 F.R.D. 391 (D.

ES oe Gi Gag ee en Chae CnueeuaeKres 21

Contents

Page

Somes ¥. Ham, 313 U.S. 256 TIPE)... wc ecw ce ceccs 9

Jesionowski v. Boston & Maine R. Co., 329 U.S. 452 (1947)

uel Wedelewh kick Wek MawE eae Cee eel noe Kenton 9

Keeton v. Thompson, 326 U.S. 689 (1945) ............. 9

Lavender v. Kurn, 327 U.S. 645 (1946) ............... 9

Lille v. Thompson, 332 U.S. 459 (1947) ............... 9

Merideth v. United Airlines, 41 F.R.D. 34 (S.D. Cal. 1966)

EO CLE CI Ee LENE 1 ney ip obie lae aN ie ee 21

Myers v. Reading Co., 331 U.S. 477 (1947) ............ 4

Rogers v. Missouri Pacific R. Co., 352 U.S. 500 (1957)

palletes Sacks £4 a a re ek eee ee 9, 11

Schiavone v. Fortune, __. U.S. __., 106 S.C. 2379 (1986)

£ vib id Ae Gla gS cide Bias GN ERAS MEE REO L136, 6 Bz

Schulz v. Pennsyivania R. Co., 350 U.S. 523 (1956)

wish i iyi Scares he eR de Ts % eget oo a ae 9

Schwartzwelder v. Hamilton, 56 F.R.D. 606 (M.D. Pa. 1972)

Ose p bed Re Dee Rae hae Eek Ee a eee 20

Seago v. New York Central R. Co., 315 U.S. 781 (1942)

bin 40% doe Ae Red EEUS ROASTER aS ee 9

Contents

Page

Stone v. New York, Chicago & St. Louis R. Co., 344 U.S.

gd SE er Pee ere es Sr mney Ppa 9

Swartz v. Gold Dust Casino, Inc., 91 F.R.D. 543 (D. Nev.

cre ls Che ees oo RRR eda eaee 17

a ara Aiea me iat ek eae rae Ce ce ek ae aa 17

Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29 (1944)

BeOS ie das Ra Red oa ee Oe CEE eee eee 9

Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54 (1943)

EE a ee Rear L EEN, PMI Prat aes Me Preecty ar Y ae 9

Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574 (1945)

PF SE EO NE Oe Fe eT OE Ee eC Re Oe Ee ne a

Unicure, Inc. v. Thurman, 97 F.R.D. 1 (W.D.N.Y 1982)

os ibd 06d dena Sle Ck os CRT AEE ee 15

Villar v. Crowley Maritime Corp., 782 F. 2d 1478 (9th Cir.

Ps nk ins ik ees sac eee kee eee 8, 11, 12

Webb v. Illinois Central Railroad Co., 352 U.S. 512 (1957)

PEE SG ee OE Oe Na FOE FREON EE OO ee PEE eee re 9, 11

Wilkerson v. McCarthy, 336 U.S. 53 (1949) ............ 9

Statutes Cited:

Be Wa. GER i ons one ok ase eege acne dpe eens: A ae

vil

Contents

Page

Oe SE ic os nce Hk ee Oe eb aw EWA ew ee ees 3

er re ee 3, 3

Rules Cited:

Federal Rules of Civil Procedure:

AE n PVA SUS woh SHEER AA 64 04 00 0444.08 00 ob O86 14

Rule 15, Advisory Committee Note ............... 18

a a

aa een i, 3, 7, 8, 12, 13, 14, 15, 16, 17, 18, 20, 22, 23

ae as aes 2

APPENDIX

Appendix A — Order of the United States Court of Appeals

for the Ninth Circuit Denying Rehearing Filed October

ES wie Eada oR ah wee ahawks

Appendix B — Opinion of the United States Court of Appeals

for the Ninth Circuit Filed September 19, 1986

CoD BOOS 2B. OS 6. GS-2 BA DFOBHACHBDOEBEADeOCCRA OCA DO RAB GOH eS

Appendix C — Findings of Fact and Conclusions of Law and

Order of Dismissal Filed November 6, 1985 ........

Appendix D — Judgment Filed July 30, 1985 ..........

Vill

Contents

Page

Appendix E — United State Coast Guard Investigative Report

Appendix F — Excerpt of Transcript of Proceedings Before

Honorable James M. Ideman..................... 34a

No.

In The

Supreme Court of the United States

October Term, 1986

GLORIA LEE WEISS MARMION KILKENNY, Personal

Representative of the Estate of MATTHEW KANE MARMION,

DECEASED,

Petitioner,

vs.

ATLANTIC RICHFIELD COMPANY, ARCO MARINE, INC.,

and ARCH TANKERS, INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Petitioner Gloria Lee Weiss Marmion Kilkenny respectfully

prays that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Ninth

Circuit, entered in this proceeding on September 19, 1986.

OPINIONS BELOW

The majority opinion of the panel of the United States Court

of Appeals for the Ninth Circuit affirming both the summary

judgment granted to Atlantic Richfield Company and the dismissal

of petitioner’s amended complaint against Arco Marine, Inc. and

Arch Tankers, Inc. was filed on September 19, 1986 and is marked

for publication, although petitioner is unaware of a citation for

this opinion. The opinion appears in the Appendix, infra at 2a.

The unpublished opinion of the Ninth Circuit denying petitioner’s

' 2tition for a rehearing was filed on October 27, 1986 and appears

in the Appendix at la. The unpublished opinions of the United

States District Court for the Central District of California appear

in the Appendix at 18a-23a.

JURISDICTION

The judgment of the United States Court of Appeals for the

Ninth Circuit, entered on September 19, 1986, appears in the

Appendix at 2a. On October 27, 1986, the Ninth Circuit denied

petitioner’s timely petition for rehearing (1a), and this petition

for certiorari was filed within ninety days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

RULES INVOLVED

Federal Rule of Civil Procedure 56(c)

The judgment sought shall be rendered forthwith

if the pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter

of law.

Federal Rule of Civil Procedure 15(c)

Relation Back of Amendments. Whenever the

claim or defense asserted in the amended pleading

arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth

in the original pleading, the amendment relates

back to the date of the original pleading. An

amendment changing the party against whom a

claim is asserted relates back if the foregoing

provision is atisfied and, within the period

provided by law for commencing the action against

him, the party to be brought in by amendment

(1) has received such notice of the institution of

the action that he will not be prejudiced in

maintaining his defense on the merits, and (2) knew

or should have known that, but for a mistake

concerning the identity of the proper party, the

action would have been brought against him.

STATEMENT OF THE CASE

A. Jurisdiction

Petitioner’s complaint and amended complaint were brought

in the district court pursuant to the Maritime Law of the United

States as modified by the Jones Act 46 U.S.C. §§ 688, er seq.

Jurisdiction therefore arose under 28 U.S.C. § 1331 which

provides that the district courts shall have original jurisdiction

of all civil actions arising under the laws of the United States.

B. Statement of Material Facts

“On December 26, 1981, Matthew Marmion, a professional

diver, was killed as a result of being sucked into the suction pump

of the S.T. ARCO ALASKA. It was concluded as a result of

a United States Coast Guard inquiry that the suction pump was

negligently turned on while Marmion was within the pump room.

The Coast Guard found that the individuals responsible for the

pump being turned on and therefore responsible for the death

of Marmion were two employees of the Atlantic Richfield

Company (sometimes referred to as ‘‘Arco’’). These employees,

Chief Engineer W. Scott Hale and his assistant, Luther Weaver,

were deemed guilty of negligence. As to Hale, his negligence

supported the suspension of his license by the United States Coast

Guard (31a).

Not only was the negligence of these two employees clear,

but there was no credible issue as to the fact that Atlantic Richfield

Company was their employer. At the Administrative Hearing,

Mr. Hale stated:

Q. How long have you worked with

Arco? A. Practically 12 years.

Q. Since what date? A. Since January of

1971.

Also in the record are letters confirming Mr. Hale’s employment

by Atlantic Richfield.

Relief Engineer Luther Weaver testified at the Administration

Hearing as follows:

Q. For the record, will you please state your

full name, and your occupation? A. Luther

Allen Weaver, and I’m Relief Engineer for Atlantic

Richfield, Long Beach, California.

Q. Po you hold a Coast Guard

license? A. Yes, I do. Chief Engineer’s license.

Q. Chief Engineer’s for Steam — A.

Steam vessels.

Q. On the 26th of December, 1981, were you

employed on the ARCO ALASKA? A. Yes.

In October of 1982, the personal representative of Marmion’s

estate brought suit against Atlantic Richfield Company in the

United States District Court for the Eastern District of

Pennsylvania. The suit sought damages under the Jones Act, 46

U.S.C. § 688 and the General Maritime Law. The complaint in

paragraph 4 alleged that:

At all times material hereto, defendant Atlantic

Richfield Company (hereinafter ARCO) owned,

operated, managed, possessed and controlled the

vessel ST ARCO ALASKA in coastwise,

intercoastal and foreign commerce.

And in paragraph 7:

Death of plaintiff’s decedent was caused by

negligence of defendant, Atlantic Richfield

Company by their agents, servants, workmen and

employees and the unseaworthiness of the vessel,

and by defendant’s breach of their obligations

under the circumstances, including their obligation

to provide prompt and adequate treatment, care

maintenance and cure.

Respondent Arco answered the complaint by denying

ownership operation and control and alleging that the vessel was

owned by Arco Tankers and op.rated by Arco Marine.

Additionally, the allegation incorporated in paragraph 7 was

denied.

The matter was transferred to the United States District Court

for the Central District of California. In January 1985 Atlantic

Richfield moved for summary judgment. They asserted as a basis

therefore that the S.T. ARCO ALASKA was neither owned nor

possessed by Arco, but that on the contrary ownership and

possession lay in two other companies — Arco Marine and Arch

Tankers. Despite the clear allegation of Atlantic Richfield’s

responsibility for the negligence of its employees contained in

paragraph 7, the motion for summary judgment did not address

this issue.

