Recent Personal Injury and Car Accident News and Cases related to Hawaii
On June 29, 2015, the Hawaii Supreme Court rendered its decision in the case of St. Paul Fire and Marine Ins. Co. v. Liberty Mutual Insurance, Hi. Sup. Ct. Case No SCCQ-14-0000727 (June 29, 2015). This case arose out of a wrongful death personal injury case handled by this office which resulted in a $4.1 million verdict in favor of our clients - even though Liberty Mutual, the primary liability insurer, never offered anything even close to its policy limits of $1 million. St. Paul - who had to pay our clients everything recovered in excess of the initial $1 million - claimed that Liberty Mutual committed bad faith towards it by failing to settle within its $1 million policy limits. The Hawaii Supreme Court agreed and found that an excess insurer has claims for bad faith against a primary insurer.
JONES ACT- TABLE OF CONTENTS
The Jones Act
V. DEFENSES C. Limitations of Actions 1. Statutory Limitations
404. Applicable limitation period
3 year period of limitations of 46 USCS Appx § 688 does not apply in suit against Government brought by seaman under Suits in Admiralty Act (46 USCS Appx § § 741 et seq.). Keil v United States (1946, DC Md) 65 F Supp 431, 1946 AMC 653.
Longshoreman doing work as seaman is entitled to 3 year statute of limitations of Jones Act, 46 USCS Appx § 688. Daniels v States Marine Corp. (1960, ED La) 184 F Supp 815.
If 46 USCS Appx § 688 proceeding is to be instituted, it must be commenced within statutory period of three years from date of injury or, in event of death, within three years from date of death, and filing of limitation of liability proceeding does not toll statute. Petition of United States (1964, ED NC) 237 F Supp 434, 1964 AMC 1725, affd (CA4 NC) 346 F2d 449, 1965 AMC 1179, cert den 382 US 878, 15 L Ed 2d 119, 86 S Ct 163.
Actions under 46 USCS Appx § 688 are subject to three year statute of limitations. West v M/V Coan River (1970, ED Va) 312 F Supp 1038, supp op (ED Va) 330 F Supp 966.
405. --Applicability of Federal Employer's Liability Act (45 USCS § § 51 et seq.)
3 year limitation in Federal Employers' Liability Act (45 USCS § 56) is incorporated by reference by 46 USCS Appx § 688. Pope v McCrady Rodgers Co. (1947, CA3 Pa) 164 F2d 591; Streeter v Great Lakes Transit Corp. (1942, DC NY) 49 F Supp 466; Ran v Atlantic Refining Co. (1949, DC Pa) 87 F Supp 853; Turner v American Dredging Co. (1976, ED Pa) 407 F Supp 1047, affd without op (CA3 Pa) 556 F2d 568.
Both under 45 USCS Appx § 51 et seq., and 46 USCS § 688, with its incorporation of limitations from other statutes, time provision has been regarded as part of right itself. Pope v McCrady Rodgers Co. (1947, CA3 Pa) 164 F2d 591, 1948 AMC 33.
Negligent injury claim is barred by provision of Federal Employers' Liability Act, 45 USCS § 56, as adopted by Jones Act, 46 USCS Appx § 688, where such action is not commenced within 3 years from day cause of action accrued. Claussen v Mene Grande Oil Co. (1960, CA3 Del) 275 F2d 108.
46 USCS Appx § 688 does not preclude resort to admiralty, and in pursuance of remedy in admiralty, limitations of 45 USCS § 56 do not apply. Rosinski v Conners (1927, DC NY) 21 F2d 591, 1928 AMC 591.
That Congress, when it amended 45 USCS § § 51 et seq. to extend statute of limitations from two to three years, made no exception with respect to existing rights under 46 USCS Appx § 688 raises strong presumption that it intended to make none. Chisholm v Cherokee-Seminole S.S. Corp. (1940, DC NY) 36 F Supp 967, 1940 AMC 1580; Gahling v Colabee S.S. Co. (1941, DC Pa) 37 F Supp 759, 1941 AMC 600; Streeter v Great Lakes Transit Corp. (1942, DC NY) 49 F Supp 466.
