MacInnes v. United States

93 F. Supp. 987, 1950 U.S. Dist. LEXIS 2454

Opinion

SWEENEY, Chief Judge.

The latest exceptions to the libel are based upon the contention that the action was not brought within the permissive statutory time. In the Suits in Admiralty Act, 46 U.S.C.A. § 745, it is specified that the libel “shall be brought within two years after the cause of action arises.” The Clarification Act, 50 U.S.C.A.Appendix, § 1291, extends to seaman employed through the War Shipping Administration the rights and benefits of American seamen on privately owned and operated American vessels, and sets up a condition precedent to suit that the claim must have been previously administratively disallowed. The regulations of the War Shipping Administration provide that a claim is presumed to be administratively disallowed if no favorable action is taken on it within sixty days after filing.

In Thurston v. United States, 9 Cir., 179 F.2d 514, the Court decided that an action commenced two years and 25 days after the date of injury was seasonably instituted on the theory that a cause of action does not arise until the sixty-day period has passed. I cannot follow that decision in the light of the facts in this case. The libellant was injured on September 19, 1947. He did not file his claim with the agency until December 14, 1949, which was 2j4 years later. He then waited for a period of sixty days and filed the instant action. I do not believe that the 'Clarification Act should be construed so as to invalidate the period of limitations set up in the Suits in Admiralty Act. It is unnecessary to decide whether the effect of the sixty-day limitation was to increase the time within which suit might be filed to two years and sixty days, as this claim was not even filed within that period.

The exceptions are sustained 'and the action is to be dismissed.