was stated concisely by Senior Judge McAllister in Gillespie, a case closely approximating our own, 321 F.2d 518, at page 528:
'What the Jones Act established was a modification of the prior maritime law, and a new rule of general application in reference to the liability of owners of vessels for injuries to seamen; it superseded all state legislation on that subject; and the right of action given by the Jones Act to the personal representative to recover damages for and on behalf of designated beneficiaries for the death of a seaman when caused by negligence, is exclusive, and precludes a right of recovery of indemnity for the death by reason of the unseaworthiness of the vessel, irrespective of negligence, notwithstanding that right might be predicated upon the death statute of the State in which the injury was received. Lindgren v. United States, 281 U.S. 38, 50 S. Ct. 207, 74 L. Ed. 686.' (Emphasis in the opinion.)
And further at page 529 of 321 F.2d:
'The survival provisions of the Jones Act apply to an action brought by the personal representative of a deceased seaman, whose death was occasioned by a shipowner's negligent failure to comply with the absolute duty to furnish a seaworthy vessel.'
We conceive such principles of law to govern the instant case. Libellant's decedent lost his right to claim against the respondent dredge, in rem when he died; the Wrongful Death Act of New Jersey
does not confer upon a personal representative a cause of action for maritime tort for death to a seaman in the instant case, for Congress by the enactment of the Jones Act had preempted this precise area of liability as a matter of federal law.
Libellant stresses her right under the Survival Statute of New Jersey,
to recover for the pain and suffering sustained by her decedent in his lifetime as a result of the maritime tort occasioned by the respondent dredge's alleged unseaworthiness in an action in rem in admiralty, as distinct from the action for damages due to death. There is a line of cases which gives support to libellant's contention.
Survival statutes, in contrast to 'wrongful death' statutes, do not create a new cause for action, but rather preserve such right of action as may have accrued to the decedent in his lifetime. Under general maritime law, the seaman had he survived would have been entitled, in addition to his remedies in personam under the Jones Act for negligence, to a maritime lien enforceable in admiralty in rem against the offending vessel for injury caused by its unseaworthiness. The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760 (1903); The Imperator, 288 F. 372 (5 Cir. 1923). However, in Reed v. S.S. Yaka, 373 U.S. 410, 83 S. Ct. 1349, 10 L. Ed. 2d 448 (1963), where a longshoreman employed by an independent contractor was injured, the Court through Mr. Justice Black stated at page 412 of 373 U.S., at page 1351 of 83 S. Ct.:
'We find it unnecessary to decide whether a ship may ever be held liable for its unseaworthiness where no personal liability could be asserted * * *,' the Court finding that barring statutory exemption, a boat charterer is personally liable for unseaworthiness, and that this liability would support a libel in rem against the vessel itself, citing for authority, Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S. Ct. 446, 3 L. Ed. 2d 413 (1959).
Hence, assuming the libel in rem against the offending respondent vessel for personal injuries survived, under the New Jersey statute for pain and suffering due to unseaworthiness as set forth in her first cause of action, there must be considered the affirmative defense of 'laches' interposed by claimant as to the timeliness of the libel.
In Admiralty, the timeliness of a suit based upon unseaworthiness is determined by the equitable doctrine of laches in lieu of a statute of limitations. Claussen v. Mene Grande Oil Co., 275 F.2d 108 (3 Cir. 1960); Oroz v. American President Lines, 259 F.2d 636 (2 Cir. 1958). Laches consists of inexcusable delay in instituting a suit coupled with prejudice to the party against whom the claim is asserted. Taylor v. Crain, 195 F.2d 1963 (3 Cir. 1952); Gardner v. Panama R. Co., 342 U.S. 29, 72 S. Ct. 12, 96 L. Ed. 31 (1951); Loverich v. Warner Co., 118 F.2d 690 (3 Cir. 1941), cert. den. 313 U.S. 577, 61 S. Ct. 1104, 85 L. Ed. 1535. In applying this doctrine, the courts initially will look to analogous statutes of limitations as a guide in ascertaining what might constitute unreasonable delay; and concomitantly, to the circumstances of the particular case in determining whether prejudice may logically be presumed in the absence of an affirmative to the contrary. Claussen v. affirmative showing to the contrary. Claussen v. Mene Grande Oil Co., C.A., supra; Kane v. Union of Soviet Socialist Republics, 189 F.2d 303 (3 Cir. 1951). The pertinent analogous statutes of limitations are R.S. 2A:14-2, N.J.S.A., which prescribes a period of two years for commencement of a personal injury action; R.S. 2A:31-3, N.J.S.A. which likewise prescribes a period of two years for an action for wrongful death, and the Jones Act which prescribes a period of three years for a negligence action. Burns v. Bethlehem Steel Co., 20 N.J. 37, 118 A.2d 544 (1955); Oroz v. American President Lines, supra.
