author: PER CURIAM. EDWARDS, Circuit Judge

text:
    John PATMON, Plaintiff-Appellant, v. VAN DORN COMPANY, PLASTIC MACHINERY DIVISION, a corporation, et al., Defendants-Appellees.
    No. 78-2021.
    United States Court of Appeals, Sixth Circuit.
    Argued April 15, 1974.
    Decided May 31, 1974.

      Michael I. Greenwald, Cleveland, Ohio, for plaintiff-appellant, John Patmon; N. D. Rollins, Rollins & Mosesson, Cleveland, Ohio, on brief.
    Robert L. Larson, Joseph S. Ruggie, Jr., Thompson, Hiñe & Flory, Cleveland, Ohio, on brief, for Van Dorn Co.
    Robert M. Phillips, Cleveland, Ohio, on brief, for Local 346 UAW and UAW International.
    Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
   PER CURIAM.

Appellant Patmon filed suit in the District Court for damages and equitable relief against his employer, Van Dorn Company (Van Dorn), Local 346 UAW and the International Union, alleging that Van Dorn discriminated against appellant on account of his race (Negro) by refusing to promote him to the job of maintenance electrician, in violation of 42 U.S.C. §§ 1981, 1985 and 2000e, and alleging that the Unions failed and neglected to fairly represent him in prosecuting a grievance against his employer and conspired with his employer to deny his promotion.

Van Dorn and the unions filed motions for summary judgment and in support thereof submitted answers to interrogatories, affidavits, the deposition of Patmon, and exhibits attached thereto. The District Court, in a memorandum opinion and order, found that there was no genuine issue of fact on the proposition that Patmon did not possess the requisite qualifications for the position he was seeking, and granted the motions for summary judgment. Patmon appealed. We affirm.

Patmon was employed by Van Dorn as a pipe fitter in 1965 at $2.71 per hour. His compensation increased each year thereafter, and on September 13, 1972 he was earning $4.68 per hour.

Pursuant to the provisions of a collective bargaining agreement entered into between Van Dorn and Local 346, employees were permitted to bid on openings occurring in other jobs. Patmon did bid at different times for the job of maintenance electrician, but his bids were rejected by his employer on the ground that he did not possess the requisite qualifications for the job. The qualifications for the job of maintenance electrician were described by Van Dorn’s Personnel Director in his affidavit, as follows:

For an employee to be awarded a job as maintenance electrician, he must demonstrate his ability to perform the work by prior experience as a maintenance electrician, either at Van Dorn or with a prior employer; or by providing certification of educational training as a maintenace electrician.

The Personnel Director further stated that without such knowledge “an employee would be unable to perform the work, or would perform it in a manner which would result in extreme danger of personal injury or death to the employee performing the work, fellow employees, or other persons.”

Before his employment by Van Dorn Patmon had a number of odd jobs, including part time work in wiring houses. He did not possess a license to perform such work nor did he have a maintenance electrician’s license from a municipality. At no time did he demonstrate his ability to perform the job by prior experience as a maintenance electrician either at Van Dorn or with any other employer, nor did he furnish a certificate of educational training as a maintenance electrician.

Patmon did file an affidavit in which he stated that it is his opinion that he is a qualified electrician despite the fact that he was employed as a fitter by Van Dorn. He admitted that he holds no electrical contractor’s license. Although Patmon was afforded ample opportunity by his employer to establish his fitness for the position, he failed to do so.

Patmon and a white employee filed grievances against the company, which grievances were processed by the local union up to the arbitration stage, when the union worked out a procedure with the employer whereby both employees could take a written test, conducted by an independent electrical contractor, to establish their qualification for the position of maintenance electrician. This electrical contractor was also an electrical instructor for the Parma Adult Education Program. The white employee took the test and failed. Patmon, however, declined to take the test, stating that prior to his refusal—

[H]e was denied the opportunity to make photocopies of the test and his answer sheet; and that he refused the test for fear that the test would not be an unbiased and fairly administered test.

Had Patmon taken the test the Court would have had opportunity to pass upon any question whether the test was biased or unfairly administered. He made no showing that the questions in the test taken by the white employee were biased, or that the test was unfairly conducted. But of more importance is the fact that any issue of Patmon’s fitness for the position could have been determined if he had taken the test.

It is clear from uncontroverted evidence that Patmon was not promoted to the job of maintenance electrician because he did not possess the requisite qualifications. He had no experience in that field.

In enacting Title VII of the Civil Rights Act of 1964 Congress never intended to guarantee a job to every person irrespective of his qualifications. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

Section 703(h) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 sanctions fairly conducted tests.

Rule 56 of the Federal Rules of Civil Procedure provides in relevant part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Patmon failed to meet the evidence offered against him by failing to set forth specific facts showing that there is a genuine issue for trial. The conelusory allegations in his amended complaint and in his affidavit are insufficient to rebut the evidence offered by the defendants.

The claim against the unions is frivolous. There was not one iota of evidence to prove conspiracy, either against Patmon or against a class of persons. O’Neill v. Grayson County War Memorial Hosp., 472 F.2d 1140 (6th Cir. 1973).

There was no proof of bad faith on the part of the unions, which proof is necessary in order to establish a breach of their duty to represent fairly their members. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).

We have held that an action will not lie against a union for failure to process a grievance absent a showing of fraud, misrepresentation, bad faith, dishonesty of purpose, or such gross mistake or inaction as to imply bad faith. Dill v. Greyhound Corp., 435 F.2d 231 (6th Cir. 1970); Balowski v. International Union, U.A.W., 372 F.2d 829 (6th Cir. 1967). No such showing was made by Patmon.

In the present case the union did process Patmon’s grievance and worked out a procedure whereby Patmon and another employee were afforded opportunity to establish their qualifications for the job, but Patmon declined to take the test.

Affirmed.

EDWARDS, Circuit Judge

(dissenting).

Respectfully I submit that this case should not have been disposed of on defendants’ motions for summary judgment.

This record shows that appellant stated in affidavit form:

“Affiant says that he has been told by members of defendant union, U.A. W. Local 346, as well as by its officers, that affiant’s attempts at a promotion to Class A or Class B Electrician would be futile because affiant is a member of the Negro race, and neither said union nor defendant, Van Dorn Company, wants to employ a Negro at this or any other skilled trade.”

It also shows that no Negro was employed as an Electrician “B” at defendant company:

Interrogatory 8. The name, address, and badge number of each and every person of the Negro race who held one of the job classifications named in Interrogatory 6 above [‘Electrician Leader-Maintenance,’ ‘Electrician “A”-Maintenance,’ ‘Electrician “B”-Maintenance’], the name of said job and the inclusive dates of same.
“Answer: None.”

It also shows that no one had been asked to take a written examination for promotion to the electrician’s classification prior to appellant’s disputed application.

While these facts do not establish appellant’s entitlement to the job he seeks, they are sufficient for the purpose of deciding that his suit should not be dismissed on motion prior to trial.

I would reverse for hearing.

      . In the District Court Patmon claimed violations of §§ 1981, 1985 and-2000e of 42 U.S.C. In this Court he now relies only on § 1981. He did not file any claim with EEOC, nor did he pursue his administrative remedies provided by the union’s constitution as a condition precedent to this action. We are deciding this case on its merits, irrespective of Patmon’s failure to pursue such remedies.


source: Caselaw Access Project

author: BARRETT, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael J. WILLIAMS, Defendant-Appellant.
    No. 74-1029.
    United States Court of Appeals, Tenth Circuit.
    June 21, 1974.

      C. Nelson Day, U. S. Atty., and James M. Dunn, Asst. U. S. Atty., Salt Lake City, Utah, for appellee.
    William D. Marsh, Ogden, Utah, for appellant.
    Before HILL, BARRETT and DOYLE, Circuit Judges.
   BARRETT, Circuit Judge.

Michael J. Williams appeals from a jury conviction and sentence resulting from trial held in Ogden, Utah, on November 7th and 8th, 1973. Williams had been charged with the violation of 18 U.S.C.A. § 2314, to-wit: Interstate transportation of a forged and falsely made security.

Williams was charged as follows: That on or about February 21, 1973, at Ogden, Utah, he did, with unlawful and fraudulent intent, transport from Ogden to Los Angeles, California, a forged and falsely made security, to-wit, a Travelers Express Money Order No. 2058839145, payable to him in amount of $190.00, signed Betty A. Williams, dated February 21, 1973, and endorsed by appellant Williams knowing the same to have been forged and falsely made.

Appellant urges the following grounds for reversal of his jury conviction and sentence: (1) that he was deprived of a fair trial when the trial court ordered that trial proceed, notwithstanding that appellant appeared before the jury in soiled jail attire, which deprived him of his fundamental right to a presumption of innocence; and (2) that the trial court erred by failing to adequately define the elements of the crime charged.

I.

