Wilkes v. HM Wrangell & Co.

• Decision Date: 14 November 1968
• Docket Number: No. 1917.,1917.
• Citation: 293 F. Supp. 522
• Parties: Thomas WILKES, Libelant, v. H. M. WRANGELL & CO., A/S Skibs A/S Corona, Respondents.
• Court: U.S. District Court — District of Delaware

293 F. Supp. 522

Thomas WILKES, Libelant, v. H. M. WRANGELL & CO., A/S Skibs A/S Corona, Respondents.

No. 1917.

United States District Court D. Delaware.

November 14, 1968.

Henry A. Wise, Jr., Wilmington, Del., for libelant.

Rodney M. Layton and David T. Dana, III, Richards, Layton & Finger, Wilmington, Del., for respondents.

OPINION

STEEL, District Judge.

On April 21, 1964, libelant, a citizen of Delaware, brought an action in the Southern District of New York under the Admiralty and Maritime jurisdiction of the United States against respondents, which were business organizations existing under the laws of Norway. The complaint alleged that on or about January 25, 1961, libelant was injured when he slipped and fell while discharging cargo from the S. S. Corona, when it was moored at a pier in Wilmington Marine Terminal at Wilmington, Delaware. Libelant, according to the complaint, was an employee of Wilmington Stevedores, Inc., which had been employed by the respondents, among others, to discharge the cargo. Libelant's injury was alleged to have occurred during the performance of his duties as a result of the negligence of respondents, and their failure to provide him with a seaworthy vessel, safe appliances and a safe place to work.

After libelant made several unsuccessful attempts to serve respondents in the Southern District of New York, the libelant was advised that service would be accepted by respondents only if the action were transferred to Wilmington or Philadelphia. Accordingly, upon libelant's application, which was consented to by respondents, an order was entered under 28 U.S.C. § 1404(a) which transferred the case to this district. Thus, although the application to transfer was made by libelant, it was in fact sought by the respondents.

Respondents have answered the complaint and have denied that they were in any way culpable. As an affirmative defense respondents allege that the action is barred by laches.

Respondents have moved for summary judgment under Fed.R.Civ.P. 56 on the ground that the pleadings, affidavits, answers to interrogatories and depositions on file show that respondents are entitled to judgment as a matter of law.

The test of laches is both unreasonable delay and consequent significant prejudice. Gutierrez v. Waterman S. S. Corp., 373 U.S. 206, 215, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), reh. denied, 374 U.S. 858, 83 S.Ct. 1863, 10 L.Ed.2d 1082 (1963); Claussen v. Mene Grande Oil Co., 275 F.2d 108, 113 (3d Cir.1960).

Generally, in determining what constitutes laches founded on undue and prejudicial delay, a court in a suit in admiralty will resort to the time limitation fixed by the analogous state statute of limitations. Conty v. States Marine Lines, Inc., 355 F.2d 26, 27-28 (2d Cir. 1966); Kane v. Union of Soviet Socialist Republics, 189 F.2d 303, 305 (3d Cir.1951), cert. denied, 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676 (1952). To negate the inference that delay in bringing suit beyond the period fixed by the analogous state statute of limitations has been both unreasonably long as well as significantly injurious to the respondent, a libelant is required to make an affirmative showing to the contrary. Claussen v. Mene Grande Oil Co., supra, 275 F.2d at 111; Oroz v. American President Lines, Ltd., 259 F.2d 636, 639 (2d Cir.1958), cert. denied, 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572 (1959); Kane v. Union of Soviet Socialist Republics, supra, 189 F.2d at 304; Marshall v. International Mercantile Marine Co., 39 F.2d 551, 552 (2d Cir.1930)

When there has been a change of venue under 28 U.S.C. § 1404(a), the transferee court is obliged to apply the state law which the court from whose jurisdiction the case has been transferred would apply. "A change of venue under § 1404(a) generally should be, with respect to state law, but a change of courtrooms." Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 821, 11 L.Ed.2d 945 (1964).

Libelant commenced his action in New York. When the cause of action arose, the State of New York had two limitations statutes relating to personal injury actions: a three-year statute governing all actions based solely on negligence, N.Y.Civ.Prac.Act. § 49(6), and a six-year statute governing all other personal injury actions. N.Y.Civ.Prac.Act § 48(3). The appropriate statute for determining whether a libel based solely on a claim of unseaworthiness is barred by laches is the six-year general personal injury statute. Conty v. States Marine Lines, Inc., supra, 355 F.2d at 28.¹ This would appear to be equally true where the libel is based both upon claims of unseaworthiness and of negligence since the three-year statute is applicable by its terms only to actions based solely on negligence.

