The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This suit is brought to recover damages for personal injuries alleged to have been received by the libelant on board the steamship West Selene, on November 30, 1920, due to the negligence of the defendant.
In August, 1922, the libelant commenced in the United States District Court for the Southern District of New York an action at law against the United States Shipping Board Emergency Fleet Corporation and Moore & McCormack Company, Inc., to recover for injuries alleged to have been sustained by him aboard the steamship West Selene, on November 30, 1920, due to the negligence of the defendants. The defendants appeared and answered and set up among other defenses that the United States of America was the registered owner of the steamship West Selene, and that the plaintiff's (the present libelant's) sole remedy for his injuries was under the Suits in Admiralty Act (46 USCA §§ 741-752).
The action at law was tried in February, 1929, before the court and a jury, in the Southern District of New York, and a verdict found for the plaintiff, on which a judgment was entered on February 28, 1929.
An appeal was taken from said judgment by defendants, and, while the appeal was pending the Supreme Court of the United States, on January 6, 1930, in the cases of Johnson, Lustgarten et al. v. United States Shipping Board, 280 U.S. 320, 50 S. Ct. 118, 74 L. Ed. 451, decided that the remedy afforded by the Suits in Admiralty Act was exclusive of all other remedies at law as well as in admiralty, for any seaman injured on a merchant vessel registered in the name of the United States of America.
Shortly after the decision, the defendants moved thereon to dismiss the plaintiff's complaint on the ground that the court lacked jurisdiction of the subject matter of the action of the complaint.
The motion was based upon an affidavit by Mr. Donovan, counsel for the government, setting forth that the steamship West Selene was owned by the government, and that under the Lustgarten decision, upon which the application was based, the court was without jurisdiction. There were attached to Mr. Donovan's moving affidavit (a) a copy of the Lustgarten decision, and (b) a copy of the certificate of registry of the steamship West Selene, showing that the "United States represented by the Shipping Board is the only owner of the vessel called the West Selene."
That motion to dismiss came on to be heard, and in opposing the motion Mr. Brooks, the attorney for the plaintiff (present libelant), contended that, even if the Lustgarten decision controlled, the motion should have been made in the Circuit Court where the appeal was pending. Mr. Brooks was advised in court that the Lustgarten decision did apply, and that the motion would be granted, and thereupon he signed a stipulation consenting to the withdrawal of the defendants' appeal, the vacating of the judgment, and the discontinuance of the action, and that upon such stipulation an order was entered on August 18, 1930, discontinuing the action without costs:
"On the ground that the Court lacks jurisdiction of the subject matter herein as set forth under a decision handed down by the Supreme Court of the United States in the cases of John Johnson, Petitioner, v. United States Shipping Board and Lustgarten v. United States Shipping Board."
At the time of the decision in Johnson v. United States Shipping Board, supra, there were a large number of such suits pending against the United States or its agencies, which on the authority of that case were subsequently dismissed for lack of jurisdiction after the two-year period for instituting actions under the Suits in Admiralty Act had expired, and to afford relief to those seamen Congress, by Act of June 30, 1932, 47 Stat. 420, amended section 5 of the Suits in Admiralty Act of March 9, 1920, 41 Stat. 526 (46 USCA § 745), which had limited the time of bringing of actions thereunder to a period of two years after the cause of action arose, so as to provide as follows:
"Suits as authorized in this chapter shall be brought within two years after the cause of action arises: Provided further, That the limitations in this section contained for the commencement of suits hereunder shall not bar any suit against the United States or the United States Shipping Board Merchant Fleet Corporation, formerly known as the United States Shipping Board Emergency Fleet Corporation, brought hereunder on or before December 31, 1932, if such suit is based upon a cause of action whereon a prior suit in admiralty or an action at law or an action under subdivision (1) of section 250 of Title 28, was commenced prior to January 6, 1930, and was or may hereafter be dismissed because not commenced within the time or in the manner prescribed in this section, or otherwise not commenced or prosecuted in accordance with its provisions: Provided further, That such prior suit must have been commenced within the statutory period of limitation for common-law actions against the United States cognizable in the Court of Claims: Provided further, That there shall not be revived hereby any suit at law, in admiralty, or under subdivision (1) of section 250 of Title 28 heretofore or hereafter dismissed for lack of prosecution after filing of suit."
On December 30, 1932, the libelant filed this libel in personam under the Suits in Admiralty Act as so amended, to recover for said alleged personal injuries sustained by him on the steamship West Selene on November 30, 1920.
That the respondent is a sovereign corporation and was the owner of the steamship West Selene which was operated as a merchant vessel was admitted.
By the original answer filed herein, the respondent admitted allegations to the effect that this court had jurisdiction of the subject-matter of this action, but, it being made to appear that such admissions were erroneously made, at the beginning of the trial, due notice of the motion therefor having been given, the respondent was permitted to amend its answer by not only denying the allegations of article seventh of the libel, as to the jurisdiction of the court, but also specifically alleging, in the thirteenth article of the amended answer, that it does not appear that any previous suit in admiralty or action at law, etc., based on the cause of action alleged in the libel, was commenced against the United States or the Fleet Corporation within the statutory period of limitation for common-law actions against the United States cognizable in the Court of Claims.
The point of the respondent's objection to the jurisdiction of this court is that this suit is not a revival of a previous action within the contemplation of the amendment. The previous action was commenced against the Fleet Corporation and Moore & McCormack Company, Inc. This suit is against the United States of America.
Respondent points out that the first proviso contained in the amendment is that the limitations contained in the section, that is, the two-year limitation, shall not bar a suit against the United States or the Fleet Corporation commenced before December 31, 1932, "if such suit is based upon a cause of action whereon a prior suit in admiralty * * * was commenced," etc.; and contends that this suit is not based upon the same cause of action set forth in the former suit, because it is against a new and distinct party.
In Pabst v. Roxana Petroleum Co. (D.C.) 30 F.2d 953, at page 955, Judge Hutcheson said on this general subject:
"In Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707, it is said: 'The courts have found it very difficult to give any general definition of the phrase "cause of action" which would apply to all cases alike and few courts have attempted to do so. * * * However, the following definition will be sufficient for the disposition of the case now before us. In the abstract, a cause of action consists of "the right claimed or wrong suffered by the plaintiff, on the one hand, and the duty or delict of the defendant on the other."'"
In Phoenix Insurance Co. of Hartford v. United States of America, 3 F. Supp. 112, 113, 1933 A.M.C. 308, in which the amended statute in question was considered, Judge Hincks said:
"Every judicial action has in it certain necessary elements, -- a primary right belonging to the plaintiff, and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant, which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing out of this delict; and, finally, the remedy or relief itself. Every action, however simple, must contain these essential elements, and, however complicated, it has no more." Wildman v. Wildman, 70 Conn. 700, at pages 707, 708, 41 A. 1. And further said, page 113 of 3 F. Supp.:
"'Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term, and as it is used in the codes of the ...