Aslanidis v. U.S. Lines, Inc.

Decision Date27 September 1993
Docket Number1677,Nos. 1405,D,s. 1405
Citation7 F.3d 1067
Parties, 26 Fed.R.Serv.3d 1451, Bankr. L. Rep. P 75,484 Emil ASLANIDIS, Plaintiff-Appellant, v. UNITED STATES LINES, INC., United States Lines (S.A.), Inc., United States Lines, Inc., Reorganization Trust, United States Lines (S.A.), Inc., Reorganization Trust, Defendants-Appellees. Emil ASLANIDIS, Plaintiff-Appellant, v. BRANDEIS INTSEL & CO., INC., Brandeis Division of Pechiney World Trade USA, Inc., John Doe I, John Doe II, John Doe III, Samancor, Ltd., South African Container Depots, Ltd. and Rennies Freight Services, Ltd., Defendants-Appellees. BRANDEIS INTSEL & CO., INC. and Brandeis Division of Pechiney World Trade USA, Inc., Third-Party-Plaintiffs, v. SAMANCOR, LTD., South African Container Depots, Ltd. and Rennies Freight Services, Ltd., Third-Party-Defendants. ockets 92-9265, 92-9263.
CourtU.S. Court of Appeals — Second Circuit

Francis J. Dooley, Orange, NJ, for plaintiff-appellant.

Nancy J. Heller, New York City (Morris Stern, Stern, Dubrow & Marcus, New York City and Maplewood, NJ, of counsel), for defendants-appellees U.S. Lines, Inc., U.S. Lines (S.A.), Inc. and U.S. Lines, Inc. and U.S. Lines (S.A.), Inc. Reorganization Trust.

John J. Wrenn, Brooklyn, NY, for defendant-appellee Brandeis Intsel & Co., Inc.

John R. Foster, New York City (Waesche, Sheinbaum & O'Regan, P.C., of counsel), for defendant-appellee Samancor, Ltd.

Peter J. Zambito, New York City (Dougherty, Ryan, Giuffra, Zambito & Barra, of counsel), for defendants-appellees South African Container Depots, Ltd., and Rennies Freight Services, Ltd.

Before: CARDAMONE and MAHONEY, Circuit Judges, and PARKER, District Judge. *

CARDAMONE, Circuit Judge:

Emil Aslanidis appeals from twin October 20, 1992 judgments of the United States District Court for the Southern District of New York (Kram, J.), dismissing his claims against defendants in two related suits arising from a toxic fire that occurred aboard an American vessel sailing on the high seas. Aslanidis, a merchant seaman working on the vessel, was injured by the fumes. He alleges the district court wrongly granted summary judgment to the owner of the ship in one suit, and in favor of the manufacturer, packager, transporter and purchaser of the cargo that caught fire in the other.

With respect to the first cause of action, when the ship's owner declared bankruptcy, plaintiff petitioned for relief from the automatic stay, wrongly thinking that time was on his side. But, in so doing, he became the clock-setter; so that when he later sued the owner of the ship, time had run out and his claim was barred by the statute of limitations. Time limitations similarly barred Aslandis' second suit. Although his intent to sue the manufacturer--and the other defendants that had charge of the flammable phosphorus--was properly conceived in the womb of time, notice of it to them was too long

                delayed in delivery.   Hence, we affirm both judgments
                
BACKGROUND
A. The Phosphorus Fire

In 1985 Aslanidis was employed as a seaman aboard the S.S. American Rigel (RIGEL), a container vessel owned and operated by United States Lines, Inc. (U.S. Lines). In April of that year, the RIGEL commenced a scheduled three-month voyage from its home port in New York City to South Africa and then to South America before returning. Upon arrival in South Africa, the RIGEL loaded a sea container holding 76 steel drums of phosphorus, a highly flammable chemical element, which must be transported in a water blanket to keep it from coming into contact with the air. Phosphorus exposed to air ignites spontaneously.

The phosphorus on the RIGEL was manufactured by Samancor, Ltd. of South Africa; it had been sold to Brandeis Intsel Africa "free-on-board," which company in turn sold the shipment to Brandeis Intsel Ltd., London (Brandeis London) "free-on-board." Brandeis London then sold the shipment to Brandeis Intsel & Co. (Brandeis New York) "cost-insurance-freight (CIF) New York." During these paper transactions, Samancor had kept the phosphorus drums in its South Africa plant stowed in a sea container supplied by U.S. Lines. When the paperwork was completed, the manufacturer arranged with Rennies Freight Services, Ltd. (Rennies) to carry the sea container from its factory to the Durban, South Africa docks for loading on the RIGEL.

