Royal Ins. Co. v. UNITED STATES SHIPPING BOARD M. FLEET CORP.

Citation30 F.2d 946
PartiesROYAL INS. CO., Limited, et al. v. UNITED STATES SHIPPING BOARD MERCHANT FLEET CORPORATION. BUCHANAN et al. v. SAME.
Decision Date26 February 1929
CourtU.S. District Court — Southern District of New York

Barry, Wainwright, Thacher & Symmers, of New York City (John C. Crawley, of New York City, of counsel), for plaintiffs.

Charles H. Tuttle, U. S. Atty., of New York City (Walter Schaffner, Sp. Asst. U. S. Atty., of New York City, of counsel), for defendant.

THACHER, District Judge (after stating the facts as above).

One of the defenses to be considered presents the contention that the Act of Congress approved March 9, 1920, commonly known as the Suits in Admiralty Act (41 Stat. 525, c. 95; U. S. C. tit. 46, § 741 et seq. 46 USCA § 741 et seq.), affords an exclusive remedy against the United States Shipping Board Merchant Fleet Corporation for any cause of action for which a libel in admiralty could be filed under the provisions of said act, and that therefore the court in this proceeding is without jurisdiction of the causes of action set forth in the complaints.

There is no question that the Eastern Glade was owned by the United States and operated as a merchant vessel by the defendant under an agency agreement with the Mallory Transport Lines, appointed by the defendant to manage, operate, and conduct the business of such vessel. Consequently these suits might have been brought under the Suits in Admiralty Act, if commenced within two years after the causes of action alleged in the complaints arose. Long after the time limited by section 5 of the Suits in Admiralty Act (46 USCA § 745) for the commencement of such suits had expired these actions at law were instituted.

In the West Aleta (U. S. Shipping Board Emergency Fleet Corp. v. Rosenberg) 276 U. S. 202, 48 S. Ct. 256, 72 L. Ed. 531, the Supreme Court decided that the Suits in Admiralty Act was the exclusive remedy for all causes of suit in admiralty against the Fleet Corporation. The question whether the act also prohibits "resort to * * * concurrent remedies against the United States or the corporations" and "like causes of action in the Court of Claims or in courts of law" was expressly reserved. In The Cerosco (Federal Sugar Rfg. Co. v. United States) 30 F.(2d) 254, 1929 A. M. C. 84, the Circuit Court of Appeals for this circuit held that the act was exclusive of all suits against the United States by petition under the Tucker Act (24 Stat. 505) for causes of action which might have been brought under the Suits in Admiralty Act. The fact that the petition in that cause might have been treated as a declaration at law was held not to affect the question, and decision turned upon the conclusion that "every consideration which moved the Supreme Court to declare that the act superseded the usual libel, equally applies to a petition upon the same cause of action under the Tucker Act, however cast."

In this connection it was, however, said: "More can be said in favor of retaining actions at law...

To continue reading

Request your trial
1 cases
  • Ex parte Keizo Shibata
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 27, 1929
    ......, to wit, perjury, prior to entry into the United States." On September 8, 1919, petitioner arrived at the port of Victoria, B. C., on board ship from Japan. Upon his attempting to enter the ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT