Petition for Writ of Certiorari — Morgan v. United States

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APR 1 3 1956

LLEY, Clerk |

Supreme Court of the United States

October Term, 1955

No. 864

fileA ATES ORTON

JOHN F. MORGAN,

Petitioner,

agamst

UNITED STATES OF AMERICA,

Respondent.

SS—=a

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

——

Jacop Rassner,

Attorney for Petitioner.

Harvey Goupsrer,

On the Petition.

pe

Supreme Printinc Co., Inc., 114 Wortn Srezet, N. Y. 13, BEzxman 3 - 2320

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INDEX

PAGE

Official Report of the Court Below ................ 1

PIN a iis iis k cee bic bc ance ueeke eae 1

ceca bl ci ee coe TO ee ae 2

Statutes and Regulations Involved ............... 2

OIE OE FUND ooo odio v nos chdvxdenn.c Wewkedas 3

Basis of Jurisdiction of the United States District

Court for the Southern District of New York .... 4

Reasons Relied on for the Allowance of the Writ .... 5

Point I—Publie Law 877—81st Congress—remedial

legislation for the benefit of seamen—should be

Pee CN 63 si eee a 6

Admiralty applies equitable principles ........ 7

Equity will not decree a vain act .............. 9

Pont II—The argument of the majority opinion of

the court below must fall if consideration is given

to the decision of this Court in Caldarola v. Eckert,

princi stn: Be 5 MELEE ELT er are SoM 12

Ee nN rer yes Dame D omit. 13

APPENDIX :

Opinion of the United States Court of Appeals

Per te Wee CH ois sarah oor dica 15

Sc. cece ag ME IC eee} Ol 21

Cases Cited

Bliss v. Omnibus Corporation, 169 Misc. 662 ...... 10, 8fn

Bowles v. Swift & Co., 56 F. Supp. 679 ............ 9fn

Caldarola v. Eckert, 332 U.S. 155 ..... 2fn,3, 4, 5, 6, 7, 9, 12

Cataldo v. United States, 108 F. Supp. 562 .......... 11

Cohen v. United States, 195 F. (2d) 1019 ........... 11

TEE ARES Bare 0 ro bo 9,

PAGE

Cosmopolitan Shipping Co. v. McAllister, 337 U. S.

a eee elas Cab héwked ps eeeb wets 4, 5, 6,9, 11, 12

Garrett v. Moore-McCormack Co., Ine., 317 U. S.

eee ee ech pdbhahbeneuedre sevenevces 10fn

Gaskins v. Bonfils, 8 F. Supp. 832 aff’d 79 F. (2d)

PN ccs abskihedebensekevGhes becbedcecenecoce 9fn

Harris v. Harris, 283 N. Y. S. 410 ..........-...- 10fn

Hust v. Moore-McCormack Co., Inc., 328 U. S. 707 .. 3

Merlino v. United States, 104 F. Supp. 817 ........... 77797

Morgan v. United States, 1956 A. M. C. 302 ...... 1

Mortensen v. Alcoa S.S. Co., 101 F. Supp. 220 ....... 9

Parker v. United States, 104 F. Supp. 814 ........ 10

Plummer v. Webb, 4 Mason 380 ...............--- 8

Pratt, The David, Fed. Cas. 3597 ..........-..++--- 8

Russell v. Superior Journal Co., 47 F. Supp. 282 .. 9fn

Statutes Cited

28 U.S. C. § 1254(1)

ee OD ha chow ikesecececcarccczeove

46 U. S. C. §745, Public Law 877—8lst Cong-

2, 2fn, 3, 4, 5, 6, 7, 12

Rule 302 of Rules of Civil Practice 6, 6fn, 10fn

Section 108 of Civil Practice Act of New York .... 6, 6fn

Trial Term Rule III of New York Supreme Court .. 7, 7fn

Senate Reports Cited

Senate Report 1782, 81st Congress, 2nd Sess., 1950... 11fn

Text Cited

Benedict on Admiralty, Vol. I, 6th Ed. pocket supp.

to § 71, p. 148, note 19

so

Supreme Court of the United States

October Term, 1955

No.

. 7

Vw

Joun F. Morean,

Petitioner,

against

Unrrep States or America,

Respondent.

