McKeefry v. United States, 249 of 1951.

• Court: U.S. District Court — Eastern District of Pennsylvania
• Writing for the Court: WELSH
• Citation: McKeefry v. United States, 109 F.Supp. 839 (E.D. Pa. 1952)
• Decision Date: 24 September 1952
• Docket Number: No. 249 of 1951.,249 of 1951.
• Parties: McKEEFRY v. UNITED STATES.

109 F. Supp. 839

McKEEFRY v. UNITED STATES.

No. 249 of 1951.

United States District Court E. D. Pennsylvania.

September 24, 1952.

Freedman, Landy & Lorry, Philadelphia, Pa., for plaintiff.

Gerald A. Gleeson, U. S. Atty., and Krusen, Evans & Shaw, Philadelphia, Pa., for defendant.

WELSH, District Judge.

The contentions urged by respondent in support of its exceptive allegations and motion to dismiss are discussed and disposed of below.

1. Respondent's first contention is that libellant has failed to allege the existence of a prior suit or action or the timely commencement thereof, and consequently libellant in the present suit is not entitled to the provision of the Suits in Admiralty Act, as amended, 46 U.S.C.A. § 741 et seq., extending the time limitation for suits.

The provision in question, Amendment of December 13, 1950 to the Suits in Admiralty Act, 46 U.S.C.A. § 745, reads as follows:

"That the limitations contained in this section for the commencement of suits shall not bar any suit against the United States brought hereunder within one year after December 13, 1950, if such suit is based upon a cause of action whereon a prior suit in admiralty or an action at law was timely commenced and was or may hereafter be dismissed solely because improperly brought against any person, partnership, association, or corporation engaged by the United States to manage and conduct the business of a vessel owned or bareboat chartered by the United States or against the master of any such vessel".

Paragraph 12 of the instant libel avers: "The instant action is being prosecuted against respondent pursuant to the provisions of the Suits in Admiralty Act, 41 Stat. 525, 46 U.S.C.A. §§ 741-745, as amended on December 13, 1950 by Public Law 887 877, Chapter 1136, 81st Congress, Second Session, H.R. 483, a timely action having been previously instituted against A. H. Bull and Company, the general agent of the said vessel, in which libellant has asserted against the said general agent the precise claim being presently asserted herein against respondent, and which action was dismissed solely because improperly brought against the said A. H. Bull and Company, a firm engaged by the United States to manage and conduct the business of the S. S. "Cape Henlopen" and S. S. "William Tilgheman". The said action was brought in the United States District Court for the Eastern District of Pennsylvania as of No. 403 of 1949, in Admiralty."

A reading of the aforementioned Amendment to the Suits in Admiralty Act and paragraph 12 of the instant libel makes it obvious that legally sufficient facts are pleaded and the libel is not therefore barred.

The respondent nevertheless argues that the libel is on its face time-barred since it shows that the causes of action arose between October 19, 1942 and April 6, 1943 and July 19, 1943 and November 27, 1943 and that the prior suit against A. H. Bull and Company, the General Agent, was filed on October 24, 1949. This argument is answered in part 3 of this opinion.

2. Respondent's second contention is that the present suit is barred for the reason that libellant brought a prior suit against the respondent in which the precise claim involved in the present suit was asserted, No. 249 of 1950 in Admiralty, filed July 14, 1950. Respondent points out that said prior suit was brought after the expiration of the two year statute of limitations applicable to suits against the United States and consequently libellant's causes of action were extinguished (it will be remembered, however, that we held part of that first suit was not barred) and are incapable of being revived by the provisions of the Amendment of December 13, 1950 to the Suits in Admiralty Act.

For several years the law with respect to the liability of a general agent was uncertain. Then on June 27, 1949, the United States Supreme Court, in Cosmopolitan Shipping Company v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, removed some of the uncertainty by...