that a dismissal for want of prosecution is an adjudication
upon the merits unless otherwise specified by the Court. The
intent of the drafters of this rule to bestow upon such an
order of dismissal a much greater effect than it enjoyed at
common law or in the Federal courts prior to the adoption of
the rules is evidenced by a simple, unambiguous statement,
setting out this special provision.
A similar examination of Rule 38 of the Rules of Practice in
Admiralty and Maritime Cases fails to disclose any such
provisions. A dismissal for want of prosecution in accordance
with Rule 38 places the libelant in default with respect to
the dismissed suit; nothing is said as to the effect of such
dismissal upon a subsequent action. In view of the absence of
any special provision to this effect in Rule 38 — namely such
a provision as is found in Rule 41(b) of the Rules of Civil
Procedure — it is reasonable to infer that the drafters of
Rule 38 of the Admiralty Rules did not intend that the effect
of an order of dismissal under its provisions should in any way
differ from the effect of a similar order under the common law.
Consequently it is the view of this Court that the effect of an
order of dismissal for want of prosecution under Rule 38 must
be judged in the light of the decisions at common law and in
the Federal Courts prior to the adoption of the Federal Rules
of Civil Procedure. As stated previously, it was repeatedly
held under those decisions that an order of dismissal for want
of prosecution did not constitute a bar to a subsequent action
because there had been no adjudication upon the merits.
Accordingly, the dismissal of the libelant's prior suit in
admiralty for want of prosecution does not bar this action. The
respondent's defense of res judicata is overruled.
2. Defense of statute of limitations and laches. In support
of this defense the respondent adopts the position that the
statute of limitations should be applied. In Illinois, an
action for personal injuries must be commenced within two years
and an action on an implied contract must be commenced within
five years. Illinois Revised Statutes, Ch. 83, Secs. 15 and 16.
Consequently, the respondent contends that this action is
barred because it was not commenced until almost seven years
The obligation of an employer under maritime law to provide
"maintenance and cure" is a contractual one. Pacific S. S. Co.
v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 76, 73 L.Ed. 220;
Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173,
77 L.Ed. 368; Marshall v. International Mercantile Marine Co.,
2 Cir., 39 F.2d 551. If, in the determination of the
timeliness of the action, the statute of limitations were to
be applied by way of analogy, the period of limitations for
actions on implied contract would be applicable. Loverich v.
Warner Co., 3 Cir., 118 F.2d 690; certiorari denied,
313 U.S. 577, 61 S.Ct. 1104, 85 L.Ed. 1535; Marshall v. International
Mercantile Marine Co., supra.
The analogy to the statute of limitations, however, is only
an analogy and not a rule. Pan-American Trading Co. v.
Franquiz, 5 Cir., 82 F.2d 500; Loverich v. Warner Co., supra.
"Laches consists of two elements, inexcusable delay in
instituting suit and prejudice resulting to the defendant from
such delay. Its existence depends upon the equities of the
case, and not merely upon the lapse of time." United States v.
Alex Dussel Iron Works, Inc., 5 Cir., 31 F.2d 535, 536. The
principle of balancing the equities in deciding the existence
of laches was recited with approval by the Supreme Court of
the United States in the recent case of Gardner v. Panama
Railroad Co., 342 U.S. 29, 72 S.Ct. 12.
As previously stated, an action for maintenance and cure is
contractual and arises, by implication of law, from the
contractual relationship between the seaman and his employers.
This type of action is not dependent upon the negligence of
the employer. Aguilar v. Standard Oil Co. of New Jersey,
318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107; Calmar S. S.
Corporation v. Taylor, 3 Cir., 92 F.2d 84; Loverich v. Warner
Co., supra; Mullen v. Fitz Simons & Connell Dredge & Dock Co.,
7 Cir., 191 F.2d 82; Reabe v. Carnegie-Illinois Steel Corp.,
D.C., 100 F. Supp. 728.
The traditional policy of Federal courts to promote the best
interests of seaman, not only for the sake of seamen
themselves but also in the interests of national commerce and
unity — a policy which is clearly defined by Justice Storey in
Harden v. Gordon, Fed.Cas. No. 6,047, 2 Mason 541 — prompts
one to favor the principle of balancing the equities in the
consideration of the possible existence of laches. When one
applies this principle to a case where the respondent has shown
no detriment due to the delay, which is true in the instant
case, the basic distinction between the contractual action for
maintenance and cure and the negligence action for injuries,
either to the seaman or property, and particularly the
difference in the respective pleadings and methods of proof,
prove to be invaluable aids to the Court in the determination
of the question as to whether or not the respondent has been
prejudiced by the delay. In the case of Loverich v. Warner Co.,
supra, the Court had before it an action for maintenance and
cure, to which the respondent had interposed the defense of
laches. In overruling this defense, the Court emphasized the
distinction between the maintenance and cure action and an
action for negligence, wherein the respondent might be
prejudiced through the death or disappearance of its witnesses
during the lapsed period. In its analysis the court said
[118 F.2d 693], "Nor do we see any prejudice which has resulted to
the respondent from the delay. If it were necessary to go back
to questions involving existence of negligence and the like in
1926 and witnesses had died or disappeared the problem might be
different. But with a claim for indemnity out of the case this
problem does not arise. Medical records are as available now as
earlier. We do not believe that the doctrine of laches has any
application to this case."
The analysis of the Loverich case is applicable to the
instant case for maintenance and cure. In the absence of any
showing of prejudice or detriment to the respondent by the
delay, this court adopts the view of the Loverich case that
there was no prejudice in this action for maintenance and
cure. One must remember also that the respondent had notice of
this claim prior to the instant suit by virtue of the earlier
action, which had been dismissed for want of prosecution.
In support of his position, the respondent cites Westfall
Larson & Co. v. Allman Hubble Tug Boat Co., 9 Cir.,
73 F.2d 200; The Sydfold, D.C., 12 F. Supp. 276, The Vema, D.C.,
27 F. Supp. 679. All three cases involved actions for negligence
rather than maintenance and cure. Consequently they cannot be
adapted to the rationale of the Loverich case. The respondent
also places great reliance in the case of Marshall v.
International Mercantile Co., supra, which involved a suit for
personal injuries and for maintenance and cure. It should be
noted, however, that only the count seeking indemnity for
personal injuries was dismissed because of laches. The count
which set out the claim for maintenance and cure, was
dismissed because she, having previously declined an offer of
hospital treatment, could not maintain the suit. The question
of laches was not determined.
Accordingly, the respondent's defense of statute of
limitations and laches is overruled.
In view of the foregoing reasons, the respondent's exception
should be overruled and he should be required to answer
pursuant to the order of the Court. Such order will be entered
on Tuesday, January 22, 1952, at 10 o'clock, a. m.
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