LY.

—

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To the Honorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

Your petitioner, John F. Morgan, prays that a writ of

certiorari issue to review the decision of the United States

Court of Appeals for the Second Circuit in the above en-

titled action, rendered on January 17, 1956.

Official Report of the Court Below

The opinion of the United States Court of Appeals for

the Second Circuit is unofficially reported in 1956 American

Maritime Cases 302.

Jurisdiction

The opinion of the court below was filed and judgment

thereon entered in the office of the Clerk of the Court on

) January 17, 1956.

2

Jurisdiction to review this decision is predicated upon

the provisions of Title 28 U. S. C. § 1254(1).’

Question Presented

Is the constitutional right to a trial on the merits extin-

guished by reason of a plaintiff’s default in failing to

answer a calendar call?

The plaintiff in an action against the general agent, appreciating

the effect of the decision of the Supreme Court of the United States

in Caldarola v. Eckert, 332 U. S. 155, permitted an action against

the general agent to remain unanswered on a calendar call.

This default was held to be a bar to a subsequent action against

the owners of the vessel, the United States of America, pursuant to

Public Law 877—8lst Congress.

Statutes and Regulations Involved

46 U.S. C. § 745.7

11, Title 28 U. S. C. § 1254(1).

§ 1254. Court of Appeals; certiorari; appeal ; certified questions.

Cases in the court of appeals may be reviewed by the Supreme

Court by the following methods:

(1) By writ of certiorari granted upon the petition of any party

to any civil or criminal case, before or after rendition of judgment

or decree; * * *.

2 Suits as authorized by this chapter may be brought only within

two years after the cause of action arises: * * * Provided further

that the limitations contained in this section for the commencement

of suits shall not bar any suit against the United States brought here-

under within one year after December 13, 1950, if such suit is based

upon a cause of action whereon a prior suit in admiralty or an action

at law was timely commenced and was or may thereafter be dis-

missed solely because improperly brought against any person * * *

engaged by the United States to manage or conduct the business

of a vessel owned or bareboat chartered by the United States * * *.

3

Statement of Facts

John F. Morgan, libelant herein, was injured on Janu-

ary 19, 1949, while employed as a seaman in the capacity

of watchman aboard the S. S. Green Mounrars Srate.

The vessel was owned by the United States of America and

was operated by the general agent, States Marine Cor-

poration, under the standard form of General Agency Serv-

ice Agreement.

Libelant brought suit against the general agent under

the principles of law as laid down by this Court in Hust v.

Moore-McCormack, 328 U. S. 707, in the Supreme Court

of the State of New York on April 20, 1944, to recover

money damages for the injuries sustained as a result of

defendant’s wrongful acts.

This Honorable Court, on June 23, 1947, while the

Supreme Court of New York action was pending, in the

case of Caldarola v. Eckert, supra, determined that, under

similar circumstances, the correct party to sue was the

United States of America and not the general agent.

On January 3, 1949, Congressman Lane introduced H. R.

bill 483 which provided for an extension of the period of

limitation to sue the government when suit was previously

timely commenced against an improper party.

On March 28, 1949, libelant’s action was dismissed be-

cause of his failure to appear at a calendar call of the court.

Libelant’s counsel, in light of this Court’s decision in

Caldarola v. Eckert, supra, knowing that libelant’s case

would be dismissed under the principles of law enunciated

in said decision, did not make the meaningless application

to restore the case nor was the cause restored to the trial

calendar.

Public Law 877—8lst Congress, the result of H. R.

bill 483, was thus before the Congress but was not yet

PEMD OE tute Ai” ete SBA “. Og eee ee a ee ee ee

4

enacted when libelant’s state court action was dismissed on

calendar call.

|

On June 27, 1949, this Court in Cosmopolitan Shipping

Co. v. McAllister, 337 U. S. 783, extended the doctrine of

Caldarola v. Eckert, supra, to include all seamen who had

sued the general agent in cases of a General Agency Agree-

ment between said general agent and the United States of

America.

Public Law 877—S8lst Congress—providing remedial

legislation for all suits improperly brought and granting

an extension of the statute of limitations under the Suits

in Admiralty Act, 46 U.S. C. 741, et seq., for a further one

year period, was enacted December 13, 1950.

