United States v. Alex Dussel Iron Works

• Decision Date: 18 March 1929
• Docket Number: No. 5325.,5325.
• Parties: UNITED STATES v. ALEX DUSSEL IRON WORKS, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

31 F.2d 535 (1929)

UNITED STATES v. ALEX DUSSEL IRON WORKS, Inc.

No. 5325.

Circuit Court of Appeals, Fifth Circuit.

March 18, 1929.

Edouard F. Henriques, Sp. Asst. in Admiralty to U. S. Atty., and W. I. Connelly, Atty. United States Shipping Board, both of New Orleans, La., for the United States.

Andrew M. Buchmann, Richard B. Montgomery, Richard B. Montgomery, Jr., Burt W. Henry, and A. W. Cooper, all of New Orleans, La., for appellee.

Before BRYAN and FOSTER, Circuit Judges, and GRUBB, District Judge.

GRUBB, District Judge.

This is an appeal from a decree of the District Court of the United States for the Eastern District of Louisiana, dismissing a libel filed by the United States against the appellee, upon an exception filed by it, upon the ground that the cause of action had become prescribed by the statute of limitations of one, two, three, four, five, and six years. Appellant asserts error in the decree of dismissal upon these grounds: (1) That no statute of limitations of Louisiana is applicable to the cause of action set out in the libel; (2) that the defense of laches is required to be presented by answer and not by an exception to the libel; (3) that the United States, suing in its own behalf and interest, is immune from the defense of laches; (4) that the same principle applies to the United States, suing on behalf of the owners of the cargo; (5) that the letter of the respondent's counsel, set out in the libel, estops the respondent from relying upon the libelant's delay in asserting its rights.

1. It is conceded by counsel for appellee that the exception inaccurately presented the defense intended, and that no period of prescription fixed by state statute could apply to the cause of action set out in the libel except by analogy. The defense intended to be asserted was laches and not prescription.

2. We think the defense of laches under the admiralty practice, as in equity, is as a rule properly presented only by answer and not by exception. This is certainly true, unless the libel on its face shows laches as a matter of law. Laches consists of two elements, inexcusable delay in instituting suit and prejudice resulting to the defendant from such delay. Its existence depends upon the equities of the case, and not merely upon the lapse of time. The libel in this case charges that the cause of action arose March 7, 1920; that demand was made April 2, 1923; and that the libel was filed April 22, 1926. It also shows that respondent, through its counsel, answered libelant's demand on April 14, 1923, by denying liability for the fire that caused the damage sought to be recovered by libelant. It also sets out libelant's efforts to locate eyewitnesses to the starting of the fire, and its inability to find any until March 5, 1926, when it first discovered an eyewitness, who would testify that the fire was caused by a heated rivet negligently dropped by an employee of respondent into the cargo of sugar on the ship of libelant. We do not think that the libel shows laches as a matter of law, unless it can be implied from the delay of six years. Differing from prescription, time alone is not enough to show laches. The circumstances and the equities of the parties must be as well considered. The Key City, 14 Wall. 653, 20 L. Ed. 896. Laches is an affirmative defense, and, unless appearing upon the face of the pleading, must be asserted by the answer of the respondent. If the exception be construed to present the defense of laches, we think it should have been presented by answer, and that the District Court erred in sustaining the exception of prescription or laches and in dismissing the libel. This results in a reversal of the decree of dismissal. As a guide to the parties in the future conduct of the case, we indicate our views as to the remaining questions.

3. The libel was filed by the United States in its sovereign capacity. The United States Shipping Board Fleet Corporation was not a party to the libel. The United States is alleged to have been the owner of the steamship Sacandaga, which was injured by the fire, while it was being operated in foreign commerce, being loaded with sugar at New Orleans for Bordeaux and Havre. It is well settled that the United States suing in its sovereign capacity to recover a pecuniary loss alleged to have been negligently caused to property owned and operated by it in a governmental capacity...