226 So.2d 779 (La.App. 3 Cir. 1969), 2730, Istre v. Diamond M. Drilling Co.

Docket Nº:2730.
Citation:226 So.2d 779
Party Name:John ISTRE, Plaintiff-Appellant, v. DIAMOND M. DRILLING COMPANY et al., Defendants-Appellees.
Case Date:June 12, 1969
Court:Court of Appeals of Louisiana

Page 779

226 So.2d 779 (La.App. 3 Cir. 1969)

John ISTRE, Plaintiff-Appellant,


DIAMOND M. DRILLING COMPANY et al., Defendants-Appellees.

No. 2730.

Court of Appeals of Louisiana, Third Circuit.

June 12, 1969

Dissenting Opinion June 16, 1969. On Rehearing Sept. 24, 1969. Dissenting Opinion on Rehearing Sept. 26, 1969.

J. Minos Simon and John Rixie Mouton, Lafayette, for plaintiff-appellant.

Caffery, Duhe & Davis, by W. Eugene Davis, New Iberia, Voorhies, Labbe , Fontenot, Leonard & McGlasson, by W. Gerald Gaudet, Davidson, Meaux, Onebane & Donohoe, by James E. Diaz, Lafayette, for defendants-appellees.

Before TATE, FRUGE and HOOD, JJ.

Page 780

FRUGE , Judge.

Plaintiff, John Istre, filed suit seeking recovery for personal injury damages allegedly resulting from an accident which occurred on or about November 29, 1965, while he was working as a member of the crew of a submersible drilling barge situated in navigable waters in St. Mary Parish, Louisiana.

Plaintiff named the following defendants, whose participation in the activities giving rise to the accident sued upon, insofar as is pertinent herein, are claimed to be as follows:

Kilroy Drilling and Production Company ('Kilroy')--plaintiff's employer and owner of the drilling barge;

St. Paul Marine and Fire Insurance Company--Kilroy's insurer;

Diamond M. Drilling Company--the successor of Kilroy;

Dia-Log Company ('Dia-Log')--the supplier of equipment and personnel for a 'fishing tool operation' being conducted aboard the drilling barge at the time of the accident;

Travelers Insurance Company--dia-Log's insurer;

Wilson Supply Company ('Wilson')--the furnisher of personnel for the operation;

American General Insurance Company--Wilson's insurer;

Southern Natural Gas Company--the owner of the lease and well at the site of the accident.

The suit against Kilroy, as employer, and its successor Diamond M., states a cause of action for negligence under the Jones Act (46 U.S.C. § 688), and for breach of the warranty of seaworthiness under the General Maritime Law. As to the other defendants, plaintiff concedes that they are neither his employers nor the owners of the barge and that therefore his suit against them is based solely upon negligence.

The suit against all defendants was filed in the Sixteenth Judicial District Court for the Parish of Iberia on December 21, 1967, more than two years after the date of the alleged accident.

Defendants, Dia-Log, its insurer, Wilson, its insurer, and Southern Natural Gas, filed Exceptions of Prescription, asserting that the claim against them was barred by the prescription of one year under L.S.A.-C.C. Article 3536. Plaintiff countered, asserting that under the admiralty doctrine of laches, the suit was timely.

The trial court, after hearing, sustained the exceptions, holding that Article 3536 controlled, and dismissed plaintiff's suit as to these defendants. From this ruling the plaintiff appeals.


The only issue to be decided on this appeal is whether the suit against appellees is barred by prescription, or, in maritime terminology, whether it is barred by laches. In its simplest form, the issue presented by the Exceptions of Prescription filed by the appellees, can be stated as follows: What is the appropriate limitation period to be applied to the filing of a suit in a State court by a seaman seeking personal injury damages against a non-employer defendant based upon General Maritime Law (the employer being a co-defendant in the suit under a Jones Act and General Maritime claim)?

The determination of the appropriate limitation period to be applied is somewhat more complex than might be assumed. The background to the general problems of administering the traditional General Maritime Law has been aptly termed 'The

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Devil's Own Mess,' 1 and the particular type of maritime operations involving workers who do not ordinarily sail the high seas, such as this plaintiff, has been called an 'ambiguous, amphibious area.' 2 These problems apparently extended, at least in the past, even with regard to the application of admiralty's doctrine of laches.


