West v. Marine Resources Commission, Civ. A. No. 9-70-NN

• Decision Date: 02 November 1970
• Docket Number: 144-69-NN.,Civ. A. No. 9-70-NN
• Citation: 330 F. Supp. 966
• Parties: John W. WEST, Plaintiff, v. MARINE RESOURCES COMMISSION, etc., Defendant. John W. WEST, Plaintiff, v. M/V COAN RIVER, etc., et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

330 F. Supp. 966

John W. WEST, Plaintiff, v.MARINE RESOURCES COMMISSION, etc., Defendant.

John W. WEST, Plaintiff, v.M/V COAN RIVER, etc., et al., Defendants.

Civ. A. Nos. 9-70-NN, 144-69-NN.

United States District Court, E. D. Virginia, Newport News Division.

November 2, 1970.

COPYRIGHT MATERIAL OMITTED

Burt M. Morewitz, Newport News, Va., for plaintiff.

Williams, Worrell, Kelly & Worthington, Jack E. Greer, Norfolk, Va., for Marine Resources Commission.

Vandeventer, Black, Meredith & Martin, Charles F. Tucker, Norfolk, Va., for individualdefendants.

OPINION AND ORDER

KELLAM, District Judge.

John W. West filed these two actions on November 17, 1969, and January 20, 1970, each asserting the same cause of action against the Marine Resources Commission and against the individual employees and vessels of the Commission.In each case West alleges a claim under the Jones Act, 46 U.S.C. § 688, for negligence as well as claims under the general maritime law for (1) unseaworthiness, (2) maintenance and cure, and (3)"wilful failure and refusal" to provide maintenance and cure.The complaints allege that on March 28, 1964, during the course of West's employment with the Commission of Fisheries(now Marine Resources Commission), he sustained injuries to his back while working aboard the M/V COAN RIVER, that the injury was reported to the Commission or its agents, and that the Commission investigated the injury prior to July 1, 1964.

Defendants have moved to dismiss, asserting that (1) the claims are barred by the applicable statute of limitations and laches, and (2) the Commission is an agency of the Commonwealth of Virginia and that, therefore, the Commission and its employees are entitled to the same immunity from suit to which the Commonwealth is entitled.

Before discussing these defenses, it is apparent that West's claim against the individual defendants must be dismissed.These claims may be maintained only against an employer or the owner of the vessel on which an alleged injury occurs.West has not stated a cause of action against the individual defendants or against the M/V PAGAN and the M/V GLAMOUR GIRL.The Jones Act gives a seaman a cause of action against his employer for an injury caused by the employer's negligence; however, none of the individual defendants was West's employer.For the same reason, none of the individuals owed any duty to furnish West with a seaworthy vessel or to provide him with maintenance and cure.The individual defendants, like West, were merely employees of the Commission.Under these circumstances, West's claim against the individual defendants must be dismissed.

Likewise, West has stated no cause of action against the vessels M/V PAGAN and M/V GLAMOUR GIRL.The complaints assert only that these vessels operated in a flotilla with the M/V COAN RIVER, on which West served as the mate.There is no allegation that West was even aboard either of these vessels on the day in question.The fact that these vessels operated with the COAN RIVER does not give West any claim against them unless their negligent operation caused his injury.There is no such allegation.Concerning the PAGAN and GLAMOUR GIRL, the complaint fails to state any claim upon which relief can be granted, and, accordingly, West's claim against those vessels must be dismissed.

Defendants' motion to dismiss on the sovereign immunity and limitation questions was submitted on affidavit, but in an opinion entered March 31, 1970, 312 F.Supp. 1038, this Court postponed decision pending presentation of additional facts.The assertions in the affidavits were insufficient for making any determination.Since each of West's actions involves the same claim, decision on the motion to dismiss will apply to each, irrespective of the dismissal of West's claim against the individual defendants and vessels.

In the March 31, 1970 opinion, this Court determined that West's cause of action accrued on March 28, 1964, because there was no contention that the injury failed to manifest itself until the lapse of an extended period of time after the alleged accident.Since the three year limitation period prescribed for Jones Actcases had expired with no facts asserted to justify tolling the statute, West's Jones Act claims were barred.This factor, however, may not in and of itself bar his claims under the general maritime law.

There is no federal statute of limitations applicable to admiralty actions for unseaworthiness or maintenance and cure; the equitable doctrine of laches applies to these maritime causes of action.See generallyBaer, Admiralty Law of the Supreme Court§ 1-10 (2d ed. 1969).In the leading case on this question, McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272(1958), the Supreme Court held that where an action for unseaworthiness is combined with one under the Jones Act, the limitation period for the unseaworthiness claim could not be less than that for the Jones Act claim.Subsequent case law, however, indicates that "McAllister has effectively invoked a three-year limitation as to a personal injury action predicated upon unseaworthiness."Banks v. United States Lines Co., 293 F.Supp. 62, 66(E. D.Va.1968).This appears to be what Mr. Justice Brennan meant in his concurring opinion in McAllister,357 U.S. at 229, 78 S.Ct. at 1206, when he concluded that a seaman's action for damages based on unseaworthiness should be accorded a three year limitation.

Just as equity follows the law in applying, as a rough measure of limitations, the period which would bar a similar action at law, seeRussell v. Todd, 309 U.S. 280, 28760 S.Ct. 527, 530, 84 L.Ed. 754, I think that the maritime cause of action for unseaworthiness could be measured by the analogous action at law for negligence under the Jones Act, 46 U.S.C. § 688.This reference seems especially appropriate since the seaman's remedy for unseaworthiness under the general maritime law and his remedy for negligence under the Jones Act are but two aspects of a single cause of action.Baltimore S. S. Co. v. Phillips, 274 U.S. 31647 S.Ct. 600, 71 L.Ed. 1069.

It thus seems to me that the three-year limitation on the Jones Act remedy, 45 U.S.C. § 56, is the ready and logical source to draw upon for determining the period within which this federal right may be enforced.

This Court noted in the March 31, 1970 opinion, however, that the rule of Giddens v. Isbrandtsen Co., 355 F.2d 125(4th Cir.1966), must be applied to the principle expressed by Mr. Justice Brennan.Giddens held that the defense of laches "is sustainable only on proof of both * * * (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense."355 F.2d at 127.Giddens also held that there is a presumption of prejudice to a defendant with respect to a claim for damages based on unseaworthiness asserted more than three years after the cause of action has arisen and that the burden shifts to the plaintiff to rebut this presumption.SeeRiddick v. Baltimore Steam Packet Co., 374 F.2d 870(4th Cir.1967).Additionally, the Third Circuit Court of Appeals has held that a plaintiff must also overcome a presumption of inexcusable delay when his action is not filed within the three year period.SeeLipfird v. Mississippi Valley Barge Line, 310 F.2d 639, 642(3d Cir.1962).In ascertaining whether a particular action is barred by the doctrine of laches, a court must balance the plaintiff's delay with his excuse for it, against any consequent detriment to the defendant.This determination requires a weighing of equities; this, in turn, depends on the facts of each case.

At the evidentiary hearing on August 20, 1970, it developed that West's alleged injury occurred on March 28,...