Meyer

This case has béen before the court on a previous occasion sub nom. The O. M. Arnold, 9 Cir., 127 F.2d 648, 649 . As appears from the opinion there, personal representatives of three deceased seamen, appointed by an Oregon court, sued the owner and charterer of the vessel O. M. Arnold to recover damages for the wrongful deaths of their decedents. In the course of proceedings for limitation of liability, filed by the owner and charterer in the court below, it was ordered that answers and claims of the Oregon administrators filed in that proceeding be dismissed on the ground that the claimants lacked capacity to sue outside the state of their appointment. This order of dismissal, entered August 25, 1941, provided the motive of the prior appeal.

The Oregon administrators contended on that appeal that they were entitled to sue in Washington, and, further, that the order of dismissal in the admiralty case should have provided, as it did not, that they might amend by substituting personal representatives appointed in Washington. They contended that, in the absence of such a proviso, the order would be res judicata. This court said it could see no reason why the order should not state…

(dissenting).

I am not in accord with the opinion of the majority.

First. One ground for the decision is found in our former opinion which I wrote. If that opinion is subject to the interpretation given it by the majority, it is not what I intended to say. I had no intention of pre-litigating a point which might arise in future proceedings. Furthermore, as can be seen in a casual reference to that opinion, the only point raised and argued was that the decree against the Oregon representatives might be res judicata as against claims filed by Washington representatives. We ordered a modification of the decree so as to provide that the principle of res judicata would not prevent the filing of claims by Washington representatives. The majority now say that we also decided on the first appeal that the monition of the court below and any statute of limitations would not bar the filing of claims by Washington representatives. Not only was that point not decided, but it was not even mentioned.

Second. The majority have undertaken something which I believe it has no power to do. Rule 51 of the Admiralty Rules promulgated by the Supreme Court of the United States, 28 U.S.C.A. following…