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September 12, 1978

Federico RODRIGUEZ, Plaintiff,
COMPASS SHIPPING COMPANY LTD. and D. Jakarta Lloyd P. N., Defendants

The opinion of the court was delivered by: CARTER

Plaintiff is a longshoreman. On September 4, 1973, as an employee of the stevedoring company International Terminal Operating Co., Inc. ("International"), plaintiff was working in Hatch No. 2 on the S.S. South Breeze, docked in Brooklyn, New York, unloading a shipment of coffee. The S.S. South Breeze was then owned by defendant Compass Shipping Company ("Compass") and was being operated under a bareboat charter by defendant D. Jakarta Lloyd ("Jakarta"). According to the plaintiff, he injured himself when, in the course of leaving work for the day, he climbed up the ladder from Hatch No. 2 and, upon reaching the deck of the ship, put his foot into a hole above the ladder which descended into the adjacent Hatch No. 3.

In the present action, Compass moves to dismiss the action against it on the ground that an earlier suit between plaintiff and Compass concerning the same events was dismissed by Judge Bonsal of this court. In addition, both Compass and Jakarta move for dismissal on the ground that, under the facts of this case, plaintiff's claim for relief against the defendants was assigned to his employer, International, by virtue of the provisions of 33 U.S.C. § 933(b). Lastly, both defendants move for summary judgment under F.R.Civ.P. 56. For the reasons set forth below, the motion based on Judge Bonsal's order of dismissal is denied, determination of the motion based on 33 U.S.C. § 933(b) will await the completion of the discovery specified in this opinion, and the motion for summary judgment is denied.

Judge Bonsal's Order of Dismissal

 On June 2, 1976, plaintiff filed a suit in this district concerning the alleged accident of September 4, 1973, and the action was assigned to Judge Bonsal. Only Compass, the shipowner, was named as a defendant. A pre-trial conference was held before the Judge on February 28, 1977, at which time Compass revealed to the court and plaintiff that when the events in question allegedly occurred, the S.S. South Breeze was under the exclusive control of Jakarta, who had chartered the vessel. Compass argued that under these circumstances, it was not a proper party-defendant on the theory that it could not possibly be liable for events which occurred when the vessel was under the dominion of another. According to the defendant, plaintiff agreed that Compass was improperly named as a defendant. In any case, an order of discontinuance was signed at the conference. The order states simply that "it is ORDERED that the above entitled action be and hereby is discontinued without costs to either party," and is dated and signed by Judge Bonsal. Underneath that signature is the statement "I hereby consent to the entry of this proposed order," followed by the signature of the attorneys of both plaintiff and defendant. Handwritten across the bottom is "30 Day Order. Extended an additional 30 Days (3/28/77)." The apparent purpose of this order was to permit plaintiff time to confirm defendant's assertion that the vessel had been chartered to Jakarta, after which the action against Compass was to be discontinued. After the conference, plaintiff apparently reconsidered his position with regard to the scheduled discontinuance, for on March 18, 1977, he moved to have the order of discontinuance vacated and for permission to add Jakarta as a defendant in the pending action. The motion seems to have been denied, for plaintiff does not now contest that his earlier action was dismissed by virtue of the February 28, 1977 order.

 Without reference to statute, rule, precedent, or explanation, Compass claims that the present action against it is barred by Judge Bonsal's order of discontinuance. In like manner, plaintiff asserts that that order was "without prejudice." For reasons not alluded to in the papers before the court, plaintiff is correct.