In order to place the issue in basic perspective, we believe it appropriate to sketch out very briefly the historical background of the issue.

Prior to 1920, the only basis for recovery of personal injury damages by a seaman against his employer was the traditional General Maritime Law. 3 This action against the seaman's employer, aside from the maintenance and cure claim, was for breach of the warranty of seaworthiness, a species of liability without fault 4 and, theoretically at least, the seaman had no recourse against the employer under General Maritime Law for damages resulting from the employer's negligence but not constituting unseaworthiness. 5

The General Maritime Law includes personal injury claims by a seaman, including 'vicarious' seamen 6, against a 'third party' (non-employer) shipowner or shipowner Pro hac vice 7 for breach of the warranty of seaworthiness in some circumstances 8, and against a third party, whether or not he is the shipowner, for negligence. 9

Non-seamen derive no direct benefit from the Jones Act nor (except for 'vicarious' seamen) from the warranty of seaworthiness, but they have a maritime personal injury action against any party negligently causing them injury in a maritime situation, 10 which is the same action that seamen have against negligent 'third parties' who are neither their employers and who do not owe them the warranty of seaworthiness.

In the case at hand, we have a seaman seeking personal injury damages from his employer on a combined Jones Act and General Maritime Law claim, and against three 'third parties' who are not shipowners or shipowners Pro hac vice, but are alleged to be negligent along with the employer, on a General Maritime Law claim.


The admiralty doctrine of laches has always been the time limitation applied in Federal courts to the filing of suits for personal injuries under the General Maritime Law. 11 This doctrine has two requirements for its application as a bar to the maritime claim, namely, inexcusable delay and prejudice from the delay to the party asserting the defense of laches. 12

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In 1920, Congress enacted the Jones Act (46 U.S.C. § 688) which, basically, extended the seaman's right against his employer to actions for recovery of personal injury damages arising from the employer's negligence. The time limitation for the filing of a Jones Act suit is now three years. 13

It has been determined that a final decision in a Jones Act suit not combined with a claim under the General Maritime Law is nevertheless conclusive upon a later suit under the General Maritime Law 14 against the employer on the same accident. This determination entailed the subsequent holding that the minimum time limitation for the filing of a suit by a seaman against his employer for personal injury damages under the General Maritime Law combined with a Jones Act claim is three years, for, to allow a shorter limitation in such a suit would be to abrogate the right of a seaman to file a Jones Act suit at any time within three years from the date of the accident. 15

This also encompassed the holding that when such a suit is brought in a State court under the 'saving to suitors' clause, the State court may not impose its own statute of limitations in such a suit if the statute calls for a shorter period than three years. 16


A complicating factor to the application of the doctrine of laches has resulted from the jurisprudential adoption of a presumption of laches if the 'analogous' statutory limitation period has expired, and a presumption of no laches if the 'analogous' statutory limitation period has not elaspsed. 17 The difficulty arises in determining which statute of limitation is analogous.


Plaintiff argues that the decisions cited and discussed in his brief 18 call for the application of the admiralty doctrine of laches herein rather than the mechanical imposition of any statutory limitation period as the court below ruled, and that the three year period of the Jones Act is the analogous statutory limitation to be used as the reference guide; or, regardless of the properly analogous statute of limitation, that plaintiff's suit against appellees is not barred by laches as appellees have not even claimed to have been prejudiced by any delay.

Kilroy, although not directly involved in the Exceptions of Prescription filed by its co-defendants, is interested in the resolution of this issue (presumably for the sake of retaining company in defending the suit and in possibly sharing the payment of any judgment which might be rendered herein), and it has filed an Amicus curiae brief also supporting the proposition that

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plaintiff's suit against defendants-appellees is not barred by laches. 19

On the other hand, the briefs of the defendants-appellees, collectively, cite us to other authorities 20 which, it is urged, call for the application of L.S.A.-C.C. Article 3536, providing a one year prescriptive period; or that the Louisiana statute is the appropriate statute of reference for the application of the doctrine of laches if that doctrine is applicable, which they deny. Additionally, defendants-appellees take issue with the interpretation placed by plaintiff and Kilroy upon the declarations of the authorities cited in their respective briefs.

It would require an even longer dissertation than is hereinafter set forth to discuss at length all of the points and interpretations contained in all of the briefs filed and in the cases cited therein as well as the decisions cited and...

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