filing suit against respondents until after the expiration of the said two year period; and furthermore, that respondents actually paid libellant a total of $ 500.00 on account of his illness; that the limitation is applicable only under circumstances where the party seeking to revoke the same has acted in good faith and has done nothing to influence libellant to withhold filing suit.
As indicated above, this action is under the Suits in Admiralty Act. '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, and, if Congress in certain cases gives its 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.'
'Generally, where a statute creates a cause of action which was unknown at common law, a period of limitation set up in the same statute is regarded as a matter of substance, limiting the right as well as the remedy. Filing a complaint within the prescribed period is a condition precedent to recovery, and the cause of action is extinguished after the running of the period.'
The limitation provision of the Suits in Admiralty Act is not only jurisdictional but in and of itself is a condition to the assertion of the right against the United States which it creates.
It follows that as of the date of the filing of this suit no right of action existed against the United States upon which the first cause of action in the libel could be predicated.
And in no event in this case could the matters
depended upon by libellant to support his theory that the statute was tolled because he was wrongfully lulled into security by respondents' representatives prevail. Of the eight letters submitted the first three, dated respectively September 7, 1945, September 19, 1945, and November 5, 1945, are in their content completely ineffectual for the purpose claimed; all of the rest are dated subsequently to January 22, 1946, on which date the cause of action ceased to exist under the limitation provision of the Act. The total payments of $ 500 were admittedly made on account of 'maintenance and cure,' and this cause of action is still open. The motion to dismiss the first cause of action in the libel must therefore be sustained
The second cause of action is for 'maintenance and cure.' This being a continuing liability, and applying the limitation provision of the statute above referred to, libellant is entirely within his rights in asserting his claim for maintenance and cure for the two year period immediately antedating the filing of the libel. The motion to dismiss the second cause of action is accordingly refused.