Colon v. Apex Marine ( 1994 )

USCA1 Opinion

          September 21, 1994
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 94-1522

                                  DANIEL COLON, JR.,

                                Plaintiff, Appellant,

                                          v.

           APEX MARINE CORPORATION C/O WESTCHESTER SHIPPING COMPANY, INC.,
        and WESTCHESTER MARINE, INC. and WESTCHESTER MARINE SHIPPING COMPANY,
            INC. and VERTIGO, INC., d/b/a TILLIES KING SHIPPING COMPANY, 

                                Defendant, Appellees.

                                 ____________________

                                     ERRATA SHEET

            The  opinion  of this  Court  issued  on  September  15, 1994,  is
        amended as follows:

            On cover  sheet, replace  "[Hon. Jacob  Hagopian, U.S.  Magistrate
                                                              ________________
        Judge]" with "[Hon. Ronald R. Lagueux, U.S. District Judge]".
        _____                                  ___________________







































                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-1522

                                  DANIEL COLON, JR.,

                                Plaintiff, Appellant,

                                          v.

           APEX MARINE CORPORATION C/O WESTCHESTER SHIPPING COMPANY, INC.,
        and WESTCHESTER MARINE, INC. and WESTCHESTER MARINE SHIPPING COMPANY,
            INC. and VERTIGO, INC., d/b/a TILLIES KING SHIPPING COMPANY, 

                                Defendant, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                      [Hon. Jacob Lagueux, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                             and Young,* District Judge.
                                         ______________

                                 ____________________

            Carroll E. Ayers for appellant.
            ________________
            Gordon  Arnott  with whom  Gregory O'Neill,  Hill,  Betts &  Nash,
            ______________             _______________   ____________________
        Charles N. Redihan,  Jr., Thomas C.  Plunkett and Kiernan,  Plunkett &
        ________________________  ___________________     ____________________
        Redihan  were  on brief  for  appellees  Apex  Marine Corporation  and
        _______
        Westchester Marine Shipping Company, Inc.


                                 ____________________

                                  September 21, 1994
                                 ____________________





                            
        ____________________

        *Of the District of Massachusetts, sitting by designation.












                 Per  Curiam.   This case  presents an  interesting issue
                 ___________

            concerning the reach of the "scope of employment" requirement

            under the Jones Act, 46 U.S.C.    688, as applied to a unique

            set  of facts.    In explaining  its  decision to  grant  the

            defense  motion for  summary judgment,  Colon v.  Apex Marine
                                                    _____     ___________

            Corp., 832  F. Supp. 508  (D.R.I. 1993),  the district  court
            ____

            issued a decision thoroughly analyzing the precedents and the

            pertinent facts.   Although  the legal question  presented is

            open to reasonable debate, we agree with the district court's

            resolution  and do  not think  that we  can improve  upon the

            reasoning set  forth in  its decision.   Accordingly, on  the

            central  issue  we affirm  on the  grounds  set forth  in the

            decision of the district court.

                 The only remaining issue is  the claim that the district

            court abused its discretion in refusing to allow an amendment

            to the  complaint to  assert a new  cause of action  based on

            unseaworthiness.    This case  relates  to  an incident  that

            occurred  in December  1987; the  defense motion  for summary

            judgment  was filed in November 1992; and the motion to amend

            the  complaint was  filed only  after  the district  court in
                                            _____

            September 1993 granted the motion  for summary judgment.  The

            motion  gave no  adequate reason  to excuse  this substantial

            delay in moving to amend.  Under the circumstances, we do not

            think  that  the  district  court abused  its  discretion  in

            denying the motion as untimely.



                                         -2-
                                         -2-















                 Affirmed.
                 ________



















































                                         -3-
                                         -3-