McManus v. Lykes Brothers Steamship Company, 7455.

• Decision Date: 11 October 1967
• Docket Number: No. 7455.,7455.
• Citation: 275 F. Supp. 361
• Parties: John R. McMANUS v. LYKES BROTHERS STEAMSHIP COMPANY, Inc.
• Court: U.S. District Court — Eastern District of Louisiana

275 F. Supp. 361

John R. McMANUS v. LYKES BROTHERS STEAMSHIP COMPANY, Inc.

No. 7455.

United States District Court E. D. Louisiana, New Orleans.

October 11, 1967.

George W. Reese, Reese & Abadie, New Orleans, La., for libellant.

Andrew T. Martinez, Terriberry, Rault, Carroll, Yancey & Farrell, New Orleans, La., for respondent.

Christopher Tompkins, Ralph E. Smith, Deutsch, Kerrigan & Stiles, New Orleans, La., for respondent-impleaded.

HEEBE, District Judge.

This cause came on for hearing today on the motion of the third-party defendant, Atlantic & Gulf Stevedores, Inc., to dismiss. For the reasons assigned, the motion is granted.

REASONS

The original plaintiff in this action, John R. McManus, filed this suit on July 14, 1965. It appears, from a copy of the coroner's record of Jefferson Parish, submitted by Atlantic & Golf Stevedores and filed in the record, that McManus died on August 24, 1966. It also appears that there has been no motion by any parties whatsoever for substitution in the place of the original plaintiff in this case. It was admitted by counsel for the original plaintiff, who represents the wife of the deceased for purposes of this motion, that if this action were one before a court of the State of Louisiana, the motion to dismiss would have to be granted for the reason that Article 2315 of the Civil Code of Louisiana which grants a right of survival and of wrongful death to the wife of a deceased claimant, is only available during a strict one-year peremptive period, regardless of whether or not suit was filed originally by the injured party. See McConnell v. Webb, 226 La. 385, 76 So.2d 405 (1954); Bounds v. T. L. James & Co., 124 F. Supp. 563 (W.D.La.1954). Counsel asserts, however, that since this action is one brought in admiralty and in the federal system, the strict rule of Louisiana law which prohibits substitution of parties after the passage of one year from the date of the death of the original plaintiff, should not be applied.

In Kenney v. Trinidad Corp., 349 F.2d 832 (5th Cir. 1965), the court dismissed an action by representatives of a deceased instituted more than one year after his death, on the grounds of the one-year peremptive period of Article 2315. Kenney did not deal, however, with the precise issue presented here, where a suit has been instituted by the deceased and his representatives seek, not to institute suit, but only to substitute themselves in the already commenced proceeding. Although, as indicated above, the law of Louisiana would prohibit even substitution in such a case, counsel argues that the law of Louisiana to that extent need not be recognized by a federal district court sitting in admiralty.

Rule 25(a)(1) of the Federal Rules of Civil Procedure provides in pertinent part that:

"If a party dies and the claim is not thereby extinguished the court may order substitution of the proper parties."

Rule 25 sets up only the procedural method by which the original action may proceed if the right of action does in fact survive in favor of the party sought to be substituted; this is clear from the wording of the rule, which allows substitution on the death of a party only if "the claim is not thereby extinguished." Thus, it is only when the party moving for substitution already has the right to institute his or her action under substantive rules of law that he is allowed to be substituted under Rule 25. See Barron & Holtzoff (Wright Edition) § 621, p. 416, n. 9.

Thus, whether an action can survive to a representative of a deceased party plaintiff is not governed by federal rules of procedure at all. Whether "the claim is not thereby extinguished" is strictly a matter of substantive law.

The original plaintiff sued as a longshoreman on grounds of unseaworthiness of the defendant's vessel; it is admitted that the Jones Act and the Death on the High Seas Act are not applicable to the case. Since the general maritime law itself contains no provision for survival or wrongful death actions, it is only through the adoption of a state death act, in this case Article 2315 of the Louisiana Civil Code, that any right of action for survival or wrongful death may accrue to any representative of the deceased, Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, and any substitution at all thus be permitted. It is clear that state death acts may be adopted by the federal courts sitting in admiralty and applied within the schema of the general maritime law; such acts do not "interfere with the uniform and harmonious operation" of the general maritime law. See Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); Gilmore & Black, The Law of Admiralty, p. 43. Where such state death acts are adopted within the framework of the law of admiralty, they must be accepted on their face and with whatever limitations are inherent in...