Curbelo v. Matson Nav. Co.

• Decision Date: 26 July 1961
• Citation: 14 Cal.Rptr. 913,194 Cal.App.2d 305
• Court: California Court of Appeals Court of Appeals
• Parties: Sandalio CURBELO, Plaintiff and Appellant, v. MATSON NAVIGATION COMPANY, Defendant and Respondent. Civ. 19602.

Page 913

14 Cal.Rptr. 913

194 Cal.App.2d 305

Sandalio CURBELO, Plaintiff and Appellant, v. MATSON NAVIGATION COMPANY, Defendant and Respondent.

Civ. 19602.

District Court of Appeal, First District, Division 2, California.

July 26, 1961.

Hearing Denied Sept. 20, 1961.

Goldstein, Brann & Stern, by H. Leland Shain, San Francisco, for appellant.

Donald D. Connors, Jr., Brobeck, Phleger & Harrison, San Francisco, for respondent.

SHOEMAKER, Justice.

This is an appeal from a judgment of dismissal entered upon the granting of defendant's motion to that end, and from an order denying plaintiff's motion for a new trial. Since an appeal does not lie from the order denying a new trial, this part of the appeal must be dismissed.

This action is one to recover for personal injuries sustained by plaintiff Sandalio Curbelo, a seaman, while he was employed by defendant Matson Navigation Company aboard a vessel in navigable waters. The complaint is in two counts, one for negligence under the Jones Act, 46 U.S.C.A. § 688, the other for unseaworthiness under the general maritime law.

The accident happened June 28, 1955, and the complaint was filed and summons thereon issued on June 27, 1958. On September 15, 1959, defendant was served with process. On October 19, 1959, defendant moved to dismiss the action upon the sole specified ground of laches, which motion the trial court granted. A judgment was entered. Plaintiff thereupon moved for a new trial, which was denied.

Appellant argues (1) that laches is no defense in an action at law; (2) that the defense of laches cannot properly be raised by a motion to dismiss but must be set up by demurrer or answer; and (3) even though it be assumed that this defense is applicable and can properly be raised by motion to dismiss, there was no evidence of laches since the action was commenced and service of summons and complaint accomplished within the statutory time.

Respondent, on the other hand, contends that the uniformity of the general maritime law must be preserved from interference by varying state enactments, and that the doctrine of laches is an integral part of the maritime law which a defendant in an admiralty action is entitled to raise, regardless of whether or not there has been compliance with a state statute governing diligence in prosecution.

While the statute of limitations ordinarily may not be raised by a motion to dismiss, our decisions have not held this rule to be applicable to the defense of laches. To the contrary, the cases have recognized the power of the court on its own motion to deny relief where laches is disclosed by the complaint or appears from the evidence, despite failure to raise the defense by demurrer or answer. Akley v. Bassett, 1922, 189 Cal. 625, 648, 209 P. 576; Suhr v. Lauterbach, 1913, 164 Cal. 591, 593, 130 P. 2; Stevinson v. San Joaquin etc. Co., 1912, 162 Cal. 141, 143-144, 121 P. 398; Harris v. Hillegass, 1884, 66 Cal. 79, 80, 4 P. 987; Sullivan v. Portland, etc. R. R. Co., 1876, 94 U.S. 806, 811, 24 L.Ed. 324. Since the trial court could thus have raised this issue on its own motion, it would seem to make little difference that respondent may not have chosen the most appropriate manner in which to bring this defense to the court's attention.

Granting the defense of laches was properly before the court, the problem is presented as to whether this defense is applicable to an action such as the present one, which, although arising out of admiralty, is instituted in a state court. The right to bring such an action in a state court was originally reserved to suitors in the Judiciary Act of 1789:

'* * * the district courts * * * shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction * * * saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; * * *.' (1 Stat. 76-77.)

The rule is well established, however, that the 'saving clause' was intended only to allow claimants to have their maritime rights enforced by a common-law remedy--not to have these rights and liabilities measured by common-law standards rather than those of the maritime law. Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086; Chelentis v. Luckenbach S. S. Co., 1918, 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171; Knickerbocker Ice Co. v. Stewart, 1920, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834. The court in the Luckenbach case expressed the distinction as follows:

'The distinction between rights and remedies is fundamental. A right is a well founded or acknowledge claim; a remedy is the means employed to enforce a right or redress an injury. Bouvier's Law Dictionary. Plainly, we think, under the saving clause a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law; but we find nothing therein which reveals an intention to give the complaining party an election to determine whether the defendant's liability shall be measured by common-law standards rather than those of the martime law. * * *' 247 U.S. at page 384, 38 S.Ct. at page 504.

These authorities establish that the substantive principles of the admiralty law would be controlling regardless of the fact that a seaman chose to bring his action in a state forum.

The admiralty doctrine of laches is applied, in practice, by looking to the applicable state statute of limitations by analogy. '* * * However, even though the statutory period has run, the action will not be dismissed if plaintiff can show that his delay was excusable and that defendant has not been prejudiced by the delay. (Gilmore & Block, The Law of Admiralty, ch. VI, §§ 6-25, p. 296, fn. 149.) The running of the state statute of limitations creates a presumption of detriment to the defendant (Kane v. Union of Soviet Socialist Republics, 3d Cir. 1951, 189 F.2d 303), and has the effect of shifting to the plaintiff the burden of showing that his delay was excusable and that defendant was not prejudiced thereby. Cummings v. Redeeriaktieb Transatlantic, D.C.E.D.Pa. 1956, 144 F.Supp. 422; Le Gate v. The Panamolga, 2d Cir. 1955, 221 F.2d 689.

In the instant case, however, there is no need to look to the California statute of limitations by analogy, since the Jones Act contains its own statute of limitations, incorporated by reference from the Federal Employers' Liability Act. 46 U.S.C.A. § 688; 45 U.S.C.A. § 56. The applicable section provides that actions must be commenced within three years from the day the cause of action accrued, and appellant's complaint was filed within the three-year period.

With respect to the count for unseaworthiness, the rule has been established that if negligence under the Jones Act is also alleged, the courts may not apply a shorter statute of limitations to the unseaworthiness count than that provided for the Jones Act count. In McAllister v. Magnolia Petro. Co., 1958, 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272, the question presented was whether a state court could apply its...