Le Gate v. The Panamolga
| Decision Date | 15 April 1955 |
| Docket Number | Docket 23316.,No. 211,211 |
| Citation | 221 F.2d 689 |
| Parties | John F. LE GATE, Libelant-Appellant, v. THE PANAMOLGA, her engines, boilers, etc., and Compania Naviera Dalmatica, S. A., and Dalmore Corp., Respondents-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Golenbock & Komoroff, New York City, for libelant-appellant; Donald S. Sherwood, Harvey B. Nachman, New York City of counsel.
Frederick H. Cunningham, New York City, for respondents-appellees; Victor S. Cichanowicz, Brooklyn, N. Y., of counsel.
Before MEDINA and HINCKS, Circuit Judges, and BURKE, District Judge.
The suit herein was brought to recover damages for personal injuries which the libelant claims he sustained on October 16, 1950, while in the employment of Gulf Tide Stevedoring Co. as a longshoreman, while he was assisting in loading the S.S. Panamolga while the vessel was in the Port of Galveston, Texas. The libel was filed April 1, 1954, about three years and five months after the alleged injuries. The only process which was issued and served was in personam. Service was made on both respondents by serving Dalmore Corp., a New York corporation, personally and as agent for Compania Naviera Dalmatica, S. A., owner of the S.S. Panamolga.
Respondents excepted to the libel on the ground that the suit was barred by laches. The exception was sustained. An order was entered providing for dismissal of the libel unless an amended libel was filed and served which pleaded facts showing special circumstances excusing the delay. An amended libel was filed to which exception was again made and sustained. The libelant was given leave to file a second amended libel to explain the delay in filing suit. The respondents again excepted. The exception was sustained and the libel was dismissed with prejudice. The District Judge held that the libel was not filed until both the New York and the Texas limitation statutes, which would be applicable to similar civil actions, had run. The question presented is whether the District Judge was right in requiring the libelant to show special circumstances excusing the delay in filing suit.
Since the action was brought in a district court in New York, the limitation statutes to be referred to by analogy are those of New York. Redman v. United States, 2 Cir., 176 F.2d 713; Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 2 Cir., 132 F.2d 766; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. If the analogous statutes of limitations had run, the libelant was properly required to show special circumstances excusing the delay in filing suit. Reconstruction Finance Corp. v. Harrisons & Crosfield, 2 Cir., 204 F.2d 366, 37 A.L.R. 2d 1117; Redman v. United States, supra.
Under Section 13 of the New York Civil Practice Act a suit by a non-resident of New York on a cause of action arising without the state is barred if either the New York statute or the statute of the state where the cause of action accrued, has run. Smalley v. Hutcheon, 296 N.Y. 68, 70 N.E.2d 161. The libelant's claim for recovery is based upon both negligence and unseaworthiness of the vessel. The claim based upon negligence may not be barred under the Texas statute, because of the absence of the respondents from Texas. Vernon's Texas Ann.Civ.Statutes, Art. 5537. But Section 49(6) of the New York Civil Practice Act, which provides that an action to recover damages for a personal injury resulting from negligence must be commenced within three years after the cause of action has accrued, has definitely run. In so far as the claim is based upon negligence the District Judge properly placed the burden on the libelant to show facts excusing the delay, and if negligence were the only basis of the liability asserted, since the libelant failed to show special circumstances excusing the delay the claim would be barred.
Other considerations are pertinent in so far as the claim is based upon unseaworthiness. The libelant argues that the obligation to provide a seaworthy vessel is contractual and therefore the analogous statute to be referred to in determining the application of laches in an admiralty suit for damages based on a claim of unseaworthiness is the statute of limitations for breach of contract. Section 48(1) C.P.A. requires that an action upon a contract obligation or liability, express or implied, must be commenced within six years after the cause of action has accrued. We need not for present purposes explore the niceties of the question whether a claim of liability based upon unseaworthiness arises out of a contract obligation or whether it is derived from the concept...
To continue reading
Request your trial
-
Allister v. Magnolia Petroleum Company
...Colabee S.S. Co., D.C., 37 F.Supp. 759; Royle v. Standard Fruit & Steamship Co., 269 App.Div. 762, 54 N.Y.S.2d 778. 7 Cf. Le Gate v. The Panamolga, 2 Cir., 221 F.2d 689. In that case, a longshoreman brought a libel claiming damages for personal injuries caused by negligence or unseaworthine......
-
Kenney v. Trinidad Corporation
...this sort (see § 397)." 14 Roth v. Cox, 5 Cir. 1954, 210 F.2d 76, aff'd, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260. 15 LeGate v. The Panamolga, 2 Cir. 1955, 221 F.2d 689; Kane v. Union of Soviet Socialist Republics, 3 Cir. 1951, 189 F.2d 16 See Note 3. 17 See D. Currie, "Federalism and the A......
-
Burns v. Marine Transport Lines, Inc.
...actions and state statutes of limitations as convincing but not inflexible guides when the laches doctrine is used. In LeGate v. The Panamolga, 221 F.2d 689 (2 Cir. 1955), the Court of Appeals reversed a District Court's holding that, inter alia, a longshoreman's admiralty action for unseaw......
-
Dawson v. Fernley & Eger
...by the law of tort in the absence of an express contract between the shipowner and longshoreman. An examination of LeGate v. The Panamolga, 2 Cir., 221 F.2d 689, fails to lead to a contrary conclusion. This was an admiralty action and, while there is some language in the opinion suggesting ......