Joseph L. Phillips, Jr. v. Springfield Insurance Co.

Fifth Circuit

Joseph L. Phillips, Jr. v. Springfield Insurance Co.

418 F.2d 236

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 12, 1969

Docket27326_1

StatusPublished

Cited by3 cases

This text of 418 F.2d 236 (Joseph L. Phillips, Jr. v. Springfield Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Joseph L. Phillips, Jr. v. Springfield Insurance Co., 418 F.2d 236 (5th Cir. 1969).

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Opinion

PER CURIAM:

This is an appeal from a judgment dismissing, because of laches, a suit for personal injury damages brought by Phillips undér the general maritime law against Springfield Insurance Company as the P & I insurer of the tugs CAPTAIN. DALE and WML. For us to reverse this judgment we must overturn the District Court’s finding that there was inexcusable delay on the part of Phillips and prejudicial harm to Springfield. We decline to do so and affirm.

The injury complained of occurred four years and ten months prior to the filing of suit against Springfield. Phillips argues that the delay was excusable because he was unable to ascertain the identity of the tugs’ P & I insurer until that time. We are unpersuaded. By instituting suit against the tugs within a reasonable time after the injury Phillips could have readily discovered the identity of the insurer.

We need not concern ourselves with analogous statutes of limitations because we are convinced that the lapse of time resulted in prejudicial harm to Springfield. Phillips simply relied upon a naked allegation that the witnesses to the accident were alive without identifying them or making a proffer of their expected testimony. He made no showing that anyone, including himself, could prove how the collision between the vessels occurred or that he fell overboard. Neither of the tug owners recall the accident or the circumstances surrounding it. Springfield had no notice or knowledge of the alleged injury. Of course no investigation was made or records obtained concerning the accident or the injury.

Under the circumstances of this case the reason for the delay is flimsy and the prejudice to Springfield obvious. This adds up to laches. McMahon v. Pan-American World Airways, Inc. 5 Cir. 1962, 297 F.2d 268; Vega v. SS MALULA, 5 Cir. 1961, 291 F.2d 415; Morales v. Moore-McCormack Lines, 5 Cir. 1953, 208 F.2d 218.

Affirmed.

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PER CURIAM:

This is an appeal from a judgment dismissing, because of laches, a suit for personal injury damages brought by Phillips undér the general maritime law against Springfield Insurance Company as the P & I insurer of the tugs CAPTAIN. DALE and WML. For us to reverse this judgment we must overturn the District Court’s finding that there was inexcusable delay on the part of Phillips and prejudicial harm to Springfield. We decline to do so and affirm.

The injury complained of occurred four years and ten months prior to the filing of suit against Springfield. Phillips argues that the delay was excusable because he was unable to ascertain the identity of the tugs’ P & I insurer until that time. We are unpersuaded. By instituting suit against the tugs within a reasonable time after the injury Phillips could have readily discovered the identity of the insurer.

We need not concern ourselves with analogous statutes of limitations because we are convinced that the lapse of time resulted in prejudicial harm to Springfield. Phillips simply relied upon a naked allegation that the witnesses to the accident were alive without identifying them or making a proffer of their expected testimony. He made no showing that anyone, including himself, could prove how the collision between the vessels occurred or that he fell overboard. Neither of the tug owners recall the accident or the circumstances surrounding it. Springfield had no notice or knowledge of the alleged injury. Of course no investigation was made or records obtained concerning the accident or the injury.

Under the circumstances of this case the reason for the delay is flimsy and the prejudice to Springfield obvious. This adds up to laches. McMahon v. Pan-American World Airways, Inc. 5 Cir. 1962, 297 F.2d 268; Vega v. SS MALULA, 5 Cir. 1961, 291 F.2d 415; Morales v. Moore-McCormack Lines, 5 Cir. 1953, 208 F.2d 218.

Affirmed.

The Dow Chemical Company, Libelant-Appellee and Cross v. The Barge Um-23b, Its Tackle, Apparel, Etc., and the Barge Bc-598, Its Tackle, Apparel, Etc., in Rem, and Bartlett & Company, Missouri River Barge Lines, Inc., Cargo Carriers, Inc., Upper Mississippi Towing Corporation, and Two Twenty-Eight Terminal Services, Inc., in Personam, Respondents-Respondents Impleader-Cross Cargo Carriers, Inc., Respondent-Third Party v. Two Twenty-Eight Terminal Services, Inc., and Insurance Company of North America, Third Party Defendants-Appellants-Cross

424 F.2d 307 (Third Circuit, 1970)

Dow Chemical Co. v. The Barge UM-23B

424 F.2d 307 (Fifth Circuit, 1970)

Jimmie C. Byrd v. The M/v Yozgat, Defendant-Third Party Pensacola Stevedoring Company, Third-Party

420 F.2d 954 (Third Circuit, 1969)

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