Following his arrest, Williams was incarcerated in a Salt Lake City jail. He was driven from Salt Lake City to Ogden on the morning of trial by Deputy Marshal Alcorn. After the jury was impaneled, counsel for appellant approached the bench where he lodged an objection about the fact that Williams was “brought” into the courtroom in prison attire. The Court, out of con cern, made detailed inquiries concerning the situation. Appellant’s attorney, after conferring with Williams reported to the Court that Williams did have a “civilian” pair of pants and shirt in the Salt Lake jail; that he was asked whether he wanted to change into them before driving to Ogden for the trial; that Williams did not think they were “any better than the ones” he had on in court; that he did not have “anything else to wear.” Deputy Marshal Alcorn stated that Williams was asked in Salt Lake before leaving for trial in Ogden if he wanted to change to his street clothes rather than his jail clothes; that Williams had responded that it would be to his advantage to be in jail clothes; and that Williams did not say anything to the Deputy Marshal about the condition of his street clothes.

With respect to Williams’ attire in court, the Trial Judge observed that the white T-shirt he was wearing appeared to be dirty. The Court then observed that while Williams had already made the decision to wear jail attire rather than street clothes, that even so during the noon recess the Deputy Marshal was to obtain clean jail attire for Williams. When trial was resumed after lunch, Williams was dressed in new, clean slacks and a shirt which had been purchased for him by the Deputy Marshal. Counsel for Williams moved for mistrial on the grounds that appellant had been prejudiced in the eyes of the jury by reason of being displayed to them earlier wearing the soiled jail clothing. In denying the motion, the Court stated and concluded:

The Court is of the opinion the question of attire has been properly handled. The Court had the marshal speak on the record before counsel, apart from the jury, about what he did; and it seems to me the marshal was solicitous of this problem and did present the defendant with an opportunity that he made a decision which the marshal relied on, and as, Mr. Marsh, you have acknowledged, that might have been assisted in by you had you had opportunity or thought of it earlier.
I think we have acted reasonably since that time in an effort to alleviate any prejudice.
It’s the Court’s judgment, however, that there has not been any substantial prejudice by reason of appearance for this much of the trial in the T-shirt and levi’s. While they did in the Court’s mind justify the action taken in attempting to improve his appearance, they were not so bedraggled in appearance nor dirty or unseemly as to accomplish any necessary prejudice, as it seems to the Court.
So the Court will conclude, as well, that the opening statement was not error. And the motions are denied. (Tr., Vol. I, p. 13).

In support of his contention that his appearance in court before the jury in soiled jail clothing infringed upon his fundamental right to a presumption of innocence as secured by the Fourteenth Amendment, appellant relies principally upon Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971), cert. denied 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (1971) and Brooks v. State of Texas, 381 F.2d 619 (5th Cir. 1967). The holding in Hernandez v. Beto, supra, is that trial of a criminally accused while attired in prison clothing does infringe the fundamental right to the presumption of innocence. We expressly rejected this per se rule in Watt v. Page, 452 F.2d 1174 (10th Cir. 1972), cert. denied 405 U.S. 1070, 92 S.Ct. 1520, 31 L.Ed.2d 803 (1972):

As to Hernandez v. Beto, we must say that we do not agree with the Fifth Circuit to the extent that an appearance in “jail clothing,” if established, leads to any automatic result if its opinion so infers.
452 F.2d at 1175.

In Anderson v. Watt, 475 F.2d 881 (10th Cir. 1973), we re-affirmed the rule we adopted in Watt v. Page, supra, i. e., that the nature of the clothing worn by a defendant at his trial is not inherently prejudicial to his right to a fair and impartial trial. In Anderson, we affirmed the trial court’s finding that the accused was, beyond a reasonable doubt, in accordance with the standard prescribed under Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), denied a fair trial by reason of his appearance in jail coveralls with the words “Oklahoma County Jail 44” stenciled in large letters across the back specifically because the District Court found that there was no deliberate desire on the part of the petitioner to be tried in his fail clothes for the purpose of sympathy or any other purpose in his behalf. (Emphasis ours). We also found that Anderson was prejudiced during trial when the prosecution referred to him as “the man in coveralls” and when the prosecutor, in closing arguments, made reference to Anderson and “his kind.”

We hold that the Trial Court did not err in denying the appellant’s motion for mistrial following his initial appearance in soiled jail clothing. In direct contrast to the circumstances in Anderson v. Watt, supra, here it is uncontroverted that Williams chose to wear the jail clothing in lieu of his street clothes. Even though his street clothing, consisting of a suit coat and pants, were not the “best” appearing attire, the trial judge found that they were suitable for court appearance. Accordingly, the Court concluded that “ . . . his choice to appear in jail attire was a choice not of the best between the two, but a choice for other reasons.” (Tr. vol. I, p. 158). We agree. Appellant’s choice was knowing, voluntary, deliberate and uncoerced. This choice fits squarely within these observations made in Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943):

We cannot permit an accused to elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist on appeal that the course which he rejected at the trial be re-opened to him. However unwise the first choice may have been, the range of waiver is wide. Since the protection which could have been obtained was plainly waived, the accused cannot now be heard to charge the court with depriving him of a fair trial.
318 U.S. at 201.

The trial court’s position in the case at bar is bolstered by the language of the Court in the case of Hernandez v. Beto, supra, so heavily relied upon by the appellant here, where that Court held, upon rehearing, that “A defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.” 443 F.2d at 637.

II.

Appellant alleges that the Trial Court erred by failing to adequately define the elements of the crime charged. We disagree.

Williams was charged with interstate transportation of a “forged and falsely made security.” After reviewing the Court’s proposed instructions, appellant requested a specific instruction defining the word “forged” and “made in the likeness of something else; in imitation of something else, done with the view to defraud by passing the false copy for a genuine or original. As used in the criminal statutes, the words ‘forged’ and ‘falsely made’ are homogeneous, partaking of each other. That is, they are to be construed as synonymous terms.” (R., Vol. II, p. 18). This instruction, it is agreed, is basically the common law definition of the word “forged.”

The Government objected to the tendered instruction on the ground that our Court has not applied the common law definition of “forged” to the words “falsely made, forged” as contained and used in 18 U.S.C.A. § 2314, supra. In lieu of the requested instruction, the Court did orally instruct the jury:

As used in these instructions and in the criminal statutes — statute giving rise to the charge — the word, “falsely made” means made to resemble that which is genuine, but not being genuine. False. “Forged” means made to simulate that which is genuine, constructed to represent that which is true and genuine, but not being such.
These terms under the law that applies in this case are construed as homogeneous, partaking of each other. They are synonymous terms describing the spurious or fictitious making of an instrument.
(Tr., Vol. I, p. 145).

The Court did give the following written instruction:

As used in criminal statutes, the words “falsely made” and “forged” are homogeneous, partaking of each other. That is, they are to be construed as synonymous — terms describing the spurious or fictitious making of an instrument.
(Tr., Vol. II, p. 10).

Appellant’s argument that- the trial court erred in not giving the proffered instruction setting forth that which the appellant refers to as the commonly accepted definition of “forged” is apparently predicated on the proposition that since the blank money order was genuine, the appellant’s subsequent spurious, fictitious and unauthorized execution of it did not constitute forgery or false making. This argument is without merit. There is substantial evidence in the record that Williams did not have authority to possess the money order; that he was not authorized to sign his name as payee, that the purported drawer had no authority to sign the money order; that the amount of money showing thereon had been placed there by means of a stolen check protector; and that the execution and/or making of the money order was spurious and fictitious.

In Boyd v. United States, 442 F.2d 1283 (10th Cir. 1971), the appellant was charged with violation of the same statute Williams was charged with here, i. e., 18 U.S.C.A. § 2314. We held that appellant Boyd, by falsely representing himself to the bank officer as Melvin Pulley (the fictitious payee), using the borrowed driver’s permit of Pulley as identification, authorized the jury to conclude that Boyd knew the money order was falsely made when he took it to the bank to be cashed. In that opinion, we favorably quoted United States v. Smith, 426 F.2d 275 (6th Cir. 1970), cert. denied 400 U.S. 868, 91 S.Ct. 110, 27 L.Ed.2d 107 (1970):

Accordingly, the important inquiry . is whether the completion of the blank money orders constituted a false representation or a false execution. We hold that it constituted a false execution. The money orders were not, at the time of the thefts, evidence of an obligation on the part of the issuing company. It was- necessary to insert the agent’s symbol, an amount, a sender’s name, and the name of the payee in order to create an obligation . . .. Here, the insertion of the necessary information on the blank money orders constituted a false making within the meaning of the statute.
426 F.2d at 276.

And in Marteney v. United States, 216 F.2d 760 (10th Cir. 1954), involving an appeal from sentence on pleas of guilty to separate counts charging violations of 18 U.S.C.A. § 2314, we held:

As used in criminal statutes, the words “falsely made” and “forged” are homogeneous, partaking of each other. They have always been synonymously construed to describe a spurious or fictitious making as distinguished from a false or fraudulent statement. The words relate to genuineness of execution and not falsity of content.
216 F.2d at 763.

