Prol v. Holland-America Line

• Decision Date: 18 September 1964
• Parties: Francesco Gonzalez PROL, Libelant, v. HOLLAND-AMERICA LINE and S. S. STATENDAM, Respondents.
• Court: U.S. District Court — Southern District of New York

234 F. Supp. 530

Francesco Gonzalez PROL, Libelant, v. HOLLAND-AMERICA LINE and S. S. STATENDAM, Respondents.

United States District Court S. D. New York.

September 18, 1964.

Thomas J. Brady, New York City, for libelant.

Burlingham, Underwood, Barron, Wright & White, New York City, William M. Kimball, New York City, of counsel, for respondents.

TENNEY, District Judge.

Respondent moves herein for an order dismissing the libel on grounds of res judicata or, alternatively, for failure to state valid claims.

This is a seaman's action brought in admiralty.

Libelant, a citizen of Spain, sues respondent, a foreign shipowner and Dutch corporation, and its vessel, S.S. STATENDAM, for injuries arising from breach of warranty of seaworthiness allegedly sustained in two separate accidents. The accidents allegedly occurred on February 7, 1961, while the vessel was in the port at Hoboken, New Jersey, and on December 20, 1961, while the vessel was on the high seas en route between New York and San Juan, Puerto Rico.

The respondent vessel is of Dutch registry and sails under the Dutch flag. The libelant signed Dutch Articles in Rotterdam, Holland, for round-trip voyages beginning and terminating in Holland.

The instant action was commenced on July 19, 1963.

By a libel, filed in this Court on April 27, 1962, libelant instituted a similar suit against the respondents named herein (62 Ad. 463). On or about June 1, 1962, respondent Holland-America Line moved to dismiss the libel on the ground inter alia that it failed to state a valid claim in that libelant had failed to plead with particularity the Dutch substantive law upon which his claims were of necessity based.

By an opinion dated September 27, 1962, the Honorable Thomas F. Croake granted respondents' motion to dismiss with leave to serve an amended libel within fifteen days from September 28, 1962, the date of the filing of the opinion. (1962 A.M.C. 2566 (S.D.N.Y. September 27, 1962)).

No amended libel was served within the time specified by Judge Croake.

The case was called on the Review Calendar held on June 20, 1963, pursuant to Rule 23 of the General Rules of United States District Courts for the Southern District and Eastern District of New York.

Judge McGohey, presiding over the Review Calendar, by an order dated June 21, 1962, after observing that an amended libel had not been filed, nor anything done in connection with Judge Croake's order of September 27, 1962, dismissed the case in the following language:

"Accordingly, the case is dismissed for failure to prosecute."

Thereafter, on or about September 10, 1963, libelant moved to vacate or modify the aforesaid dismissal order. Chief Judge Ryan, before whom the motion was heard, by an order dated September 13, 1963, denied the motion. The instant libel was filed on July 19, 1963.

Respondent, in support of its motion to dismiss on the grounds of res judicata, argues as follows:

Rule 41(b) of the Federal Rules of Civil Procedure provides that, unless the Court in its dismissal order otherwise specified, "any dismissal not provided for in this rule * * * operates as an adjudication upon the merits."

Since Judge McGohey's dismissal order did not otherwise specify, respondent asserts it "operates as an adjudication upon the merits" under Rule 41(b).

Respondent then argues that the within libel, being identical to the one dismissed, is barred on the grounds of res judicata by the prior dismissal which, under Rule 41(b), is an adjudication on the merits.

Rule 23 of the General Rules of this Court provides:

"Rule 23—Review of Causes; Dismissal for Want of Prosecution.

"Causes which have been pending for more than (Southern) one year (Eastern) six months and are not on the trial calendar may be called for review upon not less than fifteen (15) days' notice given by the clerk by mail addressed to the attorneys or proctors of record. Notice of the call of such causes shall be published in the New York Law Journal, or otherwise as the court directs. The court may thereupon enter an order dismissing the cause for want of prosecution, or continuing it, or may make such other order as justice may require."

If the Court were to apply Rule 41(b) to the instant action, it would appear that respondent's position is well taken. See, e. g., Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir. 1962); American Nat. Bank & Trust Co. of Chicago v. United States, 79 U.S.App.D.C. 62, 142 F.2d 571, 572 (1944); Hartford Acc. & Indem. Co. v. Levitt & Sons, Inc., 24 F.R.D. 230, 232 (E.D.Pa.1959); Van Brode Milling Co. v. Kellogg Co., 113 F.Supp. 845, 847 (D. Del.1953); Larsen v. O'Reilly, 11 F.R.D. 604 (S.D.N.Y.1951); 5 Moore, Federal Practice ¶ 41.11 (1951); cf., Link v. Wabash R. R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), affirming, 291 F.2d 542 (7th Cir. 1961); Nasser v. Isthmian Lines, 331 F.2d 124 (2d Cir. 1964).

