defendant in the first action having been taken at the instance of respondent United States, it was apparently taken by the Court itself, as a purely formal proceeding, to clear its docket of a whole host of matters which had been abandoned by the parties litigant thereto. In short, from the beginning, not only Mrs. Joyce, but the United States as well, treated its joinder in the earlier action at law as a mere nullity. Surely the respondent United States cannot now be heard to claim that that which it, and Mrs. Joyce, and the Court itself, treated as a nullity, should now be considered so material as to prevent libelant from receiving the benefit of the remedy, to which otherwise she stands clearly entitled.
Respondent, which frankly admits the action at law would not lie against it, nevertheless contends that such action could have been transferred to the admiralty side. But none of its citations apply to the United States, and to the contrary we find Independent Casing & Supply Co. v. Roosevelt S.S. Company, Inc., D.C.N.D.N.Y. 1930, 44 F.2d 858, where such a transfer was refused in a similar situation in the very district in question, relying upon Johnson v. U.S. Shipping Board Emergency Fleet Corporation, supra, where the United States Supreme Court similarly failed to grant such transfers. In other words, even if, arguable, such a transfer might have been enforced on ultimate appeal libelant here was justified in not inviting any such protracted litigation, as to an angle of the matter which both parties had treated as a nullity, but instead, in starting its new libel proceeding here, under the Remedial Act, with the conditions of which it had complied, as held in the Cohen case, supra.
The substantial facts thus are that, save for this situation mutually treated as a nullity, 'a prior * * * action at law was timely commenced and was * * * dismissed solely because improperly brought against (one) engaged by the United States to manage * * * a vessel owned * * * by the United States' and not on the merits, the very situation intended by Congress to be remedied. Further, the legislative history of this remedial amendment indicates that Congress felt that 'litigants should not be made the victims of the legal confusion regarding the proper remedy in such cases * * *. Legislative relief is requisite not only to save to litigants possessing meritorious claims their right to a day in court, but also to settle the question of remedy in future cases.' 1950 U.S.Code Cong. Service, p. 4209, 10. Since, as the Cohen case supra holds, 'the overriding consideration is that the intent of Congress * * * must be give effect', and since Mrs. Joyce is clearly a 'victim of the legal confusion', to aid which victims the act in question was passed, the present libel is not time barred.
Respondent further excepts to the libel on the ground that same was not verified as required by Admiralty Rule 22, 28 U.S.C. But it will be noted that by Rule 23, not only may amendments be made 'in matters of form * * * as of course' but 'amendments in matters of substance may be made'. And 'It has always been the practice in American admiralty courts to allow the parties every opportunity to place their whole case before the court and to enable the court to administer substantial justice between the parties. It is therefore the long-established rule that omissions and deficiencies in pleadings may be supplied and errors and mistakes in practice in matters of substance, as well as of form may be corrected at any stage of the proceedings for the furtherance of justice. 2 Benedict on Admiralty (6th Ed.), 577. * * * In accordance with these principles it is held that an amendment of a libel dates back to the original filing. Flynn Export Co. v. E.D. 2 Benedict on Admiralty, 562. This is true even though the statute of limitations has intervened (citing cases).' Deupree v. Levinson, 6 Cir., 1950, 186 F.2d 297, 303, certiorari denied 1951, 341 U.S. 915, 71 S. Ct. 736, 95 L. Ed. 1351. The requisite amendment may here be had on prompt application.
As to respondent's final exception that decedent's employment is not properly alleged, it should be noted that the libel alleges he 'was employed aboard the SS Marine Perch' and that 'the respondent, the United States of America, owned, managed and controlled * * * the SS Marine Perch.' The ship being alleged to be a 'SS', not a 'USS', is clearly a merchant vessel. The employment would otherwise seem properly alleged, but if not, same is, of course amendable, under the above authorities.
Respondent's exceptions will be dismissed. An order may be entered accordingly.
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