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Payne (P) sued for personal injury in an admiralty action alleging that S.S. Nabob was unseaworthy. In the opening statement, P alleged that the ship was improperly handled by the employees in its loading. The court requested a pretrial report under Fed. R. Civ. P. 16 in an admiralty action that listed anticipated witnesses. There was no pretrial order. The issue in the opening statement was outside the scope of the pretrial memorandum which stated that P was relying on the condition of a winch in his claim. The statement was objected to and sustained by the court. P then attempted to call two witnesses not included in the report, and the court excluded them as well. P moved for a continuance. P appealed; without a pretrial order, he was not bound by his report in that the pretrial memorandum was merely preparatory to the pretrial conference and was not binding upon the parties.

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