At the time of argument counsel for Marmion emphasized

the fact that while Arco Marine and Arch Tankers were the owners

and operators of the vessel, their presence in the lawsuit was not

necessary as there was an overwhelming amount of evidence

presented to the court by way of the Coast Guard record that

Atlantic Richfield Company was responsible for the acts of its

employees. In this regard Marmion’s counsel squarely placed this

issue before the district court (34a):

At the hearing before the administrative law judge

there was testimony that the persons who were

responsible for the negligent act, Mr. Weaver, Mr.

Hale, were employees of Atlantic Richfield, not

even Arco Marine.

So that we don’t need Arco Marine in order to

proceed in this matter. It would be nice if they

were here, but Atlantic Richfield is a proper

defendant in this hearing.

Despite the overwhelming evidence of Atlantic Richfield

Company’s culpability as a result of the negligence of their

employees, despite the clear assertion in the complaint as to this

theory of negligence as well as the argument made by counsel

during the hearing on the motion for summary judgment the

district court granted the motion. It did so on the basis that

Atlantic Richfield Company neither owned, operated nor possessed

the vessel and ignored totally the issue of Atlantic Richfield’s

liability under theories of respondeat superior.

Subsequent to the filing of the original complaint against

Atlantic Richfield Company in Philadelphia and its eventual

transfer to the Central District of California, the petitioner

instituted an action in the United States District Court for the

Northern District of California against Arco Marine and Arch

Tankers. This action was transferred to the United States District

Court for the Central District of California and was eventually

dismissed. Neither party moved to consolidate.

Prior to oral argument on Arco’s motion for summary

judgment, petitioner sought leave to amend its complaint in order

to add Arco Marine and Arch Tankers on the record. This was

done because of the court’s indication of its intent to dismiss the

action against the Atlantic Richfield Company. Petitioner sought

to amend the complaint pursuant to Rule 15(c). Arco Marine and

Arch Tankers filed motions to dismiss the amended complaint.

In their motion to dismiss Arco Marine and Arch Tankers admitted

that they were not prejudiced by the proposed amendment to the

complaint nor were they without notice that they were potential

parties to this litigation. Their sole contention was that Marmion

was not operating under the type of mistake necessary to bring

into play the provisions of Rule 15(c).

The district court concluded that the mistake in not bringing

Arco Marine and Arch Tankers upon the record originally was

not that type of mistake that would justify the application of Rule

15(c). Despite the fact that respondents agreed that they were not

prejudiced and agreed that they were fully informed of the ‘

litigation and knew that they were parties to be sued, the court

ruled that the mistake must continue until the time of the proposed

amendment.

On appeal, the United States Court of Appeals for the Ninth

Circuit ruled that the mistake necessary to trigger the application

of Rule 15(c) must be a continuing one. Judge Canby dissented

stating that the cause presented was appropriate for the application

of Rule 15(c) and that there need not be a continuing mistake

— merely one at the institution of the proceedings. Especially

so in this case there was no claim of prejudice on the part of

the defendants.

Interestingly, the Court of Appeals affirmed the dismissal

of the complaint against Atlantic Richfield Company on the basis

that that company neither owned, possessed nor controlled the

vessel. Apparently misled by the limited scope of the order for

summary judgment, the appellate court deigned not to deal with

the issue of Atlantic Richfield’s responsibility under the concept

of respondeat superior. Citing their opinion, Villar v. Crowley

Maritime Corp., 782 F. 2d 1478 (9th Cir. 1986), the court

concluded that they would not decide this issue as they opined

that the matter was not raised in the court below. Ignoring the

specific provision of the complaint dealing with respondeat

superior; ignoring the voluminous Coast Guard exhibits which

definitively established the liability of Atlantic Richfield Company

under this theory of law; and ignoring completely the argument

of Marmion’s counsel who specifically and unequivocally directed

the court’s attention to Atlantic Richfield’s responsibility for the

negligence of Mr. Weaver and Mr. Hale, the Court of Appeals

refused to decide this issue.

ii.

REASONS FOR GRANTING THE WRIT

THE COURT ERRED IN GRANTING SUMMARY

JUDGMENT WHEN IN FACT THE RECORD CONTAINED

CLEAR EVIDENCE THAT ARCO, ACTING THROUGH ITS

EMPLOYEES AND AGENTS WERE NEGLIGENT AND

THAT THIS NEGLIGENCE WAS THE PROXIMATE CAUSE

OF DECEDENT’S DEATH.

There is no dispute that in dealing with a motion for summary

judgment a court must view the entire record in the light most

favorable to the non-moving party and summary judgment may

be granted only where there is no genuine issue of fact. See

Continental Casualty Co. v. City of Richmond, 763 F. 2d 1076

(9th Cir. 1985).

Especially is this true in cases under the Jones Act where

the decisions of this court teach that the Congress vested the power

of decision in the hands of the jury. See Rogers v. Missouri Pacific

R. Co., 352 U.S. 500, 510 (1957) and Webb v. Illinois Central

Railroad Co., 352 U.S. 512 (1957).'

1. See also, Schulz v. Pennsylvania R. Co. 350 U.S. 523 (1956); Sione

v. New York, Chicago & St. Louis R. Co. 344 U.S. 407 (1953); Carter v. Atlanta

& Saint Andrew Bay R. Co., 338 U.S. 430 (1949); Wilkerson v. McCarthy,

336 U.S. 53 (1949); Anderson v. Atchison Topeka & Santa Fe R. Co., 333 U.S.

821 (1948); Lillie v. Thompson, 332 U.S. 459 (1947); Mvers v. Reading Co.,

331 U.S. 477 (1947); Ellis v. Union Pacific R. Co. 329 U.S. 649 (1947);

Jesionowski v. Boston & Maine R. Co., 329 U.S. 452 (1947); Lavender v. Kurn,

327 U.S. 645 (1946); Keeton v. Thompson, 326 U.S. 689 (1945); Blair v. Baltimore

& Ohio R. Co., 323 U.S. 600 (1945); Tiller v. Atlantic Coast Line R. Co., 323

U.S. 574 (1945); Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29 (1944);

Bailey v. Central Vermont Railway Co., 319 U.S. 350 (1943); Tiller v. Atlantic

Coast Line R. Co., 318 U.S. 54 (1943); Seago v. New York Central R. Co.,

315 U.S. 781 (1942); Jenkins v. Kurn, 313 U.S. 256 (1941).

In the case at bar the Coast Guard hearings that were made

part of the lower court record made it clear that Atlantic Richfield

Company acting through its employees, Weaver and Hale, were

negligent and that their negligence was the direct cause of the

death of decedent. Further, the testimony of Weaver and Hale

left no question but that they were in the employ of Atlantic

Richfield Company at all times relevant to this situation.

Accordingly, there is no question but that the facts before the

trial court called for a finding of negligence on behalf of Atlantic

Richfield Company. Certainly, a factual issue was presented that

precluded the er..y of summary judgment.

The district court nonetheless erred in concluding that because

Atlantic Richfield Company did not own, possess or control the

vessel they cannot be responsible. The court completely ignored

the fact that the evidence overwhelmingly established the negligence

of Atlantic Richfield Company under theories of respondeat

superior.

The record before the court contained the complaint,

paragraph 7 of which squarely raised the issue of the responsibility

of Atlantic Richfield Company because of the negligence of its

employees. The record further contained the transcript of the Coast

Guard that squarely placed the cause of death upon the negligence

of these employees. Additionally, the record contained the

testimony of the employees themselves who stated unequivocally

that they were employed by Atlantic Richfield Company at all

times relevant to this litigation. Further, this material was sharply

brought to the attention of the district court when at a hearing

in Los Angeles on February 11, 1985 counsel stated (35a):

‘*At the hearing before the administrative law judge

there was testimony that the persons who were

responsible for the negligent act, Mr. Weaver, Mr.

Hale, were employees of Atlantic Richfield, not

even Arco Marine.

So that we don’t need Arco Marine in order: to

proceed in this matter. It would be nice if they

were here, but Atlantic Richfield is a proper

defendant in this hearing.’’

Nonetheless the Court of Appeals relying upon Villar v.

Crowley Maritime Corp., 782 F. 2d 1478 (9th Cir. 1986),

erroneously refused to deal with the issue of vicarious liability.

Villar deals with appellate abs tion in the face of theories

presented for the first time on appeal where the district court had

no Opportunity to rule. This is not such a case. From the

complaint, through the exhibits, through the argument at the

hearing on the motion to dismiss, the district court was always

specifically alerted to Arco’s responsibility under the theories of

respondeat superior. The fact that the district court ineptly drafted

its ruling on the motion for summary judgment so as not to

mention this concept should not afford an appellate court the

opportunity to avoid this issue.

In a matter resulting in death due to the already concluded

negligence of Atlantic Richfield Company is it so much for

petitioner to request that the appellate court agree to at least

determine whether the district court committed error in the

handling of this matter. Of course there is no question but that

the evidence contained in the exhibits attached to the motion before

the lower court should certainly have been permitted to be

presented to a jury. See Rogers v. Missouri Pacific R. Co., 352

U.S. 500 (1957); Webb v. Illinois Central Railroad Co., 352 U.S.

512 (1957). Here we have the double problem of a district judge

erroneously refusing to permit this case to proceed to a jury and

an appellate court erroneously refusing to make the determination

as to whether the district court committed error.

It is abundantly clear when viewed against the extensive

backdrop of Supreme Court cases that a jury question is presented

by these facts which requires a reversal of the lower court. At

the very least, the Court of Appeals, should not be permitted

to avoid its responsibility by a less than humanitarian application

of their opinion in Villar. See Singleton v. Wulff, 428 U.S. 106,

121 (1962).

il.

THE COURT BELOW ERRONEOUSLY APPLIED FED.

