The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
The libellant seeks to recover for injuries sustained by him as a result of an accident on March 21, 1940, when he fell through an open coal bunker hatch while employed as a fireman on the S. S. Leontios Teryazos, which was lying at Pier 16, Staten Island, New York City.
The libellant is a citizen of the government of Hungary. He became a member of the crew of the S. S. Leontios Teryazos, which is of Greek registry, having signed on said ship at Genoa, Italy, on February 15, 1940.
Theodore Teryazos, the respondent, is a subject of the Kingdom of Greece. The respondent made a motion herein to decline jurisdiction. Such motion was denied with leave to renew on the trial of the action. 40 F.Supp 191, 1941 A.M.C. 1858. When the case was called for trial on February 11, 1942, respondent renewed his motion that the Court decline jurisdiction on the ground that it would be a hardship for the respondent to try the case as he could not procure any of his witnesses as the ship left New York about the time this action was begun (libel filed December 23, 1940) and since that time the ship has never been heard of. This presents a case of real hardship.Apparently the ship was sunk and the crew is dead, otherwise by this time it is quite likely that some information would have come to the respondent concerning the ship and crew.No good purpose can therefore be served by declining jurisdiction under the circumstances.
Prior to the trial respondent objected to proceeding with the trial on the ground that the libellant is a non-resident enemy alien and that therefore the courts are not open to him under the Trading With The Enemy Act, U.S.C.A. Title 50, Appendix § 1 et seq., and that the action should therefore be stayed. Decision was reserved upon this motion and the Court directed that the case proceed to trial.
The Court intends to pass upon the question of the stay and the merits of the action and the reason for this is, in the event that the Court is in error in granting the motion for a stay, the Appellate Court will have before it the merits of the action.
It is conceded by the parties and it is the law under the Trading With The Enemy Act that a non-resident enemy alien is precluded from suing in the Federal or State Courts. The following Bulletin of the United States Department of Justice appeared in the New York Law Journal of February 5, 1942:
"Bulletin of U.S. Department of Justice
"Actions by Native Citizens or Subjects of Enemy Countries.
"Attorney-General Francis Biddle has issued a statement clarifying the right of natives, citizens or subjects of enemy countries, who are resident in the United States, to institute and prosecute suits in federal or state courts in the course of which he said:
"Any person who is an 'enemy' for the purposes of the Trading With the Enemy Act is prohibited by section 7b of that act from prosecuting suits in any court within the United States prior to the end of the war.
"For purposes of the Trading With the Enemy Act an 'enemy' is defined by section 2 to mean any person, of any nationality, resident within the territory of, or the territory occupied by any nation with which the United States is at war. Under subdivision (c) of that section the President is authorized by proclamation to include within the term 'enemy' any individuals or class of individuals who may be natives, citizens or subjects of any nation with which the United States is at war even though such individuals or class of individuals may be resident in the United States if the President shall find that the safety of the United States or the successful prosecution of the war so requires. No such proclamation under section 2 of the Trading With the Enemy Act has been issued.
"Proclamations have been issued by the President which govern the conduct to be observed by alien enemies in this county and which delegate to the attorney-general the authority to apprehend and detain specified alien enemies whom the attorney-general deems dangerous to the public peace and safety of the United States.
"These proclamations were issued under the authority granted by section 21 of title 50, United States Code [50 U.S.C.A. Appendix § 21] and careful note should be taken of the fact that they are not in any way an exercise of the power vested in the President by ...