Public Adm'r of New York County v. Angela Compania Naviera, S.A.

• Decision Date: 16 January 1979
• Docket Number: D,No. 128,128
• Court: U.S. Court of Appeals — Second Circuit
• Parties: The PUBLIC ADMINISTRATOR OF the COUNTY OF NEW YORK as Administrator of the goods, chattels and effects of Dimitrios Kontos, Plaintiff-Appellee, v. ANGELA COMPANIA NAVIERA, S.A., Defendant-Appellant. ocket 78-7141.

Page 58

592 F.2d 58

The PUBLIC ADMINISTRATOR OF the COUNTY OF NEW YORK as Administrator of the goods, chattels and effects of Dimitrios Kontos, Plaintiff-Appellee, v. ANGELA COMPANIA NAVIERA, S.A., Defendant-Appellant.

No. 128, Docket 78-7141.

United States Court of Appeals Second Circuit.

Argued Oct. 4, 1978.

Decided Jan. 16, 1979.

Victor S. Cichanowicz, New York City (Peter E. Kelly, Cichanowicz & Callan, New York City, of counsel), for defendant-appellant.

Herbert Lebovici, New York City (Lebovici & Safir, New York City, of counsel), for plaintiff-appellee.

Before KAUFMAN, Chief Judge, and SMITH and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Until 1970 there existed no independent, nonstatutory remedy for wrongful death under the general maritime law. Now however, such a remedy exists. Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). In this appeal we are called upon to consider the proper time limitation period for this cause of action. For the reasons that follow, we reverse a decision of the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, and remand for reconsideration of the defense of laches.

The SS ANGELA II was a merchant vessel registered in the Republic of Liberia and flying the Liberian flag. Its registered owner was the defendant-appellant Compania Naviera Angela, S.A., a Panamanian corporation owned entirely by citizens of the United States residing in New York. During the latter part of the 1960's the ANGELA II was used off the shores of India, Pakistan and Japan to haul grain and other supplies from larger ships into ports they were unable to enter, a process known as "lightering."

In the fall of 1968, Dimitrios Kontos, a Greek seaman, was hired as the Second Engineer on the ANGELA II. In April of 1969 he became ill and he was visited on the ship by a doctor. On September 8 he signed off the ship and returned to Greece, where he received further medical treatment. Although he seemed for a while to be on the road to recovery, on December 28, 1969, he was admitted to an Athens hospital, where he died two days later.

More than four years later, on March 20, 1974, Thomas J. Fitzgerald, acting in his capacity as Public Administrator of New York County and as the representative of Kontos' widow and children, ¹ filed suit against Kontos' employer in the Southern District of New York. ² The complaint alleged violations of the Jones Act, 46 U.S.C. § 688, the general maritime law of the United States, and the maritime law of the Republic of Liberia. The gist of Fitzgerald's complaint was that when Kontos became ill he was not provided with adequate medical care and that, as a result, Kontos' medical condition worsened and he eventually died. See De Zon v. American President Lines, 318 U.S. 660, 667-68, 63 S.Ct. 814, 87 L.Ed. 1065 (1943); Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670, 679-80 (2d Cir. 1971). See generally G. Gilmore & C. Black, The Law of Admiralty ch. VI, § 6-6 Et seq. (2nd ed. 1975). The defendant moved for summary judgment on the ground that the action was time barred. On June 22, 1976, the district court issued a memorandum opinion denying the defendant's motion and ordering the cause to trial. 417 F.Supp. 151. The district court subsequently found the defendants liable for the wrongful death of Kontos and awarded damages. This appeal followed.

