This case has béen before the court on a previous occasion sub nom. The O. M. Arnold, 9 Cir., 127 F.2d 648, 649. As appears from the opinion there, personal representatives of three deceased seamen, appointed by an Oregon court, sued the owner and charterer of the vessel O. M. Arnold to recover damages for the wrongful deaths of their decedents. In the course of proceedings for limitation of liability, filed by the owner and charterer in the court below, it was ordered that answers and claims of the Oregon administrators filed in that proceeding be dismissed on the ground that the claimants lacked capacity to sue outside the state of their appointment. This order of dismissal, entered August 25, 1941, provided the motive of the prior appeal.
The Oregon administrators contended on that appeal that they were entitled to sue in Washington, and, further, that the order of dismissal in the admiralty case should have provided, as it did not, that they might amend by substituting personal representatives appointed in Washington. They contended that, in the absence of such a proviso, the order would be res judicata. This court said it could see no reason why the order should not state “that the dismissal is without prejudice to the filing of claims by representatives appointed in Washington”, and it directed a modification to this effect. As so modified, the order was affirmed. The opinion was handed down April 22, 1942, and on June 2 of that year mandate was sent down.
On July 7, 1942, appellant was appointed administratrix for the deceased seamen by the Superior Court of King County, Washington, and was directed by the appointing court to maintain claims on behalf of the dependent heirs. On July 21, 1942, she served and filed such claims together with an answer resisting the right to limit liability. Thereupon the owner and charterer moved to quash the claims on the ground that the same were not timely filed, and this motion the court granted; hence the present appeal.
The original monition had fixed March 25, 1940, as the date within which answers and claims might be filed in the limitation proceeding. In the decree now appealed from the court stated that the claimants “have not exercised proper or any reasonable diligence in the premises,” and that substantial prejudice would result to appellees if the belated claims were permitted now to be filed.
Ordinarily, the granting or withholding of permission to file claims after the expiration of the monition period is discretionary with the trial court. But the action taken here was not entirely a matter of discretion. In substance, this court had ordered that the dismissal of the claims filed by the Oregon administrators be without prejudice to the filing of claims by representatives appointed in Washington. Obviously the modified order could not be given effect unless a representative or representatives so appointed were thereafter permitted to come in. In declining to permit the Washington administratrix to do that the court disregarded the spirit, at any rate, of the mandate.
But these considerations aside, we think there was no sufficient reason for denying these dependent heirs an opportunity to establish their case. The statute of limitations in actions for wrongful death had not run at the time the administratrix filed and served her answer and claims. The limitation proceeding was still pending, no interlocutory or final decree having been entered in it; and the claims of the heirs of the three deceased seamen were the only *317ones that had been filed.1 While counsel for the claimants mistook what we may assume was plain law on the subject, there is no good reason for supposing that the first appeal, occasioning much of the delay, was not taken in good faith. Nor was the showing of prejudice particularly convincing.
Reversed.
As to the customary treatment of late claims in limitation proceedings see discussion in Benedict on Admiralty, 6th Ed., Yol. 3, § 518.