Gomez v. The SS Dorothy

• Decision Date: 25 September 1959
• Docket Number: No. 98.,98.
• Citation: 183 F. Supp. 499
• Parties: Eladio Sanchez GOMEZ, Libelant, v. THE SS DOROTHY, her engines, boilers, etc., and A. H. Bull Steamship Co., Respondents.
• Court: U.S. District Court — District of Puerto Rico

183 F. Supp. 499

Eladio Sanchez GOMEZ, Libelant, v. THE SS DOROTHY, her engines, boilers, etc., and A. H. Bull Steamship Co., Respondents.

No. 98.

United States District Court D. Puerto Rico.

September 25, 1959.

Jerome Golenbock, New York City, and Stanley L. Feldstein, San Juan, P. R., for libelant.

Rafael O. Fernandez, Hartzell, Fernandez & Novas, San Juan, P. R., for respondents.

DELEHANT, District Judge (retired, serving by assignment).

Filed originally in the United States District Court for the Southern District of New York on July 18, 1956, this action was, on July 26, 1956, upon motion of respondents and with the consent of the libelant, transferred to this court pursuant to the provisions of Title 28 U.S.C. § 1404(a), by order of the court in which it had been instituted. The transfer was made without reservation, restriction or condition. The issues were brought to maturity here. Reserving for the moment the impact upon such issues of pretrial discovery proceedings, they are to be found in the libel of the libelant and the answer filed by the respondent A. H. Bull Steamship Company.

The summarization of those pleadings may serve to expose the issues. In that effort the court, in consequence of the manner in which the answer is prepared, finds it convenient, first to recall the averments of the libel with immediate notation of the response of the answer to each such averment, and then to set out the affirmative allegations of the answer. The pleadings may be followed more understandingly if, in its restatement, the court preserves the paragraphing of each pleading to which, from time to time, it alludes. The answer will be referred to as made by the "respondent" in full awareness that it is ostensibly made by respondent, A. H. Bull Steamship Company, and reflects as well the position of the respondent vessel.

The following numbered allegations of the libel are fully admitted by the answer:

1. Libelant, at all material times was and is a citizen of the United States, residing in the Commonweath of Puerto Rico.

2. The "SS Dorothy," at the institution of the action was, or during its pendency would be, within the jurisdiction of the United States District Court for the Southern District of New York.

3. Respondent, A. H. Bull Steamship Company, at all material times was and is a duly organized New York corporation, and the owner and operator of "SS Dorothy."

5. On or about December 18, 1953, "SS Dorothy" was in a port in Puerto Rico.

6. On or about December 18, 1953, respondent (obviously meaning A. H. Bull Steamship Company) had contracted with Bull Insular Lines for the movement and handling of the cargo of "SS Dorothy."

The following allegations of the libel are, in the ways immediately hereinafter respectively set out, partly admitted and for the rest denied:

4. At all times set out in the libel, respondent A. H. Bull Steamship Company, owned, operated, managed, maintained, supplied, manned, provisioned and was in possession and control of "SS Dorothy." Touching that averment, the answer "admits that at the times mentioned in the libel it owned the SS `Dorothy' and operated, managed, maintained, supplied, manned, provisioned, and was in possession and control of those portions of the SS `Dorothy' which were not operated, managed, maintained, supplied, manned, provisioned and in the possession and control of Bull Insular Line, Inc., its agents, servants and employees and other independent contractors, their agents, servants and employees." Except as just quoted, the answer denies each and every allegation of paragraph 4 of the libel.

12. All and singular, the premises are true and within the admiralty and marine jurisdiction of the United States, and of the court in which the suit was instituted. Touching that averment, the answer "admits that the allegations made in the libel are within the admiralty and marine jurisdiction of the United States and of this honorable court, but it denies each and every other allegation" of paragraph 12 of the libel.

All other allegations of the libel are categorically (except as noted in the next paragraph) denied by the answer. Briefly summarized, they are:

7. On or about December 18, 1953 libelant was in the employ of Bull Insular Lines as a longshoreman, and in that capacity was aboard "SS Dorothy" performing work in connection with the movement and handling of its cargo. (Respecting which the answer merely denies knowledge or information.)

