UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 18, 1956
In re ISBRANDTSEN COMPANY
UNITED STATES of America
The opinion of the court was delivered by: WEINFELD
The controlling date in determining whether the lible is time-barred is the date of its filing, September 14, 1955, and not the date of filing of the amended libel and complaint.
Accordingly, the exceptive allegations are sustained only as to the claim which it is alleged arose on March 16, 1953 and overruled as to the claim which arose on October 6, 1953, since as to the latter it clearly appears that the suit was commenced within the two year period as required under 46 U.S.C.A. § 745.
As to the March 16, 1953 claim, libelant concedes it was notified on that date by the Military Sea Transport Service. Its claim arose at that time and suit not having been commenced within the two year period is barred.
Libelant's reliance on American Eastern Corporation v. United States, D.C.S.D.N.Y., 133 F.Supp. 11, 15, to sustain its argument that the cause of action accrued on the date of the re-delivery of the vessel (April 14, 1954) is misplaced. There Judge Walsh pointed out: 'To the extent libelant claims for money had and received, its claim was mature when respondent, through the Maritime Commission's regulations for final accounting, unequivocally asserted its intent to withhold the money now claimed by libelant.'
Settle order on notice.