See also United States v. Tasher, 453 F.2d 244 (10th Cir. 1972).

Affirmed.


author: CRAVEN, Circuit Judge:

text:
    David WEINBERGER, on his own behalf and on behalf of all others similarly situated, Appellant, v. RETAIL CREDIT COMPANY, Appellee.
    No. 73-2518.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1974.
    Decided May 29, 1974.
    See also D.C., 345 F.Supp. 165.

      H. Laddie Montague, Jr., Philadelphia, Pa. (David Berger, Joel C. Meredith, Steven J. Greenfogel, Philadelphia, Pa. and Thomas D. Broadwater, Columbia, S. C., on brief), for appellant.
    Walter R. Milbourne, Philadelphia, Pa. (Douglas McKay, Jr., Columbia, S. C., and Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa. and Robert W. Biccum, Atlanta, Ga., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.
   CRAVEN, Circuit Judge:

In December 1971, 14 years after the events of which he complained, appellant David Weinberger filed a two-count complaint in the United States District Court for the Eastern District of Pennsylvania. In Count I it was alleged that Retail Credit Company and International Business Machines Corporation had conspired with each other “to interfere with [Weinberger’s] potential business and employment relationship” with IBM by the use of a preemployment investigative report. This report, Weinberger contended, contained substantial misinformation which was the sole reason he was denied employment with IBM. The second count alleged that Retail Credit (RCC) had violated section 2 of the Sherman Act, 15 U.S.C. § 2, by monopolization of, or an attempt to monopolize, the national credit reporting market. Weinberger sought treble damages under section 4 of the Clayton Act, 15 U.S.C. § 15, for himself and injunctive relief under section 16, 15 U.S.C. § 26, on behalf of himself and a similar class of persons.

In response IBM filed a motion to dismiss Count I based on the applicable statutes of limitations, and RCC sought a change of venue and summary judgment as to both counts. Weinberger then attempted to amend his complaint so as to drop Count I. In June 1972 the case was transferred to the United States District Court for the District of South Carolina, and IBM, by stipulation with the appellant, was dismissed as a party defendant. The two remaining parties renewed their motions before that court.

Preliminarily, Judge Hemphill denied summary judgment and gave Weinberg-er leave to amend, but he withdrew that order two days later (February 17, 1973). On October 25, 1973, he denied Weinberger leave to amend and granted summary judgment for RCC on both counts. Interpreting appellant’s Count I allegations as stating, alternatively, claims for invasion of privacy, malicious interference with contractual relations and conspiracy, he found that the applicable statutes of limitations under South Carolina law had run as to each theory. Additionally, the decision was rested on the independent grounds of conditional privilege, see Cullum v. Dun & Bradstreet, Inc., 228 S.C. 384, 90 S.E.2d 370 (1955), and failure to state a claim upon which relief could be granted under Fed.R.Civ.P. 12(b)(6). The district judge also found that summary judgment was proper upon Count II due to Weinberger’s lack of standing under sections 4 and 16 of the Clayton Act. We affirm the decision as to Count I on the first ground advanced by the district court. As to Count II, we hold that the complaint did not allege a sufficient basis for a finding of fraudulent concealment and that the claim for relief under sections 4 and 16 of the Clayton Act are consequently barred by section 4B, 15 U.S.C. § 15b.

I.

Unrebutted affidavits submitted by RCC tend to establish that Weinberger knew RCC had prepared an investigative report concerning him, that a copy was furnished to IBM, and that IBM used that report in evaluating Weinberger for employment. Further, they demonstrate, through Weinberger’s letter to RCC and IBM personnel, that he obtained a copy of the report and was successful (though not completely to his satisfaction) in convincing RCC that the report was inaccurate and that a new report should be prepared. Finally, it seems beyond peradventure that Weinberger had direct knowledge of RCC’s requirement of confidentiality of the reports, since he had to sign a “release” in order to obtain a disclosure of the contents of the report. Denied employment in August 1957, Weinberger had full knowledge by September of the next year of the contents of the report which allegedly was the sole reason for his failure to be hired. Yet no complaint was filed until December 1971. Any conceivable basis of recovery under South Carolina law is barred by the several statutes of limitations. Appellant’s recitation of the litany of fraudulent concealment, in light of the knowledge which he possessed in 1958, is unavailing. “The mere fact that the report was intended for private use does not constitute fraudulent concealment.” Atwell v. Retail Credit Co., 431 F.2d 1008, 1010 (4th Cir. 1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1251, 28 L.Ed.2d 544 (1971); Peacock v. Retail Credit Co., 429 F.2d 31 (5th Cir. 1970), cert. denied, 401 U.S. 938, 91 S.Ct. 927, 28 L.Ed.2d 217 (1971). The district court did not abuse its discretion in declining to allow amendment to the complaint so as to delete Count I and likewise properly granted summary judgment based upon the statutes of limitations.

II.

In its answer to Weinberger’s complaint, RCC asserted that Count II (as well as Count I) was barred by the statute of limitations. Section 4B of the Clayton Act, 15 U.S.C. § 15b. Over 14 years having elapsed between Weinberg-er’s attempt to gain employment with IBM and the commencement of this action, the complaint sought to anticipate RCC’s affirmative defense that the action was barred by alleging fraudulent concealment. Paragraph 37 of Count II stated:

Plaintiff had no knowledge of the monopolization or attempt to monopolize by defendant, or of the facts which might have led to the discovery thereof until recently. Plaintiff could not have discovered the antitrust violations alleged herein at an earlier date by the exercise of due diligence because of deceptive practices and techniques of secrecy employed by defendant to avoid detection and to fraudulently conceal its activities attempting to monopolize the investigative reporting field.

In light of affidavits submitted by RCC and unrefuted by Weinberger, we find this allegation insufficient.

It is now rather firmly established that the federal doctrine of fraudulent concealment — that the relevant statute of limitations does not commence running until the fraud “is discovered by, or becomes known to, the party suing,” Bailey v. Glover, 88 U.S. 342, 349-350, 21 Wall. 342, 22 L.Ed. 636 (1874) — applies in order to toll section 4B of the Clayton Act. See, e. g., Atlantic City Electric Co. v. General Electric Co., 207 F.Supp. 613, aff’d, 312 F.2d 236 (2d Cir. 1962), cert. denied, 373 U.S. 909, 83 S.Ct. 1298, 10 L.Ed.2d 411 (1963); General Electric Co. v. City of San Antonio, 334 F.2d 480 (5th Cir. 1964). But merely intoning the word “fraudulently” in a complaint is not sufficient to raise the defense. In the first case to apply the doctrine in the context of the Clayton Act, Judge Friendly, in refusing leave to amend an insufficient plea of fraudulent concealment, reasoned :

Even under modern liberal rules of pleading “justice” still requires that a plaintiff seeking to escape the statute in such a case shall make “distinct averments as to the time when the fraud, mistake, concealment or misrepresentation was discovered, and what the discovery is, so that the court may clearly see, whether by the exercise of ordinary diligence, the discovery might not have been before made.” Stearns v. Page, 1849, 7 How. 819, 829, 12 L.Ed. 928.

Moviecolor Limited v. Eastman Kodak Co., 288 F.2d 80, 88 (2d Cir.), cert. denied, 368 U.S. 821, 82 S.Ct. 39, 7 L.Ed. 2d 26 (1961). Thus three elements are necessary: (1) Fraudulent concealment by the party raising the statute together with (2) the other party’s failure to discover the facts which are the basis of his cause of action despite (3) the exercise of due diligence on his part.

We interpret Weinberger’s statement that RCC’s concealment was not discovered until “recently” as relating back to his fraudulent concealment allegation under Count I. There discovery was said to occur at the time of hearings before the House of Representatives’ Subcommittee on Invasion of Privacy in May 1968. What it is that Weinberger discovered is said to be RCC’s “anti-trust violations,” a reference, as we construe it, to the acts of monopolization or attempted monopolization set out earlier in the complaint. Reference to these acts, in light of Weinberger’s knowledge as shown by appellee’s affidavits, leaves almost nothing for Weinberger to have discovered in 1968. He knew, assuming the truth of his statement about RCC’s conduct with respect to him and the inaccuracy of its report issued about him, that (1) RCC invaded the privacy of persons on whom it drew reports, (2) RCC carried on investigatory activity which deceived the business community and the public, (3) RCC published reports about individuals without full knowledge and that at least one report was false, misleading and defamatory, (4). RCC had a practice of keeping those reports “strictly confidential,” and (5) RCC refused to make its reports available to subjects of the reports unless a release was signed. In short, while RCC may have concealed its alleged monopolistic position from numerous persons during this period, its “deceptive practices and techniques of secrecy” effectively concealed very little from Weinberger. He knew he had been injured, who was responsible, how the injury occurred, and the methods utilized to prevent him from discovering the injury. And yet he chose to institute no legal proceedings until 14 years later. Without regard to Weinberger’s standing to sue under sections 4 and 16 of the Clayton Act, the district judge should have found his claim barred by section 4B. See Moviecolor Limited v. Eastman Kodak Co., 288 F.2d 80, 87-88 (2d Cir.), cert. denied, 368 U.S. 821, 82 S.Ct. 39, 7 L.Ed.2d 26 (1961). Furthermore, being barred from suit himself, Weinberger is not a member of the class he seeks to represent under section 16 and thus does not fulfill the first prerequisite of Fed.R.Civ.P. 23(a).

