within the district of this court). In its original answer to the libel, the respondent admitted this allegation; however, in the respondent's amended answer to the amended libel, this allegation of residence is denied. At the trial, the libellant failed to prove by a fair preponderance of the evidence that at the time the libel was filed, he was a resident of Philadelphia, Pennsylvania, or of any other place within this district. On the contrary, this court finds from the evidence presented before it that the libellant, George Rodinciuc, immediately prior to the filing of the libel in this suit and at all times thereafter, was a resident of the City of Lorain, State of Ohio.
It is contended by the libellant that the denial of residence, at most, raised a question of venue and that the respondent, by entering a general appearance and by pleading to the merits, has waived any objection it may have had thereto. Even if the libellant is right in his contention that the denial of his allegation of residence raises a question of venue, the respondent, by entering a general appearance and by defending on the merits, did not waive its objection to the venue. The fact that the libellant did not reside within this district did not appear on the face of this libel, and therefore the respondent was unable to file exceptions to the libel on that ground. The most it could do is deny the allegation of residence and await the proof of such allegation at the trial. See Roberts v. Lewis, 144 U.S. 653, 12 S. Ct. 781, 36 L. Ed. 579; Abbott v. United States, D.C.S.D.N.Y., 61 F.Supp. 989, 991. However this court does not base its decision on this ground.
This court is in accord with Sawyer v. United States, D.C.S.D.N.Y., 66 F.Supp. 271, 1946 A.M.C. 420, a case similar to the one before us, in which Judge Kennedy at page 277 and 428, respectively, concluded: 'That a libel under the Suits in Admiralty Act, which contains no averment within the letter of the statute concerning the residence or place of business of the libellant, or the completely defective, that, if at the trial the libellant does not bring himself within the statutory language concerning the place of suit the court is without jurisdiction, that no government law officer has a right to waive the point and that the court is under a duty to raise it of its own accord.' Also see Carroll v. United States et al., 2 Cir., 133 F.2d 690, 692, 693; Barnes v. United States D.C.S.D.N.Y., 67 F.Supp. 571, 1946 A.M.C. dissenting opinion in Kunglig Jarnvagsstyrelsen v. United States, 2 Cir., 19 F.2d 761, at page 763.
While the lack of jurisdiction of this court disposes of the case, it may nevertheless be pointed out that compliance was not had with the Clarification Act enacted March 24, 1943, 50 U.S.C.A.Appendix, §§ 1291-1295, Section 1(a) whereof provides that seamen employed on American vessels as employees of the United States through the War Shipping Administration shall, with respect to claims, unless covered by the Social Security Act, 42 U.S.C.A. § 301 et seq., or any law administered by the Public Health Service, have the same first administratively disallowed, in whole or in part, before it can be enforced under the Suits in Admiralty Act. This section further provides: 'When used in this subsection the term 'administratively disallowed' means a denial of a written claim in accordance with rules or regulations prescribed by the Administrator, War Shipping Administration.'
On April 22, 1943, the War Shipping Administrator issued General Order 32 wherein were contained certain provisions requisite for the filing of claims with the War Shipping Administration:
'304.23 Court Action, condition precedent No seaman * * * shall commence a court action for the enforcement of such claim, unless such claim has been provided in Sections 304.24 and 304.25 and has been administratively disallowed by the person or agency with whom it was filed.
'304.24 Claims, contents The claim need not follow any particular form, but it shall be in writing. It shall contain such particulars as are reasonably necessary as a basis for the allowance or administrative disallowance of such claim and should include, with respect to the seaman in question, his home address, date of birth, place of birth, certificate of identification number, as well as all the facts and circumstances leading up to the surrounding the happening of the event out of which it is alleged the claim arose.
'304.25 Claims, with whom filed Claims based upon any decision of the Maritime War Emergency Board or any insurance policy issued by the War Shipping Administration, * * * shall be filed with the Chief Adjuster, Division of Wartime Insurance, War Shipping, 99 John Street, New York City, or such other agencies or persons as may be designated by the Chief Adjuster for the purpose of determining the allowance or disallowance of such claim. All other claims * * * shall be filed with the General Agent of the vessel with respect to which such claims arose, or such agent's Berth Sub-Agent to which the former may refer the claim for handling.
'304.26 Claims, when presumed administratively disallowed If the person or agency with whom the claim is filed, in accordance with the directions contained herein, fails to notify the claimant in writing of a determination upon such claim, within sixty days following the date of filing thereof, the claim shall be presumed to have been administratively disallowed, and the claimant shall be entitled to enforce his claim by court action.'
It is evident from a reading of the Clarification Act that the intent of Congress was to avoid suits by seamen for claims against the United States which arose during the war period, and at the same time to give them the rights and liabilities of seamen employed on privately owned American vessels. Thus as a manifestation of this intent, Congress provided for the bringing of all claims to the War Shipping Administration and only after their disallowance by it in accordance with the rules and regulations herein adverted to could suit be brought. In the instant case, although the libellant gave notice of his claim to the proper authorities, the War Shipping Administration, it did not make a final determination of the claim because as filed it did not contain information reasonably sufficient for them to so do. The required information was continually requested of the libellant and as long as it was withheld, the War Shipping Administration could not allow or administratively disallow the claim. It was the duty of the libellant after having given notice of his claim and a request made for additional information to promptly give to the War Shipping Administration the additional information, and not having done this, and the claim not having been administratively disallowed, he is precluded from bringing this suit. Fox v. Alcoa S.S. Co., 5 Cir., 143 F.2d 667, certiorari denied 323 U.S. 788, 65 S. Ct. 313, 89 L. Ed. 628. See Militano v. United States, 2 Cir., 156 F.2d 599, 601.
The libel is dismissed for want of jurisdiction.