The difficulty which I have in accepting this view arises from the later provision of the same section of the Clarification Act to the effect that 'Any claim referred to in clause (2)' (death or injury) 'shall * * * be enforced pursuant to the provisions of the Suits in Admiralty Act' which Act, as has been said, imposes a two year limitation.
Whether these two provisions of the Clarification Act are conflicting depends upon what Congress intended when it said 'all the rights * * * under law applicable to citizens of the United States' etc.
The libellant contends that the Suits in Admiralty Act is purely procedural, creating no new rights, that the limitation which it specifies is merely upon the remedy and does not relate to the right and, that, therefore, when rights were referred to in the Clarification Act, it was intended that the substantive rights of the Jones Act were to be incorporated into the Act, to the exclusion of what the libellant says are merely procedural provisions of the Suits in Admiralty Act.
It is quite true that the Jones Act confers substantive rights upon seamen and that the limitation contained in it, through the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., is a condition of the liability and not a limitation on the remedy only. Engel v. Davenport, 271 U.S. 33, 46 S. Ct. 410, 70 L. Ed. 813; Bell v. Wabash R. Co., 8 Cir., 58 F.2d 569. This, however, is only half of the story. The argument applies equally to the Suits in Admiralty Act. True, that statute created no new causes of action in the usual sense of that term (see Burkholder v. United States, D.C., 56 F.Supp. 106), but, with respect to causes of action existing or arising against private owners, it did confer a new right upon the persons to whom they belong, namely, the right to assert such causes of action against the sovereign. It follows that the limitation provision of the Suits in Admiralty Act, also, is a condition to the assertion of the right against the United States which it creates. In addition, even purely procedural provisions of a statute waiving sovereign immunity are jurisdictional. United States Shipping Board Emergency Fleet Corporation v. Rosenberg Bros. & Co., 276 U.S. 202, 48 S. Ct. 256, 72 L. Ed. 531.
It seems to me that it is a fallacy to call this a suit under the Jones Act. Actually, it is brought by virtue of the Clarification Act and the Suits in Admiralty Act, without which statutes no seaman could acquire or could enforce any right arising from personal injuries against the Government. The Jones Act gave him rights against private owners, but, of itself, gave him no rights against the United States. The Suits in Admiralty Act provided for a proceeding in admiralty against the United States, and the Jones Act thereafter introduced into the maritime law a new set of principles, see Lindgren v. United States, 281 U.S. 38, 50 S. Ct. 207, 74 L. Ed. 686; Johnson v. United States Shipping Board Emergency Fleet Corp., 280 U.S. 320, 50 S. Ct. 118, 74 L. Ed. 451, but the extent to which the seaman could assert his newly acquired rights against the Government depended entirely upon the conditions upon which the sovereign had given its consent to be sued, and that consent was to be found in the Suits in Admiralty Act, and not elsewhere. It is clear that, as against the Government, the seaman did not receive the benefit of every provision of the Jones Act. For example he did not become entitled to a trial at common law by a jury in a suit against the United States in any court but was restricted to the enforcement of his rights by a proceeding in admiralty. And it would seem equally clear the 'rights' referred to in the Clarification Act are rights against the Government and are therefore subject to the two year limitation expressly provided for suits in admiralty under the Suits in Admiralty Act.
The libellant points out that the Clarification Act, passed March 24, 1943, was made retroactive with respect to all actions which accrued back to October 1, 1941, and argues from this that Congress must have intended that the three year limitation of the Jones Act should apply since, with respect to an accident occurring on October 1, 1941, the seaman was allowed only five more months or until October 1, 1943, to make his claim to the administrator and wait the sixty days requisite for its disallowance. This argument loses much of its force if it be borne in mind that, prior to the passage of the Clarification Act, such a seaman, if he had any right, had until October 1, 1943, or only about five months to bring his suit and that the Clarification Act merely cut his time by two months. There is no reason to suppose that Congress believed that the Suits in Admiralty Act had been amended by the amendment to the Jones Act extending its period of limitation, through the Federal employers' Liability Act, for, as pointed out in this opinion, the amendment can not logically be said to have had that effect and, in addition, I have found no case so holding.
The Suits in Admiralty Act was an act which made uniform suits for maritime causes of action against the United States, United States Shipping Board Emergency Fleet Corp. v. Rosenberg Bros. & Co., supra, and I do not think that any of the reasons advanced are sufficient to justify the belief that Congress, by the Clarification Act, intended to destroy this uniformity which had existed for some 23 years and had been carefully preserved by both Congress and the courts during that time by the passage of an act which does not expressly or impliedly do so.
Certain principles of statutory construction should always be borne in mind. The Suits in Admiralty Act, and the Clarification Act (as well as the superseded original Act of 1916) constitute a series of statutes by which the sovereign gratuitously waives its immunity and consents to be sued.
'In interpreting the act,' (Suits in Admiralty Act) 'permitting as it does a suit to be brought against the United States, we must follow the rule of strict construction. This follows from the fact that the United States cannot be sued without their consent, the courts are confined to the letter of the statute which expresses such consent. * * * And all the provisions of such a statute are jurisdictional. As the liability and the remedy are created by the statute, the limitations of the remedy are regarded as limitations of the right.' The Isonomia, 2 Cir., 285 F. 516, 520. See also Johnson v. United States Shipping Board Emergency Fleet Corp., supra. This principle, certainly as firmly grounded and well recognized as any canon of statutory interpretation, forbids the Court to resort to 'construction', in order to widen or extend the scope of the liability assumed by the sovereign. Specifically, it raises every reasonable intendment against the libellant's theory that the limitation period of the Suits in Admiralty Act was extended to three years, via the Jones Act, by the 1939 amendment to the Federal Employers' Liability Act and, as so extended, was re-enacted by the Clarification Act.
What has been said leads to the conclusion that the two year limitation of the Suits in Admiralty Act still applies to an action brought by the representatives of a deceased seaman against the Government on a cause of action to enforce rights engrafted upon the Maritime Law by the Jones Act and that the limitation is jurisdictional.
The motion to dismiss is granted.
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