The opinion of the court was delivered by: Welsh, District Judge.
The contentions urged by respondent in support of its exceptive
allegations and motion to dismiss are discussed and disposed of
1. Respondent's first contention is that libellant has failed
to allege the existence of a prior suit or action or the timely
commencement thereof, and consequently libellant in the present
suit is not entitled to the provision of the Suits in Admiralty
Act, as amended, 46 U.S.C.A. § 741 et seq., extending the time
limitation for suits.
The provision in question, Amendment of December 13, 1950 to
the Suits in Admiralty Act, 46 U.S.C.A. § 745, reads as follows:
"That the limitations contained in this section for
the commencement of suits shall not bar any suit
against the United States brought hereunder within
one year after December 13, 1950, if such suit is
based upon a cause of action whereon a prior suit in
admiralty or an action at law was timely commenced
and was or may hereafter be dismissed solely because
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 or
against the master of any such vessel".
Paragraph 12 of the instant libel avers: "The instant action is
being prosecuted against respondent pursuant to the provisions of
the Suits in Admiralty Act, 41 Stat. 525, 46 U.S.C.A. §§ 741-745,
as amended on December 13, 1950 by Public Law 887 , Chapter
1136, 81st Congress, Second Session, H.R. 483, a timely action
having been previously instituted against A.H. Bull and Company,
the general agent of the said vessel, in which libellant has
asserted against the said general agent the precise claim being
presently asserted herein against respondent, and which action
was dismissed solely because improperly brought against the said
A.H. Bull and Company, a firm engaged by the United States to
manage and conduct the business of the S.S. "Cape Henlopen" and
S.S. "William Tilgheman". The said action was brought in the
United States District Court for the Eastern District of
Pennsylvania as of No. 403 of 1949, in Admiralty."
A reading of the aforementioned Amendment to the Suits in
Admiralty Act and paragraph 12 of the instant libel makes it
obvious that legally sufficient facts are pleaded and the libel
is not therefore barred.
The respondent nevertheless argues that the libel is on its
face time-barred since it shows that the causes of action arose
between October 19, 1942 and April 6, 1943 and July 19, 1943 and
November 27, 1943 and that the prior suit against A.H. Bull and
Company, the General Agent, was filed on October 24, 1949. This
argument is answered in part 3 of this opinion.
2. Respondent's second contention is that the present suit is
barred for the reason that libellant brought a prior suit against
the respondent in which the precise claim involved in the present
suit was asserted, No. 249 of 1950 in Admiralty, filed July 14,
1950. Respondent points out that said prior suit was brought
after the expiration of the two year statute of limitations
applicable to suits against the United States and consequently
libellant's causes of action were extinguished (it will be
remembered, however, that we held part of that first suit was not
barred) and are incapable of being revived by the provisions of
the Amendment of December 13, 1950 to the Suits in Admiralty Act.
For several years the law with respect to the liability of a
general agent was uncertain. Then on June 27, 1949, the United
States Supreme Court, in Cosmopolitan Shipping Company v.
McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, removed
some of the uncertainty by holding that general agents were not
proper parties and consequently not liable under the law.
On October 24, 1949, the libellant, at that time convinced that
his case on its facts was outside the scope of the holding in
Cosmopolitan Shipping Company v. McAllister, supra, brought suit
against A.H. Bull and Company, the general agent. And, on July
14, 1950, out of an abundance of caution for his protection and
without yielding any of his rights in the suit against the
general agent, libellant brought the first suit against the
United States, the respondent herein. Thereafter, the amendment
of December 13, 1950 to the Suits in Admiralty Act was passed and
it is clear that said amendment was passed to give a remedy
against the government to suitors who had been defeated because
they had sued others than the government, such as, general
agents, in the belief that they were the proper parties and
liable under the law. It is the opinion of this court that the
Amendment is applicable to the present suit and libellant's
rights thereby created ought not be defeated merely because a
prior action was commenced by him against the United States
before the effective date of the Amendment. In Clarence G.
Ketcham v. United States, D.C., 106 F. Supp. 960, 961, Judge
Kirkpatrick had before him the problem of a prior pending suit
against the United States and upheld the validity of the second
suit against the United States under the Amendment in the
"* * * Also immaterial is the fact that at the time
the action at law was dismissed there was pending a
suit in admiralty [against the United States] not
timely brought and subject to dismissal because
barred by the Statute."
3. Respondent's third and final contention is that the present
suit is barred since it is based on the suit against the general
agent, A.H. Bull and Company, No. 403 of 1949 in Admiralty which
is itself barred on its pleadings because of laches — said
pleadings show that the cause of action arose at the latest on
November 27, 1943 and the suit against the general agent, A.H.
Bull and Company, was brought on October 24, 1949.
The answer to this contention is that the legal existence or
non-existence of laches is dependent upon the facts and
circumstances of a particular case and ordinarily is incapable of
determination on preliminary attacks, such as, on motions to
dismiss, etc. Its determination should await the trial of the
case on its merits or a special hearing in advance of trial.
We hold therefore, that the issue of laches has been raised
prematurely and decision thereon should be reserved until
libellant has had an opportunity to establish his averment that
the suit against the general agent, A.H. Bull and Company, was
timely commenced. It necessarily follows that in the present
state of the record a discussion of the law or principles
applicable to laches is not required, except that mention should
be made of the alleged negligence of the respondent in failing to
treat or maintain libellant after his discharge from the vessel.
Negligence in that respect has been held to constitute a
continuing tort and if libellant establishes it he will ...