Opposition Brief — Rodinciuc v. United States

Page

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CITATIONS

Resins Milling Co. v. Commissioner, 325 U.S. 293 . 19

sore v. Group of Institutional Investors, 335

PE Sih ace ehh KS RSA SEARS A KS CESS ED ESSASA SERS 14

Cosmopolitan Shipping Co., Inc. v. McAllister, 337

DE Cer a. cae ince ENS ULiche cctkenecadk acs 16, 18

Fink v. Shepard Steamship Co., 3837 U.S. 810 .......... i8

Fox v. Alcoa S. S. Co., 143 F. 2d 667, certiorari denied,

SR RRS eee an 19

“\nad v. Agwilines, Inc., 387 U. S. 810 .............. 18

Hoiness V. United States, 335 U.S. 297 .............. 13, 20

KVOS, Inc. v. Associated Press, 299 U. S. 269 ........ 18

Mahnich v. Southern S. S. Co., 321 U. 8.96 .......... 14

McInnis v. United States, 152 F. 2d 387 .............. 19

ay v. General Motors Acceptance Corp., 298 U. S.

AY Se ere eres re ee ee ee eee ee ee ee 18

Militano v. United States, 156 F. 2d 599 .............. 19

Orr v. United States, 174 F. 2d 577 ..... 2.2.0... eee 21

Sloan Shipyards v. U. S. Fleet Corp., 258 U.S. 549 .... 16

United States v. Corrick, 298 U. S. 435 .............. 18

Untersinger v. United ae i ik eee 21

mreemere V. Romer, 160 U.S. 115 2.0... 6. ccc ecw ees 18

utes :

Clarification Act of March 24, 1943, Sec. 1, 57 Stat. 45,

60 U.S.C. A Mc < keh sch eh bec icse ea ce 2, 3. 15, 22

R. S. 1753, 5 ee ks a ote 3

Suits in Admiralty a ee MEER TRENUOR cana cvawands 2

ee NC SRRCAW SA Wan bh SAGE bAN Ra DS . 3 20, 24

4 Cae LURE CC CARLES RASA NAAN AAAS OLAS AK ARN 4, 16, 24

_ Miscellaneous :

a Civil Service Rules, Schedule A:

vo Oy (1), 5 CFR, 1943 Cum. Supp. 1488, sec.

oc AA ee SR RAR CE ARORA RU AADAR SSK RASA 3

5 Cyc. of Federal Procedure (1943 “ vy, re 18

Executive Order No. 9004, 7 F. R. 2 .............55. 3

Executive Order No. 9054, 7 F. R. 837 Blea ena Sa 3

wn ral Order 32, issued April 22, 1948, 8 Fed. Reg.

Ee kas 6 aa RGRORA HAR EMEMERE A AEARS BORK 2, 15

A. hes CC e A Che kek dA DAA RAK KE VON 25

NT Ss i a ks ks ARE R GOA CRRA Cee 25

t EES Ces SELENA MERC ARAD beh ON CK RAI 4, 26

ME Shae a a Ahhh & hell ke 4, 26

$ Sec. ree Pe eRe Che (nek aah a Cd RADE DORA WARS 4, 26

E a ed 5, 27

Rule 12(h) 2), Federal Rules of Civil Procedure .... 18

War Shipping Administration Operations Regulations

No. 12, Supplement No. 1, October 7, 1944 .......... 3

(I)

——

§nthe Suyreme Gjourt of the Winited States

OcToBER TERM, 1949

No. 150 Mise.

GEORGE RODINCIUC, PETITIONER

v.

UNIrep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the United States District Court

for the Eastern District of Pennsylvania (Pet. A.

6a),’ is reported at 74 F. Supp. 284. The opinion

of the United States Court of Appeals for the Third

Cireuit is reported at 175 F. 2d 479.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on May 31, 1949. A petition for rehearing,

1The ‘‘Appendix to Brief for Appellant,’’ ‘‘ Appellant’s

Supplemental Appendix,’’ and ‘‘ Appendix to Brief for Ap-

pellee’’ will be referred to herein respectively as: (Pet. A.),

(Pet. SA), and (RA).

2

filed June 15, 1949, was denied on June 22, 1949.

The time within which to file a petition for a writ of

certiorari was extended by order of Mr. Justice

Burton to and including September 29, 1949. The

petition for a writ of certiorari was filed on Sep-

tember 28, 1949. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether, on the particular facts of this case, both

courts below erred in dismissing petitioner’s libel

for lack of jurisdiction on the ground that peti-

tioner failed to file a proper administrative claim in

compliance with General Order 32, 8 Fed. Reg.

5414, issued by the War Shipping Administrator

pursuant to the Clarification Act, 50 U.S.C. App.

1291.

