Murphy v. International Freighting Corporation, Civ. A. No. 57-533-F.

• Citation: 1961 AMC 442,182 F. Supp. 636
• Decision Date: 04 April 1960
• Docket Number: Civ. A. No. 57-533-F.
• Parties: Martin J. MURPHY v. INTERNATIONAL FREIGHTING CORPORATION, Inc. and A/S Sobral. INTERNATIONAL FREIGHTING CORPORATION, Inc. v. JARKA CORPORATION OF NEW ENGLAND. A/S SOBRAL v. JARKA CORPORATION OF NEW ENGLAND and the CUNARD STEAM-SHIP COMPANY, Ltd.
• Court: U.S. District Court — District of Massachusetts

182 F. Supp. 636

1961 AMC 442

Martin J. MURPHY v. INTERNATIONAL FREIGHTING CORPORATION, Inc. and A/S Sobral.

INTERNATIONAL FREIGHTING CORPORATION, Inc. v. JARKA CORPORATION OF NEW ENGLAND.

A/S SOBRAL v. JARKA CORPORATION OF NEW ENGLAND and the CUNARD STEAM-SHIP COMPANY, Ltd.

Civ. A. No. 57-533-F.

United States District Court D. Massachusetts.

April 4, 1960.

Nathan Greenberg, Robert P. Malone, Francis H. Farrell, Boston, Mass., for plaintiff.

Arthur J. Santry, Putnam, Bell, Dutch & Santry, Richard D. Sears, III, Boston, Mass., for defendant, International Freighting.

Leo F. Glynn, Boston, Mass., for A/S Sobral.

Merritt J. Aldrich, Bingham, Dana & Gould, Sumner H. Babcock, Robert J. Hallissey, Boston, Mass., for Jarka Corp. of New England.

FORD, District Judge.

Defendant A/S Sobral moves for summary judgment on the ground that this action, not having been timely brought, is barred by the statute of limitations or by the doctrine of laches.

This action is one to recover damages for personal injuries suffered by plaintiff while working as a longshoreman on the vessel Bow Canada, owned by defendant Sobral. Plaintiff alleges negligence and failure to provide a seaworthy vessel. Plaintiff is a citizen of Maine and defendant is alleged to be a foreign corporation. The alleged accident occurred at Portland, Maine, on February 21, 1954. The vessel at that time was being operated under a charter to International Freighting Corporation, Inc., a corporation now dissolved, which was originally named as a defendant, the action against it having been subsequently dismissed by stipulation of the parties. The complaint in the present action was filed on May 27, 1957.

The courts are not in agreement as to the proper time limitation to be applied in an action brought on the law side of the court to recover for injuries allegedly caused by the unseaworthiness of a vessel. While some courts have taken the position that since the action is one at law, and there is no applicable federal statute of limitations, the timeliness of the action is to be determined by application of the appropriate state statute of limitations, the more common view appears to be that since the right being asserted is one arising under maritime law, the admiralty doctrine of laches is to be applied. Oroz v. American President Lines, Ltd., 2 Cir., 259 F.2d 636; Henderson v. Cargill, Inc., D.C., 128 F. Supp. 119; Apica v. Pennsylvania Warehousing & Safe Deposit Co., D.C., 74 F. Supp. 819; D.C., 101 F.Supp. 575. In McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272, the Supreme Court, while holding that where an action for unseaworthiness is combined with an action under the Jones Act, 46 U.S.C.A. § 688, a court cannot apply to the action for unseaworthiness a state period of limitations shorter than the three-year period of limitations applicable to the Jones Act action, left open the question of the proper standard to be applied in an action on the law side of the federal courts to enforce an admiralty right not joined with a claim under the Jones Act.¹ The question need not be resolved here since plaintiff's action must be held to be untimely under whichever standard is applied.