Libelant instituted the instant action against the United

States of America on May 2, 1951, within the one year period

of limitation provided by said remedial legislation. The

district court dismissed the action as untimely, holding that

the 1950 amendment was inapplicable.

The court below, in a split decision, affirmed the district

court dismissal, holding that since the McAllister decision

was handed down three months after the dismissal of the

state court action, said action was not dismissed ‘‘solely

because improperly brought’’. As such, the majority opin-

ion failed to consider that Caldarola v. Eckert, the prime

reason for the eventual enactment of Public Law 877, was

decided one year and nine months before the dismissal of

said state court action.

Basis of Jurisdiction of the United States District Court

for the Southern District of New York

The jurisdiction of the United States District Court for

the Southern District of New York was invoked upon the

provisions of the Suits in Admiralty Act, 46 U.S. C. § 741,

et seq., and Public Law 877—81st Congress.

SSO SI rh TO eS

5

Reasons Relied on for the Allowance of the Writ

The court below seems to have failed to consider the

decision by this Court in Caldarola y. Eckert, supra, de-

cided on June 23, 1947, one year and nine months before

the dismissal in the case at bar, consideration of which

would have, by the clear interpretation of the decision of

the court below, resulted in a reversal of the dismissal of

the district court.

The court below strictly construed the provisions of

Public Law 877—81st Congress, enacted as remedial legis-

lation for the benefit and protection of seamen. The dis-

missal of this matter was erroneously affirmed on the

ground that the decision of Cosmopolitan Shipping Co. v.

McAllister, supra, decided by this Court three months after

the dismissal on calendar call of this action, negated any

assertion that said dismissal was entered solely because of

commencement of an action against an improper party.

It would appear that this Honorable Court should re-

view the question of construction to be given to remedial

legislation, enacted by Congress for the benefit of all sea-

men, in light of the opinion by the court below which strictly

construed said legislation and which failed to consider the

leading decision on the issue by this Honorable Court, con-

sideration of which would have resulted in an opposite

holding.

POINT I

Public Law 877—81st Congress—remedial legisla-

tion for the benefit of seamen—should be liberally con-

strued.

If so construed and in view of the decision by this Court

in Caldarola v. Eckert and Cosmopolitan Shipping Co. v.

McAllister, supra, it would appear that the court below

committed error in failing to take into consideration the

fact that the Caldarola decision by this Court preceded the

a ee ee ee by one year and nine

The prior case, brought by libelant against the general

agent for the same injuries arising out of the same acci-

dent as in the instant action, was dismissed because of

failure of the libelant to appear at the calendar call of the

trial assignment part of the Supreme Court of the State

of New York.’

Libelant, pursuant to the provisions of Rule 302 of the

Rules of Civil Practice * and Section 108 of the New York

Civil Practice Act * as well as Rule III of the Trial Term

Rules, Supreme Court of the State of New York, New York

* Page 7a of Record.

* Rule 302. Dismissal of abandoned cases.

2. In the supreme court and county courts a cause hereafter

marked “off” or struck from the trial term or special term calendar

or unanswered on a clerk’s calendar call, and not restored within one

year thereafter, shall be deemed abandoned, and the complaint and

counterclaim, if any, shall be dismissed without costs for failure to

prosecute, and the clerk shall make appropriate entry to that effect

pursuant to this rule without necessity of further order. (Italics ours)

5§108. Relief against default judgments and orders. The court,

in its discretion, and upon such terms as justice requires, at any time

within one year after notice thereof, may relieve a party from a

judgment, order or other proceeding, taken against him through his

mistake, inadvertence, surprise or excusable neglect.

> | san

—

7

County,® could have moved to restore the case to the trial

calendar of said court.

The United States Supreme Court decision in the case

of Caldarola v. Eckert, June 23, 1947, supra, laid down the

principle of law that libelant had, in fact, sued the wrong

party. From the date of the said decision until the enact-

ment of Public Law 877—81st Congress, December 13, 1950,

Morgan, as well as all other similarly situated suitors

throughout the nation, who had instituted actions against

general agents, were ‘‘out of court’’ for having sued the

wrong party.

