Phillips v. The Hellenic

• Decision Date: 01 September 1959
• Citation: 179 F. Supp. 5
• Parties: Dudley J. PHILLIPS, Libelant, v. THE HELLENIC, her engines, boilers, etc. and Compania Internaccional de Vapores Lda., Respondents.
• Court: U.S. District Court — Southern District of New York

179 F. Supp. 5

Dudley J. PHILLIPS, Libelant, v. THE HELLENIC, her engines, boilers, etc. and Compania Internaccional de Vapores Lda., Respondents.

United States District Court S. D. New York.

July 28, 1959.

On Motion to Reargue September 1, 1959.

Jerome Golenbock, New York City, for libelant.

Hill, Betts & Nash, New York City, for respondents.

THOMAS F. MURPHY, District Judge.

This libel was filed March 20, 1957. The citation and libel were served upon respondents' "agent" on February 3, 1959. Within the time permitted by stipulation respondents appeared "specially" and filed exceptions claiming that each cause of action was time barred. About three months later, and before argument of the prior filed exceptions, respondents again appeared "specially" and moved to quash the service of the citation and returned on the grounds that the person upon whom process was served was not an agent through whom service of process could be effected against respondents. Both motions came on for argument together.

A preliminary practice question is presented by respondents appearing "specially" to quash the service of the process. The question posed is whether that characterization has any significance in view of the fact that they had previously filed exceptions to the libel and, also, whether the rule is any different in admiralty than it now is on the civil side since the promulgation of the Federal Rules of Civil Procedure. Under the Rules of Civil Procedure it now seems to be settled that the old principle, that a demurrer once made gives the court jurisdiction in personam over the defendant and precludes any subsequent "special" appearance, is no longer applicable. See Kerr v. Compagnie De Ultramar, 2 Cir., 1958, 250 F.2d 860, 864; Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 1944, 139 F.2d 871, certiorari denied Orange Theatre Corp. v. Brandt, 322 U.S. 740, 64 S.Ct. 1057, 88 Ed. 1573. Since the Rules of Civil Procedure do not apply to proceedings in admirality (Rule 81(a) (1), Fed.R.Civ.P., 28 U.S. C.A.) it would appear that the old principle still obtains in admiralty and that any motion or exception addressed to the merits of the libel must be considered in the nature of a demurrer and gives the court jurisdiction of the person of the moving party. While there is a dearth of decisional law on the point, the few cases in admiralty would seem to be ample authority to support this proposition. See The Merrimac, D. C.S.D.Fla.1917, 242 F. 572; Norfolk Southern R. Co. v. Foreman, 4 Cir., 1917, 244 F. 353.

Accordingly, respondents will not be heard to raise the objection of the faulty service of process. This disposition leaves moot the subsidiary question whether or no they should be heard when, in violation of admiralty Rule 11, 28 U.S.C.A. they raise that objection so late.

Proceeding then to the exceptive allegations of laches we find that they must be sustained and this libel dismissed accordingly.

The accident complained of occurred May 18, 1950, and this libel was filed six years and ten months thereafter. In determining whether libelant is guilty of laches, the court, as a rule of thumb, looks to the analogous state statute of limitations and if it has run, inexcusable delay on libelant's part and prejudice to respondents is presumed. Oroz v. American President Lines, 2 Cir., 1958, 259 F.2d 636. Considering only that the libel is predicated upon breach of warranty of seaworthiness (a claim based on negligence arising out of general maritime law, "even though asserted beyond the limitation period, may be joined with an unseaworthiness claim timely commenced," Oroz v. American President Lines, supra, 259 F.2d at page 638), the analogous state statute of limitations is N. Y.Civil Practice Act, § 48(3) prescribing six years. LeGate v. The Panamolga, 2 Cir., 1955, 221 F.2d 689. Contra, Baez-Geigel v. American Foreign Steamship Corp., D.C.S.D.N.Y. 1959, 171 F.Supp. 359, 361. Cf. Oroz v. American President Lines, supra.

Libelant had filed a previous libel in this court for the same injury on March 31, 1954, against respondents and another party who successfully moved to dismiss as against it. That libel was ultimately dismissed for lack of prosecution on May 23, 1956, it appearing that no process had ever been served therein upon respondents. This latter fact precludes a holding that the analogous state statute of limitations was tolled by the filing of that libel. Cf. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520. For the same reason libelant may not claim the benefit of N.Y.C.P.A. § 23, which section presupposes that jurisdiction had been acquired over the adverse party....