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February 2, 1967

Thomas R. QUIGLEY, Paul S. Austin, Louis Daniel, Preston Murphy, Arthur G. Swainson, Joseph L. Vaine, and Robert S. Jernigan, Plaintiffs,
HAWTHORNE LUMBER CO., Inc., et al., Defendants

The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

 In June 1964 plaintiffs, the master and crew of a tug, brought this diversity suit for $4,000,000 damages, alleging that in January 1962 they were wrongfully arrested, tried and imprisoned in Honduras as a result of a false affidavit, warrant and complaint instigated by the defendants. Certain defendants now move for summary judgment pursuant to Rule 56, F.R.Civ.P., on the ground that the action is barred by the applicable statute of limitations. The defendant Hartford Fire Insurance Co. ("Hartford" herein) also moves on the ground that there is no genuine issue with respect to its lack of connection with any of the acts that are the subject of the complaint. The essential facts, as alleged in the introductory paragraphs of the complaint, are as follows:

 On January 6, 1962, plaintiff Quigley signed on as the master, and the other plaintiffs as members of the crew, of the tug Southeastern No. 5, owned by defendant Andersen's Marine, Inc., for a voyage from Key West, Florida, to Honduras in order to tow the S.S. Tropic Sea and her cargo of lumber from Honduras to Kingston, Jamaica. Plaintiffs thereupon proceeded in the tug to Honduras and after being assured that the S.S. Tropic Sea had been duly cleared (although it had developed a 30 degrees list) towed it to Kingston, after which they returned on January 21, 1962 to Honduras where they were arrested by the "Army Captain of the Port" and five militia men, who "presented to Captain Quigley an affidavit signed on behalf of the Hawthorne Lumber Company of Hawthorne, New York, and a Warrant of Complaint issued by the local court * * * [which] charged the Master and crew with piracy of the TROPIC SEA and robbery of the cargo of lumber laden thereon, which plaintiffs had towed" to Kingston as instructed by the tug's charterers, with the approval of the master and owners of the Tropic Sea.

 The complaint next alleges that the plaintiffs then "were arraigned before a Judge and the charges and warrant were read in the District Court of Puerto Cortes by an interpreter" in the presence of defendant Trochez, who is described as the legal representative of the defendants, and the defendant Guillermo Alvarado, who is described as the "District Attorney of the General Procuring Office of the Republic". The complaint further alleges that on January 30, 1962 plaintiffs were called before the judge who found them guilty as charged; and that upon appeal the appellate court on March 24, 1962, reversed their conviction and exonerated them of the charges against them, the plaintiffs thereupon being released from jail returning to Florida in the tug on March 30, 1962.

 The complaint fails to state the connection of each of the defendants with the alleged false arrest, trial and imprisonment of the plaintiffs, other than to claim that it was as a "result of the Affidavit, Warrant and Complaint of defendants * * *".

 After the foregoing introductory allegations of fact, plaintiffs allege five "causes of action". The first is that

" Plaintiffs were * * * arrested and subsequently jailed as a result of the false Affidavit, Warrant and Complaint of defendants wherein it was intentionally, knowingly and willfully alleged that plaintiffs were charged with Piracy and Robbery without any grounds * * * and with premeditated intent and malice * * *."

 The second "cause of action" claims that the affidavit filed by defendants was an "abuse of process".

 The third cause of action alleges:

"[Plaintiffs] * * * were arrested * * * pursuant to an Affidavit, Complaint and Warrant which was procured illegally by the defendants herein, which * * * were based on a misrepresentation of facts which were intended and resulted in the illegal and forceful detention of plaintiffs * * *."

 The fourth cause of action alleges that

"[A] Judicial Proceeding * * * was instituted, instigated and continued by defendants without probable cause, * * * basis or foundation in fact and with * * * malice * * *."

 The fifth cause of action alleges a conspiracy to commit the foregoing acts.

 All of the defendants, with the exception of Alvarado and Davis, who apparently have not been served, filed answers denying the material allegations of the complaint. In addition all moving defendants except Hartford pleaded the statute of limitations as an affirmative defense. By stipulation the action was dismissed as to the defendant Barclays Bank, Ltd. In 1964 Hartford's motion to dismiss the complaint for failure to state a claim on its face against Hartford was denied by Judge Levet of this Court in an opinion dated September 28, 1964, on the ground that although the complaint did not "allege specifically what defendant Hartford did" it gave notice of the general transaction and acts ...

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