The opinion of the court was delivered by: BYERS
This is a motion of Marco Mendoza to permit him to prosecute his claim for maintenance and cure and damages for alleged negligence at common law "to final award against Roscoe H. Hupper, Esq., Receiver of the S.S. Pan America, and the owners and operators" thereof.
The question for decision is whether Mendoza can assert his claim in an action at common law.
The order appointing the receiver, in paragraph 10, provides among other things:
"Ordered that such operation and all steps taken in connection therewith by said receiver shall be solely for the account of the libellant, and that libellant shall hold said vessel and her owners, and the said Trustees (Trustees in 77B proceedings) harmles * * *".
The Suits in Admiralty Act § 1, 46 U.S.C. § 741, 46 U.S.C.A. § 741, reads in part as follows:
"Section 741. Exemption of United States vessels and cargoes from arrest or seizure. No vessel owned by the United States or by any corporation in which the United States or its representatives shall own the entire outstanding capital stock or in the possession of the United States or of such corporation or operated by or for the United States or such corporation [Italics supplied] * * * shall, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions * * *."
In the following section, 46 U.S.C.A. § 742, it is set forth that a libel in personam may be brought against the United States or such corporation, where if the vessel were privately a proceeding in admiralty could be maintained.
In 46 U.S.C.A. § 743, there is provision generally that such suits shall be heard and determined as though between private parties. Among other things, it is declared that: "Decrees shall be subject to appeal and revision as provided in other cases of admiralty and maritime jurisdiction. * * *"
The statute makes no mention of any suit against the United States, or such corporation, at common law, and therefore such a remedy must be deemed to have been excluded. See Johnson v. Fleet Corporation, 280 U.S. 320, 50 S. Ct. 118, 74 L. Ed. 451.
At the request of the court, the receiver has submitted for examination a copy of the Shipping Articles of June 30, 1938, when Mendoza signed on before the Shipping Commissioner for the Port of New York. In that part of the Articles headed "Registered Managing Owner or Manager", the following appears: