Hill v. W. Bruns & Co.

• Decision Date: 05 June 1974
• Docket Number: Docket 73-1382.,No. 786,786
• Citation: 498 F.2d 565
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Charles HILL, Appellant, v. W. BRUNS & CO., Appellee.

498 F.2d 565 (1974)

Charles HILL, Appellant, v. W. BRUNS & CO., Appellee.

No. 786, Docket 73-1382.

United States Court of Appeals, Second Circuit.

Argued April 3, 1974.

Decided June 5, 1974.

Lester E. Fetell, Brooklyn, N.Y. (William F. Cioffi, Brooklyn, N.Y., Sergi & Fetell, Brooklyn, N.Y., of counsel), for appellant.

William M. Kimball, New York City (Burlingham, Underwood & Lord, New York City, of counsel), for appellee.

Before HAYS and OAKES, Circuit Judges, and CHRISTENSEN, District Judge.^*

OAKES, Circuit Judge:

Plaintiff-appellant's appeal is from the grant of a motion for summary judgment by Judge Neaher on the ground of laches. In granting the summary judgment, the judge treated the action as having been commenced, as technically it was, on March 20, 1972. In doing so, however, he did not take into account a previous action brought on this same cause against this same defendant-appellee on May 15, 1970. In that earlier action a motion to dismiss on the ground of laches was denied by Judge Zavatt; the action was voluntarily dismissed—without prejudice, however—on the basis of defendant-appellee's argument that service of process on an agent of appellee was of questionable validity. In dismissing the second action, it is our view that Judge Neaher should have taken into account the first, and accordingly we reverse.

Appellant, a longshoreman, was injured on January 5, 1967, aboard the M/S Brunsholm at Pier 13, East River, New York.¹ Appellant was employed by Standard Fruit & Steamship Co. (Standard) and the Brunsholm was owned and operated by W. Bruns & Co., the appellee. On the date of the alleged accident the vessel was under charter from Bruns to Standard. The defendant's answer of June 16, 1970, in the original action raised four affirmative defenses including lack of personal jurisdiction over the defendant, "insufficient" process, failure to state a ground for relief and time bar by statute of limitations, laches or both. In opposition to the motion, appellant urged that the unseaworthiness count was governed by a six-year statute of limitations, the action having been commenced some four months beyond the three-year negligence limitation. On April 19, 1971, Judge Zavatt denied the motion to dismiss on the authority of Larios v. Victory Carriers, Inc., 316 F. 2d 63, 66-67 (2d Cir. 1963), on the basis that the "defendant has proffered no proof whatever as to his prejudice from the delay of four months." Appellee later took appellant's deposition on August 5, 1971, at which time appellant's claim of negligence and unseaworthiness was disclosed to relate to claimed defects in the Brunsholm's winches at Number 4 hatch and hatchboards in the Number 4 'tween deck. Immediately thereafter appellee moved for an order granting leave to file a third party summons and complaint upon appellant's employer, Standard, and to vacate the process alleging that service on Standard as agent of appellee was improper.

At some point following a request by all counsel for reassignment to another judge for trial, the case was transferred from Judge Zavatt to Judge Neaher for pretrial conference, which was held on January 18, 1971. When the case was ultimately called on for trial, it was, on appellant's motion, dismissed without prejudice; apparently it had come to the attention of appellant's counsel that Bruns did in fact have an agent other than Standard, Glaessel Shipping Corp., which had, on prior occasions, accepted service for it in New York.

Meanwhile, on March 20, 1972, appellant had filed a second complaint, that in the current action, and served appellee on March 28 by serving its agent, Glaessel Shipping Corp. Appellee again moved for summary judgment. In connection with its motion for dismissal of the first action, appellee had alleged, through the affidavit of Dr. C. G. Staelin, a partner of appellee, that "As confirmed by the absence of any such entry in the deck log book of M/S Brunsholm under date of January 5, 1967, no actual or claimed injury in the Port of New York on that date to longshoreman Charles Hill was ever brought to the attention of that vessel's Master, Chief Officer or deck officers (mates)." Dr. Staelin additionally alleged that neither the master, chief officer nor any of the deck officers (mates) serving aboard the M/S Brunsholm in January, 1967, were still serving aboard that vessel and that several of those persons were no longer employed by W. Bruns & Co. In connection with the second action, appellee submitted a supplementary affidavit of Dr. Staelin repeating all of the allegations of the first affidavit but going on to say that, following appellant's deposition in reference to the winches at Number 4 hatch and a hatchboard in the Number 4 'tween deck, "After thorough inquiry and search, we were compelled to inform Messrs. Burlingham appellee's attorneys that W. Bruns & Co. could not furnish the requested particulars because W. Bruns & Co. no longer has any 1967 record of any repairs or maintenance to those winches or any 1967 record of any repairs or replacements to those hatchboards." Nothing in either of these affidavits—the only material brought before Judge Neaher by appellee—indicates in any way that appellee had kept records in 1967 or at any other time (other than those entries that might have appeared in its deck log book) of any repairs or maintenance to the winches at Number 4 hatch or at any hatch, nor does anything appear in these affidavits or otherwise to indicate that there were any 1967 records or any other record of any repairs or replacements to hatchboards either at the Number 4 hatch or at any other hatch.

In dismissing appellant's second action as being barred by the lapse of time, Judge Neaher held that in the absence of statute the voluntary dismissal or discontinuance leaves the situation as if the suit had never been filed, Bunger v. United States Blindstitch Machine Corp., 8 F.R.D. 362 (S.D.N.Y.1948),² and considered that the laches question was presented in the context of a suit commenced more than two years after the applicable state statute of limitations had expired. "Thus," Judge Neaher held, the "plaintiff is required to persuade the court anew that adequate excuse exists for what is now a five-year delay and that no prejudice will result to the defendant." The court then went on to hold that no legally sufficient reason for delay appeared in the plaintiff's papers and that the defendant's papers amply demonstrated the difficulties it would encounter in attempting to defend itself against such a stale claim.

In an admiralty suit state statutes of limitations are not strictly applied; instead, the doctrine of laches controls. Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 533, 76 S.Ct. 946, 100 L.Ed. 1387 (1956); Larios v. Victory Carriers, Inc., 316 F.2d at 65. The courts are not to resort to mechanical application of local statutes of limitation in determining the issue of laches. See, e. g., Conty v. States Marine Lines, Inc., 355 F.2d 26, 28 & n. 3 (2nd Cir. 1966); Oroz v. American President Lines, 259 F.2d 636, 638 (2d Cir. 1958), cert. denied, 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed. 2d 572 (1959). No presumption attaches from the expiration of the applicable period of limitations. Larios v. Victory Carriers Inc., 316 F.2d at 66. Accordingly, the "peculiar equitable circumstances" of the case are determinative, Czaplicki...