In libel in personam by seaman for personal injuries alleging that respondent was negligent in failing to furnish libellant with safe place to work and with suitable equipment and supplies for performance of his work, statute of limitations provided by 45 USCS § 56 was applicable. Bogdanovich v Gasper (1941, DC Cal) 41 F Supp 457, 1941 AMC 1457.
Seaman who was injured on board vessel in July or August, 1944, and did not file his action until April 14, 1949, was barred by three-year limitation of 45 USCS § § 51 et seq., which was incorporated in 46 USCS Appx § 688 by reference. Ran v Atlantic Refining Co. (1949, DC Pa) 87 F Supp 853.
In suit under Jones Act, 46 USCS Appx § 688, statute of limitations governing suits under Federal Employers' Liability Act, 45 USCS § 56, is applicable. Purvis v Luckenbach S.S. Co. (1949, DC NY) 93 F Supp 271.
46 USCS Appx § 688 gives to any seaman who shall suffer personal injury in course of his employment right to maintain action at law for damages against his employer, but action begun more than 4 years after accident occurred was barred by 3-year statute of limitations under 45 USCS § 56. Phillips v Luckenbach S.S. Co. (1964, SD NY) 227 F Supp 195, 1964 AMC 2486.
Inasmuch as plaintiffs sought to characterize negligence action for personal injuries that one of plaintiffs received while he was employed as deep sea diver aboard movable drilling barge on Coastal Shelf off Trinidad as arising under 46 USCS Appx § 688, negligence claim would be governed by express three year limitation in Federal Employers' Liability Act (45 USCS § 56); thus, where there was no claim that statute had been tolled or defendants estopped, such 46 USCS Appx § 688 claim was barred. Francis v Pan American Trinidad Oil Co. (1975, DC Del) 392 F Supp 1252, 21 FR Serv 2d 489.
Action under 46 USCS Appx § 688 must be brought within three year statute of limitations found in FELA -46 USCS § 56-. Fitzgerald v Angela Compania Naviera, S. A. (1976, SD NY) 417 F Supp 151 (disapproved on other grounds De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and revd on other grounds (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15.
Injured Seaman's Jones Act claim is time-barred, where seaman was injured aboard ship on 12/12/81, shipowner filed for bankruptcy on 12/1/83, bankruptcy stay was lifted 8/9/86 and seaman (who had previously filed complaint then voluntarily dismissed it) filed new complaint in 1/89, because Act incorporates 3-year limitations period of 45 USCS § 56, and limitations clock was tolled only during pendency of bankruptcy stay. McKinney v Waterman S.S. Corp. (1990, DC Mass) 739 F Supp 678.
406. --Combined causes of action
Appropriate period of limitations for Seaman's action for unseaworthiness, where combined with action under 46 USCS Appx § 688, must be determined with eye to practicalities of admiralty personal injury litigation; in suit combining action for unseaworthiness with action under 46 USCS Appx § 688, court cannot apply to former shorter period of limitations than Congress has prescribed for latter; and this is so whether action is at law or in admiralty, in state or in federal courts. McAllister v Magnolia Petroleum Co. (1958) 357 US 221, 2 L Ed 2d 1272, 78 S Ct 1201 (not followed Public Admr. of County of New York v Angela Compania Naviera, S.A. (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15) and (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
In action based both on Jones Act, 46 USCS Appx § 688, and unseaworthiness, where employee was not seaman within purview of 46 USCS Appx § 688 statute of limitations contained in Jones Act is not applicable and court may look to state statutes of limitation in deciding what time limit to impose. Kyles v James W. Elwell & Co. (1961, CA7 Ill) 296 F2d 703, cert den 369 US 852, 8 L Ed 2d 10, 82 S Ct 936.
Where action for unseaworthiness is combined with action for negligence under 46 USCS Appx § 688, and latter action is barred by time limitations, action for unseaworthiness does not necessarily fall, and action for unseaworthiness can save time-barred action. Campanile v Societa G. Malvicini (1959, DC NY) 170 F Supp 667, 1959 AMC 2351.
