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REDMAN v. UNITED STATES

December 13, 1948

REDMAN
v.
UNITED STATES et al.



The opinion of the court was delivered by: BONDY

Courts of admiralty have long applied the Equity doctrine which demands that claims must be prosecuted within a reasonable time. While the determination of what is a reasonable time under the circumstances is left to the discretion of the court, analogous State statutes of limitation are, in the absence of special circumstances, held controlling. Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551; The Sydfold, 2 Cir., 86 F.2d 611; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901; Schiavone-Bonomo Corporation v. Buffalo Barge Towing Corp., 2 Cir., 132 F.2d 766.

Libellant was injured July 25, 1944, but did not make his claims against Turbine Engineering Corporation and United Fruit Company until November 26, 1947, four months beyond the three year limit provided by the New York statute of limitations governing actions on claims for personal injuries resulting from negligence. New York Civil Practice Act Sec. 49(6).

 Libellant's claim that he did not have any notice of the possible liability of Turbine Engineering Corporation and United Fruit Company before 'the latter part of 1947' and that this constitutes a special circumstance which prevents the application of laches, can not be sustained. Ignorance of facts material to a claim may preclude the application of laches. This, however, is not so when such ignorance is due to the negligent failure of the libellant to make such inquiry as the circumstances reasonably suggest. See Winn v. Shugart, 10 Cir., 112 F.2d 617, at page 622.

 The claim against Turbine Engineering Corporation is based upon the duty of a contractor having control and custody of a vessel undergoing conversion to furnish to those who are employed thereon a reasonably safe place to work. If, as it is claimed, libellant did not know under whose control the vessel was at the time of the accident, reasonable diligence would have disclosed that fact long before November, 1947. Moreover, the bill for work done for Turbine Engineering Corporation in the exhibits to which libellant was referred by Robert Banks' answers to interrogatories of May 21, 1947, gave libellant notice of the identity of the general contractor more than two months before the statute of limitations expired and more than six months before he made his claim. Since there is nothing to excuse the delay, the libel against Turbine Engineering Corporation must be held barred by laches.

 The libel against United Fruit Company is also barred by laches since the record does not support libellant's claim that before October 3, 1947, there was nothing to put him on notice that the scaffold may have been damaged during the berthing operation on the morning of July 25, 1944, or that such operation was performed at the direction and under the control of United Fruit Company.

 Irrespective of whether libellant on May 9, 1946 had constructive notice of the contents of the filed interrogatories and answers thereto served on correspondents in the action, libellant on May 21, 1947 had actual notice of Walter's statement indicating his belief that the scaffold was damaged during the berthing operations since at that time he was served with Robert Banks' answers to libellant's interrogatories which specifically referred him to Walter's statement. See Livingston v. Maryland Ins. Co., 7 Cranch 506, at page 537, 11 U.S. 506, at page 537, 3 L. Ed. 421.

 Walter's statement should have put libellant on inquiry to determine who moved the vessel. Libellant could not reasonably have believed that the vessel could only have been moved by one of the original parties. Obviously respondent United States did not in its capacity as owner of the Leonatus move the vessel, since it had assigned her to the Danish Ship Operating Corporation. The Danish Ship Operating Corporation was not likely to have been the one to have moved the ship, since it was undergoing a general reconversion, was a 'dead ship' and had, according to libellant, no crew on board. The general contractor in charge of the conversion and the operator of the pier, or those most likely to have responsibility for the shifting of the ship, were not parties to the action.

 The original libel was based on the theory that the scaffold had been negligently constructed and maintained. The only reasonable action after being informed that the scaffold may have been damaged during the shifting of the vessel would have been a further investigation of the facts, which would have revealed that United Fruit Company had charge of the berthing operation.

 Yet at no time did libellant make any effort to determine who was responsible for the shifting of the vessel on the morning of July 25, 1944, and he impleaded United Fruit Company on November 26, 1947, only after respondents Rissell and McNeil had on October 3, 1947, volunteered the information that United Fruit Company had moved the ship.

 In delaying suit until six months after the date on which reasonably diligent inquiry would have revealed the possible responsibility of United Fruit and four months after the time limit provided by the New York statute, the libellant has been guilty of laches which can not be excused by an ignorance of facts that resulted only from his own lack of diligence. The fact that it may have been libellant's proctor and not libellant personally who was responsible for the delay in making this claim can not alter the decision. McGrath v. Panama R. Co., 5 Cir., 298 F. 303; Marshall v. International Mercantile Marine Co., supra.

 Respondents did not waive the defense of laches by failing to plead it in their original answer. See Hays v. Seattle, 251 U.S. 233, at page 239, 40 S. Ct. 125, 64 L. Ed. 243; The Sydfold, 2 Cir., 86 F.2d 611; see also Page v. Natural Gas & Fuel Co., 8 Cir., 35 F.2d 462, at page 465. Nor is the delay excused by the diligent prosecution of libellant's claim against other parties. See The City of Atlanta, D.C., 17 F.2d 311; The Scull v. Raymond, D.C., 18 F. 547, at page 553.

 The court therefore reluctantly concludes that the libel against Turbine Engineering Corporation and United Fruit Company must be dismissed on account of libellant's laches.

 The issues of fact and law in the above entitled suit having duly come on to be heard on the pleadings and proofs of the parties and due deliberation having ...


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