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

• Decision Date: 21 May 1979
• Docket Number: No. 63646,63646
• Citation: 371 So.2d 807
• Court: Louisiana Supreme Court
• Parties: Joseph Lee LAVERGNE v. The WESTERN COMPANY OF NORTH AMERICA, INC., Highlands Insurance Company, Zigler Shipyard, Inc., and the Fidelity & Casualty Company of New York.

Page 807

371 So.2d 807

Joseph Lee LAVERGNE v. The WESTERN COMPANY OF NORTH AMERICA, INC., Highlands Insurance Company, Zigler Shipyard, Inc., and the Fidelity & Casualty Company of New York.

No. 63646.

Supreme Court of Louisiana.

May 21, 1979.

S. Michael Cashio, Kenner, for plaintiff-applicant.

David W. Robinson, George K. Anding, Jr., Watson, Blanche, Wilson & Posner, Baton Rouge, for defendants-respondents.

MARCUS, Justice.

Joseph Lee Lavergne instituted this action on November 27, 1973, to recover damages for personal injuries. Named defendants were The Western Company of North America, Highlands Insurance Company (liability insurer of Western), Zigler Shipyards, Inc., and The Fidelity and Casualty Company of New York (liability insurer of Zigler).

In his original petition, plaintiff alleged that on September 29, 1971, while employed as an equipment operator on a barge owned and operated by Western, he fell to the deck injuring his back and spine while descending a steep set of irregular steps. Plaintiff sought recovery against Western, his employer, alleging various acts of negligence under the Jones Act (46 U.S.C. § 688); in addition, he sought "maintenance and cure" under the general maritime law from Western. Plaintiff further averred that his fall and resulting injuries were caused by Zigler's defective and negligent design and construction of the steps and its failure to warn him of the hazard and unseaworthy condition caused by the steps. Plaintiff also requested a trial by jury.

Defendants' answers generally denied the allegations of plaintiff's petition. Prior to trial, plaintiff settled his Jones Act and maintenance and cure claims against Western and its liability insurer, Highlands, and released them from all of his claims arising out of the accident. Plaintiff reserved his rights against Zigler and Fidelity and proceeded with his claim against them.

Thereafter, Zigler and Fidelity filed, Inter alia, exceptions of prescription (based upon one-year prescriptive period provided by La. Civil Code art. 3536) and vagueness. The district court maintained the exception of prescription and dismissed plaintiff's suit as to Zigler and Fidelity. On appeal, the court of appeal reversed, holding that, because plaintiff's claim was grounded in admiralty, the doctrine of laches applied permitting plaintiff to maintain his suit against defendants even though it was filed after the passage of the Louisiana one-year prescriptive period. The court sustained defendants' exception of vagueness and remanded the case to the district court for further proceedings. ¹ On remand, plaintiff amended his petition to more adequately state the factual basis for his assertion that the steps were designed and/or constructed by Zigler in a negligent manner. Thereafter, Zigler and Fidelity filed a motion to strike plaintiff's demand for a jury trial, grounded upon the contention that the general maritime law precluded a trial by jury of plaintiff's action.

The district court granted defendants' motion to strike and ordered plaintiff's demand for a jury trial stricken. The court of appeal affirmed. ² On plaintiff's application, we granted certiorari to review the correctness of this decision. ³

The sole issue presented for our resolution is whether a plaintiff who brings an In personam action in our state courts based upon the general maritime law has a right to a trial by jury.

The United States constitution provides that the judicial power of the United States extends to "all Cases of admiralty and maritime Jurisdiction." U.S.Const. art. III, § 2. This constitutional grant of federal jurisdiction is codified in 28 U.S.C. § 1333 which provides in pertinent part:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction, Saving to suitors in all cases all other remedies to which they are otherwise entitled. (emphasis added)

In general, the Exclusive admiralty jurisdiction of federal courts afforded by section 1333 has been limited to those maritime causes of action begun and carried on as proceedings In rem, that is, where a vessel or thing is itself treated as the offender and made the defendant by name or description in order to enforce a lien. Madruga v. Superior Court, 346 U.S. 556, 74 S.Ct. 298, 98 L.Ed. 290 (1954). However, it is well settled that, pursuant to the "saving to suitors" clause of section 1333, a suitor who holds an In personam claim (I. e., where defendant is a person, not a ship or other instrument of navigation), which might be enforced by suit In personam under the admiralty jurisdiction of the federal courts, may also bring suit, at his election, in the "common law" courts that is, by ordinary civil action in federal court, without reference to "admiralty," given an independent basis of federal jurisdiction (E. g., diversity of citizenship and requisite jurisdictional amount as provided in 28 U.S.C. § 1332) or in state court. See Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Madruga v. Superior Court, supra; Rounds v. Cloverport Foundry & Machine Co., 237 U.S. 303, 35 S.Ct. 596, 59 L.Ed. 966 (1915); Leon v. Galceran, 78 U.S. (11 Wall.) 185, 20 L.Ed. 74 (1871); See also G. Gilmore & C. Black, The Law of Admiralty § 1-13 (2d ed. 1975). Hence, in the instant case, plaintiff had the option to bring suit either in federal court pursuant to its admiralty jurisdiction or, under the saving to suitors clause, in the appropriate non-maritime court, by ordinary civil action. However, regardless of in which court the action is brought, the federal substantive admiralty or maritime law applies if the claim is one cognizable in admiralty. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Garrett v. Moore-McCormack Company, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942).

Historically, actions for personal injuries brought in the federal admiralty jurisdiction under the general maritime law do not entitle the injured plaintiff to a jury trial. Green v. Ross, 481 F.2d 102 (5th Cir. 1973). Nor was the unification of the admiralty and civil rules of 1966 intended to work a change in the general rule that admiralty claims are to be tried without a jury. Fed.R.Civ.P. 9(h), 38(e); Romero v. Bethlehem Steel Corporation, 515 F.2d 1249 (5th Cir. 1975). Fed.R.Civ.P. 9(h) serves only as a device by which the pleader may claim the special benefits of admiralty procedures and remedies, including a nonjury trial, when the pleadings show that both admiralty and some other basis of federal jurisdiction exist. Romero v. Bethlehem Steel Corporation, supra. However, an action for personal injury cognizable in admiralty may be brought, assuming the existence of some independent jurisdictional basis like diversity of citizenship, as a civil suit pursuant to the "saving to suitors" clause of 28 U.S.C. § 1333. In these civil suits, the plaintiff is entitled to a jury trial in accordance with the...