People of the Living God v. Star Towing Co., 5688.

• Decision Date: 10 September 1968
• Docket Number: No. 5688.,5688.
• Citation: 289 F. Supp. 635
• Parties: PEOPLE OF THE LIVING GOD v. STAR TOWING CO., Inc. and Derrick Barge No. 1.
• Court: U.S. District Court — Eastern District of Louisiana

289 F. Supp. 635

PEOPLE OF THE LIVING GOD v. STAR TOWING CO., Inc. and Derrick Barge No. 1.

No. 5688.

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

September 10, 1968.

COPYRIGHT MATERIAL OMITTED

E. Howard McCaleb, III, New Orleans, La., for libelant.

John Poitevent, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for defendant Star Towing Co., Inc.

Cornelius G. Van Dalen, Deutsch, Kerrigan & Stiles, New Orleans, La., for defendants Atlantic & Gulf Stevedores, Inc. and the barge Eileen H. McGrath.

HEEBE, District Judge:

This suit was instituted over five years ago on February 20, 1963, against the Derrick Barge No. 1 and her owner, Star Towing Co., Inc., to recover for salvage services rendered by libelant's tug, the Ambassador, to the Derrick Barge No. 1 on February 9, 1962, and for damages incurred by the Ambassador in the rescue operation. The libellant also sought to recover charter hire; but that claim is irrelevant for purposes of this motion.

The original petition claimed that Star Towing Company's tug, the Calco XV, was towing the Derrick Barge No. 1, also owned by Star Towing Company, across the Mississippi River when the tow line became entangled in the anchor chain of another vessel anchored in the river. This allegedly caused the tow line to part and both vessels—the tug and the tow—were swept down the river by the strong current. Libelant alleged that the Ambassador, at the request of Star Towing Company's fleet superintendent, went to the aid of the Derrick Barge No. 1 which was in a heeled over condition threatening to sink and in imminent danger of crashing into another vessel anchored in the river. Libelant further alleged that the Ambassador was able to put her lines on the Derrick Barge No. 1 and bring her back upstream where the Calco XV, which had righted herself, was able to tie up alongside. The flotilla then proceeded up the river to berth the barge alongside a ship where the barge was to work. While mooring the Derrick Barge No. 1 to the ship, the Ambassador was crushed between the barge and the ship allegedly causing $350.00 damage to her pilothouse. Libelant claims this was caused by the negligence of the Calco XV.

As a result of interrogatories filed on September 22, 1967, four and one-half years after the suit was instituted, the libelant discovered that the name of the salved barge was not the Derrick Barge No. 1, as originally alleged, but was the barge Eileen H. McGrath which was owned by Atlantic & Gulf Stevedores, Inc., and not Star Towing Company. Consequently, libelant sought leave to amend its petition to substitute the Eileen H. McGrath for the Derrick Barge No. 1 and to add Atlantic & Gulf Stevedores as a party defendant.¹ Leave to amend was granted on November 22, 1967.

The present motion is a motion for summary judgment brought by Atlantic & Gulf Stevedores, Inc., and the Eileen H. McGrath on the grounds that because they were not sued until over five and one-half years after the salvage operation occurred, the suit against them is barred by 46 U.S.C. § 730 which provides:

"A suit for the recovery of remuneration for rendering assistance or salvage services shall not be maintainable if brought later than two years from the date when such assistance or salvage was rendered * * *."²

There has been no tendency on the part of the judiciary to erode the plain meaning of this statute. It is clear that a party may not be brought into court to defend a claim for salvage after the two-year statute of limitations has run.³ Tice Towing Line v. James McWilliams Blue Line, 57 F.2d 183 (2d Cir. 1932); Cavanaugh v. The Lenco II, 102 F.Supp. 213 (S.D.N.Y.1951); Canadian Government Merchant Marine v. Virginia Coaling Corp., 1929 A.M.C. 192 (E.D.N.Y.1929).

The libelant, however, baldly asserts without citation of authority or discussion that Article 2097 of the Louisiana Civil Code tolls the federal statute of limitations found in 46 U.S.C. § 730. Article 2097 provides:

"A suit brought against one of the debtors in solido interrupts prescription with regard to all."⁴

Libelant's contention raises two issues for which neither party has cited any authority. The first is whether a state statute tolling prescription interrupts the running of a federal statute of limitations in an admiralty action; the second is, if the state statute is applicable, whether Star Towing Company and Atlantic & Gulf Stevedores, Inc., are liable in solido so as to come within the scope of Article 2097. We hold that Article 2097 of the Louisiana Civil Code does not apply to this suit and therefore does not toll the federal statute of limitations. We do not reach the second issue.