However, I question the applicability of Rule 41(b) of the Federal Rules of Civil Procedure to the instant suit, in admiralty, wherein the dismissal of the prior libel for failure to prosecute did not specify whether it was with or without prejudice.

Rule 81 of the Federal Rules of Civil Procedure provides that:

"these rules do not apply to proceedings in admiralty."

This rule, of course, has been modified by the Supreme Court's incorporation of certain features of the Civil Rules into the Admiralty Rules, and judicial construction, construing Admiralty Rules in the same scope as their identical counterparts in the Civil Rules. See 7 Moore, Federal Practice, ¶ 81.03 1 (1955) and cases cited therein; 2 Moore, Federal Practice, ¶ 1.03 5 (1963) and cases cited therein.

Rule 41(b) has been applied in admiralty actions in this Circuit but under distinguishable circumstances. In Murphy v. A/S Sobral, 187 F.Supp. 163 (S.D. N.Y.1960), a prior action brought on the law side of the Court had been dismissed as being untimely, both under an analogous state statute of limitations and the admiralty doctrine of laches. Murphy v. International Freighting Corp., 182 F. Supp. 636, 638 (D.Mass.), aff'd, 283 F.2d 392 (1st Cir. 1960) (Per curiam). In the suit brought in the Southern District of New York, 187 F.Supp. 163, on the admiralty side of the Court, the respondent corporation pleaded the prior dismissal as being res judicata. The Court, after noting that a prior rule was to the contrary, held that the prior dismissal at law based on laches, which did not otherwise specify, operated as an adjudication on the merits under Rule 41(b), id. at 164.

The doctrine of laches involves tardiness in the institution of suit and possible prejudice resulting to a respondent by reason of the delay. See McMahon v. Pan American World Airways, Inc., 297 F.2d 268, 269 (5th Cir. 1962); South Carolina State Highway Dept. v. The Fort Fetterman, 148 F.Supp. 620, 622 (E.D.S.C.1956), aff'd, 242 F.2d 799 (4th Cir. 1957) (Per curiam). In deciding the question of timeliness of suit there is no federal statute of limitations, and though a maritime case be brought on the civil side of the Court, the proper measure of time is the admiralty doctrine of laches. But in deciding whether the suit is timely the "courts of admiralty will use local limitation statutes as a rule-of-thumb as to the presence or absence of prejudice and inexcusable delay. If the statute has run, prejudice by reason of inexcusable delay is presumed * * *." Oroz v. American President Lines, Ltd., 259 F.2d 636, 639 (2d Cir. 1958).

While the question of laches and/or limitation of action involves the institution of suit and service of process (California Cas. Indem. Exch. v. United States, 74 F.Supp. 408 (S.D.Calif.1947), once suit is brought it may subsequently be dismissed for failure to prosecute, pursuant to Rule 38 of the Rules of Practice in Admiralty and Maritime Cases (hereinafter referred to as Admiralty Rules). United Nations Relief & Rehabilitation Administration v. The Mormacmail, 99 F.Supp. 552 (S.D.N.Y.1951).

The Sobral case, supra, wherein the prior action at law was dismissed for failure timely to institute suit under the doctrine of laches and Rule 41(b) applied, is not controlling in the situation herein for a more compelling and basic reason. Whereas the courts have applied Rule 41(b) to interpret dismissals in maritime actions for laches for want of any different admiralty rule, as far as dismissals for failure to prosecute are concerned the Supreme Court has enacted Admiralty Rule 38.

Rule 38 provides:

"If, in any admiralty suit, the libellant shall not appear and prosecute his suit, and comply with the orders of the court, he shall be deemed in default and contumacy; and the court may, on the application of the respondent or claimant, pronounce the suit to be deserted, and the same may be dismissed with costs."

Thus the sole issue before this Court is whether, in interpreting a dismissal which does not specify whether it is with or without prejudice, pursuant to Local Rule 23, the Court, in a suit in admiralty, should look to the Federal Rules of Civil Procedure and apply Rule 41(b) or should look to the Admiralty Rules and apply Rule 38.

The Court of Appeals for this Circuit, in Terhune v. Prudential S. S. Corp., 283 F.2d 467 (2d Cir. 1960) (Per curiam), a suit in admiralty, discussed the power of the district court to dismiss a suit in admiralty for failure to prosecute pursuant to Local Rule 21 (now Rule 23). The Court, after reviewing the delays, which I might observe were more flagrant than those in the case at bar, held that "Admiralty Rule 38, 28 U.S.C.A., gives the trial court power to dismiss a libelant's case for failure to prosecute. The district courts may implement this rule by their own calendar practice. Boudreau v. United States, 9 Cir., 1957, 250 F.2d 209. And see General Rule 21 of the United States District Court for the Southern District of New York." Id. at 469.

The dismissal in the Terhune case was entered on the...