GALVESTON DRY DOCK & CONST. CO. v. United States
| Decision Date | 23 April 1934 |
| Docket Number | No. 1474.,1474. |
| Citation | 7 F. Supp. 460 |
| Parties | GALVESTON DRY DOCK & CONSTRUCTION CO. v. UNITED STATES et al. |
| Court | U.S. District Court — Southern District of Texas |
A. D. DeLange, of Houston, Tex., and Maco Stewart and Brantly Harris, both of Galveston, Tex., for libelant.
H. M. Holden, U. S. Atty., of Houston, Tex., for respondents.
This is a libel in personam, filed December 24, 1932, under section 5 of the Suits in Admiralty Act of March 9, 1920 (41 Stat. 525, sections 741 to 752, title 46, USCA; Johnson v. United States Shipping Board, 280 U. S. 320, 50 S. Ct. 118, 74 L. Ed. 451), and the Amendatory Act of June 30, 1932 (47 Stat. 420, sections 743a and 745, title 46, USCA), by the Galveston Dry Dock & Construction Company against the United States of America and the United States Shipping Board Merchant Fleet Corporation (formerly the United States Shipping Board Emergency Fleet Corporation), to recover $27,067.18 and interest alleged to be due and owing for work done and material furnished by libelant under three contracts evidenced by libelant's acceptance of written orders, dated, respectively, September 24, 1920, September 25, 1920, and October 4, 1920, for repairs, etc., on the steamship Latham, at that time a merchant vessel owned by the United States through the United States Shipping Board (Merchant Marine Act of June 5, 1920, § 3, 41 Stat. 989 46 USCA § 804). Except as to dates and attached itemized statement of work and material, the three orders are substantially the same, and are as shown in the note.1
1. Respondents pleaded that this suit was not brought within two years, as required by the Suits in Admiralty Act March 9, 1920 (section 745, title 46 USCA), and that the facts do not bring it within the Amendment of June 30, 19322 (section 745, title 46, USCA), and that libelant, for that reason, may not have relief here.
The facts are that prior to January 6, 1930, i. e., July 24, 1923, libelant instituted in this court, under the Suits in Admiralty Act, admiralty suit No. 1195, against the United States Shipping Board Emergency Fleet Corporation (herein referred to for brevity as suit 1195), on this identical cause of action. Service was had, and the Fleet Corporation, August 27, 1923, filed exceptions, setting up, among other things, that the suit had not been brought within two years as required by such act, and insisted on such exceptions. September 15, 1923, libelant dismissed its suit, and the parties here stipulate: "It is agreed by the parties hereto that libellant dismissed said suit because it had not been brought within the time prescribed by the Suits in Admiralty Act and respondent was insisting upon said exceptions, pleading limitation of two years and that proctors for libelant in that case would so testify."
Respondent insists that, since suit 1195 was dismissed on motion of libelant, it is not a suit such as is contemplated by such amendment. The language of the amendment is broad enough to include a dismissal on motion of the libelant. Dismissals for want of prosecution are excepted, and, had Congress intended to except dismissals such as the one in suit 1195, similar and appropriate language to that effect would doubtless have been used.
It is also said that suit 1195 was not against the United States, but only against the Fleet Corporation. That is true, but, considering the purpose of its enactment, and the expressions of Committees of Congress in connection with its enactment, Phœnix Ins. Co. v. United States (D. C.) 3 F. Supp. 112, 113; Adders v. United States (D. C.) 5 F. Supp. 457, decree affirmed (C. C. A.) 70 F.(2d) 371, such amendment must be regarded as remedial in its nature, and its wording does not exclude suit 1195, because the United States was not a party thereto. I think the correct rule is stated in Adders v. United States, supra.
After such dismissal of suit 1195, and prior to January 6, 1930, i. e., September 15, 1923, libelant brought a suit or action at law against the Fleet Corporation on this identical cause of action, which respondent also contends was not a suit contemplated by such amendment. Such suit (referred to for convenience as suit 771) was begun in the state court, removed by the Fleet Corporation into this court. Judgment went for libelant, but it was reversed, and cause remanded by the Circuit Court of Appeals, United States Shipping Board Emergency Fleet Corporation v. Galveston Dry Dock & Const. Co., 13 F.(2d) 607, certiorari denied 273 U. S. 725, 47 S. Ct. 237, 71 L. Ed. 860, holding the United States Shipping Board, if anyone, and not the Fleet Corporation, liable to libelant. Libelant then filed its third amended petition, setting up against the Fleet Corporation the same cause of action, and in addition, and for the first time, fraud, accident, and mistake. The Fleet Corporation filed a plea of limitation, and, without waiving same, filed its third amended answer, which contained a general demurrer, and a special exception setting up limitations. Both the general demurrer and special exception were sustained, and libelant's action dismissed.3 On appeal, this was affirmed by the Circuit Court of Appeals. Galveston Dry Dock & Const. Co. v. United States Shipping Board Merchant Fleet Corporation, 31 F.(2d) 247, certiorari denied 280 U. S. 558, 50 S. Ct. 17, 74 L. Ed. 614. If such judgment of dismissal is a valid judgment in the light of the holding in Johnson v. United States Shipping Board Emergency Fleet Corporation, supra, that courts of admiralty only have jurisdiction of suits of this kind, under the suits in Admiralty Act, then it was there adjudged: (a) That the Fleet Corporation was not liable to libelant; (b) that the suit was not filed within the time prescribed by the statutes of limitation, but it is not enirely clear whether the two-year statute of the Suits in Admiralty Act, or the Texas statute, was meant.
It is clear, however, that such suit 771 was dismissed, because not commenced in the manner (if not within the time) prescribed by the Suits in Admiralty Act, and because not commenced and/or prosecuted in accordance with its provisions. Johnson v. United States Shipping Board Emergency Fleet Corporation, supra.
I think libelant presents a case coming within the amendment (June 30, 1932), and that this court has jurisdiction. I think also respondents' plea of misjoinder is without merit.
2. Coming now to the merits. The case has been submitted on the testimony, depositions, exhibits, etc., upon the trials in suit 771. The case made thereby for libelant is substantially the same as made upon the first trial and appeal of suit 771 (13 F.(2d) 607), and because the Fleet Corporation was the agent, and not the principal, in the transactions between it and libelant, libelant may not recover against it. (C. C. A.) 13 F.(2d) 607; (C. C. A.) 31 F.(2d) 247.
This view renders it unnecessary to determine as to the effect of the judgment of dismissal in suit 771, and whether it is res adjudicata as between libelant and the Fleet Corporation.
3. The facts show that, in accordance with the contracts hereinbefore mentioned, libelant did the labor and furnished the material for the repairs on the Latham, at its...
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