Because both counts are barred by the pertinent statutes of limitation, the judgment for defendant will be

Affirmed.

      . In a letter to W. C. Stiefel, IBM’s branch manager in Columbia, South Carolina, (who interviewed Weinberger for possible employment) Weinberger wrote: “At hand I have a copy of a ‘confidential credit report’ drawn on myself by a firm in Charleston, South Carolina, which I have sought to obtain for some time.” He went on to list the inaccuracies in the report. Letter to W. C. Stiefel, June 28, 1958, Exhibit B of Stiefel affidavit.

      . Weinberger wrote Stiefel on September 2, 1958:
      Through the procedure of releasing the Retail Credit Company from all legal liability, I have had a copy of the report which they drew on me and submitted to IBM in mid-1957 (as it related to my application for reemployment at the time) presented to me for review.
      Exhibit C of Stiefel affidavit.

      . Invasion of privacy, malicious interference with contractual relations, and conspiracy each have six-year limitation periods. Code of Laws of South Carolina § 10-143 (1962). Libel carries a two-year limitation. Code of Laws of South Carolina § 10-145 (1962).

      . While we are certainly aware that Fed.R. Civ.P. 15(a) requires that leave to amend shall be “freely given when justice so requires,” Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), we also recognize that the function of Rule 15(a) is generally “to enable a party to assert matters that were overlooked or were unknown to him at the time he interposed his original complaint 'or answer.” C. Wright and A. Miller, 6 Federal Practice and Procedure: Civil § 1473, at 375 (1969). A responsive pleading having been filed, appellant cannot amend “as a matter of course.” Appellant here does not seek leave to amend in order to correct an insufficiently stated claim but rather, as the district judge recognized, “to drop Count I of the original complaint without prejudice.” (Emphasis added). While it is true that allowing the amendment would have narrowed and perhaps clarified the issues before the court, it is also true that prejudice would result to appellee if the motion were allowed. Dismissal without prejudice — the actual effect of such an amendment — would have left him free to assert such claims again, putting RCC to the expense of relitigation. Though we do not impugn Weinberger’s motive in seeking to amend, we believe the district judge properly exercised his discretion in denying the motion because of “undue prejudice to the opposing party . . . .” Foman, supra, 371 U.S. at 182.

      . Section 4B determines, in part, that:
      Any action to enforce any cause of action under sections 15 or 15a of this title shall be forever barred unless commenced within four years after the cause of action accrued.


author: OAKES, Circuit Judge:

text:
    The NORTHWESTERN MUTUAL LIFE INSURANCE CO., Plaintiff, v. Harry Oliver LINARD, an Underwriter at Lloyd’s, et al., DefendantsAppellees, and Vainqueur Corporation, Defendant-Appellant and Cross-Claimant.
    No. 614, Docket 73-2085.
    United States Court of Appeals, Second Circuit.
    Argued March 6, 1974.
    Decided June 6, 1974.

      Richard Gyory, New York City (Robert R. Kreis, Levin, Kreis, Ruskin & Gyory, New York City, of counsel), for defendant-appellant and cross claimant.
    William G. Symmers, New York City (Symmers, Fish & Warner, New York City, of counsel), for defendants-appellees.
    Before MOORE, MANSFIELD and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

Vainqueur Corporation, the shipowner, appeals from the dismissal of its cause of action on three Time Hull policies of marine insurance, against the underwriters. The suit was commenced by a mortgagee, Northwestern Mutual Life Insurance Co. (“Northwestern”), and the shipowner cross-claimed against the underwriters; before the case was tried a settlement was agreed upon between Northwestern and the underwriters so that the trial related only to the shipowner’s cross claim.

The insurance was on the vessel “Vainqueur,” which sank following an explosion on March 14-15, 1969. The underwriters, appellees here, claimed that the sinking was due to sabotage and that the ship was scuttled. The district court heard all the evidence and concluded that the “circumstantial evidence of deliberate scuttling is insufficient to establish by a preponderance of the evidence that the Vainqueur was scuttled.” The court held, however, that there was sufficient evidence of scuttling to satisfy what it called the underwriters’ burden of producing evidence, so that in effect “the evidence of scuttling is in balance or equipoise.” It then went on to hold, purporting to follow English scuttling cases dealing with burden of proof, that the basic burden of persuasion in an action on marine insurance to show that a loss arose from a covered peril is on the plaintiff; while Vainqueur Corporation made out a prima facie case, the underwriters then met their burden of going forward with evidence of scuttling. Since, the trial court held, the burden of persuasion remained on Vainqueur Corporation and the evidence was in equipoise, judgment was against the shipowner. Scuttling was thus not an exception under an exclusionary clause, as to which the underwriters would have had the burden of proof. See Prashker v. United States Guarantee Co., 1 N.Y.2d 584, 592, 154 N.Y.S.2d 910, 916, 136 N.E.2d 871, 875 (1956). Rather, the court held, the insured had not persuaded the trier that the event came within the insurance policy in the first instance.

The Vainqueur flew the Liberian flag and was owned by appellant Vainqueur Corporation, a Liberian company. The stock of this company was owned by the mother of Raoul Slavin, who held a power of attorney for her in respect to it. Slavin was the principal also of Auxiliary Power Corporation, which was the managing agent for the Vainqueur, with offices in New York. The vessel, displacing about 22,500 tons, was built in 1957 and 1958 in Montreal, Canada. It was powered by an 8-cylinder, 2-eycle main propulsion diesel engine, with additional power provided by two generators each driven by a diesel. The ship had been purchased in 1967 by Vainqueur Corporation from a subsidiary of Northwestern for $412,500 in cash and a seven per cent promissory note in the amount of $1,287,500, secured by a Liberian ship mortgage. Vainqueur Corporation continued previously carried machine and hull insurance in the amount of $3,750,000. During the Vainqueur Corporation’s ownership the vessel had a number of problems including a main engine breakdown in 1968, a port generator breakdown in December of 1968, and an anchor chain break with a consequent minor collision with three other vessels after arrival at New Orleans in early 1969. At the time of the sinking, the vessel was operating under a bulk sugar charter providing for two voyages from Vera Cruz to New Orleans and was carrying 20,000 long tons of sugar on the second voyage.

With respect to the cause of the sinking, the evidence below showed that an explosion was heard throughout the ship at about 11:40 p. m. on the night of March 14, 1969, in the vicinity of the engine room, causing extensive flooding and causing the ship to sink within an hour. The underwriters’ expert evidence indicated that the detonation of an explosive device in the No. 6 starboard wing tank sank the vessel. The underwriters’ expert also contradicted the Vainqueur Corporation’s expert that a starboard generator engine crank case explosion or a main engine crank case explosion combined with structural failure could have sunk the ship. The court noted, but did not give great probative weight to, the uncontradicted testimony of the underwriters’ expert that there were no known instances of the loss of a merchant vessel as a result of a diesel engine crank case explosion.

There was further circumstantial evidence adduced by the underwriters from which scuttling could have been inferred. One Marius Pieterse was employed by Vainqueur Corporation as a Port Captain, having lost his previous job for self-dealing; he was sufficiently close to Slavin that the telephone in Slavin’s New York apartment was listed in Pieterse’s name and he worked quite closely with various Slavin corporations. He joined the vessel in New Orleans after the anchor chain break and did engage during the voyage in question in an inspection of certain of the vessel’s wing tanks. The evidence below indicated that on March 13 and 14, he entered the No. 6 starboard wing tank of the vessel, where the explosion apparently subsequently may have occurred, upon more than one occasion. There was some evidence from which it could have been found that Pieterse was then interested in the precise location of the Vainqueur and the depth of the water. While the court noted that there was no credible evidence that Pieterse purchased explosives or had possession of them at any .time during the final voyage, there was evidence from Gail D. Monroe, a friend of Pieterse’s wife-to-be, that during the course of a telephone call from New Orleans to Houston Pie-terse told her “they are making me blow up the Vainqueur,” and that he planned to do this and that it would be done between New Orleans and Vera Cruz, together with a subsequent call from Vera Cruz in which he told her, she said,

that he had to set a device whereby the ship would blow up and blow up in such a way as to penetrate the especially heavy iron plates, double iron plates that are used in the Vainqueur, and do this so that he could get the crew where they wouldn’t be hurt, send a radio message, and then try to get the whole crew off the ship.
And he mentioned that this had to be done in the deepest water.

