Petition — Sanchez v. Loffland Bros.
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Wilice- Supreme Court, US.
FILED
APR 8 1981
XANDein L. STEVAS,
CLERK
Supreme Court of the United States
OCTOBER TERM, 1980
NO.
== RAMON SANCHEZ amt AIDA SANCHEZ,
Individually per As Representative And Administratrix
Of The Children And Estate Of
HELI RAMON SANCHEZ, DECEASED,
Petitioners
V.
LOFFLAND BROTHERS COMPANY, LOFFLAND
BROTHERS DE VENEZUELA, C.A.,
LOFFLAND BROTHERS DE VENEZUELA, INC.,
LOFFLAND BROTHERS OF CANADA, INC.
and MID-CONTINENT SUPPLY COMPANY,
Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BENTON MUSSLEWHITE
3506 Travis Street
Houston, Texas 77002
(713) 520-0621
COUNSEL FOR PETITIONERS
Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002
I
IN THE
Supreme Court of the Hnited States
OCTOBER TERM, 1980
NO.
HELI RAMON SANCHEZ and AIDA SANCHEZ,
Individually And As Representative And Administratrix
Of The Children And Estate Of
HELI RAMON SANCHEZ, DECEASED,
Petitioners
V.
LOFFLAND BROTHERS COMPANY, LOFFLAND
BROTHERS DE VENEZUELA, C.A.,
LOFFLAND BROTHERS DE VENEZUELA, INC.,
LOFFLAND BROTHERS OF CANADA, INC.
and MID-CONTINENT SUPPLY COMPANY,
Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR’ THE FIFTH CIRCUIT
The Petitioners, Heli Ramon Sanchez and Aida San-
chez, individually and as representative and administra-
trix of the children and estate of Heli Ramon Sanchez,
deceased, pray that a writ of certiorari to review the
opinion and judgment of the United States Court of
Appeals, Fifth Circuit, rendered in these proceedings on
October 1, 1980, be granted.
II
QUESTIONS PRESENTED FOR REVIEW
1. Whether the estate of a Jones Act’ seaman, fatally
injured outside the territorial waters of the United States,
has, coextensive with its Jones Act cause of action, a
Moragne’® general maritime law death action available
to it.
2. Whether the C.rcuit Court’s holding that, despite
the fact decedent was a Jones Act seaman, the “Higgin-
botham’ rationale compels the application of the DOHSA*‘
statute of limitations in undiluted force to a wrongful
death claim under general maritime law which arises
outside the United States territorial waters”, was correct
in the face of the import of Moragne, which created a
remedy under the general maritime law for wrongful
death and provided that such remedy should “share the
doctrine of laches immemorially applied to admiralty
claims”; the dicta in American Export Lines, Inc. v.
Alvez,*® wherein the Court stated that it does not “read the
Jones Act as sweeping aside general maritime law reme-
dies”; and a second circuit decision, Public Administra-
tion of the County of New York v. Angela Compania
Naviera, S.A.,° which directly held that the estate of a
Jones Act seaman, whose death occurs outside the terri-
torial waters of the United States, may sue under the .
general maritime law, with such claim being subject only
to laches.
1. 46 U.S.C. 688.
2. 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).
3. Mobil Oil v. Higginbotham, 436 U.S. 618, 56 L.Ed.2d 581,
98 S.Ct. 2010 (1978).
4. 46 U.S.C. 761, et seq.
S. US. , 64 L.Ed.2d 284, 100 S.Ct. 1673.
6. 592 F.2d 58 (2nd Cir., 1979).
Il
3. Whether the Circuit Court’s holding that laches
barred Petitioners’ claim was erroneous and contrary to
Czaplicki v. The Hoegh Silvercloud,’ in view of the un-
disputed procedural facts that the Respondents did not
plead laches in the District Court; that none of the
Respondents urged laches as grounds for motion to dismiss
or summary judgment but, instead, expressly stated that
the laches issue was not before the District Court at that
time; that the District Court limited factual discovery to
the issue of equitable estoppel only, precluding discovery
as to any other fact issue such as laches; and that the
District Court did not even consider or pass upon the
question of laches.
4. Whether the Circuit Court’s holding that as a matter
of law the Petitioners were barred by laches was contrary
to the record, particularly in view of the fact that Re-
spondents failed to rebut, with any evidence, the allega-
tions of Petitioners of excusable delay and absence of
prejudicial harm.
5. Whether the Circuit Court’s holding that the record
did not establish a fact question on the issue of equitable
estoppel was erroneous, particularly in view of the Circuit
Court’s erroneous approach, also employed by the District
Court, of extracting from the record the testimony most
favorable to the proponents of the summary judgment and
in limiting the application of the equitable estoppel doc-
trine to far narrower parameters than suggested in Glus v.
Brooklyn Eastern District® and all other extant relevant
decisions.
7. 351 US. 525, 100 L.Ed.2d 1387, 76 S.Ct. 946 (1956).
8. 359 US. 232, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959).
IV
6. Whether the Circuit Court erred in refusing to fol-
low Camerlin v. New York Central Railway Company,°
Wittlin v. Giacalone,*® Semaan v. Mumford,” and Adams
v. The United States’ to the effect that “if a witness has
made an affidavit and his deposition has also been taken,
and the two in some way conflict, the Court may not
exclude the affidavit from consideration in the determin-
ation of the question of whether there is any genuine issue
as to any material facts”, the Circuit Court thereby re-
fusing to consider the affidavits of Ms. Sanchez’ brother
and son for the alleged reason that such affidavidts were
contrary to deposition testimony of Ms. Sanchez.
9. 199 F.2d 698 (ist Cir. 1952).
10. 154 F.2d 20 (Ct. of App. D.C., 1946).
11. 335 F.2d 704 (Ct. of App., 1964).
12. 92 F.Supp. 1272 (U.S.D.C., E.D. Wis., 1975).
Vv
LIST OF ALL PARTIES TO THE PROCEEDING
IN THE DISTRICT COURT AND
CIRCUIT COURT
Petitioner Aida Sanchez, Individually and as Repre-
sentative of the Estate of Heli Sanchez, Deceased;
Petitioner children of Heli Sanchez, Deceased:
Eli Ramon Sanchez
Jose Rafael Sanchez
Omer Antonio Sanchez
Jose Gregorio Sanchez
Loly Marine Sanchez Cordozo
Carmen Elena Sanchez Cordozo
Heli Ramon Sanchez
Neliza Coromoto Sanchez Cordozo
Eneida Margot Sanchez Cordozo
Loffland Brothers Company, Respondent
Loffland Brothers de Venezuela, C.A., Respondent
Loffland Brothers de Venezuela, Inc., Respondent
Loffland Brothers of Canada, Inc., Respondent
Mid-Continent Supply Company, Respondent
VI
SUBJECT INDEX
QUESTIONS PRESENTED FOR REVIEW ...........
LIST OF ALL PARTIES TO THE PROCEEDING IN
THE DISTRICT COURT AND CIRCUIT COURT ...
ne wee ce
EE
REFERENCE TO OFFICIAL AND UNOFFICIAL RE-
PORTS OF OPINIONS DELIVERED BY COURTS
GR Sada be WEEl bes sd ccsosbesaswocescoccswases
GROUNDS ON WHICH THE JURISDICTION OF THIS
ere Pere Te eee eee
STATUTES AND RULES WHICH THIS CASE IN-
i ECS oe ne eee ee ere
STATEMENT OF THE CASE .......cccccccscccecces
A. Course of Proceedings Below ...................
B. Factual Evidence Relating To Question Of Equitable
cat cou wh subiases cav'ecsedocesess
C. Basis For Federal Jurisdiction In The District
ak el a 0s as dy ble dulle'n.av.o.ee.0as.0>
ARGUMENT AND REASONS FOR ISSUANCE OF
Te te Pn G ce aWeN reson ee Ce beseheshiesecoocee
I. The Court of Appeals’ holding that Higginbotham
extends to the estate of Jones Act seaman fatally in-
jured outside the territorial waters of the United
States has far reaching consequences and because
such holding directly contradicts a decision of the
second circuit, is contrary to the rationale of Mor-
agne, Gaudet, Higginbotham and Alvez, when all
are construed together, and so far departs from an
accepted course of judicial interpretation, the exer-
cise of this Court’s power of review is called for. ...
II. The action of the Court of Appeals in considering
the question of laches, which was not raised by the
Respondents in the District Court and not considered
by the District Court, is in direct contravention of
this Court’s ruling in Czaplicki and really is so far
of a departure from accepted and usual course of
judicial proceedings as to call for the exercise of this
EE eS
16
III. Regardless of the procedural improprieties, the Court
of Appeals’ holding that the record justified a finding
in favor of Respondents on the question of laches,
as a matter of law, is just as much a departure from
“accepted and usual course of judicial proceedings”,
calling for an exercise of this Court’s power of re-
view, as the Court of Appeals’ consideration of the
question of laches in the first place. ..............
IV. The Court of Appeals’ narrow and restrictive ap-
proach to the doctrine of equitable estoppel, and its
holding that a fact question did not exist in this case
with respect to such doctrine, are so contrary to the
rationale and factual holdings of previous decisions
of this Court and decisions of numerous other circuit
courts, including the Fifth Circuit, that such holding
constitutes a departure so far from the accepted and
usual course of judicial proceedings as to call for
this Court to exercise its power of review. ........
CONCLUSION AND PRAYER ................c0eeee
CARR Ae RU Me UR VIE ccc ccc ccccciscedovees
APPENDIX 1—Opinion and Judgment of the United States
District Court for the Southern District of Texas, Hous-
CSC co. VER es GUN e ss any ck chavebe bosicecs
APPENDIX 2A—Judgment of the United States Court of
Oe SO OE a kc is dee evened db ec
APPENDIX 2B—Opinion of the United States Court of
Mapes Tor She. Pitt Clrcwlt aces ie he ciiedsccccscas
APPENDIX 3—Order of the United States Court of Ap-
peals for the Fifth Circuit Denying Petitioners’ Petition
for Rehearing and Rehearing En Banc ...............
APPENDIX 4A—46 U\S.C. § 688 .......... ccc cece eeee
APPENDIX 4B—45 U.S.C. $56 ........ cc cccceeccees
APPENDIA 446 USC. $761 20.6 visi ccccccccccccs
APPENDIX 4D—46 U\S.C. § 763 .......... ccc ccecceee
APPENDIX 4E—Rule 8(c), Federal Rules of Civil Pro-
PRET 88 oo oe eng Sa a ee ge
NS ok Pathan ucad 6 os ¥ebedink UDERUSC ES i cbc c'e Cenk
Page
17
° Vu
LIST OF AUTHORITIES
CASES Page
Adams v. The United States, 92 F.Supp. 1272 (U.S.D.C.,
Et Ss RN Sb bins 65's 60d 55 00 br Seb enh ese eee sp Iv, 21, 25
Adickes v. S. H. Kress & Co., 90 S.Ct. 1598, 398 USS.
ee SO ae CROP Odds ce. cuWesberesecacesess 26
Akers v. State Marine Lines, Inc., 344 F.2d 217 (Sth Cir.