STATUTES AND REGULATIONS INVOLVED

The pertinent provisions of the War Shipping

Administration (Clarification) Act of March 24,

1943, 57 Stat. 45, 50 U.S.C. App. 1291, and of the

Suits in Admiralty Act, 46 U.S.C. 741-752, are set

forth in Appendix A, infra, pp. 22-24. General

Order 32, 8 Fed. Reg. 5414, issued by the War

Shipping Administrator pursuant to the Clarifica-

tion Act, is set forth in Appendix B, infra, pp.

25-27.

STATEMENT

1. Introductory Statement. This is a suit by a

civil service seaman against the United States

under the Suits in Admiralty Act, 46 U.S.C. 741-

752, and the Clarification Act, 50 U.S.C. App. 1291,

to recover for injuries allegedly sustained while a

member of the crew of the S.S. William Williams,

a vessel owned and operated by the United States

; 3

through the War Shipping Administration.? The

libel alleged that the vessel was torpedoed on May

2, 1943, and that petitioner was injured as a result

thereof. The libel further alleged that petitioner

was again injured on May 18, 1943, in the course of

his employment (RA. la-4a). Three causes of

action were ultimately stated by the amended libel:

(1) Damages arising from negligence and from

unseaworthiness of the vessel; (2) maintenance

and cure and wages; (3) War Risk Insurance ben-

efits. The district court dismissed the libel for

want of jurisdiction on two grounds; (a) failure of

petitioner to prove residence in the district, as re-

quired by Section 2 of the Suits in Admiralty Act

(infra, p. 24); (b) failure to file a proper claim

under the Clarification Act. On appeal, the court

below affirmed.

2. Background. The Clarification Act of March

24, 1943, infra, pp. 22-24, grants to officers and mem-

bers of crews on United States vessels ‘‘all of the

rights, benefits, exemptions, privileges, and liabili-

ties, under law applicable to citizens of the United

States employed as seamen on privately owned

and operated American vessels.’’ Section 1 pro-

vides that claims ‘‘shall, if administratively disal-

lowed in whole or in part, be enforced pursuant to

the provisions of the Suits in Admiralty Act”’, and

2 By virtue of this government employment on a government

operated vessel, petitioner’s technical status was that of an

unclassified civil service employee of the United States. Civil

Service Rules, Schedule A, sec. xxi (1), 5 CFR, 1943 Cum.

Supp. 1488, sec. 50.21 (Executive Order No. 9004, 7 F.R. 2,

Executive Order No. 9054, 7 F.R. 837), established by the

President under authority of R.S. 1753 (5 U.S.C. 631) ; see

also, War Shipping Administration Operations Regulations

No. 12, Supplement No. 1, October 7, 1944.

4

defines the term administratively disallowed to

mean a “denial of a written claim in accordance

with rules or regulations prescribed by the Admin-

istrator, War Shipping Administration.”’ (50

U.S.C. App. 1291). Section 5 of the Suits in Ad-

miralty Act, infra, p. 24, declares that suit

**shall be brought within two vears after the cause

of action arises.”

On April 22, 1943, the War Shipping Adminis-

trator issued General Order 32, 8 Fed. Reg. 5414,

infra, pp. 25-27, which provides in pertinent part

as follows:

304.23 Court action, condition precedent,

No seaman * * * shall commence a court ae-

tion for the enforcement of such claim, un-

less such claim has been filed by him or on

his behalf * * * as provided in Sections 304.24

and 304.25 and has been administratively

disallowed by the person or agency with

whom it was so filed.

304.24 Claim, contents. The claim need

not follow any particular form, but it shall be

in writing. It shall contain such particulars

as are reasonably necessary as a basis for the

allowance or administrative disallowance of

such claim and should include * * * all the

facts or circumstances leading up to and sur-

rounding the happening of the event out of

which it is alleged the claim arose.

304.25 Claims, with whom filed. Claims

based upon * * * any insurance policy issued

by the War Shipping Administration, * * *

shall be filed with the Chief Adjuster, Divi-

sion of Wartime Insurance, War Shipping

a seatauasitiesietiialenesinaiet ieiaan

5

*** All other claims * * * shall be filed

with the General Agent of the vessel with

respect to which such claims arose, or such

Agent's Berth Sub-Agent to which the for-

mer may refer the claim for handling.

304.26 Claim, when presumed adminis-

tratively disallowed, If the person or agency

with whom the claim is filed, in accordance

with the directions contained herein, fails to

notify the claimant in writing of a determi-

nation upon such claim, within sixty days

following the date of filing thereof, the claim

shall be presumed to have been administra-

tively disallowed, and the claimant shall be

entitled to enforce his claim by court action.

3. Correspondence. On October 25, 1943, proc-

tors for petitioner notified the Isthmian Steamship

Company, the General Agent herein, that (Pet. SA.

l4a):

We represent George Rodineiue who was

an oiler on board your SS. William

Williams when he sustained personal in-

juries following the torpedoing of the vessel

and when on or about May 18, 1943 he suf-

fered personal injuries while keving up the

I.P. bearing.

Please advise us whether you are inclined

to adjust this matter amicably.