In combined action under 46 USCS Appx § 688 and general maritime law, claim under 46 USCS Appx § 688 is subject to 3 year statute of limitations of 45 USCS § 56; claim for negligence arising out of general maritime law is subject to admiralty doctrine of laches. Scott v United Fruit Co. (1961, SD NY) 195 F Supp 278.
In action for wrongful death, one count based on unseaworthiness and others on negligence, court cannot apply to former shorter limitations than congress has prescribed for latter, even though event occurred in state territorial waters. Thomas v C.J. Langenfelder & Son, Inc. (1971, DC Md) 324 F Supp 325.
Jones Act, 46 USCS Appx § 688, provides more appropriate statute of limitations where representative of Seaman's estate is pursuing remedies under both Jones Act, 46 USCS Appx § 688, and cause of action under general maritime law. Powell v F.J. O'Hara & Sons, Inc. (1976, DC Me) 411 F Supp 377.
Since claims under Jones Act, 46 USCS Appx § 688, for negligence and under general maritime law for unseaworthiness are but alternative "grounds" for single cause of action, and since seamen have right, by statute, to bring their actions under 46 USCS Appx § 688 within 3 years, shorter limitation period cannot be imposed upon unseaworthiness claim so as to effectively diminish 3 year life of Jones Act claim. Wurz v Santa Fe International Corp. (1976, DC Del) 423 F Supp 91, 22 FR Serv 2d 1103.
407. --Effect of state limitation statutes
Congress, within its constitutional power, decreed 3 year statute of limitations for cases under 46 USCS Appx § 688, and no state statute can diminish that period. Engel v Davenport (1926) 271 US 33, 70 L Ed 813, 46 S Ct 410; Cox v Roth (1955) 348 US 207, 99 L Ed 260, 75 S Ct 242; McAllister v Magnolia Petroleum Co. (1958) 357 US 221, 2 L Ed 2d 1272, 78 S Ct 1201 (not followed Public Admr. of County of New York v Angela Compania Naviera, S.A. (CA2 NY) 592 F2d 58, cert dismd 443 US 928, 61 L Ed 2d 897, 100 S Ct 15) and (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.
Where limitation is provided by federal statute, state statutes of limitation and decisions of state courts construing them have no application. Port v Litolff (1939, CA5 La) 103 F2d 302, 1939 AMC 607.
408. Substantive character of limitation period
Statute of limitation contained in 45 USCS § 56, incorporated by reference in Jones Act, 46 USCS Appx § 688, is one of substantive right setting limit to existence of obligation which Act creates and is limitation on right created by statute. O'Neill v Cunard White Star, Ltd. (1946, DC NY) 69 F Supp 943.
409. Commencement of limitation period--illness
Diagnosis of tuberculosis, rather than manifestation of individual symptoms, began running of statute of limitations in action under 46 USCS Appx § 688 and 46 USCS Appx § § 741 et seq. Bradt v United States (1955, CA2 NY) 221 F2d 325, 1955 AMC 1481.
Machinist's cause of action under Jones Act for exposure to asbestos accrued when he knew or should have known that he suffered from asbestosis. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.
Cause of action of seaman accidentally soaked with toxic chemicals had accrued where seaman felt dizziness, leg cramps, and persistent stinging sensation in feet and fingers, even though seaman did not have disease at time of action. Hagerty v L & L Marine Services, Inc. (1986, CA5 La) 788 F2d 315.
Statute or period of limitations begins when libelant is informed of his illness by physician. Muse v Freeman (1961, ED Va) 197 F Supp 67, 5 FR Serv 2d 1042.
Drilling rig mechanic's Jones Act claims against employer fail, where mechanic knew of his exposure and adverse reaction to toxins, especially paint fumes, as early as 1970, and cause of action accrued no later than 1984 under "perceptible injury with appreciable manifestations" analysis, because suit filed in 1988 was too late under 3-year prescriptive period. Crisman v Odeco, Inc. (1990, ED La) 736 F Supp 712.
