No. 33 | E.D. Pa. | Dec 17, 1948
This is a motion to dismiss a libel under the Suits in Admiralty Act, 46 U.S. C.A. § 741. Although the motion apparently rested upon three grounds, when first filed over two years ago, only one appears to be urged now; i. e., that the suit is barred by the applicable two-year statute of limitations. Briefly, the libel alleges that on March 2, 1943, the vessel upon which libellant was a member of the crew started to crack up and the crew was required to work continuously to rivet the 1 decks and plates together. As a result of this long exposure to the elements, libellant became ill. The libel alleges that respondents failed to provide libellant with a seaworthy ship and were negligent to him in various respects; e. g., failing to provide a safe place to work, unnecessarily exposing him to the elements, failing to provide proper and adequate medical care, attention and maintenance. The libel was filed February 14, 1946. Therefore, under a later decision of the Circuit Court of Appeals for this Circuit, holding a two-year statute of limitations applicable to suits under the Act, at least some of these bases of a cause of action would seem barred by the statute. Cf. Crescetelli v. United States et al., 3 Cir., 159 F.2d 377" court="3rd Cir." date_filed="1947-01-23" href="https://app.midpage.ai/document/crescitelli-v-united-states-6894576?utm_source=webapp" opinion_id="6894576">159 F.2d 377. Perhaps a pretrial conference could dispose of these, if the parties agree on the facts. However, the motion before the Court at this time asks for dismissal of the complaint. Such motions should be granted sparingly and only when the allegations in the complaint, if accepted as true, do not make out a case at all. Such is not the situation here. The duty of furnishing maintenance and cure is a continuing obligation and does not necessarily cease with the end of a voyage. Loverich
Accordingly, therefore, the motion to dismiss in the instant case will be denied.