In reply, on October 26, 1948, the General Agent

requested proctors for petitioner to (Pet. SA, 15a):

*** furnish us with full details as to the

time, place and cause of the accident and

also furnish us with the original of the hos-

pital abstract.

6

On October 27, 1943, proctors for petitioner

stated that (Pet. SA. 16a) :

* * * we certainly are at a loss to under-

stand why you asked us to furnish you full

details as to the time, place and cause of

accident when you have complete informa-

tion. If you contend that you have no such

information, we would ask that you advise

us as to that fact.

In addition to all this, Mr. Rodinciue was

examined by your officers following the tor-

pedoing and you must have that information

also * %

On October 30, 1943, the General Agent repeated

its prior request (Pet. SA. 17a):

It is necessary that your claim stipulate

exactly what is claimed for. If you have two

claims, one for war risk injury and another

for normal injuries, those claims are, of

course, to be segregated.

We also require the clinical abstract indi-

cating the treatments for both injuries and

the present status.

As you are undoubtedly aware, we are act-

ing as Agents for the War Shipping Admin-

istration, and this information is necessary

before we can recommend a settlement.

To this letter, proctors for petitioner, on Novem-

ber 1, 1943, answered that (Pet. SA. 18a) :

We agree that the two claims are to be

segregated but we do not understand what

information you require from us with re-

spect to the war risk injury. * * *

7

On November 2, 1943, the General Agent stated

that (Pet. SA. 19a):

Inasmuch as you appear to have two

claims in connection with this man and in

order to avoid further correspondence lead-

ing up to the possible settlement, we suggest

that you let us have the original abstract

from the Marine Hospital which we trust

will completely segregate the two injuries

alleged to have been sustained after which we

will then correspond with you for whatever

further information we may need.

On November 29, 1943, instead of furnishing the

requested original abstract from the Marine Hos-

pital, proctors for petitioner supplied a medical

diagnosis of undesignated origin and declared that

(Pet. SA. 20a) :

All of these injuries with the excep-

tion of the second one were sustained in a

torpedoing. The second injury was sus-

tained on or about May 18, 1943, while keying

up the I.P. bearing. We call your attention

to the correspondence in this matter, and we

note that you have not made it clear as to

what information you require from us with

respect to the war risk injury.

* * * We also note that you [sic] position

with regard to the injuries sustained by Mr.

Rodineiue while he was keying up the LP.

bearing is not quite clear. * * *

On December 1, 1943, the General Agent reiter-

ated that (Pet. SA. 21a):

*** As previously advised, it is necessaTy

that we have the original clinical abstract

from the Marine Hospital and we suggest

that you forward same at your early con-

venience.

We will also need some details as to the

man’s version of how he sustained his injury.

He should state where he was at the time of

accident, what he was doing, how he was hurt,

whether he reported the matter to any of the

ship’s officers and if so to whom, what treat-

ment he received and where.

After we are successful in establishing the

necessary details in connection with the war

risk injury, we can then give consideration

to the claim for injury to the left index finger

not attributable to the war risk injury.

On December 2, 1943, proctors for petitioner re-

plied that (Pet. SA. 22a):

e& & &

we are unable to understand what

you desire us to do. Will you please inform

us precisely what information you request

concerning the injuries which he sustained

as a result of war-like operations; will you

please inform us precisely what information

you request concerning the injury which was

not sustained during a war-like operation.

On December 3, 1943, the General Agent re-

gretted that its letter of December 1 was not clear

and again advised that (Pet. SA. 23a) :

* &

we will require the original abstract

of the clinical reeord from the Marine Hos-

pital where this man was treated, at the

same time, or later if you prefer, we should

have a complete statement by this man out-

9

lining when and how his injuries were sus-

tained and to whom they were reported.

No answer was made by proctors for petitioner

to this letter.

A year later, on December 29, 1944, proctors for

petitioner wrote to the War Shipping Administra-

tion and asked to be advised whether the claim for

War Risk Insurance benefits was being allowed.

The letter informed War Shipping Administration

that (Pet. SA. 24a) :

We represent Mr. George Rodinciue who

was an oiler on board the S.S. William

Williams when on or about May 2, 1943,

it was attacked by the enemy. As the result

of this attack, Mr. Rodinciue sustained an

injury to the left brachial nerve plexus ; trau-

matie arthritis; left sacroiliac joint; frac-

ture of 3rd lumbar transverse process, right ;

rupture of left ear drum; fracture of the

nasal bones; and other injuries. Full de-

tails of this claim has [sic] been furnished to

Isthmian Steamship Company. * * *

On January 12, 1945, more than three months

prior to the expiration date of the two-year statute

of limitations, the Division of Wartime Insurance,

War Shipping Administration, acknowledged re-

ceipt of proctors’ letter of December 29, but re-

gretted that (Pet. SA. 25a):

* * * upon the meager facts contained in

our file we can make no determination with

respect to the question of whether Mr. Ro-

dinciue’s injury is compensable under the

applicable insurance contract. If you would

be kind enough to furnish us with the com-

10

plete history of this unfortunate incident,

this matter will then be given our immediate

attention.

