West v. Upper Mississippi Towing Corporation

• Decision Date: 19 September 1963
• Docket Number: No. 4-60-Civ.-164.,4-60-Civ.-164.
• Citation: 221 F. Supp. 590
• Parties: Clifford R. WEST, Rosedale, Mississippi, Plaintiff, v. UPPER MISSISSIPPI TOWING CORPORATION, a Minnesota corporation, Defendant.
• Court: U.S. District Court — District of Minnesota

221 F. Supp. 590

Clifford R. WEST, Rosedale, Mississippi, Plaintiff, v. UPPER MISSISSIPPI TOWING CORPORATION, a Minnesota corporation, Defendant.

No. 4-60-Civ.-164.

United States District Court D. Minnesota, Fourth Division.

September 19, 1963.

Harvey Goldstein, Goldstein & Sterenfeld, New York City, and Philip Orthun, Lindquist, Magnuson & Glennon, Minneapolis, Minn., for plaintiff.

Edward Hayes, C. Roy Peterson, Lord, Bissell & Brook, Chicago, Ill., and Curtis L. Roy, Dorsey, Owen, Marquart, Windhorst & West, Minneapolis, Minn., for defendant.

DEVITT, Chief Judge.

This case arises on a motion for summary judgment or in the alternative to strike the complaint for failure to state a cause of action, on the ground that delay in commencing the action constitutes laches.

Requisite amount and diversity are present to establish jurisdiction.

Plaintiff West was employed as a seaman on August 29, 1954 by the defendant on its towboat FRANCES ANNE. On this date plaintiff suffered personal injuries to his left leg (ultimately necessitating amputation) when it was crushed between a barge and concrete lock wall as plaintiff was attempting to place a "bumper" in the area where the barge was about to strike the wall. The libel was filed on May 31, 1960, alleging that the injury was caused by unseaworthiness, and seeking under two counts, damages and maintenance and cure.

The defendant's original position on this motion was that the claim was barred by running of the three-year statutory period provided in the Jones Act, 46 U.S.C.A. § 688, which extends to seamen the right to sue for personal injuries caused by negligence. Defendant argued that the case of McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958), changed the established rule that maritime actions for unseaworthiness and for maintenance and cure are limited by the admiralty doctrine of laches, Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387 (1956), so that such actions were now subject to the same limitation period as a Jones Act claim. In a cogent opinion, the Honorable Gunnar H. Nordbye rejected this position and concluded that the limitation period for this maritime suit was governed by laches and measured by the analogous period of the Jones Act limitation. (Order, July 19, 1961). As this order is the law of the case, the Jones Act three-year limitation is applied herein as the "rule-of-thumb" to determine the presence or absence of laches.

It is evident on the face of the libel that there has been a delay in filing suit of over five and one-half years from the date of the accident, and of over two and one-half years from the running of the analogous period of the Jones Act limitation. Admiralty Courts have settled that where the analogous statutory limitation imposed on negligence claims has run, laches on the part of the seaman will be presumed in a subsequent suit for maintenance and cure and for damages for personal injuries allegedly caused by unseaworthiness. Lipfird v. Mississippi Valley Barge Line Company, 310 F.2d 639 (3rd Cir., 1962); Vega v. The Malula, 291 F.2d 415 (5th Cir., 1961); and Oroz v. American President Lines, 259 F.2d 636 (2d Cir., 1958), cert. denied, 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572 (1959).

The law requires that both inexcusable delay on the part of the libellant and prejudice to the defendant be present before laches will apply to bar the action. As stated in Gardner v. Panama R. Co., 342 U.S. 29, 31, 72 S.Ct. 12, 13, 96 L.Ed. 31 (1951):

"Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief."

While this case does not explicitly hold that both inexcusable delay and prejudice must exist to bar the action, cases interpreting the Gardner decision support this view. Point Landing, Inc. v. Alabama Dry Dock & Shipbuilding Co., 261 F.2d 861, 865 (5th Cir., 1958); McDaniel v. Gulf & South American Steamship Co., 228 F.2d 189, 192 (5th Cir., 1955), reversing 136 F.Supp. 892 (S.D.Tex.1954); and Dawson v. Fernley & Eger, 196 F.Supp. 816, 826 (E.D.Va.1961).

A separate hearing was had on this issue and the Court has had the benefit of a complete transcript, in addition to post-trial briefs, reply briefs, and other matter on record.