Although statement to plaintiff asserting claim under Jones Act for bladder cancer caused by exposure to chemicals, during treatment for glaucoma, that he had chemical spots in eyeballs and would have problems with eyes in 10 to 12 years was not sufficient to put him on notice that he had to sue for all existing future manifestations of illness due to exposure, combination of knowledge of such statement with later blindness should have reasonably put him on notice that he had been exposed to chemicals and suffered damage therefore and was sufficient to begin running of 3-year statute of limitations. Hicks v Hines, Inc. (1987, CA6 Ky) 826 F2d 1543.
Plaintiff who possessed or had reasonable opportunity to discover critical facts of injury claimed to have been suffered and had knowledge or reasonable opportunity to discover cause of such injury at time he was last exposed to chemical vapors while employed aboard defendants' push boats transporting barges of chemicals and failed to bring action within 3 years after last exposure is barred by applicable statute of limitations. Clay v Union Carbide Corp. (1987, CA5 La) 828 F2d 1103.
Under 46 USCS Appx § 688, action for Seaman's pain and suffering accrues at time of injury, while wrongful death action accrues at his death. Burns v Marine Transport Lines, Inc. (1962, SD NY) 207 F Supp 276.
Limitation period on action for injury commences on date of injury. Nasser v Hudson Water Ways Corp. (1983, WD Wash) 563 F Supp 88.
Limitation runs from date of death of seaman, and not from date of appointment of administrator, and running of limitation destroys cause of action. Petition of Clinchfield Nav. Co. (1928, DC NY) 26 F2d 290, 1928 AMC 631.
Motion for judgment non prosequitur will be sustained where it is alleged, in action to recover for wrongful death, that decedent met his death through wrongful acts of defendant in 1927, was declared presumed decedent in 1935, and administrator appointed who brought suit in 1936, since cause of action accrued in 1927 and former two-year statute of limitation had run. Philpott v Vesta Coal Co. (1937, DC Pa) 21 F Supp 37.
Cause of action under 46 USCS Appx § 688 accrues at time of death and not of appointment of personal representative. O'Neill v Cunard White Star, Ltd. (1946, DC NY) 69 F Supp 943.
Death action by administratrix was barred, where death of seaman occurred more than three years prior to institution of action, though deceased could not be declared legally dead for seven years under state law. Riley v Osuthern Transp. Co. (1950, DC NY) 90 F Supp 842, 1950 AMC 1695, affd (CA2 NY) 192 F2d 391.
End of voyage rather than date of injury commences limitations period for action alleging continuing negligent medical care on board ship after injury; limitation period on action for injury itself commences on date of injury. Nasser v Hudson Water Ways Corp. (1983, WD Wash) 563 F Supp 88.
413. Extension or tolling
Action brought by two Greek citizens seeking damages under 46 USCS Appx § 688 from foreign corporation was barred by statute of limitation as suit was filed more than 5 years after accident, notwithstanding plaintiffs' contention that 3 year prescriptive period could not have run against them because, under jurisdictional doctrines of Supreme Court, they had no cause of action until decision of Hellenic Lines, Ltd. v Rhoditis (1970) 398 US 306, 26 L Ed 2d 252, 90 S Ct 1731, reh den 400 US 856, 27 L Ed 2d 94, 91 S Ct 23; decision recognizing right of action to sue after prescriptive period has run does not retroactively interrupt running of limitation period. Zorgias v SS Hellenic Star (1972, ED La) 370 F Supp 591, affd (CA5 La) 487 F2d 519.
Running of statutory limitations period under Jones Act (46 USCS Appx § 688) is not tolled by infancy of minor children for whom plaintiff sues as next friend. Sanchez v Loffland Bros. Co. (1980, CA5 Tex) 626 F2d 1228, reh den (CA5 Tex) 636 F2d 315 and cert den 452 US 962, 69 L Ed 2d 974, 101 S Ct 3112.
Discovery of latent injury rule does not apply to toll statute of limitations and justify plaintiff's failure to file suit for over 12 years where plaintiff knew both that he was injured and cause of injury when injury occurred. Albertson v T.J. Stevenson & Co. (1984, CA5 Tex) 749 F2d 223.