R. CIV. P. 15(c) WHEN IT RECOGNIZED THAT

PETITIONER WAS MISTAKEN IN FAILING TO JOIN

CERTAIN PARTIES AND WHERE THE RESPONDENTS

(ARCO MARINE AND ARCH TANKERS) ADMITTED THAT

THEY HAD NOTICE OF THE SUIT WITHIN THE

LIMITATIONS PERIOD AND WERE NOT PREJUDICED BY

THIS MISTAKE.

Petitioner, based upon the initial investigation into the facts

and circumstances of the decedent’s death coupled with the

evidence that employees of Atlantic Richfield Company were

responsible for the death, brought suit against Atlantic Richfield

Company alone. At the time suit was instituted petitioner was

of the belief that Atlantic Richfield Company was the appropriate

defendant in this suit. At the time of the institution of suit

petitioner was obviously mistaken.

Subsequent to the filing of the complaint an answer on behalf

of Atlantic Richfield Company alleged that the appropriate parties

to the cause were Arch Tankers and Arco Marine. Although still

acting under the mistaken belief that Atlantic Richfield Company

was the only appropriate party, but relying upon the answer of

the respondent, a lawsuit was instituted in the Northern District

of California which was transferred to the Central District but

not consolidated.

During the pendency of this lawsuit the attorney handling

the case left the employ of petitioner’s firm. She directed the postal

authorities to forward all mail addressed to her to her home. As

a result the firm did not receive notice of a pre-trial conference.

No one attended on behalf of petitioner and the matter was

subsequently dismissed for lack of prosecution. A significant

period of time passed before counsel for petitioner received word

of the dismissal. Accordingly, a motion to open the judgment

was filed. This motion was denied on March 25, 1985. While the

motion for opening the judgment was pending, respondent sought

the dismissal of the case against Atlantic Richfield Company on

the basis that Atlantic Richfield Company did not own, possess

or control the vessel. At the hearing on that motion, leave was

granted to petitioner’s counsel to file an amended complaint under

Rule 15(c) in order to name as additional defendants Arch Tankers

and Arco Marine. An amended complaint was in fact filed and

was immediately attacked by the additional defendants on the

basis that the actions were barred against them by the statute of

limitations and implicitly that Rule 15(c) was not applicable in

these circurnstances.

The defendants admitted that they were not prejudiced by

the filing of the amended complaint. Similarly, they admitted that

the action against them arose out of the same conduct that

supported the initial claim against Atlantic Richfield Company.

Their major contention, however, was that they were justified

in believing that their failure to be sued Originally was not a

mistake, but rather a deliberate ploy or decision on the part of

plaintiff's counsel not to sue them. In support of this contention

they proffered the fact that they were in fact sued in an earlier

case and that that case was dismissed and not reinstated. This

contention offered by the vessel owners and adopted by the court

makes no sense. How could the defendants argue that they

seriously believed that they were in jeopardy of being sued when

they actively sought to defeat the motion for reconsideration.

Further, what conceivable ploy could plaintiff have been engaged

in. ~

The district court, based upon the argument of the defendant,

ruled that Rule 15(c) was not applicable to this case and that the

attempted amended complaint did not relate back. Accordingly,

he dismissed the amended complaint under Rule 12 as being

untimely filed.

This appeal therefore raises the narrow, but substantial issue,

of the appropriate interpretation under a Federal Rule of Civil

Procedure. As such, this appeal raises an issue which falls within

the primary concern of this Court because of its special relationship

to the appropriate handling and interpretation of the Federal Rules

of Civil Procedure.

There is no question but that the suing of Atlantic Richfield

Company alone arose as a result of a mistake on the part of

petitioner. The district court, the appellate court and respondent

admitted that fact. The appellate court, however, concluded that

at some point after the filing of the complaint, the defendants

were justified in believing that the failure to bring them upon

the record was no longer a result of a mistake but a result of

a conscious decision on the part of petitioner. Without justification

for that conclusion, but by reaching for inferences which do not

support that conclusion, the appellate court concluded that the

defendants were justified in assuming their joinder was not due

to a mistake.

That this subjective standard is impossible to apply was of

no concern to the majority. That it assumed a state of facts which

did not exist similarly did not deter the court. Apparently rewriting

the Rule so as to make it apply only in such cases where the

defendant had the right to assume that the mistake made originally

continued up until the time of the proposed amendment, the court

affirmed the lower court’s refusal to permit the amendment.

The fact that the defendants admitted no prejudice to them

did not deter the appellate court in reaching this conclusion. Nor

did the respondents at any time prove with any degree of certainty

what their mental state was.

The opinion of the appellate court in this case as so aptly

pointed out by the dissent is in violation of the letter of Rule

15(c), it flies in the face of legislative history of Rule 15(c) and

further militates against the liberal purpose for which Rule 15(c)

was promulgated.

The appeals court grounded its decision on the basis of this

Court’s recent decision in Schiavone v. Fortune, a/k/a Time, Inc.,

—_— U.S. —__, 106 S. Ct. 2379 (1986). The appeals court

misconstrued Schiavone and therefore permitted the district court’s

improper application of Rule 15(c) to stand.

“‘The purpose of Rule 15(c) is to prevent a statute of

limitations from barring an action where the wrong party has

been sued and where the correct party had sufficient notice of

. the commencement of the action.’’ Dutka v. Southern Railway

Co., 92 F.R.D. 375, 377 (N.D. Ga. 1981). ‘‘Generally, relation

back under Rule 15(c) is liberally allowed if the requirements for

the application of the concept are met.’’ /d.

In Unicure, Inc. v. Thurman, 97 F.R.D. 1, 4 (W.D.N.Y.

1982), the court expressed the principle as follows:

The general purpose of Rule 15(c) is to permit an

amended pleading which would otherwise be

barred by the statue of limitations, provided that

the original pleading gave fair notice of the general

factual situation out of which the claim sought to

be put forth in the amended pleading arises. See

3 Moore’s Federal Practice, 415.15 [3], at 15-194.

If adequate notice is provided by the original

pleading, the purpose of the statute of limitations

to require notice of a claim within a certain period

of time has been satisfied.

In Schiavone, this Court declared that in order for an

amendment naming additional parties to relate back to the filing

of an original pleading pursuant to Rule 15(c), the following

criteria must be met:

(1) The basic claim must have arisen out of the

conduct set forth in the original pleading;

(2) The party to be brought in must have received

such notice that it will not be

(3) The party must or should have known that, but

for a mistake concerning identity, the action would have

been brought against it; and

(4) The second and third requirements must have been

fulfilled within the prescribed limitations period.

106 S.Ct. at 2384. Importantly, respondents concede and the Court

of Appeals so found that petitioner has met the first two

requirements (6a). The first two parts of the test would seem

logically to be the most important hurdles that a plaintiff would

have to meet in order to have his amended complaint relate back.

This is so because if the basic claim did not arise out of the conduct

set forth in the original pleading, then plaintiff would merely be

seeking to abrogate the relevant statute of limitations which would

be unfair to the defendants. Moreover, if a defendant would be

prejudiced in maintaining its defense, then it would also seem

unfair to allow plaintiff to have his amended complaint relate

back. Neither of these problems concern us in the instant case.

With regard to the issue of a mistake in identity, a mistake

must, of necessity, have occurred or Rule 15(c) would never apply

at all. In Swartz v. Gold Dust Casino, Inc., 91 F.R.D. 543, 547

(D. Nev. 1981), the court stated:

As to Rule 15(c)’s requirement that the new

defendant shouid have known that but for a

mistake concerning ideritity, the action would have

been brought against him, such a mistake “‘. . .

exists whenever a party who may be liable for the

actionable conduct alleged in the complaint was

omitted as a party defendant.’’

Similarly in Taliferro v. Costello, 467 F. Supp. 33, 36 (E.D.

Pa. 1979), the court stated:

Rule 15(c)’s third requirement — in particular, the

phrase ‘‘a mistake concerning the identity of the

proper party’’ — is so worded as to suggest that

the draftsmen were chiefly concerned with

confusion as to the defendant’s right name. But

**fijn view of the history of the application of Rule

15(c), the phrase ‘a mistake concerning the identity

of the party’ should clearly not be read to limit

its usefulness to cases of misnomer.’’ 3 Moore’s

Federal Practice [4-.2] at 15-231 n. 14. Where an

amendment seeks to add a new defendant, this

aspect of Rule 15(c) seerns designed to insure that

prior to the expiration of the limitation period,

the new defendant knew (or should have known)

that his joinder was a distinct possibility. [Citation

omitted.]

In the instant matter, the Court of Appeals agreed with

petitioner that the ‘‘would have been brought against him’’

language of Rule 15(c) suggests that the inquiry regarding the

existence of a mistake of identity should be limited to petitioner’s

state of mind as of the time the initial complaint was filed (7a).

See also, Federal Rule of Civil *rocedure 15 Advisory Committee

Note (amendment relates back if party ‘‘knew or should have

known that the action would have been brought against him

initially had there not been a mistake concerning the identity of

the proper party.’’ (Emphasis added.) Jd. However, the majority

read Schiavone to mandate that in order for an amendment to

relate back under Rule 15(c) the new defendants must know of

the mistake not ‘‘within the prescribed period’’ as Rule 15(c) and

Schiavone clearly state, but rather, that the new defendants must

know of the mistake ail during the prescribed limitation period.

It is respectfully asserted that this is not the proper application

of Rule 15(c).

The majority framed the issue correctly:

The critical inquiry therefore is whether Arco

Marine and Arch Tankers knew or should have

known, within the statute of limitations period,

that, but for a mistake, Kilkenny would have

named them as defendants in the original

complaint.

(7a). However, the majority went on to say:

Kilkenny may have been mistaken as to the identity

of the proper defendants at the time she filed the

original complaint, but that is not the critical

inquiry under Rule 15(c). We are concerned with

what Arco Marine and Arch Tankers knew or

should have known during the limitations period.

