The opinion of the court was delivered by: RAYFIEL
The plaintiff, a seaman, sues herein for maintenance and cure, and for wages.
The defendant moves, pursuant to Rule 12(b) and Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., to dismiss the complaint on the ground that the cause of action therein stated arose more than 6 years prior to the commencement thereof, and is therefore barred by the statute of limitations. The complaint alleges that the plaintiff was employed by the defendant on its vessel the S.S. John J. Crittenden, and while so employed on the 24th day of January, 1948, he was injured at St. Nazaire, France, and was hospitalized; that the defendant failed and refused to pay the plaintiff his wages to July 15, 1948, the end of the voyage.
The action was commenced on the 21st day of January, 1955.
The defendant contends that the plaintiff's right to unearned wages and to maintenance and cure is contractual in nature, and in the absence of any Federal Statute prescribing the time within which an action for the recovery thereof may be commenced, the New York State statute of limitations is controlling. I agree with that contention. The New York State statute, section 48 of the Civil Practice Act, prescribes a time limit of 6 years for the institution of suits based upon contract. In the case of Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551, 553, the Court of Appeals for this Circuit said, concerning the statute of limitations in actions for maintenance and cure: "In a suit for maintenance and cure the cause of action is contractual (Pacific S.S. Co. v. Peterson, 278 U.S. 130, 138, 49 S. Ct. 75, 73 L. Ed. 220), and the statutory period of limitation is six years."
The claim for wages is likewise contractual and the 6 year statute of limitations is applicable thereto.
The defendant's motion is therefore granted and the complaint dismissed.
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