Action for death of deckhand for terminal illness while aboard vessel under Jones Act, is not tolled, and three-year statute of limitation bars action, where case was twice dismissed due to jurisdictional defects; plaintiff failed to demonstrate that she, mother of deceased seaman, was proper candidate to receive benefits of equity and failed to demonstrate sufficient diligence in bringing her claim. Covey v Arkansas River Co. (1989, CA5 Miss) 865 F2d 660.
Court will not apply doctrine of equitable tolling for period of time when plaintiff's case was pending in state court where he slept on his federal rights for over 4 months after state court dismissed complaint, which was over 3 years after accrual of claim, and he failed to answer defendant's motion for summary judgment in federal court. Weathers v Bean Dredging Corp. (1994, CA8 Ark) 26 F3d 70.
In action under Jones Act, 46 USCS Appx § 688, where there is no evidence that claimant relied on any misrepresentation of material fact by defendant's claims agent, or that agent's advice was in any way responsible for delay of filing suit, Jones Act claim is barred after 3 years. Peck v United States Steel Corp. (1970, DC Minn) 315 F Supp 905, affd (CA8 Minn) 446 F2d 891, cert den 404 US 1019, 30 L Ed 2d 667, 92 S Ct 682.
46 USCS Appx § 688 suit is not saved by state statute permitting commencement of new action after expiration of statute of limitations, but within 1 year after termination other than on merits of earlier, timely action for same cause. Ali v Moore-McCormack Lines, Inc. (1955) 286 App Div 462, 144 NYS2d 682.
Suit under 46 USCS Appx § 688 was governed by limitation provision of 45 USCS § 56, and state savings provision was inapplicable to toll federal statute of limitations. Izquierdo v Cities Service Oil Co. (1965) 47 Misc 2d 1087, 264 NYS2d 58.
414. --Hardship and special circumstances
Delay in prosecuting suit is not necessarily ground for dismissal when plaintiff lived in distant state, was unable to afford trip to forum, and could not get in touch with his lawyer, and record proper did not show any disadvantage to defendant. Russell v Texas Transport & Terminal Co. (1929, CA2 NY) 32 F2d 689.
Running of statute of limitation, whether statute is merely procedural, or, as in cases under 46 USCS Appx § 688, substantive, is tolled by period of time libellant was prisoner of war in hands of enemy and courts were unavailable to him. Osbourne v United States (1947, CA2 NY) 164 F2d 767, 1948 AMC 121.
Delay in filing civil action under 46 USCS Appx § 688 within statutory period may be excused when occasioned by special circumstances beyond control of injured or ill seaman, and under special circumstances defendant may be estopped from asserting statute of limitations or laches as bar to prosecution of Seaman's action. Mroz v Dravo Corp. (1970, CA3 Pa), 429 F2d 1156.
Equitable tolling of 3-year Jones Act limitations period was not warranted where injured deckhand filed timely Jones Act claim in state court, defendant filed bankruptcy 3 years later, thereby staying Jones Act claim, deckhand filed proof of claim with Bankruptcy Court, which went to claims resolution procedure, deckhand voluntarily dismissed state action, and then unexplainedly delayed 14 months after failure of claims resolution procedure before filing Jones Act claim in federal court. Mamer v Apex R.E. & T. (1995, CA 8 Mo) 59 F3d 780.
415. --By filing action
Suit filed in good faith, within period of limitation, is commenced on day of filing, if service is made within reasonable time thereafter. Port v Litolff (1939, CA5 La) 103 F2d 302, 1939 AMC 607.
Owner's liability for unseaworthiness is subject to limitation; and in proceeding in matter of petition for exoneration from and limitation of liability of owner of fishing vessel which disappeared with master and crew of six, in order to protect claimants from running of statute of limitations under 46 USCS Appx § 688, claimants should be permitted to institute actions at law, but enjoined from prosecution of claims pending determination of issues in no-fund limitation proceedings. Petition of Wood (1956, CA2 NY) 230 F2d 197, 1956 AMC 547.
