Bush v. Oceans Intern.

• Citation: 621 F.2d 207
• Decision Date: 11 July 1980
• Docket Number: No. 78-3810,78-3810
• Parties: Ennis BUSH, Plaintiff-Appellee, v. OCEANS INTERNATIONAL et al., Defendants, Sumitomo Trust Bank Co., Ltd., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 207

621 F.2d 207

Ennis BUSH, Plaintiff-Appellee, v. OCEANS INTERNATIONAL et al., Defendants Sumitomo Trust Bank Co., Ltd., Defendant-Appellant.

No. 78-3810.

United States Court of Appeals Fifth Circuit.

July 11, 1980.

Robert M. Julian, Houston, Tex., for defendant-appellant.

Thomas F. Rugg, Port Arthur, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before AINSWORTH and GEE, Circuit Judges, and HUNTER, ^* District Judge.

EDWIN F. HUNTER, Jr., District Judge:

Plaintiff was injured on October 16, 1974, while employed as a longshoreman on defendant's vessel which was docked at Port Arthur, Texas. The longshoreman received benefits for that injury from his employer under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq. In addition, he brought this negligence action against the shipowner on October 11, 1977. The original defendant, Oceans International, did not answer the complaint, but filed a motion for summary judgment on the grounds that it did not own, operate or control the vessel involved. Plaintiff filed an amended complaint on February 23, 1978, adding three additional defendants, including Sumitomo Trust Bank Company. Sumitomo filed an answer on March 15, 1978, in which it admits that it owned and operated the vessel. The complaint was dismissed as to the remaining defendants.

Sumitomo filed a motion for summary judgment seeking dismissal of plaintiff's claim as time-barred by Texas' two year statute of limitations. The motion was denied but pursuant to 28 U.S.C. § 1292(b), the district judge certified the limitations issue to this court: ¹

"Is the cause of action by a longshoreman injured on October 16, 1974 on a vessel within the territorial waters of the State of Texas, governed by the Texas Two Year Statute of Limitations, the Jones Act Three Year Statute of Limitations, or by the Doctrine of Laches."

Prior to the 1972 amendments to the Act, state statutes of limitation did not operate to bar injury or death actions brought on behalf of longshoremen. The timeliness of the action was measured by the equitable doctrine of laches, which American admiralty courts derived from English authority, The Key City, 81 U.S. (14 Wall.) 653, 20 L.Ed. 896 (1871), and applied to longshoremen's suits founded upon both unseaworthiness and negligence. Watz v. Zapata Off-Shore Company, 500 F.2d 628 (5th Cir. 1974); Watz v. Zapata Off-Shore Company, 431 F.2d 100 (5th Cir. 1970); Flowers v. Savannah Machine and Foundry Co., 310 F.2d 135 (5th Cir. 1962).

Congress acted in 1972, among other things, ² to abolish the longshoreman's right of action against the ship on unseaworthiness claims, and it abolished the ship's right of contribution or indemnity from the stevedore. The right of action against the ship for injuries caused by the ship's own negligence was expressly preserved. The critical section of the amended statute is 905(b), 33 U.S.C. 905(b), and reads:

In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.

It is defendant's contention that in a post-1972 Amendments case, since unseaworthiness is no longer available as a basis for recovery, it is illogical to apply the timeliness concept controlling injuries at sea (i. e., laches) rather than the rules which would otherwise be applied to a diversity negligence action (i. e., the Texas two year statutory limitation period). More specifically, Sumitomo seeks support for its position in the following observation from the Report of the House Education and Labor Committee:

The purpose of the amendments is to place an employee injured aboard a vessel in the same position he would be if he were injured in non-maritime employment ashore, insofar as bringing a third party damage action is concerned, and not to endow him with any special maritime theory of liability or cause of action under whatever judicial nomenclature may be called, such as "unseaworthiness," "non-delegable duty," or the like. H.R.Rep.No.1441, 92nd Cong., 2nd Sess., reprinted in (1972) U.S.Code Cong. and Admin.News, pp. 4698, 4703.

In context, the above declaration deals only with the removal of the shipowner's liability under the warranty of seaworthiness for acts of the stevedore. Moreover, the same Committee counsels against Sumitomo's interpretation of legislative intent when it observes:

Finally, the Committee does not intend that the negligence remedy authorized in the bill shall be applied differently in different ports depending on the law of the State in which the port may be located. The Committee intends that legal questions which may arise in actions brought under these provisions of the law shall be determined as a matter of Federal law. (Id. at 4705).

This case presents the relatively common situation where a statute is arguably open to two interpretations and the legislative history, although clear as to the overriding purposes, provides little guidance as to which interpretation Congress would have adopted if it had addressed the precise issue. Twice within the last year the Supreme Court of the United States has encountered a similar problem concerning these same 1972 amendments.

The Supreme Court in Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521, reversed a Court of Appeals holding that the 1972 amendments had altered a traditional admiralty rule by making the shipowner liable only for that share of the total damages equivalent to the ratio of its fault to the total fault. The Court wrote:

The legislative history strongly counsels against the Court of Appeals' interpretation of the statute, which modifies the longshoreman's pre-existing rights against...