In re Clinchfield Nav. Co.

THACHER, District Judge.

From the claim it appears that Malvin Ludvigsen, a member of the crew of the steamship Northwestern, lost his life by drowning when the vessel, on or about March 22, 1920, while on a voyage from Charleston, S. C., to Cuba, because of her unseaworthy condition, broke up on the coast of Florida during a storm. It is also alleged that Ludvigsen’s death was due solely to carelessness and negligence, with the privity and knowledge of the petitioner, its officers, agents, servante, and employees, and wholly without fault or negligence on his part.

The time for claimants to appear and make proof of their claims before the commissioner, as fixed by the monition and thereafter extended by order, expired September 28, 1925. Letters of administration of the estate of Ludvigsen were issued to claimant in the Surrogates’ Court of New York County May 13, 1925. The claimant’s first appearance in this proceeding was on August 19, 1926, when he served notice of motion for leave to file proof of elaim nunc pro tunc as of September 28, 1925, which was granted by order entered September 30, 1926. Thereafter his proof of claim was filed October 30, 1926.

The present motion proceeds upon the theory that the claimant does not show, either in the allegations of his elaim or of his answer, any right to recover damages for the death of the decedent, since the only statutes upon which he could conceivably predicate such a right require suit to be brought within two years after death. From the claimant’s answer to the petition, it appears that death is alleged to have occurred by drowning after the vessel had been beached on the coast of Florida. The case is controlled by the Jones Act of June 5, 1920 (section 33, c. 250, 41 Stat. 107 ; U. S. Comp. Stat. 1923 Supf>. §' 8337a [46 USCA § 688]), which makes applicable in the ease of the death of any seaman as a result of personal injury the Federal Railway Employers’ Liability Act of April 22, 1908, c. 149 (45 USCA § 51-59; Comp. St. §§ 8657-8665). The latter statute expressly provides in section 6: “No action shall be maintained under this act unless commenced within two years from the day the cause of action accrued” (U. S. Compiled Statutes, § 8662 [45 USCA § 56]), and this means within two years from the death, not from the appointment of the administrator. Reading Co. v. Koons, 271 U. S. 58 , 46 S. Ct. 405 , 70 L. Ed. 835 . Since no action was commenced, or elaim filed, within two years from the date of death, there can be no recovery. I do not think it necessary to consider the New York death statute, or the Florida death statute, because the Jones Act appears to be plainly applicable, and therefore controlling. Congress having legislated on the subject, state statutes are inapplicable.

It is, however, contended that the petitioner has waived defense based upon the two-year limitation by failure to assert it in its objection to the elaim. A limit of time for bringing suit, contained in a statute giving damages for death, is binding on any court in which suit may be brought. It is a limitation upon the right created by the statute, and, if suit is not brought within the time limited, the right, not merely the, remedy, is lost. The Harrisburg, 119 U. S. 199, 214 , 7 S. Ct. 140 , 30 L. Ed. 358 ; Texas & N. O. R. Co. v. Miller, 221 U. S. 408 , 31 S. Ct. 534 , 55 L. Ed. 789 ; International Navigation Co. v. Lindstrom (C. C. A.) 123 F. 475 ; Keep v. Nat. Tube Co. (C. C.) 154 F. 121 ; Swanson v. Atl. Gulf & Pac. Co. (D. C.) 156 F. 977 ; American Law Institute Conflict of Laws, Restatement No. 4, § 433.

The trouble with the claim is that the right to recover is gone beyond recall by any failure to mention the defect in objecting to the elaim. This would he so even if the objection could be properly regarded as a *292 pleading in an action. Pernisi v. Schmalz’ Sons, Inc., 142 App. Div. 53 , 126 N. Y. S. 880; Tiffany, Death by Wrongful Act (2d Ed.) § 121.

Motion granted.