This action against the United States of America as

owner of the vessel was timely commenced, pursuant to the

provisions of the Suits in Admiralty Act, 46 U. S. C. 741,

et seq., which incorporated the enactment of December 13,

1950.

Admiralty applies equitable principles.

It is well settled that Admiralty Courts, although not

Courts of equity, apply equitable principles in deciding the

ultimate rights of parties, predicated on considerations of

conscience, justice and humanity.

*Rule III. Ready Day Calendar—Reserve Calendar.

*_ * *

Subdivision 5. A cause marked off calendar may be restored to

the foot of the General Calendar upon the filing of a new note of

issue. The justice holding the calendar part may, however, for good

cause shown, upon five days’ notice of motion, order restoratior. of

the cause to a Reserve Calendar or to a Ready Day Calendar for a

day certain.

Subdivision 6. A cause hereafter marked “off” the Trial Term

Calendar or unanswered on a clerk's calendar call, and not restored

within a year thereafter, shall be deemed abandoned, and the com-

plaint and counterclaims, if any, be dismissed without costs. (Italics

ours )

Ga ee er ee eat 1h Pe PRI BL LLL E TILDE DNL TRA LE a Ee

Benedict on Admiralty, Vol. 1, 6th Ed., pocket supp. to

§ 71, p. 148, note 19, states:

‘* Admiralty courts act upon the enlarged and liberal

jurisprudence of courts of equity and so far as their

powers extend they act as courts of equity. Gaynor

v. The New Orleans, 1944 A. M. C. 462, 54 F. Supp.

25 (N. D. Col.). Cf. The J. Oswals Boyd, 1944

A. M. C. 543, 53 F. Supp. 103 (E. D. Mich.); The

Dixie, 1940 A. M. C. 28 (E. D. Pa.) ; Van Camp Sea

Food Co. v. Di Leva, 1949 A. M. C. 319, 171 F. (2d)

454 (C. A. 9th); Ancich v. D/S Marsha Ann, 1950

A. M. C. 1336 (S. D. Col.), aff’d in part, sub nom.

Borcich v. Ancich, 951 A. M. C. 1701, 191 F. (2d)

392 (c. d. 9); United Fruit Co. v. U. S., 1951 A. M. C.

173, 186 F. (2d) 890 (C. A. 1); Moran Transporta-

tion Co. v. Mellina, 1951 A. M. C. 66, 185 F. (2d)

386 (C. A. 2)’’ (p. 37).

As early as 1839 in the case of The David Pratt, Fed.

j cases, 3597, this doctrine of ‘‘equitable’’ principles was

3 enunciated :

2 ‘«* * * A court of admiralty is, as to all matters

falling within its jurisdiction, a court of equity. Its

hands are not tied up by the rigid and technical rules

of the common law, but it administers justice upon

the large and liberal principles of courts which exer-

# cise a general equity jurisdiction. Brown v. Lull

3 [Case No. 2018]; The Fortitudo, 2 Dod. 58; The

4 Cognac, 2 Hagg. Adm. 377.’’

4 The case of Plummer v. Webb, 4 Mason 380, Fed. cases

No. 11233, more than one century ago, enunciated principles

of Admiralty as applying equitable doctrines. The court

stated as follows:

;

ie

x

‘*Courts of admiralty act within the sphere of their

jurisdiction, as courts of equity, and administer :us-

tice ex aequo et bono.”’

See also:

Mortensen v. Alcoa S. S. Co., 101 F. Supp. 228

(S. D. N. Y.).

Equity will not decree a vain act.’

It is respectfully submitted that libelant would have

been placed in just such position—to open up a calendar

dismissal in order to receive a certain dismissal under the

doctrine of law as laid down in Caldarola v. Eckert and

Cosmopolitan Shipping Co. v. McAllister, supra.