I am satisfied that the motion for summary judgment or to strike the complaint on the basis of laches should be denied. This determination is made on the basis that, even though there was inexcusable delay raising a presumption of prejudice, the record reveals sufficient affirmative evidence to rebut this presumption of prejudice, and defendant failed to show actual prejudice or injury resulting from the delay.

These conclusions will be divided into consideration of the two elements constituting laches, namely inexcusable delay and prejudice.

INEXCUSABLE DELAY

Plaintiff averred in the complaint as excuse for the delay in filing suit, that (1) he had only recently become aware of his rights under Admiralty, and (2) he had "depended upon promises and assurances of the defendant and its agents that they would protect him in and about his rights as a seaman following his accident; but the said promises and assurances were wholly prejudicial to his interests and he was discouraged from instituting any suit in law more timely."

The law rejects the first ground for excuse. The Courts uniformly hold that ignorance of the law is not a sufficient excuse to allow maintenance of stale claims. Oroz v. American President Lines, 259 F.2d 636, 640 (2d Cir., 1958), cert. denied, 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572 (1959); and Morales v. Moore-McCormack Lines, 208 F.2d 218, 221 (5th Cir.), affirming 109 F.Supp. 585 (S.D.Tex.1953).

Plaintiff's allegations that "promises and assurances" made by the defendant caused prejudicial reliance and delay in filing suit are not supported by the evidence. The trial developed the following sequence of events: The accident occurred on August 29, 1954. Plaintiff was immediately hospitalized and began receiving maintenance payments of $5.00 a day from the defendant, in lieu of other wages. None of the hospitalization was paid for by the plaintiff, but he now alleges maintenance costs for his prosthesis. Plaintiff was contacted by defendant's attorney soon after the accident, but apparently was not immediately approached by anyone from the company for the purpose of settlement or release of damages. Plaintiff wrote to the company on February 28, 1955 (letter erroneously dated in September) seeking settlement negotiations by March 15, 1955. A release was ultimately signed on April 13, 1955 in consideration of $5,000.00. Plaintiff signed an "agreement" dated April 11, 1955 by which defendant agreed to employ him as a pilot trainee. From July 29, 1955 to May 12, 1958 plaintiff was employed by defendant as pilot trainee and pilot. On the latter date plaintiff voluntarily left the defendant's employ for personal reasons. He sought to return to a pilot position with defendant sometime in 1959, but was refused employment. Plaintiff contacted an attorney in 1958 apparently for the purpose of learning his admiralty rights. Except for extended periods after the accident and following his employment with defendant, plaintiff was regularly employed. This action was commenced on May 31, 1960.

There was considerable testimony bearing on the release executed in 1955, the intent being to show that the defendant's conduct with respect to the release directly resulted in prejudicial reliance by the plaintiff which in turn resulted in delay in filing the suit. There is evidence that the defendant's agents discouraged commencement of a suit by telling West that their lawyers would delay the case for an extended period, that he would have to give his lawyer one-half or one-third of the recovery and that he would have little left, and further that his maintenance payments would be discontinued and he would be unable to work for the defendant. However, these statements were made prior to execution of the release and do not sufficiently explain or excuse the delay in commencing suit after its execution. The libel was filed on May 31, 1960, a period of more than five years from the execution of the release (April 13, 1955) and a period of more than two years from the date West voluntarily left defendant's employ (May 12, 1958). Because of the nature of the injury the plaintiff, if he was not aware at the time of settlement, must have soon learned of the continued discomfort, loss of agility, and expense of maintaining an artificial limb. Ordinary diligence dictates that the action should have been more timely filed. Claussen v. Mene Grande Oil Company, 275 F.2d 108, 113 (3rd Cir., 1960). The evidence is not sufficient to show diligence during the five-year period which elapsed since the execution of the release. Thus the alleged prejudicial reliance arising at the time of settlement is not sufficient to excuse the delay.

Plaintiff further asserts that refusal to rehire him in 1959 constitutes a breach of the "promises and assurances" and compounds the prejudicial reliance, as the "obvious inference" was that the job was to be permanent. The evidence indicates that the offer to employ West as a pilot trainee was on a trial basis. He apparently performed satisfactorily as he continued in the defendant's employ until May 12, 1958, when he voluntarily left the job. There was no promise by the defendant that West would have a job for life, and it does not appear that West relied on any such assurances. Thus the refusal to re-employ him cannot constitute prejudicial reliance. In any event, the delay in commencing suit until May 31, 1960, which is more than two years from the date West left defendant's employ, and nearly a year from the date of refusal, (evidence does not establish the exact date), is...