342 F.2d 197 | 5th Cir. | 1965
Herbert GOODWYN, Appellant,
v.
The DREDGE GINGER ANN, Etc., and Ayers Materials Co., Inc., Appellees.
No. 21630.
United States Court of Appeals Fifth Circuit.
March 11, 1965.
James J. Morrison, New Orleans, La., for appellant.
Charles Kohlmeyer, Jr., Thomas W. Thorne, Jr., New Orleans, La., for Ayers Materials Co., Inc., Lemle & Kelleher, New Orleans, La., of counsel.
Before WISDOM and GEWIN, Circuit Judges, and BOOTLE, District Judge.
PER CURIAM:
Goodwyn appeals from the dismissal of a libel which sought, inter alia, to recover maintenance and cure and damages for failure to provide maintenance and cure. In October 1958 Goodwyn contracted poliomyelitis while employed aboard the appellee's vessel. He filed the instant suit approximately four and one-half years later, on July 29, 1963, asserting that his delay was excusable because he was unaware of his right to claim maintenance and cure from his employer. The appellee excepted to the libel on the ground of laches, pleading prejudice through probable loss of insurance protection and the unavailability of numerous witnesses. The trial court assigned written reasons for his dismissal of the suit. He drew upon the Jones Act's three-year statute of limitations as an appropriate analogy and concluded that, in light of the prejudice which had accrued to appellee, the libelant had not demonstrated a sufficient excuse for the delay in filing his claim.
Although the question of laches depends primarily on the equitable considerations of each particular case and is not to be measured strictly by the analogous limitation statute, Czaplicki v. The S.S. Hoegh Silvercloud, 351 U.S. 525, 533-534, 76 S.Ct. 946, 951-952, 100 L.Ed. 1387, 1395 (1955), invocation of the doctrine is addressed to the sound discretion of the trial court, Gardner v. Panama R. Co., 342 U.S. 29, 30-31, 72 S.Ct. 12, 13, 96 L.Ed. 31, 36 (1951); Oroz v. American President Lines, 259 F.2d 636, 640 (2 Cir. 1958), cert. denied, 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572. In view of the evidence, including the affidavits of the parties and the insurance policies in question, we cannot conclude that the trial court abused its discretion in dismissing the suit.
The judgment is affirmed.