Because Kilkenny failed to amend her complaint

after being informed that Arco Marine and Arch

Tankers were potential defendants and failed to

prosecute the second action in which they were

properly named, we conclude that Arco Marine

and Arch Tankers cannot be found to have known

during the relevant limitations period that they

were not named as defendants in the initial

complaint due to mistake.

(9a) (emphasis added).* The highlighted portion should have

ended the inquiry; the appeals court, however, went on to create

a new test which deviates from Congress’ intent and prior case

law. Schiavone clearly does not support this tortured result.’

The dissenting opinion of Judge Canby, also suggested that

this result was neither dictated by the Rule nor by Schiavone.

He found that:

2. It must be recalled that petitioner’s ‘‘failure to prosecute the second

action’’ was by no means a tactical ploy. As explained supra, petitioner’s counsel

did not receive timely notice sent by the court concerning a hearing and the

action was dismissed. Moreover, petitioner’s subsequent attempt to reopen the

action was denied.

3. In Schiavone, neither the original party nor the defendant sought to

be added in the amended complaint, received notice of the lawsuit within the

prescribed limitation period. Here of course, both Arco Marine and Arch Tankers

received notice, undoubtedly through Arco when the original complaint was

filed, but also through plaintiff’s filing of her complaint against those two

defendants in the District Court for the Northern .:rict of California.

There is no question in this case that Arco Marine

and Arch Tankers had sufficient notice of the

action that their defense of the merits would not

be prejudiced. There is also no question that they

received that notice within the applicable

limitations period.

(15a-16a).

Judge Canby further stated that:

[T]here can also be little question that Arco Marine

and Arch Tankers knew, within a short time after

the action was commenced, that a mistake had

been made and that they should have been named

as parties defendant.

Id. at 16a. Thus, notice of the action and of the mistake was

given to Arco Marine and Arch Tankers long before limitations

had expired. Jd.‘

4. The statement of the court in Schwartzwelder v. Hamilton, 56 F.R.D.

606, 609-10 (M.D. Pa. 1972), is appropriate here:

Moreover, neither long delay, nor the fact that the amendment

is sought as an afterthought of counsel will be sufficient to

deny leave to amend unless it can be said that the opposing

party is prejudiced thereby. Green v. Woif Corp., 50 F.R.D.

220 (S.D.N.Y. 1970); Smith v. Guaranty Service Corp., 51

F.R.D. 289 (N.D. Cal. 1970); Trotter v. Cone Automatic

Machine Co., Inc., supra [48 F.R.D. 100 (E.D. Pa. 1969)].

In addition, there is no requirement that a plaintiff substitute a defendant sought

to be added through Rule 15(c) in place of the original defendant, as a plaintiff

may retain the original party as a necessary protection of her interests. See

(Cont’d)

Judge Canby further stated that:

What the majority seems to be holding in practical

effect is that knowledge of a mistake, once timely

gained may be unlearned if the plaintiff permits

an undue amount of time to pass before amending.

The requirement of Schiavone that the new

defendants know of the mistake ‘‘within the

prescribed period’’ is changed a requirement that

the new defendants know of the mistake ail during

the prescribed limitations period. The majority

states that Arco Marine and Arch Tankers are

entitled to conclude, after a period of delay, that

they were omitted not because of mistake, but for

some tactical reason. There is no suggestion what

the tactical reason might be. If it was to forum-

shop by the bringing of a separate action, that

reason appeared long after the original mistake was

apparent and terminated long before limitations

ran. It is clear here from what the claim was and

who should have been sued, and these facts were

known to all parties, old and new, within weeks

after the complaint was filed. There is no reason

not to permit the action to continue against the

proper defendants, as the rule permits. The

intentions were mainfest when the action was

commenced; the rules should be applied to

(Cont'd)

Merideth v. United Airlines, 41 F.R.D. 34, 39 (S.D. Cal. 1966); see also, Gabriel

v. Kent General Hospital, Inc., 95 F.R.D. 391 (D. Del. 1982). In the latter

case, the court held that relation back was permissible since there was ‘‘a

possibility that the plaintiff may have made a mistake in selecting the original

defendants.’’ 95 F.R.D. at 396 (ernphasis added).

facilitate a decision on the merits. See Foman v.

Davis, 371 U.S. 178, 181 (1962).

(17a).

This Court found in Schiavone that neither Fortune nor Time

received notice of the filing until after the period of limitations

had run. Thus, there was no proper notice to Fortune that could

be imputed to Time. 106 S. Ct. at 2384. Notice to Time was a

necessary element which did not come into being ‘‘within the

period pro. ided by law for commencing the action’’ as is required

by Rule 15(c). This Court stated that it did not have a choice

between a “‘liberal’’ approach toward Rule 15(c) on the one hand,

and a ‘‘technical’’ interpretation of the Rtile on the other. Instead,

the choice was between ‘‘recognizing or ignoring what the Rule

provides in plain language.’’ Jd. at 2385. The court accepted the

rule as meaning what it says and therefore, the plaintiff had failed

to satisfy the fourth requirement of the test.

Applying this same rationale to the instant action, it is clear

that the plain language of Rule 15(c) states ‘‘that party must or

should have known that, but for a mistake concerning identity,

the action would have been brought against it.”” Moreover, the

Advisory Committee notes make it clear that the time of the

mistake is when a plaintiff initially filed suit. It cannot be disputed

that Arco Marine and°Arch Tankers knew that a mistake had

been made and that they should have been named as parties

defendant. It also cannot be disputed that the time of the mistake

was when the initial complaint was filed. Thus, just as this Court

recognized in Schiavone the ‘‘plain language’ of the Rule

concerning the time knowledge came into being, so should this

Court recognize the plain language of the Rule concerning a

mistake in parties at the commencement of the action. Schiavone

therefore supports petitioner’s position as recognized by Judge

Canby in his dissent. To hold otherwise would create the

anomalous situation where the plain language of portions of the

Rule are followed, but the plain language of other portions of

the Rule are not. Therefore, this Court should grasp the

opportunity to avoid subsequent confusion in the application of

Rule 15(c).

CONCLUSION

For the fore~oing reasons, a writ of certiorari should be issued

to review the juugment and opinion of the Ninth Circuit.

Respectfully submitted,

MARVIN I. BARISH

MARK S. PEARLSTEIN

MARVIN I. BARISH

LAW OFFICES

Attorneys for Petitioner

APPENDIX A—ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT DENYING

REHEARING FILED OCTOBER 27, 1986

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 85-6404

D.C. No. CV 83-2602-JMI

GLORIA LEE WEISS MARMION KILKENNY, As Personal

Representative of the Estate of Matthew Kane Marmion, Deceased,

Plaintiff-Appellant,

-VS-

ARCO MARINE INC., ARCO TANKERS INC., and S.S. ARCO

ALASKA,

Defendants-Appellees.

ORDER

Appeal from the United States District Court for the Central

District of California

Before: WALLACE, FARRIS, and CANBY, Circuit Judges.

Appellant’s petition for rehearing is denied.

APPENDIX B—OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT FILED

SEPTEMBER 19, 1986

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 85-6404

D.C. No. CV 83-2602-JMI

GLORIA LEE WEISS MARMION KILKENNY, As Personal

Representative of the Estate of Matthew Kane Marmion, Deceased,

Plaintiff-Appellant,

-VS-

| ARCO MARINE INC., ARCO TANKERS INC., and S.S. ARCO

ALASKA,

Defendants-Appellees.

OPINION

Appeal from the United States District Court

for the Central District of California

James M. Ideman, District Judge, Presiding

Argued and Submitted June 5, 1986

Pasadena, California

Before: WALLACE, FARRIS, and CANBY, Circuit Judges.

WALLACE, Circuit Judge:

Appendix B

Kilkenny appeals from the district court’s dismissal of her

amended complaint against Arco Marine, Inc. (Arco Marine) and

Arch Tankers, Inc. (Arch Tankers) and entry of summary

judgment in favor of Atlantic Richfield Company (Atlantic

Richfield). Kilkenny contends that the district court erred in

dismissing the amended complaint based on its conclusion that

the amended complaint was barred by the relevant statute of

limitations because it did not relate back to the date of the filing

of her original complaint, and in granting summary judgment

because there is a genuine issue of material fact concerning Atlantic

Richfield’s involvement in the events giving rise to Kilkeny’s

complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

On December 26, 1981, Matthew Marmiom, a licensed diver

employed by a commercial diving company, died as a result of

injuries suffered while performing underwater maintenance work

on the supertanker Arco Alaska. In November 1982, Kilkenny,

the personal representative of Marmiom’s estate, brought suit in

the United States District Court for the Eastern District of

Pennsylvania against Atlantic Richfield to recover damages

pursuant to the Jones Act, 46 U.S.C. § 688, and general maritime

law. Atlantic Richfield answered the complaint, stating that the

Arco Alaska was owned by Arch Tankers and operated by Arco

Marine. Atlantic Richfield then successfully moved in December

1982 to transfer the case to the United States District Court for

the Central District of California.

The next month, January 1983, Kilkenny instituted a parallel

action in the United States District Court for the Northern Disirici

of California, naming Atlantic Richfield, Arco Marine, and Arch

Appendix B

Tankers as defendants. This second action was also transferred

to the United States District Court for the Central District of

California. In March 1984, the district judge assigned the second

action dismissed it for lack of prosecution.

In January 1985, Atlantic Richfield moved for summary

judgment in the first action on the grounds that there was no

genuine issue of material fact that it did not own, operate, manage,

possess, or control the Arco Alaska, and thus could not be held

liable for Marmiom’s accidental death. Reacting to Atlantic

Richfield’s motion for summary judgment, Kilkenny moved to

vacate the dismissal of the second action pursuant to rule 60(b),

Fed. R. Civ. P., but the district judge that had dismissed the second

action denied the motion. On July 24, 1985, Kilkenny filed an

amended complaint in the first action, adding Arco Marine and

Arch Tankers as defendants.

