Schwartz v. SS NASSAU

• Decision Date: 18 September 1963
• Citation: 1963 AMC 2526,223 F. Supp. 374
• Parties: Mary A. SCHWARTZ, as Executrix under the Last Will and Testament of Samuel H. Schwartz, Deceased, Libelant, v. S.S. NASSAU, her engines, etc., and against Incres Steamship Company, Ltd., Respondent.
• Court: U.S. District Court — Southern District of New York

223 F. Supp. 374

1963 AMC 2526

Mary A. SCHWARTZ, as Executrixunder the Last Will and Testament of Samuel H. Schwartz, Deceased, Libelant, v.S.S. NASSAU, her engines, etc., and against Incres Steamship Company, Ltd., Respondent.

United States District Court S. D. New York.

September 18, 1963.

Henry Wimpfheimer, New York City, for libelant.

Kirlin, Campbell & Keating, New York City, Dermott F. Ryan, Daniel J. Dougherty, New York City, of counsel, for respondent.

BONSAL, District Judge.

This is a wrongful death action brought in admiralty under the Death on the High Seas Act(46 U.S.C. § 761 et seq.).Libelant is the widow and executrix of the decedent, Dr. Samuel H. Schwartz.Respondent, Incres Steamship Company, is the owner of the SS NASSAU.On May 7, 1960, while decedent and libelant were passengers aboard the SS NASSAU on a cruise from New York to Nassau, Dr. Schwartz became ill.He died the following day after having been removed from the ship to a hospital in North Carolina.Libelant was appointed as her husband's executrix on May 20, 1960.The libel was filed on May 3, 1962.

Respondent moves under Admiralty Rule 58 for summary judgment in its favor upon a limitations clause contained in paragraph 13 of the ticket contract.Libelant moves under Admiralty Rule 27 to strike the defense based upon that clause.

The limitations clause in paragraph 13 of the ticket contract is as follows:

"Suit to recover on any claim shall not be maintainable unless commenced and process served * * within one (1) year from the date when the death or injury occurred in respect of any claim for loss of life or bodily injury in any case where * * * Section 4283A shall apply;"

Section 4283A(46 U.S.C. § 183b) provides:

"Stipulations limiting time for filing claims and commencing suit

"(a) It shall be unlawful for the manager, agent, master, or owner of any sea-going vessel * * * transporting passengers * * * from or between ports of the United States and foreign ports to provide by rule, contract, regulation, or otherwise a shorter period * * * for the institution of suits on * * * claims for loss of life or bodily injury, than one year, such period for institution of suits to be computed from the day when the death or injury occurred.

* * * * * *

"(c) * * * if the action is one for wrongful death, any lawful limitation of time prescribed in such contract shall not be applicable so long as no legal representative has been appointed for * * * decedent's estate, but shall be applicable from the date of the appointment of such legal representative * * *."

Respondent contends the limitations clause in paragraph 13 bars the maintenance of this action.Libelant argues that the requirement in the limitations clause that process be served within one year, shortens the time for the commencement of the action to less than one year, and that for this reason the limitations clause is unlawful in its entirety under § 4283A, relying onBarrette v. Home Lines, Inc., 168 F.Supp. 141(S.D.N.Y.1958).In Barrettethe Court granted plaintiff's motion to strike a defense based upon a limitations clause identical to that here involved.

While the limitations clause in paragraph 13 of the ticket contract makes no mention of a suspension of the statute of limitations between the time of death and the appointment of a legal representative for a decedent's estate, it does refer to § 4283A.Subsection (c) of § 4283A provides that any lawful limitation of time in the ticket contract shall be applicable from the date of the appointment of the legal representative.

It is true, as pointed out in Barrette, that under the federal practice an action is commenced by the filing of the libel or complaint.Admiralty Rule 1;Batkiewicz v. Seas Shipping Co., 54 F.Supp. 789(S.D.N.Y.1944);Barrette, 168 F.Supp. at 142.The rule is otherwise in the State of New York where an action is commenced by the service of process (C.P.A. § 218 — now CPLR §§ 304,203(b)).

It was doubtless inartistic for the drafter of the limitations clause in paragraph 13 to confuse the two.The Court is not prepared to say that because he did so the entire clause is invalid.On the contrary, under subsection (c) of § 4283Athe Court finds that the provision in the ticket contract is lawful to the extent that it provides that "suit to recover on any claim shall not be maintainable unless commenced * * * within one year from the date when the death or injury occurred", and that the period so provided was extended by subsection (c) to one year after the date of the appointment of the libelant as executrix.This action was not commenced within that one year period, and hence is barred by the limitations clause.

Barrette is distinguishable in that it did not involve subsection (c).Here the time within which to bring suit was extended by statute pending the appointment of the executrix.Nevertheless, libelant is almost a year late in bringing her action.The court in Barrette found that the provisions restricting institution of suit and service of process were too closely related to be severed and hence that the entire clause was invalid, but on the facts of this case, the Court holds otherwise.

Clearly had the action been instituted in this Court within one year, but the marshal had not effected service until after the expiration of the year, the defense of the limitation clause would fall.However, in failing to commence the...