Dawson v. Fernley & Eger

• Decision Date: 11 August 1961
• Docket Number: Civ. A. No. 3250,3491,Civ. A. No. 3534,Admiralty No. 8116,3432.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Rufus DAWSON, Plaintiff, v. FERNLEY & EGER, Defendant. Walter FENTRESS, Libellant, v. The SS PIONEER GLEN, Respondent. Roosevelt LOGAN, Plaintiff, v. SAN FERNANDO COMPANIA, Defendant. William LUNDY, Plaintiff, v. Albert SCHJELDERUP, Defendant. Clarence GATLIN, Plaintiff, v. TRANSAMERICAN STEAMSHIP CORP., Defendant.

196 F. Supp. 816

Rufus DAWSON, Plaintiff, v. FERNLEY & EGER, Defendant.

Walter FENTRESS, Libellant, v. The SS PIONEER GLEN, Respondent.

Roosevelt LOGAN, Plaintiff, v. SAN FERNANDO COMPANIA, Defendant.

William LUNDY, Plaintiff, v. Albert SCHJELDERUP, Defendant.

Clarence GATLIN, Plaintiff, v. TRANSAMERICAN STEAMSHIP CORP., Defendant.

Civ. A. No. 3250, Admiralty No. 8116, Civ. A. Nos. 3534, 3491, 3432.

United States District Court E. D. Virginia, Norfolk Division.

August 11, 1961.

Sidney H. Kelsey, Norfolk, Va., for plaintiffs.

Steingold, Steingold, Chovitz & Boyce, Norfolk, Va., for libellant.

Seawell, McCoy, Winston & Dalton, Norfolk, Va., for defendants.

WALTER E. HOFFMAN, District Judge.

These actions, not consolidated for trial, involve substantially the same issues with respect to the defenses of limitation of actions and laches. For the purposes stated herein, the ruling of the Court will be applicable to each case, but separate orders will be entered and a copy of this memorandum will be made a part of the record in each case.

Dawson v. Fernley & Eger

In Dawson, the plaintiff-longshoreman filed his complaint on July, 12, 1960, alleging that he was injured on July 17, 1957, when the defendant, as owner and operator of the SS Ferncliff, breached its contractual warranty of seaworthiness and plaintiff was caused to slip or fall into a space between bags of cargo, thereby sustaining injuries. By an amended complaint filed February 25, 1961, plaintiff alleges that there has been no undue prejudice to defendant, and that there was excusable delay in bringing the action as plaintiff was receiving compensation payments until approximately November, 1959. Defendant contends that the action is time-barred under the laws of the State of Virginia and is otherwise barred by the principle of laches.

Thus we have a civil action instituted under the diversity of citizenship statute, 28 U.S.C.A. § 1332, five days prior to the expiration of three years from the date the cause of action arose. The complaint does not allege negligence and recovery is sought on the contractual theory of a breach of warranty of seaworthiness.

Fentress v. SS Pioneer Glen

The libel in this case was filed on the admiralty side of the court on July 13, 1960. It alleges that the libellant-longshoreman was injured on or about December 10, 1957, while assisting in loading the respondent vessel. Unseaworthiness and negligence are stated as the basis of the action. Respondent has moved to dismiss on the grounds that there is no inexcusable delay in filing the action and that respondent would be materially prejudiced by being required to defend the action after a period of more than two and one-half years. A supplementary libel alleges that respondent had notice of libellant's injury and that the Jones Act, 46 U.S.C.A. § 688 applies, thus giving three years within which to file the action. It should be noted that the libellant was a longshoreman, employed by Southern Stevedoring Corporation—the stevedore—and no employment arrangement existed between libellant and the respondent. A hearing on the laches question was conducted and will be the subject of comments hereinafter made. Libellant's claim for maintenance and earned wages is, of course, not maintainable against the vessel or its owner as libellant is a longshoreman.

Logan v. San Fernando Compania

Plaintiff-longshoreman filed this civil action on April 3, 1961, alleging that he was injured on November 7, 1958, due to the unseaworthiness of the defendant's vessel, the SS Kronos. Jurisdiction is said to exist by reason of diversity of citizenship and the amount in controversy. The amended complaint alleges both unseaworthiness and negligence of the ship's officers and crew. Defendant shipowner urges that the action is time-barred under the laws of the State of Virginia and is otherwise barred by the principle of laches.