8. On or about such date, while so working, and "while working under and by authority of the master, owner, charterer or agent of" "SS Dorothy" and A. H. Bull Steamship Company, while attempting to receive a sling loaded with sacks of sugar, the libelant was struck by some of the sacks of sugar "due to the defective, faulty and improper operation of the winch" where he was working, causing him to be severely and seriously injured.

9. Such occurrence was caused without contributing fault or neglect on libelant's part, and "solely by the defective, unsafe and unseaworthy condition of the vessel and the defective condition of the said winch where libelant was working, and by the fault and negligence of the master, officers and crew of the said vessel and by the fault and negligence of the respondents" in sundry specified particulars, including failure to furnish libelant with a safe place to work; failure to provide libelant with a safe and seaworthy vessel and to keep it in such condition; failure to have aboard the vessel a safe, competent and adequate crew and officers; failure to warn libelant of the dangers to be encountered in such work; failure properly to supervise the work; failure to warn libelant of the dangerous, defective and unsafe condition of the vessel, her compartments, appliances and cargo; failure to promulgate and enforce proper and safe working rules; and general failure so to maintain and operate the vessel as to avoid the pleaded misadventure, "all of which the master, owner or charterer of said vessel and the respondents knew or should have known."

10. By reason of the premises, libelant sustained serious and severe injuries, which he identifies and alleges in undefined part to be permanent, has sustained and will hereafter sustain liability for treatment on account thereof, has undergone pain and suffering, and has lost and hereafter will lose sums of money which, otherwise, he would have earned.

11. "Eleventh: That although the analogous statute of limitations in Puerto Rico may have run, laches does not apply in this instance for the following reasons:

"1. The respondent had due notice of the accident and of the claim made in the Fondo del Seguro in Puerto Rico through its subsidiary corporation and upon information and belief, the respondent A. H. Bull SS Co. has in its possession an accident report and complete availability for making an investigation of the accident and the claim for relief.

"2. That until the decision on appeal in Jose Guerrido v. Alcoa SS Company, et al. in the Court of Appeals of the United States for the First Circuit, which was decided on June 8, 1956, there was no cause of action under the prior law as it applied to longshoremen in Puerto Rico under the decision of the Lastra case and also in the lower court's decision in the same Guerrido case. When the libelant became aware of his remedies on June 8, 1956, he acted promptly in pursuit thereof. It would be manifestly unjust to apply laches in the instant case because the interval of time between the date when his remedy first became apparent and the date that the suit was instituted, is actually less than two months.

"3. That the analogous statute of limitations for the cause of action for unseaworthiness has not as yet run. The action for unseaworthiness is predicated upon a breach of warranty and does not fall within Title 1 31 of the Laws of Puerto Rico, Section 5298, but on the contrary, falls within Title 31 of the Laws of Puerto Rico. Section 5294 and the analogous statute of limitations is fifteen years."

13. By reason of the premises libelant has been damaged in the sum of $100,000.

14. Having concluded the statement of his asserted First Count with paragraph 13, libelant opens in paragraph 14 his assertion of a Second Count by the incorporation and reiteration of paragraphs 1 through 7 of the First Count. By way of response to that effort, the answer incorporates into itself and without repetition reiterates the admissions and denials of those paragraphs already identified herein.

15. It was the duty of respondents to provide libelant with a seaworthy and safe vessel, appliances and crew, and to keep the same in a seaworthy condition.

16. The foregoing injuries of libelant were directly caused by the failure of respondents, their agents, servants and employees to provide a seaworthy, safe vessel and appliances and crew, and to keep the same in a seaworthy condition.

17. A reiteration of the amount of damages asserted in paragraph 13, vide supra.

It should be observed that, as has already been indicated, libelant undertakes to assert his claim in two counts, of which the first is reflected in paragraphs 1 to 13 of the libel, and the second in its paragraphs 14 to 17. Though thus pleaded, a single claim is made for the recovery of $100,000.

Beyond, and in addition to, its admissions and denials already noted, the answer, in separate numbered paragraphs, asserts what it characterizes as Affirmative Defenses. Without assenting to the objective accuracy of that characterization in all respects, and perceiving in some of the "affirmatively defensive" averments material which is obviously and in reality only a denial of certain averments of the libel, the court now quotes in full that further portion of the answer:

"18. That the injuries allegedly suffered by the libelant were caused without any fault or negligence on the part of the respondent, the officers and crew of the SS `Dorothy',

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