Francis v. Pan American Trinidad Oil Company

• Decision Date: 01 May 1975
• Docket Number: Civ. A. No. 3819.
• Citation: 392 F. Supp. 1252
• Court: U.S. District Court — District of Delaware
• Parties: Mickey FRANCIS and Norma Francis, his wife, Plaintiffs, v. PAN AMERICAN TRINIDAD OIL COMPANY, a Delaware Corporation, and Santa Fe Marine, Inc., a Delaware Corporation, Defendants.

392 F. Supp. 1252

Mickey FRANCIS and Norma Francis, his wife, Plaintiffs, v. PAN AMERICAN TRINIDAD OIL COMPANY, a Delaware Corporation, and Santa Fe Marine, Inc., a Delaware Corporation, Defendants.

Civ. A. No. 3819.

United States District Court, D. Delaware.

May 1, 1975.

COPYRIGHT MATERIAL OMITTED

B. Wilson Redfearn, Tybout, Redfearn & Schnee, Wilmington, Del., and Paul S. Edelman, Kreindler & Kreindler, New York City, of counsel, for plaintiffs.

Ernest S. Wilson, Jr., Wilmington, Del., and T. E. Byrne, Jr., Krusen, Evans & Byrne, Philadelphia, Pa., of counsel, for defendant Pan American Trinidad Oil Co.

Albert L. Simon, Wilmington, Del., for defendant Santa Fe Marine, Inc.

OPINION

CALEB M. WRIGHT, Senior District Judge.

Plaintiff Mickey Francis and his wife Norma Francis, Trinidad residents, bring this diversity action seeking compensation for personal injuries that Francis allegedly received while he was employed as a deep-sea diver aboard a movable drilling barge on the coastal shelf off Trinidad. In an earlier decision of this Court, Francis v. Pan American Trinidad Oil Company, 59 F.R.D. 631 (D.Del.1973), a motion of the original sole defendant, Pan American Trinidad Oil Co. (Amoco), for summary judgment was denied, and plaintiffs were permitted to amend their complaint to join Santa Fe Marine, Inc. (Santa Fe) as an additional defendant. Now before the Court is a motion by the added defendant, Santa Fe, seeking either dismissal of the complaint or summary judgment on the grounds of laches and/or the statute of limitations. Plaintiffs are resisting the motion on the grounds that the action against Santa Fe was timely filed or, alternatively, that the filing of the action against Santa Fe should be deemed to relate back, under Rule 15(c) Fed.R.Civ.P., to the date of the filing of the original complaint.

Although some facts necessary for an evaluation of Santa Fe's motion are contained in the earlier decision, a short summary of the facts bearing on the present issue is appropriate.

On December 5, 1967, plaintiff Mickey Francis, an employee of Corrosion Protection Manufacturing, C.A., (a Trinidad corporation that is a wholly owned subsidiary of Underseas Pipeline Company, C.A., a Venezuelan corporation) was injured while performing a dive. The dive was being conducted pursuant to a contract between Underseas Pipeline Co. and the original defendant Amoco and was performed from The Blue Water III, an oil drilling barge owned by Santa Fe. Two years later, on December 4, 1969, the plaintiffs filed an action in this Court naming Amoco as sole defendant. On January 22, 1970, defendant Amoco filed a motion to dismiss the action on the grounds of forum non conveniens. Paragraph 5 of that motion stated as follows:

In connection with the exploration of the aforesaid concessions, Amoco entered into a certain contract with Santa Fe Marine, Inc., a corporation having its principal office and place of business at 3311 Richmond Avenue, Houston, Texas. Santa Fe Marine, Inc. (hereinafter `Santa Fe') was the owner of a certain drilling vessel known as the BLUE WATER III which, at all times material hereto, was owned, operated and controlled by Santa Fe.

In May, 1970, in answer to an interrogatory of plaintiffs, defendant Amoco repeated this information as follows:

35. State who owned the Blue Drilling Barge No. 3, and as to the owner, state the following:

(a) the nation and/or state of incorporation;

(b) the principal place of business.

A. Blue Water Drilling Barge No. 3 was owned and operated by Santa Fe Marine, Inc., 3311 Richmond Avenue, Houston, Texas. The state or nation of incorporation is unknown.

The state of incorporation turned out to be Delaware.