Finally, he allegedly told Mrs. Monroe that after the sinking he had $75,000 to $85,000 coming to him as “his portion of the Vainqueur.” Pieterse denied the incriminating statements and explained that he had said “what do you want me to do, you want me to blow up the goddamned ships?” because he “couldn’t get it through . . . their heads [those of Mrs. Monroe and her close friend, Pieterse’s fiancee] that [he] had to do a job, that [he] had many responsibilities . . . . ” The court said that it could not find “on the basis of the testimony of Mrs. Monroe that the Vainqueur was purposefully scuttled.”

Appellees adduced considerable evidence of Slavin’s motive to sink the Vainqueur to collect the insurance proceeds. Slavin was in financial difficulty ; he was experiencing trouble in meeting the mortgage payments and had requested in writing several extensions from Northwestern. The Vainqueur was having trouble obtaining freight charters, although it may have had two lined up, and the owner had little cash available for payment of the insurance premiums and had taken out bank loans. There was a history of major insurance losses occurring to Slavin-connected vessels. In early March of 1969 the value of the Vainqueur was less than had been paid for it, i.e., the value was $1,535,000, while the insurance remained in the total sum of $3,750,000.

Much of the argumentation in the briefs relates to the facts and whether or not scuttling was proven. We take it for purposes of this appeal that the findings made by the district court were supported by the evidence and in no instance have they been shown to be clearly erroneous. Compania Martiartu v. Royal Exchange Assurance Corp., [1924] A.C. 850 (H.L.). The shipowner argues that the testimony of Mrs. Monroe should not have been received since it included hearsay of Pie-terse and that there was no evidence that Pieterse was speaking as the shipowner’s agent within the scope of his authority, either actual, apparent or implied. Cf. Northern Oil Co. v. Socony Mobil Oil Co., 347 F.2d 81, 84-86 (2d Cir. 1965). Whatever the validity of that evidentiary rule — which plainly does not apply to statements of a coconspirator made in the furtherance of a conspiracy, United States v. Anunziato, 293 F.2d 373, 378 (2d Cir.), cert. denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961), and may be thought not to apply to a “Port Captain” supposedly a trouble-shooter, in close relationship to the principal — the fact is that Pieterse 'himself here testified as a witness and was subject to cross-examination as to his declarations inconsistent with his testimony. In such a case his declarations cannot be considered hearsay. 3A Wigmore, Evidence § 1018, at 996 (Chadbourn rev. 1970); Model Code of Evidence Rule 503(b); Uniform Rule 63(1); Letendre v. Hartford Accident & Indemnity Co., 21 N.Y.2d 518, 289 N.Y.S.2d 183, 236 N.E.2d 467 (1968). See also United States v. De Sisto, 329 F.2d 929 (2d Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964).

' We come then to the principal question on this appeal — does the underwriter have the burden of proving that there was a scuttling by the preponderance of the evidence, or does the shipowner have the burden of persuading the trier by a preponderance of the evidence that the loss was within the policy, which burden is not met when the underwriter adduces evidence, which is “in equipoise” with the shipowner’s evidence, that there was a scuttling by explosion ?

The marine policy provides coverage as set forth in the note. The principal coverage or “perils” clause is that of the standard British hull policy. G. Gilmore & C. Black, The Law of Admiralty 64 (1957). The “specially to cover” clause is also the standard clause relative to machinery breakdown, as amended to broaden coverage further; this is, of course, the well-known “Inchmaree” clause, which takes its name from the vessel in Thames & Mersey Marine Insurance Co. v. Hamilton, Fraser & Co., 12 App.Cas. 484 (1887), where the House of Lords restrictively read “perils of the sea” in the then new age of steam vessels not to include damage from a pump clogged through valve failure. See Saskatchewan Government Insurance Office v. Spot Pack, Inc., 242 F.2d 385, 391-392 (5th Cir. 1957). This was not a so-called “all risk” policy wherein all losses attributable to external causes are covered, absent specific exclusion thereof. Cf. Chase Rand Corp. v. Central Insurance Co., 152 F.2d 963, 964 (2d Cir. 1946). See II J. Arnould, Marine Insurance § 856 (Chorley & Bailhache, 15th ed. 1961) (hereinafter cited as Arnould); Winter, Marine Insurance 193 (3d ed. 1952).

The burden of proof generally is on the insured to show that a loss arose from a covered peril. S. Felicione & Sons Fish Co. v. Citizens Casualty Co., 430 F.2d 136, 138 (5th Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 936, 28 L.Ed.2d 219 (1971). It is, of course, prerequisite to the liability of the underwriter, under either the general perils clause or the special coverage clause, that the loss be “proximately caused” by the peril insured against and claimed under. Lanasa Fruit Steamship & Importing Co. v. Universal Insurance Co., 302 U.S. 556, 58 S.Ct. 371, 82 L.Ed. 422 (1938); Arnould § 766. The loss, moreover, must be fortuitous. New York, New Haven & Hartford Railroad Co. v. Gray, 240 F.2d 460 (2d Cir.), cert. denied, 353 U.S. 966, 77 S.Ct. 1050, 1 L.Ed.2d 915 (1957). While negligence,

whether or not gross, is not a defense to a marine policy generally, id. at 464, “willful misconduct” measuring up to “knavery” or “design” is, as a matter of public policy. See id. at 464-65; P. Samuel & Co. v. Dumas [1924] A.C. 431, 446-48, 453 (scuttling not a loss by peril of the seas, per Viscount Cave). There is no doubt but that under the English cases—to which great weight must be given in the field of marine insurance, Queen Insurance Co. v. Globe & Rutgers Fire Insurance Co., 263 U.S. 487, 492, 44 S.Ct. 175, 68 L.Ed. 402 (1924)—the defense of willful misconduct by way of scuttling or “casting away” is treated in a particular way. Because scuttling is a crime, an English court will not find that it has been committed “unless it is proved with the same degree of certainty as is required for the proof of a crime.” Compania Naviera Vascongada v. British & Foreign Marine Insurance Co. (The “Gloria”), 54 Lloyd’s List L. Rep. 35, 50 (K.B.D.1935) (Brandon, J.). At the same time, even though “not satisfied that the ship was scuttled,” id., if the court finds “that the probability that she was is equal to the probability that her loss was fortuitous, the plaintiffs [assureds] will fail.” Id. at 50-51, quoted with approval in Palamisto General Enterprises S. A. v. Ocean Marine Insurance Co., [1972] 2 Q.B. 625, 636 (C.A.); Astrovlanis Compania Naviera, S. A. v. Linard (The “Gold Sky”), [1972] 2 Q.B. 611 (C.A.). The burden of proof, or rather risk of non-persuasion, is cast on the shipowners basically because they have more information more readily available. Compania Naviera Santi S. A. v. Indemnity Marine Insurance Co. (The “Tropaioforos”), [1960] 2 Lloyd’s List L.Rep. 469, 473 (Q.B.D.). But see Slattery v. Mance [1962] 1 Q.B. 676, 677. This does not mean that the underwriter may rest without meeting the prima facie case of the assured; he must go forward with evidence sufficient to convince the trier that the probability of scuttling is as great as the probability that the loss was fortuitous, Compañía Martiartu v. Royal Exchange Assurance Corp. [1923] 1 K.B. 650, 655, 657 (C.A.), aff’d, [1924] A.C. 850, at which point the risk of non-persuasion .rests as it always has upon the assured. It is on this basis that the court below found for the underwriters and with it we have no quarrel.

What then of the “specially to cover” or “Inchmaree” clause which specifically covers “loss ... by Explosions on shipboard or elsewhere . . . provided such loss . has not resulted from want of due diligence by the Assured”? Does this change the general rule above enunciated or call into play different factors or considerations of material moment? This clause, as we have said, was added to the standard marine insurance policies, primarily, as Judge Brown put it, “as the underwriters’ response to the practical business needs of the shipping world in the face of adverse court decisions.” Saskatchewan Government Insurance Office v. Spot Pack, Inc., 242 F.2d at 391. See also Ferrante v. Detroit Fire & Marine Insurance Co., 125 F.Supp. 621 (S.D.Cal.1954). Its purpose is, it has been recognized, “to broaden, not restrict, to expand, not withdraw, coverage.” Saskatchewan Government Insurance Office v. Spot Pack, Inc., 242 F.2d at 391. The appellant’s most persuasive argument, as we fathom it, is that the English scuttling rule applies only when coverage is founded upon a loss from the general perils of the seas; when there is specific or special coverage (as under the “Inchmaree” clause in the case of an “explosion”), the burden is on the underwriter — with or without an express exclusion in the policy — to persuade the trier of his affirmative defense. Wagman v. American Fidelity & Casualty Co., 304 N.Y. 490, 109 N.E.2d 592 (1952) (no express exclusionary provision; burden on insurer to establish violation of regulations); Seufert v. Commercial Travelers Mutual Accident Insurance Association of America, 263 N.Y. 496, 189 N.E. 563 (1934) (defense of non-payment not based on express exclusion; burden of persuasion on insurer). This rule applies all the more, the argument runs, where the defense rests on a criminal act. See Slocovich v. Orient Mutual Insurance Co., 108 N.Y. 56, 66, 14 N.E. 802 (1888) (defense of arson by shipowner — burden on insurer). Cases such as Automobile Insurance Co. v. Central National Bank, Savings & Trust Co., 20 F.2d 619 (6th Cir. 1927). relied on by appellee, are distinguished by appellants as not involving an affirmative defense, but rather a question of causation; here, it is said, there is no dispute but that the loss was caused by the specifically covered “explosion.”