TPES Gi eh iste hea Fbee ees cdh se cvccctisecsdibavede 17
American Export Lines, Inc. v. Alvez, US. , 64
L.Ed.2d 284, 100 S.Ct. DUE Ge a tedeancken 11, 9, 11, "12, 13, 14, 15
Barrios v. Nelda Faye, Inc., 597 F.2d 881 (Sth Cir. 1979) 19
Begnaud v. White, 170 F.2d 323 (6th Cir. 1940) ........ 24
Bomba v. W. L. Belvidere, Inc., 579 F.2d 1067 (7th Cir.
RCA RBRES irs SHIA gah GER SE RS a 23, 24
Brown v. State Farm Mutual Automobile Casualty Insur-
ance Company, 506 F.2d 976 (Sth Cir. 1975) ........ 24
Burke v. Gateway Clipper, Inc., 441 F.2d 946 (3rd Cir.
ONE Ry AIRC capt 2 FRE AES A Ee 22
Camerlin v. New York Central Railway Company, 199 F.2d
ee SO ME eres ket CUM EN DO eee) ewesceecae ss Iv, 21, 25
Crews v. Arundel Corp., 386 F.2d 528 (Sth Cir. 1967) .... 17
Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 100 L.Ed.
ET ES OR Ta aaa mt, 16, 17
Doyle v. Albatross Tanker Corp., 367 F.2d 465 (CA 2nd
pin ah a i 13, 14, 15
Ecology Center of Louisiana v. Coleman, 515 F.2d 860
ee ah ua’ ela b's a bahia Gh advil des évesteces 17
Fidelity & Casualty of New York v. C/B Mr. Kim, 345
a a aike cog ve bee's eubaedec 17
Financial Systems Leasing Corporation v. Pugh, 530 F.2d
B&B PRE nee are 16
Flowers v. Savannah Machine & Foundry Company, 310
Oe Con CE es. ch ccidhn doc ydncentecee ve 17
Gardner v. Panama Railway Company, 342 U.S. 29, 96
ee hy CERT EOUED wi vans cc bvccchccceeicscs 17
Gillespie v. United States Steel Corp., 379 U.S. 148, 13
L.e.20 196, 85 SCC. SOB (1964) once ccccccscccess 14
Glus v. Brooklyn Eastern District, 359 U.S. 232, 79 S.Ct.
Fy © Ree Oe EOE no ka cnn dnccbadcedccceces m1, 22
Kelly v. Smith, 485 F.2d 520 (Sth Cir. 1973) ........... 17
Kernan v. American Dredging Co., 355 U.S. 426 n.4, 2
L.Ed.2d 382, 387, 78 S.Ct. 394 (1958) .............. 14,15
Larios v. Victory Carriers, Inc., 316 F.2d 62 (2nd Cir.
Gis 6 Seth 0 stun bobs OPS6s oes SOUS ti wed babes base 17,18
x
CASES Page
OE | BSE RO SOY A 22, 23
Loudermilk. v. Fidelity and Casualty Company, 199 F.2d
et | Ee ea 22
Louisville and Nashville Railroad Company v. Disspain, 275
of 2. 9 ESS sie igen aa 23
cAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78
S.Ct. 1201, 2 L.Ed.2d 1272 (1958) ................. 13, 14
McDaniel v. Gulf & South American SS Company, 228 F.2d
5 SS Rr ee 17
McMahon v. Pan American World Airways, 297 F.2d 268
Se ee Ree MEC OR
Mobil Oil v. Higginbotham, 436 U.S. 618, 56 L.Ed.2d 581,
Ges... . —- eet 11, +,9, 10, 11, 13, 14
Molnar v. Gulf Coast Transit, 371 F.2d 639 (5th Cir. 1967) 17
Moragne, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339
(TUUGR: sce ccuaste ete ec... 11, 5,9, 10, 13, 14, 15
Pfau v. Whitcover, 139 F.2d 588 (4th Cir. A 16
Poller v. Columbia Broadcasting System, 360 U.S. 464, 82
S.Ct. 46, 7 L.Ed.2d 458 (1962) .................... 22, 26
Powell v. City of Key West, Florida, 434 F.2d 1075 (Sth
Ny as ee 17
Public Administration of the County of New York v. Angela
Compania Naviera, S.A., 592 F.2d 58 (2nd Cir., 1979). .1v, 9, 13, 16
Scarborough v. Atlantic Coast Line Railroad Company, 178
F.2d 253 (4th Cir. 1949) cert. denied, 339 U.S. 919, 70
le Sy ee Se 23
Schroeder v. Young, 161 U.S. 334, 40 L.Ed.2d 721, 16
ooh EES SE a a 22
Sea-Land Services, Inc. v. Gaudet, 414 U.S 573, 39 L.Ed.
wdin be | . ,. SS \° eet 9
York, 402 F.2d 893 (4th Cir. 1968) ................. 23
United States v. Reliance Insurance Company, 436 F.2d
Sone CO 23
United States for Use and Benefit of Nolan Company v.
Wood, 99 F.2d 80 (4th Cir. 1938) ................ 23
Watz v. Zapata Offshore Company, 431 F.2d 100 (Sth Cir.
acy MO i SES Te ee 17,19
xX
UNITED STATES STATUTES
TEXTS
Moore’s Federal Practice, Vol. 6, § 56.15(4), p. 56-522 ...
Moore’s Federal Practice § 56.17(21) ..........eeeeeees
17
21
24
Supreme Court of the Hnited States
OCTOBER TERM, 1980
NO.
HELI RAMON SANCHEZ and AIDA SANCHEZ,
Individually And As Representative And Administratrix
Of The Children And Estate Of
HELI RAMON SANCHEZ, DECEASED,
Petitioners
Vv.
LOFFLAND BROTHERS COMPANY, LOFFLAND
BROTHERS DE VENEZUELA, ..A..,
LOFFLAND BROTHERS DE VENEZUELA, INC.,
LOFFLAND BROTHERS OF CANADA, INC.
and MID-CONTINENT SUPPLY COMPANY,
Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
REFERENCE TO OFFICIAL AND UNOFFICIAL
REPORTS OF OPINIONS DELIVERED
BY COURTS BELOW
1. The opinion of the District Court was delivered the
20th day of December, 1979, Cause No. H-77-1198, in
*%
2
the United States District Court for the Southern District
of Texas, Houston Division (unreported). The judgment
of the District Court is attached hereto as Appendix 1.
2. The judgment and opinion of the United States
Court of Appeals for the Fifth Circuit, dated the Ist day
of October, 1980 is reported in 626 F.2d 1228 (Sth Cir.
1980); Civil Action No. 80-1025, United States Court of
Appeals for the Fifth Circuit. The judgment and opinion
of the United States Court of Appeals, Fifth Circuit, are
attached hereto as Appendices 2A and 2B.
3. The order of the United States Court of Appeals,
Fifth Circuit, denying Petitioners’ Petition for Rehearing
and Rehearing En Banc is dated the 8th day of January,
1981. Said order is attached hereto as Appendix 3.
GROUNDS ON WHICH THE JURISDICTION
OF THIS COURT IS INVOKED
The judgment of the Court of Appeals (Appendix 2)
was entered on October 1, 1980. A timely petition for
rehearing and rehearing en banc was denied on January
8, 1981 (Appendix 3). The jurisdiction of this Court is
invoked nder 28 U.S.C. § 1254(1).
STATUTES AND RULES WHICH
THIS CASE INVOLVES
1. This case involves an interpretation of the Jones
Act, 46 U.S.C. § 688, and related provisions of the
Federal Employers Liability Act, 45 U.S.C. § 56; the
Death on the High Seas Act, 46 U.S.C. 761, and 46
U.S.C. § 763; Rule 8(c) of the Federal Rules of Civil
Procedure and Rule 56 of the Federal Rules of Civil
Procedure. These are reprinted in pertinent part as Ap-
pendices 4A-4F to this Petition.
3
STATEMENT OF THE CASE
A. Course of Proceedings Below
Petitioners filed suit on July 27, 1977 and, by their
original and amended complaint, alleged that on February
3, 1974 the decedent, Heli Ramon Sanchez, while work-
ing as a seaman aboard a vessel owned and operated by
the Respondents, sustained fatal injuries outside the terri-
torial waters of the United States, as a result of the
negligence of the Respondents and the unseaworthiness
of the vessel; the Petitioners asserted a cause of action
under both the Jones Act and the general maritime law
(Rec. 1-5, 100-110). The Respondent Loffland Brothers
filed a motion to dismiss in response to Petitioners’ ori-
ginal complaint, asserting that the Petitioners cause of
action was barred by the two-year Death on the High
Seas Act statute of limitation and/or the three-year Jones
Act statute of limitation (Rec. 54-59). In response to
Respondents’ Motion to Dismiss, Petitioners, in their
amended complaint, asserted that only laches would bar
their general maritime law cause of action and expressly
alleged that laches would not apply because “Defendants
have not been prejudiced by the very brief delay in bring-
ing this suit... .” (Rec. 108 and 107). Petitioners further
asserted the doctrine of equitable estoppel, alleging that
the Petitioners delayed filing suit because of the representa-
tions and conduct of the Respondents’ agents and repre-
sentatives (Rec. 107 and 109).
Thereafter, the District Court entered an order limiting
all discovery “to the area of equitable estoppel” (Rec.
99). The depositions of Mrs. Sanchez and two Loffland
employees, Sevilliano and Lujan, (see depositions) were
thence taken and affidavits of the decedent’s son and
brother-in-law were filed by Petitioners (Rec. 164, 166).
4
Respondent Loffland filed its answers to Petitioners’ in-
terrogatories, admitting that they had notice of the acci-
dent and Petitioners’ potential claim on February 7, 1974
(Rec. 34) and Respondents’ agent, Lujan, testified on
deposition that he thence investigated the accident on
behalf of Respondents (Depo. 15, 16). Thereafter, the
Loffland Respondents filed their Motion for Summary
Judgment, again only contending that Petitioners’
causes of action were barred by the DOHSA and
Jones Act statutes of limitation and again failing to as-
sert laches as a defense (Rec. 125-136). The Loff-
land Respondents, in a supplemental response, stated:
“Initially, Plaintiffs’ counsel considers the doctrine of
laches and discusses it at length. This doctrine, how-
ever, is not urged at this time by Defendants for it is clear
that the statutes of limitation are the controlling factors
insofar as suit time in this context is concerned.” (Rec.
169, emphasis ours). The only other Respondent, Mid-
Continent Supply Company, filed a motion for summary
judgment solely on the ground that Petitioners’ causes
of action were barred by the statutes of limitations (Rec.
181).
The Respondents offered absolutely no evidence to
show any prejudicial harm resulting from the filing of the
suit three years and six months after the date of accident
(see entire record). The District Court, in granting sum-
mary judgment for all Respondents, clearly confined its
consideration and decision solely to the issue presented:
whether the statute of limitations of DOHSA and/or
the Jones Act barred the suits; the issue of laches was
neither considered nor decided (Rec. 190-195).
The Court of Appeals agreed with the District Court
that Higginbotham extended to the estates of Jones Act
5
seaman suffering wrongful death outside the territorial
waters of the United States and, by necessary implication,
held that such estates did not have a Moragne death
action available to them. Therefore, said the Circuit
Court, the Petitioners cause of action was barred by the
DOHSA statute of limitations (See Appendix 2). The
Court of Appeals also agreed with the narrow applica-
tion given the doctrine of equitable estoppel by the Dis-
trict Court and in so doing agreed with the District
Court’s refusal to consider the affidavit evidence of the
son and brother-in-law of the decedent on the theory that
such evidence contradicted the deposition testimony of
the widow. But the Court of Appeals did not stop there.
