1923 A. M. C. the ship was unseaworthy. No intention is shown by Section 33 to inculde in the new remedy any cases, in so far as territorial jurisdiction is concerned, not covered by the old. At present it is not necessary to consider the sufficiency of plaintiff's complaint under the Act of June 11, 1906 (34 Stats. at L., 232), Interstate Commerce Com. vs. U. S., 224 U. S. 474; El Paso & N. E. Ry. vs. Gutierrez, 215 U. S. 87; Sandstrom vs. Pacific S. S. Co., 260 Fed. 661; Walsh vs. Alaska S. S. Co., 101 Wash. 295, suits under which must be brought within one year from the date of the injury. Winfree vs. Northern Pac. Ry. Co., 173 Fed. 65 at 67; Sandstrom vs. Pacific S. S. Co., 260 Fed. 661 (supra), Holding that there is no jurisdiction to proceed under section 33, the plaintiff is allowed to elect whether he will proceed under the law of 1906 with or without the amendment of his complaint. HORACE M. BRAZIL, Libellant, vs. MATSON NAVIGATION COMPANY, Respondent. United States District Court, Northern District of California, Southern Division, February 20, 1923. LIMITATION-LACHES SEAMEN PERSONAL INJURY-7 MONTHS Delay. After eleven months of negotiation, ending in a denial of liability for personal injury, a further delay of seven months before filing a libel, without excuse, is laches, and the claim is barred. ANDROS & HENGSTLER, for Libellant. JOSEPH B. MCKEON, FARNHAM P. GRIFFITHS, and MCCUTCHEN, OLNEY, MANNON & GREENE, for Respondent. ON EXCEPTIONS TO LIBEL. BEAN, District Judge: The exceptions to the libel on the ground of laches will be sustained. It is true there is no statute of limitations in admiralty, but like courts of equity a court of admiralty will not lend its aid to enforce stale demands and, except under special circumstances excusing the delay, a claim which is barred at law by the statute of limitations will be held barred in admiralty on the ground of laches. (The Amboy and The Transfer, 36 Fed. 925; Davis vs. 392. Smokeless Fuel Co., 196 Fed. 753). In this case, the accident occurred on May 8th, 1920, and the libel was filed May 16th, 1922. It is therefore barred by the statute of limitations, Section 340, Code of Civil Procedure. The only excuse for the delay is that from the time of the accident to December 16th, 1920, the respondent paid libellant his wages, and that subsequent negotiations were pending looking to a settlement until October 29, 1921, when libellant was advised that respondent refused "to do anything further" for him. It therefore appears that the libel was not filed until almost seven months after the libellant was advised that the respondent denied liability, and no excuse is shown for the delay. Judgment and decree may be entered accordingly. THE EL MUNDO-THE FREDERICK LUCKENBACH- IN RE PETITION OF SOUTHERN PACIFIC COMPANY FOR LIMI- OF LUCKENBACH S. S. CO., INC., AS OWNER OF THE OF UNION SULPHUR COMPANY AS OWNER OF S. S. HEWITT. United States District Court, Southern District of New York, Mar. 6, 1923. LIMITATION OF LIABILITY-SEAMEN-EFFECT OF JONES ACT, SEC. 33. 1. Where an action at law is brought by a seaman under Sec. 33 of the Jones Act, and there are other claims against the vessel, the owner may not obtain a stay of the seaman's action by limitation proceedings, but he must prove such other claims and his right to limit as matters of defence in the action at law. 2. Whether the owner may limit his liability, as against a claim under Sec. 33 of Jones Act, not decided. HARRY S. AUSTIN, for Harvey H. Kimmel. ARTHUR LAVENBURG, for Claimants of S. S. Hewitt. E. H. WOMACK, for Cornelius Buckley. PETER CARTER, for Luckenbach S. S. Co., Inc. OUDIN, KILBRETH & SCHACKNO, for Union Sulphur Co. BURLINGHAM, VEEDER, MASTEN & FEAREY (CHAUNCEY I. CLARK, S. C. COLEMAN and J. D. EGGLESTON), for Southern Pacific Co. These three motions present different phases of questions arising under Section 20 of the Act of March 4, 1915, as amended by 394 AMERICAN MARITIME CASES. 1923 A. M. C. Section 33 of the Jones Act of 1920. In the first case of the El Mundo, the petitioner had commenced an action at law in the District Court for the Southern District of New York, as administrator to recover damages for the death, by explosion, of a seaman on board the vessel. This was at issue when the owners filed a petition in a limitation proceeding in this court and procured a stay. The vessel was not destroyed and there were two other claims which might be presented against her, one for the death of another seaman, and the other for salvage. In the second case of the Luckenbach, the petitioner had brought an action in this court for personal injuries suffered as a seaman while on board. The owners here also filed a petition in a limitation proceeding, although this was the only claim, and got a stay. It was in issue whether the vessel is of a value equal to the ad damnum in the complaint. In the case of the Hewitt, the petitioner was the administrator of a seaman lost when the vessel foundered on the high seas with all on board. He has brought no action, but the owners have filed a petition in a limitation proceeding and procured a stay, alleging that there was neither vessel nor freight to surrender. All the petitioners move to vacate the stays. LEARNED HAND, D. J.: The single question arising in all these cases is of the meaning of Section 33 of the Jones Act which reads as follows: "Sec. 33. That section 20 of such Act of March 4, 1915, be, and is, amended to read as follows: "Sec. 20. That any seaman who shall suffer personal injury in the course of the employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right. of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal offiice is located."" 