The argument, however, fails to meet the teachings of the English scuttling cases. In the end, the question of coverage turns on whether the event itself is fortuitous; just as a scuttling is not a peril of the sea, P. Samuel & Co. v. Dumas, supra, so too a set explosion is not a fortuitous one. E. g., Grauds v. Dearsley, 51 Lloyd’s List L.Rep. 203, 222, 237 (K.B.D.1935) (Talbot, J.) (explosion); Compania Naviera Vascongada v. British & Foreign Marine Insurance Co., 54 Lloyd’s List L.Rep. at 50-57. The question in each case is whether a fortuitous event has occurred bringing about coverage or application of the policy. Note 7 supra. In the event that it has, all affirmative defenses (such as non-payment of the premium, Seufert v. Commercial Travelers Mutual Accident Insurance Association of America, supra) must be established by the insurer. But the initial burden of persuading the trier that the event is fortuitous remains on the assured, a burden not met here. That portion of the “Inchmaree” clause providing for specific coverages was not intended to shift burdens of persuasion; it was rather to add as covered perils particular events that had been construed (quite too narrowly perhaps) not to be “perils of the sea,” such as the breaking of shafts. This is assumed in Astrovlanis Compania Naviera S. A. v. Linard, supra, where the statement of claim, it is to be noted, alleged sinking of the “Gold Sky” by perils of the sea or a latent defect in her hull [the latter covered under the Inchmaree clause].” [1972] 2 Q.B. at 614.

And what of the arson cases, note 8 supral Why should they and the scuttling eases not be treated alike since each involves a willful act of the owner? The underlying rationale given by the courts in the arson cases (and some of the earlier English scuttling cases, note 7 supra) is that the defense is a criminal act and therefore the burden should be on the person asserting that act. They are both really based on the premises perhaps best set forth by Mr. Justice Harlan in Ritter v. Mutual Life Insurance Co., 169 U.S. 139, 157-158, 18 S.Ct. 300, 42 L.Ed. 693 (1898), quoting Knights of Golden Rule, Supreme Commandery & Co. v. Ainsworth, 71 Ala. 436, 446:

In all contracts of insurance, there is an implied understanding or agreement that the risks insured against are such as the thing insured, whether it is property, or health, or life, is usually subject to, and the assured cannot voluntarily and intentionally vary them. Upon principles of public policy and morals, the fraud, or the criminal misconduct of the assured is, in contracts of marine or of fire insurance, an implied exception to the liability of the insurer.

While we have found no authorities discussing the differences between arson and scuttling cases, two such occur. A practical difference is that in the case of fire — at least fire on land — there is more likely to be some evidence available to prove arson than in the ease of a ship scuttling where the vessel is presumably at the bottom of the sea, so that the means of proof are often more readily available to the insurer in the case of arson than in the case of scuttling. Cf. Wigmore, Evidence § 2486, at 275 (1940). This in turn may explain the second difference, the historical difference in treatment, concededly little founded on logic: historically in fire policies one starts with a proven event, viz., fire; in the scuttling cases, whether the “event” leading to the sinking was a covered peril was historically in question and would still be in question except in cases like the present one in which the event — an explosion — was specifically covered in the “Inchmaree” clause. While that historical distinction has no validity in the present case, it cannot be said that the “Inchmaree” clause in any way affects the burden of proof on whether the event was fortuitous.

Accordingly, we affirm the judgment.

      . MacKinnon, J., in Lemos v. British & Foreign Marine Ins. Co., 39 Lloyd’s List.L.Rep. 275, 283 (K.B.D.1931), set forth three “types of facts” to he taken into account in a scuttling or “cast away” case: (1) the circumstances of the sinking; (2) the communications among the owner, master and crew; (3) the motives of owner and master.

      . A vessel’s being “overinsured” is a factor properly taken into consideration by a court on the question of motive. Id. at 288. See also Compania Martiartu v. Royal Exchange Assurance Corp., [1924] A.C. 850, 852 (H. L.) (Lord Birkenhead) (“The loss of the vessel at that particular moment meant indeed the difference to the company between solvency and insolvency”).

      . Touching the Adventures and Perils . . . of the Seas, Men-of-War, Fire, Lightning, Earthquake, Enemies, Pirates, Rovers, Assailing Thieves, Jettisons, Letters of Mart and Counter-Mart, Surprisals, Takings at Sea, Arrests, Restraints and Detainments of all Kings, Princes and Peoples, of what nation, condition or quality soever, Barratry of the Master and Mariners and of all other like Perils, Losses and Misfortunes that have or shall come to the Hurt, Detriment or Damage of the said Vessel, &e., or any part thereof; excepting, however, such of the foregoing Perils as may be excluded by provisions elsewhere in the Policy or by endorsement. . . .
      This insurance also specially to cover (subject to the Average Warranty) loss of or damage to the subject matter insured directly caused by the following :•—
      Accidents in loading, discharging or handling cargo, or in bunkering;
      Accidents in going on or off, or while on drydocks, graving docks, ways, gridirons or pontoons;

        Explosions on sMpboard or elsewhere; Breakdown of motor generators or other electrical machinery and electrical connections thereto, bursting of boilers, breakage of shafts, or any latent defect in the machinery or hull, (excluding the cost and expense of replacing or repairing the defective part) ;
      Breakdown of or accidents to nuclear installations or reactors not on board the insured Vessel;
      Contact with aircraft, rockets or similar missiles, or with any land conveyance ;
      Negligence of Charterers and/or Repairers, provided such Charterers and/or Repairers are not Assured (s) hereunder;
      Negligence of Master, Mariners, Engineers or Pilots;

        provided, such loss has not resulted ■ from want of due diligence by the Assured, the Owners or Managers of the Vessel, or any of them. Masters, Mates, Engineers, Pilots or Crew not to be considered as part owners within the meaning of this clause should they hold shares in the Vessel.
      (Emphasis added.)

      . This policy included the word “like” in the concluding clause covering “other . . . Perils, Losses and Misfortunes. . . . ” But see Feinberg v. Ins. Co. of North America, 260 F.2d 523 (1st Cir. 1959).

      . In an “all risks” policy the burden is plainly on the underwriter to show that an exception to coverage applies. Redna Marine Corp. v. Poland, 46 F.R.D. 81 (S.D.N.Y.1969). But, as noted by Lord Birkenhead, even an “all risks” policy is subject to the proposition that the damage must have been due to some fortuitous circumstance or casualty. British & Foreign Marine Ins. Co. v. Gaunt, [1921] A.C. 41, 46-47. See also Arnould § 856 & n. 96. See generally note 6 infra.

      . It was the law of England from early times that in order for there to be a peril of the seas “[t]liere must be some casualty, something which could not be foreseen as one of the necessary incidents of the adventure. The purpose of the policy is to secure an indemnity against accidents which may happen, not against events which must happen.” Thomas Wilson, Sons & Co. v. Owners of the Cargo Per the “Xantho,” 12 App.Cas. 503, 509 (1887). Or as said by Lord Bramwell (quoting Lopes, L.J.) in Hamilton, Fraser & Co. v. Pandorf & Co., 12 App.Cas. 518, 526 (1887), “It is a sea damage, occurring at sea, and nobody’s fault.” See also Grant, Smith & Co. v. Seattle Construction and Dry Dock Co., [1920] A.C. 162; E.D. Sassoon & Co. v. Western Assurance Co., [1912] A.C. 561. But see Small v. United Kingdom Marine Mut. Ins. Ass’n, [1897] 2 Q.B. 42, appeal dismissed, [1897] 2 Q.B. 311 (C.A.). The seventh of the rules for construction of marine insurance policies in the First Schedule to the Marine Insurance Act, 1906, 6 Edw. VII, c. 41, defined “perils of the sea” as referring only to “fortuitous accidents or casualties of the seas.” The Act itself also covered the point in § 55 (2) (a) : “The insurer is not liable for any loss attributable to the wilful misconduct of the assured. ...” For the foregoing (and divergent views) see P. Samuel & Co. v. Dumas, supra. See also E. Ivamy, Marine Insurance 149, 247 et seq. (1969).

