United States Court of Appeals, Second Circuit.: No. 460. Docket 31718
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2d 563
Sidney L. RASKIN, Executor of the Estate of Margaret Curry,
deceased, Plaintiff-Appellant,
v.
P. D. MARCHESSINI, INC., P. D. Marchessini & Co., Ltd.,
(also operating as P. D. Marchessini & Co., New York, Inc.),
Defendants and Third-Party Plaintiffs-Appellees,
v.
ATLANTIC STEVEDORING CO., Inc., Third-Party
Defendant-Appellee, and
Liberty Mutual Insurance Company, Applicant for Intervenor.
No. 460.
Docket 31718.
United States Court of Appeals, Second Circuit.
Argued January 11, 1971.
Decided February 26, 1971.
Jacob Rassner, New York City, for plaintiff-appellant.
Alvin L. Stern, New York City (Poles, Tublin, Patestides & Stratakis,
New York City, on the brief), for defendants and third-party plaintiffsappellees.
John Nielsen, Fogarty & Nielsen, New York City, for third-party
defendant-appellee.
Before LUMBARD, Chief Judge, MEDINA and WATERMAN, Circuit
Judges.
MEDINA, Circuit Judge:
On October 30, 1961 William Curry, a longshoreman engaged in the loading
operation of the S.S. Eurylochus in the territorial waters of the State of Georgia,
died as a result of injuries allegedly received when a broken band on a piece of
cargo caught in his trousers, lifted him into the air and swung his body against
the side of the vessel. On March 3, 1964 this action was brought against the
shipowner by "Margaret Curry, as Administratrix of the Estate of William
Curry, deceased, and Individually as the Widow and Next of Kin of William
Curry, deceased." Jurisdiction was based on diversity. After a number of
procedural maneuvers, the amended complaint was dismissed by Judge
McLean on June 8, 1967, pursuant to a motion for judgment on the pleadings,
D. C., 274 F.Supp. 167. As the claim for relief was based on the Georgia
Wrongful Death Statute, Ga.Code Ann. Sections 105-1302, 105-1309 (1956),
relief was barred by the expiration before commencement of the action of the
two-year period of limitations provided by Georgia law. Ga.Code Ann. Section
3-1004 (1956). The claim for damages caused by a breach of the warranty of
seaworthiness, alleged in a separate paragraph of the amended complaint, was
of no avail as the Supreme Court had ruled in The Harrisburg, 119 U.S. 199, 7
S.Ct. 140, 30 L.Ed. 358 (1886), that the maritime law afforded no relief for
wrongful death, and this ruling had withstood the criticisms of a generation and
more. So Judge McLean's dismissal of the amended complaint was affirmed by
us on January 16, 1969. The reasons for this unusual delay have not been
disclosed but it seems not unlikely that plaintiff's counsel was watching the
progress of another case involving the question of recovery for wrongful death
under the maritime law, and he cannot be blamed for dragging his feet. In any
event, after many more months had elapsed, plaintiff's application to the
Supreme Court for a writ of certiorari in this very case was pending on June 15,
1970 when Mr. Justice Harlan delivered his famous and widely praised opinion
in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26
L.Ed.2d 339 (1970), overruling The Harrisburg and holding that the maritime
law did provide a remedy for wrongful death in territorial waters caused by an
alleged breach of the shipowner's warranty of seaworthiness. Accordingly, the
Supreme Court, on June 29, 1970, granted the writ of certiorari, vacated our
judgment of affirmance of Judge McLean's dismissal of the amended complaint
and remanded this case to us "for reconsideration in the light of Moragne v.
States Marine Lines, Inc." 399 U.S. 519, 90 S. Ct. 2229, 26 L.Ed.2d 774. We
have heard new oral arguments of counsel and have examined the new briefs
filed before the oral arguments and also supplemental briefs which we ordered
filed because several features of the case were confused and unclear.
2
In view of the stipulation by plaintiff's counsel at the time of the oral argument
to the effect that he was relying solely on the claim against the shipowner for
damages suffered by reason of the death of William Curry caused by a breach
of the warranty of seaworthiness of the vessel, we see no occasion for further
amendment of the complaint. The shipowner's contention that the jurisdictional
allegation of diversity and the reliance on the Georgia Wrongful Death Statute
preclude any recovery for breach of the warranty of seaworthiness borders on
the frivolous, in the face of the following allegation:
3
Thirteenth: That the aforesaid occurrence was due to the unseaworthiness of the
personnel, gear and cargo aforementioned. The personnel were unseaworthy in
that they did not measure up to the standard of stevedores and longshoremen in
that they did not check the hoisting gear and did not check the condition of the
bands on the rolls of paper and did not discover that some of the bands were
broken, and proceeded to hoist the paper which was in a dangerous and unsafe
condition, thereby unduly endangering the lives and safety of the men at and
about the roll of paper which was being hoisted.
The cargo in question was unseaworthy and dangerous in that the bands,
particularly the one about the roll of paper in question was broken in such a
manner as to create an unsafe place to work for anybody in the vicinity of said
roll of paper with its broken band.
The vessel was unseaworthy in that the hoisting gear was not reasonably safe
for loading the cargo in question, and the defendants were otherwise guilty of
breach of warranty of seaworthiness.
This allegation was sufficient to satisfy the liberal requirements of F.R.Civ.P.
