Bradey v. United States, 44.

• Decision Date: 28 January 1946
• Docket Number: No. 44.,44.
• Parties: BRADEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

151 F.2d 742 (1945)

BRADEY v. UNITED STATES.

No. 44.

Circuit Court of Appeals, Second Circuit.

November 2, 1945.

Writ of Certiorari Denied January 28, 1946.

Simone N. Gazan, of New York City, for appellant.

Edward L. Smith, of New York City, for appellee.

Before L. HAND, SWAN and CLARK, Circuit Judges.

Writ of Certiorari Denied January 28, 1946. See 66 S.Ct. 484.

L. HAND, Circuit Judge.

This appeal is from a decree in the admiralty which upon stipulated facts dismissed a libel against the United States. The libellant, an administratrix, was the mother of the intestate — a fireman in the service of the Navy on board the destroyer, "Parrott," — who died in 1944 as the result of injuries caused by a collision between that ship and the "John Morton", a vessel owned by the United States. The libel alleged, and for the purposes of this appeal it must be assumed, that the collision was due, in part at any rate, to the negligence of those on board the "John Morton"; so that the only question before us is whether in these circumstances, the United States has submitted to the jurisdiction of the court. As the collision happened within the territorial waters of the State of Virginia: i.e., within the port of Norfolk, the libellant relies upon a statute of that state (§§ 5786, 5787, 5788, of the Code of Virginia), which (following Lord Campbell's Act) gives a right of action to the personal representatives of a person killed by the "wrongful act, neglect, or default" of another, whenever the deceased might have recovered, if he had not died. The defense is that the "John Morton" was bound for Newport News with over one thousand tons of soft coal belonging to the Army, where she was to complete her cargo by lading munitions of war, after which she was to sail for the European theatre of war. The respondent asserts that this service made her a "public," and not a "merchant," vessel of the United States; that therefore jurisdiction over the claim must depend upon the Public Vessels Act (46 U.S.C.A. § 781); and that the decedent was not among those protected by that act. As an alternative, it asserts that, even though the ship was a "merchant" vessel, the Suits in Admiralty Act (46 U.S.C.A. § 742) also did not confer any jurisdiction upon the court.

We may at the outset lay aside the Suits in Admiralty Act, because plainly, the offending ship was not a "merchant," but a "public," vessel within the meaning of the Public Vessels Act. The Western Maid, 257 U.S. 419, 42 S.Ct. 159, 66 L.Ed. 299; United States Grain Corporation v. Phillips, 261 U.S. 106, 43 S.Ct. 283, 67 L.Ed. 552; The Norman Bridge, D.C., 290 F. 575 (per Ward, J.); United States v. City of New York, D.C., 8 F.2d 270 (per Augustus N. Hand, J.). Those decisions concerned the carriage of food to Europe, or of gold from Europe to pay for food already delivered, after the first World War; and a far more plausible argument could be made that the ships performing such services were "merchant" vessels than can be made in the case of a ship like the "John Morton," bound for a theatre of war, flagrante bello, with a cargo of coal and munitions, consigned to the Army. It is quite true that nothing in the text of the Public Vessels Act bars suit by a member...