United States District Court, Eastern District of Pennsylvania
September 24, 1952
The opinion of the court was delivered by: Clary, District Judge.
The present admiralty action was instituted on November 8,
1951, in the name of the above libellant. The libel claimed
damages for personal injuries suffered by the named libellant on
or about December 25, 1944, while ashore at Antilla, Cuba, at a
time when he was serving as an able seaman on the S.S. Matthew B.
Brady. The vessel at that time was being operated by a General
Agent for the United States. On August 21, 1945, libellant
instituted in this Court, Civil Action No. 5087, against the
General Agent for the same damages claimed in this action. In
addition, in the civil action there was a claim for maintenance
and cure arising out of the incident in question. The civil
action was tried on May 27, 28 and 29 of 1946 and the plaintiff
recovered a verdict in the sum of $2,500. Motions were filed for
a new trial and judgment n.o.v. The latter motion was denied, but
a new trial was granted. Nowery v. Smith, D.C., 69 F. Supp. 755.
Subsequently, on December 19, 1949, the action was dismissed
without prejudice on the authority of Cosmopolitan Shipping Co.,
Inc., v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692,
and Gaynor v. Agwilines, Inc., 337 U.S. 810, 69 S.Ct. 1330, 93
L.Ed. 1709, solely because it had been improperly brought against
the General Agent and not against the United States, owner of the
vessel. The present admiralty action, in point of time, was
instituted within the limitation prescribed by the Amendment to
the Suits in Admiralty Act, 41 Stat. 525, 46 U.S.C.A. §§ 741,
745, Amendment of December 13, 1950, Public Law 877, Ch. 1136,
81st Congress, 2nd Session, H.R. 483, 64 Stat. 1112. Respondent
entered a general appearance and filed an answer to the merits.
Thereafter, on July 29, 1952, respondent filed a motion for leave
to amend answer to the libel to aver, upon information and
belief, that the named libellant James N. Nowery died on or about
May 4, 1949; that the present action was instituted on November
8, 1951 in the name of the decedent without legal justification;
and finally averring that the right of action herein asserted was
finally terminated by the death of libellant. Libellant filed an
answer to the motion denying that the action was terminated by
the death of the libellant and requesting an opportunity, first,
to have an administrator of the estate of the deceased libellant
appointed and, second, to substitute said administrator as party
libellant herein. The matter is now before the Court on these two
I have no difficulty with the first motion, viz., the motion
for leave to amend answer to libel. Equitable principles require
that when leave of Court is requested by a party, such leave
shall be freely given when justice so requires. In its motion to
amend, respondent alleges that its first knowledge of the death
of the libellant was obtained by it on July 8, 1952, in the
course of obtaining information from various sources to answer
rather extensive interrogatories propounded on behalf of the
libellant. In checking libellant's work record, information was
requested from the Records and Welfare Section of the United
States Coast Guard and, in a letter dated July 8, 1952, the
Commandant of the United States Coast Guard advised the proctors
for the respondent that the named libellant had been found dead
in his berth on the S.S. Chickasaw at Tampa, Florida, on May 4,
1949. Based on that information the present motion was filed, and
I feel that there was no undue delay in filing the motion.
Justice requires that the amendment be allowed.
In the cross-motion for leave to substitute an administrator of
the estate of James N. Nowery, several problems appear. First, no
administrator has been appointed and there is presently in
existence no personal representative available for substitution.
Second, assuming, as we must, that the named libellant did die in
May of 1949, the suit at present is a nullity. Cf. Jenks v.
Edwards, to Use, etc., 6 Ala. 143; Tait, to Use, etc., v. Frow,
8 Ala. 543. Further, at the time this present action was
instituted, the decedent had lost his right of action, all causes
of action for injuries received in his lifetime having vested by
statute, after his death, in his survivors. 45 U.S.C.A. § 59.
Finally, the Suits in Admiralty Act, as amended, December 13,
1950, 46 U.S.C.A. § 745, provides that such suits may be brought
only within two years after the cause of action arises, excepting
however that where a prior cause of action had been timely
commenced and was thereafter dismissed solely because it was
improperly brought against any person, partnership, association,
or corporation engaged by the United States to manage and conduct
the business of a vessel owned or bareboat chartered by the
United States, such suits should not be barred under the
amendment within one year after December 13, 1950. Therefore, the
period of grace for the institution of this action expired under
the terms of that amendment on December 13, 1951.
If the matter involved herein presented a procedural question,
no difficulty would be presented. As pointed out above, the
decedent had no right of action at the time this suit was
instituted, all rights vested in the survivors. No personal
representative has been appointed and no action has been taken by
the survivors to assert their cause of action through a personal
representative. A substitution, as here requested, would
inaugurate a new cause of action. This is an action against the
sovereign. It is a limited permission to sue. The decisions under
the section here involved, 46 U.S.C.A. § 745, point up very
clearly that the limitations therein contained are jurisdictional
in nature; that the section not only bars the remedy but also
extinguishes the substantive right created by the act upon
expiration of the period of limitation; and that commencement of
the suit within the prescribed period is a condition precedent to
the right of recovery. Kruhmin v. United States War Shipping
Administration, D.C., 81 F. Supp. 689, affirmed 3 Cir.,
177 F.2d 906; Sloand v. United States, D.C., 93 F. Supp. 83; Paschal v.
North Atlantic & Gulf S.S. Co., D.C., 95 F. Supp. 293; Abbattista
v. United States, D.C., 95 F. Supp. 679.
Under the circumstances, since this request involves the
institution of a new cause of action, beyond the jurisdictional
limits imposed by Section 745, supra, I have no authority to
substitute an administrator and thereby extend the period of
limitation provided in the Act of Congress.
The motion to substitute administrator, therefore, must be
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