Opinion
No. 20211.
November 30, 1966.
Donald Friedman, Aaron Milberg, San Francisco, Cal., for appellant.
Stanley Fernwood, Oakland, Cal., for appellees Ruth A. Prichard and Gary Prichard.
Before MADDEN, Judge of the Court of Claims, and MERRILL and DUNIWAY, Circuit Judges.
Appellant is the workmen's compensation insurer for the employer of appellee Ruth A. Prichard's late husband, who was killed by a barge explosion in the course of his employment. Pursuant to the terms of the Longshoremen's and Harbor Workers' Act, 33 U.S.C. § 901 et seq. (1964), appellant has paid compensation benefits to appellee Prichard. She brought this libel against United Towing Company as a third-party shipowner seeking recovery for wrongful death. The action was settled for a sum substantially in excess of the benefits so far paid by appellant. The settlement was approved by the District Court and the libel was dismissed by the libelant. Appellant had sought to intervene just prior to court approval of the settlement, asserting the right under the Act, 33 U.S.C. § 933, to recover back from the corpus of the judgment the amount of benefits paid. The libelant opposed the petition; intervention was denied and this appeal followed.
As we view its order the District Court has simply denied appellant access to this suit as a vehicle for the litigation of its right to recovery of benefits paid. In so doing it declined to rule upon the merits of the dispute between appellant and appellee Prichard, and has required appellant to resort to an independent action for litigation of that dispute. (We are informed that such an action has now been brought in connection with which a registry fund exists for the security of judgment.)
Intervention in this case is governed by Admiralty Rules 34 and 42, 28 U.S.C. (1964) (now superseded by Civil Rule 24(a) as amended July 1, 1966). The Admiralty Rules envisage a case, for intervention as of right, in which a res exists to which the maritime lien rights asserted by the petition in intervention may attach. The Oregon, 158 U.S. 186, 15 S.Ct. 804, 39 L.Ed. 943 (1895); Defense Plant Corp. v. United States Barge Lines, 145 F.2d 766 (2d Cir. 1944). Allowance of intervention in other cases would appear to be discretionary. The record before us does not disclose that jurisdiction over any res was ever secured by the District Court. Under the facts of this case we find no abuse of discretion.
Affirmed.