Opinion
No. 7210.
December 22, 1930.
Huffer, Hayden, Merritt, Summers Bucey, of Seattle, Wash., for claimants.
Lord Moulton, of Portland, Or., for libelant.
In Admiralty. Libel by Carl E. Sundquist against the motorship Frank Lynch and W.J. Gray and others, claimants. The claimants filed exceptions. On motion to require libelant to elect between claims of unseaworthiness and negligence.
Exceptions overruled, and motion denied.
The libel in this suit was filed July 13, 1929.
The libel is one to recover on account of personal injuries to libelant, a stevedore, alleged to have been caused on the 20th day of January, 1926, aboard the respondent vessel while berthed at a dock in Longview, Wash., in the navigable waters of the Columbia river.
It is alleged that libelant was employed in stowing lumber in the cargo spaces in the vessel; that the steam winch, by means of which lumber was being stowed, was in a defective condition; that because of such defect a sling load of lumber was caused to fall into the cargo hatch, pieces of lumber from which load struck the libelant, causing his injury.
Article VII of the libel alleges: "* * * That said vessel and her owners were negligent and careless, and said winch unseaworthy in that the packing of the cylinders of said winch had become worn and had not been replaced, and the said winch would thereby slip into gear without notice or warning and the unseaworthy condition of said winch was well known to the owners and operators of said vessel; and the said vessel and her owners and operators were further negligent and careless in that they did not warn and advise the winch driver employed to operate the said winch of the defective condition thereof, and were further negligent and careless in not warning libelant that said winch was in the defective condition described."
The libel alleges at length the history of negotiations for settlement on account of such injury and litigation in the courts of the state of Oregon against a party believed by libelant to be the owner or charterer; that he did not learn otherwise until the two-year statute of limitations in the state of Oregon had run; that in the state of Washington the applicable statute of limitations allowed three years; that thereafter suit was begun by libelant against the stevedoring company which the court infers was begun in the state court of Washington, whereupon libelant discovered the stevedoring company was not transacting business in the state of Washington; that the real party in interest — the insurer of the owners of the vessel — sought to delay the hearing on libelant's cause beyond the period of limitations prescribed for bringing such actions at law so as to prevent libelant from maintaining his cause.
Claimants have filed exceptions and further exceptions to the libel, and have also filed exceptive allegations consisting of a copy of the pleadings in the circuit court of the state of Oregon in that cause referred to by libelant in his libel.
The claimants have also filed an affidavit by way of exceptive allegations setting forth the times at which the respondent vessel was in the Port of Portland in Oregon during 1926 and 1927 and the times at which said vessel was at various ports in the state of Washington during 1927 and 1928, and a motion requiring libelant to elect whether he will seek recovery on account of unseaworthiness or of negligence.
Libelant has filed two affidavits denominated "Resistance Affidavits," touching the matter of delay in filing the libel.
The question first to be considered by the court is as to the propriety of the exceptive allegations of the claimants and the resistance affidavits of the libelant.
Admiralty courts, within the sphere of their jurisdiction, act as courts of equity. Plummer v. Webb, Fed. Cas. No. 11,233, p. 893, decision by Justice Story; Benedict on Admiralty (5th Ed.) § 70.
Among the principles controlling courts of equity recognized and applied in admiralty are matters of estoppel and laches. Higgins v. Anglo-Algerian S.S. Co. (C.C.A.) 248 F. 386 at pages 387 and 389; Benedict on Admiralty (5th Ed.) §§ 70 and 470.
Whatever may be the propriety of exceptive allegations in admiralty, pleas of the statute of limitations and laches are in the nature of pleas in abatement. In equity, demurrers and pleas were abolished by rule 29 (28 USCA § 723), and it was further therein provided:
"* * * Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. * * *"
Decision of Judge Hough in L. Littlejohn Co., Inc., v. United States, 49 F.2d 467.
There would, therefore, appear to be no occasion for the court to attempt to determine in this case the question of laches upon affidavits in which the affiant states what he pleases and leaves unstated what he pleases. The exceptive allegations and resistance affidavits will not be further considered.
There remain the claimants' exceptions and further exceptions and motion to elect.
Claimants first except upon the ground of the bar of the two-year statute of limitations of the state of Oregon and section 33 of the Merchant Marine Act of 1920 ( 41 Stat. 1007, title 46, USCA § 688), and the three-year period prescribed by the laws of the state of Washington and for insufficiency of the excuses set out in the libel for such delay. These exceptions are overruled. Lincoln v. Cunard S.S. Co. (C.C.A.) 221 F. 622; The Alabama (C.C.A.) 242 F. 431; The Adour (D.C.) 21 F.2d 858 at page 860; Christianssand Shipping Co. v. Marshall (C.C.A.) 31 F.2d 686 at page 687; Stiles v. Ocean S.S. Co. (C.C.A.) 34 F.2d 627 at page 629.
Claimants, in support of their exceptions, have cited the case of Plamais v. The Pinar Del Rio, 277 U.S. 151, 48 S. Ct. 457, 458, 72 L. Ed. 827, in which it was said:
"* * * To subject vessels during all the time allowed by the statute of limitations to secret liens to secure undisclosed and unlimited claims for personal injuries by every seaman who may have suffered injury thereon would be a very serious burden. One desiring to purchase, for example, could only guess vaguely concerning the value. `An act to provide for the promotion and maintenance of the American merchant marine' ought not to be so construed in the absence of compelling language. * * *"
This case, however, was one brought not on account of unseaworthiness of the vessel, for it is therein stated:
"* * * He was being hoisted up to paint the smoke stack; a rope broke; he fell to the deck and sustained serious injuries. The accident resulted from the negligence of the mate, who selected a defective rope. An abundant supply of good rope was on board. * * *
The record does not support the suggestion that the Pinar Del Rio was unseaworthy. The mate selected a bad rope when good ones were available. * * *"
Claimants have also filed separate and further exceptions. These the court deems do not require discussion. Each one of them will be overruled.
Claimants also move for an order requiring libelant to elect whether he will seek to obtain recovery on account of unseaworthiness or of negligence, and that libelant amend his libel and eliminate allegations material to the theory and cause of action abandoned by him in making such election.
As disclosed by article VII, supra, the negligence of which complaint is made is not negligence separate and apart from unseaworthiness.
The motion will be denied.