Astoundingly, although the Respondents had not raised
the issues of laches in the District Court and the District
Court did not consider the issue, the Court of Appeals
took it upon itself to hold that the Respondents, who
had offered no evidence on the matter, had as a matter
of law established the defense of laches.
B. Factual Evidence Relating To Question
Of Equitable Estoppel
In support of their allegations of equitable estoppel
the Petitioners relied upon the deposition of Mrs. San-
chez and the affidavits of the decedent’s son and brother-
in-law. Mrs. Aida Sanchez testified on deposition that
she was the widow of the decedent and that they had had
eight children (Depo. 6); that during decedent’s life he
had only worked for oil companies, including Loffland
Brothers and Delta Drilling (Depo. 8-10); that she
first heard from a representative of the company five
days after her husband’s death when Mr. Lujan of
“Loffland” came to see her with papers (Depo. 22-24);
6
that all discussions with Mr. Lujan took place in the
presence of her son, Ramon Sanchez, her brother, Even
Cardozo, her husband’s cousin, Lusano, and her daughters,
Carmen and Melissa (Depo. 25-26, 27, 45, 47); that
Lujan told her that she should sign the papers because
“this was all the claims that my husband had with the
company, that it included two paychecks, one that they
had always held back and the one that was due as of the
last day that he worked for them, and the day of the
accident . . . that this was all that I could claim but that
my children would not be left alone, that the company
would help us, that my son could work . . . that they
were going to help him (my son) study .. . that they
vould probably send him to the United States so that he
could specialize in a course with English . . . that they
would help me in all ways . . . when I signed the paper
he (Lujan) told me I had nothing else to claim of Loff-
land Company, that the company was going to offer help,
that they were going to hire my son and they were going
to offer me help for me and for my children . . . that
that was all that the company owed me and I had nothing
else to claim ... I trusted in him (Lujan), and in Loff-
land... .” (Depo. 27, 28, 69, 80, 81); that in reliance
upon all of these statements and others that she only then
signed the papers, accepted the money, and because of
the representations of Lujan she did not go to see a
lawyer or seek any other help or advice about her legal
rights or remedies (Depo. 29, 30, 31, 32); that she con-
tinued believing Lujan until finding out that she might
have other rights (thence she immediately filed this suit
in the U.S.) (Depo. 34, 35); that her son did indeed get
a job seventeen days after her husband’s death (Depo.
32); that later on she went to see Mr. Sevilliano after she
heard that Loffland might let some of the employees off and
7
he “told me not to worry (about my son’s job), that as
long as Loffland had work in Venezuela, that my son
would work for the company .. . at that time I believed
in Loffland even more” (Depo. 32, 33); that she believed
and relied upon Lujan’s statement that she had no other
claims (Depo. 35); and she believed the representations
of Lujan and Sevilliano that the company would take care
of her and her son (Depo. 36); she stated that “J didn’t
look for any other lawyer because I believed in what the
people at Loffland who went to my house had said... .”
(Depo. 39). Mrs. Sanchez testified further that she had
never had an attorney before hiring her Venezuelan at-
torney who immediately arranged the filing of this suit in
the United States (Depo. 57).
Mrs. Sanchez had only a fourth grade education and
testified she was forced to leave school in the fourth grade
because “my head hurt” (Mrs. Sanchez’ depo. p. 73).
She testified how very dependent she had been upon her
deceased husband (Depo. 13) and felt so “bad” about
his death at the time of her crucial conversation with
Lujan that “I could not be alone” (Depo. 51). She testi-
fied through an interpreter (Depo. 4), got upset during
the deposition (Depo. 71) and was susceptible to being
easily led by Defendant’s attorney (e.g., p. 44 where she
stated that Lujan worked for “Loffland Brothers Com-
pany” and then was immediately led to say “Loffland
Brothers de Venezuela, C.A.”). @
Mrs. Sanchez’ son, Heli Ramon Sanchez, swore by
affidavit that he was present during the Lujan conversa-
tion with his mother and corroborated her testimony
about what transpired and expressly noted that Lujan
“also told my mother that it was preferable to always be
in agreement with Loffland, because like that Loffland
8
would protect her and attend to her needs, and that it
was not convenient for her to be in opposition to the
company ... (and) that it was preferable to be in agree-
ment with Loffland, because like they would give me a
job and they would pay her what they were giving her
at that time, and that if she was not in agreement with
this payment, they could not give her anything and they
would then not give me a job.” (Rec. 164-166 and see
Appendix 5 for translation; emphasis ours. )
Mrs. Sanchez’ brother, Even Cardozo, swore by affi-
davit that he, too, was present during the Lujan con-
versation with his sister and he, too, corroborated the
testimony of Mrs. Sanchez. He pointed out that Lujan
told Mrs. Sanchez “that the best thing would be to con-
tinue with Loffland, because the company was going to
help her, and that in addition, so that she would not have
any economic problems, they were going to give a job to
the son of my sister, Heli Ramon Sanchez, as long as she
didn’t maintain any action against the company, and that
she would receive the payment . . . (and) that it was
necessary that she sign to give a job to my nephew, and
to give her the money that he had brought, because if she
didn’t sign, he would take the payment back to Loffland
and then they wouldn’t give a job to my nephew, Heli
Ramon Sanchez”. (Rec. 164-166 and Appendix 6 for
translation; emphasis ours).
C. Basis For Federal Jurisdiction In
The District Court
The jurisdiction of the District Court was sought by
Petitioners under the Jones Act and Death on the High
Seas Act, both federal statutes, and the general maritime
law of the United States.
9
ARGUMENT AND REASONS FOR
ISSUANCE OF WRIT
I.
The Court of Appeals’ holding that Higginbotham
extends to the estate of Jones Act seaman fatally
injured outside the territorial waters of the United
States has far reaching consequences and because
such holding directly contradicts a decision of the
second circuit, is contrary to the rationale of Mor-
agne, Gaudet,” Higginbotham and Alvez, when all
are construed together, and so far departs from an
accepted course of judicial interpretation, the exer-
cise of this Court’s power of review is called for.
The Court of Appeals’ holding that the Plaintiffs’ claim
is barred by the DOHSA two-year statute of limitation
rests on the premise that Higginbotham precludes the
availability of the general maritime law to the estate of
a Jones Act seaman involved in a fatal accident outside
the territorial waters of the United States, just as much
as it precludes the availability of the remedy to the estate
of non-seamen in such circumstances. But this Court, in
dicta in Alvez, stated that it “did not read the Jones Act
as sweeping aside general maritime law remedies”, and
in making that statement the Court did not expressly
make its application dependent upon the location of the
accident. The import of the Court’s language in Alvez
corroborates the express holding of the second circuit,
reached prior to Alvez, in Naviera. In that case, the court
thoroughly analyzed Moragne, Gaudet and Higginbotham
and concluded, in direct contradiction to the holding of
12a. Sea-Land Services, Inc. v. Gaudet, 414 U.S, 573, 39 L.Ed.2d
9, 94 S.Ct. 806 (1974) at p. 577.
10
the Court of Appeals in this case, that “when a death is
caused outside territorial waters (to a Jones Act seaman),
and when a wrongful death action is brought under the
general maritime law . . . (such) general maritime law
cause of action is . . . available to plaintiffs’, and the
timeliness of such action “is to be determined under the
doctrine of laches” (citing Moragne, 592 F.2d at p. 63).
Indeed, the legislative history of the Jones Act makes
_ it quite clear, by its silence on the matter, as well as im-
plications from statements contained in the committee
reports and other legislative history, that Congress, when
it enacted the Jones Act, did not intend to preempt
the general maritime law remedy. There is absolutely
nothing in the legislative history of the Jones Act or past
judicial precedent, except possibly Higginbotham, which
would justify the harsh and narrow attitude taken by the
District Court and the Court of Appeals in this case to-
ward seaman’s rights. Where in the legislative history or
past judicial precedence is there any justification for the
construction that the Jones Act precludes the availability
of the general maritime law remedy to the estate of a sea-
man killed outside the territorial waters of the United
States but does not preclude the availability of the general
maritime law remedy to a seaman only injured outside
the territorial waters of the United States? Where in the
legislative history of the Jones Act or judicial precedence
is there any justification for a construction that Congress
intended to provide the general maritime law remedy to
the estate of a Jones Act seaman killed within the terri-
torial waters of the United States but not to the estate
of a Jones Act seaman killed outside the territorial waters
of the United States? Where in the legislative history of
the Jones Act or judicial precedence is there any justifica-
11
tion for the view that the estate of a Jones Act seaman
fatally injured outside the territorial waters of the United
States can sue under the Jones Act and DOHSA but not
under the Jones Act and the general maritime law?
The only answer to these questions given by the Re-
spondents, the District Court and the Court of Appeals
is Higginbotham. But, let us look at what this very Court
said about Higginboiham in Alvez:
“To be sure, Mobil Oil Corp. vy. Higginbotham,
supra, construed DOHSA to forbid general maritime
law supplementation of the elements of compensa-
tion for which the Act provides, But Higginbotham
never intimated that the preclusive effect of DOHSA
extends beyond the statute’s ambit.” (___U.S. at p.
——; 64 L.Ed.2d at p. 291; 100 S.Ct. at p. 1678).
The Court then observed, with language that was dicta
to the case at hand in Alvez, but, we submit, significantly
relevant to the question here, thus:
“. . . Nor do we read the Jones Act as sweeping aside
general maritime law remedies. . . . Furthermore, the
Jones Act lacks such preclusive effect even with
respect to true seamen; .. . Apart from the question
of statutory pre-emption, the liability schemes in-
corporated in DOHSA and the Jones Act should not
be accorded overwhelming analogical weight in for-
mulating remedies under general maritime law. The
two statutes were enacted within days to address
related problems—yet they are ‘hopelessly inconsist-
ent with each other.’ Gilmore & Black, supra, at 359;
see id., at 360-367. The Jones Act itself was not the
product of careful drafting or attentive legislative
review, id., at 277, 327; assuming that the statute
bars damages for loss of society, it does so solely
by virtue of judicial interpretation of the Federal
Employers’ Liability Act, 45 USC §§ 51 et seq. [45
iv
ie
12
USCS §§ 51 et seq.], which was incorporated into
the Jones Act, see e.g., Ivy v. Security Barge Lines,
606 F.2d 524, 526 (CAS 1979) (en banc), cert.
pending, No. 79-1228. Thus, a remedial omission in
the Jones Act is not evidence of considered congres-
sional policymaking that should command our ad-
herence in analogous contexts. And we have already
indicated that ‘no intention appears that the [Death
on the High Seas Act] have the effect of foreclosing
any nonstatutory federal remedies that might be
found appropriate to effectuate the policies of general
maritime law.’ Moragne, supra, at 400, 26 L.Ed.2d
339, 90 S.Ct. 1771; Gaudet, Supra, 414 US., at 588,
n.22, 39 L.Ed.2d 9, 94 S.Ct. 806.” (___US. at pp.
____; 64 L.Ed.2d at p. 292; 100 S.Ct. at pp. 1678,
1679).
