UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
June 27, 1950
UNITED STATES et al.
The opinion of the court was delivered by: NOONAN
The parties by agreement have limited the matter to be decided by this court to the issue of whether or not the libellant may maintain a cause of action against the respondent, to recover a claim under a War Risk Policy, Title 46 U.S.C.A. §§ 1128-1128h. The precise question here is whether the libellant's action is time barred.
Libellant alleges that on a voyage in February to April 1945, an arrested tubercular condition was caused to flare up, and, as a result, he was and is disabled.
The provisions of the statute
clearly indicate Section 745, Title 46 U.S.C.A.
is applicable. This libel was not filed until April 6, 1950, and, therefore, is not a suit brought 'within two years after the cause of action arises'.
Libellant argues the point that the language of Sec. 1128d, intends that the time for bringing an action does not begin to run until there is an administrative disapproval of the claim. This court is of the opinion that this would be an unwarranted interpretation.
In his affidavit libellant said he relied on assurances of employees of the respondent that his claim would be favorably disposed of. However, the language of 1128d, upon which he bases his action here, also afforded him adequate warning of the time limitation for bringing his suit.
Therefore, the respondent's exception as to the third cause of action is sustained. Further, the order to be submitted in accord with this decision shall incorporate therein, the agreement of the parties as to the first and second causes of action.