concurring in denial of petition for rehearing.
If we were writing on a fresh slate I would vote to grant the petition for rehearing. It seems to me that the first, or at most the first two sentences of 46 U.S.C. § 742 constitutes the waiver of sovereign immunity by the United States. Those sentences read:
In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States or against any corporation mentioned in section 741 of this title. Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found.
The subsequent sentences concerning service of process constitute a procedural requirement enacted in the absence at that time, of any other applicable general service provision. In 1938, the Federal Rules of Civil Procedure became effective. 28 U.S.C. § 2072, enacted in 1948 and amended in 1966, states:
The Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts and courts of appeals of the United States in civil actions, including admiralty and maritime cases
Such rules shall not abridge, enlarge, or modify any substantive right . . .
All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Nothing in this title, anything therein to the contrary notwithstanding, shall in any way limit, supersede, or repeal any such rules heretofore prescribed by the Supreme Court.
Thus Congress has stated that the rules of procedure enacted by the Supreme Court replace any laws in conflict therewith, as long as those laws do not involve substantive rights. Since 1966, the Federal Rules of Civil Procedure have governed actions in admiralty as a result of the unification of the civil and admiralty rules. Fed.R.Civ.P. 1; 7A Moore’s Federal Practice 1.01, 11 — 14 (2nd ed. 1978).
Were it not for Barrie v. United States, 615 F.2d 829 (9th Cir. 1980) and Owens v. United States, 541 F.2d 1386 (9th Cir. 1976), cert. denied, 430 U.S. 945, 97 S.Ct. 1580, 51 *1232L.Ed.2d 792 (1977), I would conclude that the service of process provision in Section 742 is procedural and has been supplemented by the provisions of Rule 4 specifying the method of service on the United States of America. Under that rule, service was timely accomplished in this case. I can see no logical reason why there should be a different method of service in this one instance in which the United States is a defendant. I further am impressed by the fact that Section 742 specifies even the manner of mailing “by registered mail to the Attorney General of the United States.” Certainly that provision is not to be considered as jurisdictional and would be superseded by the Federal Rule provision that states that a copy of the summons and complaint may be sent by “registered or certified mail to the Attorney General of the United States.” Fed.R.Civ.P. 4(d)(4).
Inferential support for this construction of Section 742 may be found in the Senate Report No. 1894, U.S.Code Cong. & Admin. News 1960, p. 3583, issued in support of Pub.L. 86-770,1 amending 46 U.S.C. § 742 and 28 U.S.C. § 1406, for the purpose of avoiding the bar of the statute of limitations due to confusion over the proper forum for bringing suits.
In stating the reason for the change, the Senate report states:
The reform of existing practice embodied in this bill is another expression of the underlying philosophy of the Federal Rules of Civil Procedure of modern legal practice generally, that the decisive question in a lawsuit should, as far as possible, be its merits and not esoteric, technical problems of procedure.
S.Rep.No. 1894, 86th Cong. 2nd Sess. 3, reprinted in [1960] U.S.Code Cong. & Ad. News 3583, 3585.
In keeping with that philosophy, if freed from the bounds of stare decisis, I would hold that the service provision of Section 742 does not constitute an integral part of the substantive waiver of sovereign immunity, but is a mere procedural provision necessary at the time of the statute’s enactment, to effectuate that waiver. As such it was superseded by the Federal Rules. Kenyon effected service within the statutory period in accordance with the provisions of those rules.
. Act of Sept. 13, I960, § 3, 74 Stat. 912.