The opinion of the court was delivered by: Perry, District Judge.
On October 4, 1951, the libelant filed this action, alleging
that he slipped and fell in the fantail compartment of the
respondent's steamer Robert W. Stewart on December 21, 1944,
while the vessel was docked upon the waters of Lake Michigan
at the port of East Chicago, Indiana. He further alleges that
he was discharging specific duties as a seaman when the
incident occurred. Injuries are also alleged. The libelant
seeks the sum of $12,000 for maintenance and cure.
On December 30, 1947, the libelant filed a civil action
against this respondent in the United States District Court
for the Northern District of Illinois. The complaint alleged
two causes of action. The first was a negligence action
pursuant to the provisions of the Jones Act 46 U.S.C.A. § 688;
the second was a civil action for maintenance and cure. On May
21, 1948, the defendant's defense of the statute of limitations
as to the claim for negligence pursuant to the Jones Act was
sustained; it was dismissed with prejudice.
On June 17, 1948, this libelant was granted leave to
transfer the remaining claim of the civil action for
maintenance and cure to the admiralty side. Accordingly the
libelant filed his amended complaint setting up a cause of
action in admiralty for maintenance and cure — a claim which
is identical with the instant claim. The earlier case bore the
number 47 C 1889. On September 22, 1949, on motion of the
defendant, Judge LaBuy dismissed the earlier action for want of
prosecution. Written notice of this order was sent to
libelant's counsel on September 22, 1949.
The respondent has filed "Exception to the Libel" wherein he
1. That dismissal of the identical action (47 C 1889) on
September 22, 1949, constituted an adjudication on the merits
and therefore the claim in the instant libel is res
2. That this action is barred by the statute of limitations
I. The defense of res judicata. The respondent, in advancing
this defense, relies upon Rule 41(b) of the Federal Rules of
Civil Procedure, 28 U.S.C.A. which provides in substance that a
defendant in a civil action may move for dismissal when the
plaintiff fails to prosecute, and that, "unless the court in
its order for dismissal otherwise specifies, a dismissal under
this subdivision and any dismissal not provided for in this
rule, other than a dismissal for lack of jurisdiction or for
improper venue, operates as an adjudication upon the merits."
The respondent contends that the order of the District Court
dismissing the prior action for want of prosecution constituted
an adjudication on the merits because that order did not
specify that the dismissal was "without prejudice."
The libelant's claim for maintenance and cure in that
action, however, was joined with a claim for personal injuries
pursuant to the provisions of the Jones Act 46 U.S.C.A. § 688.
After the libelant's claim under the Jones Act had been
dismissed, there remained a claim for maintenance and cure,
subject to the jurisdiction of admiralty. On June 17, 1948, the
complaint was amended and the cause was ordered transferred to
the admiralty side. On September 22, 1949, when the order of
dismissal for want of prosecution was entered, that claim was
then a suit in admiralty and not a civil action. The Federal
Rules of Civil Procedure do not apply to suits in admiralty.
Rule 81(a); Mercado v. United States, 2 Cir., 184 F.2d 24.
The rule which was applied in the order of dismissal for
want of prosecution of the claim for maintenance and cure in
case "47 C 1889" is rule 38 of the Rules of Practice in
Admiralty and Maritime Cases, 28 U.S.C.A. which provides as
"Dismissal for failure to prosecute. If, in any
admiralty suit, the libellant shall not appear
and prosecute his suit, and comply with the
orders of the court, he shall be deemed in
default and contumacy; and the court may, on the
application of the respondent or claimant,
pronounce the suit to be deserted, and the same
may be dismissed with costs."
For the purpose of consideration of the respondent's defense
of res judicata, one must examine the effect of a dismissal
under this rule. Will such a dismissal constitute an
adjudication upon the merits and consequently bar any
subsequent action on the same claim?
At the common law, a judgment of "non prosequitur" was not
an adjudication upon the merits, and consequently did not
operate as a bar to a subsequent action on the same claim,
Homer v. Brown, 16 How. 354, 57 U.S. 354, 14 L.Ed. 970. A
prior judgment must be rendered upon the merits, otherwise it
cannot support a plea of res judicata. Hughes v. United
States, 4 Wall. 232, 71 U.S. 232 18 L.Ed. 303; Manhattan Life
Insurance Co. v. Broughton, 109 U.S. 121, 3 S.Ct. 99, 27 L.Ed
Prior to the adoption of the Federal Rules of Civil
Procedure, the Federal Courts have uniformly held that the
dismissal of an action for want of prosecution is not a bar to
a subsequent action because there has been no adjudication
upon the merits. Haldeman v. U.S. 91 U.S. 584, 23 L.Ed. 433;
Gilbert, Sheriff, v. American Surety Co., 7 Cir., 121 F. 499,
61 L.R.A. 253; Gardner v. U.S. 9 Cir., 71 F.2d 63,
certiorari denied 293 U.S. 619, 55 S.Ct. 213, 79 L.Ed. 707;
Krause v. Mississippi Coal Corp., 7 Cir., 93 F.2d 515. Even
the addition of the words "with prejudice" in the order of
dismissal could not change the effect of the order because the
fact still remained that an order of dismissal for want of
prosecution was not a decision upon the merits. Pueblo de Taos
v. Archuleta, 10 Cir., 64 F.2d 807.
Any attempt to construe an order of dismissal for want of
prosecution, entered in accordance with a procedural rule or
statute, as an adjudication on the merits and consequently, a
bar to a subsequent action, derogates from the common law. In
the determination of the validity of such a construction, one
must look to the applicable rule or statute for support; and,
since such a ...