I should like to take this occasion to point

out that, if by your letter under reply you are

attempting to file claim under Public Law 17

or the Jones Act, compliance has not been

had with the provision of General Order No.

32, a copy of which ts enclosed herewith for

your information. [Emphasis added]

On May 15, 1945, after the statute of limitation

had run, proctors for libelant supplied the first

statement of the facts of his claim by a letter to the

War Shipping Administration containing the fol-

lowing information (Pet. SA. 26a) :

* * * * *

George Rodinciue was employed as an oiler

on board the S.S. ‘‘William Williams”? in

San Francisco on February 18th, 1943 at

the rate of $110. per month plus bonus. On

May 2nd, 1943, while the vessel was en route

to an island in the Solomon group, it was

torpedoed by an enemy submarine. At the

time, the claimant was on the deck and as a

result of the explosion he was hurled into

the air and in falling, he landed on the deck,

striking a number of the ship’s structures,

as a result of which he injured his nose, his

left ear, left arm and back among other gen-

eral injuries. The vessel was not lost, but

managed to make port and on arrival at

Souva, he asked for permission, on May 9th,

to go ashore for medical attention or to have

a doctor brought aboard. His request was

denied despite the fact that he was in obvious

1l

pain and that his ear was running. He was

required to continue with his duties and sub-

sequently while keying up on the I.P. bear-

ing, he injured his index finger on the left

hand.

He was removed from the S/S William

Williams at New Zealand and the next day,

August 20th, 1943, he sailed on the M/S

“Cape Feare’’ on which vessel he was re-

turned as a survivor to San Francisco where

he was paid off.

* * * * *

We enclose herein copies of the medical

reports of the U.S. Marine Hospital in

Cleveland, of the U.S. Public Health Service

Relief Station in Philadelphia, and of Dr.

A. Myers, all of which show that the claim-

ant is afflicted with a serious nose and ear

condition, in addition to a severe injury to

his back which as you will note from the

report is of a progressive nature.

* * * * *

On September 13, 1945, a letter of similar content

was written to the General Agent (Pet. SA. 38a).

4, Proceedings below. On January 2, 1945, proc-

tors for petitioner filed a libel in the United States

District Court for the Eastern District of Penn-

sylvania (Pet. A. la). The libel set forth two

causes of action, the first for damages arising from

negligence and from unseaworthiness of the vessel

and the second for maintenance and cure and

wages; it alleged that demand for the payment of

damages and maintenance and cure had been made

but had been refused (RA. la-4a). Inter alta it

12

was alleged that libelant-petitioner was a resident

of Philadelphia (RA. 1a).

On February 5, 1946, more than two years after

the torpedoing on May 2, 1943, an amended libel,

repeating the allegation of residence of libelant-

petitioner in Philadelphia, was filed (RA. 8a).

A third cause of action for War Risk Insurance

benefits was added for the first time, as well as an

allegation that demand had n made for the

proceeds of War Risk Insufece but had been

denied (RA. 8a-12a).

On February 20, 1946, the United States

amended its answer to plead limitations as to the

new cause of action for War Risk Insurance and

to deny petitioner’s allegation of residence in Phil-

adelphia (RA. 21); and at the outset of

trial, the United States demanded that proof

be made of residence (Pet. A. 4a). Petitioner

contended that the denial of residence, at

most, raised a question of venue, rather than juris-

diction, under Section 2 of the Suits in Admi~-lty

Act, infra, p. 24, and that the United States,

by entering a general appearance and by pleading

to the merits, waived any objection it might have

had thereto (Pet. A. 4a).

After the proofs were closed, the trial court

dismissed the libel for lack of jurisdiction on two

grounds: (a) The court found that petitioner had

not proved that, at the time the libel was filed,

he was a resident of Philadelphia, or of any other

place within the district in which the court sat,

and that, in fact, petitioner, immediately prior to

the filing of the libel and at all times thereafter,

was a resident of Lorain, Ohio. The court con-

cluded that (Pet. A. 9a):

18

Even if the libellant is right in his conten-

tion that the denial of his allegation of resi-

dence raises a question of venue, the re-

spondent, by entering a general appearance

and by defending on the merits, did not

waive its objection to the venue. The fact

that the libellant did not reside within this

district did not appear on the face of the

libel, and therefore the respondent was un-

able to file exceptions to the libel on that

ground. The most it could do is deny the

allegation of residence and await the proof

of such allegation at the trial [citations].

The trial court then went on to hold that the aver-

ment of residence under Section 2 of the Suits in

Admiralty Act, infra, p. 24, went to the juris-

diction of the court, rather than venue and required

dismissal. (b) The court added that while this

disposed of the case ‘‘it is nonetheless pointed out

that compliance was not had with the Clarification

Act.’ Petitioner having failed to file a proper

claim thereunder, suit was precluded.