* Russell v. Superior Journal Co., 47 F. Supp. 282, wherein it

was held that equitable relief would be invoked in cases of accident

and mistake. The court stated:

“There is no written law placing a limit upon the power of

equity to remedy and redress wrongs, neither is there any

want of power in that regard in the written law. It is the

crowning merit of our system that, so far as power is con-

cerned, it is as limitless as the capacity of man to wrong a

fellow man. Laun v. Kipp, 155 Wis. 347, 145 N. W. 183,

5 A. L. R. 655. Equitable relief against an unconscionable

judgment may be invoked not only in cases of fraud but also

upon grounds of accident and mistake. Washburn Land Co.

v. White River Lumber Co., 165 Wis. 112, 161 N. W. 547.

The law will not permit wrong to be inflicted upon a litigant

upon the ground that technicalities, forms or rules of proce-

dure have not been observed where justice calls for equitable

relief. An equity court’s power is limited to securing justice

in a particular case and preventing inequitable, unconscionable

and shocking results. Rio-Fall River Union Bank v. Holl-

nagel, 234 Wis. 181, 290 N. W. 636; 7 Wis. D. 326. Equity

suffers no wrong of sufficient gravity to be appreciated by the

conscience of the chancellor to go without a remedy, if the appli-

cation for relief is made seasonably and with clean hands.

Boring v. Ott, 138 Wis. 260, 119 N. W. 865, 19 L. R. A.,

N. S., 1080; 7 Wis. D. 344.”

Gaskins v. Bonfils, 8 F. Supp. 832, aff'd 79 F.(2d) 352;

Bowles v. Swift & Co., 56 F. Supp. 679.

a

—— Ne ae Fy - = ae . RO ERE

10

This is contrary to the prevailing concept of this Court,

as well as the Supreme Court of the United States, that

seamen are ‘‘wards of admiralty’’.®

Libelant has never had his day in court, nor has there

been at any time a dismissal ‘‘on the merits’’.

The state court action was dismissed for plaintiff’s

failure to appear for a calendar call.

It is submitted that dismissal for failure to appear for

a calendar call is far different than dismissal for lack of

prosecution.®

Parker v. United States, 104 F. Supp. 814, was a motion

to dismiss a libel as not coming within the purview of

Public Law 877 after a discontinuance of the prior action.

Plaintiff, in the state court action, discontinued and sub-

sequently instituted the district court action. District Judge

Kennedy, denying respoadent’s motion to dismiss, held:

‘*[1, 2] The only question, therefore, that arises on

this motion is as to what construction is to be given

to Public Law 877, and specifically whether the plain-

tiff, who wishes to discontinue because of the Me-

Allister case, nevertheless is unable to sue the United

States unless he goes through the empty form of

a dismissal. Inasmuch as Public Law 877 was in-

tended to protect suitors who erroneously brought

8 Garrett v. Moore-McCormack Co., Inc., 317 U. S. 239.

® Rule 302 of the Rules of Civil Procedure.

Harris v. Harris, 283 N. Y. S. 410, held that plaintiff's counsel’s

failure to appear was neither a “voluntary discontinuance” nor a dis-

missal “for neglect to prosecute”, as based upon the case of Sweeting

v. Staten Island and Midland R. Co., 176 App. Div. 494, 162 N. Y. S.

961.

Bliss v. Omnibus Corporation, 169 Misc. 662, 7 N. Y. S.

(2d) 979.

PPLE LIE CEI LT: IE OSIM —

11

suit against the general agent, in other words, is

remedial legislation, I hold that under Public Law

877, a discontinuance is equivalent to a dismissal,

so the motion is denied”’ (p. 815).

Similarly, in Cataldo v. United States, 108 F. Supp. 562,

the Court denied a motion to dismiss holding that a stipu-

lation marking the case off the calendar, was amendable

to subsequent action pursuant to the provisions of Public

Law 877, although not marked off solely because of Cosmo-

politan Shipping Co. v. McAllister, supra.

Merlino v. United States, 104 F. Supp. 817, discussed

the underlying intent of Congress ‘‘to save the litigants

possessing meritorious claims their right to a day in

court :’”2°

In its review of the background of all similarly situated

libelants, the Court stated:

‘*Indeed, the Senate Committee was rather vehement

in stating the underlying reason for the Act. Accord-

ingly, the amendment should. be construed so as to

achieve its clearly intended objectives. To apply a

strict construction because the United States is the

defendant would defeat, rather than achieve, the

purpose of the legislative enactment”’ (p. 818).