Earlier suit filed on claim in Southern District of New York less than 3 years after accident does not toll statute of limitations for entirely distinct action filed years later in district of Delaware. Claussen v Mene Grande Oil Co. (1960, CA3 Del) 275 F2d 108.
Federal limitation is tolled by timely filing of action in state court, which is later dismissed for improper venue even though service of process was not made within statutory period but was made within a reasonable time and defendant had notice of claim within statutory period. Maxwell v Swain (1987, CA5 La) 833 F2d 1177.
Filing of proceeding under 46 USCS Appx § 183 to limit liability does not toll limitation period under 46 USCS Appx § 688. Petition of United States (1964, ED NC) 237 F Supp 434, 1964 AMC 1725, affd (CA4 NC) 346 F2d 449, 1965 AMC 1179, cert den 382 US 878, 15 L Ed 2d 119, 86 S Ct 163.
Statute of limitations was tolled where when original suit was dismissed for lack of sufficient minimum contact between defendants and state, plaintiff immediately filed motion for reconsideration and filed his action in proper court. Reynolds v Logan Charter Service, Inc. (1983, ND Miss) 565 F Supp 84.
Where wrongful death action under 46 USCS Appx § 688 was filed one day prior to running of 3 year statute of limitations, as provided in--45 USCS § 56 by one who was not actually appointed as decedent's personal representative until one day after running of statute of limitations, such suit was barred by statute of limitations and trial court correctly sustained plea in abatement to complaint. Strickland v Mobile Towing & Wrecking Co. (1974) 293 Ala 348, 303 So 2d 98.
Suit under 46 USCS Appx § 688 was not barred where summons was handed sheriff on day before limitation period expired, even though summons was served on defendant after expiration date. Irons v Michigan-Atlantic Corp. (1951) 279 App Div 32, 108 NYS2d 824.
416. Effect of expiration on maritime remedies
After statute of limitations set out in 45 USCS § 56 has run against cause of action under 46 USCS Appx § 688, only remedy remaining to injured seaman is in admiralty. Rogosich v Union Dry Dock & Repair Co. (1933, CA3 NJ) 67 F2d 377, 1934 AMC 219.
Where plaintiff filed his claim after three-year statute of limitations had run, all rights under 46 USCS Appx § 688 were extinguished and plaintiff's only available remedy for his cause of action, which was in part grounded on right based on ancient maritime law, was in admiralty. Wounick v Pittsburgh Consolidation Coal Co. (1960, CA3 Pa) 283 F2d 325, 91 ALR2d 1411, 1961 AMC 1160, cert den 364 US 902, 5 L Ed 2d 195, 81 S Ct 234.
Seaman already barred from prosecuting negligence action under 45 USCS § 56 may not maintain action for personal injuries solely grounded upon unseaworthiness without regard to three-year limitation period incorporated by reference into 46 USCS Appx § 688 Banks v United States Lines Co. (1968, ED Va) 293 F Supp 62.
417. Amendment of complaint following expiration; as to cause of action
Cause of action originally brought under 46 USCS Appx § 688 was barred by limitations where complaint was amended after limitations had run so as to set up cause of action at common law against which state statute of limitations had run. D'Allesandro v United Marine Contracting Corp. (1928, DC NY) 30 F2d 718, 1929 AMC 77.
Where plaintiff filed action in admiralty against shipowner predicating jurisdiction upon general maritime and admiralty laws of United States, alleging he was injured due to unseaworthiness of vessel, and 4 years later, 1 week before trial, plaintiff filed amendment pleading diversity of citizenship and alleging negligence of shipowner, 3 year statute of limitations in 46 USCS Appx § 688 was not bar to any action against shipowner on negligence claim because alleged negligent acts of vessel's officers arose out of occurrence initially pleaded, and was not distinct and unrelated transaction. Williams v Shipping Corp. of India, Ltd. (1973, SD Ga) 354 F Supp 626, 17 FR Serv 525.