On appeal, the court below affirmed. As to the

first reason given by the district court, the court

below noted that the decision of this Court in Hot-

ness v. United States, 335 U.S. 297, which decision

was announced subsequent to the dismissal of the

libel herein, construed Section 2 of the Suits in

Admiralty Act, as a venue provision, and

concluded that ‘‘the dismissal cannot, there-

fore, stand on the ground that the statute referred

to is jurisdictional, and the objection to venue

must be taken to have been waived by the respond-

ent when it failed to object thereto’? (175 F. 2d

14

479, 480). On the issue of compliance with the

Clarification Act, the court below declared that

‘*the present case offers no close question on this

point. Until May 15, 1945, the libelant did not

file a claim with the War Shipping Administrator

which complied at all with the administrative reg-

ulations. The District Court so held, and our inde-

pendent examination of the correspondence be-

tween the parties compels the same conclusion”

(Id. at 481-482).

ARGUMENT

1. The basic question here involved is factual

and not of general importance. Both courts below

have found that petitioner’s failure to comply

with General Order 32, issued by the War Ship-

ping Administrator under the Clarification Act, is

clear. In the absence of a very exceptional show-

ing of error, such concurrent findings of fact will

not be reexamined by this Court. Comstock v.

Group of Institutional Investors, 335 U. 8. 211,

214, and cases there cited; Mahnich v. Southern

S.S. Co., 321 U. S. 96, 98-9.

It is unnecessary to comment extensively upon

the record ; the correspondence between the parties

speaks for itself. As the court below observed

(175 F. 2d 479, 482) ‘‘the failure to file a claim

which would have complied with the regulations

was not in this case a minor omission nor was it

the result of a single mistake or oversight. Nor

was it a case where a seaman, ignorant of the law,

was not in a position to enforce his rights. He was

represented throughout by highly experienced and

competent counsel. The libelant was advised re-

peatedly, beginning in October, 1943, to set forth

the facts on which his claim was based. The Ad-

——O

ministrator’s General Order 32, which was issued

April 22, 1943, plainly requires such a statement

of facts, although no particular form is specified.

The libelant did not comply. * * * [The letter of

the Administrator to proctors for petitioner on

January 12, 1945] [supra, p. 10] pointed out in

unmistakable terms that if a claim under the Clari-

fication Act was intended, the administrative reg-

ulations had not been complied with, and a copy of

General Order 32 was enclosed. More than three

months of the period of limitation still remained.

Had the libelant, even at that date, filed a proper

claim, he could have perfected his right to com-

mence suit under the statute not more than sixty-

one days thereafter. The libelant’s failure to com-

ply with the statutory condition is, therefore, clear,

and the non-compliance substantial.”’

(a). Contrary to petitioner’s contention, WSA

General Order 32, insofar as it provides that

claims for damages and for maintenance and

cure and wages, as distinct from War Risk

insurance benefits, are to be filed with the General

Agent of the vessel, is both necessary and valid.

The Clarification Act provides that the term ad-

ministratively disallowed ‘‘means a denial of a

written claim in accordance with rules or regula-

tions prescribed by the Administrator, War Ship-

ping Administration” (50 U. 8. C. App. 1291).

The Act does not state that the claims are to be

passed upon by the Administrator personally, and

it is plain that a task of such magnitude must, of

necessity, be delegated. In 1943, in the midst of

a global war, the most appropriate delegees were

the General Agents, who not only were repositories

of accident reports, but who also were provided

15

16

with the necessary office organization and man-

power to determine the validity of the claims filed.

The General Agents, although private corpora-

tions, bore the same employee-employer relation-

ship to the United States as any non-corporate em-

ployee of the War Shipping Administration. See

Cosmopolitan Shipping Co., Inc. v. McAllister, 337

U. 8. 783. Certainly, delegation of this adminis-

trative function to non-corporate employees of the

War Shipping Administration would be valid. We

know of no reason that compels a different con-

clusion because the delegation was to a corporate

employee. Cf. Sloan Shipyards v. U. S. Fleet

Corp., 258 U. S. 549, 567.

In addition, petitioner can show no prejudice to

his rights resulting from such delegation. The

General Agent can merely allow or disallow a claim.

A libelant obviously suffers no damage if his claim

is allowed, and he is provided with a remedy at law

against the United States if the claim is disallowed.

(b). Since a proper claim was ultimately sub-

mitted after the institution of this libel and the

expiration of the two-year period of limitations,

petitioner makes the further contention that the

court below erred in failing to apply the admiralty

doctrine that a libel, prematurely brought, will not

be dismissed where the right to enforce the claim is

later perfected.* But this doctrine cannot apply in

3 This contention is presumably directed only at the claims

for damages, and maintenance and cure and wages. The claim

for War Risk Insurance benefits was first set forth in the

amended libel of February 5, 1946—leave to amend being

granted by the court on December 18, 1945—and is clearly

barred by the two-year statute of limitations of the Suits in

Admiralty Act, 46 U.S.C. 745.