See:

Cohen v. United States, 195 F.(2d) 1019.

Honorable Jerome N. Frank, strongly dissenting, de-

clared that remedial legislation should be liberally inter-

preted, that since the plaintiff could have restored the case

to the calendar, taken the dismissal of the action and prop-

erly instituted the instant action, the proper construction

to be given hereto was for the court to declare the suit to

be timely commenced (32a, 33a of record).

1° Senate Report 1782, 81st Congress, 2na Session, 1950.

Sa i i i or a

12

POINT II

The argument of the majority opinion of the court

below must fall if consideration is given to the decision

of this Court in Caldarola v. Eckert, 332 U. S. 155.

The court below held that the appeal must fail by reason

of the fact that plaintiff could not have considered the dis-

missal in the state court to have been entered pursuant to

the McAllister decision, that the case at bar could not have

been brought pursuant to Public Law 877—81st Congress.

We respectfully submit that the McAllister decision was

not the first case which involved the efforts of Congress to

enact remedial legislation. Rather, the Caldarola case by

this Court, which held the United States of America to be

the proper party in suit was the prime moving force.

The Caldarola decision was handed down one year and

nine months before the state court dismissal herein.

As such, the very reason for the majority opinion of

the court below was based upon an erroneous conception

of facts and dates of decisions pertaining to said remedial

legislation, and upon the erroneous assumption that Public

Law 877—81st Congress was enacted because of the Mc-

Allister decision.

Since the proposed legislature was first introduced on

January 3, 1949, more than five months before said

McAlllister decision, the erroneous assumptions and con-

clusions of the court below would seem to call for this Hon-

orable Court to review this matter in order that a proper

interpretation be judicially declared in cases of enactment

of remedial legislation for the protection and benefit of

seamen.

13

CONCLUSION

For the above stated reasons petitioner respectfully

prays that this Honorable Court issue its writ of cer-

tiorari to the United States Court of Appeals for the

Second Circuit in this cause.

Jacos RassNer,

Attorney for Petitioner.

Harvey GoLpsTeIn,

On the Petition.

15

APPENDIX

(Opinion of the United States Court of Appeals

For the Second Circuit)

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

No. 15—October Term, 1955

(Argued October 13, 1955 Decided January 17, 1956)

Docket No. 23342

Joun P. Morgan,

Libelant-Appellant,

v.

Unsrrep States or AMERICA,

Respondent-A ppellee.

2

Before:

Frank, Hixcxs and Waterman, Circuit Judges

Appeal from a judgment of the United States District

Court for the Southern District of New York, Henry W.

Goddard, Judge, dismissing the libel as untimely. Affirmed.

Corypon B. Dunuam, New York City (J. Edward

Lumbard, U. S. Atty. for the Southern District of

New York, and Xavier N. Sardaro, on the brief),

for respondent-appellee.

Harvey Goipsterxn, New York City (Mordecai Cohen

and Jacob Rassner on the brief), for libelant-

appellant.

-

The libelant was injured on January 19, 1944, while

serving as a watchman aboard the S.S. Green Mountain [

State. The ship was owned by the United States and was

being operated by a general agent under the standard form

of General Agency Service Agreement.

The libelant brought suit against the general agent in

the Supreme Court of the State of New York on April 20,

1944, to recover for his injuries. On March 28, 1949, that

action was dismissed because of the failure of the libelant

to appear at a calendar call of which he had been duly

notified on March 25, 1949.

On June 27, 1949, the United States Supreme Court in

Cosmopolitan Shipping Co. v. McAllister, 337 U. S. 783,

reversing our decision in McAllister vy. Cosmopolitan Ship-

ping Co., 169 F. 2d 4 (2d Cir., 1948), decided that the

general agent of the United States was not liable for the

negligence of the masters and crews with whom the United

States has manned vessels operated under general agency

agreements.

Thereafter the 81st Congress on December 13, 1950

amended 46 U.S. C. 8S. 745 (P. L. 877, 81st Cong., 2d Sess.),

extending until December 13, 1951 the period of limitation

applicable to a suit in admiralty by a seaman against the

United States.

