In re Agwi Nav. Co., 334.
| Decision Date | 05 April 1937 |
| Docket Number | No. 334.,334. |
| Citation | 89 F.2d 11 |
| Parties | In re AGWI NAV. CO. et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Battle, Levy, Fowler & Neaman, of New York City, for appellant.
Burlingham, Veeder, Clark & Hupper, of New York City, for petitioners-appellees.
Bigham, Englar, Jones & Houston, of New York City (Oscar R. Houston and Charles A. Van Hagen, Jr., both of New York City, of counsel), for certain claimants-appellees.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
Camilla E. Conroy, a passenger on the ill-fated Morro Castle, lost her life in the disaster which overwhelmed that vessel on September 8, 1934. On October 5, 1934, her surviving sisters and next of kin gave written notice to the owner and charterer of the vessel, making claim for their sister's death and for the loss of personal property she had with her. In reply they were advised that a petition for limitation of liability had been filed and all persons were restrained from instituting legal actions. The time within which to file claims in the limitation proceeding expired, after extensions from time to time, on June 30, 1935. Thereafter on September 25, 1936, the administrator of the estate of Camilla E. Conroy served notice on the proctors for the petitioners of a motion for leave to file nunc pro tunc as of June 30, 1935, a claim for the death of his decedent. This appeal is from an order denying the administrator's motion.
There can be no doubt that the death claim was presented too late to be allowable. The statute which creates the right to recover for death on the high seas by wrongful act provides that "suit shall be begun within two years from the date of such wrongful act." 46 U.S.C.A. § 763. In such statutes a specification of a time for bringing suit is not merely a limitation of the remedy, but is a condition upon the right itself. The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 30 L.Ed. 358; Western Fuel Co. v. Garcia, 257 U.S. 233, 243, 42 S.Ct. 89, 66 L.Ed. 210; Am.L.Inst.Conflicts of Laws, § 397. It is too clear for argument that sending a notice of claim to the vessel's owner did not begin a suit. It is equally clear that the pendency of the limitation proceedings did not stop the running of the statutory time, expiration of which, without the bringing of suit or the filing of a claim in the limitation proceedings, would extinguish the cause of action. The Princess Sophia, 61 F.(2d) 339, 354 (C.C.A.9); In re Oceanic Steam Nav. Co., 204 F....
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Drakatos v. RB Denison, Inc., Civ. No. H78-601.
...of the contention that the plaintiff's cause of action under the Act is no longer viable, Skagit relies on dictum in In re Agwi Navigation Co., 89 F.2d 11, 12 (2d Cir. 1937), in which the court declared that the limitations period of the Act "is not merely a limitation of the remedy, but is......
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PETITION OF COMPANHIA DE NAVEGACAO LLOYD BRASILEIRO
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