The district court correctly determined that American law was the applicable body of law. See Hellenic Lines Limited v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 282 (1970) (Jones Act); Lauritzen v. Larsen,345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) (Jones Act); Romero v. International Terminal Operating Co., 358 U.S. 354, 382, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959) (general maritime law). See generally The Law of Admiralty, Supra, ch. VI, § 6-63 Et seq. The district court also correctly decided, and Fitzgerald conceded, that the portion of the complaint resting expressly on the Jones Act was time barred by the three-year statute of limitations of the Federal Employers' Liability Act, 45 U.S.C. § 56, which is incorporated into the Jones Act. See Sea-Land Services v. Gaudet, 414 U.S. 573, 576, 94 S.Ct. 573, 39 L.Ed.2d 9 (1974); Id. at 597, 94 S.Ct. 573 (Powell, J., dissenting); Moragne v. States Marine Lines, 398 U.S. 375, 394 & 407, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). With regard to the time limitation to be imposed on the cause of action arising under the general maritime law, however, a cause independently cognizable under the court's admiralty jurisdiction, the district court determined that the doctrine of laches was to be applied and that reference was to be made to New York State's six-year statute of limitations for contract actions. See Izquierdo v. Cities Service Oil Co. (Pa.), 244 F.Supp. 758, 761 (S.D.N.Y.1965); N.Y.Civ.Prac. § 213(2). Although we agree that the doctrine of laches is applicable in this case, it is our judgment that reference should be made to the relevant federal statute rather than a New York State statute. Accordingly, we reverse and remand.

DISCUSSION

In 1886 the Supreme Court held that, in the absence of a statute, the general maritime law itself did not provide a cause of action for wrongful maritime deaths. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886). As a result, until 1920 there existed no federal remedy whatsoever for a death caused on the high seas by a breach of one of the duties imposed by federal maritime law. For deaths that were not caused on the "high seas," I. e., deaths caused within state territorial waters, federal courts applied state wrongful death statutes in order to grant recovery. Then, in 1920, Congress passed two statutes designed to provide a federal remedy for wrongful deaths the Death on the High Seas Act, 46 U.S.C. § 761 Et seq., and the Jones Act, 46 U.S.C. § 688. Section 1 of the Death on the High Seas Act provides as follows:

Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, . . . the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.

46 U.S.C. § 761. The Jones Act provides as follows:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

46 U.S.C. § 688. The Federal Employers' Liability Act, 45 U.S.C. § 51 Et seq., is "the regime which the Jones Act made applicable to seamen." Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 266 (2d Cir. 1963), Cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964). See The Law of Admiralty, Supra, ch. VI, §§ 6-26 & 6-27.

These two statutes, however, did not erase the need for an independent, nonstatutory right of recovery for wrongful death under the general maritime law. In Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the Court was confronted with one of the peculiarities resulting from the absence of a nonstatutory federal wrongful death remedy under the general maritime law when a wrongful death was caused within state territorial waters, and when that death was caused by a vessel's unseaworthiness rather than negligence, neither federal nor state statutes provided for recovery. The Jones Act and the state statutes afforded a remedy only for negligence; the Death on the High Seas Act allowed recovery only for deaths caused outside territorial waters. In order to fill this gap, the Court overruled The Harrisburg and recognized a remedy for wrongful death under the general maritime law.

Aware that it was announcing an entirely new cause of action, the Moragne Court refrained from addressing itself to what it called the "subsidiary issues" relating to that cause of action the time limitation period, the measure of damages, and the schedule of beneficiaries. "(F)inal resolution" of such issues, the Court said, "should await further sifting through the lower courts in future litigation." 398 U.S. at 408, 90 S.Ct. at 1792. But the Court did characterize the Death on the High Seas Act as "the congressional enactment that deals specifically and exclusively with actions for wrongful death, and that simply provides a remedy for deaths on the high seas for breaches of the duties imposed by the general maritime law," and as "(t)he only (federal statute) that applies not just to a class of workers but to any 'person,' and that bases liability on conduct violative of general maritime law." 398 U.S. at 407-08, 90 S.Ct. at 1791. The Court referred in passing to the argument that the new wrongful death action should "share the doctrine of laches immemorially applied to admiralty claims" and that, in applying that doctrine, "consideration" should be given to the two-year statute of limitations of the Death on the High Seas Act, 46 U.S.C. § 763. But the Court offered only the following hints as to...