Moreover, since there is nothing in the express langu-
age of the Jones Act, nor, as we stated above, in its legis-
lative history, which would even suggest that it was in-
tended to preclude the general maritime law remedy from
estates of Jones Act seamen fatally injured outside the
territorial waters of the United States, the general rule of
statutory construction applied in Alvez becomes applic-
able here:
“.. . But it is a settled canon of maritime jurispru-
dence that ‘it better becomes the humane and liberal
character of proceedings in admiralty to give than
to withhold the remedy, when not required to with-
hold it by established and inflexible rules.’ .. .
Plainly, neither statute (Longshore and Harbor
Workers Act’”? and Jones Act) embodies an es-
tablished and inflexible rule here foreclosing recog-
nition of a claim for loss of society by judicially
crafted general maritime law.” (____US. at p.___;
64 L.Ed.2d at p. 291; 100 S.Ct. at pp. 1677, 1678).
12b. 33 U.S.C. 901, et seq.
13
The second circuit, in Naviera, in a decision ante-
dating this Court’s language in Alvez, wisely anticipated
the course we believe this Court set for itself in Alvez.
The Court of Appeals in this case concedes that its de-
cision is in direct conflict with the second circuit’s decision
in Naviera (see Appendix 2). We of course agree with
Naviera’s holding that the estate of a Jones Act seaman
fatally injured outside the territorial waters of the United
States has a general maritime law remedy barred culy by
laches but we believe this Court will, and should, follow the
implications of McAllister v. Magnolia Petroleam Co.
and hold that the Jones Act three-year limitation period
should be the analogous statute for the purposes of de-
termining laches.**
It is from the point of departure of McAllister and
Doyle,“ which were not overruled by Higginbotham, that
the vital importance of the Court's granting certiorari in
this case becomes apparent. The Court must face the
ultimate decision of whether the estate of a Jones Act
seaman, fatally injured outside the territorial waters of
the United States, has a Moragne general maritime law
death claim coextensive with the Jones Act claim or whether
it is relegated to the inhospitable and narrow confines
of DOHSA? We urge the former, the fifth circuit chose
the latter, and the second circuit fell somewhere in be-
tween. Judicial confusion and uncertainty will continue
if this Court does not resolve the question,
13. 357 US. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958).
13a. In Naviera, the Court held that the two year DOHSA statute
of limitation was the analogous period for determining the applic-
ability of laches to a general maritime law death claim.
14. Doyle v. Albatross Tanker Corp., 367 F.2d 465 (CA 2nd
Cir. 1966).
14
The answer can be found, we believe, in Moragne,
whose immortality was clearly reaffirmed, after Higgin-
botham, by the Court in Alvez. This Court stated in
Moragne:
“.. The ruling (in Gillespie v. United States Steel
Corp.)'* thus does not disturb the seaman’s rights
under general maritime law, existing alongside his
Jones Act claim, to sue his employer for injuries
caused by unseaworthiness, see McAllister v. Mag-
nolia Petroleum Co., 357 U.S. 221, 2 L.Ed.2d 1272,
78 S.Ct. 1201 (1958), or for death on the high
seas caused by unseaworthiness, see Kernan v.
American Dredging Co., 355 U.S. 426 n.4, 2 L.Ed.
2d 382, 387, 78 S.Ct. 394 (1958); Doyle v. Alba-
tross Tanker Corp., 367 F.2d 465 (CA2d Cir.
1966); cf. Pope & Talbot, Inc. v. Hawn, 346 US.
406, 98 L.Ed. 143, 74 S.Ct. 202 (1953). Likewise,
the remedy under general maritime law that will be
made available by our overruling today of The
Harrisburg seems to be beyond the preclusive effect
of the Jones Act as interpreted in Gillespie.” (em-
phasis ours; 398 U.S. at p. 396; 26 L.Ed.2d at p.
354; 90 S.Ct. at p. 1785).
Need we say more? We could say more by extensively
discussing pre-Moragne decisions such as McAllister v.
Magnolia Petroleum Co., supra; Kernan v. American
Dredging Co., supra and Doyle v. Albatross Tanker Corp.,
supra, but we choose only to make a few brief observa-
tions about them. In McAllister the Court stated:
“|. , Since the seaman must sue for both unsea-
worthiness and Jones Act negligence in order to
make full utilization of his remedies for personal
injury, and since that can be accomplished only in
15. 379 U.S. 148, 13 L.Ed.2d 198, 85 S.Ct. 308 (1964).
15
a single proceeding, a time limitation on the unsea-
worthiness claim effects in substance a similar limi-
tation on the right of action under the Jones Act.
Congress has provided that a seaman shall have
three years to bring his action under the Jones Act.
A state court cannot reduce that time by applying
its own statute of limitations to such an action... .
As an essential corollary of that proposition, it may
not qualify the seaman’s Jones Act right by affixing
a shorter limitation to his concurrent right of action
for unseaworthiness.” (emphasis ours; 357 U.S. at
p. 225; 78 Sup. Ct. at p. 1204).
In Kernan the Court held that the estate of Jones Act
decedent could recover under the Jones Act on grounds
other than negligence and in Doyle the court held that the
estate of a Jones Act seaman fatally injured outside the
territorial waters of the United States could, prior to
Moragne, sue under both the Jones Act, alleging negli-
gence, and DOHSA, alleging unseaworthiness. The court
pointed out pertinently that “(u)nlike the Death on
the High Seas Act the applicability of the Jones Act
is not restricted to occurrences that have taken place
farther from the shores of the United States than a marine
league . . .” (367 F.2d at p. 466). Now that we have
Moragne, we are led to the ultimate question of why
should not the estate of a Jones Act decedent, as dis-
tinguished from the estate of a non-Jones Act decedent,
be entitled, if the liberal and humane purposes of the
Jones Act are to given effect, to bring its suit under
Moragne, the more beneficial cause of action in admiralty,
then be forced to bring its suit under the less hospitable
DOHSA? Alvez has the answer: “. . . it is a settled canon
of maritime jurisprudence that it better becomes the
humane and liberal character of proceedings in admiralty
to give (the better remedy) than to withhold (it).”
16
II.
The action of the Court of Appeals in considering
the question of laches, which was not raised by the
Respondents in the District Court and not considered
by the District Court, is in direct contravention of
this Court’s ruling in Czaplicki and really is so far
of a departure from accepted and usual course of
judicial proceedings as to call for the exercise of this
Court’s power of review.
Frankly, it is unbelievable that the Court of Appeals
in this case would decide as a matter of law that laches
barred this action, in view of the procedural posture of
this case. In Czaplicki, supra, the Supreme Court ex-
pressly held that where the issue of laches is not passed
upon by the District Court, the Court of Appeals must
remand the case to the District Court for a determina-
tion of that issue. In Financial Systems Leasing Corpora-
tion v. Pugh, 530 F.2d 91 (Sth Cir. 1976), the Circuit
Court held that the failure to plead an affirmative defense
(such as laches)*** precludes such matter from being con-
sidered on motion for summary judgment and thus upon
subsequent appeal. See also Naviera, supra, where the
Court of Appeals held that since the District Court had
not passed upon the elements of laches, the case had to
be remanded to the District Court for such determina-
tion. And see Pfau v. Whitcover, 139 F.2d 588 (4th Cir.
1943).
A review by this Court of the Court of Appeals’ action
in considering a question not raised in the District Court
is vitally important because such action makes a mockery
of due process. If the Court of Appeals’ decision is left
15a. Rule 8(c) of FRCP expressly states that “laches” is an
affirmative defense.
17
undisturbed, the door will be open in all cases to a stream
of new contentions and positions taken as an after thought,
to the equitable disadvantage of the Opposite party, at any
Stage of the proceedings, even at the appellate court
level. The effect of the Court of Appeals’ decision in
this regard and its impact upon our system of justice
is ominous and certainly qualifies this case, under the
test laid down by Rule 17 of the USS. Supreme Court
rules, for the grant of a writ of certiorari.
ITI.
Regardless of the procedural improprieties, the
Court of Appeals’ holding that the record justified
a finding in favor of Respondents on the question
of laches, as a matter of law, is just as much a de-
parture from “accepted and usual course of judicial
proceedings”, calling for an exercise of this Court’s
power of review, as the Court of Appeals’ considera-
tion of the question of laches in the first place.
With regard to the question of laches, in Czaplicki,
Gardner v. Panama Railway Company,’® and in many
circuit court cases,’’ such as Larios y. Victory Carriers,
16. 342 U.S. 29, 96 L.Ed. 31, 72 S.Ct. 12 (1951).
17. See Flowers v. Savannah Machine & Foundry Company, 310
F.2d 135 (Sth Cir. 1962); Wats v. Zapata Offshore Company, 431
F.2d 100 (Sth Cir. 1970); McMahon v. Pan American World Air-
ways, 297 F.2d 268 (Sth Cir. 1962); Moinar v, Gulf Coast Transit,
371 F.2d 639 (Sth Cir. 1967); Akers v. State Marine Lines, Inc.,
344 F.2d 217 (Sth Cir. 1965); Crews v. Arundel Corp., 386 F.2d
528 (Sth Cir. 1967); Powell v. City of Key West, Florida, 434 F.2d
1075 (Sth Cir. 1970); Ecology Center of Louisiana v. Coleman, 515
F.2d 860 (Sth Cir. 1975); Fidelity & Casualty of New York v.
C/B Mr. Kim, 345 F.2d 47 (Sth Cir. 1965); Kelly v. Smith, 485
F.2d 520 (Sth Cir. 1973) and McDaniel v. Gulf & South American
SS Company, 228 F.2d 189 (Sth Cir. 1955) where the Court held
that “. . . when the question of laches is raised by exceptions or
18
/nc.,* the courts have made it clear that the expiration
of the statute of limitations does not create a “presump-
tion of prejudice save in the sense that if the Plaintiff
proffers no pleading or presents no proof on the issue
of laches, the Defendant wins”. As the court in Larios
observed, the Plaintiff is not required to present “anti-
cipatory evidence to negate prejudice on the part of the
Defendants, an issue as to which ‘the Defendant, with
his greater knowledge, is to be required to come forward
. . rather, when a Plaintiff who asserts a martime claim
after the . . . statute has run, presents evidence tending to
excuse his delay, the Court must weigh the legitimacy of
his excuse, the inference to be drawn from the expiration
of the (analogous) statute, and the length of the delay,
along with evidence as to prejudice if the Defendant
comes forward with any.” (emphasis ours; 316 F.2d at
p. 66, 67).
In this case, not only did the Respondents not assert
laches in the District Court or raise the issue in connec-
tion with the motion for summary judgment, but they
offered absolutely no evidence of prejudice, despite the
fact that the Petitioners had alleged specifically that the
Respondents suffered no prejudice by the delay in filing
and had produced considerable evidence of excuse for
such delay (see the deposition of Mrs. Sanchez and the
affidavits of her son and brother-in-law’’); yet the Court
demurrer, as here, the allegations of the Plaintiff must ordinarily
be assumed to be true”.
18. 316 F.2d 62 (2nd Cir. 1963).
19. All this evidence is the same evidence that we discussed in
the statement above concerning equitable estoppel; certainly such
evidence is at least sufficient to raise the issue of excusable delay
for not filing prior to the expiration of the analogous statute of
limitation.
