Waterman Steamship Corporation v. Rodriguez, 5666

• Decision Date: 03 May 1961
• Docket Number: No. 5666,5667.,5666
• Citation: 290 F.2d 175
• Parties: WATERMAN STEAMSHIP CORPORATION, Defendant, Appellant, v. Ramon RODRIGUEZ Colon, Plaintiff, Appellee. Ramon RODRIGUEZ Colon, Plaintiff, Appellant, v. WATERMAN STEAMSHIP CORPORATION, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

290 F.2d 175 (1961)

WATERMAN STEAMSHIP CORPORATION, Defendant, Appellant, v. Ramon RODRIGUEZ Colon, Plaintiff, Appellee.

Ramon RODRIGUEZ Colon, Plaintiff, Appellant, v. WATERMAN STEAMSHIP CORPORATION, Defendant, Appellee.

Nos. 5666, 5667.

United States Court of Appeals First Circuit.

May 3, 1961.

Vicente M. Ydrach, San Juan, P. R., with whom Hartzell, Fernandez & Novas, San Juan, P. R., was on brief, for Waterman Steamship Corp.

Harvey B. Nachman, New York, N. Y., with whom Jerome Golenbock and Stanley L. Feldstein, New York, N. Y., were on brief, for Ramon Rodriguez Colon.

Before WOODBURY, Chief Judge, and MARIS^* and HARTIGAN, Circuit Judges.

MARIS, Circuit Judge.

These are cross-appeals from a judgment entered in favor of the plaintiff, Ramon Rodriguez Colon, and against the defendant, Waterman Steamship Corporation, in the United States District Court for the District of Puerto Rico in a civil action brought to recover damages for personal injuries sustained by the plaintiff, a longshoreman in the employ of a stevedoring company which was engaged in unloading cargo from defendant's vessel while lying in the port of San Juan. Alleging that his injuries resulted from the negligence of defendant's officers and crew and from the unseaworthiness of the vessel, the plaintiff brought this action against the defendant. It was tried to the court without a jury. The district court found that the plaintiff's injuries were caused by the defendant's negligence and by its failure to provide a seaworthy vessel on which to work. Damages in the amount of $22,898.65 were awarded the plaintiff, made up of $4,805.84 for loss of earnings up to trial, $15,592.81 for loss of future earnings, and $2,500.00 for pain and suffering, past and future. Both parties appealed. We consider first the defendant's appeal.

The defendant contends that the suit was prematurely brought and that the district court erred in refusing to dismiss it upon that ground. This contention is made in the light of two facts appearing in the record. One is that the plaintiff prosecuted a claim for workmen's compensation benefits out of the State Insurance Fund under the Puerto Rico Workmen's Accident Compensation Act, 11 L. P.R.A. § 1 et seq., which claim was decided by the Manager of the Fund on July 1, 1957 and on appeal on August 20, 1957. And the other is that the present suit was instituted on June 7, 1957, prior to both the Manager's initial decision and the final decision on appeal of the plaintiff's compensation claim. The contention is that section 31 of the Workmen's Accident Compensation Act, as amended,¹ barred the bringing of the present suit prior to the end of the period of 90 days after the decision of the plaintiff's compensation claim became final.

Upon examining section 31 we observe preliminarily that the statute did not, as the defendant also argues, create the cause of action which the plaintiff seeks by the present suit to enforce.² On the contrary, while the Workmen's Accident Compensation Act deals primarily with the rights of an injured employee against his employer and the State Insurance Fund, section 31 recognizes that such an employee may also have a cause of action based on other existing law to recover damages from a third party for his injuries. The principal purpose of section 31 is to give the Manager of the State Insurance Fund out of which such an employee has been compensated the right to be subrogated for the benefit of the Fund to the rights of the employee to such a recovery from a third party, the right of subrogation to be limited, however, to an amount equal to the expense incurred by the Fund in the employee's case. To this end section 31 empowers the Manager within 90 days after the decision upon the injured employee's compensation claim becomes final to institute suit in the employee's name upon his cause of action against any third party believed to be liable to him for his injuries.

Section 31 goes on to provide that if the Manager fails to institute such an action against a third party within the period of 90 days referred to, the injured employee shall be at liberty to do so and to retain any amount recovered without obligation to reimburse the State Insurance Fund for the expenses incurred in his case. The section provides, however, that the injured employee may not institute any such action against a third party until 90 days have elapsed after the Manager's decision of his compensation claim has become final. It is this last provision which the defendant contends required the district court to dismiss the present suit as prematurely brought.