The complaint on its face indicates that the action was brought over three years and three months after the date of the injury. The analogous Massachusetts statute of limitations applicable to actions to recover for personal injuries provides a limitation period of two years. Mass.G.L. Ch. 260 § 2A. Plaintiff, however, relies on § 9 of that chapter which provides:

"§ 9. Suspension in Case of Non-Resident Defendant. If, when a cause of action hereinbefore mentioned accrues against a person, he resides out of the commonwealth, the action may be commenced within the time herein limited after he comes into the commonwealth; and if, after a cause of action has accrued, the person against whom it has accrued resides out of the commonwealth, the time of such residence shall be excluded in determining the time limited for the commencement of the action; but no action shall be brought by any person upon a cause of action which was barred by the laws of any state or country while he resided therein."

His argument is that § 9 applies because defendant was never within the Commonwealth during the period between the date of the accident and the commencement of the suit and that since plaintiff during this time resided in Maine, which has a six-year statute of limitations applicable to actions of this type, R.S.1954, c. 112, § 90, the two-year period provided by § 2A never began to run.

Defendant is a foreign corporation with no established place of business in Massachusetts. It has never filed with the Massachusetts Commissioner of Corporations and Taxation any of the papers required by Mass.G.L. Ch. 181 § 3 and § 5 of foreign corporations doing business in Massachusetts. In 1954 and 1955 vessels owned by defendant called at the port of Boston eight times. The Sprague Steamship Company acted during this period as the husbanding agent for the defendant at Boston, performing such services as engaging pilots and towboats, handling the entering and clearing of the vessels, handling mail for the ship, arranging for needed stores, and other services which might be requested by the master. Sprague also accepted notices of customs and immigration penalties levied against defendant and filed bonds on behalf of defendant in connection with such proceedings. Sprague also solicited cargo for these vessels.

There was no evidence of any formal agreement appointing Sprague as agent to receive process on behalf of defendant. It appears that it was the regular practice of Sprague to accept service of process on behalf of the owners of vessels for which they acted as husbanding agents. The usual procedure when served with such process was to telephone the owner or someone representing him and on receiving approval to accept service.

In the present case plaintiff's attorney, shortly after being engaged by plaintiff, discussed plaintiff's claim with counsel who he believed represented defendants. In response to his inquiries he was told to have service made on Sprague. Service was made on Sprague, was accepted, and forwarded to defendant's counsel who in due course filed an answer to the merits.

Plaintiff argues that the visits of defendant's ships to Boston were infrequent and sporadic and hence would not constitute doing business in Massachusetts. The extent of the activity required to constitute doing business must be judged in the light of the nature of the business being done. Two of defendant's vessels were involved. During the years 1954 and 1955 for which evidence was offered, the Bow Canada made six visits to Boston and the Bow Brasil two. They were then engaged in long voyages to South American ports. In these circumstances it would seem that these visits show a regular course of conduct sufficient to constitute doing business in Massachusetts. Murphy v. Arrow Steamship Co., Inc., D.C., 124 F. Supp. 199; Szabo v. Smedvig Tankrederi A. S., D.C., 95 F.Supp. 519; Van Horn v. Waterman S.S. Corp., D.C., 71 F.Supp. 347. These regular visits of these vessels together with the solicitation of business in their behalf by an agent located here would seem to meet the standards for doing business required by the Massachusetts courts, that is, solicitation together with some other substantial activity. Jet Manufacturing Co., Inc. v. Sanford Ink Co., 330 Mass. 173, 112 N.E.2d 252.

In other jurisdictions it has been held that a husbanding agent's activities on behalf of the owner of a vessel are sufficient to make it the owner's agent for service of process. Murphy v. Arrow Steamship Co., Inc., D.C., 124 F.Supp. 199; Jenkins v. Lykes Bros. S. S. Co., Inc., D.C., 48 F.Supp. 848. Cf. George H. McFadden & Bros. v. The M/S Sunoak, D.C., 167 F.Supp. 132. More significant, however, is the fact that, although without formal written appointment, Sprague was accepted by defendant as its agent for service of process. When service was made on Sprague, defendant...