 Rule 41(a) of the Federal Rules of Civil Procedure provides that unless otherwise indicated in the dismissal, a voluntary dismissal of an action is without prejudice. This is so whether the dismissal is accomplished by plaintiff's filing of a notice of dismissal before an answer or a motion for summary judgment is served (F.R.Civ.P. 41(a)(1)(i)), by stipulation among all parties (F.R.Civ.P. 41(a)(1)(ii)), or by order of the court (F.R.Civ.P. 41(a) (2)). The dismissal of plaintiff's earlier action was voluntary: plaintiff consented to it. The consequent effect of Judge Bonsal's order was that the dismissal it directed was without prejudice. That effect is not altered by the fact that subsequent to the signing of the order plaintiff changed his mind and decided he wished to preserve the action and add a new party-defendant. Because plaintiff consented to the dismissal at the time the order was signed, the automatic effect of the order was that the dismissal was without prejudice, and there is no indication that Judge Bonsal ever determined the merits of Compass' argument concerning its liability to plaintiff. It would be contrary to justice and good sense if the mere fact of plaintiff's later and strategically motivated opposition to dismissal mechanically transformed Judge Bonsal's order into an adjudication of the merits of plaintiff's claim against Compass. The present action against Compass is not barred by the discontinuance of plaintiff's earlier action.

 Section 933(b)

 Under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-50 ("the Act"), a longshoreman who is injured in the course of his employment is entitled to compensation payments from his employer. The liability of the employer for this compensation is to the exclusion of all other liability of the employer, 33 U.S.C. § 905, but the injured longshoreman retains the right to sue any other person who may be responsible for his injuries. 33 U.S.C. § 933(a). Section 933(b) provides, however, that

"acceptance of such compensation under an award in a compensation order filed by the deputy commissioner or (Benefits Review) Board (§ 921(b)) shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award."

 It is defendants' contention that under the terms of this subsection, plaintiff no longer has any claim for relief against them.

 Although the record does not present an overly detailed history of plaintiff's compensation claim, it is apparent that following his injury, he made a claim against his employer and that the claim caused some form of dispute requiring the attention of the Office of Workers' Compensation Programs ("OWCP") of the United States Department of Labor, for on November 4, 1974, the adjudication of plaintiff's claim before that agency was settled. The settlement is embodied in an OWCP form and recites that "(w)e, the undersigned, having attended an informal conference, and having received a copy of the signed agreement, in this case on 11/4/74, agree, by the issuance of a Compensation Order, to the following disposition." The settlement then indicates the specifics of that disposition, *fn1" and concludes: "The employer-carrier shall make payment promptly following the conference, without regard to the receipt of the formal compensation order, in accordance with Section 702.315(a) of the Regulations," presumably meaning 20 C.F.R. § 702.315(a). The document is signed by the plaintiff, his representative, a representative of the employer and the "claims examiner." The "informal conference" from which the settlement arose is the agency's preferred means of disposing of disputes concerning compensation claims. 20 C.F.R. §§ 702.301, 702.311. Section 702.315(a), to which the settlement refers, directs in part that

"following an informal conference at which agreement is reached on all issues, the deputy commissioner shall embody the agreement in a formal compensation order, to be filed and mailed . . . . (W)hen the employer or carrier has agreed to pay, reinstate or increase monetary compensation benefits, . . . such action shall be commenced immediately upon becoming aware of the agreement, and without regard to the receipt of the formal compensation order."

 Despite, however, the implicit assumption of the settlement and the explicit command of the regulation, no "formal compensation order" was ever issued. *fn2"

 Plaintiff does not dispute that he received compensation for his injuries from his employer, or that he instituted suit against the defendants more than six months after the settlement agreement or his receipt of the compensation. What is contested is whether the settlement constituted "an award in a compensation order filed by the deputy commissioner . . . ." *fn3" For, as the statute makes clear, mere acceptance of compensation, absent an "award", does not effect a statutory assignment of the injured party's claim. *fn4" E. g., Grasso v. Lorentzen, 149 F.2d 127, 129 (2d Cir.), Cert. denied, 326 U.S. 743, 66 S. Ct. 57, 90 L. Ed. 444 (1945); Tartaglio v. Cunard White Star, 56 F. Supp. 55 (S.D.N.Y. 1944) and ...

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