Crews v. Arundel Corporation

• Decision Date: 26 October 1967
• Docket Number: No. 24129.,24129.
• Citation: 386 F.2d 528
• Parties: Joseph J. CREWS, Appellant, v. The ARUNDEL CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

386 F.2d 528 (1967)

Joseph J. CREWS, Appellant, v. The ARUNDEL CORPORATION, Appellee.

No. 24129.

United States Court of Appeals Fifth Circuit.

September 13, 1967.

Rehearing Denied October 26, 1967.

William M. Alper, Alan R. Schwartz, Miami, Fla., for appellant.

Cecyl L. Pickle, Miami, Fla., for appellee.

Before WASHINGTON,^* TUTTLE and SIMPSON, Circuit Judges.

WASHINGTON, Circuit Judge:

On May 14, 1960 the appellant Joseph J. Crews was in the employ of the appellee Arundel Corporation as a crewman on its Tug "Everglades". During an unloading operation on that day carried on in the Intracoastal Waterway near Fort Pierce, Florida, by the Tug "Everglades", the Dredge "Hallandale", and a derrick barge, all owned by the appellee, the appellant was seriously injured. One or more heavy iron pipes fell out of the sling, in which the pipes are said to have been swinging above the derrick, and struck appellant on his head and body. On May 11, 1966, he filed a libel in personam, later amended, against the appellee for damages, alleging that the vessels and the equipment and appurtenances used in the unloading operation were unseaworthy and unsafe, and that the appellee was negligent in failing to provide a safe place for him to perform his duties and in failing to provide safe and seaworthy vessels, appurtenances and equipment. As a second cause of action he asserted that he is entitled to maintenance and cure for the period of his disability. The appellee filed Exceptions to the Amended Libel, contending that the unseaworthiness and negligence claims are time-barred or barred by laches; and that the allegations of the maintenance and cure claim are insufficient.

Having heard argument but without taking evidence, the District Court entered an Order holding that the claims based on negligence under the Jones Act are time-barred by the applicable statute of limitations; and that the claim based on unseaworthiness is barred by laches and time-barred by the three-year period of limitations provided in the Jones Act. The District Court overruled the exceptions to the maintenance and cure claim and ordered the appellee to serve its responsive pleadings to that claim. The appellant appealed from the entry of final judgment against him on his claims for negligence and unseaworthiness.

I.

The appellee has moved to dismiss the appeal on the ground that the Order with respect to the items last mentioned was not an appealable order within this Court's jurisdiction. We disagree.

The Order stated:

"* * * Judgment is entered herein in favor of the Respondent and against the Libellant on the claims for negligence under the Jones Act and unseaworthiness."

The Order was thus a final denial of appellant's claims in these respects. It seems clearly to determine "the rights and liabilities of the parties", within the meaning of 28 U.S.C. § 1292(a) (3), with respect to the negligence and unseaworthy cause of action, since it had a "final and irreparable effect on the rights" of the appellant with respect to these claims. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See also Republic of France v. United States, 290 F.2d 395, 397 (5th Cir. 1961). Cf. Point Landing, Inc. v. Alabama Dry Dock & Shipbuild. Co., 261 F.2d 861, 863, 864 (5th Cir. 1958). Although the maintenance and cure claim still remained before the District Court, this can not derogate from the fact that appellant's opportunity to prove his negligence and unseaworthiness claims was completely cut off.

II.

We have concluded that the District Court erred in holding, on the record before us, that the unseaworthiness claim is barred by limitations and laches and that the negligence claim is barred by limitations.

