Untersinger v. United States

• Decision Date: 01 February 1949
• Docket Number: Docket 20989.,No. 17,17
• Citation: 172 F.2d 298
• Parties: UNTERSINGER v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

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 of business, or in the district in which the vessel charged with liability is found. The libel contained no allegation as to the residence of the libellant or the whereabouts of the vessel. At the pre-trial hearing it appeared that the libellant was not a resident of the southern district of New York when the libel was filed, January 29, 1946, nor at any time during the pendency of the suit; and that the steamer Bull Run was not within the United States at the time the libel was filed.

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 willingness of the United States to defend in a district other than those specified in the statute, it is clear that the answer negatived any such willingness, for it expressly alleged lack of jurisdiction and improper venue, notwithstanding that it also answered the merits. Hence waiver, if it exists, must be found in the technical rule that a general appearance or answer to the merits precludes a special appearance for the purpose of objecting to venue. Texas & Pacific Railway Co. v. Cox, 145 U.S. 593, 603, 12 S.Ct. 905, 36 L.Ed. 829. This was, indeed, the old common law rule and was apparently based on the motion that by pleading to the merits a defendant came before the court and could not thereafter say that he was not in court. Chitty on Pleadings, 16th Am.Ed., Vol. 1, pp. 443-4. This highly technical rule of the common law was applied by this court in a libel brought under the Suits in Admiralty Act in Kunglig Jarnvagsstyrelsen v. United States, 2 Cir., 19 F.2d 761, 763 where we held that exceptions which were a plea to the merits, although coupled with objections to venue, constituted a waiver of the defect in venue. There may be some doubt whether this decision accorded with the general practice in admiralty.³ But however that may be, the appellee contends that the Kunglig case should no longer be followed, since the common law rule, on which the decision rested, no longer obtains in civil actions in the federal courts because of the adoption of the Federal Rules of Civil Procedure, 28 U.S.C.A. Under Rule 12(b) the joining of objections to venue with a plea to the merits does not constitute a waiver of improper venue. Orange Theatre Corporation v. Rayherstz Amusement Corporation, 3 Cir., 139 F.2d 871, 874; Blank v. Bitker, 7 Cir., 135 F.2d 962, 966. We think the appellee's position is well taken.

It has long been recognized that "the rules of pleading in the admiralty are exceedingly simple and free from technical requirements." Dupont de Nemours & Co. v. Vance, 19 How. 162, 171, 15 L.Ed. 584; see also 2 Benedict on Admiralty, 6th ed., § 223. In Boston Ins. Co. v. City of New York, 2 Cir., 130 F.2d 156, this court stated that...