      . Both Palamisto and Astrovlanis were before the Court of Appeals before trial as to whether a bill of particulars in reference to the scuttling had to be furnished by the insurer. The Palamisto court stated unequivocally that the quoted language from Bran-son, J.’s opinion in The Gloria “is good law.” [1972] 2 Q.B. at 636. The question of burden was alluded to, but left open in Anghelatos v. Northern Assurance Co., 19 Lloyd’s List L.Rep. 255 (H.L.1924), where the Earl of Birkenhead said, at 256, that as to who has “the onus of showing that the stranding was not accidental. [s]ome difference of judicial opinion has appeared in the Courts below.” It was felt unnecessary to decision since evidence of scuttling was clear. While the comments of Warrington, L.J., and Atkins, L.J., in Issais v. Marine Ins. Co., 15 Lloyd’s List L.Rep. 186, 189, 191 (C.A.1923), indicate that the burden is on the insurer since the commission of a crime is involved, Roche, J., in Pateras v. Royal Exchange Assurance (The “Sappho”), 49 Lloyd’s List L.Rep. 400 (K. B.D.1934), took quite the opposite tack, relying on Lord Justice Bankes of the Court of Appeal in Compania Martiartu v. Royal Exchange Assurance Corp., [1923] 1 K.B. 650. Interestingly, Roche, J., noted that in his opinion the question of burden of proof was “seldom ... of importance” and observed that “it takes a good deal to persuade me at any rate that there is a rival explanation of sufficient plausibility to displace the presumption that there was an accident.” Id. at 407. The same might have been said by Judge Ward, below. See generally Arnould §§ 1272-73.

      . The general rule in the United States casts the burden in respect to the defense of arson in a fire insurance case upon the insurer. Yates v. State Farm Fire & Cas. Co., 417 F.2d 766 (5th Cir. 1969); Aetna Ins. Co. v. Gethcell Steel Treating Co., 395 F.2d 12 (8th Cir. 1968); Jamaica Time Petroleum, Inc. v. Federal Ins. Co., 366 F.2d 156 (10th Cir. 1966), cert. denied, 385 U.S. 1024, 87 S.Ct. 753, 17 L.Ed.2d 674 (1967); Baltimore American Ins. Co. v. Pecos Mercantile Co., 122 F.2d 143 (9th Cir. 1941); Kimball Ice Co. v. Hartford Fire Ins. Co., 18 F.2d 563 (4th Cir. 1927); Kisting v. Westchester Fire Ins. Co., 290 F.Supp. 141 (D.Wis. 1968), aff’d, 416 F.2d 967 (7th Cir. 1969) (proof must be by a “clear preponderance”). See also Annot., 124 A.L.R. 1378, 1380 (1940). The rule is the same in England. See E. Ivamy, General Principles of Insurance Law 228-29 (2d ed. 1970). See also Empire Steamship Co. v. Threadneedle Insurance Co., 22 Lloyd’s List L.Rep. 437, 534 (K.B.D.1925) (Branson, J.).

      . Wenhold v. Royal Ins. Co., D.C.Mass., 197 F.Supp. 75, 80 (1961) is not basically to the contrary; there the court assumed that the burden of persuasion in respect to scuttling was on the underwriter and found that it was not met. The case could as well have gone on the basis that proof of scuttling was insufficient to make out a prima facie case, i. e., to go to the trier of fact.

      . Neither party makes anything out of the proviso in the “Inchmaree” clause — “Provided such loss or damage has not resulted from want of due diligence by the Assured, the Owners or Managers of the Vessel, or any of them.” See generally Annot., 98 A.L.R.2d 952 (1964). Both parties dismiss this clause as a clause of art, relating to the duty to make or keep the vessel seaworthy, a duty concededly not violated here. See Saskatchewan Government Ins. Office v. Spot Pack, Inc., supra. We will not attempt to read something into it that the parties do not themselves, although one may wonder, if the duty is a continuing one, as in America it may be, id., whether a vessel would become unseaworthy if a bomb were placed in its No. 6 starboard wing tank? Cf. Pacific Queen Fisheries v. Symes, 307 F.2d 700 (9th Cir. 1962), cert. denied, 372 U.S. 907 (1963) (want of due diligence under “Inchmaree” clause in permitting gasoline explosion). Of course, in any event the proviso does not relate to perils not specially covered by the “Inchmaree” clause. Frederick Starr Contracting Co. v. Aetna Ins. Co., 285 F.2d 106 (2d Cir. 1960).

      . fortuitous . . . adj. Happening by accident or chance; unplanned. See synonyms at accidental. [Latin fortnitus, from forte, by chance, ablative of fors, chance. See fortune. The American Heritage Dictionary of the English Language 518 (1970).

      . This rationale per se had little justification if evidence of the finding of arson or scuttling in the civil case were inadmissible in the criminal case. While there are occasional comments or cases contrary, both in the United States and England, the measure of persuasion in reference to the criminal act has generally been by a preponderance. Annot., 124 A.L.R.. 1380 (1940), note 8 supra. And no one has yet extended the doctrine of collateral estoppel so as to make civil judgments admissible in criminal cases.

      . Compare Story, J., in Waters v. Merchants’ Louisville Ins. Co., 36 U.S. 213, 11 Pet. 213, 219, 9 L.Ed. 691 (1837), with Story, J., in Columbia Ins. Co. v. Lawrence, 35 U.S. 507, 10 Pet. 507, 517-518, 9 L.Ed. 512 (1836). See also the life insurance cases where the insured is murdered by the beneficiary. E. g., New York Mut. Life Ins. Co. v. Armstrong, 117 U.S. 591, 600, 6 S.Ct. 877, 29 L.Ed. 997 (1886). See note 6, supra.


text:
    Charles HILL, Appellant, v. W. BRUNS & CO., Appellee.
    No. 786, Docket 73-1383.
    United States Court of Appeals, Second Circuit.
    Argued April 3, 1974.
    Decided June 5, 1974.

      Lester E. Fetell, Brooklyn, N.Y. (William F. Cioffi, Brooklyn, N.Y., Sergi & Fetell, Brooklyn, N.Y., of counsel), for appellant.
    William M. Kimball, New York City (Burlingham, Underwood & Lord, New York City, of counsel), for appellee.
    Before HAYS and OAKES, Circuit Judges, and CHRISTENSEN, District Judge.

       Senior United States District Judge for the District of Utah, sitting by designation.

   OAKES, Circuit Judge:

Plaintiff-appellant’s appeal is from the grant of a motion for summary judgment by Judge Neaher on the ground of laches. In granting the summary judgment, the judge treated the action as having been commenced, as technically it was, on March 20, 1972. In doing so, however, he did not take into account a previous action brought on this same cause against this same defendant-appellee on May 15, 1970. In that earlier action a motion to dismiss on the ground of laches was denied by Judge Zavatt; the action was voluntarily dismissed — without prejudice, however — on the basis of defendant-appellee’s argument that service of process on an agent of appellee was of questionable validity. In dismissing the second action, it is our view that Judge Neaher should have taken into account the first, and accordingly we reverse.

Appellant, a longshoreman, was injured on January 5, 1967, aboard the M/S Brunsholm at Pier 13, East River, New York. Appellant was employed by Standard Fruit & Steamship Co. (Standard) and the Brunsholm was owned and operated by W. Bruns & Co., the appellee. On the date of the alleged accident the vessel was under charter from Bruns to Standard. The defendant’s answer of June 16, 1970, in the original action raised four affirmative defenses including lack of personal jurisdiction over the defendant, “insufficient” process, failure to state a ground for relief and time bar by statute of limitations, laches or both. In opposition to the motion, appellant urged that the unseaworthiness count was governed by a six-year statute of limitations, the action having been commenced some four months beyond the three-year negligence limitation. On April 19, 1971, Judge Zavatt denied the motion to dismiss on the authority of Larios v. Victory Carriers, Inc., 316 F.2d 63, 66-67 (2d Cir. 1963), on the basis that the “defendant has proffered no proof whatever as to his prejudice from the delay [of four months].” Appellee later took appellant’s deposition on August 5, 1971, at which time appellant’s claim of negligence and unseaworthiness was disclosed to relate to claimed defects in the Brunsholm’s winches at Number 4 hatch and hatchboards in the Number 4 ’tween deck. Immediately thereafter appellee moved for an order granting leave to file a third party summons and complaint upon appellant’s employer, Standard, and to vacate the process alleging that service on Standard as agent of appellee was improper.

At some point following a request by all counsel for reassignment to another judge for trial, the case was transferred from Judge Zavatt to Judge Neaher for pretrial conference, which was held on January 18, 1971. When the case was ultimately called on for trial, it was, on appellant’s motion, dismissed without prejudice; apparently it had come to the attention of appellant’s counsel that Bruns did in fact have an agent other than Standard, Glaessel Shipping Corp., which had, on prior occasions, accepted service for it in New York.