19
of Appeals held that laches had been established as a
matter of law. This unbelievable conclusion is reached
even though the only evidence in the record on the pre-
judice question tends to show that Respondents suffered
no prejudice by the delay in filing. As pointed out in
Watz:
“. . . That no harm having been shown by reason
of the delay for filing the plaintiff's cause of action
and by reason that he did not prevent one witness or
any evidence from being heard and by reason of the
fact that all the defendants, Zapata Off-Shore Com-
pany and Eaton Yale & Towne, Inc., had notice
within a matter of months after the occurrence that
the doctrine of laches or limitations does not apply.”
(431 F.2d at p. 111-112; emphasis ours).
Barrios v. Nelda Faye, Inc.™ states the correct rule to
the effect that “if the shipowner knew of the incident,
made a detailed investigation and still has facts concern-
ing the injury and its disabling consequences in the form
of evidence . . . the equitable principles of laches ought
not to become the absolute obstacle to a determination
of the intrinsic merits of the claim”. In this case it is
undisputed that the Defendants were immediately noti-
fied of the accident in question, and immediately con-
ducted an investigation. As pointed out above, Respond-
ents made no effort to show that they do not still have
available to them the facts concerning the injury and the
accident or that they suffered prejudice in any way.
The action of the Court of Appeals in concluding as
it did, not only contradicting long established Supreme
Court authority and authority from other circuits, but
summarily (it should be noted that the Court of Appeals
19a. 597 F.2d 881 (Sth Cir. 1979).
20
in this case disposed of this case by summary procedure)
overruling a wealth of authority from within its own
circuit, should clearly demonstrate to this Court that the
Court of Appeals in this case was acting in a manner
that “so far departed from the accepted and usual course
of judicial proceedings . . . as to call for an exercise of
this Court’s power of supervision.”
IV.
The Court of Appeals’ narrow and restrictive ap-
proach to the doctrine of equitable estoppel, and its
holding that a fact question did not exist in this case
with respect to such doctrine, are so contrary to the
rationale and factual holdings of previous decisions
of this Court and decisions of numerous other circuit
courts, including the Fifth Circuit, that such holding
constitutes a departure so far from the accepted and
usual course of judicial proceedings as to call for
this Court to exercise its power of review.
At the outset, the Court of Appeals applied too restric-
tive a criteria, one that has not been adopted by any
court that we know of, in ascertaining whether or not
there was a fact question concerning equitable estoppel
in this case. The Court of Appeals stated that ec able
estoppel is available only where either the Defendant has
“made active misrepresentations to Plaintiff regarding the
Plaintiff's legal rights” or “where the Defendant promised
to pay the claim or to settle if the Plaintiff did not file
suit.” As the evidence discussed in the statement above
clearly indicates, even if the Court of Appeals had been
correct in its restrictive criteria, a fact question exists in
this case, precluding summary judgment. Mrs. Sanchez
repeatedly testified that the Respondents told her that she
21
had no other rights and that this was one of the reasons
she sought no legal advice until just before she filed suit.
Such statements were misrepresentations as to the Peti-
tioners’ rights and they were actively made by the Re-
spondents’ agents.
As to the second possibility stated by the Court of
Appeals, the Respondents’ agent offered Mrs. Sanchez
money, promised her son a job and assured her that
Respondents would take care of her and her family in
the future as long as, as her son and brother swore, “she
didn’t maintain any action against the company”. The
Court of Appeals, in a footnote, indicated that it gave
little, if any, weight to the sworn statements of the brother
and son as to what transpired in the crucial conversation
between the widow and the company representatives. This
action of the Court of Appeals directly contradicts Camer-
lin v. New York Central Railway Company, supra; Witt-
lin v. Giacalone, supra; Semaan y. Mumford, supra;
Adams v. The United States, supra; and Moore’s Federal
Practice, Vol. 6, § 56.15(4), p. 56-522, Ftnt. 49, the
latter stating:
“An opposing party’s affidavit should be considered
(in passing upon a motion for summary judgment)
although it differs from or varies evidence given by
deposition or another affidavit and the two in con-
junction may disclose an issue of credibility.”
(Moore’s, p. 56-522).
Thus, the Court of Appeals and the District Court com-
mitted grievous error in not considering the affidavits of
the son and brother of Ms. Sanchez.
Even so, it is clear that the affidavit evidence of the
brother and son does not contradict Mrs. Sanchez’ testi-
mony but simply adds some other things that were said
22
during the conversation between her and the company
representative. At no place in her deposition did Mrs.
Sanchez expressly deny what her son and her brother
stated in their affidavits. As pointed out above, Mrs.
Sanchez was not well educated, was very nervous during
the deposition, and was easily led by the Defendants’
counsel. This is one of those cases, as Judge Hutcheson
stated in Loudermilk v. Fidelity and Casualty Company,”°
where the “triers of fact, whose business it is not only to
hear what men say but to search for and find the roots
from which the sayings spring, should be afforded full
opportunity to determine the truth and integrity of this
case”. As this Court stated in the celebrated case of Poller
v. Columbia Broadcasting System,” trial by affidavit is
no substitute for a jury trial, “the hallmark of even-
handed justice.”
In any event, all relevant decisions indicate that the
grounds for equitable estoppel are far broader than those
espoused by the Court of Appeals in this case. Burke v.
Gateway Clipper; Schroeder v. Young;* Glus v. Brook-
lyn Eastern District Terminal,** supra; Longo v. The
20. 199 F.2d 561 (Sth Cir. 1952).
21. 360 US. 464, 82 S.Ct. 46, 7 L.Ed.2d 458 (1962).
22. The very case that the Court of Appeals relied on most
heavily to justify its holding, Burke v. Gateway Clipper, Inc., 441
F.2d 946 (3rd Cir. 1971), adds a catch-all ground for equitable
estoppel: “comparable representations and conduct”.
23. 161 U.S. 334, 40 L.Ed.2d 721, 16 S.Ct. 512; Schroeder is
the lead case concerning the “doctrine of lulling”. The Court there
stated that where a party is lulled into a false sense of security by
the statements or conduct of the Defendant, such Defendant is
estopped to assert the statute of limitations.
24. In this important case, this Court stated the test of equitable
estoppel:
“To decide the case we need to look no further than the maxim
that no man may take advantage of his own wrong. Deeply
23
Pittsburgh and Lake Erie Railroad Company in New
York Central System* Louisville and Nashville Railroad
Company v. Disspain,*® Scarborough v. Atlantic Coast
Line Railroad Company,*” United States v. Fidelity and
Casualty Company of New York® United States v. Re-
liance Insurance Company® Bomba v. W. L. Belvidere,
rooted in our jurisprudence this principle has been applied in
many diverse classes of cases by both law and equity courts
and has frequently been employed to bar an equitable reliance
on statutes of limitations.”
Moreover, the Court held that the representations in question can
either be intentionally fraudulent or mistakenly incorrect as long
as they are statements upon which the Plaintiff relied in delaying
the bringing of suit.
25. In Longo, 355 F.2d 443 (3rd Cir. 1966), the company repre-
sentative indicated to the plaintiff that the company would make
a better settlement than he could obtain by suing and that he might
lose his job if he should file suit against the company. Such repre-
sentations are very similar to those in this case.
the Plaintiff and that he should return to work; the Plaintiff in
reliance upon such representations delayed filing suit beyond the
Statute of limitations and the Court held that the Defendants were
27. 178 F.2d 253 (4th Cir. 1949) cert. denied, 339 U.S. 919,
70 S.Ct. 621, 94 L.Ed. 1443,
28. 402 F.2d 893 (4th Cir. 1968). The Court, in quoting from
United States for Use and Benefit of Nolan Company v. Wood, 99
F.2d 80 (4th Cir. 1938), stated the test simply as follows:
“. . . @ Person is estopped from denying the consequences of
his conduct where that conduct has been such as to induce
another to change his Position in good faith and suck that
@ reasonable man would rely upon the representations made
...”, (Emphasis ours),
29. 436 F.2d 1366 (10th Cir. 1971).
24
Inc.;°° Begnaud v. White;*’ Moore’s Federal Practice
§ 56.17(21); and Brown v. State Farm Mutual Auto-
mobile Casualty Insurance Company.”
In summary, it would seem that the better test, and
the one which the Court of Appeals rejected in this case,
is one that comports with the humane purposes of the
Jones Act and with the beneficent purposes of equity.
That test should simply be the reasonable man test, i.e.,
whether or not the statements and conduct of the Defend-
ants are sufficient to cause a reasonable man to defer
filing suit. The court in Bomba states the equitable
estoppel test as follows:
“Rather, all that is necessary for invocation of the
doctrine of equitable estoppel is that the plaintiff
reasonably rely on the defendant’s conduct or repre-
sentations in forbearing suit.” (emphasis ours)
It is extremely important for this Court to grant review
of the Court of Appeals decision in this case as it related
to the equitable estoppel issue for the following reasons:
1) the approach taken by the Court of Appeals is directly
contrary to the decisions of this Court and the courts of
other circuits; the Court of Appeals in this case limited
equitable estoppel to two specific situations, despite the
30. 579 F.2d 1067 (7th Cir. 1978). In Bomba the court held
that a promise to pay the plaintiff’s claim is sufficient, without more,
to estop the defendant from asserting the statute of limitations. The
promises of the Defendant in this case, to take care of the Plaintiff’s
family indefinitely and to give her son a job, were in effect promises
to pay the Plaintiff’s claim. Mrs. Sanchez specifically testified that
these promises led her to defer seeking legal counsel and bringing
suit on her claim.
31. 170 F.2d 323 (6tk Cir. 1940).
32. 506 F.2d 976 (Sth Cir. 1975).
25
fact that this Court and all the other courts indicate that
a jury could find equitable estoppel from a broad set of
disparate circumstances, the essential element being that
the actions of the Defendants would lead a reasonable
person into delaying the filing of suit; 2) regardless of the
approach the Court of Appeals took in this case, its con-
clusion that there was insufficient evidence to raise a fact
issue as to equitable estoppel absolutely defies the record
and the large quantity of evidence indicating that Mrs.
Sanchez was reasonably led, by the statements of the
agents for the Respondents, into delaying the filing of suit
or seeking legal advice; 3) the holding of the Court of
Appeals that it would not consider the affidavit testimony
of the son and brother-in-law, because it conflicted with
the deposition testimony of Mrs. Sanchez, is directly
contrary to prevailing law in other circuits, particularly
Camerlin v. New York Central Railway Company, supra,
and Adams v. The United States, supra.
CONCLUSION AND PRAYER
In this case, the Petitioners did not get a semblance
of a fair trial. Aside from the very important question
involving the right of the estate of a Jones Act seaman,
fatally injured outside the territorial waters of the U. S.,
to a Moragne death action, this widow and her nine
children had a clear right to have the equitable estoppel
issue and the laches issue heard by a jury. The Court
of Appeals’ decision in this case is one that is bad—
from start to finish. Because it touches on so many areas
of the law, it is our humble view that the highest Court
in our land simply cannot leave something this bad
standing. Every case involving Jones Act seamen fatally
injured outside the territorial waters of the U. S. will be
26
affected by the Court of Appeals’ decision in this case;**
the many cases involving the equitable estoppel issue will
be affected; and, most important, all of the numerous
cases involving summary judgment motions will be vitally
affected. Other ancillary matters, such as due process on
appeal (considering laches for the first time in the ap-
pellate court), directly affect every case that will be
appealed.