‘© * © © if such suit is based upon a cause of action

whereon a prior suit in admiralty or an action at law

was timely commenced and was or may hereafter be

dismissed solely because improperly brought against

any person, partnership, association, or corporation

engaged by the United States to manage and conduct

the business of a vessel owned or bareboat chartered

by the United States.* °° ’’

Waterman, Circuit Judge:

The purpose of this amendment, as stated by the Senate

Committee on the Judiciary, was ‘‘* * * that litigants

_ ee

should not be made the victims of the legal confusion regard-

ing the proper remedy in such cases, and are not respons-

ible for the conditions brought about by lack of clarity in

} the opinions of the Supreme Court’’. 1950 U. S. Cong.

Code Service, p. 4210. See Cohen v. United States, 195

F. 2d 1019, 1021 (2d Cir., 1952).

In May, 1951, this suit on the same cause of action as

the state court suit brought April 20, 1944, was brought

against the United States in reliance upon the amendment

| to 46 U. 8. C. § 745. The District Court, per Goddard, J.,

dismissel the libel as untimely, holding that the 1950 amend-

ment was inapplicable. Morgan v. United States, 121 F.

Supp. 941 (S. D. N. Y., 1954). Libelant’s appeal raises

only the question whether the dismissal of libelant’s prior

action in the Supreme Court of New York was ‘‘solely

because improperly brought against’’ the wrong party.

The requirements of the remedial amendment of 1950

are clearly met when the order of dismissal of the prior

action against the general agent shows affirmatively that

the dismissal was because the action was brought against

the wrong party. See Soriano v. American Liberty S.S.

Corp., 13 F. R. D. 455 (E. D. Pa., 1952). Where the court

record is silent as to the reason for discontinuance or

dismissal, but the libelant or his attorney has convinced

the court by affidavit or otherwise that the dismissal or

discontinuance resulted from a recognition by counsel that

the action would not lie against the general agent, the

requirements of the amendments have been held to be

satisfied. Parker v. United States, 104 F. Supp. 814

(E. D. N. Y., 1951) ; Cataldo v. United States, 108 F. Supp.

560 (S. D. N. Y., 1952). But where dismissal is based

upon lack of prosecution, the dismissal is not ‘‘solely

because improperly brought against’? the wrong party.

Kalil v. United States, 107 F. Supp. 966 (E. D. N. Y., 1952);

Slemp v. United States, 112 F. Supp. 351 (S. D. N. Y., 1953;

and Jett v. United States, 1953 A. M. C. 233 (S. D. N. Y.,

1952).

LBL TRA OLE ANE a Be eget

a

Libelant cannot and does not assert that his failure

to appear was motivated solely by the Supreme Court

McAllister decision, since his omission occurred three

months prior to that decision while the ruling law in this

circuit was that the general agent was the proper party

defendant to the libel. McAllister vy. Cosmopolitan Ship-

ping Co., 169 F. 2d 4 (2d Cir., 1948). Therefore, he cannot

bring himself directly within the Cataldo and Parker cases,

supra.

The libelant contends, however, that under New York

practice he could have moved to restore the prior action

against the general agent to the calendar of the Supreme

Court of New York within one year from the date of his

non-appearance. If he had done so and if the court had

granted his motion, the prior action could then have been

dismissed, with the record showing that the reason for

dismissal was that the suit had been brought against an

improper party.

The libelant argues that it is inequitable to penalize

him for failure to take these ‘‘formal’’ steps which would

have brought him within the express terms of the remedial

statute. In essence his argument is that the dismissal did

not become final until March of 1950, which was nine months

after the McAllister decision; and that, in construing the

statutory phrase ‘‘dismissed solely because improperly

brought against [the wrong party]’’, we should consider

his reasons for failing to reinstate the case on the calendar.