The district court heard oral argument on Atlantic Richfield’s

motion for summary judgment in the first action and granted

the motion. Arco Marine and Arch Tankers then filed a motion

to dismiss the amended complaint in the first action pursuant

to rule 12, Fed. R. Civ. P., contending that the amended complaint

was barred by the three-year statute of limitations that applies

to actions under the Jones Act, see 46 U.S.C. § 688; 45 U.S.C.

§ 56, and that the amended complaint did not ‘‘relate back’’ to

the date of the original complaint as required by rule 15(c), Fed.

R. Civ. P. The district judge found that Kilkenny knew the identity

of the proper defendants before the statute of limitations expired,

that the failure to amend the original complaint prior to the

expiration of the limitations period was not the result of a mistake

concerning the identity of the proper defendants, and, as a result,

that the amended complaint did not relate back to the filing of

the original complaint and thus was barred by the statute of

Appendix B

limitations. The district judge therefore granted Arco Marine’s

and Arch Tankers’s motion to dismiss the amended complaint.

The action was subsequently dismissed.

We first consider whether we have jurisdiction to consider

this appeal. The district court’s entry of summary judgment against

Kilkenny and in favor of Atlantic Richfield was not a final order

because parties to the action remained. After orally granting Arco

Marine’s and Arch Tankers’s motion to dismiss, and entering

findings of fact and conclusions of law dismissing Kilkenny’s

amended complaint, the district judge failed to enter a final order

dismissing the action. ‘‘Ordinarily an order dismissing a complaint

but not dismissing the action is not appealable under section 1291

unless circumstances make it clear that the court concluded that

the action could not be saved by any amendment of the complaint.

If it appears that the district court intended the dismissal to dispose

ofthe action, it may be considered final and appealable.’’ Hoohuli

v. Ariyoshi, 741 F.2d 1169, 1171 n.1 (9th Cir. 1984) (citation.

omitted). The district judge made it very clear that Atlantic

Richfield was not a proper party to the action and that Kilkenny

now is unable to amend her complaint to add the proper parties.

We conclude therefore that we should treat the district court’s

order dismissing Kilkenny’s amended complaint as a final order

dismissing the action and that we have jurisdiction to consider

this appeal pursuant to 28 U.S.C. § 1291.

III

Kilkenny does not dispute the district court’s determination

that she filed the amended complaint after the three-year statute

of limitations period had expired. She contends that the district

Appendix B

court erred in concluding that the amended complaint did noi

relate back to the filing of the original complaint. We review the

district court’s decision that the amended complaint did not relate

back for abuse of discretion. See Korn v. Royal Caribbean Cruise

Line, Inc., 724 F.2d 1397, 1399 (9th Cir. 1984) (Korn).

Because the statute of limitations period expired prior to

Kilkenny’s filing of the amended complaint, rule 15(c), Fed. R.

Civ. P.,' is the only procedur7l avenue by which Kilkenny’s original

complaint may be amended to add additional parties. Korn, 724

F.2d at 1399. The Supreme Court recently identified four criteria

that must be met in order for an amendment naming additional

parties to relate back to the filing of an original pleading pursuant

to rule 15(c):

(1) the basic claim must have arisen out of the

conduct set forth in the original pleading; (2) the

party to be brought in must have received such

notice that it will not be prejudiced in maintaining

its defense; (3) that party must or should have

known that, but for a mistake concerning identity,

the action would have been brought against it; and

(4) the second and third requirements must have

been fulfilled within the prescribed limitations

period.

Schiavone v. Fortune, aka Time, Inc., 106 S. Ct. 2379, 2384 (1986)

(Schiavone). Arce Marine and Arch Tankers concede that Kilkenny

has met the first two requirements. We are concerned only with

the third and fourth requirements.

Appendix B

The district judge found, based on the fact that Atlantic

Richfield provided Kilkenny with the names of Arco Marine and

Arch Tankers as potential defedants in its answer to the initial

complaint and on the fact that Kilkenny named them in her second

action, that Kilkenny was not mistaken concerning the identity

of the proper parties. Kilkenny contends, however, that the district

judge erred in failing to limit his inquiry of whether she was

mistaken concerning the identity of the proper defendants to the

time of the filing of her original complaint. We agree with Kilkenny

that the ‘‘would have been brought against him’’ language of

rule 15(c) suggests that our inquiry regarding the existence of a

mistake of identity should be limited to her state of mind as of

the time the initial complaint is filed. See also Fed. R. Civ. P.

15 advisory committee note (amendment relates back if party

‘*knew or should have known that the action would have been

brought againt him initially had there not been a mistake

concerning the identity of the proper party’’) (emphasis added).

The district judge did not err, however, in concluding that

the amended complaint did not relate back to the filing of the

original complaint based on the information Kilkenny received

during the limitations period of the proper parties. In Schiavone,

the Supreme Court rejected the argument that, for rule 15(c)

purposes, notice of a claim need not be received by the party

that plaintiff seeks to add by way of amendment prior to the

expiration of the relevant statute of limitations period. The Court

emphasized that under rule 15(c), ‘‘the emphasis is upon ‘the period

provided by law for commencing the action against’ the

defendant.’’ /d. at 2385, quoting Fed. R. Civ. P. 15(c). The Court

specifically concluded that in order for an amendment to relate

back under rule 15(c), the party to be brought in must have known

or should have known, within the relevant statute of limitations

period, that, but for a mistake concerning identity, the action

Appendix B

would have been brought against it. See id. at 2384-85. The critical

inquiry therefore is whether Arco Marine and Arch Tankers knew

or should have known, within the statute of limitations period,

that, but for a mistake, Kilkenny would have named them as

defendants in the original complaint.

The extent of information Kilkenny received by Arco Marine

and Arch Tankers as potential defendants after filing her original

complaint and before the limitations period expired, is relevant

to the detrmination of whether Arco Marine and Arch Tankers

knew or should have known during the limitations period that

they would have been named in the initial complaint but for a

mistake of identity. For example, in Upshaw v. Equitable Life

Assurance Society, 85 F.R.D. 674 (E.D. Ark. 1980), the plaintiff

received notice from the named defendant’s answer to his

complaint of the existence of an additional indispensable defendant

two months after filing his complaint, but did not attempt to add

the additional defendant until after the applicable statute of

limitations had expired. /d. at 675. The court concluded that the

previously unnamed defendant

should not, in the face of the plaintiff’s inaction

during the limitations period, be held thereafter

to know that but for a mistake in identity it would

be joined as a party, particularly when [the named

defendant] had informed the plaintiff of the proper

party and noted its indispensability well before the

limitations period had run.

Id. at 678. A plaintiffs failure to amend its complaint to add

a defendant after being notified of a mistake concerning the

Appendix B

identity of a proper party therefore may cause the unnamed party

to conclude that it was not named because of strategic reasons

rather than as a result of the plaintiff’s mistake. See, e.g., Unicure,

Inc. v. Thurman, 97 F.R.D. 1, 6 (W.D.N.Y. 1982) (Unicure);

Rogatz v. Hospital General San Carlos, Inc., 89 F.R.D. 298, 301

(D.P.R. 1980); Gutierrez v. Raymond International, Inc., 86

F.R.D. 684, 685 (S.D. Tex. 1980) (Gutierrez).

Atlantic Richfield notified Kilkenny that Arco Marine and

Arch Tankers were potential defendants three weeks after Kilkenny

filed her original complaint. Kilkenny never attempted to amend

. her complaint to add Arco Marine and Arch Tankers as defendants

before the three-year statute of limitations period expired in

December 1984. Kilkenny obviously knew that Arco Marine and

Arch Tankers were potential defendants because she named them

in her complaint in the second action. No effort was made to

amend the complaint even during the nine-month period after

the second action was dismissed and before the statute of

limitations ran. Kilkenny may have been mistaken as to the identity

of the proper defendants at the time she filed the original

complaint, but that is not the critical inquiry under rule 15(c).

We are concerned with what Arco Marine and Arch Tankers knew

or should have known during the limitations period. Because

Kilkenny failed to amend her complaint after being informed that

Arco Marine and Arch Tankers were potential defendants and

failed to prosecute the second action in which they were properly

named, we conclude that Arco Marine and Arch Tankers cannot

be found to have known during the relevant limitations period

that they were not named as defendants in the initial complaint

due to mistake.

Rule 15(c) was intended to protect a plaintiff who mistakenly

names a party and then discovers, after the relevant statute of

10a

Appendix B

limitations has run, the identity of the proper party. Rule 15(c)

was never intended to assist a plaintiff who ignores or fails to

respond in a reasonable fashion to notice of a potential party,

nor was it intended to permit a plaintiff to engage in piecemeal

litigation. Unicure, 97 F.R.D. at 6; Gutierrez, 86 F.R.D. at 685-86.

The district court’s finding that Kilkenny was not mistaken

as to the proper parties during the limitations period amply

supports our conclusion that Arco Marine and Arch Tankers

lacked the requisite knowledge under rule 15(c). We conclude that

the district court did not abuse its discretion in concluding that

Kilkenny’s amended complaint did not relate back to the filing

of the original complaint. Therefore, the district court did not

err in dismissing the amended complaint.

Kilkenny next argues that the district court erred in granting

summary judgment in favor of Atlantic Richfield. We review the

district court’s entry of summary judgment de novo and will affirm

if, after reviewing the record in the light most favorable to the

nonmoving party, there is no genuine issue of material fact and

the moving party is entitled to judgrment as a matter of law. See

Continental Casualty Co. v. City of Richmond, 763 F.2d 1076,

1078-79 (9th Cir. 1985); Nevada v. United States, 731 F.2d 633,

635 (9th Cir. 1984).