On April 30, 1985 while the phosphorus shipment was en route to Durban, it was damaged in a motor vehicle accident. Upon learning of the accident, Samancor obtained a replacement sea container from U.S. Lines and contracted with South African Container Depots, Ltd. (SACD) to transfer all 76 drums of phosphorus from the damaged receptacle into the new one. Samancor instructed SACD that the phosphorus needed to be kept under water. The restowing was done carelessly, some of the nails that were hammered into supports within the sea container pierced four of the phosphorus drums and its surrounding water shield, causing the container's liquid blanket to commence leaking.

At Samancor's direction, Rennies transported the new container to the port at Durban, where it was loaded on the RIGEL for transport to the United States. On May 22, 1985 while the merchant vessel was in the South Atlantic off the coast of Brazil, the water blanket deflated and phosphorus from the four damaged drums made contact with the air and self-ignited. The resulting fire was quickly extinguished by the ship's crew, but toxic fumes emitted from the smoldering container had been released. Aslanidis alleges in his complaint that these fumes injured him and seven other RIGEL crew members.

Following the fire, the RIGEL was diverted to Salvadore, Brazil, where its cargo was off-loaded and examined. The 72 undamaged drums of phosphorus were restowed in another container and returned to the ship for its continuing voyage to New York; the four damaged drums were jettisoned at sea. On June 6, 1985 the RIGEL arrived at the Howland Hook Marine Terminal in Staten Island, New York, where the phosphorus-bearing container was stripped by personnel from the New York City Fire Department, U.S. Lines, and its insurers. An ensuing investigation found several of the drums to be leaking, but determined that the chemical material inside was sound. Nevertheless, Brandeis New York indicated it would not accept the shipment, and Samancor agreed to take back the damaged cargo and replace it with conforming goods.

B. Proceedings Below
1. Action Against U.S. Lines

After the May 1985 fire, plaintiff Aslanidis attempted to file suit against U.S. Lines but was prevented from doing so because on November 24, 1986 the owner of the RIGEL and its parent company sought bankruptcy protection in the Southern District of New York and were granted an automatic stay of all claims under 11 U.S.C. § 362 (1988). As a result, Aslanidis petitioned the Southern District Bankruptcy Court (Blackshear, J.) pursuant to 11 U.S.C. § 108(c) (1988) for On January 24, 1992--58 days after the bankruptcy court's action--Aslanidis commenced suit against U.S. Lines under general maritime law and the Jones Act, 46 U.S.C.App. § 688 (1988), in the Southern District of New York. In his complaint Aslanidis alleged that U.S. Lines was negligent in its handling of the phosphorus cargo, breached the warranty of seaworthiness of the RIGEL, and violated its duty of maintenance and cure while its employee seaman was unfit for duty. U.S. Lines responded by moving for dismissal of the complaint under Fed.R.Civ.P. 12(b)(6), or in the alternative, for summary judgment under Fed.R.Civ.P. 56 because Aslanidis' action was barred under the three-year statutes of limitations found in the Uniform Statute of Limitations for Maritime Torts, 46 U.S.C.App. § 763a (1988), and the Jones Act. Aslanidis countered that these applicable time bars were "tolled" or suspended while U.S. Lines was protected by the automatic stay provision of the Bankruptcy Code.

                limited relief from the stay.   On November 27, 1991 the bankruptcy court granted Aslanidis such relief, permitting him to pursue the instant claim
                

In an order dated October 16, 1992 Judge Kram granted U.S. Lines' motion for summary judgment. In so doing, she held the bankruptcy court's stay did not toll the two maritime statutes of limitations. According to the district court, Aslanidis was required to commence his action within three years of the date of his alleged injury, or within 30 days of the lifting of the automatic stay under the Bankruptcy Code. Aslanidis' January 24, 1992 complaint--filed over six years after the ship fire and 58 days after the lifting of the bankruptcy stay--was not timely under either measure and, accordingly, it granted the motion terminating Aslanidis' action against U.S. Lines.

2. Action Against the Other Parties

Meanwhile, Aslanidis had filed a separate complaint on May 23, 1988 in the United States District Court for the District of New Jersey, against various parties--other than U.S. Lines--that had handled the phosphorus. Aslanidis alleged they were negligent and reckless and thus liable for the injuries he incurred as a result of the May 22, 1985 fire on the RIGEL. In this complaint, Aslanidis named as defendants Brandeis New York, Union Carbide Corp. (which by consent order was subsequently released from the action), and three "John Does." Aslanidis maintains he employed the "John Doe" pleading because he was unable to ascertain the names of the other defendants involved in the transportation and packaging of the phosphorus.

Following January 1990 discovery, Brandeis New York filed a third-party complaint against the phosphorus manufacturer, Samancor, and the South African transporters and repackagers, Rennies and SACD. Brandeis New York's pleading apparently alerted Aslanidis to the identities of the parties that had handled the sea container, and on May 25, 1990, he amended his complaint to substitute...

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