United States Court of Appeals
For the Seventh Circuit
Alter Barge Line, Inc.,
Consolidated Grain & Barge Co., et al.,
Appeal of: Randy W. Pherigo,
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00-CV-0048-DRH--David R. Herndon, Judge.
Argued March 6, 2001--Decided November 8,
Before Fairchild, Cudahy, and Ripple,
Per Curiam. After suffering severe
injuries when the equipment he was using
to unload one of Alter Barge Line, Inc.'s
barges malfunctioned, Randy Pherigo filed
a personal injury suit against Alter and
other defendants. Alter invoked its
statutory right to limit its liability to
the value of the barge and its cargo
($45,350) in a separate proceeding under
the Vessel Owner's Limitation of
Liability Act, 46 U.S.C. app. sec.sec.
181-96, and Rule F of the Supplemental
Rules Governing Certain Admiralty and
Maritime Claims. Pherigo missed the
deadline the district court set for
filing claims in the limitation
proceeding, and the district court denied
him permission to file late. Pherigo
Pherigo was the only person injured
the December 1997 incident. Alter sought
limitation, and on February 4, 2000, the
district court issued an order staying
all suits against Alter and directing
that any claims against Alter arising out
of the incident be filed in the
limitation proceeding by March 17, 2000.
Pherigo missed the court-imposed
deadline, and Alter moved to default all
unfiled claims on May 26. Pherigo
responded with a motion for leave to file
a late claim on June 9. Although the
district court had discretion to grant
Pherigo's motion and allow his claim
under Rule F(4), it entered an order
defaulting all unfiled claims on June 14,
making no mention of Pherigo's
pendingmotion. Pherigo promptly moved to
set aside the default order and for a
ruling on his motion. The district court
denied both motions, concluding that
Pherigo had not shown "good cause" for
We note first that late claimants in
admiralty proceedings need not show "good
cause." See In re M.V. President Kennedy,
Ltd., No. 98 Civ. 8126 CSH, 2000 WL
351425, at *2 (S.D.N.Y. Apr. 5, 2000).
See also In re Flinchum, 303 F. Supp.
971, 972 (D. Md. 1969) (no "good excuse"
shown). Our review of the cases,
particularly those permitting late
filings where the delay is due solely to
the negligence of the claimant or his
attorney, see, e.g., In re M.V. President
Kennedy, Ltd., 2000 WL 351425, at *3
(claimant delayed in retaining counsel);
In re Vermillion Towing Corp., 227 F.
Supp. 933, 934 (E.D. Va. 1964) (attorney
unfamiliar with admiralty law); Heier v.
Panama Transp. Co. (In re United States),
172 F.2d 355 (2d Cir. 1949) (foreign
claimants "uninformed" about U.S. law),
convinces us that the "cause" required in
this context is minimal; an explanation
rather than a justification for the delay
will suffice. The explanation Pherigo
provides--attorney error--meets the
minimal cause requirement.
When a claimant shows cause, courts
"freely grant[ ]" permission to file late
claims so long as the limitation
proceeding is ongoing and the late claim
will not prejudice other parties. See
Amer. Comm. Lines, Inc. v. United States,
746 F.2d 1351, 1353 (8th Cir. 1984). Both
considerations favor Pherigo here.
Accordingly, we conclude that the
equitable nature of admiralty
proceedings, in which parties are given
every opportunity to place their entire
case before the court and to correct
errors at any stage of the proceedings,
see Deupree v. Levinson, 186 F.2d 297,
303 (6th Cir. 1950), requires that
Pherigo be permitted to file his claim.
We elect not to characterize the district
court's contrary determination as an
abuse of discretion, but are cognizant of
the equitable powers of admiralty courts,
even at the appellate level, to shape
admiralty proceedings so as to achieve
substantial justice. See Texas Gulf
Sulphur Co. v. Blue Stack Towing Co., 313
F.2d 359 (5th Cir. 1963) (acknowledging
that district court's decision to deny
late claimant permission to file claim in
limitation nunc pro tunc was not abuse of
discretion, but sua sponte modifying
district court's order to permit filing
of late claim subordinate to timely
claims). Finally, we note that the only
court to have considered a similar case--
in which a sole claimant suffered a
severe, on-the-job injury but missed the
deadline for filing a claim in the
limitation proceeding--concluded, as we
do, that the late claim must be allowed.
See In re Two "R" Drilling Co., Civ. A.
No. 90-4184, 1991 WL 195513 (E.D. La.
Sept. 24, 1991) (permitting injured
employee to file three months late
without discussing cause requirement,
noting only that given the facts of the
case there was "no reason" why late claim
should not be allowed). We limit our
holding to the facts of this case.
The district court's order of June
2000 closing the limitation proceeding
and defaulting all unfiled claims is
VACATED and the case REMANDED with
directions that the district court allow
Pherigo to file his claim.