On Appeal From the United States District Court For the District of New Jersey, Newark, D.C. Civil Action No. 87-2483.
Higginbotham, Stapleton, and Cowen, Circuit Judges.
This is an appeal from an order of the district court granting the motion of the United States to dismiss Sea-Land Service, Inc.'s ("Sea-Land") complaint seeking contribution from the United States under, inter alia, the Suits In Admiralty Act ("SIAA"). The district court held that Sea-Land's "contribution action is time-barred by the two year statute of limitations of 46 U.S.C. § 745." We will reverse and remand.
Sea-Land here seeks contribution toward amounts it paid to settle a wrongful death action brought in the New York State Supreme Court for New York County, entitled Anna Claire Swogger, as Executrix of the Estate of David D. Swogger v. Waterman Steamship Corp., et al. (the "Swogger action"). The Swogger action was commenced by David Swogger, a seaman, on April 13, 1979 to recover damages for personal injury pursuant to the Jones Act, 46 U.S.C. § 688, and general maritime law. The complaint alleged that while working as a maritime engineer aboard thirteen vessels owned by Sea-Land and the other four ship-owner defendants, Swogger was exposed to asbestos-containing products that caused him to contract a lung disease. Swogger was employed on these vessels from 1949 to 1978.
Swogger died on January 10, 1980, before any discovery had been conducted, and the suit remained dormant for approximately two years. On June 15, 1982, Anna Claire, David Swogger's widow, was named executrix of her husband's estate, and she caused the complaint to be amended to state a claim for wrongful death. Discovery commenced shortly thereafter and Sea-Land then found out that the complaint omitted reference to his first seven years at sea, 1941-1948, and to his employers during that period. In February, 1984, after having completed discovery, Sea-Land filed a third-party complaint against fifty-two parties. Included in this number were four shipping companies that had operated, pursuant to General Agency Agreements with the United States, the ships upon which David Swogger had worked until 1949. Based on their contractual relationship with the United States, all four companies tendered their defense to the United States. The United States accepted the tenders and the court later entered an order dismissing the shipping companies from the state court action.
On June 24, 1985, Sea-Land settled with Mrs. Swogger for $385,208.28. On June 24, 1987, Sea-Land filed this suit in the district court against the United States seeking contribution or indemnity for its settlement with Swogger. The United States thereafter filed a motion to dismiss the complaint claiming that the district court lacked subject matter jurisdiction.
In granting the government's motion to dismiss, the district court held that it lacked subject matter jurisdiction because the action was time-barred under 46 U.S.C. § 745 (1982). The district court reasoned that United New York Sandy Hook Pilot's Ass'n v. United States, 355 F.2d 189 (2d Cir. 1965) (Friendly, J.) supported the government's position that a cause of action for contribution against the government in an admiralty case, for the purposes of section 5 of the SIAdA, 46 U.S.C. § 745, arose at the time of the underlying injury. Although taking note of contrary authority, the court stated that "the law of admiralty appears to be distinct to itself; and it is not within the province of this court to amend that which has withstood the test of time." Thus, the court concluded that the statute started to run, at the latest, upon the date of David Swogger's death, January 10, 1980.
Sea-Land's action for contribution against the United States is governed by the two-year statute of limitations contained in the SIAA. The relevant provision states that "suits authorized by this chapter may be brought only within two years after the cause of action arises. . . ." 46 U.S.C. § 745. Accordingly, we must decide at what point a cause of action for contribution from the government arises under the SIAA.
We start our analysis with the general rule that a cause of action for contribution does not arise until the party seeking contribution has paid, or had a judgment rendered against him or her for, more than his or her fair share of a common liability. ITT Rayonier, Inc. v. Southeastern Maritime Co., 620 F.2d 512, 514 (5th Cir. 1980) (per curiam); Roehrig v. City of Louisville, 454 S.W.2d 703, 705 (Ky. 1970); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts § 50 at 339-340 (5th ed. 1984); 3 J. Moore, J. Lucas, and G. Grotheer, Moore's Federal Practice para. 14.09 at 14-55 to 14-56 (2d ed. 1988). Cases applying the general rule are legion. See, e.g., Erie R.R. Co. v. Erie Transportation Co., 204 U.S. 220, 27 S. Ct. 246, 51 L. Ed. 450 (1907) (admiralty law); Joiner v. Diamond M. Drilling Co., 688 F.2d 256 (5th Cir. 1982) (applying Louisiana law); United States Lines, Inc. v. United States, 470 F.2d 487 (5th Cir. 1972) (action against United States under the FTCA for negligent treatment of seaman); General Electric Co. v. United States, 620 F. Supp. 160 (D.C. Minn. 1985), aff'd, 792 F.2d 107 (8th Cir. 1986) (under the FTCA); Bradford v. Indiana & Michigan Electric Co., 588 F. Supp. 708 (S.D.W.Va. 1984) (admiralty law); Feehan v. United States Lines, Inc., 522 F. Supp. 811 (S.D.N.Y. 1980) (admiralty law); Globig v. Greene & Gust Co., 184 F. Supp. 530 (E.D. Wis. 1960) (contribution against the United States under the FTCA); Chicago & N.W.R. Co. v. Chicago, R.I. & P.R. Co., 179 F. Supp. 33 (N.D. Iowa 1959), aff'd, 280 F.2d 110 (8th Cir. 1960), cert. denied, 364 U.S. 931, 81 S. Ct. 378, 5 L. Ed. 2d 364 (1961) (applying Iowa law); New York & Porto Rico S.S. Co. v. Lee's Lighters, Inc., 48 F.2d 372 (E.D.N.Y. 1930) (in an admiralty case, following the example of Pennsylvania law); Trinity Universal Ins. Co. v. State Farm Mutual Auto Ins. Co., 246 Ark. 1021, 441 S.W.2d 95 (1969); Read Drug & Chemical Co. v. Colwill Constr. Co., 250 Md. 406, 243 A.2d 548 (1968); Sziber v. Stout, 419 Mich. 514, 358 N.W.2d 330 (1984); McKay v. Citizens Rapid Transit Co., 190 Va. 851, 59 S.E.2d 121 (1950); State Farm Mut. Auto Ins. Co. v. Schara, 56 Wis. 2d 262, 201 N.W.2d 758 (1972).*fn1
Moreover, as the government conceded at oral argument, this general rule is applied in admiralty as well as in other cases. A cause of action for contribution between private parties in admiralty cases accrues either when one party pays, or has a judgment entered against it, for more than its share of the damages. See Erie R.R. Co. v. Erie Transportation Co., 204 U.S. 220, 226-227, 27 S. Ct. 246, 51 L. Ed. 450 (1907) (stating that a right to contribution in an admiralty collision case accrues when the third-party plaintiff pays the original plaintiff). This court thus observed in Purnell v. Norned Shipping B.V., 801 F.2d 152, 156 (3d Cir. 1986), cert. denied, 480 U.S. 934, 107 S. Ct. 1576, 94 L. Ed. 2d 767 (1987), a noncollision admiralty case, that "if the plaintiffs had a wrongful death claim against the City immediately following the decedents' deaths, . . . the Stevedore, at that point, had an inchoate claim for contribution against the City under federal maritime law which would mature when it paid more than its share of the joint liability." (emphasis in original). Similarly, in the context of a collision case, we had occasion to address the issue of when a claim for contribution matures in ...