Since allegations of ultimate fact in original complaint were sufficient to permit recovery under 46 USCS Appx 688 complaint could be amended after statute of limitations had run to expressly state cause of action under § 688. Dowski v Merritt-Chapman & Scott Corp. (1946, Sup) 65 NYS2d 890, affd 271 App Div 874, 66 NYS2d 635.
418. --As to defendants
In 46 USCS Appx § 688 action, request to amend complaint to add defendant was allowed after period of limitations had run since action itself had been commenced within statutory period. Rademaker v E. D. Flynn Export Co. (1927, CA5 Ala) 17 F2d 15.
Although libel was filed against "Atlantic Steamship Company" three days before expiration of limitation under 45 USCS § 56 and ex parte order permitting amendment of libel changing name of respondent to "South Atlantic Steamship Co. of Delaware" was entered six days after limitation had run, suit under 46 USCS Appx § 688 was barred by extinguishment of right to sue, and result could not be waived. Kirby v South Atlantic S.S. Co. (1938, DC Del) 25 F Supp 477, 1939 AMC 90.
Mere misnomer of defendant in complaint timely filed, and actually served upon real defendant, prior to running of statute of limitations, will not prevent amendment of complaint so as to correctly name defendant after running of statute. Godfrey v Eastern Gas & Fuel Associates (1947, DC Mass) 71 F Supp 175.
419. --As to particulars
Amendment of petition after limitation period had run with respect to date of accident and particulars of negligence did not state new and different cause of action. Lykes Bros. S.S. Co. v Esteves (1937, CA5 Tex) 89 F2d 528, 1937 AMC 907.
Amendment of 46 USCS Appx § 688 complaint was allowed at opening of trial, even though amendment alleged different vessel and date of attack on plaintiff by fellow seaman than originally pleaded and though 3 year statute of limitations had run, where judge found that true facts as to time and place of assault were known to, or could have been ascertained by defendant, where judge found plaintiff had suffered from amnesia which made it difficult for him to remember true facts, and where finding was amply supported by evidence. Kelcey v Tankers Co. (1954, CA2 NY) 217 F2d 541.
In suit seeking damages for death caused by contraction of leukemia aborad ship, originally alleging exposure to hazardous substances and asbestos, amendment of complaint stripping it of allegations of asbestos exposure and adding allegations of exposure to benzene sufficiently related back to original complaint and was not barred by statute of limitations. Miller v American Heavy Lift Shipping (2000, CA6 Ohio) 231 F3d 242, 2000 FED App 384P, 2001 AMC 1126, 48 Fed Rules Serv 3d 240.
420. Waiver or estoppel of assertion of limitation period
Defendant cannot waive defense of period of limitations in 46 USCS Appx § 688 action. Atlantic C. L. Railroad v Burnette (1915) 239 US 199, 60 L Ed 226, 36 S Ct 75 (not followed Dawson Constr. Co. (EBCA) 81-2 BCA P 15162 (disagreed with by multiple cases as stated in Circle S Sales (HUD BCA) 82-1 BCA P 15678)); Oliver v Calmar S.S. Co. (1940, DC Pa) 33 F Supp 356.
Under special circumstances, defendant may be estopped from asserting statute of limitations or laches as bar to prosecution of Seaman's action under 46 USCS Appx § 688. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.
Although equitable estoppel can toll statute of limitations in action under 46 USCS Appx § 688, where there was evidence that insurance broker talked to plaintiff in general terms asking him to assemble some medical reports and bills and plaintiff was told that anytime he was ready he could get together with broker, and there was no evidence that statute of limitations was mentioned or discussed and plaintiff assured broker that there was no possibility of suit under any circumstances there was no evidence either of deceptive conduct or of reliance sufficient to warrant prohibiting limitations defense. Clauson v Smith (1987, CA1 RI) 823 F2d 660.
Where defendant, in obtaining release from plaintiff, did not misrepresent or mislead plaintiff into delaying suit, it would not be estopped from invoking applicable statute of limitations to bar plaintiff's claim under 46 USCS Appx § 688. Turner v American Dredging Co. (1976, ED Pa) 407 F Supp 1047, affd without op (CA3 Pa) 556 F2d 568.
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