The opinion of the court was delivered by: LA Buy, District Judge.
Plaintiff, a longshoreman employed by Maritime Service, Inc.,
was allegedly injured on board a barge owned by defendant while
he was unloading bags of sugar therefrom. This suit was filed two
years, seven months, and one day after the occurrence.
The defendant vessel owner has moved to dismiss both counts of
the complaint for the reason that the action is barred by the
Illinois statute of limitations requiring actions for personal
injuries to be brought within two years.
Count I of the complaint is brought pursuant to the Jones Act,
46 U.S.C.A. § 688, which permits an action to be brought within
three years. Count II of the complaint alleges defendant's
failure to provide a seaworthy vessel with proper appliances in
good order and condition.
The litigants are in basic disagreement as to the right of a
longshoreman injured on board a vessel in navigable waters to
premise his right to recovery for negligence of the shipowner,
not his employer, under the Jones Act. It is plaintiff's
contention that the Jones Act gives a right of action to any
"seaman" and that a longshoreman has been held to be a seaman
within the Act. International Stevedoring Co. v. Haverty, 1926,
272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157; Uravic v. F. Jarka Co.,
1930, 282 U.S. 234, 51 S.Ct. 111, 75 L.Ed. 312. It is defendant's
contention that the enactment of the Longshoremen's and Harbor
Workers' Act, 33 U.S.C.A. § 901, et seq., subsequent to the
Haverty decision, operated to confine the benefits of the Jones
Act to members of the crew of a vessel and to substitute for the
right of recovery of a longshoreman, previously recognized under
the Haverty decision, only such rights to compensation as are
given by the Longshoremen's Act; that the plaintiff longshoreman
was not a member of the crew of a vessel and was not an employee
of the vessel owner.
In Swanson v. Marra Bros., 1946, 328 U.S. 1, 66 S.Ct. 869, 872,
90 L.Ed. 1045, a stevedore brought suit against his employer, the
stevedore company, under the Jones Act for injuries suffered on
shore and not on the vessel. The Longshoremen's Act covered only
injuries incurred on navigable waters and consequently did not
cover the situation; the Jones Act covered only members of the
crew of a vessel performing maritime employment whether on board
a vessel or on shore. However, the court held that both acts
precluded recovery against the employer for injuries suffered on
shore because the plaintiff was not a "member of the crew of a
vessel" within the Jones Act, and he was not injured on navigable
waters within the Longshoremen's Act; that therefore his remedy
was confined to that provided by local law.
In Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct.
872, 90 L.Ed. 1099, a longshoreman brought suit against the
vessel owner, not his employer. The complaint was not brought
under the Jones Act, but upon the right to recover for breach of
the obligation of seaworthiness which is "rooted in federal
maritime law". In Pope & Talbot, Inc. v. Hawn, 1953,
346 U.S. 406, 74 S.Ct. 202, 205, 98 L.Ed. 143, a ship's carpenter sued the
shipowner, who was not his employer. The action was not brought
under the Jones Act but pursuant to federal maritime law which
imposes a duty upon the owner of a vessel to provide a seaworthy
vessel, not only to his employees but to others as well. See also
Court of Appeals opinion in Palermo v. Luckenbach S.S. Co., 2
Cir., 1957, 246 F.2d 557, reversed on other grounds 355 U.S. 20,
78 S.Ct. 1, 2 L.Ed.2d 3.
The court is of the opinion that although longshoremen are
entitled to the protection which flows from the shipowner's
obligation of seaworthiness, there is no abrogation of the rule
that a Jones Act suit for negligence applies only where the
relationship of employer and employee exists.
It follows from the Sieracki and Hawn cases, supra, that
plaintiff's claim for breach of the duty to provide a seaworthy
vessel as alleged in Count II does state a claim under the
federal maritime law. Being a suit in admiralty, the issue of
delay in bringing suit is determined by the application of the
doctrine of laches. The question of laches should not be
"measured by strict application of statutes of limitations".
Czaplicki v. The Hoegh Silvercloud, 1955, 351 U.S. 525, 533, 76
S.Ct. 946, 951, 100 L.Ed. 1387. In that case, the Supreme Court
of the United States said:
"* * * This does not mean, of course, that the
state statutes of limitations are immaterial in
determining whether laches is a bar, but it does mean
that they are not conclusive, and that the
determination should not be made without first
considering all the circumstances bearing on the
Plaintiff has the burden of showing those facts which negative
the delay and should be given the opportunity to meet that burden
at the trial of this cause.
An order has this day been entered dismissing Count I of
plaintiff's complaint for failure to state a claim under the
Jones Act; and overruling defendant's motion to dismiss Count II
of said complaint.
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