Marich v. United States, 25024 H.
| Decision Date | 14 April 1949 |
| Docket Number | No. 25024 H.,25024 H. |
| Court | U.S. District Court — Northern District of California |
| Parties | MARICH v. UNITED STATES et al. |
COPYRIGHT MATERIAL OMITTED
Melvin M. Belli, San Francisco, Cal., Lou Ashe, San Francisco, Cal., for libelant.
Frank J. Hennessy, U. S. Attorney, San Francisco, Cal., John H. Black & Edward R. Kay, San Francisco, Cal., for respondent.
This libel in personam was filed in this court on August 25, 1947. The United States is made a party defendant under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq. It alleges that the injury, the basis of the suit, was sustained by plaintiff while a seaman on board the S.S. Justa Arasemena. It avers that the injury was caused by negligence of the respondents.
Respondent United States of America moves to dismiss the libel on the ground that a copy of the libel was not served upon the United States Attorney until December 8, 1948 and was not mailed to the Attorney General until about the same date. The affidavit in support of the motion states that an Assistant United States Attorney advised the libelant's proctors as early as January 7, 1948, that copies of the libel had not been served upon either the United States Attorney or upon the Attorney General of the United States. Libelant, in his memorandum of authorities in opposition to the motion, states that the Attorney General advised libelant's proctors by letter that a copy of the libel was received by the Attorney General on December 13, 1948.
Libelant resists the motion and states that the libelant's claim was served on the United States of America on September 19, 1946; that written claim was on that date filed with the War Shipping Association Coastwise (Far-East Lines). (The status of the Coastwise Lines in the litigation does not appear). The libelant further points out that the libel could not have been filed until sixty days after the claim was filed; that respondent United States of America was afforded sufficient time to investigate; that the word "forthwith" in the statute hereinafter mentioned does not apply to service upon the Attorney General; and that the respondent is estopped, citing in support Farrell v. Placer County, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323.
The statute under which the notice is required to be served and mailed reads as follows: "* * * The libelant shall forthwith serve a copy of this libel on the United States attorney for such district and mail a copy thereof by registered mail to the Attorney General of the United States, and shall file a sworn return of such service and mailing. * * *" 46 U.S.C.A. § 742.
There is no estoppel here. Assuming the dubious that the Farrell case is authority that an estoppel can be evoked against the United States of America, there has been no act or representation by the respondent calculated to mislead the libelant and libelant has not relief upon any act or statement of an agent of this respondent. The elements of estoppel are therefore completely lacking. The situation here is in no wise comparable to that found in the Farrell case.
When the obligation to serve the Attorney General is read with the context it seems to be quite clear that "forthwith" applies to service upon both of the officials. There would be...
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