The decision of the Court of Appeals in this case
is bad enough to justify a per curiam reversal by this
Court. One of the best examples of why this is so, is
the manner in which the Court of Appeals summarily
sanctioned the District Court’s methodical emascula-
tion of Rule 56, F.R.C.P. The extraction from the
record of the testimony and evidence most favorable to
the proponents of the summary judgment, and the in-
sistence upon drawing from such evidence every possible
inference favorable to such proponents, totally convolutes
the burdens established by Rule 56 and unquestioned
Supreme Court authority.** This and the other radical
departures from sound judicial precedence manifested in
the Court of Appeals’ decision should, we respectfully
suggest, shock the judicial conscience of this Court.
Petitioners respectfully move the Court to grant Writ
of Certiorari in order to resolve the very important ques-
32a. 94 Stat. 1525, passed October 6, 1980 establishes a uniform
3 year statute of limitations for all maritime actions from and after
the effective date of the statute; however, the measure of damages
(Gaudet) in such death actions, the nature of the action and proper
parties, among other things, will still be affected by the Court of
Appeals’ decision.
33. See e.g., Poller v. Columbia Broadcasting System, supra;
Adickes v. S. H. Kress & Co., 90 S.Ct. 1598, 398 U.S. 144, 26 L.Ed
2d 142 (1970).
27
tions related above and the conflicts between the decision
of the Court of Appeals in this case and the decisions
of other circuit courts, as well as decisions of this Court;
and, upon proper briefing and hearing upon the merits,
Petitioners request this Court to reverse this cause and
remand same to the District Court for the Southern
District of Texas for trial on the merits.
Respectfully submitted,
BENTON MUSSLEWHITE
3506 Travis Street
Houston, Texas 77002
(713) 520-0621
CERTIFICATE OF SERVICE
I hereby certify that I mailed this date three (3) true
and correct copies of the foregoing Petition for Writ of
Certiorari to each of the following attorneys, being the
only other attorneys of record: Mr. Ted C. Litton, 3710
One Shell Plaza, Houston, Texas 77002, who represents
the Loffland Defendants and Mr. John P. Forney, Jr.,
947 Mellie Esperson Building, Houston, Texas 77002,
who represents Mid-Continent Supply Company on this
tb, day of April, 1981.
mod Proc 9 4S
BENTON MUSSLEWHITE
%
A-1
APPENDIX 1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Civil Action No. H-77-1198
HELI RAMON SANCHEZ, et al.,
Plaintiffs
Vv.
LOFFLAND BROTHERS COMPANY,
Defendant.
MEMORANDUM AND ORDER
Plaintiff filed this action under the Jones Act, 46
U.S.C.A. § 688, and general maritime law, based upon
the death of Heli Ramon Sanchez. The incident in ques-
tion occurred on February 3, 1974, on Lake Maracaibo,
in Venezuela. Suit was instituted on July 27, 1977. Pres-
ently pending before this Court is Defendant’s motion
for summary judgment based on the applicable statute
of limitations.
The Jones Act incorporates the Federal Employers’
Liability Act’s three year statute of limitations, 45 U.S.
C.A. § 56. Plaintiff's cause of action arose more than
three years prior to filing suit and is clearly barred by
the limitations period of the Act,’ except under equitable
circumstances as discussed infra.
1. Neither infancy nor any other disability can toll the running
of the statute, Sgambati v. U.S., 172 F.2d 297 (2nd Cir. 1949),
cert. denied, 337 U.S. 938 (1949); Gilmore and Black, The Law of
Admiralty, 299-300 n.165; Bomba v. W. L. Belvidere, Inc., 579 F.2d
1067, 1070 (7th Cir. 1978).
4
A-2
Plaintiff's remedy under general maritime law is fore-
closed under the authority of Mobil Oil Corporation v.
Higginbotham, 436 U.S. 618 (1978), as interpreted by
the Fifth Circuit in Ivy v. Security Barge Line, Inc.,
585 F.2d 732 (Sth Cir. 1978), reh. en banc, No. 76-
4130 (Sth Cir. Nov. 13, 1979).
Plaintiff, however, claims that Defendants are estopped
from asserting the statute of limitations. The nature of
the representations and of the conduct of Defendants are
of crucial significance in determining if Plaintiff is to be
allowed to invoke this equitable principal of estoppel.
Burke v. Gateway Clipper, Inc., 441 F.2d 946 (3rd Cir.
1971). The Burke case sets out a test indicating that
there must be (1) an affirmative statement that the statu-
tory period to bring the action was longer than it actually
was, or (2) promises to make a better statement of the
claim if Plaintiff did not bring suit, or (3) comparable
representations and conduct.
The deposition of Aida Sanchez, wife of the decedent,
and Plaintiff in this action, does not show that she was
misled by Defendants so that she delayed suit. Her posi-
tion can be summarized in the following testimony:
Q. You didn’t have any question that it was Loffland
Brothers’ de Venezuela position that they were
paying you all the money that you were owed
under the contract or under the Venezuela law;
did you?
I didn’t doubt—
That that was their position.
Well, I didn’t doubt that.
And Mr. Lujan, when he came to your house,
told you that, according to your testimony that
that was all that was owed to you, but that if
OPrOo>
O>
O>
A.
OF OPO> OP O>
A-3
there was anything that they could do for you,
to let them know? Is that, in effect, what he said?
Yes.
Okay. Your son was later given a job by Loffland
Brothers de Venezuela?
Of work, a job.
Is he still working for Loffland Brothers de
Venezuela?
Yes.
He hasn’t been terminated?
No.
As far as you know, he’s doing a day’s work
for a day’s pay?
Yes.
All right. What is it that you testified that Mr.
Lujan somehow indicated that the company
would take care of the children and you? Was
this just as a result of his saying if there is some-
thing we can do for you, let us know?
Yes.
All right. And is this, in effect, the same thing
that you were later told by Mr. Sevillano?
When I went to talk with Mr. Sevillano about
my son being laid off, he told me that as long
as Loffland had work, that my son would work.
As long as your son did the work that he was
supposed to do?
Yes
Loffland Brothers de Venezuela has never prom-
ised to pay you any other money than what you
received under [(the agreement relating to settle-
ment of benefits due under Venezuelan law) ].
Never.
Sanchez deposition at 52, line 20—54, line 13.
Q.
Did [representatives of Loffland Brothers de
Venezuela, C.A.] tell you that any additional
money that you would receive would have to
O>
O>
O>
OrPOPr OP
O> O> OPO >
A-4
come from the social security scheme of Vene-
zuela?
Yes.
Was any mention made to you at all concerning
American law or American rights or remedies
by representatives of Loffland Brothers de Vene-
zuela?
No.
Nothing whether you did or did not have any
rights under those laws?
Never.
Okay.
Never did they mention that.
Nothing about how long you had to bring a law-
suit—how much time you had to bring a lawsuit
in the U.S.?
No.
Have you told us all of the conversations you
had with anybody employed by Loffland Brothers
de Venezuela, C.A.?
Those that I told you about are the conversations
I’ve had.
And those are the only ones?
Yes.
And you have told us all that was said in those
conversations?
I don’t understand.
And you have told us the substance, all of the
substance of those conversations?
Yes.
Okay. As far as you know, have you ever had a
conversation with somebody who was employed
by Loffland Brothers Company, an American
company?
I don’t understand.
Okay. You’ve never had any conversations with
any Americans employed by any of the—by any
company whose name in anyway contained the
word Loffland; have you?
A-5
A. I’ve spoken to Mr. Benton who is the only
American.
Q. Your lawyer?
A. My lawyer.
Sanchez deposition at 55, line 15—57, line 8.
The only apparent support for the assertion of equitable
estoppel is a statement in the affidavit of Even Cardozo,
brother-in-law of the deceased. He States that Lujan of
Loffland Brothers de Venezuela, C.A. told Aida Sanchez
that “it was better to go along with Loffland because the
company was going to help and also she would not have
economic prohlems because they would give work to the
son of my sister, Heli Ramon Sanchez, always, as long
as she did not go against the company in any action and
would receive the pay.” In her deposition Aida Sanchez
makes no mention of not pursuing a court proceeding.
She stated that no mention was made to her concerning
American rights or remedies, Deposition, supra at 55.
In fact, Lujan and Sevillano stated that they had no
knowledge of American rights and remedies. Lujan depo-
sition at 49; Sevillano deposition at 49-50. Thus, al-
though Cardozo might have thought otherwise, Aida San-
chez was apparently not misled and it is her subjective
belief that this Court is concerned with. Furthermore,
from the standpoint of the policy and requirements of
Rule 56 of the Federal Rules, this Court declines to
allow the use of the affidavit to raise an issue of fact
by contradicting Plaintiff’s own deposition, a more re-
liable source. It is only genuine issues of fact that are
intended to preclude resort to summary judgment. See
Holifield v. Cities Service Tanker Corp., 421 F.Supp.
131, 136 (E.D. La. 1976), af’d, 552 F.2d 367 (Sth
Cir. 1977).
A-6
Accordingly, Defendant’s motion for summary judg-
ment is GRANTED.
Done at Houston, Texas, this 20th day of December,
1979.
/s/ NORMAN W. BLACK
Norman W. Black
United States District Judge
*%
A-7
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Civil Action No. H-77-1198
HELI RAMON SANCHEZ, et al.,
Plaintiffs
V.
LOFFLAND BROTHERS COMPANY,
Defendant.
FINAL JUDGMENT
From a consideration of the pleadings and materials
submitted in this cause, it is the opinion of this Court
that summary judgment should be and is hereby granted
for Defendants.
This is a FINAL JUDGMENT.
Costs will be awarded to the prevailing party.
Done at Houston, Texas, this 20th day of December,
1979.
/s/ NORMAN W. BLACK
Norman W. Black
United States District J udge
A-8
APPENDIX 2A
UNITED STATES COURT OF APPEALS
For The Fifth Circuit
No. 80-1025
Summary Calendar
D. C. Docket No. CA H 77 1198
HELI RAMON SANCHEZ and AIDA DE SANCHEZ,
Individually and as representative and Administratrix of
the Children and Estate of HELI RAMON SANCHEZ,
Plaintiffs-Appellants,
Vv.
LOFFLAND BROTHERS COMPANY, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas
Before GEE, RUBIN and RANDALL, Circuit Judges.
JUDGMENT
This cause came on to be heard on the transcript of the
record from the United States District Court for the
Southern District of Texas, and was taken under sub-
mission by the Court upon the record and briefs on file,
pursuant to Rule 18;
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the judgment
A-9
of the said District Court in this cause be, and the same
is hereby, affirmed;
It is further ordered that plaintiffs-appellants pay to the
defendants-appellees the costs on appeal, to be taxed by
the Clerk of this Court.
October 1, 1980
Issued as Mandate: Jan. 23, 1981
A-10
APPENDIX 2B
Heli Ramon SANCHEZ and Aida De Sanchez, Individu-
ally and as representative and Administratrix of the
children and estate of Heli Ramon Sanchez, Plain-
tiffs-Appellants,
V.
LOFFLAND BROTHERS COMPANY
et al., Defendants-Appellees.
No. 80-1025
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Unit A
Oct. 1, 1980
The widow of a deceased seaman brought action for
wrongful death of the seaman. The United States District
Court for the Southern District of Texas, Norman W.
Black, J., granted summary judgment in favor of the
defendant, and plaintiff appealed. The Court of Appeals
held that suit under the Death on the High Seas Act and
under the Jones Act were time-barred and defendant was
not estopped from asserting bar of limitations.
Affirmed.
Appeal from the United States District Court for the
Southern Disrict of Texas.
A-11
Before GEE, RUBIN and RANDALL, Circuit Judges.
PER CURIAM:
The widow of a deceased seaman contends that: (1) an
action for the wrongful death of a Jones Act seaman can
be maintained under the general maritime law after the
expiration of the statute of limitations provided in the
Jones Act’ and the Death on the High Seas Act? and
(2) the district court erred in awarding summary judg-
ment against her because a genuine issue exists as to
whether the employer was equitably estopped to raise the
applicable statute of limitations. We conclude that this
action is time-barred and that no genuine factual issue
precluded summary adjudication of the estoppel issue.
Plaintiff filed an action under the Jones Act, 46 U.S.C.
§ 688, and under general maritime law for the wrongful
death of her husband, Heli Ramon Sanchez, on February
3, 1974, in the course of his employment. The decedent
was a seaman employed by Loffland Brother on a vessel
in operation on Lake Maracaibo, Venezuela. This suit
was filed more than three years later, on July 27, 1977,
by decedent’s widow as representative of his estate and
as next friend to his minor children.
[1,2] The Supreme Court first recognized a cause of
action for wrongful death based on general maritime law
in Moragne v. States Marine Lines, Inc., 398 U.S. 375,
90 S.Ct. .1772, 26 L.Ed.2d 339 ( 1970). In instances
where the Death on the High Seas Act (DOSHA)?* is
1. 46 U.S.C. § 688.
2. 46 US.C. § 763.
3. 46 U.S.C. § 761 et seq.
A-12
applicable,‘ the elements of the general maritime claim
are also derived from it. Mobil Oil Corporation v. Higgin-
botham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581
(1978).
Higginbotham arose out of deaths resulting from a heli-
copter crash outside of United States territorial waters.
The Supreme Court denied recovery for injuries resulting
in nonpecuniary losses under the general maritime law,
Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct.
806, 39 L.Ed.2d 9 (1974), because DOSHA specifically
limits recoverable damages to those pecuniary in nature.
Following the admonitions in both Moragne and Hig-
ginbotham to refer to existing statutes in completing the |
structure of the general maritime law claim, the Second
Circuit in Public Administrator of the County of New
York v. Angela Compania Naviera, 592 F.2d 58 (2d Cir.
1979), held that only laches barred a Moragne-type gen-
eral maritime law death claim arising from death outside
territorial waters, but treated the two year DOSHA statute
as analogous.”
4. DOSHA is applicable to the death of a person who is not a
Jones Act seaman whenever the wrongful act occurs on the high seas
beyond a marine league from the shore of any state, or the District
of Columbia, or the territories or dependencies of the United States.
46 U.S.C. § 761. The statute has been applied when the cause of
action arises outside of United States territorial waters and within the
territorial waters of a foreign country. Public Administrator of the
County of New York v. Angela Compania Mariera, 592 F.2d 58
(2d Cir. 1979); Mancuso v. Kimes, Inc., 484 F.Supp. 453 (S.D.
Fla. 1980); Cormier v. Williams/Sedco/Horn Constructors, 460 F.
Supp. 1010 (E.D. La. 1978). See Roberts v. United States, 498 F.2d
520 (9th Cir. 1974).
5. “. .. given the clarity of the Supreme Court’s instruction to
pply the two-year statute of limitations of the Death on the
High Seas Act to wrongful death actions under the general mari-
time law, and given the Court’s repeated expression of concern
A-13
[3-5] However, the mandate of Moragne-Higginbotham
appears to us to be more specific. In our opinion, the
Higginbotham rationale compels the application of the
DOSHA statute of limitations in undiluted force to a
wrongful death claim under general maritime law which
arises outside of the United States territorial waters.* We
note, however, that even in the event that only laches
applied, the expiration of the DOSHA-analogous period
would require the plaintiff to show the absence of pre-
judice to the defendant and the reasonableness of the
delay. Barrios v. Nelda Faye, Inc., 597 F.2d 881 (Sth
. Cir. 1979); Watz v. Zapata Off-Shore Co., 431 F.2d 100
(Sth Cir. 1970); Akers v. State Marine Lines, Inc., 344
F.2d 217 (Sth Cir. 1965). Neither has been demon-
strated. Therefore, we conclude that the claims were not
timely presented.
[6, 7] The plaintiff's Jones Act claim is also time-barred
under the statute of limitations provided in that statute.’
for uniformity in the administration of this judge-made cause
of action, the plaintiff in this case has the burden of showing
what this court has called ‘strong justification for delay.’ ”
Public Administrator of the County of New York v. Angela Com-
pania Naviera, 592 F.2d at 64 (2d Cir. 1979).
6. The Supreme Court stated in Higginbotham that DOSHA
‘, . . announces Congress’ considered judgment on such issues as the
beneficaries, the limitations period, contributory negligence, survival,
and damages.” (emphasis added) 436 U.S. at 625, 98 S.Ct. at 2015,
56 L.Ed.2d at 587.
7. 46 U.S.C. § 688 incorporating by reference Federal Employers’
Liability Act, 45 U.S.C. § 56: “No action shall be maintained under
this chapter unless commenced within three years from the day the
cause of action accrued.” The running of this statutory limitations
period is not tolled, as urged by plaintiff on appeal, by the infancy
of the minor children for whom the plaintiff sues as next friend.
See Sgambati v. United States, 172 F.2d 297 (2d Cir. 1949), cert.
denied, 337 US. 938, 69 S.Ct. 1514, 93 L.Ed.2d 1743 (1949)
(minority does not toll the statute of limitations under Suits in
A-14
[8-10] We turn, then, to the contention that Loffland
Brothers is estopped to raise the limitation period as a
defense. The equitable principle of estoppel prevents a
defendant whose representations or other conduct have
caused a plaintiff to delay filing suit until after the run-
ning of the statutory period from asserting that bar to the
action. Glus v. Brooklyn Eastern District Terminal, 359
U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959). Equitable
estoppel is applicable to a claim under the Jones Act.
Burke v. Gateway Clipper, Inc., 441 F.2d 946, 949 (3d
Cir. 1971); Holifield v. Cities Service Tanker Corp., 421
F.Supp. 131 (E.D. La. 1976); George v. Hillman Trans-
portation Co., 340 F.Supp. 296 (W.D. Pa. 1972). The
nature of the representations and of the conduct of the
defendant are of crucial significance in determining
whether the plaintiff is to be allowed to invoke this equit-
able principle. Burke v. Gateway Clipper, Inc., 441 F.2d
946 (3d Cir. 1971).
[11] The estoppel principle has been successfully in-
voked where the defendant made active misrepresentations
to the plaintiff regarding the plantiff’s legal rights,’ as
well as in cases where the defendant promised to pay the
claim or to settle if the plaintiff did not file suit.’ How-
Admiralty Act and Public Vessels Act); Osbourne v. United States,
164 F.2d 767 (2d Cir. 1947) (dicta), (Infancy does not toll the
statute of limitations under Jones Act). Accord, Scarborough v.
Atlantic Coastline Ry. Co., 178 F.2d 253 (4th Cir. 1949).
8. Glus v. Brooklyn District Terminal, 359 U.S. 232, 79 S.Ct.
760, 3 L.Ed.2d 770 (1959); Scarborough v. Atlantic Coastline Ry.
Co., 178 F.2d 253 (4th Cir. 1949).
9. United States v. Reliance Ins. Co., 436 F.2d 1366 (10th Cir.
1971); United States v. Fidelity and Cas. Co. of N. Y., 402 F.2d
893 (4th Cir. 1968); Longo v. Pittsburgh and Lake Erie Railroad
Co., 355 F.2d 443 (3d Cir. 1966); United States v. Continental Cas.
Co., 357 F.Supp. 795 (E.D. La. 1973).
A-15
ever, in order to create an estoppel, the conduct of the
defendant must be so misleading as to cause the plaintiff's
failure to file suit.?°
Here, there was no evidence of such misrepresentations.
Mrs. Sanchez’s deposition indicates that Loffland Brothers
made no affirmative misstatements regarding her legal
rights and they did not promise any benefit to her if she
refrained from filing suit.
[12,13] “When a movant [for summary judgment]
makes out a convincing showing that genuine issues of
fact are lacking, it becomes incumbent on the adversary
to adequately establish by receivable facts that a real, not
formal, controversy exists.” Ernest, Inc. v. General Motors
Corp 482 F.2d 1047 at 1049 (Sth Cir. 1973).??
Summary judgment is properly rendered for the defend-
ant on the basis of the expiration of the statute of limita-
tions unless the plaintiff presents facts in accordance with
F. R. Civ. Proc. 56(e) which create a genuine factual
issue as to defendant’s conduct that would equitably estop
10. Burke v. Gateway Clipper, Inc., 441 F.2d 946 (3d Cir. 1971),
11. According to the affidavit of the plaintiff's brother, Loffland
Brothers’ representative told the plaintiff that her son would be em-
ployed by Loffiand Brothers as long as the plaintiff did not “go
against” the company in any action. However, in her deposition the
plaintiff does not indicate that such a condition was attached to her
son’s employment by the defendant. She States that no mention was
made to her of her rights under American law. The recollection of
the brother of the plaintiff does not sufficiently support the inference
that the plaintiff was misled causing her not to file suit.
12. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 159-161,
90 S.Ct. 1598, 1609-1610, 26 L.Ed.2d 142 (1970); Gossett v, Du-Ra-
Kel Corp., 569 F.2d 869, 872 (Sth Cir. 1978); Sweet v. Childs, 507
F.2d 675, 679 (5th Cir. 1975).
es
A-16
him from asserting the statutory bar.’* No such factual
issue has been created.
The plaintiff having failed to meet the required burden
of proof, the defendant was entitled to summary judgment.
For these reasons the judgment is AFFIRMED.
13. 6 Pt. 2 Moore’s Federal Practice | 56.17[21], at 56-854 (2d
ed. 1948). See Longo v. Pittsburgh and Lake Erie Railroad Co.,
355 F.2d 443 (3d Cir. 1966); Begnaud v. White, 170 F.2d 323
(6th Cir. 1948). But cf. Bomba v. Belvidere, Inc., 579 F.2d 1067
(7th Cir. 1978); Burke v. Gateway Clipper, Inc., 441 F.2d 946
(3d Cir. 1971) (plaintiffs burden is to present facts which, as a
matter of law, would estop defendants from asserting statute of
limitations).
A-17
APPENDIX 3
IN THE UNITED STATES COURT OF APPEALS
For the Fifth Circuit
NO 80-1025
‘ HELI RAMON SANCHEZ, and
AIDA DE SANCHEZ, Individually and as
representative and Administratrix of the children
and estate of HELI RAMON SANCHEZ,
Plaintiffs-A ppellants,
v.
LOFFLAND BROTHERS COMPANY » ET AL.,
Defendants-Appellees.
