Campanile v. Societa G. Malvicini

• Decision Date: 18 February 1959
• Citation: 170 F. Supp. 667
• Parties: Giovanni CAMPANILE, Plaintiff, v. SOCIETA G. MALVICINI, Officine Meccaniche Riparazioni Navivapori and J. H. Winchester and Co., Defendants.
• Court: U.S. District Court — Southern District of New York

170 F. Supp. 667

Giovanni CAMPANILE, Plaintiff, v. SOCIETA G. MALVICINI, Officine Meccaniche Riparazioni Navivapori and J. H. Winchester and Co., Defendants.

United States District Court S. D. New York.

February 18, 1959.

Alvin I. Apfelberg, New York City, for plaintiff, Louis Bloch, New York City, of counsel.

Zock, Petrie, Sheneman & Reid, New York City, for defendants, Edwin K. Reid, New York City, of counsel.

DAWSON, District Judge.

This is a motion for an order and judgment dismissing the complaint on the ground that it is barred by the Three-Year Statute of Limitations of the State of New York, and on the further ground of laches in that the action was not commenced until approximately three and a quarter years from the date of the alleged accident.

The complaint shows that the action is one brought by a longshoreman who claims that on the 15th day of July, 1955, he was injured while working on board a vessel owned by the defendants, as a result of negligence and as a result of the unseaworthy condition of the vessel. The complaint was filed on November 21, 1958, more than three years after the date of the accident. The accident took place when the vessel was moored in the harbor of New York within the State of New York. Since this action was brought in a district court of New York the limitation statutes to be referred to are clearly those of New York. Redman v. United States, 2 Cir., 1949, 176 F.2d 713.

The gravamen of this motion is that the Jones Act, 45 U.S.C.A. § 56, places a three-year limitation on actions of this kind, and, likewise New York has a three-year statute of limitations for actions in negligence. Civil Practice Act, § 49. In addition to the allegations under the Jones Act and New York law for negligence, plaintiff has combined an action for unseaworthiness which is basically a contract action having a six-year statute of limitations in New York.

The basic issue which this Court must determine is where an action for unseaworthiness is combined with an action for negligence under the Jones Act, 46 U.S.C.A. § 688, and this latter action is barred by time limitations, does the action for unseaworthiness fall, or can the action for unseaworthiness save the time-barred action?

The controlling decision in this circuit is Le Gate v. The Panamolga, 2 Cir., 1955, 221 F.2d 689, 691, a suit for personal injuries suffered by a longshoreman while loading a ship. Libellant sought recovery on both negligence and unseaworthiness. The district court dismissed the libel on the grounds of negligence, stating that the three-year limitation period had run. The Court of Appeals held that since the claim was based on both negligence and unseaworthiness, and the claim based on unseaworthiness was covered by the New York six-year statute of limitations, Civil Practice Act, § 48, though time had run on the negligence action the court was not disposed to "mechanically apply the analogous state statutes of limitations without regard to the equities." The Court of Appeals held that the negligence action would be resurrected if the libellant could show facts excusing the delay. The court continued:

"Since we must reverse for the error in dismissing the claim based on unseaworthiness we think it would be a harsh result to permit the suit to continue and at the same time limit its scope. Accordingly we reverse the judgment appealed from. We remand the case to the District Court with a direction to reconsider the question of laches, placing the burden on the respondents to show inexcusable delay in filing the suit with resulting prejudice to the respondents."

The defendants in the present action cite the recent case of Oroz v. American President Lines, Ltd., 2 Cir., 1958, 259 F.2d 636, 639 in support of their contention that the entire action must fail if a portion of it is time-barred. A careful reading of the Oroz decision indicates that the Court of Appeals has clearly set down a degree of flexibility in preventing unjust results. The party guilty of laches can still maintain the action by carrying the burden of showing excusable delay. The Court in Oroz stated:

"Although laches is the proper measure of limitation, it has long been settled doctrine that, in deciding whether maritime claims are barred by laches, courts of admiralty will use local limitation statutes as a rule-of-thumb as to the presence or absence of prejudice and inexcusable delay. If the statute has run, prejudice by reason of inexcusable delay is presumed in the absence of a showing to the contrary; if it has not run, the converse is inferred. Redman v. United States, 2 Cir., 1949, 176 F.2d 713; Kane v. Union of Soviet Socialist Republics, 3 Cir., 1951, 189 F.2d 303, certiorari denied 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676; Wilson v. Northwest Marine Iron Works, 9 Cir., 1954, 212 F.2d 510."

Defendants cite the recent decision of the United States Supreme Court in McAllister v. Magnolia Petroleum Co., 1958, 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272 as controlling in this action. In McAllister the petitioner claimed damages under the Jones Act for negligence and under the general maritime law for unseaworthiness. Respondent answered, denied the allegations of negligence and unseaworthiness and maintained that petitioner's claims were barred by the pertinent statute of limitations and by laches. A careful reading of this decision indicates that it is not controlling in the case before the...