8(a) (2). It was fair notice to the shipowner that plaintiff would, if she could,
assert an alternative claim, under the maritime law, based on an alleged breach
of the warranty of seaworthiness. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957); and 2A Moore's Federal Practice 8.13 (2d Ed. 1968). It
was not necessary to use the words "under the maritime law" or to assert
jurisdiction in admiralty. The other parties may serve and file new pleadings
addressed to the claim of unseaworthiness, if they are so advised, within a time
to be fixed by the District Court.
The controversy over the substitution of another party plaintiff for Margaret
Curry, the widow, who died on September 3, 1968, must be settled by the
District Court on the remand that we are about to order. In Moragne one of the
questions specifically reserved for future decision is "the beneficiaries who are
entitled to recover" for wrongful death under the newly defined general
maritime law (398 U.S. at 406, 90 S.Ct. 1772). It may not be necessary to
decide the question in this case, however, if, as plaintiff claims, the widow,
whose executor has been substituted in her place, was the sole surviving next of
kin of the deceased longshoreman William Curry. Nevertheless, the shipowner
claims that the proper person to prosecute the claim is the "representative" of
the deceased longshoreman, not the executor of his widow, and that it was
necessary, after demand, that the new and proper party be substituted within 90
days. The record is ambiguous. Some of the documents, including the amended
complaint, indicate that a daughter survived William Curry. Plaintiff's counsel,
on the other hand, refers to an affidavit of Ronald H. Cohen, sworn to on
September 29, 1969, who describes himself as the attorney for the estate of
Margaret Curry, and states:
8
3. That William Curry and His wife Margaret Curry died without leaving any
chil[d]ren or des[c]endants of children. This he determined as a result of his
investigation.
Thus on the remand, and after a hearing, the District Court will decide this
controverted issue of fact and apply the proper rule under the general maritime
law, taking into consideration the comments in Moragne on the subject. If it
appears that some mistake has been made, the proper person should be
qualified and substituted in place of Sidney L. Raskin, Executor of the Estate of
Margaret Curry, deceased, despite the lapse of the 90-day period provided in
F.R.Civ.P. 25(a) (1).
10
Another subject specifically reserved in Moragne is the application in this case
of the rule of laches. In Moragne it was said, 398 U.S. at 406, 90 S.Ct. at 1790:
11
Respondents argue, for example, that a statute of limitations must be devised or
"borrowed" for the new wrongful-death claim. However, petitioner and the
United States respond that since we have simply removed the barrier to general
maritime actions for fatal injuries, there is no reason in federal admiralty
suits at least that such actions should not share the doctrine of laches
immemorially applied to admiralty claims. In applying that doctrine, the
argument runs, the courts should give consideration to the two-year statute of
limitations in the Death on the High Seas Act, just as they have always looked
for analogy to appropriate state or foreign statutes of limitations. See Kenney v.
Trinidad Corp., 349 F.2d 832, 840 (C. A.5th Cir. 1965); Gilmore & Black,
supra at 296 n. 149, 628. We need not decide this question now, because the
present case was brought within a few months of the accident and no question
of timeliness has been raised. The argument demonstrates, however, that the
difficulties should be slight in applying accepted maritime law to actions for
wrongful death. (Footnotes omitted.) The delay at issue here, of course,
concerns only the period between decedent's death on October 30, 1961 and
March 3, 1964, when the original complaint was filed. In this interval the
widow commenced a proceeding against the decedent's employer pursuant to
the provisions of the Longshoremen's and Harbor Workers' Compensation Act.
33 U. S.C. Sections 901-950 (1964). This resulted, on May 2, 1962, in an award
to the widow as claimant. The employer challenged the validity of the award in
the United States District Court for the Southern District of Georgia, and the
award was vacated on August 13, 1963. Atlantic Stevedoring Co. v. O'Keeffe,
220 F.Supp. 881 (S.D.Ga.1963). On appeal to the Fifth Circuit the award was
reinstated on December 8, 1965. O'Keeffe v. Atlantic Stevedoring Co., 354
F.2d 48 (5th Cir. 1965). In addition, plaintiff's counsel asserts other excuses for
the delay which involve mixed questions of law and fact. These factual matters
must be decided and an appraisal made of their effect, if any, on the application
of the rule of laches in this case, in the light of the comments in Moragne. See
Gardner v. Panama R. R., 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31 (1951).
12
It may well be that the District Court will decide to "give consideration" to the
two-year statute of limitations in the Death on the High Seas Act, 46 U. S.C.
Section 763 (1964), as intimated in Moragne, 398 U.S. at 406, 90 S.Ct. 1772,
26 L.Ed.2d 339. If so, in the absence of some countervailing finding of
evidence, made as a result of the winnowing process on the remand, justifying
the delay in bringing the suit and any possible prejudice to the shipowner, the
District Court will dismiss the case. On the other hand, plaintiff's counsel
claims that "consideration" should be given to the six-year statute of limitations
of New York, provided in CPLR Section 213 (McKinney Supp.1970), for
actions in contract, as the claim asserted here is based on an alleged breach of
the ship-owner's warranty of seaworthiness. This opens up a whole vista of new
controversy, a Pandora's box that seems remote from anything anticipated by
the Supreme Court when it decided Moragne.
13
We have outlined in some detail the procedure to be followed at the hearing on
the remand in order to cut through the accumulated morass and allow dismissal
of the case if it was brought too late or, if not, a decision on the merits.
14
Remanded to the District Court for the Southern District of New York with
directions.
