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March 14, 1947

ROSE et al.

The opinion of the court was delivered by: KENNEDY

Libelants' intestate, Bernard Rose, an employee of Todd Shipyards, was injured on May 4, 1944, while working in the hold of a ship called the Isaac Hopkins, owned by respondent United States of America, and operated by Isbrandtsen Company, Inc. Rose died on May 19, 1944. Letters of Administration were issued to libelants by the Surrogate's Court of Kings County on May 17, 1946. The libel was filed on May 20, 1946, which fell on Monday, and was one day more than two years after the death of libelants' intestate. The claim asserted in that libel is based upon the New York death statute, Decedent Estate Law, Consol. Laws, c. 13, Sec. 130. Each respondent has filed exceptions, urging that on its face the claim is barred by the two-year limitation contained in the New York statute which libelants invoke. The latter offer an explanation of the delay in the commencement of suit. They say that until August 15, 1945 they were unable to discover the name of the operating company (Isbrandtsen) and, further, that they were slow in securing Letters of Administration because of a mistaken effort on their part to bring about the appointment of decedent's brother (who had retained libelants' proctor on May 31, 1944) rather than his parents, who were both of advanced years. On May 18, 1946, an attempt was made to file this libel. That was Saturday, and libelants' proctor arrived at the office of the clerk of this court, as he says, at 12:15 P.M. only to find it closed. He then returned and filed the libel on May 20, 1946. *fn1" I set these matters forth in detail now; the bearing that they have on the decision of this motion will be made clear presently

At the argument there was no disagreement between the advocates on two points; (1) The last day to file the libel was actually May 19, 1946, and (2) the fact that this day happened to be Sunday, standing by itself, does not enlarge the statutory period, nor does it affect decision in any other way, as matter of law.

It is familiar learning that the admiralty will not permit rights arising under general maritime law to be whittled down by state statutes of limitation. In that situation, clearly the question is whether, regardless of state statutes, the remedy in admiralty should be barred because of laches on the part of the suitor who invokes it, meaning unexcused delay on his part accompanied by detriment to his adversary. Absent any excuse, the admiralty will, however, follow and apply the state statute of limitations, even if the controversy involved rights under general maritime law. Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 2 Cir., 1942, 132 F.2d 766, rehearing denied 2 Cir., 134 F.2d 766, rehearing denied 2 Cir., 134 F.2d 1022. But the remedy for wrongful death was unknown to the maritime law. Lindgren v. United States, 1930, 281 U.S. 38, 50 S. Ct. 207, 74 L. Ed. 686. It was, however, adopted and enforced long ago. The Harrisburg, 1886, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358. And, since the Harrisburg decision, enforcement of state wrongful death statutes in the admiralty has been expressly justified (Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S. Ct. 89, 66 L. Ed. 210) under the 'maritime but local' doctrine, i.e., the nature of the remedy is such that it does not affect the uniformity requirement in admiralty. Cf. Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L.R.A. 1918C, 451, Ann.Cas. 1917E, 900.

 In the case of Western Fuel Co. v. Garcia, supra, it was clearly held that the federal district court, sitting in admiralty, was bound to respect and enforce the California statute of limitations applicable to wrongful death suits. While the opinion itself does not touch upon the question of laches, the conclusion might well be reached from a reading of the Garcia decision that (as will be later touched upon again), so far as state statutes of limitation are concerned, there is a difference between the treatment to be given in the admiralty to rights under the general maritime law on the one hand, and state-created rights on the other; with respect to the latter, the question is not one of laches, but of strict limitation. See Tesoriero v. Erie R. Co., D.C.E.D.N.Y., 1934, 6 F.Supp. 815. And this position is surely justifiable, at least on logical grounds, and independently of any other considerations. If the state creates a right, and the admiralty borrows it, then logic suggests it ought to be taken with all of its imperfections and limitations on its head, as the Garcia opinion hints. Moreover, the requirement of uniformity in admiralty furnished no basis for argument to the contrary, because the enforcement of such state-created rights is, as I have said, under the maritime but local exception to the uniformity doctrine.

 Despite all this, libelants contend that the delay in the commencement of suit on their part was excusable, and the remedy should not be barred at least until the sufficiency of their excuse has been passed upon and found wanting. This position they attempt to sustain by an analysis of the New York state death statute -- an analysis calculated to demonstrate that the two-year limitation in the act is not a condition of the exercise or the assertion of the right, but a mere procedural requirement. And certainly some of the New York cases support this view. Under New York law, for example, a wrongful death complaint need not allege that suit was commenced within two years after the death occurred. Sharrow v. Inland Lines, Ltd., 1915, 214 N.Y. 101, 108 N.E. 217, L.R.A. 1915E, 1192, Ann.Cas. 1916D 1236. This decision is put upon the ground that by an amendment to the statute in 1880 the two-year period ceased to be a proviso -- -a condition upon the very existence of the right. True, the effect of the decision is somewhat weakened by Mossip v. F. H. Clement & Co., 1939, 256 App.Div. 469, 10 N.Y.S.2d 592, affirmed 283 N.Y. 554, 27 N.E.2d 279. There it was held that the two-year period is not extended by the existence of infancy or other disabilities excluded by a general procedural statute from the time to commence actions. Civil Practice Act, Sec. 60. But another general procedural statute (to the effect that actions may be effectively 'commenced' by delivery of a summons to a sheriff; Civil Practice Act, Sec. 17) was recently held applicable to wrongful death suits. Kerr v. St. Luke's Hospital, 1940, 176 Misc. 610, 28 N.Y.S.2d 193, affirmed 262 App.Div. 822, 29 N.Y.S.2d 141, affirmed, and certified question answered in the affirmative 287 N.Y. 673, 39 N.E.2d 291. From these cases the libelants argue that the New York-created right of wrongful death is not conditioned upon the bringing of suit within two years. Therefore, they say, the two-year requirement is merely procedural, and it follows that the federal district court, sitting in admiralty, is free to apply the law of the forum, namely, that suit is not barred absolutely by the running of a state statute, but only if the suitor is guilty of laches.

