ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA - PITTSBURGH (D.C. Civil No. 84-0104)
Before ALDISERT, Chief Judge, GIBBONS, Circuit Judge, and BECHTLE, District Judge*fn*
This appeal present an issue of first impression for the Third Circuit. Whether an admiralty suit against the United States under the Suits in Admiralty Act, service of process, timely within Rule 4 of the Federal Rules of Civil Procedure, is nevertheless untimely -- and thus time-barred -- because such service was not made on the local United States Attorney and the Attorney General "forthwith," As required by the Act. The district court concluded that service was untimely and dismissed the action for lack of subject matter jurisdiction. We reverse.
The Maxwell Lock and Dam, which is owned and operated by the Army Corps of Engineers, is situated on the Monongahela River in Fayette County, Pennsylvania. Jones and Laughlin Steel, Inc, (J & L), the appellant here, operates a preparation plant on the river that depends upon water transportation. On January 31, 1982, an empty barge owned by the Mon River Towing Company (Mon River) broke free, floated down the river, and lodged in an pen gate at the dam. To facilitate release of the barge, the Corps of Engineers lowered the river's water level, an action that J & L alleges interrupted its steel production and thereby caused it damage.
J & L notified the Corps of Engineers of is losses, and he Corps acknowledged the claim by mailing to J & L Standard Recovery Form 95. J & L completed and filed the form in a timely fashion. When the Corps did not agree to make payment, J & L, in order to comply with the applicable statute of limitations, filed a complaint against Mon River and he United States in the Federal District Court for the Western District of Pennsylvania on January 18, 1984. Jurisdiction was predicated on the general admiralty jurisdiction statute. 28 U.S.C. § 1333 (1982), on the Suits in the Admiralty Act, 46 U.S.C. §§ 741-52 (1982), and on the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1982).
A copy of the summons and complaint was served on Mon River on January 24, 1984, and by certified mail on the Corps of Engineers in Pittsburgh, Pennsylvania on January 19, 1984. The summons and complaint thus were served upon the United States agency having primary responsibility for investigating the claim one day after J & L filed its complaint.
On March 15, 1984, J & L's counsel received from an Assistant United States Attorney a letter contending that the January 19 service was defective because J & L had failed to comply with Rule 4(d)(4), which, when read in conjunction with Rule 4(j), requires service of process upon the Attorney General and the appropriate United States Attorney within 120 days of the filing of a complaint in an action against the United States. The letter advised that if such service was not made within ten days the United States would move to dismiss the action against it. The letter evidenced a belief that Rule 4(d)(4) specified the proper mode of service.
Well within the ten days specified in the March 15, 1984 letter, and well within the 120 days specified in Rule 4(j), J & L effected service upon the Attorney General of the United States and upon the United States Attorney. These officers obviously had notice of the filing and of the substance of the complaint by additional process no later than March 20, 1984.
The United States subsequently changed its position with respect to the applicability of Rule 4. Contending that the sole basis of subject matter jurisdiction in the suit against the United States was the Suites in Admiralty Act, the government moved for the district court to dismiss the suit against it. it argued that, because service of process had not been accomplished in the manner and within the time provided by the Act the court lacked subject matter jurisdiction over the case. The government did not contend that it was in any way prejudiced by the fact that the Corps of Engineers, rather than the United States Attorney, was served on January 19, 1984.
The district court, relying on authorities in the Court of Appeals for the Second and Ninth Circuits, dismissed the complain against the United States, as well as Mon River's cross-claim against the United States for lack of subject matter jurisdiction. This appeal followed.*fn1
Congress waived the federal government's sovereign immunity to certain admiralty suits when it enacted he Suits in Admiralty Act in 1920. See Suits in Admiralty Act, Pub. L. No. 156, 41 Stat. 525 (1920) (codified at 46 U.S.C. §§ 741-52 (1982)). Section 1 of the Act prohibited in rem actions against merchant vessels or cargoes of the United States. ...