# Opposition Brief — Rodinciuc v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1949
- **Citation:** 338 U.S. 895

## Text

Page

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‘EPO TOT TTA ET OR ET ET TT CLEP ER TTT ET 1

EET EG OG UE eee Oe eRe gamer 2

sand RE SOG Sacganatscacbssaadeken 2

»

SEATS eT TEC CECE ET CLE CPE CCTIUT ET 14

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_2437%3A1. Public record. Not legal advice.