We need not consider whether it would have been error for the district court to deny a motion to dismiss the suit if the defendant had made such a motion before the date on which the decision of the plaintiff's compensation claim became final. For the fact is that the defendant did not make such a motion but on the contrary permitted the suit to continue to pend after that date without having made any objection to it on the ground of prematurity. Thereafter, the pendency of the suit was timely so far as section 31 of the Workmen's Accident Compensation Act is concerned. We regard it as immaterial that the suit was not dismissed and reinstituted after that date, since the law does not require such a useless formalism. It is true that section 31 gave the Manager of the State Insurance Fund the right to institute the suit if he acted within 90 days after the decision of the plaintiff's compensation claim became final. But, as we pointed out in Guerrido v. Alcoa Steamship Co., 1 Cir., 1956, 234 F.2d 349, 358, if the Manager institutes the suit he must prosecute it in the employee's name and need not disclose in the pleadings the fact that he is prosecuting it, that being "a matter involving the subrogation rights of the Manager and the disposition of the proceeds of the litigation with which the respondents are not concerned." Section 31 is not intended to provide a shield for a third party tort-feasor whose only legitimate concern is to be protected against double liability,³ against which the statute fully protects him as we also pointed out in the Guerrido case, 234 F. 2d 349, 358.

It follows from what has been said that the prosecution of the present suit was validly carried on in the plaintiff's name after the decision of the plaintiff's compensation claim became final and that the judgment entered in his favor cannot now be attacked upon the ground that the suit was prematurely brought. Whether the Manager of the State Insurance Fund is entitled to receive by way of subrogation out of the proceeds of the judgment recovered by the plaintiff in the present case the amounts paid by him out of the Fund in the plaintiff's compensation case we need not now decide. Whether the Manager is entitled to such subrogation rights may depend upon whether he actually did take over or join in the prosecution of this suit at some time within 90 days after his decision on the plaintiff's compensation claim became final or is nonetheless entitled to such rights because the independent prosecution of the suit by the plaintiff during that period of 90 days prevented him from doing so or whether on the other hand, the Manager's failure to take over or join the prosecution of the suit, if that was the fact, operated to deprive him of his subrogation rights.⁴ These, as we have pointed out, are matters between the plaintiff and the Manager with which the defendant is not concerned. It is sufficient for the defendant that, as we have already pointed out, the present judgment will bar a second suit against it on the same cause of action whether brought by the plaintiff individually or by the Manager in the plaintiff's name.

The defendant further contends that even if the present suit is not dismissible as prematurely brought it should have been dismissed because the general maritime law of unseaworthiness, upon which the suit in part is based,⁵ is not in force in Puerto Rican waters. It asserts that our opinion in Fonseca v. Prann, 1 Cir., 1960, 282 F.2d 153, certiorari denied subnom. 81 S.Ct. 826, supports this view. The contention is utterly without merit. In Guerrido v. Alcoa Steamship Co., 1 Cir., 1956, 234 F.2d 349, 355, we held "that the rules of the admiralty and maritime law of the United States are presently in force in the navigable waters of the United States in and around the island of Puerto Rico to the extent that they are not locally inapplicable either because they were not designed to apply to Puerto Rican waters or because they have been rendered inapplicable to these waters by inconsistent Puerto Rican legislation." We are still of the same view.

In the Fonseca case we held that the Puerto Rico Workmen's Accident Compensation Act had rendered the general maritime law of unseaworthiness inapplicable to Puerto Rican waters so far as suits by injured seamen against their employers are concerned. In the Guerrido case, however, we had pointed out that Puerto Rican legislation, such as the Workmen's Accident Compensation Act, could not supplant a general rule of maritime law which Congress in the exercise of its constitutional power has expressly made applicable to Puerto Rican waters in common with all other American waters.⁶ It was after quoting this caveat in the Guerrido case and in the light of it that we said in the Fonseca case that "we are not aware that Congress has ever taken action to make the general maritime law of unseaworthiness apply in those waters" 282 F.2d 153, 156-157, the statement upon which the defendant bases its present contention. We went on to point out in the Fonseca case that if Congress should take such affirmative action it would have the effect of supplanting the Workmen's Accident Compensation Act by the general law of unseaworthiness so far as concerns the rights of seamen injured in Puerto Rican waters against their employers.

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