Opinion
Civ. 75-262.
December 12, 1957.
Samuel Segal, New York City (Philip Segal, New York City, of counsel), for plaintiff.
Burlingham, Hupper Kennedy, New York City (James W. Lynch, New York City, of counsel), for defendant.
Defendant moves to dismiss for want of jurisdiction, claiming the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., by its 1950 amendment created an exclusive remedy. Although this motion is brought some four years after issue was joined we have a duty to decide it since it is properly before us in the Motion Term. Plaintiff opposes the motion solely on the ground that Judge Dimock some three years ago denied defendant's motion for summary judgment and in doing so passed on the same issue now presented, D.C., 160 F. Supp. 807. He advances no argument addressed to the merits.
We have examined Judge Dimock's memorandum-opinion which contains the sentence: "Even if contract G.A.A.4-4-42 contains a provision for indemnity by the United States so that the United States will be the ultimate source of payment of any damages, the Suits in Admiralty Act does not preclude a suit against Luckenbach. Brady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471." We have also examined the affidavits and memoranda submitted in support and in opposition to the motion before Judge Dimock and conclude that this present issue was not raised and Judge Dimock did not pass upon it.