Burns v. Marine Transport Lines, Inc.

• Citation: 207 F. Supp. 276
• Parties: Irene S. BURNS, as Administratrix of the Estate of Robert James Burns, deceased, Plaintiff, v. MARINE TRANSPORT LINES, INC., (sued herein as Marine Transport Company), Defendant.
• Decision Date: 09 July 1962
• Court: U.S. District Court — Southern District of New York

207 F. Supp. 276

Irene S. BURNS, as Administratrix of the Estate of Robert James Burns, deceased, Plaintiff, v. MARINE TRANSPORT LINES, INC., (sued herein as Marine Transport Company), Defendant.

United States District Court S. D. New York.

July 9, 1962.

Spero V. Soupios, New York City, for plaintiff. Anthony M. Lanzone, New York City, of counsel.

Cadwalader, Wickersham & Taft, New York City, for defendant. George M. Vetter, Jr., New York City, of counsel.

FEINBERG, District Judge.

Defendant has moved for judgment on the pleadings under Rule 12(c), Fed. Rules Civ.Proc., 28 U.S.C.A., claiming that certain of plaintiff's claims are either time barred or legally insufficient. The action is brought by a seaman's administratrix who sets forth what at first glance appears to be two but is actually four causes of action. All rest upon the same alleged facts: while plaintiff's intestate was a crewman aboard defendant's vessel, the "Marine Trader," he was served and ate poisonous barracuda meat on July 25, 1955, which caused serious injury, required his hospitalization and eventually brought about his death on March 5, 1958.

The "first" cause of action is for plaintiff's intestate's pain and suffering prior to death ("pain and suffering action") and the "second" is for damages for his death ("wrongful death action"). Each "cause of action," however, is based on two distinct theories, negligence under the Jones Act, 46 U.S.C.A. § 688, and unseaworthiness, which have been commingled. Plaintiff has consequently set forth a pain and suffering action and a wrongful death action based both on negligence under the Jones Act and unseaworthiness, making four in all, and her complaint and defendant's motion will be considered from the perspective of this analysis.¹ For reasons set forth below, two of these are dismissed — the pain and suffering action under the Jones Act and the wrongful death action based on unseaworthiness.

I

Defendant claims that the "first cause of action for personal injuries" is barred by a three-year limitation period. 45 U.S.C.A. § 56.² As stated above, the "first" cause of action sets forth both Jones Act and unseaworthiness pain and suffering actions. Defendant's contention will first be considered as to the Jones Act pain and suffering action.

The Jones Act, by incorporating provisions of the Federal Employers' Liability Act, creates two causes of action for negligence — "One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death."³ The action for decedent's pain and suffering accrues at the time of injury, while the wrongful death action accrues at death. Reading Co. v. Koons, 271 U.S. 58, 46 S.Ct. 405, 70 L.Ed. 835 (1926); O'Neill v. Cunard White Star Ltd., 69 F.Supp. 943 (S.D.N.Y.1946); Rodzik v. New York Central R. R., 169 F.Supp. 803 (E.D.Mich.1959). Plaintiff began her action by filing a complaint on December 28, 1959. This date is more than three years after the date on which her intestate was injured, and her Jones Act pain and suffering action is, therefore, time barred.⁴ Defendant has not claimed that plaintiff's Jones Act wrongful death action (which is part of the "second" cause of action) is time barred, and, of course, it remains.⁵

II

There remains for consideration, however, the timeliness of so much of the "first" (pain and suffering) cause of action as is based on unseaworthiness. The unseaworthiness action was not created by the Jones Act, and was known to the general maritime law prior to the enactment of that statute, The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760 (1903), although in skeletal form compared to its present robust and ever-expanding shape. It is theoretically not grounded in, and is distinct from, the negligence for which a Jones Act action affords redress. Congress has enacted no limitation period specifically for unseaworthiness actions and precedent indicates that, despite defendant's contention to the contrary, the Jones Act limitations period is inapplicable.

In McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed. 2d 1272 (1958), the Supreme Court held that a state court may not apply to an unseaworthiness action a state statute which provides for a limitations period shorter than the Jones Act period, reasoning that this would limit the Jones Act right of action which the plaintiff must join with his unseaworthiness suit if he wishes to sue on both theories. The Court expressly left open the question of "* * * whether a state court is free to apply its own statutes of limitation to an admiralty right of action for which no special limitation is prescribed, or whether it is bound to determine the timeliness of such actions by the admiralty doctrine of laches." (at 357 U.S. 224 at 78 S.Ct. 1203).⁶

There is compelling authority in this Circuit for applying the doctrine of laches to unseaworthiness actions and state statutes of limitations as convincing but not inflexible guides when the laches doctrine is used. In LeGate v. The Panamolga, 221 F.2d 689 (2 Cir. 1955), the Court of Appeals reversed a District Court's holding that, inter alia, a longshoreman's admiralty action for unseaworthiness was barred by laches because New York's three-year limitations on actions for negligence had run. The Court of Appeals distinguished negligence from unseaworthiness and held that as to the cause of action based on the latter theory, the analogous statute for determining laches was § 48(3) of the New York Civil Practice Act, which imposes a six-year period of limitations on actions for personal injuries other than negligence actions. See also Campanile v. Societa G. Malvicini, 170 F. Supp. 667 (S.D.N.Y.1959).

After LeGate, the same Court, in Oroz v. American President Lines, Ltd., 259 F.2d 636 (2 Cir. 1958), held that the doctrine of laches and not a state statute of limitations should be applied to unseaworthiness actions, even if brought on the law side. The state statute of limitations which would otherwise be applicable was not thereby rendered irrelevant, however. The Court applied the relevant New Jersey statute by analogy as a "rule-of-thumb" in determining whether plaintiff's delay was inexcusable (259 F.2d at 639). Subsequent decisions in this Court, whenever New York law furnished the appropriate analogy, have continued to apply the six-year statute applied in LeGate in deciding the timeliness of unseaworthiness actions under the laches doctrine, Hernandez v. The SS Flying Arrow, 181 F. Supp. 951 (S.D.N.Y.1959); Phillips v. The Hellenic, 179 F.Supp. 5 (S.D.N.Y. 1959); Campanile v. Societa G. Malvicini, 170 F.Supp. 667 (S.D.N.Y.1959); contra, Baez-Geigel v. American Foreign S.S. Corp., 171 F.Supp. 359 (S.D.N.Y. 1959).

On the bare record before me, it is not clear what state statute of limitations might appropriately be considered as an analogy in applying the doctrine of laches.⁷ The decisions referred to above make clear that if New York law is to be looked to, then the six-year period of N.Y.C.P.A. § 48(3) furnishes the appropriate analogous measure of timeliness.⁸ Defendant has not raised the issue of laches on this motion, although laches is pleaded in its answer. On this record, then, I deny so much of defendant's motion based on the three-year Jones Act statute of limitations as applied to the pain and suffering claim based upon unseaworthiness. This denial, however, is without prejudice to defendant's right to raise at an appropriate time the issue of laches or the issue of which state's survival statute applies.⁹

No contention is made that the wrongful death claim based upon unseaworthiness is untimely. However, defendant does argue that this cause of action is defective and should be dismissed because a wrongful death action based upon unseaworthiness does not exist under general maritime law and, therefore, fails to state a claim upon which relief can be granted. Defendant does not make this contention with regard to the pain and suffering action based upon unseaworthiness and confines itself there to the argument, already discussed, that that action is untimely. Therefore, it is necessary now to consider whether the wrongful death action based upon unseaworthiness fails to state a claim upon which relief may be granted.

III

Two principal sources suggest that there cannot be a wrongful death action based upon unseaworthiness: one is the old, and frequently cited, general maritime rule that death ends the right to sue;¹⁰ the other is Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686 (1930).

The Supreme Court held in Lindgren that an action under the Jones Act for the negligently caused death of a seaman may be brought by no representative of the decedent other than one specifically named in the statute; in the absence of such a beneficiary, a death action for negligence could not be brought under the general maritime law or a state wrongful death statute. The Court held that the Jones Act, Congress' attempt to fashion remedies for seamen and certain of their beneficiaries for injuries or death caused by negligence, had to be deemed the "paramount and exclusive" source of such remedies, one which "supersedes the operation of all state statutes dealing with that subject." Lindgren v. United States, supra, 281 U.S. at p. 47, 50 S.Ct. 207, at p. 211, 74 L.Ed. 686. In a dictum, the Court stated that had the libel in the case before it been based on unseaworthiness, it would also have concluded that the Jones Act excluded the operation of state wrongful death acts for the purpose of making an unseaworthiness claim (281 U.S. at 48, 50 S.Ct. at 211):

"* * * the right of action given the personal representative by the second clause of § 33 to recover damages for the seaman's death when caused by negligence, for and on behalf of

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