The opinion of the court was delivered by: GALSTON
This is a libel in admiralty alleging a cause of action for maintenance and cure, resulting from injuries sustained by the libellant as an employee of the respondent aboard its ship, the S.S. Richmond P. Hobson.
The injuries complained of occurred on or about October 9, 1944. Jurisdiction is based upon the Suits in Admiralty Act of March 9, 1920, as amended, 46 U.S.C.A. §§ 742 and 745, as amended.
The answer denies the allegations generally, but admits that the libellant signed articles on the Richmond P. Hobson as Chief Engineer, and was in the employ of the respondent on or about October 9, 1944. It also sets up a number of affirmative defenses, including res judicata, release, statute of limitations and estoppel by virtue of laches.
The Suits in Admiralty Act, supra, in authorizing suits against vessels of the United States, after making special provisions for certain causes of action arising prior to the effective date of the Act, prescribes that 'all other suits hereunder shall be brought within two years after the cause of action arises'. The present libel was filed on August 31, 1951. As noted, the injury complained of occurred on October 9, 1944. The libellant's employment as Chief Engineer on the Hobson was terminated on November 20, 1944. The libellant contends that since an earlier libel in admiralty against the Isbrandtsen Steamship Company for maintenance and cure, filed on June 8, 1948 in the Southern District of New York, was dismissed, on July 12, 1950, on the ground that Isbrandtsen acted solely as the general agent for the United States of America, and that the United States was the only employer of libellant, the filing of the present libel was timely by virtue of the December 13, 1950 amendment to the Suite in Admiralty Act, which provides:
'That the limitations contained in this section for the commencement of suits shall not bar any suit against the United States brought hereunder within one year after December 13, 1950, if such suit is based upon a cause of action whereon a prior suit in admiralty or an action at law was timely commenced and was or may hereafter be dismissed solely because improperly brought against any person, partnership, association, or corporation engaged by the United States to manage and conduct the business of a vessel owned or bareboat chartered by the United States or against the master of any such vessel.' 46 U.S.C.A. § 745.
For the 1950 amendment to the Suits in Admiralty Act to become applicable, the prior suit must be 'timely commenced'. The libellant's prior suit of June 8, 1948 was commenced more than two years after the termination of his employment on the Hobson. If the present claim were one for personal injuries based upon negligence or unseaworthiness, it would appear that the present libel should be dismissed on the ground that the filing of the 1948 libel was not timely. However, the obligation of a shipowner to supply maintenance and cure to a seaman injured in the service of the ship is a continuing one under general maritime law. Therefore, although the libel was not brought within the limitation period provided by the Suits in Admiralty Act, the libellant is entitled to recover for maintenance and cure for the two year period prior to the date of the filing of the present libel. MacInnes v. United States, 1 Cir., 189 F.2d 733; Desmond v. United States, D.C., 105 F.Supp. 9.
The defense of res judicata is based upon the fact that an earlier civil complaint was instituted in the Southern District of New York by the libellant here against the Isbrandtsen Steamship Company on September 19, 1947. The complaint alleged three causes of action: (1) for negligence of Isbrandtsen, (2) for Isbrandtsen's neglect to treat the plaintiff, and (3) for maintenance and cure. After presentation of all the testimony, the defendant, Isbrandtsen, made a motion to dismiss the third cause of action for maintenance and cure. The court denied its motion. Following the denial of the defendant's motion, however, the plaintiff withdrew the third (as well as the second) cause of action and only the first cause of action, based upon negligence, was submitted to the jury. The evidence does not indicate that the defendant either objected to the plaintiff's withdrawal of the cause of action for maintenance and cure, or that such withdrawal was with prejudice. Moreover, as noted, the civil action was against Isbrandtsen, and the United States of America was not made a party. In the circumstances, it cannot be said that the verdict and judgment in the civil action, which was in favor of the defendant, constituted a bar to the present action.
There is, however, another matter which must be determined before the merits of the libellant's claim can be considered. By the terms of the 'Clarification Act' of March 24, 1943, 50 U.S.C.A.Appendix, § 1291 et seq., officers and members of crews employed on United States vessels or foreign flag vessels as employees of the United States through the War Shipping Administration, are given all of the rights accorded to United States citizens employed as seamen on privately owned and operated American vessels, including the right to maintenance and cure. Section 1 of the Act also provides, as to claims of the kind here in question, that they
'shall, if administratively disallowed in whole or in part, be enforced pursuant to the provisions of the Suits in Admiralty Act * * *. When used in this subsection the term 'administratively disallowed' means a denial of a written claim in accordance with rules or regulations prescribed by the Administrator, War Shipping Administration.' 57 Stat. 46.
Pursuant to the foregoing statutory authority, the War Shipping Administration issued rules and regulations requiring as a condition precedent to instituting a court action that a claim be filed and 'administratively disallowed' by the person or agency with whom it was filed. General Order No. 32, April 22, 1943, 8 Fed.Reg. 5414.
Prior to filing the present libel, the libellant instituted a libel in admiralty, on April 24, 1951, in the Southern District of New York against the S.S. Richmond P. Hobson and the United States of America, setting forth the same cause of action for maintenance and cure as in the instant case. The respondent, the United States, filed exceptions to the libel on the ground, among others, that the libellant had not given the written notice required by the pertinent statute and regulations in order to maintain the action. The hearing on the exceptions was held before Judge Sugarman on June 5, 195l. The court dismissed the libel, stating in its memorandum opinion that the dismissal was without prejudice to the commencement of another suit 'upon compliance with administrative prerequisites.'
In an effort, apparently, to fulfill the 'prerequisites' which the court in the Southern District held were necessary, the present libel alleges in paragraph 14 as follows:
'That notice of this claim was forwarded to the Isbrandtsen Steamship Company, to the United States Attorney at 44 Broadway, New York, N.Y., to the Attorney General in Washington, D.C., and to the War Shipping Administrator on June 20, 1951, and that the said notice contained all the particulars with respect to this claim and constituted notice and compliance ...