Lundy v. Albert Schjelderup

Plaintiff-longshoreman filed this civil action on March 1, 1961, alleging that he sustained injuries on May 13, 1958, due to the unseaworthiness of the defendant's vessel, the SS Trudvang. Jurisdiction is again predicated upon diversity of citizenship and the amount in controversy. The claimed unseaworthiness of the vessel refers to a defective payloader, apparently owned and brought aboard the vessel by the stevedore for whom the plaintiff worked.

Gatlin v. Transamerican Steamship Corp.

In this civil action the plaintiff-longshoreman filed his complaint on January 13, 1961, alleging that he sustained injuries on July 19, 1958, due to the negligence of the defendants and the unseaworthiness of defendants' vessel, the SS Transcaribbean. It is apparent from the pleadings that plaintiff was not employed by the defendants, but no contention is made that the Jones Act applies. Here, also, the defendants contend that the action is time-barred under Virginia law and by the application of the doctrine of laches.

Discussion

In each of these cases the cause of action (or accident) occurred in Virginia. The pertinent statutes of Virginia are § 8-13 and § 8-24 of the Code of Virginia, 1950, as amended. Section 8-13, to the extent that it may be applicable, reads as follows:

"Every action to recover money which is founded upon an award, or on any contract, other than a judgment or recognizance, shall be brought within the following number of years next after the right to bring the same shall have first accrued, that is to say:

* * * * * *

"If it be upon any other contract express or implied within three years * * *."

Turning to § 8-24, we find:

"Every action for personal injuries shall be brought within two years next after the right to bring the same shall have accrued. Every personal action, for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued. The amendment extending the period within which an action for personal injuries may be brought under this section to two years shall not apply to any cause of action arising prior to July one, nineteen hundred fifty-four."

The several inquiries before the Court may be summarized as follows:

(1) Is a longshoreman's claim for personal injuries alleging unseaworthiness grounded in tort or contract?

(2) Assuming arguendo that a longshoreman's claim for personal injuries predicated upon an allegation of unseaworthiness sounds in contract at the option of the plaintiff, what is the effect of § 8-24 of the Code of Virginia, 1950, as amended in 1954?

(3) Should the Court look to the state statute as a bar in a civil action instituted by a longshoreman, or should the Court apply the admiralty principle of laches where the accident is of a maritime nature?

(4) Does a longshoreman, employed by a stevedore who is engaged in loading or unloading a vessel, have a right to sue under the Jones Act in an action instituted against the shipowner or operator?

That a longshoreman has no right to sue under the Jones Act, absent a specific contract of employment with the shipowner, is obvious from a study of the decisions and legislative history of the Jones Act and Longshoremen's & Harbor Workers' Act, 33 U.S.C.A. § 901 et seq. In 1926, twenty years prior to the celebrated decision in Seas Shipping, Inc. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, the Supreme Court held that the Jones Act applied to longshoremen. International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157. In so doing the Court expressed what it thought to be the will of Congress when it said:

"We cannot believe that Congress willingly would have allowed the protection to men engaged upon the same maritime duties to vary with the accident of their being employed by a stevedore rather than by a ship. The policy of the statute Jones Act is directed to the safety of the men and to treating compensation for injuries to them as properly part of the cost of the business. If they should be protected in one case they should be in the other. In view of the broad field in which Congress has disapproved and changed the rule introduced into the common law within less than a century, we are of opinion that a wider scope should be given to the words of the act, and that in this statute `seamen' is to be taken to include stevedores employed in maritime work on navigable waters as the plaintiff was, whatever it might mean in laws of a different kind."

The Haverty decision provoked immediate action by Congress through the passage of the Longshoremen's & Harbor Workers' Act in 1927. The Supreme Court having rendered the stevedore amenable to an action under the Jones Act for an injury to a longshoreman-employee, Congress took away this judicially created right within six months thereafter. 33 U.S.C.A. §§ 903, 905. Now it is clear that longshoremen, whether injured aboard ship or on land, have no right of action under the Jones Act as they are not members of the crew of a vessel plying in navigable waters. Swanson v. Marra Bros., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045. The Jones Act does not support a suit by a ship worker against a shipowner for negligence, even if the ship worker be deemed a seaman pro hac vice, because actions under the statute are maintainable only by employees against their own employer. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692; Blankenship v. Ellerman's Wilson Line New York, Inc., 4 Cir., 265 F.2d 455.

We turn to the question as to whether the longshoreman's claim for personal injuries alleging unseaworthiness is contractual or should be limited by conceptions of negligence. Since 1946, it has been recognized that a longshoreman stands...