Untersinger v. United States, No. 17
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | L. HAND, , and SWAN and CHASE, Circuit |
| Citation | 172 F.2d 298 |
| Parties | UNTERSINGER v. UNITED STATES. |
| Docket Number | Docket 20989.,No. 17 |
| Decision Date | 01 February 1949 |
172 F.2d 298 (1949)
UNTERSINGER
v.
UNITED STATES.
No. 17, Docket 20989.
United States Court of Appeals Second Circuit.
February 1, 1949.
Paul C. Matthews, of New York City (Archibald F. McGrath, of New York City, of counsel), for appellant.
Kirlin, Campbell, Hickox & Keating, of New York City (Joseph M. Cunningham, Raymond Parmer and Charles N. Fiddler, all of New York City, of counsel), for appellee.
Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.
SWAN, Circuit Judge.
This is a libel in personam to recover damages, as well as maintenance and cure, resulting from injuries alleged to have been sustained by the libellant while employed as a messman on the S. S. Bull Run, a merchant vessel owned by the United States and operated for its account. At a pre-trial hearing the respondent moved for dismissal of the libel on the ground that the court lacked jurisdiction because the suit was not brought in the proper district. The motion was granted pursuant to an opinion.1 From the resulting decree of dismissal the libellant has appealed. The correctness of the decision depends upon whether or not the United States waived the defect in venue by answering to the merits, when its answer also set up defenses alleging lack of jurisdiction because the vessel was not within the United States when the libel was filed, and improper venue.2
The Suits in Admiralty Act, §§ 1-12, 46 U.S.C.A. §§ 741-752, provides the exclusive remedy in admiralty against the United States for a maritime tort. Brady v. Roosevelt S. S. Co., 317 U.S. 575, 577, 63 S.Ct. 425, 87 L.Ed. 471. Section 742 directs that a libel in personam shall be brought either in the district in which the libellant resides or has his principal place
When the district court rendered its decision, it had not been authoritatively determined whether the statutory provisions as to the place of bringing suit pertained to jurisdiction or to venue. But on November 8, 1948, in Hoiness v. United States, 335 U.S. 297, 69 S.Ct. 70, 73, the Supreme Court held that such provisions are not jurisdictional but relate merely to venue; and the opinion concluded: "But if the United States is willing to defend in a different place, we find nothing in the Act to prevent it." In the Hoiness case the United States had demonstrated such willingness; no exceptions to the libel and no motion to dismiss were filed, the case was heard on the merits, and after submission the trial judge sua sponte dismissed it for lack of jurisdiction. Hoiness v. United States, D.C.N.D.Cal., 75 F.Supp. 289. Plainly any defect in venue was waived by going to trial.
The appellant insists that the defect in venue, which the pre-trial hearing developed, was waived by the answer previously filed by the respondent. If the test of waiver is, as suggested by the Supreme Court in the Hoiness opinion, the...
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Civil v. Waterman Steamship Corporation, No. 92
...it is unfair; 217 F.2d 98 but of course such an option is not at all unusual in the law. Thus cf. Untersinger v. United States, 2 Cir., 172 F.2d 298, and 2 Moore's Federal Practice ¶ 12.12 (2d Ed.1948) on venue or jurisdiction over the The other procedural error assigned is as to the order ......
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Cactus Pipe & Supply Co., Inc. v. M/V Montmartre, No. 83-2478
...(4th Cir.1964), cert. denied, 380 U.S. 979, 85 S.Ct. 1343, 14 L.Ed.2d 272 (1965) (emphasis added). See also Untersinger v. United States, 172 F.2d 298, 301 (2d Cir.1949) (no waiver where objection to venue in admiralty action made in answer that also pleaded to If waiver of arrest here cann......
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Warren v. United States, No. 45
...is found." 3 The answer also pleaded to the merits but this did not waive the objection to venue. Untersinger v. United States, 2 Cir., 172 F.2d 298; Orr v. United States, 2 Cir., 174 F. 4 The libel was filed March 2, 1945. The trial was in October 1947. The vessel docked at New York on Jun......
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United States v. Fall River Navigation Company, No. 63 AD 563.
...in procedure elsewhere." Boston Ins. Co. v. City of New York, 130 F.2d 156 (2nd Cir. 1942). See e. g. Untersinger v. United States, 172 F.2d 298 (2nd Cir. 1949) (whether answering to merits constitutes a waiver of defect in venue); Walsh v. United States, 81 F.Supp. 667, 668 (E.D.Pa. 1949) ......
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Civil v. Waterman Steamship Corporation, No. 92
...it is unfair; 217 F.2d 98 but of course such an option is not at all unusual in the law. Thus cf. Untersinger v. United States, 2 Cir., 172 F.2d 298, and 2 Moore's Federal Practice ¶ 12.12 (2d Ed.1948) on venue or jurisdiction over the The other procedural error assigned is as to the order ......
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Cactus Pipe & Supply Co., Inc. v. M/V Montmartre, No. 83-2478
...(4th Cir.1964), cert. denied, 380 U.S. 979, 85 S.Ct. 1343, 14 L.Ed.2d 272 (1965) (emphasis added). See also Untersinger v. United States, 172 F.2d 298, 301 (2d Cir.1949) (no waiver where objection to venue in admiralty action made in answer that also pleaded to If waiver of arrest here cann......
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Warren v. United States, No. 45
...is found." 3 The answer also pleaded to the merits but this did not waive the objection to venue. Untersinger v. United States, 2 Cir., 172 F.2d 298; Orr v. United States, 2 Cir., 174 F. 4 The libel was filed March 2, 1945. The trial was in October 1947. The vessel docked at New York on Jun......
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United States v. Fall River Navigation Company, No. 63 AD 563.
...in procedure elsewhere." Boston Ins. Co. v. City of New York, 130 F.2d 156 (2nd Cir. 1942). See e. g. Untersinger v. United States, 172 F.2d 298 (2nd Cir. 1949) (whether answering to merits constitutes a waiver of defect in venue); Walsh v. United States, 81 F.Supp. 667, 668 (E.D.Pa. 1949) ......