—

the face of an express congressional intent to chan-

nel the seaman’s claim first to the War Shipping

Administration for administrative handling and

then, after adverse administrative action, to the

courts. This statutory scheme is not merely proce-

dural but limits the jurisdiction of the courts, as

the Court of Appeals held. It is familiar that such

jurisdictional statutes are to be strictly construed.‘

Moreover, this admiralty principle upon which

petitioner relies is based on equitable considera-

tions. Its application lies, therefore, fully within

the discretion of the lower court. In our opinion,

the court below properly found the equities herein

to be against petitioner. ‘‘The persistent failure

to file a conforming claim when he was well ad-

vised in plenty of time to avoid the running of

the statute of limitations, indicates clearly, we

think, that there is no equitable basis for his con-

tention’’ (175 F. 2d 479, 482).°

17

* Petitioner complains that the court below erred in strictly

construing the Clarification Act in that the United States was

not the real party in interest because the claims were ultimately

to be paid by private insurance underwriters. Regardless of

the soundness of petitioner’s premise, we believe his conclusion

that insurance coverage dilutes the rights of the United States

to be without any basis in law. In any event, petitioner’s

premise is unsound. War Risk Insurance is solely a govern-

ment operation ; although claims for damages and maintenance

and cure are covered by Protection and Indemnity contracts,

all such P & I underwriters are reinsured by the Government

pursuant to agreements which further provide for the recap-

ture by the United States of excess profits made by the under-

writers, so that ultimately all losses or savings are for the

account of the United States.

*It should be noted that if the filing of premature suits

were permitted, a primary reason for channeling claims first

18

2. Contrary to the suggestion of petitioner, the

decision below does not assume unusual urgency

and importance because of the recent decisions of

this Court in Cosmopolitan Shipping Co., Ince. y.

McAllister, 337 U. 8. 783; Fink v. Shepard Steam-

ship Co., 337 U. S. 810; and Gaynor v. Agwilines,

Inc., 337 U. 8. 810. Petitioner contends that, as

a result of those decisions, a great many suits

against the United States under the Suits in Ad-

miralty Act, which have been held in abeyance

pending disposition of actions instituted against

General Agents, will presently be prosecuted.

Petitioner argues that, as a result of the decision

below, thousands of cases may now be dismissed

sua sponte by the courts because of defects in com-

pliance with General Order 32.° But petitioner is

in error as to the facts.

to the War Shipping Administration would be nullified.

Claims against the United States for damages and maintenance

and cure and wages are insured by Protection and Indemnity

contracts and are defended by the United States Attorneys

with the assistance of counsel for P & I underwriters; War

Risk Insurance claims are defended by the United States

Attorneys with the assistance of the Admiralty and Shipping

Section of the Department of Justice. It is important, there-

fore, that the Government know in advance of suit the precise

nature of the claim.

® While the United States did not affirmatively plead such

a defense, the correspondence between the parties was sub-

mitted for consideration by the court. It has always been

a federal court’s duty to see that it has jurisdiction,

since the consent of parties cannot give it, and if nee-

essary to raise the question itself. United States v. Corrick,

298 U.S. 435, 440; McNutt v. General Motors Acceptance Corp.,

298 U.S. 178; KVOS, Inc. v. Associated Press, 299 U.S. 269,

Wetmore v. Rymer, 169 U.S. 115; Rule 12(h) (2), Rules of

Civil Procedure. See 5 Cyc. of Federal Procedure (1943 ed.)

§ 1567.

19

Suits of both classes are reported to the Admi-

ralty and Shipping Section of the Department of

Justice. Contrary to statements made in the peti-

tion, prior to the recent decisions of this Court,

suit against the United States alone, pursuant to

the Clarification Act, was the rule and not the ex-

— ¢eption. Throughout the United States, approxi-

mately only one-fourth of the injured Government

seamen instituted suits against General Agents.

Again contrary to statements made in the peti-

tion, where actions were instituted simultaneously

against the United States and the General

Agents, it was the general practice of district

courts to consolidate the actions rather than to

hold the libel against the United States in abeyance

pending disposition of the action against the Gen-

eral Agent. Of some 15,000 suits relatively few

remain to be tried.

However, even assuming the truth of petitioner’s

statements, no problems meriting certiorari are

thereby raised. The general problem of the filing

of proper administrative claims as prerequisite to

judicial action has already had decision by this

Court. Angelus Milling Co. v. Commissioner, 325

U. 8. 293. The question of compliance with WSA

General Order 32 is purely factual, and in this

case there can be no doubt that, as the lower courts

have held, petitioner filed no claim worthy of that

name until May 15, 1945, after the limitations pe-

riod had run (supra, pp. 5-11). There is no con-

flict in the decisions. See Militano v. United States,

156 F. 2d 599 (C. A. 2); Fox v. Alcoa S. 8. Co., 143

F. 2d 667 (C. A. 5), certiorari denied, 323 U. S.

188; McInnis v. United States, 152 F. 2d 387 (C. A.

