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FLEISCHMAN v. UNITED STATES

April 5, 1934

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



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

On stipulation the two above-entitled suits were tried together, and, as the facts are the same in both, one opinion will suffice.

This suit is brought to recover damages for personal injuries alleged to have been received by the libelant while employed as second assistant engineer on the U.S.S. Bird City.

 On or about the 1st day of November, 1926, the libelant commenced a common-law action against the United States Shipping Board Emergency Fleet Corporation and Moore & McCormack Company, for the recovery of damages arising out of the injuries alleged to have been sustained as hereinafter set forth; in which action the defendants interposed answers, and the said action was duly noticed for trial and was on the calendar at the time the motion to dismiss hereinafter recited was made.

 On the 6th day of January, 1930, the Supreme Court of the United States handed down its decision in Johnson et al. v. United States Shipping Board Emergency Fleet Corporation, 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.).

 Subsequent to such decision and in the month of April, 1930, the defendants in said common-law action, United States Shipping Board Emergency Fleet Corporation and Moore & McCormack Company, moved the court to dismiss the complaint in said action, upon the ground that the court had no jurisdiction thereof by virtue of the said decision of the United States Supreme Court, which motion was granted and an order dismissing said complaint was entered, not upon the merits, but solely and exclusively upon the ground that the court lacked jurisdiction.

 Subsequent to the entry of the said order of dismissal as aforesaid, Congress by Act of June 30, 1932, 47 Stat. 420 (46 USCA § 745), amended section 5 of the Suits in Admiralty Act of March 9, 1920, 41 Stat. 526, which had limited the time of bringing 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 the 5th day of August, 1932, the libelant filed the libel in the first above-entitled suit, and on December 30, 1932, filed the libel in the second above-entitled suit. The cause of action alleged in both of the above-entitled suits is the same cause of action as that alleged in the common-law action in which the complaint had been dismissed, and the above-entitled suits are properly brought under the said Amendatory Act of June 30, 1932.

 I find it unnecessary to enter into any extended reasoning for so holding, as my reasons are fully set forth in Adders v. United States, 5 F. Supp. 457, in this court, Admiralty No. 13604, decided on September 5, 1933, and on that reasoning I now rely. The decree in that case was affirmed by the Circuit Court of Appeals of this Circuit, on April 2, 1934 (70 F.2d 371).

 The respondent United Stastes of America was, at all the times hereinafter mentioned, the owner of the U.S.S. Bird City, and was at all of such times and still is a corporation sovereign.

 The respondent United States Shipping Board Merchant Fleet Corporation is a corporation of the District of Columbia, and the successor of the United States Shipping Board Emergency Fleet Corporation, a corporation of the District of Columbia, and during all the times hereinafter mentioned the operator of the U.S.S. Bird City.

 On September 14, 1925, the libelant, at New York, signed on the steamship Bird City as second assistant engineer, at $165 per month and found.

 The libelant had held a chief engineer's license since 1923, and had been first assistant engineer on four different ships.

 On October 2, 1926, at about 5:45 o'clock p.m., the Bird City was lying at Moore & McCormack's dock at the foot of Twentieth street, East River, head in toward the shore, with the port side to the dock, a long covered pier. The Bird City had finished discharging cargo at about 3:20 o'clock p.m. It was high tide at that pier at 5:45 o'clock p.m., and the day was cloudy. The ...


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