The present action was brought six years and four months after the accident, and more than four years after the running of the analogous limitations statutes.
The libellant urges that the timely filing of her earlier suit, the entry of her judgment and the prompt institution of this action upon ascertaining that her judgment was largely uncollectible, convincingly demonstrate that she was diligent rather than dilatory. Not so. Despite various remedies available to her, libellant was content to rely only upon her claim against the operator Eastern. There is nothing before the court to indicate that this was not a considered and informed decision at that time. Now, six years later, she seeks relief against the dredge. The passage of time seldom aids an aggrieved litigant. Vigilantibus et non dormientibus subserviunt leges, the laws aid those who are vigilant, and not those who sleep on their rights, is a maxim familiar to most, if not all, systems of jurisprudence. Benedict On Admiralty, (6th ed. 1940), vol. 3 sec. 462, pp. 290-291. Claimant's affidavit averring that the dredge has been in and around the navigable waters of the State of New Jersey for most, if not all, of the time between the accident and the present attachment has been uncontradicted. Once the effort was made, libellant had no apparent difficulty in attaching the dredge, substantially indicating that it could have been done as readily during the years of libellant's inaction. Cf. Claussen, supra, which involves similar circumstances.
With respect to the prejudicial element of laches, libellant contends that if the libel for unseaworthiness against respondent dredge prevails, no prejudice results to claimant, since it may resort to the warranty of sale that the vessel was free and clear of all liens. This is sophistry. Unseaworthiness of a vessel is coupled with indemnification by the owner in maritime law.
The vessel alone is a party to this suit in rem. Yet the claimant -owner is placed in a precarious position whereby some 6 years after an occurrence his proprietorship rights inherent in the vessel may be adversely affected by libellant's dilatory action against the vessel. Since 1957, the offending dredge has pursued her course within the domestic ports of the local maritime community; and more than 3 years after the occurrence of the injury and subsequent death of libellant's decedent, claimant became and still is the vessel's owner. Claimant's affidavit that it had no notice of the assertable maritime lien claim of libellant stands uncontradicted. More than 4 years have elapsed since it became the owner of the vessel. Where a maritime lien is to be enforced to the detriment of a bona fide purchaser without notice, the libellant must act with extraordinary diligence. As against such a purchaser such lien will be lost in equity after the lapse of a much shorter period of time under the doctrine of laches, than under analogous limitation statutes. The Key City, 81 U.S. 653, 14 Wall. 653, 660, 20 L. Ed. 896 (1871); Pacific Coast S.S. Co. v. Bancroft-Whitney Co., 94 F. 180, 189 (9 Cir. 1899); The Everosa, 93 F.2d 732 (1 Cir. 1937); Phelps v. The Cecelia Ann, 199 F.2d 627, 1952 A.M.C. 1968 (4 Cir. 1952); Gilmore & Black, The Law of Admiralty (1957) sec. 624-627; Norris, The Law of Seaman (2nd ed. 1962) sec. 454; Benedict On Admiralty (6th ed. 1940) sec. 464. In The Robert Gaskin, 9 F. 62, (D.C., E.D.Mich. 1881) where the libellant let 6 years elapse before filing his libel, the vessel having been within the jurisdiction several times and further, the vessel having been sold to a bona fide purchaser having no knowledge of the claim, it was held that libellant could not recover even though the libel had been filed before the sale, but process not effected until 3 months thereafter. In The Lauretta, 9 F. 622 (D.C.N.J.1881) at page 624, the following is aptly stated:
'There is no explanation of the delay in the present case. The alleged liability of the vessel was incurred in August, 1876. Nearly two years elapsed before the libel was filed. In the meantime the vessel was transferred to the claimant, without notice of the lien. She was within reach of the process of the courts, (Philadelphia Oyster trader in Delaware River and Bay) if the libellant had made any effort to hold her. I am clearly of the opinion that he ought not now be allowed to collect his claim out of the property of an innocent purchaser, and that the libel must be dismissed.'