In the district court, Kilkenny advanced two legal theories

as a basis for recovery against Atlantic Richfield: first, that Atlantic

Richfield owned, operated, managed, possessed, and controlled

the Arco Alaska; and second, that Atlantic Richfield so dominated

Arco Marine and Arch Tankers that the court should ‘‘pierce

the corporate veil’’ to impose liability on Atlantic Richfield. At

lla

Appendix B

oral argument, Kilkenny attempted to argue vicarious liability as

a third basis for recovery. We do not consider, absent exceptional

circumstances, arguments raised for the first time on appeal. See

Villar v. Crowley Maritime Corp., 782 F.2d 1478, 1483 (9th Cir.

1986). We do not decide whether there could have been a genuine

issue of materiai fact with respect to a claim of vicarious liability.

In support of its motion for summary judgment, Atlantic

Richfield introduced the Arco Alaska’s certificate of registry which

listed Arch Tankers as the owner of the vessel; a declaration by

the assistant secretary of Atlantic Richfield stating that Atlantic

Richfield did not own or operate the Arco Alaska or employ

anyone who worked on the vessel; and a declaration by the

assistant secretary of Arco Marine stating that-Arco Marine was

earlier called Arch Tankers and that Arco Marine owned, operated,

and managed the Arco Alaska and employed all individuals who |

rendered services on behalf of the vessel.

In opposition to Atlantic Richfield’s motion for summary

judgment, Kilkenny introduced a report of Marmiom’s accident

prepared by a Coast Guard investigating officer listing Atlantic

Richfield as the operator of the Arco Alaska; letters from the

manager of Atlantic Richfield’s Marine Transportation Division

advising Hale, one of those charged with negligence which resulted

in Marmiom’s death, of his selection as a chief engineer and of

his work assignment on a different vessel; an order for and invoices

for maintenance work on the Arco Alaska billed to ‘‘Atlantic

Richfield’s Company, Marine Department,’’ ‘‘Arco,”’ and ‘‘Arco

Marine Dept.’’; disbursement vouchers from Atlantic Richfield

representing payment for maintenance work on the Arco Alaska;

testimony of two Arco Alaska crewmen stating that they worked

for ‘‘ARCO”’ and ‘‘Atlantic Richfield, Long Beach, California’’

respectively; and an inspection report listing Atlantic Richfield

as the operator of the Arco Alaska.

12a

Appendix B

We first determine whether these facts present a genuine issue

of material fact with respect to Kilkenny’s argument that Atlantic

Richfield owned and operated the Arco Alaska. The Arco Alaska’s

certificate of registry lists Arch Tankers as the owner, and the

Coast Guard report and the inspection report list ‘‘Arco Tankers,

Inc.’’ as the owner. We are not persuaded that the maintenance

invoices and disbursement vouchers suggest a contrary conclusion.

We conclude therefore that there is no genuine issue of material

fact concerning the ownership of the Arco Alaska.

We next consider whether there is a genuine issue of material

fact concerning Atlantic Richfield’s involvement in the operation

and management of the Arco Alaska. Kilkenny relies on the Coast

Guard report and the inspection report, both of which list Atlantic

Richfield as the ‘‘operator’’ of the Arco Alaska, to demonstrate

a genuine issue of material fact. In neither the Coast Guard report

nor the inspection report, however, was the technical question

of corporate identity of criticai concern. The testimony of the

two crewmen also does not reflect consideration of the separate

corporate identities or management of Atlantic Richfield and Arco

Marine. We conclude that the evidence presented by Kilkenny

fails to raise a genuine issue of material fact concerning whether

Atlantic Richfield was involved in the operation and management

of the Arco Alaska.

Kilkenny also contends that her second theory of recovery

based on the alter ego doctrine of corporate liability presented

a genuine issue of material fact. We disagree. The alter ego doctrine

requires that the controlling corporate entity exercise ‘‘ ‘total

l3a

Appendix B

domination of the subservient corporation, to the extend that the

subservient corporation manifests no separate corporate interests

of its own and functions solely to achieve the purposes of the

dominant corporation.’ ’’ Baker v. Raymond International, Inc.,

656 F.2d 173, 181 (Sth Cir. 1981), cert. denied, 456 U.S. 983 (1982),

quoting Krivo Industrial Supply Co. v. National Distillers &

Chemical Corp., 483 F.2d 1098, 1106 (Sth Cir. 1973), reh’g denied,

490 F.2d 916 (Sth Cir. 1974). Corporate separateness is respected

unless doing so would work injustice upon an innocent third party.

Edwin K. Williams & Co. v. Edwin K. Williams & Co. - East,

542 F.2d 1053, 1063 (9th Cir. 1976), cert. denied, 433 U.S. 908

(1977); see Laborers Clean-up Contract Ad Trust Fund v. Uriarte

Clean-up Service, Inc., 736 F.2d 516, 524-25 (9th Cir. 1984).

The only facts set forth by Kilkenny in support of her alter

ego argument were that some of Arco Marine’s expenses were

paid through Atlantic Richfield, that two crew members of the

Arco Alaska stated they were employees of “Arco” and ‘‘Atiantic

Richfield, Long Beach, California,’’ and that the business of the

Arco Alaska consisted of transporting products on behalf of a

division of Atlantic Richfield. We conclude that these facts do

not approximate the required proof of total domination of the

subservient corporation by the controlling corporation and thus

do not present a genuine issue of material fact concerning whether

Arco Marine is an alter ego of Atlantic Richfield. Moreover,

Atlantic Richfield, Arco Marine, and Arch Tankers have not

attempted to mislead Kilkenny as to the proper corporate entity

to be named in her complaint. Any injustice that might occur

results from Kilkenny’s inexcusable failure to heed Atlantic

Richfield’s disclosure of the proper party during the limitations

period rather than from the forms of corporate organization and

management adopted by the defendants.

AFFIRMED.

l4a

Appendix B

FOOTNOTE

1. Rule 15(c) provides that

{aJn amendment changing the party against whom

a claim is asserted relates back if the foregoing

provision is satisfied and, within the périod

provided by law for commencing the action against

him, the party to be brought in by amendment

(1) has received such notice of the institution of

the action that he will not be prejudiced in

maintaining his defense on the merits, and (2) knew

or should have known that, but for a mistake

concerning the identity of the proper party, the

action would have been brought against him.

lSa

Appendix B

KILKENNY V. ARCO MARINE, INC. - No. 85-6404

CANBY, Circuit Judge (dissenting in part):

I understand the appeal of the majority’s decision that Rule

15(c) is not to be brought to the aid of an attorney who inexplicably

fails to correct a pleading within a reasonable time after being

notified that he has sued the wrong party. But the result is a harsh

one for the client, and it is dictated neither by the Rule nor by

the Supreme Court’s decision in Schiavone v. Fortune, 106 S.Ct.

2379 (1986). There is no suggestion of prejudice to the new

defendants. I therefore would permit the relation back.

The books are replete with cases in which a court finds itself

required to reach a harsh result, based on a technicality, because

the express language of a rule or statute permits no other outcome.

See, e.g., Schiavone, 106 S.Ct. at 2385. Here, however, the

language of the Rule favors the more humane and equitable result.

I would not resist it. :

Rule 15(c) provides for relation back if:

within the period provided by law for commencing

the action against him, the party to be brought

in by amendment (1) has received such notice of

the institution of the action that he will not be

prejudiced in maintaining his defense on the merits,

and (2) knew or should have known that, but for

a mistake concerning the identity of the proper

party, the action would have been brought against

him.

There is no question in this case that Arco Marine and Arch

16a

Appendix B

Tankers had sufficient notice of the action that their defense of

the merits would not be prejudiced. There is also no question

that they received that notice within the applicable limitations

period. All of the elements of requirement (1) of Rule 15(c) were

therefore met. The majority opinion concedes as much.

There can also be little question that Arco Marine and Arch

Tankers knew, within a short time after the action was commenced,

that a mistake had been made and that they should have been

named as parties defendant. The majority opinion holds, however,

that requirement (2) of Rule 15(c) has not been fully met because

Arco Marine and Arch Tankers did not know of this mistake

‘‘within the prescribed limitations period,’’ as required by

Schiavone, 106 S.Ct. at 2384. That result can be reached only

by a most unlikely interpretation of the Rule and of the Schiavone

gloss upon it.

Schiavone dealt with a situation in which neither the ‘‘right’’

nor the ‘“‘wrong’’ defendant was given notice of the commencement

of the action or of the mistake in identity until after limitations

has run. Here, however, notice of the action and of the mistake

was given to Arco Marine and Arch Tankers long before

limitations had expired. The majority opinion seems to agree that

if an amendment had been made promptly, it would have related

back; all of the conditions had been met.

What the majority seems to be holding in practical effect

is that knowledge of a mistake, once timely gained, may be

unlearned if the plaintiff permits an undue amount of time to

pass before amending. The requirement of Schiavone that the

new defendants know of the mistake ‘‘within the prescribed

period”’ is changed to a requirement that the new defendants know

of the mistake a/l during the prescribed limitations period. The

17a

Appendix B

majority states that Arco Marine and Arch Tankers are entitled

to conclude, after a period of delay, that they were omitted not

because of mistake, but for some tactical reason. There is no

suggestion what the tactical reason might be. If it was to forum-

shop by the bringing of a separate action, that reason appeared

long after the original mistake was apparent and terminated long

before limitations ran.

It is clear here what the claim was and who should have been

sued, and these facts were known to all parties, old and new,

within weeks after the complaint was filed. There is no reason

not to permit the action to continue against the proper defendants,

as the Rule permits. The intentions were manifest when the action

was commenced; the Rules should be applied to facilitate a decision

on the merits. See Foman v. Davis, 371 U.S. 178, 181 (1962).

- [ therefore dissent from the majority’s refusal to permit a relation

back.

In all other respects, I concur in the majority opinion.

18a

APPENDIX C—FINDINGS OF FACT AND CONCLUSIONS

OF LAW AND ORDER OF DISMISSAL FILED

NOVEMBER 6, 1985

FRANCIS J. MacLAUGHLL.