This is a federal suit in every sense of the word. It is an action in admiralty for salvage arising under the general maritime law. 46 U.S.C. § 730 is a federal statute of limitations which contains its own tolling provisions.⁵ We simply do not think there is any room for the application of state tolling statutes in this admiralty action which contains its own statute of limitations complete with provisions for tolling. In Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), an action brought under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., the Supreme Court indicated that the mechanical application of state "saving statutes" to the federal statute of limitations would frustrate the congressional policy of uniformity underlying the federal statute. Thus, rather than apply diverse state statutes subjecting a litigant's rights arising under federal law to the vagaries of state law, the Supreme Court opted in favor of national uniformity in fashioning a federal rule as to the tolling of the federal statute of limitations. This reasoning is equally applicable to admiralty actions. Belton v. Traynor, 381 F.2d 82 (4th Cir. 1967); Berry v. Pacific Sportfishing, Inc., 372 F.2d 213 (9th Cir. 1967), cert. den. 389 U.S. 821, 88 S.Ct. 42, 19 L.Ed.2d 72 (1967); Izquierdo v. Cities Service Oil Co., 244 F.Supp. 758 (S.D.N.Y.1965); Stoever v. Moore-McCormack Lines, Inc., 1958 A.M.C. 1391 (N.Y.1958); Ali Ben Ali v. Moore-McCormack Lines, Inc., 1955 A.M.C. 2332 (N.Y.1955). We are therefore compelled to hold that Article 2097 does not apply to this case.⁶

Having determined that Article 2097 is not applicable, we are still faced with the question of whether we will incorporate or adopt by analogy the principle embodied in Article 2097 into the law of admiralty. We decline to do so because we do not believe that this case warrants such a rule.

The owner of a salved vessel is liable for salvage services as well as any damages incurred in the salvage operation. Gilmore & Black, The Law of Admiralty §§ 8-8, 8-9, 8-13, 8-14 (1957). However, one whose fault occasions the necessity for the salvage is also liable. In such a case, the one at fault is primarily liable and the owner is only secondarily liable. The one at fault must pay the entire salvage award if he is able. The Mercer, 297 F. 981 (2d Cir. 1924); The Richard F. Young, 245 F. 499 (E.D.Va.1917). Cf. Burns Bros. v. Erie R. Co., 79 F.Supp. 948 (E.D.N.Y.1948), modified sub nom, 176 F.2d 406 (2d Cir. 1949); Olsen Water & Towing Co. v. United States, 21 F.2d 304 (2d Cir. 1927); The Public Bath No. 13, 61 F. 692 (S.D.N.Y.1894).

The possibility of joint and several liability or liability in solido on the part of Star Towing Company and Atlantic & Gulf Stevedores, Inc., exists only if Star Towing Company was negligent or otherwise at fault.⁷ If Star Towing Company was not negligent or at fault, there would certainly be no joint and several liability, and this would be an inapposite case for the fashioning of a federal rule adopting by analogy the principle embodied in Article 2097. But even assuming that Star Towing was negligent or at fault,⁸ we still do not believe that, if such a rule may be formulated, this is a proper case in which to do it. We do not feel that the policy which supports the principle embodied in Article 2097 is applicable here. Such a statute is obviously premised on the notion that a party who is jointly and severally liable with another party who was sued within the statutory time limit will not be prejudiced if made a defendant after the statute of limitations has run.⁹ See Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (La.1948). This is because in most instances he will have knowledge of the suit. Having thus been alerted and with the knowledge that he, too, may be sued, he will be in a position to protect himself. In this case, however, Atlantic & Gulf Stevedores, Inc., had no knowledge whatsoever that this suit was pending at the time the statute of limitations expired. Without such knowledge the attempt to join it in this suit three and one-half years after the statute of limitations had expired certainly comes as a surprise to Atlantic & Gulf Stevedores, Inc., and it is impossible to overlook the prejudice which will befall Atlantic & Gulf Stevedores, Inc., when it commences its investigation for the first time into the events of over five and one-half years ago.

An even stronger reason emerges when it is remembered that this is not a case involving two active wrongdoers. If Star Towing Company and Atlantic & Gulf Stevedores, Inc., are jointly and severally liable, it would be due solely to the active wrong of Star Towing Company. Atlantic & Gulf Stevedores, Inc., did not expose itself to such liability either by conduct or by contract. Atlantic & Gulf Stevedores would only be technically liable by virtue of its status as owner of the salved barge. Thus, if Star Towing Company and Atlantic & Gulf Stevedores would be jointly and severally liable, it would be far removed from the classic examples of such liability. To subject Atlantic & Gulf Stevedores, Inc., to the principle embodied in Article 2097 on a technical basis would, in this case, erode the equitable...