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LUSTGARTEN v. UNITED STATES

November 16, 1933

LUSTGARTEN
v.
UNITED STATES; SAME v. UNITED STATES SHIPPING BOARD MERCHANT FLEET CORPORATION



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

The two above-entitled suits were tried together and are in effect one suit, the first being brought by the libelant to recover from the United States of America, as owner, operator, manager, and controller of the steamship Coelleda, and the United States Shipping Board Merchant Fleet Corporation, as operator, manager, and controller of the steamship Coelleda; the second suit being brought by the libelant to recover from the United States Shipping Board Merchant Fleet Corporation, as operator, manager, and controller of the steamship Coelleda, for the same alleged personal injuries, failure to treat, and maintenance and cure of the libelant, which injuries are alleged to have been suffered by the libelant while a seaman on the steamship Coelleda.

The libelant, by his guardian, in December, 1926, commenced a common-law action against the United States Shipping Board Emergency Fleet Corporation and Consolidated Navigation Company, Inc., to recover damages for failure to treat, and maintenance and cure, arising out of the same alleged injuries as form the basis of this suit.

 The action at law was tried before the court with a jury, and submitted to the jury only on the claim of failure to treat, resulting in a verdict in favor of the libelant, and judgment was entered thereon.

 An appeal from that judgment was taken by the said defendants to the Circuit Court of Appeals for the Second Circuit, and the judgment appealed from was affirmed by that court. 28 F.2d 1014.

 A writ of certiorari was granted by the Supreme Court of the United States on the application of the said defendants, and that court after hearing argument on that appeal rendered its decision on January 6, 1930, which is reported in 280 U.S. 320, 50 S. Ct. 118, 74 L. Ed. 451, holding that the United States of America being the registered owner of the vessel, the exclusive cause of action on behalf of a seaman injured on any such vessel was by a suit in admiralty, under the Suits in Admiralty Act (46 USCA § 741 et seq.).

 By reason of the said decision of the United States Supreme Court, the said judgment was reversed and the judgment has been vacated and the complaint dismissed upon the ground that the common-law court never had jurisdiction thereof.

 The two-year period in which the suit might be maintained under the Suits in Admiralty Act had then expired, and the libelant was without remedy in admiralty.

 To meet this situation Congress passed the Act of June 30, 1932, c. 315, 47 Stat. 420 (which amended title 46, § 745, U.S. Code), 46 USCA § 745, to read as follows: "§ 745. Cause of action on which suits may be brought; limitations. 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."

 It is by virtue of that act that these libels are filed.

 In the common-law action the defendants were the United States Shipping Board Emergency Fleet Corporation and Consolidated Navigation Company, Inc., whereas in the admiralty suits the respondents are the United States of America and the United States Shipping Board Merchant Fleet Corporation.

 On behalf of the respondent United States of America, it is contended that this court is without jurisdiction because, the United States of America not having been a party to the common-law action, this is not an action to recover on the same cause of action, and that the court not having jurisdiction, no one can confer jurisdiction over the subject-matter where none exists, nor subject the United States to suit by consent.

 I have fully considered the question of jurisdiction in Adders v. United States, 5 F. Supp. 457, in this district, decided by me on September 5, 1933, and for the reasons set forth in that decision, I overrule the contention of the respondent United States of America as to jurisdiction, and hold that this court has jurisdiction.

 The question of jurisdiction is not, and cannot be, raised by the respondent United States Shipping Board Merchant Fleet Corporation, which was formerly known as the United States Shipping Board Emergency Fleet Corporation, one of the defendants in the common-law action.

 Ownership of the vessel by the respondent United States of America, its use as a merchant vessel, and the incorporation of the respondent, are admitted.

 The libelant during the times hereinafter described was employed by the respondents aboard the steamship Coelleda, having signed regular merchant shipping articles for a voyage to England and return as an ablebodied seaman, at $62.50 per month and found. At or about Manchester, England, his rating was changed to that of second cook, at $80 per month and found.

 On March 2, 1926, the Coelleda left Swansea, Wales, bound for the United States, and she was then in a good seaworthy condition, while there was water in what has been described in this case as a hollow rudder post. This was equipped with a steam siphon for the purpose of removing such water, and the siphon was operating properly when the vessel left Swansea.

 Extremely heavy weather was encountered on that voyage, the wind being up to gale force much of the time, and the vessel having continually head winds and head seas.

 Due to the stress of weather on March 5th, there was about six inches of water in the lazarette. This continued to increase until March 10th, when it had become two feet.

 As the water gained in the lazarette through the straining of the ship, the motion of the ship caused this water to slosh violently from side to side, and that carried away the shelving in the lazarette, which was used for stores, including a large wire hawser and other heavy material, which in sloshing to and fro carried away the sounding pipe, and also the dogs which secured the manhole door to the afterpeak tank, and that admitted salt water to the fresh water stowed in the afterpeak tank.

 Another pump was thereupon rigged, which freed the lazarette of water, and some of the afterpeak tank which lies below the lazarette.

 The water in the lazarette did not affect the steering of the vessel.

 The vessel passed the Azores, but due to the prolonging of the voyage by reason of the stress of weather and the salting of the afterpeak tank, and the fact that if the weather continued as boisterous as had already been experienced, the master was not sure that he would have ample fuel for the remainder of the voyage, the vessel returned to the Azores.

 The duties of the libelant as second cook on the steamship Coelleda were to bake, help the chief cook, wash pots and pans, peel potatoes, and dump ashes and garbage.

 On or about the 6th day of March, 1926, between 6 and 7 o'clock p.m., after the whole dinner had been served, the chief cook ordered the libelant to dump the ashes that were in the galley. The libelant asked the chief cook to help him, but the chief cook did not reply. The libelant again asked the chief cook to help him, and the chief cook told libelant that it was libelant's job, and that he had to do it himself. The libelant said that he looked up and down to see if he ...


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