ALAN RUBIN

LILLICK McHOSE & CHARLES

707 Wilshire Boulevard

Los Angeles, California 90017

(213) 488-7100

Attorneys for Defendants

ARCO MARINE, INC. and ARCH TANKERS, INC.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 83-2602-JM

GLORIA LEE WEISS MARMION KILKENNY, Personal

Representative of the Estate of MATTHEW KANE MARMION,

deceased,

Plaintiff,

vs.

ATLANTIC RICHFIELD COMPANY, et al.,

Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND

ORDER OF DISMISSAL

19a

Appendix C

The Court, has considered defendant’s Motion to Dismiss,

plaintiff’s opposition to that Motion, Defendant’s Reply, the oral

arguments of counsel made at the hearing of October 21, 1985,

the files and records of this case and makes the following findings

of fact and conclusions of law:

1. Plaintiff’s First Amended Complaint, filed July 24, 1985

seeks to add Arco Marine, Inc. and Arch Tankers as party

defendants.

2. Unless the First Amended Complaint ‘‘relates back’’ to

the date of the original Complaint, the applicable statute of

limitations in this case expired prior to the filing of the First

Amended Complaint.

3. Rule 15(c), Federal Rules of Civil Procedure governs the

relation back of amended pleadings which seek to add or change

the parties involved in a case.

4. One of the criteria which the party seeking to add

defendants after the statute of limitations has expired must satisfy

to permit relation back of the amended pleading is that the

amending party must have made a mistake concerning the identity

of the proper defendants.

5. In its Answer to the original Complaint dated November

23, 1982, defendant Atlantic Richfield, previously granted

summary judgment, specifically informed plaintiff of the identity

of the proper party defendants, Arco Marine, Inc. and Arch

Tankers, Inc.

6. Similarly, in its Motion for Change of Venue filed on

December 25, 1982, in the Eastern District of Pennsylvania,

20a

Appendix C

Atlantic Richfield again specifically informed plaintiff of the

identity of the proper party defendants.

7. On January 11, 1983, plaintiff instituted a parallel action

based on same facts as those which underly this case in the U.S.

District Court for the Northern District of California. In that

action, plaintiff name Arco Marine, Inc. and Arch Tankers, Inc.

as defendants.

8. In light of the specific notice of the proper party defendants

given twice to plaintiffs by Atlantic Richfield and the subsequent

inclusion of those defendants in the parallel action, the Court

finds and concludes that the plaintiffs knew the identity of the

proper party defendants well before the expiration of the statute

of limitations, and that the failure to amend the pleadings within

the statute of limitations period to include the moving parties

as defendants was not a result of a mistake concerning the identity

of the proper party defendants.

9. Therefore, the court finds and concludes that plaintiff’s

First Amended Complaint does not meet the criteria of Rule 15(c),

Federal Rules of Civil Procedure, and the date of the filing of

the First Amended Complaint does not ‘‘relate back’’ to the day

of the original Complaint.

10. Because the date of the filing of the First Amended:

Complaint does not relate back to the date of the original

Complaint, and because the First Amended Complaint was filed

after the expiration of the applicable statute of limitations, the

Court finds and concludes that plaintiff’s action against defendants

Arco Marine, Inc. and Arch Tankers, Inc. is barred by the statute

of limitations.

2la

Appendix C

11. The Motion to Dismiss of defendants Arco Marine, Inc.

and Arch Tankers, Inc. granted and the First Amended Complaint

ordered dismissed.

DATED: 5 November 1985 s/ James M. Ideman

UNITED STATES DISTRICT

JUDGE

PRESENTED BY:

Lillick, McHose & Charles

By: s/ Alan Rubin

Alan Rubin

179:pld015

22a

APPENDIX D—JUDGMENT FILED JULY 30, 1985

LILLICK McHOSE & CHARLES

FRANCIS J. MacLAUGHLIN

707 Wilshire Boulevard, 44th Floor

Los Angeles, California 90017

(213) 488-7100

Attorneys for Defendant

ATLANTIC RICHFIELD COMPANY

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CV 83-2602-JMI

GLORIA LEE WEISS MARMION MILKENNY, Personal

Representative of the Estate of MATTHEW KANE MARMION,

Deceased,

Plaintiff,

ATLANTIC RICHFIELD COMPANY,

Defendant.

JUDGMENT

The Court, having considered all the evidence presented,

hereby finds as follows:

1. The Court has jurisdiction over the subject matter of the

Complaint and over the parties hereto.

23a

Appendix D

2. Defendant is not the proper party in this action.

3. Defendant is entitled to a judgment in accordance with

the Unconiroverted Facts and Conclusions of Law.

GOOD CAUSE APPEARING THEREFOR, IT IS

ORDERED, ADJUDGED AND DECREED that Judgment be

entered in favor of defendant Atlantic Richfield Company and

against plaintiff Gloria Lee Weiss Marmion Kilkenny, personal

representative of the Estate of Matthew Kane Marmion, deceased,

and that plaintiff shall take nothing by her Complaint.

Defendant shall be entitled to costs of suit.

DATED: July 24, 1985.

s/ James Ideman

UNITED STATES DISTRICT

JUDGE

24a

APPENDIX E — UNITED STATES COAST GUARD

INVESTIGATIVE REPORT

DEPARTMENT OF TRANSPORTATION

UNITED STATES COAST GUARD

Commanding Officer

Marine Safety Office

165 N. Pico Avenue

Long Beach, CA 90802

16732/C-82-217

MAY 31 1983

From: Investigating Officer

TO: Commandant (G-MMI-I)

Via: Commanding Officer, CG Marine Safety Office LA-LB

Subj: ARCO ALASKA O/N 614 544; death of MARMION,

Matthew K. on 26 December 1981 in the Pacific Ocean

at Long Beach Harbor, San Pedro Bay, California while

diving in the starboard sea chest

1. On 26 December 1981, at approximately 1500, Matthew K.

MARMION and Robert A. LUCARIELLO, commercial divers

employed by Ocean Masters International, entered the water to

commence cleaning the starboard sea chest of the SS ARCO

ALASKA O/N 614 544. The SS ARCO ALASKA a Tankship

certificated by the U.S. Coast Guard, was anchored at Long Beach

Outer Anchorage D-5 with the uninspected M/V OCEAN

MASTER O/N 635 420, moored alongside to starboard for use

as a diving platform. At approximately 1520, 26 December 1981,

Matthew K. MARMION died as a result of traumatic asphyxiation

after becoming caught in the starboard sea chest of the Ss ARCO

25a

Appendix E

ALASKA. All times in this report are +8.

2. Vessel Data:

a. Name ARCO ALASKA

Official Number

Service

Gross Tons

Net Tons

Length

Breadth

Depth

Mean Draft 12/26/81

Propulsion

Horse Power

Owner

Operator

. Name

Official Number

Service

Gross Tons

Net Tons

Length

Breadth

Depth

Propulsion

Horsepower

Home Port

Owner

614 544

Tankship

83,675

73,111

925.9’

144’

71’

30’

Steam

28,000

Arco Tankers, Inc.

Los Angeles, CA

Atlantic Richfield Company

Los Angeles, CA |

OCEAN MASTER

635 420

Fishing

34’.

10.8’

52"

Diesel

300

Los Angeles/Long Beach

Chester J. Hummel

26a

Appendix E

3. The weather at the time of the casualty was not a factor. The

air temperature was 70 and sea temperature was approximately

58°. Visibility underwater was 2-3’ except for 5’ with the aid of

flashlights. When sediment was stirred up by the divers, the

visibility was reduced to zero.

4. Dead as a result of the casualty is Matthew K. MARMION,

— He was survived by his parents Fenton and Gloria Kilkenny

of —. Marmion’s remains were taken to McNerney’s Mortuary

in San Pedro, CA and cremated on 29 December 1981. His remains

were then scattered at sea on 30 December 1981.

5. Matthew K. MARMION was in good health and was certified

by Commercial Diving Center of Wilmington, CA at a 32 week

Professional Divers Course which he had completed on 4

December 1980. He had made approximately 15 dives

commercially. Prior to December 1980, Mr. Marmion had 2 years

scuba diving experience.

6. Matthew Marmion’s diving equipment consisted of a full

wetsuit, a Kirby Morgan KMB-10 BAND MASK. Surface air

supplied by a Quincey 216 air compressor, which develops 12-13

cubic feet of air per minute. Following the fatal dive, the mask

was sent to an independent diving safety consultant and found

the mask to be capable of sufficient air flow to sustain a diver.

The purge valve system of the regulator was damaged during the

fatal dive so that when depressed, it would not allow air to enter

the regulator.

7. At 0900, 26 December 1981, Marmion was given a briefing

on the day’s dive by Mr. Ken Jenkins of Ocean Masters

International, the designated diving supervisor. Another diver,

Robert Lucariello accompanied Mr. Marmion and Mr. Jenkins

27a

Appendix E

on their vessel, M/V OCEAN MASTER, which departed their

dock in Los Angeles Harbor at 1030. At 1100, the vessel OCEAN

MASTER came alongside the SS ARCO ALASKA and Jenkins

went on board.

8. Jenkins spoke with the Chief Engineer, Walton S. Hale, License

No. 479 948, at this time about the upcoming dive. Jenkins

completed and signed a ship repair safety checklist and had the

Chief Engineer sign the form. The form states that the main

condensers would be closed and only the small 3’’ suction would

be on in the starboard main sea chest, the area where the divers

were to work. The Chief Engineer told the night engineer in the

engine room that the divers would be working under the ship,

but never said the divers would be entering the starboard main

sea chest.

9. Jenkins returned to his vessel and waited for a supply boat

to complete loading stores to the ARCO ALASKA. The supply

vessel, VICKY ANN was on the ARCO ALASKA’s starboard

side, making it impossible for the OCEAN MASTER to tie up

over the starboard sea chest.

