The opinion of the court was delivered by: GODDARD
This action is brought under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., on behalf of the estate of Martin Gill, a stevedore who was killed by being precipitated into the ship's hold while working aboard the Steamship Cornelia on November 12, 1945.
The libel filed May 9, 1946 alleges that the libelant, the deceased stevedore's wife, was duly appointed administratrix of his estate by the Surrogate of Hudson County, New Jersey; that the United States Government and the War Shipping Administration owned and operated the Cornelia; that the War Shipping Administration is an agency of the United States; 'that at all times hereinafter mentioned the said S.S. Cornelia was moored at Pier 9, Jersey City, New Jersey'. The libel then alleges the unseaworthiness of the Cornelia, and negligence of respondents, the dependents of the deceased, and the admiralty jurisdiction of this court.
Respondent's answer is a general denial of the material allegations of the libel and sets forth four separate and complete defenses, including the following: 'Eighteenth: Respondent objects to the exercise by this court of jurisdiction in this action on the ground that the action has not been brought in the proper district.'
Subsequent to the filing of its answer, respondent on September 11, 1947 petitioned this court under Admiralty Rule 56, 28 U.S.C.A., for leave to bring in the deceased stevedore's employer as a party jointly or liable over to the respondent. This petition was granted. Respondent served interrogatories which were answered. On April 8, 1949 the case proceeded to trial.
Counsel made their opening statements. No motion was made to dismiss or transfer the case because of improper venue. After the testimony of one witness had been completed, the court adjourned to the following day; then, for the first time, counsel for respondents, United States and War Shipping Administration, moved to dismiss or transfer the case to New Jersey on the ground of improper venue. Decision was reserved.
Before considering liability, the question whether the venue requirements of Section 2 of the Suits in Admiralty Act, 46 U.S.C.A. § 742, have been met, must be determined.
The action is one which could have been brought either in rem or in personam, but as it is brought under Section 2 of the Suits in Admiralty Act, it is an action in personam. Hoiness v. United States, 335 U.S. 297, 69 S. Ct. 70.
Under that section the venue may properly be laid in any one of three places:
1. Where the parties so suing reside.
2. Where the parties have their principle place of business in the United States.
3. In which the vessel or cargo charged with liability is found.
Mexatas v. United States, D.C., 68 F.Supp. 667.
The libelant was and is a resident of New Jersey; hence could not, on the ground of residence, lay the venue in this district, and it is apparent that neither libelant nor respondent have their principal place of business in this district.
In its answer to the libel respondent excepted to the libel on the ground of improper venue, which the respondent may do without waiving its right to move for dismissal or transfer on the ground that the venue is improperly laid. Untersinger v. United States, ...