While it may be true as contended, that the institution of libellant's civil action and jury trial within 2 years of the maritime accident against Eastern, the offending operator of the vessel, demonstrates reasonable diligence in seeking redress, the selection of that remedy at that time indicates at best only a choice of remedy. Viewed against the unreasonably long interval between the occurrence of the injury and the present admiralty suit in rem, hindsight has shown the selection of the singular remedy of civil jury trial, at a time when the law made ample provision for multiple remedies, to have been improvident. While alternate pursuit of multiple remedies may be permissible, experience convinces that it is undertaken at one's peril, unless pursued with diligence and before remaining remedies are lost. To disregard the protracted delay in seeking the present form of relief, to ignore the intervening equities which arose with the passage of time, merely because libellant failed to effect recovery on a civil judgment, or because she failed to seek appropriate remedies available at an earlier time, would be unconscionable and render meaningless traditional concepts of the equitable doctrine of laches. Consequently, the first cause of action of the libel will be dismissed.
The second cause of action in this libel is based upon the narrative facts of the first cause supplemented by the following allegations:
'21. Libellant alleges that the circumstances hereinbefore recited give rise to a maritime lien against the Dredge 'Queen." '22. Libellant alleges that the finding of the jury hereinbefore related is res judicata of the liability of the Dredge 'Queen', and that therefore libellant is entitled to judgment in this cause of action.'
By this cause of action, libellant is in effect seeking to take an in personam judgment obtained against a former charter operator, Eastern, and 'docket' such judgment through the admiralty court as a maritime lien against the vessel. This effort, while ingenious, is no less sophistic. The court is aware of no reliable judicial authority for libellant's novel proposition, that an in personam judgment based upon negligence, even though that negligence might be grounded in the unseaworthiness of the provided vessel, against a charterer, or operator, gives rise to a maritime lien in rem which may be perfected by execution sale of the vessel.
A maritime lien has generic origin in the personalization of a vessel in Admiralty making it chargeable with it debts and obligations.
Such a lien is inchoate until ignited by an appropriate maritime event, as with an asserted maritime tort, which generates a cause of action for damages. The maritime lien merely dispenses with the common law requirement that the res must be reduced to possession; it does not extinguish the element of liability by the mere happening of an event upon which a maritime claim may be predicated for the judicial determination of a debt. It is rudimentary, that levy of execution and forced sale are means employed to satisfy an established debt or obligation. It is precisely the perfection of this lien by its fruition into liability in rem of the respondent dredge which has been precluded by the dismissal of the first cause of action. The in personam judgment against the operator is res judicata only of the operator's liability for a maritime tort grounded in negligence. It cannot serve as a basis for establishing in rem liability of the dredge against which judgment was not entered, nor against claimant, the present owner, who was not a party to that collateral civil action.
The thing adjudicated by the civil judgment in Pennsylvania was the personal liability of Eastern, nothing more. Attempts to impress the vessel per se with liability in rem, in admiralty, predicated upon personal liability of another would be tantamount to shifting liability for fault based upon negligence in violation of the Jones Act and the general maritime law discussed above. Consequently, the second cause of action of this Libel fails in law and must be stricken.
The question of deprivation of use of the vessel because of monition on January 17, 1964, initially raised by claimant in its pleadings, and its subsequent release on pledged security March 24, 1964, has not been pressed by claimant in brief, argument or by proofs and, therefore, is deemed moot.
For the reasons assigned, the Libel is hereby dismissed. An appropriate order may be submitted by counsel with consent, or upon notice.