 Before I touch upon this problem, which I consider basic here, I ought to mention one other contention made by libelants. They cite a number of decisions (e.g., Crapo v. City of Syracuse, 1906, 183 N.Y. 395, 76 N.E. 465; MacDonald v. City of Beacon, 1944, 183 Misc. 1068, 59 N.Y.D.2d 295) which talk about the time of 'accrual' of the cause of action created by the wrongful death statute. All of these cases are to the effect that the action created by the wrongful death statute. All of these cases are to the effect that the action does not accrue until an administrator has been appointed. In the case at bar the date of appointment was May 17, 1946, and the libel was filed on May 20, 1946. But the decisions discussed by libelants in their brief, and which I have just mentioned, deal, not with the death statute two-year period of limitation as such, but with the sufficiency of notice to municipalities under other statutes making the 'accrual' date of any cause of action based on negligence critical. In other words, these cases are not at all to the effect that the two-year period can be enlarged, as an examination of the Crapo case, supra, will show. There, notice was given to the municipality 18 months after decedent's death, and suit was commenced within 23 months after that event. A general New York statute designed to protect municipal corporations against stale tort claims, L. 1886, c. 572, provided for the giving of notice within 6 months after the cause of action 'accrued', and for the commencement of suit within one year after that date. In the Crapo case the administratrix had been appointed 16 months after decedent's death. It was held under the statute that the notice and the commencement of action (respectively 2 months and 7 months after appointment of the administratrix) were both timely, because the date of the appointment was the date of 'accrual' of the action. But it will be noticed that the suit was also timely under the two-year limitation. It is, therefore, easy to understand why such cases have been called sui generis. Lundberg v. Robins Dry Dock & Repair Co., 1941, 261 App.Div. 907, 25 N.Y.S.2d 187. And it was squarely held in Leun v. Brimmer, 1922, 203 App.Div. 643, 197 N.Y.S. 3 (appeal dismissed 237 N.Y. 629, 143 N.E. 770) that the two-year limitation on a wrongful death action runs from the date of decedent's death, and not from the time of the appointment of the administrator ('accrual' of the cause of action). And so, for purposes of this motion, I can find nothing in any New York case in any way modifying the clear language of the statute, which plainly bars a remedy for wrongful death unless it be commenced within two years after date of decedent's death. *fn2"

 I turn back to what I consider the real problem: When suit under the New York death statute is brought in the admiralty, is it barred absolutely by the running of the New York state statute, or only if the suitor is guilty of laches?

 As I have said, libelants' theory is the familiar one that statutes of limitation generally affect the 'remedy' and not the 'right' and, therefore, will be applied in accordance with the law of the forum. And admiralty will not withhold a remedy, where the right claimed is under general maritime law, unless a suitor has, by unexcused inaction on his part coupled with detriment to his adversary, lost the remedy which he seeks. State statutes of limitation are treated merely as guides in determination of laches, and not as absolute rules. The admiralty has gone very far in the application of this principle.

 Thus it might be supposed that where the period of limitation is clearly a condition of the assertion of the right given by state statutes and borrowed by the admiralty, there would be no room in the latter for the application of the doctrine laches. But curiously enough, even that proposition is not supported by some of the cases. In The Harrisburg, 1886, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358, libelants' decedent was drowned off Martha's Vineyard, and fault was claimed against a steamer belonging to the Port of Philadelphia, where she was duly enrolled in accordance with the laws of the United States. The court refused to say whether the Pennsylvania or the Massachusetts death statute could be invoked under the circumstances, because the suit was too late under either statute; and in the course of its opinion (at page 214 of 119 U.S., at page 147 of 7 S. Ct., 30 L. Ed. 358), it was particular to point out that:

 'The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone.' (Italics mine.)

 On principle, it seems that in such a case it would be inconceivable that the doctrine of laches would play any part, because the late libelant is really in the position of asserting a right which does not exist. Nevertheless, the court in The Harrisburg goes on to explain that the power of the admiralty court to allow an equitable excuse for delay in suing did not arise, because in that case no excuse was shown. There are other decisions of similar import. In Mejia v. United States, 5 Cir., 1946, 152 F.2d 686, the Louisiana death statute was invoked. The court pointed out that (152 F.2d 686, at page 688):

 'The one-year limit of Article 2315 is not in the nature of a limitation but is a peremption, and, unless the right created by the Article is exercised within the one-year period it ceases to exist and is completely lost.' (Italics mine.)

 And yet in that very same case the Court adverts to the fact that there were no equitable reasons set forth sufficient to justify the delay in the filing of the libel. Moreover, it has been squarely decided in this circuit that a libelant, invoking this very New York state death statute after the expiration of two years from the decedent's death, ought to be permitted to amend his libel, and to set forth facts which would toll the statute of limitations, or to show that he was not guilty of laches in failing to bring the suit within the two-year period. The Sydfold, 2 Cir., 1936, 86 F.2d 611.

 On the basis of these cases, one might well infer that failure to commence suit under the New York death statute within two years can be excused. The Sydfold, supra. Some of them suggest that excuses can at least be entertained even under a statute making it inescapably clear that the time ...

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