Assuming, arguendo, the validity of the libelant’s statu-

tory interpretation, we think he has still not brought him-

self within the statute. He has offered no explanation

for his failure to appear at the calendar call. For aught

we know whatever reasons prompted his failure to appear

continued during the one year period and motivated his

failure to restore. Unlike the Cataldo and Parker cases,

supra, the libelant here has not convinced the District

Court that his sole reason for suffering the dismissal was

18

EPO RED ULE OLLI OAL ORL EPL ELLA PE EAT

19

based on the statutory ground. Even if we assume that

under New York practice the libelant could have restored

his action to the calendar within the year ending March,

1950, and that the dismissal did not become final until that

date, we find no basis for concluding that the sole reason

for the dismissal was the McAllister decision. Clearly,

the reason for libelant’s failure to appear in March, 1949,

could not have been the statutory one; and, absent affi-

davits or other offers of proof, the natural inference of

a continuing motivation, whatever such motivation was,

has not been rebutted. Libelant does not contend that

but for the decision in McAllister he would have taken

steps to restore his case to the calendar. He contends

rather that if the case had been restored to the calendar

and then dismissed he would be within the statutory

grounds. But under libelant’s own interpretation of the

statute the crucial issue is not the hypothetical question

of what he could have done, but whether in fact his sole

reason for suffering final dismissal in March 1950 wae the

statutory one. We conclude that libelant has failed even

to bring himself within such an interpretation of the

statute and accordingly his argument avails him nothing.

Affirmed.

Frank, Circuit Judge (dissenting) :

Here we engage in interpreting a federal remedial

statute, 46 U. S. C. Section 745, enacted to benefit seamen.

My colleagues reject any but a strictly literal interpreta-

tion.

The New York state court suit was dismissed on March

28, 1949. Under the New York practice (cited by my

colleagues), libellant had a year (i.¢., until March, 1950)

within which to move to restore that suit to the calendar.

Nine months of that year still remained when the Supreme

Court decided McAllister, 337 U. S. 783. I think no one

era wa wa wr .J ’ _—

Pe AA SLVO NOI, CW RR DBRS Rg AON oY

Se POT

doubts that, if within these nine months, libellant had

moved the New York court (a) to reinstate the etate-court

suit and then (b) to dismiss it, on account of McAllister,

that court would have granted the motion. My colleagues,

if I understand them correctly, agree that, had that been

done, the instant case would have been timely begun as

within 46 U. S. C. Section 745. They hold it untimely

solely because libellant did not follow an empty ceremony

(i.e., reinstating the state-court suit and then having it

dismissed). I had thought that our court, long taught

by Judge Learned Hand, would never be the slave of literal

language, would always recognize that it is ‘‘one of the

surest indexes of a mature and developed jurisprudence

not to make a fortress out of the dictionary’. That is

ancient learning.? (Indeed, an early seventeenth-century

English commentator suggested the removal of a judge,

for violation of his oath of office, if he ‘‘held himself in his

judgments precisely or rather austerely to the letter of

the lawe’’ without regard to its spirit.? Of course, I think

that suggestion inapplicable here.) To exalt the literal

meaning at the expense of the purpose of a statute is

especially surprising when, as here, the legislature aimed

to help seamen, traditionally the wards of admiralty. See,

e.g. Wilder v. Inter-Island Navigation Co., 211 U. 8. 239.

1 Cabell v. Markham, 148 F. (2d) 737, 739 (C. A. 2).

2 For other early expressions of that attitude, see United States

vy. Lennox Metal Manufacturing Co., 225 F. (2d) 302, 311 (C. A. 2).

+ Hake, Epieikia (Yale Law Library Publications, 1953) 29.

ee eee a

21

(Judgment)

UNITED STATES COURT OF APPEALS

For tue Seconn Crmcvuir

At a Stated Term of the United States Court

of Appeal, in and for the Second Circuit, held

at the United States Courthouse in the City

of New York, on the 17th day of January one

thousand nine hundred and fifty-six.

Present :

How. Jenome N. Frau,

How. Canzotz C. Hicks,

How. Srerry R. Waterman,

Circuit Judges.

-.

Vv

Joun F. Morsay,

Libellant-A ppellant,

v.

Unsrrep States or Amenica,

Respondent-A ppellee.

SS asker BR EON SSR e Ke aeMMe|e rere

LY,

Vv

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by counsel.

Ox ConsIpeRaTION wueReor, it is now hereby ordered,

adjudged, and decreed that the decree of said District

Court be and it hereby is affirmed; with costs taxed in

favor of the appellee.

es

/s/ A. Dawrer Fvsano,

Clerk.