9). In each of these cases, as in the instant case,

20

no general rule of law was laid down as to com-

pliance with General Order 32; in each case, that

question was decided upon the particular facets

presented by the record before the court. We think

it extremely doubtful that the atypical record made

in this case permits of a decision by this Court

which would be applicable in other litigation.” We

submit, therefore, that further review is not war-

ranted.

3. Finally, the result reached below is support-

able upon another ground. We believe the court

below erred in reversing the holding of the district

court that the objection to improper venue had not

been waived by the United States. Section 2 of

the Suits in Admiralty Act, infra, p. 24, pro-

vides that suit shall be brought in the district court

“*for the district in which the party so suing, or any

of them, reside * * *.’’* The district court found

that, contrary to the verified allegations of resi-

dence made in the original and amended libels filed

by petitioner, petitioner, in fact, did not live in the

district in which the libel was brought. In reliance

upon the verified libel, the United States admitted,

in its original answer, petitioner’s allegation of

residence within the district. But upon determin-

ing that petitioner’s allegation was erroneous, the

United States, adopting the only course open to it

*It was the general practice of the War Shipping Admin.

istration, and its agents, to accept claims which could properly

be called such, but, as we have said, none was forthcoming

here until too late.

* This provision pertains to venue rather than jurisdiction,

and where residence is not alleged is waived by failure to

object before pleading to the merits. Hoiness v. United States,

335 U. S. 297.

21

specifically denied, in its amended answer, peti-

tioner’s allegation of residence (RA. 21a) and, at

the outset of trial, gave notice of the point and

asked that proof be made of residence (Pet. A. 4a).

We submit that, in these circumstances, there was

no waiver of the improper venue. See supra, pp.

12-13. Cf. Untersinger v. United States, 172 F. 2d

998 (C. A. 2); Orr v. United States, 174 F. 2d 577

(C. A. 2).

CONCLUSION

The decision below is correct, and there is no

conflict of decisions. It is respectfully submitted,

therefore, that the petition for a writ of certiorari

should be denied. _

Purr B. PERLMAN,

Solicitor General.

; H. G. Morison,

Assistant Attorney General.

| Pav A. SWEENEY,

\_LEAVENWoRTH COLBY,

BENJAMIN FORMAN,

Attorneys.

OcTOBER 1949.

22

APPENDIX A

1. The Clarification Act of March 24, 1943, 57

Stat. 45, 50 U.S.C. App. 1291 provides in perti-

nent part as follows:

* * * * *

(a) Officers and members of crews (here-

inafter referred to as ‘‘seamen’’) employed

on United States or foreign flag vessels as

employees of the United States through the

War Shipping Administration shall, with

respect to (1) laws administered by the Pub-

lic Health Service and the Social Security

Act, as amended by subsection (b) (2) and

(3) of this section; (2) death, injuries, ill-

ness, maintenance and cure, loss of effects,

detention, or repatriation, or claims arising

therefrom not covered by the foregoing

clause (1); and (3) collection of wages and

bonuses and making of allotments, have all

of the rights, benefits, exemptions, privi-

leges, and liabilities, under law applicable

to citizens of the United States employed as

seamen on privately owned and operated

American vessels. Such seamen, because of

the temporary wartime character of their

employment by the War Shipping Admin-

istration, shall not be considered as officers

or employees of the United States for the

purposes of the United States Employees

Compensation Act, as amended; the Civil

Service Retirement Act, as amended: the

Act of Congress approved March 7, 1942

(Public Law 490, Se vent y-seventh Con-

gress); or the Act entitled ‘‘An Act to pro-

vide benefits for the injury, disability, death,

or detention of employees of contractors

with the United States and certain other

persons or reimbursement therefor’’, ap-

proved December 2, 1942 (Public Law 784,

23

Seventy-seventh Congress ). Claims arising

under clause (1) hereof shall be enforced

in the same manner as such claims would

be enforced if the seaman were employed on

a privately owned and operated American

vessel. Any claim referred to in clause (2)

or (3) hereof shall, if administratively dis-

allowed in whole or in part, be enforced pur-

suant to the provisions of the Suits in Ad-

miralty Act, notwithstanding the vessel on

which the seaman is employed is not a mer-

chant vessel within the meaning of such Act.

Any claim, right, or cause of action of or in

respect of any such seaman accruing on or

after October 1, 1941, and prior to the date

of enactment of this section may be enforced,

and upon the election of the seaman or his

surviving dependent or beneficiary, or his

legal representative to do so shall be gov-

erned, as if this section had been in effect

when such claim, right, or cause of action

accrued, such election to be made in accord-

ance with rules and regulations prescribed by

the Administrator, War Shipping Adminis-

tration. Rights of any seaman under the

Social Security Act, as amended by subsec-

tion (b) (2) and (3), and claims therefor

shall be governed solely by the provisions of

such Act, so amended. When used in this

subsection the term ‘‘administratively dis-

allowed’? means a denial of a written claim

in accordance with rules or regulations pre-

scribed by the Administrator, War Shipping

Administration. When used in this subsec-

tion the terms ‘‘War Shipping Administra-

tion”? and “Administrator, War Shipping

Administration” shall be deemed to include

the United States Maritime Commission with

respect to the period beginning October 1,

1941, and ending February 11, 1942, and the

term ‘‘seaman’’ shall be deemed to include

24

any seaman employed as an employee of the

United States through the War Shipping

Administration on vessels made available to

or sub-chartered to other agencies or depart-

ments of the United States.

