billie-davis-v-ernest-harold-nelson-a-non-resident-individually-and-as , 285 F.2d 214 ( 1960 )

285 F.2d 214

Billie DAVIS, Appellant,
v.
Ernest Harold NELSON, a non-resident, individually, and as Master, and American Export Lines, Inc., a foreign corporation or association, as the owner and/or operator of THE American SS EXPORTER, Appellees.

No. 8197.

United States Court of Appeals Fourth Circuit.

Argued November 18, 1960.

Decided November 21, 1960.

Burt M. Morewitz, Newport News, Va., on brief for appellant.

Harry E. McCoy, Norfolk, Va. (Seawell, McCoy, Winston & Dalton, Rixey & Rixey, William B. Eley and Carter B. S. Furr, Norfolk, Va., on brief), for appellees.

Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and HARRY E. WATKINS, District Judge.

PER CURIAM.

1

The District Court dismissed, for laches, the libel of the present appellant, a longshoreman who sustained injuries in 1949, but did not bring his action against the ship until 1956.

2

As this delay of nearly seven years exceeds any possibly applicable limitations period, it became the duty of the libellant to plead and prove facts negativing a presumption of prejudice from inexcusable delay. The presumption would be against prejudice if suit had been brought during the legal period of limitations. No allegations were made in the libel in an effort to illuminate the issue, but the court held a hearing, at which there was no showing sufficient to excuse or justify the delay, or to negative prejudice.

3

For the reasons stated in the District Court's opinion, 190 F. Supp. 137, the order of dismissal is affirmed.

4

Affirmed.