Opinion
April 18, 1956.
O'Connor, Foley Grainger, New York City, for libellant.
Paul W. Williams, U.S. Atty., New York City, by Benjamin H. Berman and Louis E. Greco, Asst. U.S. Attys., New York City, for respondent.
The controlling date in determining whether the libel is time-barred is the date of its filing, September 14, 1955, and not the date of filing of the amended libel and complaint. Accordingly, the exceptive allegations are sustained only as to the claim which it is alleged arose on March 16, 1953 and overruled as to the claim which arose on October 6, 1953, since as to the latter it clearly appears that the suit was commenced within the two year period as required under 46 U.S.C.A. § 745.
Cf. Admiralty Rule 23, 28 U.S.C.A.; Deupree v. Levinson, 6 Cir., 186 F.2d 297, 303, certiorari denied 341 U.S. 915, 71 S.Ct. 736, 95 L.Ed. 1351; Cataldo v. United States, D.C.S.D.N.Y., 108 F. Supp. 560, 564; Stead v. United States, D.C.S.D.N.Y., 112 F. Supp. 725.
As to the March 16, 1953 claim, libelant concedes it was notified on that date by the Military Sea Transport Service. Its claim arose at that time and suit not having been commenced within the two year period is barred.
Cf. Alcoa Steamship Co. v. United States, D.C.S.D.N.Y., 94 F. Supp. 406, 408; Wabash Ry. Co. v. United States, 59 Ct.Cl. 322, 327, affirmed 270 U.S. 1, 46 S.Ct. 182, 70 L.Ed. 435.
Libelant's reliance on American Eastern Corporation v. United States, D.C.S.D.N.Y., 133 F. Supp. 11, 15, to sustain its argument that the cause of action accrued on the date of the re-delivery of the vessel (April 14, 1954) is misplaced. There Judge Walsh pointed out: "To the extent libelant claims for money had and received, its claim was mature when respondent, through the Maritime Commission's regulations for final accounting, unequivocally asserted its intent to withhold the money now claimed by libelant."
Settle order on notice.