Lavergne v. Western Co. of North America, Inc., 9431

CourtCourt of Appeal of Louisiana (US)
Citation363 So.2d 1243
Docket NumberNo. 9431,9431
Decision Date12 October 1978

Page 1243

363 So.2d 1243
No. 9431.
Court of Appeal of Louisiana, Fourth Circuit.
Oct. 12, 1978.
Rehearing Denied Nov. 20, 1978.

Page 1244

S. Michael Cashio, New Orleans, for plaintiff-appellant.

Watson, Blanche, Wilson & Posner, David W. Robinson and George K. Anding, Jr., Baton Rouge, for Zigler Shipyards, Inc. and The Fidelity & Casualty Co. of New York, defendants-appellees.


SAMUEL, Judge.

This is an appeal from a judgment granting defendants' motion to strike plaintiff's prayer for a jury trial. The matter previously has been before this court on the issue of whether or not the suit was filed timely. On that occasion we held the admiralty doctrine of laches allowed the plaintiff to maintain his suit against defendants even though it was filed after passage of the Louisiana one year prescriptive period. 1 However, we also maintained the defendants' exception of vagueness and remanded to the district court for further proceedings.

The pertinent facts alleged are that plaintiff was injured September 29, 1971 aboard a barge while working as an equipment operator for its owner, Western Company of North America, Inc. On November 27, 1973, he filed a suit for damages in state court against his employer and its insurer under the Jones Act 2 and against Zigler Shipyards, Inc. and its insurer, The Fidelity and Casualty Company of New York, under the general maritime law, alleging Zigler had designed and built the defective shipboard steps from which he fell.

Plaintiff compromised his Jones Act claim, and his only remaining claim is the admiralty action against Zigler Shipyards and its insurer. On remand, plaintiff amended his petition by specifically setting forth in detail the defects which he contends made the steps unsafe and rendered the vessel unseaworthy. In his amended petition he reiterated the prayer of his original petition for a trial by jury. The sole question presented in this appeal is whether plaintiff may have a trial by jury in this state court action.

The United States Constitution provides for federal jurisdiction of all admiralty and maritime cases. 3 Congress supplemented this constitutional provision by vesting exclusive admiralty jurisdiction in the federal district court, "saving to suitors" all other remedies to which they might

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be entitled in state courts. 4 The jurisprudence has interpreted this clause to mean a litigant who possesses a claim enforceable by libel in personam in admiralty, may also bring suit, at his election, by ordinary action in a state court or on the civil side of a federal court. 5 It is generally accepted in American jurisprudence that rules of admiralty law displace rules of local law in actions brought under the saving to suitors clause in non-admiralty courts. 6

In the case of Pope & Talbot, Inc. v. Hawn 7 the United States Supreme Court made the following statement:

" * * * (A)ction is a maritime tort, a type of action which the Constitution has placed under national power to control in 'its substantive as well as its procedural features * * *.' Panama R. Co. v. Johnson, 264 U.S. 375, 386, 44 S.Ct. 391, 393, 68 L.Ed. 748. * * * "

Additionally, in Garrett v. Moore-McCormack Co., Inc., 8 the United States Supreme Court made the following statement regarding application of maritime law to actions in state court:

"It must be remembered that the state courts have concurrent jurisdiction with the federal courts to try actions either under the Merchant Marine Act or in personam such as maintenance and cure. The source of the governing law applied is in the national, not the state, governments. If by its practice the state court were permitted substantially to alter the rights of either litigant, as those rights were established in federal law, the remedy afforded by the state would not enforce, but would actually deny, federal rights which Congress, by providing alternative remedies, intended to make not less, but more secure." (footnote omitted).

These quotations seem to state an unequivocal mandate that admiralty law, in both its substantive and procedural aspects, be adhered to when applied by a state court possessing concurrent jurisdiction under the saving...

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3 cases
  • Hebert v. Diamond M. Co., 12463
    • United States
    • Court of Appeal of Louisiana (US)
    • December 15, 1978
    ...v. Fireman's Fund Insurance Company, 347 So.2d 269 (La.App. 3rd Cir. 1977); and Lavergne v. Western Company of North America, Inc., 363 So.2d 1243 (La.App. 4th Cir. Benoit v. Fireman's Fund Insurance Company, supra, involved an action by a wife and three children for the wrongful death of t......
  • Lavergne v. Western Co. of North America, Inc., 63646
    • United States
    • Supreme Court of Louisiana
    • May 21, 1979
    ...court for further proceedings in accordance with the views expressed herein. --------------- 1 346 So.2d 239 (La.App. 4th Cir. 1977). 2 363 So.2d 1243 (La.App. 4th Cir. 3 366 So.2d 572 (La.1979). ...
  • Lavergne v. the Western Company of North America, Inc., 63646
    • United States
    • Supreme Court of Louisiana
    • January 19, 1979
    ...Louisiana. Jan. 19, 1979. In re Joseph Lee Lavergne applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 363 So.2d 1243. Writ It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel fo......

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