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BURTON v. UNITED STATES

December 18, 1952

BURTON
v.
UNITED STATES



The opinion of the court was delivered by: SUGARMAN

In a suit by a government employed seaman under the Suits in Admiralty Act, respondent excepts to the libel on the ground that it is jurisdictionally defective.

Libelant alleges that he became ill due to respondent's negligence and the unseaworthiness of the vessel between September 1, 1944 and June 28, 1945 while employed aboard the S.S. Rebecca Boone, then operated by respondent's General Agent, the North Atlantic & Gulf Steamship Co., Inc.

 On February 24, 1947, an action was commenced in the City Court, New York County, against the General Agent to recover damages for this injury. The City Court action was dismissed on November 30, 1951 because improperly brought against the General Agent. *fn1"

 On October 29, 1951 (45 days before libelant's cause of action would be outlawed) *fn2" a notice of claim, in conformity with the regulations *fn3" was filed with the General Agent. The instant libel was filed on December 6, 1951 (7 days before the expiration of the revived statute of limitations (note 2 supra)).

 Respondent urges that an administrative disallowance of libelant's claim or failure to reject it within sixty days from filing (the sixtieth day being December 28, 1951- 15 days after the last day to commence suit under the extended statute of limitations (note 2 supra)) was a prerequisite to libelant's right to file the libel. Such prerequisite lacking, respondent urges, the libel must be dismissed. I disagree.

 On February 9, 1942 Presidential Executive Order No. 9054 *fn4" was filed. It established the War Shipping Administration and set forth its powers and functions.

 'On April 19, 1942 the War Shipping Administration gave notice of a general requisition of all oceangoing vessels. Shortly, it was operating as owner or under requisition charters, bareboat charters, or time charters most of the Merchant Marine of the United States.' *fn5"

 On March 24, 1943, the Clarification Act *fn6" became law.

 'The Clarification Act was consequent legislation intended to protect and clarify the rights of the multitude of seamen who had suddenly become government employees. The basic scope and philosophy of the measure was to preserve private rights of seamen while utilizing the Merchant Marine to the utmost for public wartime benefits. See House Report 2572, Senate Reports 1655, 1813, 77th Congress- Second Session; House Report 107, Senate Report 62, 78th Congress- First Session.

 'Since 1920, seamen employed aboard government merchant vessels, have been permitted by the Suits in Admiralty Act to bring libels in personam against the United States. The Clarification Act extended the right to sue to seamen aboard government ships employed as public vessels. But, to prevent the flood of litigation which the hazards of war-time operation made imminent, an administrative disallowance of claims of seamen employed on both classes of vessels was made a prerequisite to enforcement under the Suits in Admiralty Act. The Administrator, War Shipping Administration, was empowered to make regulations governing the filing and administrative allowance or disallowance of seamen's claims. The resulting regulations * * *' (note 5 supra)

 were filed on April 22, 1943 by the War Shipping Administration (note 3 supra). Those regulations, so far as here pertinent, are summarized as follows:

 'Section 304.23 provides that no seaman shall commence a court action for the enforcement of claims for personal injuries unless such claim has been filed by him as provided in Sections 304.24 and 304.25 and has been administratively disallowed by the person or agency with whom it was so filed.

 'Section 304.25 requires claims for personal injuries to be filed with the General Agent of the vessel with respect to which the claim arose, or such Agent's Berth subagent to whom the former may refer and claim for handling.

 'Section 304.26 provides that 'if the person or agency with whom the claim is filed, in accordance with the directions contained herein, fails to notify the claimant in writing of a determination upon such claim within sixth days following the date of filing thereof, the claim shall be presumed to have been administratively disallowed, and ...


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