Kenney v. Trinidad Corporation

Decision Date23 June 1965
Docket NumberNo. 21063.,21063.
Citation349 F.2d 832
PartiesDavid L. KENNEY et al., Appellants. v. TRINIDAD CORPORATION, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Benjamin E. Smith, of Smith, Waltzer, Jones & Peebles, New Orleans, La., for appellants.

Alfred M. Farrell, Jr., and Terriberry, Rault, Carroll, Yancey & Farrell, New Orleans, La., for appellee.

Before RIVES and WISDOM, Circuit Judges, and MORGAN, District Judge.

WISDOM, Circuit Judge:

John Kenney, chief engineer on a tugboat, lost his life March 4, 1956, when a tanker negligently caused the tug to capsize and sink in the Mississippi River near New Orleans.1 His body was never found. Seven years later, Kenney's two children, sued in admiralty for the wrongful death of their father. They rely on Article 2315 of the Louisiana Civil Code creating an action for wrongful death. Unfortunately for the children, Article 2315 limits the right of action to one year.2 The libellants contend that under the maritime doctrine of laches their delay in suing is excusable. They say that they were minors at the time of their father's death, and that their mother, their natural tutrix, was advised by friends and relatives that she had to wait seven years before the death of her husband could be legally established. The question this case presents is whether in an admiralty proceeding the maritime doctrine of excusable laches can keep alive a state-created right of action for wrongful death that, according to state law, has expired. The district court dismissed the action on the libellee's motion for a summary judgment. Because of the "strange principle" that applicability of federal maritime law to a maritime tort on a state's navigable waters depends on whether the injury was fatal or non-fatal,3 we are compelled to affirm.

I.

A. Disposing of certain preliminary matters, we note, first, that in general maritime law, historically, a seaman's right to sue for personal injuries sustained as a result of a maritime accident died with the seaman. A similar archaic rule existed in the common law and was not changed in England until the passage of Lord Campbell's Act, the Fatal Accidents Act of 1846. Every state now has a wrongful death statute, but Congress has given only partial relief to a seaman's surviving dependents by adopting two limited wrongful death statutes. These are the Jones Act, 46 U.S.C. § 688, giving a seaman or his personal representative the right to sue his employer, and the Death on the High Seas Act, 46 U.S.C. 761 et seq., creating a cause of action for any wrongful death "occurring on the high seas beyond a marine league from the shore of any State". Neither statute is applicable to the facts of this case. The only basis for an action for the wrongful death of a seaman on territorial waters within a state (other than an action against an employer) is a state's wrongful death statute. The Harrisburg, 1886, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Butler v. Boston & Savannah S.S. Co., 1889, 130 U.S. 527, 555, 9 S.Ct. 612, 32 L.Ed. 1017.

B. If the plaintiffs may resort to the maritime doctrine of excusable laches, the court below should not have decided the issue on summary judgment. Larios v. Victory Carriers, Inc., 2 Cir. 1963, 316 F.2d 63. Compare McDaniel v. Gulf & South American Steamship Co., 5 Cir. 1955, 228 F.2d 189, with Morales v. Moore-McCormack Lines, 5 Cir. 1953, 208 F.2d 218. The issue of laches depends on the facts and is addressed to the discretion of the trial court. Czaplicki v. S.S. Hoegh Silvercloud, 1956, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387; Gardner v. Panama R. R., 1951, 342 U.S. 29, 30, 72 S.Ct. 12, 13, 96 L.Ed. 31; Pure Oil v. Snipes, 5 Cir. 1961, 293 F.2d 60, 69; Vega v. The Malula, 5 Cir. 1961, 291 F.2d 415, 418.

C. It is clear that in an admiralty case the Court is not bound by Erie and Klaxon.4 Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Levinson v. Deupree, 1953, 345 U.S. 648, 73 S.Ct. 914; 97 L.Ed. 1319. In Levinson v. Deupree, involving a state-created cause of action, the Court observed that "Erie R. Co. v. Tompkins, 304 U.S. 64 58 S.Ct. 817, 82 L.Ed. 1188, is irrelevant; in such cases The court in this case was not, `in effect, only another court of the State'." In Pope & Talbot, Inc. v. Hawn, a diversity suit, the Court declined to apply Erie to a federally-created cause of action (a maritime tort); the Court held that a state rule of contributory negligence was inapplicable to a suit by a carpenter for an injury sustained aboard a ship in navigable waters.

