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^[1] and the Death on the High Seas Act^[2] and (2) the district court erred in awarding summary judgment 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 Brothers 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.

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 (DOHSA)^[3] is applicable,^[4] the elements of the general maritime claim are also derived from it. Mobil Oil Corporation v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978).

Higginbotham arose out of deaths resulting from a helicopter 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 DOHSA specifically limits recoverable damages to those pecuniary in nature.

Following the admonitions in both Moragne and Higginbotham 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 general maritime law death claim arising from death outside territorial waters, but treated the two year DOHSA statute as analogous.^[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 DOHSA statute of limitations in undiluted force to a wrongful death claim under general maritime law which arises outside of the United States territorial waters.^[6] We note, however, that even in the event that only laches applied, the expiration of the DOHSA-analogous period would require the plaintiff to show the absence of prejudice to the defendant and the reasonableness of the delay. Barrios v. Nelda Faye, Inc., 597 F.2d 881 (5th Cir. 1979); Watz v. Zapata Off-Shore Co., 431 F.2d 100 (5th Cir. 1970); Akers v. State Marine Lines, Inc., 344 F.2d 217 (5th Cir. 1965). Neither has been demonstrated. Therefore, we conclude that the claims were not timely presented.

The plaintiff's Jones Act claim is also time-barred under the statute of limitations provided in that statute.^[7]

We turn, then, to the contention that Loffland Brothers is estopped to raise the limitations 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 running 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 Transportation 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 equitable principle. Burke v. Gateway Clipper, Inc., 441 F.2d 946 (3d Cir. 1971).

The estoppel principle has been successfully invoked where the defendant made active misrepresentations to the plaintiff regarding the plaintiff's legal rights,^[8] as well as in cases where the defendant promised to pay the claim or to settle if the plaintiff did not file suit.^[9] However, 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.^[10]

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.^[11]

"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 (5th Cir. 1973).^[12]

Summary judgment is properly rendered for the defendant on the basis of the expiration of the statute of limitations 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 him from asserting the statutory bar.^[13] 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.