Meanwhile, on March 20, 1972, appellant had filed a second complaint, that in the current action, and served appellee on March 28 by serving its agent, Glaessel Shipping Corp. Appellee again moved for summary judgment. In connection with its motion for dismissal of the first action, appellee had alleged, through the affidavit of Dr. C. G. Staelin, a partner of appellee, that “As confirmed by the absence of any such entry in the deck log book of M/S Brunsholm under date of January 5, 1967, no actual or claimed injury in the Port of New York on that date to longshoreman Charles Hill was ever brought to the attention of that vessel’s Master, Chief Officer or deck officers (mates).” Dr. Staelin additionally alleged that neither the master, chief officer nor any of the deck officers (mates) serving aboard the M/S Brunsholm in January, 1967, were still serving aboard that vessel and that several of those persons were no longer employed by W. Bruns & Co. In connection with the second action, appellee submitted a supplementary affidavit of Dr. Staelin repeating all of the allegations of the first affidavit but going on to say that, following appellant’s deposition in reference to the winches at Number 4 hatch and a hatchboard in the Number 4 ’tween deck, “After thorough inquiry and search, we were compelled to inform Messrs. Burlingham [appellee’s attorneys] that W. Bruns & Co. could not furnish the requested particulars because W. Bruns & Co. no longer has any 1967 record of any repairs or maintenance to those winches or any 1967 record of any repairs or replacements to those hatchboards.” Nothing in either of these affidavits — the only material brought before Judge Neaher by appellee — indicates in any way that appellee had, kept records in 1967 or at any other time (other than those entries that might have appeared in its deck log book) of any repairs or maintenance to the winches at Number 4 hatch or at any hatch, nor does anything appear in these affidavits or otherwise to indicate that there were any 1967 records or any other record of any repairs or replacements to hatchboards either at the Number 4 hatch or at any other hatch.

In dismissing appellant’s second action as being barred by the lapse of time, Judge Neaher held that in the absence of statute the voluntary dismissal or discontinuance leaves the situation as if the suit had never been filed, Bunger v. United States Blindstitch Machine Corp., 8 F.R.D. 362 (S.D.N.Y.1948), and considered that the laches question was presented in the context of a suit commenced more than two years after the applicable state statute of limitations had expired. “Thus,” Judge Neaher held, the “plaintiff is required to persuade the court anew that adequate excuse exists for what is now a five-year delay and that no prejudice will result to the defendant.” The court then went on to hold that no legally sufficient reason for delay appeared in the plaintiff’s papers and that the defendant’s papers amply demonstrated the difficulties it would encounter in attempting to defend itself against such a stale claim.

In an admiralty suit state statutes of limitations are not strictly applied; instead, the doctrine of laches controls. Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 533, 76 S.Ct. 946, 100 L.Ed. 1387 (1956); Larios v. Victory Carriers, Inc., 316 F.2d at 65. The courts are not to resort to mechanical application of local statutes of limitation in determining the issue of laches. See, e. g., Conty v. States Marine Lines, Inc., 355 F.2d 26, 28 & n. 3 (2nd Cir. 1966); Oroz v. American President Lines, 259 F.2d 636, 638 (2d Cir. 1958), cert. denied, 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572 (1959). No presumption attaches from the expiration of the applicable period of limitations. Larios v. Victory Carriers Inc., 316 F.2d at 66. Accordingly, the “peculiar equitable circumstances” of the case are determinative, Czaplicki v. The Hoegh Silvercloud, 351 U.S. at 533, and a court must examine the excuse for delay and prejudice to the defendant as a result of the delay. Gardner v. Panama Railway Co., 342 U.S. 29, 31, 72 S.Ct. 12, 96 L.Ed. 31 (1951).

Appellee failed to show prejudice within the applicable period, and it had the burden of adducing evidence on this issue. As we said in Larios v. Victory Carriers, Inc., 316 F.2d at 66, to establish the defense of laches there must be proof of “prejudice on the part of the defendant, an issue as to which the defendant, with his greater knowledge, ought be required to come forward.” Certainly appellee possessed all the information relative to the possible disappearance (or nonexistence) of evidence. Yet the only claim made in its affidavits is that it might have had more evidence if it had received earlier notice. Nowhere does it allege, however, that it actually kept records which were lost as a result of the delay. To the contrary, the most that appellee says is that some of its employees on the M/S Brunsholm were no longer employed by it. As Judge Zavatt had held, this was insufficient for appellee to meet its burden. Indeed where the appellee is the same, even though this is a subsequent action, it could be argued that, absent something new in the way of allegations of prejudice, Judge Zavatt’s decision is controlling as, in effect, the law of the ease.

On the point urged that this was a new case, plaintiff-appellant could readily have petitioned the court in the first action for leave to cause an additional or new summons to be issued and good service attempted upon Bruns by way of Glaessel Shipping as agent. See Grammenos v. Lemos, 457 F.2d 1067, 1071 (2d Cir. 1972). As this court there held, the “fact of invalidity of the one attempt at service does not automatically require dismissal of the complaint. [T]he court has power, under Fed.R.Civ.P. 4(a), if the service is invalid or improper, to cause additional or new summons to be issued and good service attempted.” Having chosen an alternative procedural route, that is to say, the filing of a new complaint and discontinuance of the old action, the appellant should not be placed in the procedural posture as if he had never brought any action in the first instance. See note 2 supra.

Laches is a doctrine aimed at avoiding the commencement of stale claims in equity where it is impossible or difficult for a defendant to defend because evidence has been destroyed or lost and the defendant thereby prejudiced as a result of the delay in the institution of the action. E. g., Russell v. Todd, 309 U.S. 280, 287, 60 S.Ct. 527, 84 L.Ed. 754 (1940). Here, however, it would be a simple pleading technicality, totally inconsistent with the doctrines of equity and the spirit of the federal rules, if appellant were to have his right of action nullified by virtue of the fact that he discontinued his first action against this very same defendant and instituted a new one with proper service. We have come a long way since the days of Baron Parke, who, it will be recalled, was proud of the fact that he had decided all cases on procedural grounds; much less do his doctrines apply in admiralty.

When we come to the nub of the question of prejudice, the only additional evidence or claim presented by the appellee to Judge Neaher is in reference to maintenance and repair records as to winches and hatchboards, but, as we have said, it nowhere appears that these were destroyed after May of 1970. The docket entries, indeed, indicate that, never having filed written interrogatories, the appellee waited almost a year after the first action was brought to file a notice of taking of appellant’s deposition. It could well be that whatever records were kept- — if any — were destroyed after the first suit was brought. It could also well be that the practice of the trade is to keep maintenance and repair records of winches or hatches, if any are kept at all, for considerably longer than three years because surely a limitation period might well be longer than the New York statute now provides. In any event, the second affidavit we believe fails to make out a case of prejudice in the second action. It is the date of the filing of the first complaint which put the appellee on notice, not the date of the second complaint. Appellee had notice within 135 days of the expiration of the analogous three-year statute of limitations, and it cannot claim prejudice for having let evidence slip away after that date. Many, many states have saving statutes permitting new actions to be brought if an action fails other than on its merits, assuming the same cause is involved, notwithstanding any intervening expiration of a statute of limitations. E. g., N.Y.C.P.L.R. § 205; 12 Vt.Stat.Ann. § 558. These statutes recognize the basic equitable doctrine which we adopt for purposes of admiralty law here, that the ultimate question is one of prejudice in fact, governed by the time of notification of the existence of the cause of action to the defendant and the plaintiff’s prompt prosecution of same.

Here there is ample indication, as Judge Zavatt held in the first instance, that there was no prejudice to the appellee from the 135-day delay from the time the first action was instituted after the three-year statute had run. That is the only time legally relevant here.

Judgment reversed and case remanded.

      . As a longshoreman, plaintiff-appellant was and is to be treated as a seaman under Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Under 33 U.S.C. § 902, as amended by 86 Stat. 1251 (1972), longshoremen are now limited to recovery under the Longshoremen’s and Harbor Workers’ Compensation Act.

      . The “general” rule relied upon by the court below to negate the very existence of Judge Zavatt’s prior decision of the laches question was stated by this court in A. B. Dick Co. v. Marr, 197 F.2d 498, 502 (2d Cir.), cert. denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680 (1952), as follows: “voluntary dismissal of a suit leaves the situation so far as procedures therein are concerned the same as though the suit had never been brought . . . . ” We do not question the validity of this rule as a general proposition, but it is of little force in the present action where the district court, and this court in turn, must determine, as an equitable matter, whether there is any reason that appellant’s suit should not be allowed to proceed. We need not decide whether the court below should have been bound by Judge Zavatt’s prior decision on the laches question because we find appellee’s affidavits submitted below to be insufficient to make out a case of ladies in any event,