393. This statute cannot be understood without recalling the law as it stood at the time of its enactment. The Osceola, 189 U. S. 158, had laid it down that an injured seaman's rights were limited to maintenance and cure and indemnity in cases his injuries arose from the unseaworthiness of the ship. There were expressions in that opinion which seemed to indicate that he was deprived of the usual rights of an employee because of the fellow-servant doctrine, and Section 20 of the Act of March 4, 1915, in its original form was supposed to meet the difficulty by eliminating the rule. In Chelentis vs. Luckenbach S. S. Co., 247 U. S. 372, it was, however, held that a seaman could recover only under the law of the sea and that Congress had not meant to extend the usual liabilities of master and servant to such cases. Hence the removal of the fellow-servant doctrine proved ineffectual. Apparently it was to supply this defect that Section 20 of the Act of March 4, 1915, was amended to the form given above. In The Passaic, 204 Fed. Rep. 266, (C. C. A. 2), a case was up of a railway employee injured upon a vessel in the harbor of New York. It was assumed that he might sue under the Federal Employers Liability Act, but it was held that that statute was compatible with the Limitation Act, so that the owner-employer might enjoin the action, bring the claim through limitation proceedings into a concourse with other claims against the vessel, and limit the aggregate recovery to her value and freight. Such was the condition of the law when Section 20 was amended. A seaman at his election already had his action at law under the maritime law with trial by jury, or his libel in the admiralty. But in either case he was subject to injunction and a concourse under Rev. Stat. Sec. 4285 and the proceedings laid down in Admiralty Rules 51, 52, 53 and 54. He did not therefore have any right to trial by jury except at the will of the owner-employer, because his action at law could be enjoined in limine. The amendment to Section 20 did not merely give new substantive rights to the seaman, but it purported to give him new remedies. If it be read as leaving his former remedies unchanged, still subject to injunction in limine by proceedings under Rev. Stat. Sec. 4285 and the Admiralty Rules, its purpose is defeated. In that case the seaman could not have an action at law at his own election, but at the election of the owner-employer, and the 1923 A. M. C. amendment would be brutum fulmen. In short, if these stays are valid, the change has accomplished nothing except to vest in the seaman new substantive rights. It meant more than that. At the argument I thought that it might be possible to give effect to the amendment by allowing the actions to proceed to judgment and then staying any execution. This was the course followed in The Benefactor, 103 U. S. 239, where it was held that while the decrees were res judicata, they could be brought into a limitation proceeding thereafter and the res distributed. However, in The Benefactor, all the claimants had brought suit in a consolidated libel and the decree estopped everybody. It was possible in that case therefore to distribute the res without any new litigation. If, however, that had not been the case there is no reason to suppose that the procedure would have been permitted. Because in that case, the decrees would not have estopped the other claimants, not parties to the libel, and if the owner could have brought the litigated claims into concourse, the whole controversy must have been fought over again. It seems to me inconceivable that an owner may lie back and allow judgment to go against him and then compel the plaintiffs to relitigate the whole proceedings with new claimants, in order to recover anything out of the res. However that may be in respect of other claims, it cannot be the meaning of the present amendment. In giving the seaman a right of action at law, it must mean to make the resulting judgment conclusive. If there is to be any concourse, it must be in limine, and for the reasons already given, it cannot be in limine. Hence, it appears to me that my notion on the argument was not a possible solution. The right of action with a jury trial means that the action must proceed to judgment and be conclusive for all purposes. This can only be in case the owner must make such defenses as he has in the action itself. It does not of course follow that the owner-employer may not still have his right to limit under Rev. Stat. Sections 4283, 4284. It has always been possible for him to plead it as defence in the action or libel, The Scotland, 105 U. S. 24, 33, 34, 35; The Great Western, 118 U. S. 520, 525, 526. When there is but one claim this procedure offers no embarrassments, the recovery being limited in the action to the value of the vessel and her freight, if the |