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DE MONTE v. SHIPPING CORP. OF INDIA

September 18, 1979

FORTUNATO DE MONTE, Plaintiff,
v.
THE SHIPPING CORP. OF INDIA, LTD., Defendant and Third-Party Plaintiff, v. WEEKS STEVEDORING CO., INC., Third-Party Defendant.



The opinion of the court was delivered by: MACMAHON

This is an action under general maritime law for damages resulting from personal injury. Defendant moved for summary judgment under Rule 56, Fed.R.Civ.P., and the third-party defendant moves for dismissal of plaintiff's complaint. Since third-party defendant relies on matters outside the pleadings, we will treat its motion as one for summary judgment. The moving papers raise no issues as to any material fact. The case is thus appropriate for summary judgment.

Plaintiff longshoreman, an employee of Pittston Stevedoring Company ("Pittston"), was allegedly injured on August 18, 1975 while performing services aboard the "VISHVA KARUNA," a vessel owned by defendant Shipping Corporation of India ("Shipping") and moored at that time at Pier 10, Brooklyn.

 Plaintiff subsequently sought compensation from Pittston and its insurer under the Longshoremen's and Harbor Workers' Compensation Act (the "Act"). 33 U.S.C. §§ 901-950 (1978). A settlement agreement was reached at a conference on July 30, 1977 attended by plaintiff, his representative, representatives of Pittston and its insurer, and a Department of Labor claims examiner. The precise terms of the agreement are unclear, but it is clear that on July 12, 1977 a final payment was made to plaintiff on compensation totalling $ 7,190.04.

 Plaintiff commenced this action against Shipping on December 26, 1978 for damages for injuries allegedly sustained by him on August 18, 1975 as a result of Shipping's negligent failure to provide a safe workplace. Shipping in turn asserted a claim on May 23, 1979 against third-party defendant Weeks Stevedoring Company ("Weeks") alleging that any injury to plaintiff resulted from Weeks' negligent operation of an offshore crane to discharge the "VISHVA KARUNA" and consequently that Weeks was liable to Shipping for any sums adjudged owing from Shipping to plaintiff.

 The defendants urge two grounds in support of their motions: first, that plaintiff is barred by the maritime doctrine of laches; second, that plaintiff lacks capacity to sue because this third-party claim has been assigned to his employer, Pittston, by operation of Section 33(b) of the Act, 33 U.S.C. § 933(b) (1978).

 Laches

 Since this action is brought under general maritime law, there is no statute of limitations directly governing the question of time bar. Nevertheless, the maritime doctrine of laches might bar this action.

 In deciding a laches defense, we must consider three factors: (1) the limitations period established by the analogous statute of limitations; (2) the plaintiff's excuse for delay in suing; and (3) the prejudice to the defendant resulting from the delay. Public Adm'r v. Angela Compania Naviera, S.A., 592 F.2d 58, 63-64 (2d Cir. 1979); Hill v. W. Bruns & Co., 498 F.2d 565, 568 (2d Cir. 1974); Larios v. Victory Carriers, Inc., 316 F.2d 63, 66 (2d Cir. 1963).

 Defendants contend, and plaintiff does not dispute, that the proper analogous statute of limitations is New York Civil Practice Law and Rules § 214(5). 7B McKinney's Consolidated Laws of N.Y. § 214(5) (Supp.1978-1979). We agree. Section 214(5) governs land-based actions to recover damages for personal injury. Plaintiff's alleged injury occurred off a New York pier. Plaintiff is a resident of New York, Shipping has an agent for the transaction of business in New York, and Weeks is licensed to do business in New York. Thus, it makes sense to consider the New York limitations period.

 The limitations period prescribed by Section 214(5) is three years. Plaintiff did not commence this action until December 26, 1978, more than three years and four months after the alleged injury on August 18, 1975. Plaintiff, therefore, would be barred under the analogous statute of limitations.

 Respecting the second factor, plaintiff has the burden of coming forward with assertions and evidence of excuse for delay in bringing suit because the reasons for delay lie peculiarly within his knowledge. Public Adm'r v. Angela Compania Naviera, S.A., supra, 592 F.2d at 64; Larios v. Victory Carriers, Inc., supra, 316 F.2d at 66. Plaintiff, however, does not even assert an excuse much less adduce proof of any reason for delay.

 Turning to the final factor of prejudice caused by plaintiff's delay, the defendant has the burden of coming forward with the relevant facts because they are within its knowledge. Public Adm'r v. Angela Compania Naviera, S.A., supra, 592 F.2d at 64; Larios v. Victory Carriers, Inc., supra, 316 F.2d at 66, Shipping asserts two facts and Weeks just relies on the second.

 Shipping first asserts that the delay has resulted in the unavailability of potential witnesses, namely, officers aboard the "VISHVA KARUNA" on the day of the alleged accident who are now scattered around the globe. Shipping, however, adduces no proof by way of affidavits or documents to support this contention.

 Shipping's second assertion, joined by Weeks, is that plaintiff's delay has resulted in the loss of evidence necessary to the defense, namely, a Pittston file relating to its work aboard the "VISHVA KARUNA" on the day of the alleged accident. Shipping supported this assertion by an affidavit, a deposition subpoena, and a letter from Pittston to Shipping's counsel tending to show that on April 24, 1979 Shipping sought to discover the file and that the file had apparently been misplaced and could not be located. Shipping argues that ...


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