Appeal from the United States District Court for the
Sonthern District of Texas
ON PETITION FOR REHEARING AND
PETITION FOR REHEARING EN BANC
(Opinion 10-1-80, 5 Cir., 197__, Ye
(January 8, 1981)
Before GEE, RUBIN and RANDALL, Circuit J udges.
PER CURIAM:
(\/ ) The Petition for Rehearing is DENIED and no
member of this panel nor J udge in regular active service
on the Court having requested that the Court be polled
on rehearing en banc, (Rule 35 Federal Rules of Appel-
=e
A-18
late Procedure; Local Fifth Circuit Rule 16) the Petition
for Rehearing En Banc is DENIED.
( ) The Petition for Rehearing is DENIED and the
Court having been polled at the request of one of the
members of the Court and a majority of the Circuit Judges
who are in regular active service not having voted in favor
of it, (Rule 35 Federal Rules of Appellate Procedure;
Local Fifth Circuit Rule 16) the Petition for Rehearing
En Banc is also DENIED.
( ) A member of the Court in active service having
requested a poll on the reconsideration of this cause en
banc, and a majority of the judges in active service not
having voted in favor of it, rehearing en banc is DENIED.
ENTERED FOR THE COURT:
/s/ A. B. RUBIN
United States Circuit Judge
A-19
APPENDIX 4A
46 U.S.C. § 688. Recovery for injury to or death of
seaman
Any seaman who shall suffer personal injury in the
course of his employment may, at his election, maintain
an action for damages at law, with the right of trial by
jury, and in such action all statutes of the United States
modifying or extending the common-law right or remedy
in cases of personal injury to railway employees shall
apply; and in case of the death of any seaman as a result
of any such personal injury the personal representative
of such seaman may maintain an action for damages at
law with the right of trial by jury, and in such action all
statutes of the United States conferring or regulating the
right of action for death in the case of railway employees
shall be applicable. Jurisdiction in such actions shall be
under the court of the district in which the defendant
employer resides or in which his principal office is located.
Mar. 4, 1915, c. 153, § 20, 38 Stat. 1185; June 5, 1920,
c. 250 § 33, 41 Stat. 1007.
#*
A-20
APPENDIX 4B
45 U.S.C. § 56. Actions; limitations; concurrent juris-
diction of courts
No action shall be maintained under this chapter unless
commenced within three years from the day the cause of
action accrued.
Under this chapter an action may be brought in a dis-
trict court of the United States, in the district of the
residence of the defendant, or in which the cause of action
arose, or in which the defendant shall be doing business
at the time of commencing such action. The jurisdiction
of the Courts of the United States under this chapter shall
be concurrent with that of the courts of the several States.
Apr. 22, 1908, c. 149, § 6, 35 Stat. 66; Apr. 5, 1910,
c. 143, § 1, 36 Stat. 291; Mar. 3, 1911, c. 231, § 291,
36 Stat. 1167; Aug. 11, 1939, c. 685, § 2, 53 Stat. 1404;
June 25, 1948, c. 646, § 18, 62 Stat. 989.
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APPENDIX 4C
46 U.S.C. § 761. Right of action; where and by whom
brought
Whenever the death of a person shall be caused by
wrongful act, neglect, or default occurring on the high
seas beyond a marine league from the shore of any State,
or the District of Columbia, or the Territories or de-
pendencies of the United States, the personal representa-
tive of the decedent may maintain a suit for damages in
the district courts of the United States, in admiralty, for
the exclusive benefit of the decedent’s wife, husband,
parent, child, or dependent relative against the vessel,
' person, or corporation which would have been liable if
death had not ensued.
Mar. 30, 1920, c. 111, § 1, 41 Stat. 537.
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APPENDIX 4D
46 U.S.C. § 763. Limitations
Suit shall be begun within two years from the date of
such wrongful act, neglect, or default, unless during that
period there has not been reasonable opportunity for se-
curing jurisdiction of the vessel, person, or corporation
sought to be charged; but after the expiration of such
period of two years the right of action hereby given shall
not be deemed to have lapsed until ninety days after a
reasonable opportunity to secure jurisdiction has offered.
Mar. 30, 1920, c. 111, § 3, 41 Stat. 537.
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APPENDIX 4E
Rule 8(c). Federal Rules of Civil Procedure
(c) Affirmative Defenses. In pleading to a preceding
pleading, a party shall set forth affirmatively accord and
Satisfaction, arbitration and award, assumption of risk,
contributory negligence, discharge in bankruptcy, duress,
estoppel, failure of consideration, fraud, illegality, injury
by fellow servant, laches, license, payment, release, res
judicata, statute of frauds, statute of limitations, waiver,
and any other matter constituting an avoidance or affirma-
tive defense. When a party has mistakenly designated a
defense as a counterclaim or a counterclaim as a defense,
the court on terms, if justice so requires, shall treat the
pleading as if there had been a proper designation.
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APPENDIX 4F
Federal Rules of Civil Procedure
Rule 56. Summary Judgment
(a) For Claimant. A party seeking to recover upon
a claim, counterclaim, or cross-claim or to obtain a de-
claratory judgment may, at any time after the expiration
of 20 days from the commencement of the action or after
service of a motion for summary judgment by the adverse
party, move with or without supporting affidavits for a
summary judgment in his favor upon all or any part
thereof.
(b) For Defending Party. A party against whom a
claim, counterclaim, or cross-claim is asserted or a declara-
tory judgment is sought may, at any time, move with or
without supporting affidavits for a summary judgment in
his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion
shall be served at least 10 days before the time fixed for
hearing. The adverse party prior to the day of hearing
may serve opposing affidavits. The judgment sought shall
be rendered forthwith if the pleadings, depositions, an-
swers to interrogatories, and admissions on file, together
with the affidvaits, if any, show that there is no genuine
issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. A summary
judgment, interlocutory in character, may be rendered
on the issue of liability alone although there is a genuine
issue as to the amount of damages.
(d) Case Not Fully Adjudicated on Motion. If on
motion under this rule judgment is not rendered upon
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the whole case or for all the relief asked and a trial is
necessary, the court at the hearing of the motion, by
examining the pleadings and the evidence before it and
by interrogating counsel, shall if practicable ascertain what
material facts exist without substantial controversy and
what material facts are actually and in good faith con-
troverted. It shall thereupon make an order specifying
the facts that appear without substantial controversy, in-
cluding the extent to which the amount of damages or
other relief is not in controversy, and directing such
further proceedings in the action as are just. Upon the
trial of the action the facts so specified shall be deemed
established, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense
Required. Supporting and opposing affidavits shall be
made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirm-
atively that the affiant is competent to testify to the mat-
ters stated therein. Sworn or certified copies of all papers
or parts thereof referred to in an affidavit shall be attached
thereto or served therewith. The court may permit affi-
davits to be supplemented or opposed by depositions, an-
swers to interrogatories, or further affidavits. When a mo-
tion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon
the mere allegations or denials of his pleading, but his
response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is
a genuine issue for trial. If he does not so respond, sum-
Mary judgment, if appropriate, shall be entered against
him.
_—
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(f) When Afiidavits are Unavailable. Should it appear
from the affidavits of a party opposing the motion that
he cannot for reasons stated present by affidavit facts
essential to justify his opposition, the court may refuse
the application for judgment or may order a continuance
to permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other
order as is just.
(g) Affidavits Made in Bad Faith. Should it appear
to the satisfaction of the court at any time that any of
the affidavits presented pursuant to this rule are presented
in bad faith or solely for the purpose of delay, the court
shall forthwith order the party employing them to pay
to the other party the amount of the reasonable expenses
which the filing of the affidavits caused him to incur, in-
cluding reasonable attorney’s fees, and any offending party
or attorney may be adjudged guilty of contempt.
As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21,
1963, eff. July 1, 1963.
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APPENDIX 5
I, Heli Ramon Sanchez, Venezuelan, being over the
age of majority, do make the present declaration of my
own free will.
Approximately five days after the injury and death of
my father, Heli Ramon Sanchez, while he was working
for the Loffland Brothers Company, I was at home with
my mother, Aida Cardozo de Sanchez, when Mr. Romulo
Lujano, an employee of Loffland, came to see my mother
with respect to the payment of money which Loffland
owed to her. I was present while they were conversing,
and Mr. Lujano clearly told my mother that with this
payment that Loffland was making to her, it no longer
owed her anything else, and that she would receive this
payment because what they were paying her, was all that
Loffland had to pay her, and that in addition she did not
need to worry about the future because Loffland would
be attending to her needs and those of us, the children
of Heli Ramon Sanchez.
He also told my mother that it was preferable to always
be in agreement with Loffland, because like that Loffland
would protect her and attend to her needs, and that it
was not convenient for her to be in Opposition to the
company.
Romulo Lujano also told my mother during the con-
versation, that she should not worry because they were
going to give me a job in order to help us economically,
because the company wanted to help us, and for that
reason it was good to be in agreement with Loffland.
A few days later, this same Mr. Lujano, ordered me to
go to the Company, that they were going to give me a
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job, as if he were sure that they would, and today I ain
still working for Loffland.
Lujano told my mother that it was preferable to be in
agreement with Loffland, because like that they would
give me a job and they would pay her what they were
giving her at that time, and that if she was not in agree-
ment with this payment, they could not give her anything
and they would then not give me a job.
I affirm that this statement is the truth.
Signed: Heli Ramon Sanchez
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APPENDIX 6
I, Even Cardozo, Venezuelan, being over the age of
majority, residing in the District of Urdaneta in the State
of Zulia, Venezuela, declare the following:
I am the brother of the widow, Aida de Sanchez, and
approximately four or five days after my brother-in-law
Heli Ramon Sanchez suffered an accident and died while
working for the Loffland Brothers Company, I was at my
sister’s, Aida Cardozo de Sanchez, house, when an em-
Ployee of Loffland named Lujano, arrived, saying that he
wanted to talk with my sister, Aida.
He said that he wanted to talk to her with respect to
the payments that Loffland was going to give her because
of the death of my brother-in-law and then he came in
to talk to her.
In the conversation, Mr. Lujano told my sister Aida,
that he had brought the payment which was due accord-
ing to the law, but that in addition, Loffland was worried
about her and that in the future she would not have any
problems because Loffland would be attending to her.
Mr. Lujano explained to my sister, Aida, that what he
was giving her was all that could be claimed according
to the law, and that no other amount of money was due
her, and that those were all her rights, and that at one
time the company wanted to cancel everything that was
due her, but that she should not worry because in the
future, Loffland was going to help her and my nephews.
He also told her that the best thing would be to con-
tinue with Loffland, because the company was going to
help her, and that in addition, so that she would not have
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any economic problems, they were going to give a job to
the son of my sister, Heli Ramon Sanchez, as long as
she didn’t maintain any action against the company, and
that she would receive the payment.
Really, a few days later my nephew, Heli Ramon San-
chez, began working as a laborer for Loffland, and he is
still working with Loffland in Maracaibo. Lujano told my
sister that it was necessary that she sign to give a job to
my nephew, and to give her the money that he had
brought, because if she didn’t sign, he would take the
payment back to Loffland and then they wouldn’t give a
job to my nephew, Heli Ramon Sanchez, then my sister
accepted Loffland’s offer and they gave her a check and
they gave a job to Heli Ramon Sanchez, a few days later.
Signed: Even Cardozo
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.