164 F.2d 767 (2nd Cir. 1947), 58, Osbourne v. United States

• Citation: 164 F.2d 767
• Party Name: OSBOURNE v. UNITED STATES et al.
• Case Date: December 05, 1947
• Court: United States Courts of Appeals, U.S. Court of Appeals — Second Circuit

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164 F.2d 767 (2nd Cir. 1947)

OSBOURNE

v.

UNITED STATES et al.

Nos. 58, 20726.

United States Court of Appeals, Second Circuit.

December 5, 1947

William L. Standard, of New York City (Louis R. Harolds and Ruth H. Saslow, both of New York City, of counsel), for libellant.

John F. X. McGohey, of New York City, for the United States.

Dow & Symmers, of New York City (Edwin K. Reid, William G. Symmers and Edward L. Smith, all of New York City, of counsel), for American President Lines, Ltd.

Before L. HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.

FRANK, Circuit Judge.

Appellant brought suit to recover for injuries suffered through the negligence of appellees while employed as crew member on their vessel. Appellant's libel avers that he was employed as a crew member from October 15, 1941, to December 8, 1941 on the S. S. President Harrison, which was owned, operated and controlled by

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respondents, American President Lines, Ltd., and the United States through its agency, the War Shipping Administration; that during that period he was injured through the negligence of respondents; that on December 8, 1941, he (along with the rest of the crew) was interned by the enemy; ¹ and that he was returned to this country in October, 1945. Suit was commenced on July 31, 1946. Respondents excepted to the libel on the grounds that it had not been filed within the two-year period of limitations permitted under the Suits in Admiralty Act, 46 U.S.C.A. § 745, or the three-year period under the Jones Act, 46 U.S.C.A. § 688, 45 U.S.C.A. § 56. The District Court held 'with reluctance' that the action had been barred, because 'failure to start action within the time prescribed extinguishes the right of action.' It added, however, that libellant had prosecuted his claim with due diligence after his return to this country. Appellant appeals from the court's order dismissing the libel.

The question of whether the limitation period under the Suits in Admiralty Act or under the Jones Act should apply in this action does not concern us here, for if appellant's action is barred, it is barred under either statute. The question being moot, we do not pass upon it.

Generally, where a statute creates a cause of action which was unknown at common law, a period of limitation set up in the same statute is regarded as a matter of substance, limiting the right as well as the remedy. Filing a complaint within the prescribed period is a condition precedent to recovery, and the cause of action is extinguished after the running of the period. ² The general rule, developed chiefly with respect to the Federal Employers' Liability Act, Secs. 1-10, 45 U.S.C.A. §§ 51-60, has been applied also to the period of limitations in the Jones Act, which incorporates the period in the Employers' Liability Act, and to the Suits in Admiralty Act. ³ The practical results of the application of this rule have been that the period of limitation under any of the three statutes will control the time for bringing suit in a state court regardless of state statutes of limitations; ⁴ that the period of limitation under any of these Acts will not be extended, as it would be in the case of an ordinary statute of limitations, by a claimant's disability to sue because of infancy or insanity or by a delay occasioned by the fraud of the defendant; ⁵ and that the defendant cannot waive the defense of the period of limitations. ⁶

Appellant does not deny the force of these holdings, but he maintains that they are not applicable to his case because of the extraordinary circumstance that throughout the period when he ought to have brought suit, the courts were unavailable to him as a prisoner in the hands of the enemy. The leading case on which he relies is Hanger v. Abbott, 73 U.S. 532, 18 L.Ed. 939. There a resident of New Hampshire brought suit against a resident of Arkansas in the federal courts in Arkansas shortly after the civil war. The debt sued upon had been contracted before the war; the defendant pleaded the statute of limitations. The Supreme Court held that during the war both plaintiff's rights and remedies had been suspended, as the courts had not then been open to the parties. The Court recognized that the statute of limitations contained no express exception regarding war periods, but stated that exceptions

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had been made which were not in the statute. ⁷

The Hanger case has been consistently followed in the federal courts. ⁸ Its doctrine has been applied not only where the plaintiff was a citizen of the United States, but also where he was an enemy alien during a war. ⁹ It has also been applied where the statute of limitations was of the substantive type involved here, not the ordinary type as in the Hanger case, because the considerations for so tolling the ordinary statute also apply to the special type. ¹⁰ State courts, facing the same problem in cases involving limitations provisions in wrongful death statutes, have held that the statute should toll for enemy aliens, despite silence...