MEMORANDUM AND ORDER

On December 15, 1977, in the waters surrounding St. Thomas, Virgin Islands, plaintiff, Patti Simmons, was injured while aboard the Ho-Tei as a paying passenger. Plaintiff alleges that her injuries were proximately caused by defendant’s1 negligent acts in the maintenance and operation of the boat.

Presently this case is before the Court on motions by defendant, (a) to amend its answer, and (b) to strike plaintiff’s second cause of action for failure to state a claim. Fed. R. Civ. P. 15(a), 12(b)(6). The motions will be granted.

Motion To Amend

Defendant wishes to amend its answer, virtually on the eve of trial, to add the affirmative defense of Limitation of Vessel Owner’s Liability, 46 U.S.C. § 181 et seq. (1976). Plaintiff opposes the motion on two grounds: (1) the undue delay in raising the limitation defense and (2) the unavailability of the Limitation of Liability Act in this action.

Fed. R. Civ. P. 15(a) provides that leave to amend should be freely given when justice so requires. However, amendments should not be allowed where so doing would cause prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). While plaintiff asserts that defendant was either “playing some sort of sporting game” or ill prepared in seeking to amend at the eleventh hour, she has failed to show how she will be prejudiced. We foresee no prejudice to plaintiff in granting defendant leave to amend. See *335Seifert v. Salem, 387 F.2d 925, 929 (7th Cir. 1967) (allowing an amendment the first day of trial to include additional damages).

Further, plaintiff asserts the Limitation of Liability Act2 cannot be invoked by pleading its provisions as a defense in this action. Plaintiff relies heavily on Cincinnati Gas & Electric Co. v. Abel, 533 F.2d 1001 (6th Cir. 1976).

In Cincinnati Gas the sole issue before the court was whether a defendant in a state court action could plead 46 U.S.C. § 183(a) in his answer or should he be made to file a petition in federal court within six months of receiving notice of the claim pursuant to 46 U.S.C. § 185.3 Plaintiff asserts that the six month limitation should apply to the provisions of § 183(a) as well.

It is well settled that a ship owner can plead the Limitation of Liability Act as an affirmative defense. Deep Sea Tankers v. The Long Branch, 258 F.2d 757, 772 (2d Cir. 1958); The Chickie, 141 F.2d 80 (3d Cir. 1944). It is also firmly established in this circuit that the time limitations imposed by 46 U.S.C. § 185 do not apply to 46 U.S.C. § 183(a). The Chickie, 141 F.2d at 84, 85.

Therefore defendant’s motion to amend its complaint will be granted.

*336 Motion To Strike

Plaintiffs second cause of action is based upon the doctrine of seaworthiness.4 Defendant predicates its motion to strike5 on the belief that a seaworthiness claim can only apply to persons within the ship’s service. Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963); West v. United States, 361 U.S. 118, 120 (1959); Armour v. Gradler, 448 F.Supp. 741 (W.D. Pa. 1978).

Plaintiff asserts that defendant misconstrues the legal basis of Count II of her complaint.

The claim is not based on unseaworthiness as a form of absolute liability imposed by law on the shipowner without regard to fault; rather it is based on a violation of the implied contractual warranty of seaworthiness between parties to a charter-party which is personal to the shipowner and is not subject to the Limited Liability Act, 46 U.S.C. § 183(a).6

We agree with plaintiff that an implied contractual warranty between members of a charter party may give rise to a seaworthiness claim. However such factual conditions do not exist here.

Plaintiff was a passenger and not a charter party7 when aboard the Ho-Tei. While an implied warranty of seaworthiness may be imposed upon the vessel owner in cases concerning crew or cargo it does not extend to passengers. Garrett v. United States Lines, Inc, 574 F.2d 997, 1000 (9th Cir. 1978); 3 Benedict on Admiralty, § 33 (7th ed. 1979), p. 4-13. Therefore no implied warranty of seaworthiness could exist between passenger plaintiff and owner defendant.8 Plaintiff’s second cause of action will be dismissed for failure to state a claim upon which relief may be granted.

*337Finally, plaintiff and defendant each assert different procedures on how this Court should proceed in determining whether § 183(a) applies. Since we do not face that question until liability has been proven we will reserve judgment until that time.

ORDER

The premises considered and the Court being advised,

IT IS ORDERED that the motion of defendant to amend its answer be, and the same is hereby, GRANTED.

IT IS FURTHER ORDERED that the motion of defendant to strike plaintiffs second cause of action be, and the same is hereby, GRANTED.