Roeben v. United States, Civ. No. 929.

• Decision Date: 21 July 1953
• Docket Number: Civ. No. 929.
• Citation: 1953 AMC 2176,113 F. Supp. 732
• Parties: ROEBEN v. UNITED STATES.
• Court: U.S. District Court — District of New Jersey

113 F. Supp. 732

1953 AMC 2176

ROEBEN v. UNITED STATES.

Civ. No. 929.

United States District Court D. New Jersey.

July 21, 1953.

Harold Krieger, Benjamin H. Chodash, Jersey City, N. J., for libellant.

Grover C. Richman, Jr., U. S. Atty., Newark, N. J., Stapleton, Flynn & Lilly, Robert A. Lilly, New York City, John P. Loftus, Jersey City, N. J., for respondent.

HARTSHORNE, District Judge.

Respondent moves for summary judgment on the libel herein, on the grounds (1) that same is time-barred by the general time limitation provisions of the Suits in Admiralty Act, Title 46 U.S.C.A. Shipping, §§ 741, 745, and (2) because of libellant's proceedings taken against his employer, Sancor Corporation, a stevedoring company, under the Longshoremen's and Harbor Workers' Compensation Act, Title 33 U.S.C.A. § 901 et seq., particularly section 933.

The Suits in Admiralty Act.

More specifically, since it is admitted that the libel here was filed October 10, 1951, and is within the ordinary time-bar of the Suits in Admiralty Act, respondent contends that libellant does not come within the provisions of the 1950 remedial amendment to such act, which suspends the above limitations as to

"* * * 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 * * *." id. Section 745, as amended December 13, 1950, 64 Stat. 1112, c. 1136.

Clearly, the present libel falls precisely within the words of this Remedial Statute. For on May 18, 1949 the present libellant started an action at law against the Farrell Lines, Incorporated, and the American-South African Line, the husbanding agent of the ship in question, the Rock Springs Victory, for the United States, and against the United States, in the United States District Court for the Southern District of New York. The starting of this suit preceded the decision by the United States Supreme Court of Cosmopolitan Shipping Co. v. McAllister, 1949, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692. After such decision, respondent's proctors wrote libellant's proctors "We believe that this case (McAllister) settles the law so that the suit by Roeben (libellant) against the American-South African Line and the Farrell Lines is improper. The plaintiff must sue the United States of America, which Government was the owner of the S. S. Rock Springs Victory. The suit * * * must be brought under the Suits in Admiralty Act." Shortly after receipt of this letter, the above Roeben suit in the Southern District of New York was dismissed by consent order, as having "been improperly brought against the said defendants." That the joinder of the United States as a defendant in such proceeding is immaterial in this respect, see the cases of Cohen v. U. S., 2 Cir., 1952, 195 F.2d 1019; Joyce v. U. S., D.C.N.J.1952, 106 F.Supp. 719; McKeefry v. U. S., D.C.E.D.Pa. 1952, 109 F.Supp. 839.

In answer to the applicability of the express terms of this Remedial Statute to libellant, respondent claims that these terms are so clearly contrary to the intent of this amendment that its words must be disregarded. As basis for this hazardous contention, respondent argues that the statute was enacted solely to overcome the effect of the decision in the McAllister case, supra, and that since this case affected only seamen, it cannot enure to the benefit of Roeben, a stevedore, whose rights it claims were fully clarified and governed by Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968, decided before Roeben started his above proceedings in the Southern District of New York.

However, reference to the legislative history of the above Remedial Act indicates that same is not so contrary to the terms of the statute itself that the Congress is not to be deemed to have meant what it said. For the Senate Report to accompany the act, 2 U.S.Code Cong.Service, 81st Cong. 2d Session 1950, page 4209, calls attention to the fact that this act is adopted, not simply as a result of McAllister, but because of the confusion of thought created by a whole series of decisions — U.S. Shipping Board Merchant Fleet Corp v. Lustgarten, 1930, 280 U.S. 320, 50 S.Ct. 118, 74 L.Ed. 451; Brady v. Roosevelt S. S. Co., 1943, 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471; Hust v. Moore-McCormack Lines, 1946, 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534; Caldarola v. Eckert, supra; and Cosmopolitan Shipping Co. v. McAllister, supra. In fact, this committee report explicitly says, after alluding to the first three of the above cases "Then the Supreme Court handed down its decision in Caldarola v. Eckert (332 U.S. 155 67 S.Ct. 1569, 91 L.Ed. 1968 (1947)) and Cosmopolitan Shipping Co. v. McAllister (337 U.S. 783 69 S.Ct. 1317, 93 L.Ed. 1692 (1949)), which clarified, in the opinion of the committee, the rule previously announced so as to make it plain that the agent, while liable for the negligence of its own employees, was not liable for the negligence of the civil-service masters and crews with whom the United States manned the vessels. For the negligence of those, the United States was the only responsible party. The committee believes that litigants should not be made the victims of the legal confusion regarding the proper remedy in such cases. * * * Legislative relief is requisite not only to save to litigants possessing meritorious claims their right to a day in court, but also to settle the question of remedy in future cases." Without saying a word here as to seamen, the report expresses the intent of the Congress to save the rights of "litigants" generally. Not only so, but the rights of longshoremen under comparable situations are closely intertwined with those of seamen. Speaking of longshoremen, our highest court has said "For these purposes he is, in short, a seaman because he is doing a seaman's work and incurring a seaman's hazards." Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 99, 66 S.Ct. 872, 880, 90 L.Ed. 1099. That even Federal Judges were confused by the decisions in Hust and Caldarola, but before McAllister, note the situation that arose in Weade v. Dichmann, Wright & Pugh, Inc., 1949, 337 U.S. 801, 69 S.Ct. 1326, 1328, 93 L.Ed. 1704, decided concurrently with McAllister and based thereon. Here the United States Supreme Court alludes to the fact that the United States District Court Judge in that case, before the decision of McAllister, was confused by the series of decisions above alluded to. For, as the Supreme Court opinion shows, the District Judge denied respondent's motion for judgment N.O.V., stating "While the case of Hust v. Moore-McCormack Lines, Inc., 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534, is not precisely in point, it is my view that it is controlling so far as the liability of the defendant is concerned." This case concerned not a seaman, but a passenger. Thus this Federal Judge was as confused by the situation as was libellant here. That Caldarola did not itself clear up the general uncertainty as to the applicable law in such situations as this is further recognized by the Supreme Court in McAllister. For in McAllister 337 U.S. at page 793, 69 S.Ct. at page 1323, after alluding to the differentiation between Caldarola and Hust, the Court says "though it must be admitted there was enough uncertainty in the law even after Caldarola properly to give concern to Congress". (Brackets are this Court's.) Then the Supreme Court notes the very legislative language above...