* * * * on

2. The Suits in Admiralty Act, 46 U.S.C. 741-

752 provides in pertinent part as follows:

See. 2 (46 U.S.C. 742). * ** Such suits

shall be brought in the district court of the

United States for the district in which the

parties so suing, or any of them, reside or

have their principal place of business in the

United States, or in which the vessel or

eargo charged with liability is found. * **

See. 5 (46 U.S.C. 745). That suits as

herein authorized may be brought only on

causes of action arising since April 6, 1917:

Provided, That suits based on causes of ac-

tion arising prior to the taking effect of

this Act shall be brought within one

year after this Act goes into effect; all

other suits hereunder shall be brought within

two years after the cause of action arises

* %

25

APPENDIX B

General Order 32, 8 Fed. Reg. 5414, issued by

the War Shipping Administrator on April 22, 1943,

provides in pertinent part as follows:

§ 304.21 Claims which must be submitted

for allowance prior to suit. Claims, unless

covered by the Social Security Act or laws

administered by the Public Health Service,

must be submitted for allowance prior to

instituting court action thereon in cases of

death, injury, illness, maintenance and cure,

loss of effects, detention, repatriation, or

claims arising therefrom; in cases relating

to the collection of wages and bonuses and

the making of allotments, when made against

the United States of America, the War Ship-

ping Administration, the Administrator

thereof, or any other person for whom the

United States of America or War Shipping

Administration is responsible ; in cases aris-

ing under the War Shipping Administration

Crew Life and Injury Policy, the Second

Seamen’s War Risk Policy, and those aris-

ing under other Decisions of the Maritime

War Emergency Board, in so far as such

claims are made against the War Shipping

Administration, provided they are made by

or on behalf of seamen who, at the time such

claims arose, were employees of the United

States through the War Shipping Adminis-

tration, or by or on behalf of their surviving

dependents or beneficiaries or legal repre-

sentatives.

§ 304.22 Time of accrual. These regula-

tions (§ 304.20 et seq.) apply to any claim

specified in § 304.21 which:

(a) Arose on or after March 24, 1943 ; or

(b) Accrued on or after October 1, 1941,

and prior to March 24, 1943, if the seaman

or his surviving dependent or beneficiary or

legal representative elects, as provided by

§§ 304.28 and 304.29, to enforce such claim

in the same manner as it would be enforced

if it arose after the date of the enactment

of Public Law 17—78th Congress.

§ 304.23 Court action, condition prece.

dent. No seaman or his surviving depend-

ent or beneficiary or legal representative,

having a claim under the provisions of

§§ 304.21 and 304.22, shall commence a court

action for the enforcement of such claim,

unless such claim has been filed by him or

on his behalf or by or on behalf of his sur-

viving dependent or beneficiary or legal rep-

resentative as provided in §§ 304.24 and

304.25 and has been administratively dis-

allowed by the person or agency with whom

it was so filed.

§ 304.24 Claim, contents. The claim need

not follow any particular form, but it shall

be in writing. It shall contain such particu-

lars as are reasonably necessary as a basis

for the allowance or administrative disal-

lowance of such claim and should include,

with respect to the seaman in question, his

home address, date of birth, place of birth,

certificate of identification number, as well

as all the facts and circumstances leading up

to and surrounding the happening of the

event out of which it is alleged the claim

arose.

§ 304.25 Claims, with whom filed. Claims

based upon any decision of the Maritime

War Emergency Board or any insurance

policy issued by the War Shipping Admin-

istration, excluding claims for loss of or

damage to personal effects (if the insured

is alive), bonus, and detention and repatria-

tion benefits, shall be filed with the Chief

27

Adjuster, Division of Wartime Insurance,

War Ship ping Administration, 99 John

Street, New York City, or such other agen-

cies or persons as may be designated by the

Chief Adjuster for the purpose of determin-

ing the allowance or disallowance of such

claim. All other claims, including claims for

loss of or damage to personal effects (if the

insured is alive), bonus, and detention and

repatriation benefits, shall be filed with the

General Agent of the vessel with respect to

which such claims arose, or such Agent’s

Berth Sub-Agent to which the former may

refer the claim for handling.

§ 304.26 Claim, when presumed adminis-

tratively disallowed. If the person or agency

with whom the claim is filed, in accordance

with the directions contained herein, fails to

notify the claimant in writing of a determi-

nation upon such claim, within sixty days

following the date of filing thereof, the claim

shall be presumed to have been administra-

tively disallowed, and the claimant shall be

entitled to enforce his claim by court action.

* * * * *

vy United States Government Printing Office J860183/256