Opinion
December 27, 1954.
George J. Engelman, New York City, for libellant.
J. Edward Lumbard, U.S. Atty., New York City, by Dougherty, Ryan Mahoney, New York City, of counsel, for respondent.
The libellant has brought an action against the United States under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., based upon a personal injury alleged to have occurred on October 1, 1952, while he was employed as a seaman aboard a vessel owned by the respondent. The United States excepts to libel and moves to dismiss on the ground that it is jurisdictionally defective, the libellant having failed to plead the facts of administrative disallowance of his claim. Rodinciuc v. United States, 3 Cir., 175 F.2d 479.
The libellant cites Burton v. United States, D.C., 109 F. Supp. 139 for the proposition that administrative disallowance is no longer required, and the respondent cites the subsequently decided Danstrup v. The Richmond P. Hobson, D.C., 112 F. Supp. 851 for the contrary proposition. In the former, Judge Sugarman decided that the amendment to the Suits in Admiralty Act, 46 U.S.C.A. § 745, extending the limitation period until Dec. 13, 1951, in order to remedy the situation of a limited class of seamen resulting from the decision of Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, excluded the requirement of administrative disallowance of claims. He also expressed the opinion, 109 F. Supp. at page 143, that the requirement in the Clarification Act, Public Law 17, 78 Cong., 57 Stat. 45, 50 U.S.C.A.Appendix, §§ 1291-1295, for administrative disallowance and the War Shipping Administration's regulations on the requirement "at most, prevailed only until two years [after the demise of the Administration on August 31, 1946] in order to cover in, under the two year statute of limitations in the Suits in Admiralty Act, claims arising before the Administration ceased to exist." Judge Galston in the Danstrup case held that a seaman, likewise suing under the extended limitation amendment, was bound by the requirement of administrative disallowance. His decision was based upon an analysis of the history of the several agencies entrusted with the duty of handling seaman's claims against the United States, showing "a uniform attempt to conform to the expressed purpose of the `Clarification Act' to channel seamen's claims first to the proper administrative agency and then, from the agency's adverse action, to the courts." [ 112 F. Supp. 854.] However, the case deals with an injury which occurred in 1944, and he appropriately cited an order of the Federal Maritime Board and Maritime Administration providing for a "Division of Claims" in the Maritime Administration, which is made "responsible for analyzing and recommending the basis of settlement of claims in favor of and against the Administration arising from the wartime operations of the former Maritime Commission and War Shipping Administration * * *." (Emphasis supplied.) 15 Federal Register 4455, § 4(d). However pertinent the analysis is to the injury in 1944, it is, I feel, not pertinent to the injury in 1952. For injuries of such a date the administrative history does not disclose a "uniform attempt to conform to the expressed purpose of the Clarification Act" in providing for the requirement of administrative disallowance of claims prior to resort to the courts.
Accordingly, the respondent's exception will be overruled and the motion to dismiss denied.