10. At 1330, Jenkins returned to the ARCO ALASKA to tell the

Chief Engineer of his plans to start diving. The Chief Engineer

could not be found, so he talked to the engine room watch

engineer. The night engineer, Luther Weaver, told Jenkins that

the equipment running in the engineroom was the same as before,

that the suctions operating at that time were necessary to be kept

on. Mr. Weaver was still unaware that divers would be entering

the sea chest itself.

11. Jenkins did not ascertain the status of any suctions in the

starboard main sea chest while in the engineroom. At 1400, Jenkins

28a

Appendix E

returned to his dive platform vessel, OCEAN MASTER. At 1410,

he entered the water, opened the center grate and entered the

starboard main sea chest. He determined the extent of sea growth

inside the sea chest. Jenkins surveyed the sea chest from inside

the centergrate and found no unusual movement of water, or water

going into the main suction lines. In Mr. Jenkins mind, there

posed no unusual danger to divers entering the sea chest. It is

not known if Mr. Jenkins dove all the way to the aft end of the

sea chest to check for movement of water at the opening for

number 2 auxiliary circulator suction line.

12. At 1500, Jenkins had his two divers enter the water and descent

15 feet to enter the starboard sea chest for cleaning. Lucariello

noticed no movement of water in the starboard sea chest in the

area he was working at the ship’s frame 85. At 1520, Jenkins

lost voice communications with Marmion, and _ instructed

Lucariello to find Marmion, and determined what happened to

him. Lucariello found Marmion at the after end of the sea chest

with his head inside a 12’’ suction line at frame 93. Lucariello

found Marmion motionless and attempted to pull him out of the

suction line. Luciarello called Jenkins, and Jenkins radioed the

ARCO ALASKA to stop all sea suctions.

13. Luciarello surfaced and was instructed to dive once more to

try and get Marmion out of the sea chest. Mr. Luciarello was

unsuccessful. At 1535, after being called by Mr. Jenkins, the

engineer on watch secured all pumps in the engineroom.

14. At 1600, Long Beach rescue divers arrived and were briefed

on the location of Mr. Marmion. The rescue divers entered the

sea chest, located Mr. Marmion approximately eight feet into the

chest, and then ascended with Mr. Marmion to the surface at

1610. He was placed on the Long Beach Rescue Boat, given CPR

29a

Appendix E

by the rescue divers, but he did not respond. He then was evacuated

to Saint Mary’s Hospital in Long Beach, CA by Long Beach

Paramedics, where he was pronounced dead on arrival.

15. After the diver was evacuated, at approximately 1715, Mr.

Jenkins returned to the starboard sea chest to retrieve the diver’s

tools. At that time, the auxiliary circulator pumps No. | and No.

2 were on and Mr. Jenkins states that he felt a movement of water

when he entered the center grate of the sea chest. Mr. Jenkins

returned to the sea chest to secure the grates. He noticed that

while inside the sea chest to retrieve the divers tools, he couid

feel a suction force present.

16. The engineering log for the SS ARCO ALASKA for 26

December 1981 shows that at 1520, during the 1200-1600 watch,

the following equipment was running affecting the starboard sea

chest: The No. | and No. 2 auxiliary circulating pumps feeding

the No. 1 and No. 2 turbine generators by means of 2-12’’ suction

lines. The auxiliary circulating pumps draw at a rate of 2150

g.p.m.. The IGS system deck seal pump also takes suction on

the sea chest and has a 3’’ suction line and has a negligible flow

rate. On going work was being completed installing a chloropac

injection system for the starboard sea chest. During the day of

26 December 1981, shoreside machinists were contracted to tap

into the auxiliary circulating pump suction piping for salt water

injection. To enter these suction lines, it was required to stop

the auxiliary circulating pumps, one at a time, which would then

change the suction flow in the starboard main sea chest. This

installation of the chloropac system was completed prior to 1200.

17. On 30 December 1981, the diving company of Ocean Masters

International sent Marmion’s diving mask to Mr. Thomas

Thompson, a diving officer with the University of California,

30a

Appendix E

Irvine and Special Program Director and Diving Safety Officer

with the Commercial Diving Center in Wilmington, CA. He noted

that the rubber hood had a tear in the material on the left side

of about five inches in length. The free flow adjustment shaft

at the front of the mask was bent out, the regulator box was bent

out of round and the diaphram of the regulator was sticking out

of the regulator box about one quarter of an inch in one area.

Air was attached to the mask to test all air systems, and all

functioned satisfactory. It was found out that the exhaust valve

of the regulator was folded back into the regulator. This condition

would have made it impossible for the mask to be worn since

water would enter the mask through this exhaust valve. Therefore,

the mask was damaged after the diver had entered the water,

according to Mr. Thompson.

18. An autopsy was performed on Matthew Marmion on 27

December 1981 by the Los Angeles County Coroner’s office. The

cause of death was determined to be traumatic asphyxia.

CONCLUSIONS

1. The apparent cause of the casualty was Matthew K. MARMION

getting caught against a 12’’ suction line in the SS ARCO

ALASKA’s starboard main sea chest.

2. On 26 December 1981, at approximately 1530, Matthew K.

MARMION died as a result of traumatic asphyxiation.

3. Had the Chief Engineer, Walton Scott Hale, insured that the

Ship Safety Repair Checklist accurately described the condition

of the sea chest, in that only a 3’’ suction line was operating in

the starboard sea chest, the casualty would have been averted.

3la

Appendix E

4. Contributing to the casualty was the failure of the dive

supervisor to ascertain the exact condition of all sea chest suctions

prior to having his divers enter the starboard sea chest.

5. Also contributing to the casualty was the Chief Engineer’s failure

to instruct the night engineer on watch that divers would be inside

the starboard sea chest.

6. There is evidence of negligence on the part of the SS ARCO

ALASKA’s Chief Engineer, Walton Scott Hale, License No. 479

948.

7. With the exception of the above, there is no evidence of

actionable misconduct inattention to duty, negligence or willful

violation of laws or regulations on the part of licensed or

certificated personnel.

RECOMMENDATIONS

1. It is recommended that further investigation under the

suspension and revocation proceedings be initiated in the case

of Walton S. Hale, Chief Engineer of the Ss ARCO ALASKA,

concerning his part in this casualty.

2. It is recommended that a copy of this report be furnished to

all commercial diving companies that may normally enter vessel’s

sea chests.

3. It is recommended that the diving personnel and ship engineers

representative be in constant communications by radio.

4. Just prior to any dive under a vessel, it is recommended that

a meeting of divers and ships personnel be conducted to ascertain

32a

Appendix E

exact conditions the divers will encounter.

5. It is recommended that the casualty aspect of this matter be

closed with the submission of this report.

s/ G.S. Johnson

G.S. Johnson

Encl:

(1) CG - 924E, SS ARCO ALASKA

(2) Diagram of SS ARCO ALASKA sea chest frame 85-93;

* starboard side

(3) SS ARCO ALASKA engineroom log for 26 December 1981.

(4) Copy of Ship repairs checklist of Ocean Masters

International, Inc. :

(5) Death Certificate of Matthew K. MARMION

(6) Autopsy report of Death of Matthew K. MARMION

(7) Photographs of Kirby KMB-10 surface air mask used by,

Matthew K. MARMION on 26 December 1981.

FIRST ENDORSEMENT ON I0, MSO (LA-LB) RPT

16732/C-81-217

From: Commanding Officer, CG Marine Safety Office

(LA-LB)

To: Commandant (G-MMI-I)

Subj: SS ARCO ALASKA O/N 614 544; death of

MARMION, Matthew K. on 29 December 1981 in

the Pacific Ocean at Long Beach Harbor, San Pedro

Bay, California while diving in the starboard

sea chest

33a

Appendix E

1. Forwarded, approved.

2. There is evidence of negligence on the part of Walton S. HALE,

chief engineer aboard the SS ARCO ALASKA.

3. Further investigation under the Suspension and Revocation

Proceedings has been initiated in the case of Walton S. HALE

concerning his part in the casualty.

s/ J. H. Guest

J.H. GUEST

34a

APPENDIX F—EXCERPT OF TRANSCRIPT OF

PROCEEDINGS BEFORE HONORABLE JAMES M. IDEMAN

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE JAMES M. IDEMAN, JUDGE PRESIDING

NO. CV 83-2602-JMJ

VOLUME A

GLORIA LEE WEISS MARMION KILKENNY,

PLAINTIFF,

VS.

ATLANTIC RICHFIELD, ET AL.,

DEFENDANTS.

REPORTER’S TRANSCRIPT OF PROCEEDINGS

LOS ANGELES, CALIFORNIA

MONDAY, FEBRUARY 11, 1985

RUANNE MC ARTHUR, CSR 2699

OFFICIAL COURT REPORTER

442 UNITED STATES COURTHOUSE

312 NORTH SPRING STREET

* LOS ANGELES, CALIFORNIA 90012

(213) 687-3551

[Commencing at page A-7]

...parent corporation to be liable for the

35a

Appendix F

subsidiary’s act, the parent company’s control has

to amount to total domination over the subsidiary.

MR. LOCKARD: Well, Your Honor, it’s a

secondary argument that we can pierce the

corporate veil. The first argument is that we belong

in here because Arco is the proper defendant.

For example, the check—an Atlantic Richfield

check was used to pay for, what was it, Ocean

Master’s International.

Arco indicated to us that they were the proper

parties with whom to discuss settlement.

At the hearing before the Administrative Law

Judge there was testimony that the persons who

were responsible for the negligent acts, Mr.

Weaver, Mr. Hale were e:nployees of Atlantic

Richfield, not even Arco ‘Marine.

So that we don’t need Arco Marine in order

to proceed in this matter. It would be nice if they

were here, but Atlantic Richfield is a proper

defendant in this hearing.

There has been no blowing of any statute of

limitations. They are here. They have always been

here since approximately November of 1982 when

the matter was filed; and I believe that any idea

that somehow we have...

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.