Johnsen v. McAllister Lighterage Lines, Inc.
| Decision Date | 15 June 1959 |
| Citation | 190 N.Y.S.2d 117,8 A.D.2d 831 |
| Parties | Sverre JOHNSEN, Appellant, v. McALLISTER LIGHTERAGE LINES, INC., Defendant, and McAllister Brothers, Inc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Kuzmier, Zweibel, McKeon & Schmitt, New York City, for appellant; Morris Zweibel, New York City, of counsel.
Purdy, Lamb & Catoggio, New York City, for respondent; Vincent A. Catoggio, New York City, of counsel.
Before NOLAN, P. J., and BELDOCK, UGHETTA, HALLINAN and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the appeal is from an order dismissing the amended complaint as time-barred. Rules of Civil Practice, rule 107, subd. 5.
Order reversed, with $10 costs and disbursements, and motion denied, with leave to respondent to answer within 10 days after the entry of the order hereon.
Appellant was a dockbuilder in the employ of Merritt Chapman & Scott Corp. On November 10, 1953 a derrick barge owned by his employer was being moved in the East River by a tugboat owned by McAllister Lighterage Lines, Inc., and operated by respondent McAllister Brothers, Inc., under an oral bareboat charter. Appellant was on the tugboat in connection with his work for his employer; while there, he was struck by a hawser, sustaining injuries. A year later, he sued McAllister Lighterage, believing that it owned and operated the tugboat. The latter's answer admitted ownership but denied possession and control. In October, 1957 appellant had a pretrial examination and then learned that the tugboat had been chartered to respondent. In January, 1958 (four years after the accident), appellant moved to join respondent as a party defendant; that motion was granted with leave to respondent to plead the Statute of Limitations as a defense. Appellant served respondent with a supplemental summons and an amended complaint, alleging negligence and failure to furnish a seaworthy vessel. Before answering, respondent moved to dismiss the amended complaint as time-barred; the motion was granted by the Special Term, and this appeal followed.
Insofar as the action is based on negligence, it comes within the three-year Statute of Limitations in subdivision 6 of section 49 of the Civil Practice Act and is barred as against respondent (Mazzella v. Pittston Stevedoring Corp., 285 App.Div. 1181, 140 N.Y.S.2d 881). Insofar as it is based on breach of the warranty of seaworthiness, it is governed by the six-year Statute of Limitations in subdivision 3 of section 48 of the Civil Practice Act (Le Gate v. The Panamolga, 2 Cir., 221 F.2d 689; Flanagan v. The H. F. Gilligan, D.C., 158 F.Supp. 393; May v. The Steel Navigator, D.C., 152 F.Supp. 254; cf. Blessington v. McCrory Stores Corp., 305 N.Y. 140, 111 N.E.2d 421, 37 A.L.R.2d 698), since (1) liability for unseaworthiness is 'a species of liability without fault' (Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94, 66 S.Ct. 872, 877, 90 L.Ed. 1099) and consequently is different from liability for negligence (Le Gate v. The Panamolga, Supra), (2) the warranty of seaworthiness...
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...guide. The same is true of the decision of the Appellate Division of the Supreme Court of New York in Johnsen v. McAllister Lighterage Lines, Inc., 8 A.D.2d 831, 190 N.Y.S.2d 117, as New York's statute of limitations for personal injury damages based on negligence provides the same three ye......
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...903. See Muscelli v. Frederick Starr Contracting Co., 1947, 296 N.Y. 330, 335, 338, 73 N.E.2d 536; Johnsen v. McAllister Lighterage Lines, Inc., 2d Dept. 1959, 8 A.D.2d 831, 190 N.Y.S.2d 117. The first cause of action, for ante-mortem damages, could have been maintained by the decedent in a......
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...six year statute of limitations applicable to contract cases. New York Civil Practice Act § 48(3); Johnsen v. McAllister Lighterage Lines, Inc., 8 A.D.2d 831, 190 N.Y.S.2d 117 (2d Dep't 1959); LeGate v. The Panamolga, supra; Doherty v. Federal Stevedoring Co., 198 F.Supp. 191 (S.D.N.Y.1961)......
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