(concurring).
In the case at bar I think that we can avoid answering, the troublesome question which has arisen in suits for personal injuries ¡brought under the “Clarification Act.” Article 22 of the “War Risk Policy” provides that “no action or suit * * * shall be valid unless commenced within two years from the time the insurance, benefits or allowances * * * are payable”; and Article 21 provides that “notice of disability * * * and claim for payment * * * shall be given * * * within * * * ninety days after the insured returns to the continental United States.” Plainly, the “insurance” is not “payable” unless such a “notice” and such a “claim” are given. The libellant has not alleged that he ever gave “any claim for payment,” which § 304.24, General Order 32, requires to be “in writing,” until February 1, 1950; and, even were we to assume that an oral claim would suffice, he does not so much as intimate that he gave one before July 26, 1945, which was ninety days after April 26, 1945, when he returned to the “continental United States.’! That alone would conclude him. Besides, assuming that he did give an oral “claim” before July 26, 1945, and that it might serve in place of one “in writing,” the Commission did not “determine” it within sixty days — say, September 26, 1945 — and § 304.26 of General Order 32 provides that after sixty days “the claim shall be presumed to have been administratively disallowed, and the claimant shall be entitled to enforce his claim by court action.” The Merchant Marine Act of *1041936* makes § S of the Suits in Admiralty Act applicable to suits upon such claims and the period was up before October first, 1947, at the latest. The limitation circumscribes the consent of the United States to be sued and cannot be relinquished. Although I do not wish to be understood to dissent from my brothers’ disposition of the appeal, I find the foregoing a more definitely marked path to- the same result.
§ 1128d, Title 46 U.S.C.A.