Respondents assert that under the circumstances of this case the Southern District of New York would not apply the six-year statute of New York as the measure of laches but would look to the two-year statute of limitations of Delaware. This argument is premised upon the "borrowing" statute of New York. New York Civil Practice Law and Rules § 202, which was at all times relevant, provided:

"An action based upon a cause of action accruing without the state of New York cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply."

The pertinent Delaware law of limitations is 10 Del.C. § 8118 since the cause of action arose in Delaware where libelant resides. It provides:

"No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of two years from the date upon which it was claimed that such alleged injuries were sustained."

We agree with respondents' assertion that the Southern District of New York would look to the two-year statute of limitations of Delaware in determining laches.

It was not until the two-year period specified in 10 Del.C. § 8118 had passed that in early March, 1963, libelant authorized his attorney, Wise, to institute action on his behalf. Wise thereupon checked to learn whether in January, 1961, when the alleged injury occurred, the S. S. Corona had a local agent in Wilmington but could find none. Wise also learned upon interrogation that the S. S. Corona was not expected in Wilmington at any time in the near future. Respondents make no contention that at some time within the two-year period after the accident the S. S. Corona or respondents had an agent in Delaware upon whom service could be made. From this it is fair to conclude that there was no such agent in Delaware. This circumstance is the basis for libelant's assertion that the Delaware toll statute prevents the Delaware two-year statute of limitations from being considered a bar to his action.

The Delaware tolling statute (10 Del. C. § 8116) reads:

"If at the time when a cause of action accrues against any person, he is out of the State, the action may be commenced, within the time limited therefor in this chapter, after such person comes into the State in such manner that by reasonable diligence, he may be served with process. If, after a cause of action shall have accrued against any person, he departs from and resides or remains out of the State, the time of his absence until he shall have returned into the State in the manner provided in this section, shall not be taken as any part of the time limited for the commencement of the action."

Admiralty courts sitting in New York apply the tolling provisions of foreign statutes of limitations borrowed to determine laches. Le Gate v. The Panamolga, 221 F.2d 689, 690 (2d Cir. 1955); Phillips v. The Hellenic, 179 F.Supp. 5, 8 (S.D.N.Y.1959); Baez-Geigel v. American Foreign S. S. Corp., 171 F.Supp. 359, 361 (S.D.N.Y.1959). Without independently examining the question, this Court will follow these New York federal decisions, especially since they conform to the practice of New York state courts of generally borrowing tolling provisions as part of foreign statutes of limitation. Hanna v. Stedman, 230 N.Y. 326, 130 N.E. 566, 570 (1921); Cellura v. Cellura, 24 A.D.2d 59, 263 N.Y.S.2d 843 (1965); Isenberg v. Ranier, 145 App.Div. 256, 130 N.Y.S. 27 (1911); Anglo California Nat. Bank of San Francisco v. Klein, 162 Misc. 898, 296 N.Y.S. 191, 201 (Supreme Ct. N.Y. County 1936).

When the cause of action accrued the S. S. Corona was moored to the pier at the Wilmington Marine Terminal in the territorial limits of Delaware. New Jersey v. Delaware, 291 U.S. 361, 54 S.Ct. 407, 78 L.Ed. 847 (1934) (opinion of Court), 295 U.S. 694, 700, 55 S.Ct. 907, 79 L.Ed. 1659 (1935) (decree and attached map). An in personam action could then have been brought against respondents by attaching the S. S. Corona.²

Consequently when the cause of action accrued the respondents were not "out of the State" for the purpose of bringing the tolling statute into play, for they were then subject to "personal or other service to compel their appearance". Hurwitch v. Adams, 2 Storey 247, 52 Del. 247, 155 A.2d 591, 593 (1959).

It may be, however, that the S. S. Corona was not at the Wilmington Marine Terminal sufficiently long after the accident to have enabled libelant to attach her. As to this the record is silent. But the fact is that the M/S Lars Meling, another vessel which respondents owned, arrived at the port of Wilmington on December 22, 1961, and departed December 23, 1961. There is nothing in the record to suggest that she did not come into the state openly and notoriously and remain long enough so that with reasonable diligence libelant could have procured attachment process and have had the same served upon her in accordance with Admiralty Rule 2. See note 2 supra. Accordingly, we hold that the Delaware two-year statute of limitations began to run on December...