The opinion of the court was delivered by: KNIGHT
The libel alleges three causes of action. The first alleges that libelant resides in Buffalo, N.Y., is mother of deceased and his duly appointed administratrix; that respondent U.S.A., through its correspondent agency, was owner of steamship John Martin Miller, used as merchant vessel in 'transportation of freight for hire by water in coastwise and foreign trade'; that deceased was continuously employed thereon as an ordinary seaman and member of crew from April 13, 1945, to April 10, 1946; that, between June 15-20, 1946, while so employed as member of crew, he suffered injury to left foot, resulting in complete disability until injury caused his death on November 2, 1948; that he was entitled to maintenance, care and cure from date of injury to death, amounting to $ 10,000.
The second cause of action alleges that it was duty of master of said steamship to furnish deceased with prompt and proper medical and surgical care, medicines and treatment and with proper relief from working after he sustained injury; that from date of injury until end of voyage when deceased left ship, 'he suffered intense pain and agony and was in need of immediate medical and surgical attendance * * * was forced to remain on board * * * for * * * eleven months without any (such) attendance and he was forced to continue his duties during this period and, even though he was in need of relief from these duties, (it) was not furnished.' On account of this damage in sum of $ 45,000 is demanded.
The third cause of action alleges deceased was 21 years old, 'had been gainfully employed for some time previous to his injury on June 20, 1946, was in excellent health and contributed to support of libelant, who was partially dependent on his earnings and suffered damage in sum of $ 50,000; that she filed a claim which has not been administratively allowed.
Libelant finally demands a total of $ 105,000 damages and alleges: 'This suit is brought under the Act of 1920 known as the 'Suits in Admiralty Act."
Respondents excepted to libel on ground of insufficiency in these two particulars: (1) that it does not allege facts sufficient to constitute a cause of action under Suits in Admiralty Act of March 9, 1920, as amended; (2) that suit was not brought within two years after cause of action arose. They 'pray that the libel be dismissed with costs.'
The libel was filed October 4, 1949.
Said Act of March 9, 1920, is found in Title 46 U.S.C.A. chapter 20, entitled 'Suits in Admiralty By or Against Vessels or Cargoes of United States.' Section 745 thereof provides: 'Suits authorized by this chapter may be brought only on causes of action arising since April 6, 1917: Provided, That suits based on causes of action arising prior to the taking effect of this chapter shall be brought within one year after this chapter goes into effect; and all other suits hereunder shall be brought within two years after the cause of action arises'.
This suit is governed by the two year statute of limitation. Keil v. United States, D.C.D. Md., 65 F.Supp. 431; Crescitelli v. United States, D.C.E.D. Pa., 66 F.Supp. 894, affirmed 3 Cir., 159 F.2d 377.
Libelant's first cause of action is for 'maintenance, care and cure.' It alleges that her intestate 'between the 15th and the 20th days of June, 1946,' while he was employed as a member of the crew of said steamship, 'sustained an injury to his left foot in the course of and as a direct result of the performance of his duties as an ordinary seaman.' The injury occurred more than two years before the libel was filed on October 4, 1948. In Keil v. United States, D.C., 65 F.Supp. 431, supra, the court said: 'The libelant sues for injuries alleged to have been due to the negligence of the United States as owner of the merchant vessel 'John Lind', on which he was employed as a member of the crew in the capacity of an oiler. For a second cause of action he also sues for 'maintenance and cure'. In the libel in personam he alleges that the action from which his injuries ensued occurred on or about August 11, 1943. This libel was not filed until January 25, 1946 more than two years after the accident as averred in the libel (65 F.Supp.at page 432). * * * The suit here is expressly based on the Suits in Admiralty Act and it very definitely imposes a two-year limitation as the condition on which the United States has consented to be sued. (65 F.Supp.at page 432) * * * The exception to the libel must, therefore, be sustained.' 65 F.Supp.at page 433.
See also Kakara v. United States, 9 Cir., 157 F.2d 578; Osbourne v. United States, D.C.S.D.N.Y., 74 F.Supp. 711; Sgambati v. United States, D.C.S.D.N.Y., 75 F.Supp. 18.
Libelant's first cause of action must therefore be dismissed.
The second cause of action alleges negligence not as causing the accident but in failure to furnish prompt and proper medical and surgical and proper relief. It realleges all the facts set forth in the first cause of action. The two causes of action are subject to the same disposition. Libelant's second cause of action must therefore be dismissed.
The third cause of action is for $ 50,000 based on intestate's death. It alleges that the injury occurred on June 20, 1946. It realleges all the facts previously set forth. Paragraph Fourth of the first cause of action alleges that intestate's death occurred on November 2, 1948, which was less than two years before the libel was filed. In Piascik v. United States, D.C.S.D.N.Y. 65 F.Supp. 430, 431, it is said: 'Under this statute (The Suits in Admiralty Act) suit must be brought within two years after the cause of action arises, 46 U.S.C.A. 745, that is, two years after death * * * .' See also Crescitelli v. United States, 3 Cir., 159 F.2d 377, supra.
Libelant's right to sue respondents for the death of her intestate is derived from section 1291(a) of 50 U.S.C.A. Appendix. It does not specify when the cause of action for death accrues.
In 25 Corpus Juris Secundum, Death, Sec. 54, p. 1160, it is said: 'under most statutes, by either express provision or judicial construction, the time within which the action must be brought runs from the time of decedent's death and not from the time of the injury to him. This is the construction of statutes providing merely that the action shall be brought within a specified time, and, * * * of statutes providing for the action to be brought within a specified time after the cause of action accrues.'
In Baltimore & O.S.W.R. Co. v. Carroll, 280 U.S. 491, 50 S. Ct. 182, 74 L. Ed. 566, it was held that under the Federal Employers' Liability Act, 45 U.S.C.A. 56, 'the cause of action which arises from death accrues at the time of death, and the two-year period of limitation then begins.' 280 U.S.at page 495, 50 S. Ct.at page 183. Vide Reading Co. v. Koons, 271 U.S. 58, 46 S. Ct. 405, 70 L. Ed. 835. Under said Act the cause of action for death accrues at time of death and not at time of fatal injury. Dusek v. Pennsylvania R. Co., 7 Cir., 68 F.2d 131. Vide O'Neill v. Cunard White Star Limited, D.C.S.D.N.Y., 69 F.Supp. 943, 945. Section 130 of Decedent Estate Law of New York State, McK. Consol. Laws, c. 13, provides: 'Such an action must be commenced within two years after the decedent's death.'
For the reasons above stated, libelant's first and second causes of action must be and hereby are dismissed. The third cause of action must be sustained, if it alleges facts sufficient to constitute a cause of action.
Negligence must be proved under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq. and Clarification Act, 50 U.S.C.A.Appendix, § 1291. Fraser v. United States, 1 Cir., 167 F.2d 141, 143. This case further holds that said sections 'in effect make the Jones Act, 46 U.S.C.A. § 688, applicable in suits against the United States.' 167 F.2d at page 141. The latter section does not mention negligence but it expressly extends to a seaman who has suffered injuries during course of his employment the right of action which Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., confers upon railway employees, and hence negligence is the basis of an injured seaman's action for damages. Armit v. Loveland, 3 Cir., 115 F.2d 308, 311; Brittingham v. Ore S.S. Corporation, 4 Cir., 62 F.2d 616, 617; Stark v. American Dredging ...