On June 17, 1970, in an affidavit filed in opposition to defendant's forum non conveniens motion, plaintiffs' Trinidad counsel, Victor Nunez, stated that "Blue Water III Barge was owned by Santa Fe Marine, Inc., a corporation of the State of Louisiana, United States of America, with a Port of Registration being New Orleans, Louisiana." At his deposition, taken on December 10, 1970, Francis was asked "Now who manned the barge?" To which he responded, "I know the owner of the barge is Santa Fe Marine."¹

The record as to when Santa Fe first learned of this pending action is also a matter of importance. The amended complaint naming Santa Fe as a defendant was actually filed May 25, 1973, five and a half years after the injury, but plaintiffs had moved for leave to amend on December 21, 1971, and Santa Fe admits that it received notice of this pending motion on December 31, 1971.² Santa Fe further admits that it had notice and knowledge that Francis was injured on December 4, 1967 (The Blue Water III's log book recorded the incident). Plaintiff alleges that a visit to Trinidad by defendant Amoco's attorney in March, 1971, gave Santa Fe notice of the present suit. At that time, Amoco's attorney visited the corporate offices of Santa Fe Drilling Co. (apparently a corporate relative of Santa Fe Marine) in Trinidad to inspect Santa Fe's records regarding the incident and also went aboard The Blue Water III to conduct interviews. Santa Fe asserts that although some of its employees may have learned of the suit against Amoco at this time, no corporate officers received this information. Further, even those employees who may have learned of the suit would have had no reason to assume that, but for a mistake by plaintiffs, Santa Fe would also have been named as a defendant.³

In summary, the suit against Santa Fe was actually filed five and a half years after the injury; Santa Fe had notice that plaintiffs intended to bring them into the suit a little more than four years after the injury; certain of Santa Fe's employees learned of the suit against Amoco approximately three years and three months after the injury; and through the ship's log, Santa Fe learned of the injury itself on the day that it occurred.

Prior to deciding whether plaintiffs' claim against Santa Fe is barred by the statute of limitations and/or laches, this Court must first determine what standards of timeliness should govern. Plaintiffs' complaint appears to allege four distinct causes of action: (1) negligence; (2) unseaworthiness; (3) strict liability based on an ultrahazardous activity (all alleged by Mickey Francis); and (4) loss of services, society and consortium (alleged by Norma Francis).

Although such is not obvious from the face of the complaint, plaintiffs have chosen to characterize the negligence claim as arising under the Jones Act, 46 U.S.C. § 688. (See plaintiffs' brief p. 11). The negligence claim is therefore governed by an express three-year limitation, 45 U.S.C. § 56.⁴ Hence, since there is no claim that the statute has been tolled or the defendants estopped, this Jones Act claim is barred unless plaintiffs' amendment is found to relate back to the date of the filing of the original complaint.⁵

The unseaworthiness claim, however, is not based on statute but is rooted in federal maritime law. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 98 L.Ed. 143 (1953). Accordingly, despite the fact that this is a diversity action under 28 U.S.C. § 1332, plaintiffs' rights on the unseaworthiness claim are not to be determined under the principle established in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Further, even though the instant suit is an action at law, this Court is required to measure the timeliness of plaintiffs' claim in the same manner as would an admiralty court. See, e.g., Oroz v. American President Lines, Ltd., 259 F.2d 636 (2nd Cir. 1958), cert. denied, 359 U.S. 908, 79 S. Ct. 584, 3 L.Ed.2d 572 (1959). There is no statute of limitations in admiralty. Rather, the court will determine the timeliness of the actions using the doctrine of laches. Laches principles require that plaintiffs' delay in bringing suit be measured against the statutes of limitations for analogous state or federal causes of action. In this Circuit, the analogous statute of limitations against which the timeliness of plaintiffs' unseaworthiness claim is to be measured is the three-year limitation contained in the Jones Act. Ward v. Union Barge Line Corp., 443 F.2d 565, 568 (1971); Lipfird v. Mississippi Valley Barge Line Co., 310 F.2d 639, 641 (1962).⁶

The timeliness of plaintiffs' complaint is not, however, to

be determined merely by a reference to and a mechanical application of the statute of limitations. The equities of the parties must be considered as well. Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief. Gardner v. Panama Railroad Co., 342 U.S. 29, 31, 72 S.Ct. 12, 13, 96 L.Ed. 31 (1951).

See also, Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 533, 76 S.Ct. 946, 100 L.Ed. 1387 (1956).

In applying the Gardner rule, it is settled that "this Circuit requires the plaintiff to come forward and prove that his delay was excusable and that it did not unduly prejudice the defendant. Burke v. Gateway Clipper, Inc., 441 F.2d 946, 949 (1971). See also, Ward v. Union Barge Line Corp., 443 F.2d 565, 568 (1971), and cases cited therein.

The analogous statute of limitations for plaintiffs' third assertion, that since an ultrahazardous activity was involved the defendants are absolutely liable, is a difficult question. It is not clear to this Court that a maritime tort can give rise to such a cause of action. Assuming such an action exists, however, this Court concludes that it must be dealt with in the same manner as the unseaworthiness count. This conclusion is based on similarities between the two causes of action, including the fact that unseaworthiness is also a strict liability tort. See, e. g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L. Ed.2d 941 (1960); Earles v. Union Barge Line Corp., 486...