II.

The contention that a seaman's dependents may resort to the doctrine of excusable laches to avoid limitations in a state wrongful death act has led a shadowy existence in dicta ever since The Harrisburg. In The Harrisburg the Supreme Court applied the state statute of limitations but reserved the laches question, intimating that in a proper case the doctrine might apply: "No question arises in this case as to the power of a court of admiralty to allow an equitable excuse for delay in suing, because no excuse of any kind has been shown." 119 U.S. at 214, 7 S.Ct. at 147. In Mejia v. United States, 5 Cir. 1946, 152 F.2d 686, cert. den'd 382 U.S. 862, this Court applied the Louisiana one year limitation period in a case based on the Louisiana action for wrongful death. Judge Borah, speaking for the Court, emphasized the peremptive aspect of Article 2315 but noted, "No equitable reason is set forth in appellants' motion to amend sufficient to justify the delay in the filing of the libel". 152 F.2d at 688.

The question The Harrisburg left open could be said to have been decided by implication in Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210.5 On the facts in Garcia, the dependents of a stevedore killed on board a vessel had a strong case for application of the doctrine of excusable laches: the California statute of limitations had run while the administrator of Garcia's estate had pursued a state compensation remedy later annulled on the authority of Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086. The Court held that expiration of the statutory period extinguished the right of action: "Time has been made of the essence of the right, and the right is lost if time is disregarded. * * * The limitations of the remedy are, therefore, to be treated as limitations of the right."

The language in the Garcia opinion and the rationale underlying it support the basic principle, spelled out in The Tungus, that when a state's wrongful death act is relied on in admiralty, all of the pertinent substantive law of the state rides with the libel.6 In The Tungus v. Skovgaard, 1959, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, a maintenance foreman for a stevedoring company, while on board of the Tungus, slipped, fell, and breathed his last in a tank of hot coconut oil. A majority of the Court held that the New Jersey statute creating a right of action where death is caused "by a wrongful act, neglect or default" encompasses an action for death caused by unseaworthiness. Mr. Justice Stewart, for the Court, rejected the "broad argument" that the Court "disregard completely the conditions which the State has put upon the right it created". After quoting from The Harrisburg, the Court said:

"The decisions of this Court long ago established that when admiralty adopts a State\'s right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached. * * * The legislative history of the Death on the High Seas Act discloses a clear congressional purpose to leave `unimpaired the rights under State statutes as to deaths on waters within the territorial jurisdiction of the States.\' S.Rep.No. 215, 66th Cong., 1st Sess. 3; H.R. Rep.No.674, 66th Cong., 2d Sess. 3. The record of the debate in the House of Representatives preceding passage of the bill reflects deep concern that the power of the States to create actions for wrongful death in no way be affected by enactment of the federal law. 59 Cong.Rec. 4482-4486." The Tungus v. Skovgaard, 358 U.S. 588, 593, 79 S.Ct. 503, 506.

The rational basis for The Tungus, The Harrisburg, and this case is a conflict of laws approach. The court of the forum enforcing a right created under the laws of another jurisdiction must give effect to the right as it is defined in that other jurisdiction. As in conflicts generally, however, there are exceptions. Thus, a state's substantive law will not be enforced if it detracts from a right created by federal maritime law. Garrett v. Moore-McCormack Co., 1942, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239. And purely procedural provisions may be overlooked. Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914.

Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, underscores the Supreme Court's conflicts approach to the problem. In that case the administrator of the decedent's estate brought a wrongful death action in the district court under a Kentucky statute, which had a one year limitation period. The administrator, by mistake, had been appointed to act in the wrong county. After a year had passed, he corrected the defect and moved to amend his pleadings accordingly. The district court held that the amendment was barred by the state statute of limitations, because a Kentucky court would not have permitted the amendment of the pleadings to relate back to the time of the original filing of the suit. The court of appeals reversed; the Supreme Court affirmed. After pointing out that Erie was irrelevant, Justice Frankfurter, for the court, held that the district court should have enforced the state wrongful death statute as any court enforces a cause of action created under the statute of a foreign nation.

"The District Court adopted and enforced the obligatio created by the State of Kentucky not because it sits in Kentucky and
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