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SEA-LAND SERV. v. UNITED STATES

July 13, 1988

SEA-LAND SERVICE, INC., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: WOLIN

 In the instant action, this Court is faced with defendant's motion to dismiss plaintiff's suit on the theories that (1) plaintiff's claim for contribution is barred by the statute of limitations and (2) there is no legal duty to indemnify plaintiff. For the following reasons, defendant's motion is granted.

 I. BACKGROUND

 This action arises from a wrongful death action brought in the New York State Supreme Court for New York County captioned Anna Claire Swogger, as Executrix of the Estate of David Swogger v. Waterman Steamship Corp., et al., Index No. 13163/79 (the " Swogger action"). The Swogger action, commenced on April 13, 1979, was originally brought by David Swogger as a seaman's action for personal injury pursuant to the Jones Act, 46 U.S.C. App. § 688, and general maritime law. *fn1" The complaint alleged that while working as a marine engineer aboard thirteen vessels owned by five shipowner defendants (one of whom was Sea-Land Service, Inc. -- the plaintiff herein), David Swogger was exposed to asbestos-containing products which caused him to contract a lung disease. Swogger's period of employment aboard these named vessels spanned 29 years from 1949 through 1978.

 Discovery in the Swogger action indicated that David Swogger's complaint did not, however, seek recovery for his initial years at sea between the period 1943-1949. During this period, Swogger sailed exclusively aboard vessels owned and/or operated for the United States pursuant to General Agency Agreements by four shipping companies. *fn2"

 In February, 1984, Sea-Land (a defendant in the Swogger action) filed a third-party complaint in New York State naming 52 third-party defendants, including asbestos manufacturers, shipyards, distributors and additional shipping companies. Included within this group of third-party defendants were the four shipowner-employers who, although not named as primary defendants in the Swogger action, operated ships for the United States during 1943-1948 pursuant to the above-noted General Agency Agreements. Pursuant to contractual relations and/or the Suits in Admiralty Act, 46 U.S.C. App. § 741 et seq. ("SIAA"), these four defendants, because they operated as agents of the United States, tendered their defenses to the United States whereupon Sea-Land agreed to their voluntary dismissal from the Swogger action. *fn3"

 On June 24, 1985, Sea-Land reached a settlement in the Swogger action. Thereafter, Sea-Land made payments pursuant to that settlement. Exactly two years later, on June 24, 1987, Sea-Land ("plaintiff") filed the instant suit against the United States ("defendant") pursuant to the provisions of the Public Vessels Act, 46 U.S.C. App. § 782, et seq., and general admiralty law. In this action, Sea-Land seeks indemnity or contribution from the United States for the sums it paid in settlement of the Swogger action due to Swogger's alleged exposure to asbestos while employed aboard the vessels owned or operated by the United States.

 Currently, the United States moves to dismiss the complaint, claiming that (i) the action is barred by the applicable statute of limitations and (ii) the relationship between Sea-Land and the United States is such that no valid claim for indemnity exists.

 II. DISCUSSION

 A. Statute of Limitations - Contribution

 Section five of the Suits in Admiralty Act, 46 U.S.C. App. § 745, provides, in pertinent part, that suits against the United States "may be brought only within two years after the cause of action arises . . . ." Defendant maintains, therefore, that plaintiff's action is now time-barred because the two-year statute of limitations began to run, at the latest, upon the date of David Swogger's death -- January 10, 1980. Plaintiff, however, did not file the instant action for contribution and indemnity until June 24, 1987 -- more than seven-and-one-half years following Mr. Swogger's death. In response, plaintiff maintains that its cause of action did not accrue until June 24, 1985, the date of the settlement of the Swogger action. Thus, according to plaintiff its action was timely. Therefore, the issue before this Court with respect to the statute of limitations is the determination of precisely when plaintiff's cause of action in its contribution/indemnification action accrued.

 (1) The Government's Position. In support of its argument that plaintiff's cause of action accrued in 1980, defendant cites United New York Sandy Hook Pilots' Association v. United States, 355 F.2d 189 (2d Cir. 1965) in which the Second Circuit stated:

 
The facts pleaded by [the party seeking contribution] gave rise only to a claim against a tortfeasor and that this became time-barred two years after the accident, although the amount had not yet been established. The settlement did nothing to change this.

 Id. at 190-191 (emphasis added). See also Complaint of American Export Lines, Inc., 568 F. Supp. 956, 964 (S.D.N.Y. 1983) ("when the Court of Appeals [in Sandy Hook ] referred to 'a claim against a tortfeasor' that was barred by the two year limitations ...


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