Larsen v. THE M/V TEAL, A-16000.

• Citation: 193 F. Supp. 508
• Decision Date: 15 May 1961
• Docket Number: No. A-16000.,A-16000.
• Parties: Franklin LARSEN, Libelant, v. THE M/V TEAL, its engines, tackle and equipment, together with THE Scow H91X, Registry No. 256725, Respondent, and Alaska Packers Association, Claimant.
• Court: U.S. District Court — District of Alaska

193 F. Supp. 508

Franklin LARSEN, Libelant, v. THE M/V TEAL, its engines, tackle and equipment, together with THE Scow H91X, Registry No. 256725, Respondent, and Alaska Packers Association, Claimant.

No. A-16000.

United States District Court D. Alaska, at Anchorage.

April 11, 1961.

As Corrected May 15, 1961.

Bell, Sanders & Tallman, Anchorage, Alaska, for libelant.

Hughes & Thorsness, Anchorage, Alaska, and Walsh & Margolis, Seattle, Wash., for claimant Alaska Packers Assn.

HODGE, District Judge.

Libelant brings this action in rem against the M/V Teal and the Scow H91X to recover damages consisting of loss of wages, partial disability, pain and suffering and maintenance, for personal injury alleged to have been sustained by him on July 31, 1956, while engaged in unloading fish from the deck of the scow onto a fish elevator or conveyor while moored to a cannery dock of the claimant. The scow was used in transporting the fish and the M/V Teal as a towboat to tow the scow. The libel alleges the unseaworthiness of both the scow and towboat and the negligence of the officers thereof. The libelant was employed by the Alaska Packers Association, owner of the scow and towboat, at the time of the injury.

The Association appeared as claimant of the respondent vessels and filed a motion to dismiss the action on the following grounds: (1) that the action is barred under the doctrine of res judicata by reason of a final judgment having been rendered on January 23, 1959, by the Superior Court of the State of Washington for King County in cause number 516321, in that certain action entitled "Franklin Larsen, plaintiff, v. Alaska Packers Association, a corporation, defendant," which judgment constituted a final and conclusive determination of all issues between the parties hereto and those in privity with them; and (2) the action is in any event barred by reason of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. A. § 901 et seq.) which statute provides libelant's sole and exclusive remedy. The motion is based upon the records and files herein including the stipulations of the parties, and the papers in the action in the State of Washington court, photostatic copies of which proceedings were filed with the motion. Claimant also filed an answer to the libel setting up the same defenses.

The complaint in the case instituted in the Superior Court of the State of Washington contains almost identical allegations with the libel in the instant cause, setting up the same claim for injuries, predicated upon both negligence of the defendant and unseaworthiness of the scow, differing only in that the complaint in such case was in personam against the owner whereas the libel in this case is in rem against the vessels, except that a larger amount of damage is claimed herein. The issue as to the exclusiveness of the remedy afforded libelant under the Longshoremen's and Harbor Workers' Compensation Act was fully submitted to the Court on briefs and determined upon motion for summary judgment. The Court found that the only factual issue raised was whether or not respondent had secured the payment of compensation as required by the Act, and finding that such compensation had been secured as required by law from an insurance company, found as follows:

"The Court now being fully advised in the premises and being of the view that the plaintiff's sole and exclusive remedy was under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.A. Sec. 901 et seq.) and that the actions set forth in his Complaint herein are therefore barred, now, therefore,

"It Is Hereby Ordered, Adjudged and Decreed that the Complaint herein be and the same hereby is dismissed with prejudice and with costs and disbursements to defendant * * *"

Libelant urges that the finding by the Superior Court of the State of Washington is "contrary to law" as provided by Sec. 20 of the Jones Act (46 U.S.C.A. § 688); that the disposition of the case was based upon jurisdictional grounds; that there was no determination upon the merits of the case nor as to the unseaworthiness of the vessel, and that as the case at bar is an action in rem and no prior proceeding has been held on this particular, this action should be allowed to stand and is not barred.

Where a judgment on the merits is rendered in favor of the defendant in an action to enforce one of two or more alternative remedies, the plaintiff cannot thereafter maintain an action to enforce another of the remedies. American Law Institute, Restatement of the Law, Judgments, Sec. 65, p. 271. Where a judgment is rendered in favor of the plaintiff or where a judgment on the merits is rendered in favor of the defendant, the plaintiff is precluded from subsequently maintaining a second action based upon the same transaction, if the evidence needed to sustain the second action would have sustained the first action. Id. Sec. 61, p. 240. In this instance matters arising out of a single maritime injury involving the same facts are attempted to be litigated in a second action.

In the case of Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069, it is held that a judgment in an action for personal injuries in admiralty was a bar to a second action begun in a state court for the same injury, even though alleging different grounds of negligence; also that such judgment operates as an estoppel as to matters actually in issue or points controverted upon the determination of which the prior judgment was rendered. In the case of St. John v. Wisconsin Employment Relations Board, D.C., 90 F.Supp. 347, it is held that a judgment of a state court is res judicata and bars a subsequent action in the federal court based on the same cause of action and that the mere fact that there is a change in the form of relief demanded does not affect this rule. In Green v. Bogue, 158 U.S. 478, 15 S.Ct. 975, 39 L.Ed. 1061, the Supreme Court held as early as 1895 that where the facts alleged and relied upon in a former suit in which final judgment was entered are substantially the same as those in the later case the mere fact that a different form of relief is asked by the plaintiff in a later suit does not deprive the defendants of the protection of the former decision.

A decree in rem is a bar to a suit in personam in admiralty, and vice versa, as there is but one cause of action based upon the same injury, or a single invasion of a primary right. Burns Bros. v. Central R. R. of New Jersey, 2 Cir., 202 F.2d 910; Bailey v. Sundberg, 2 Cir., 49 F. 583; Sullivan v. Nitrate Producers' S.S. Co., 2 Cir., 262 F. 371. The Second Circuit in the Burns Bros. case granted an exception to this rule where the remedy of libelant in rem was not available to libelant at the time of filing his libel in personam, and where the libelant now seeks such available remedy. Such remedy was available to libelant in this case.

The order or judgment of dismissal...