We have held repeatedly that claims based on unseaworthiness are barred only if the delay in filing the libel beyond the three-year Jones Act limitation period is inexcusable and if the delay has prejudiced the defense of the suit. E. g., Akers v. State Marine Lines, 344 F.2d 217 (5th Cir. 1965); Fidelity & Casualty Co. of New York v. C. B. Mr. Kim, 345 F.2d 45 (5th Cir. 1965); Molnar v. Gulfcoast Transit Co., 371 F.2d 639 (5th Cir. 1967). And we have also held that when the question of laches is raised by exceptions or demurrer, as here, the allegations of the claimant must ordinarily be assumed to be true. McDaniel v. Gulf & South American S.S. Co., 228 F.2d 189, 192 (5th Cir. 1955).

A. The libel alleged that very serious injuries to the appellant resulted from the fall of the iron pipe or pipes upon him during the unloading operation on May 14, 1960. For present purposes it is unnecessary to outline the injuries. The libel also alleged that in August, 1960, a representative of the appellee or its insurance carrier, Maryland Casualty Company, prevailed upon appellant to sign documents, the exact contents of which were then unknown and are still unknown to him; that his signature was obtained as a result of false, fraudulent, misleading and improper representations made to him, i. e., that the appellee and its insurance carrier would not pay any of his hospital and medical bills unless he signed, and that, if he signed, the appellee would employ him for the remainder of his lifetime at such time as he was medically and physically able to work. Appellant alleged that thereafter he did receive payments from the appellee weekly and monthly; that some of his medical and hospital bills were paid; and that he was given a job by the appellee but was subsequently discharged more than three years after the accident. He alleged that he did not have competent legal advice before signing these documents and that he was misled as to his legal rights by the representative of the appellee and/or the insurance carrier; that the conduct of the appellee and its insurance representatives was designed to take advantage of him, to deny him his legal rights for damages, maintenance and cure, and/or compensation, and to prevent him from suing the appellee to determine his rights.

Such material as there is in the record tends to substantiate, at least in part, some of these allegations. The appellee's Answer to the maintenance and cure claim, filed following the District Court's order here under consideration, alleged that on August 23, 1960, a representative of Maryland Casualty Company procured a release from the appellant of all claims he might have against The Arundel Corporation in respect of his injury, in consideration of an agreement by appellant to accept payment by Maryland Casualty Company of "the benefits provided for in the Workmen's Compensation Law." An affidavit, purporting to be a sworn statement of the appellant but not signed by him was attached,¹ which recited that appellant had been informed of his rights regarding his accident by Robert N. DuBois, the representative of Maryland Casualty Company, — the same person who notarized the unsigned "affidavit." There were no witnesses to the so-called affidavit.

Also, prior to the entry of the District Court's order here under appeal, the appellant had submitted interrogatories to the appellee, asking inter alia for "the date when libellant first returned to employment by The Arundel Corporation following his accident on May 14, 1960", "the inclusive dates of his employment at this time", and "the date on which his employment was severed or terminated thereafter".

On August 12, 1966, the appellee filed answers to the interrogatories, stating that the appellant "returned to work on Monday, Dec. 10, 1962, 12-10-62 to 12-31-63, and beyond that date the records are in Baltimore, Maryland * * *". It is not clear from this answer whether the date 12-31-63 is intended as a statement of the date of termination of the appellant's employment. But at least it indicates that appellant was in the appellee's employ until well after the three-year Jones Act limitation period expired on May 14, 1963.

Thus a factual issue is raised as to whether the delay in filing the libel was excusable, which can only be resolved by proof. If the evidence were to establish, in accordance with the allegations, that the appellee represented to the appellant that he would be employed for life, if he signed certain documents, and that he was nevertheless discharged after the three-year period of limitation had run, the delay in filing the libel until after the discharge occurred may well, depending on the circumstances proved, constitute excusable delay.² And, the allegations of the libel that the injuries sustained by the appellant affected his mind, impaired his memory, and caused an inability to remember exactly the circumstances of his injury, if proved to be sufficiently serious and of sufficient duration, might also warrant a finding of excusable delay.³

B. The libel alleged that the appellee suffered no prejudice from the delay in filing; that it was apprised of the accident when it occurred;...