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January 7, 1973

The CALLANAN MARINE CORP., Defendant and Third-Party Plaintiff, v. BRONX TOWING LINE, INC., Third-Party Defendant

Whitman Knapp, District Judge.

The opinion of the court was delivered by: KNAPP

WHITMAN KNAPP, District Judge.

On June 26, 1967, a portion of brick being shipped by plaintiff's subrogor (hereinafter referred to in the interest of clarity as "plaintiff" even where the reference is to the shipper rather than to its insurer) from Beacon, New York to Newton Creek, New York, fell overboard from the barge Starr 45 while the barge was progressing in the vicinity of the East River and 34th Street.

 On October 31, 1967, the same fate befell a second shipment of plaintiff's brick, while the barge carrying it, Starr 43, was berthed at Exner Dock, Bronx, New York.

 To recover for its two losses, plaintiff commenced an action in admiralty against defendant Callanan Marine Corp. on March 26, 1969. The complaint alleges that plaintiff had contracted with Callanan to tow both barges, and that Callanan's negligence was the cause of both mishaps.

 Defendant served its answer on December 3, 1969, in which it denied, among other things, the allegations that it had undertaken to tow each barge to its ultimate destination.

 Within fifteen days of service of the Answer, plaintiff filed notice of its intent to take the deposition of the defendant on December 29, 1969. It appears however, from plaintiff's memorandum of law (July 25, 1973) that this examination did not take place until June 13, 1973 or some three and one half years later. In fact, no further activity whatever occurred in the case until the attorneys were roused from their torpor by a notice to appear before Magistrate Raby on May 14, 1973. Indeed it appears that the (probably sole) catalyst for the scheduling of the EBT some 3 1/2 years after it was noticed, was Magistrate Raby's warning at the May 14 conference that he would recommend dismissal of the case for non-diligent prosecution unless discovery was completed within one month.

 It appears that when due to this judicial prompting the EBT was finally held, the fact came to light that when each portion of brick had fallen overboard, Barges 45 and 43 were respectively being towed or had been berthed not by defendant Callanan but by tugs owned by a corporation known as Bronx Towing Line, Inc., with which defendant Callanan had apparently contracted to perform towing services within the Port of New York area.

 Thereupon with admirable speed the parties prepared a motion to permit defendant Callanan on consent of plaintiff to implead Bronx Towing Line, Inc. (F.R.Civ.P. 14(c)). The Court, while recognizing that the motion was made well beyond the six-month limit imposed upon impleader by Southern District Civil Rule 16, was of the view that such limit was designed to protect plaintiffs. Therefore in view of plaintiff's consent, the Court granted the motion.

 The third-party complaint was filed on June 27, 1973.

 The Court now has before it two motions: one made by third-party defendant to dismiss the third-party complaint on the ground of laches, and a second motion by plaintiff for leave to amend its complaint to add third-party defendant as an additional defendant. Whether laches should bar the relief requested is the sole question presented by each motion.

 The preclusion of stale claims in admiralty is achieved by application not of inflexible statutes of limitation but of the equitable doctrine of laches. State statutes of limitation governing actions most comparable to the admiralty action in question are nonetheless looked to by the court for guidance in deciding whether laches should bar relief. Thus, as succinctly stated by the Second Circuit Court of Appeals, speaking through Judge Friendly in Larios v. Victory Carriers (1963) 316 F.2d 63, 66:

"When the suit has been brought after the expiration of the state limitation period, a court applying maritime law asks why the case should be allowed to proceed; when the suit, although perhaps long delayed, has nevertheless been brought within the state limitation period, the court asks why it should not be."

 Larios, it should be noted, rejects the notion that expiration of the state limitation period creates a presumption of laches. Rather, the effect of expiration appears to be only to shift the burden of persuasion as to ...

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