Somerset Seafood Co. v. United States

• Citation: 193 F.2d 631
• Decision Date: 19 December 1951
• Docket Number: No. 6295.,6295.
• Parties: SOMERSET SEAFOOD CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

193 F.2d 631 (1951)

SOMERSET SEAFOOD CO. v. UNITED STATES.

No. 6295.

United States Court of Appeals Fourth Circuit.

Argued November 6, 1951.

Decided December 19, 1951.

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Donald D. Webster and John D. Alexander, Baltimore, Md. (Wm. Pepper Constable, Baltimore, Md., on the brief), for appellant.

Thomas F. McGovern, Sp. Asst. to the Atty. Gen. (Holmes Baldridge, Asst. Atty. Gen., Bernard J. Flynn, U. S. Atty., and James B. Murphy, Asst. U. S. Atty., Baltimore, Md., on the brief), for appellee.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and MOORE, District Judge.

DOBIE, Circuit Judge.

The Somerset Seafood Company (hereinafter called Somerset) filed a civil action in the United States District Court for the District of Maryland, under the Federal Tort Claims Act (hereinafter called the Act), seeking damages from the United States for the loss of Somerset's oyster boat, The T. H. Anderson, alleged to have been stranded on the wreck of The San Marcos (the old battleship Texas, renamed), which, in 1911, had been sunk by the United States in the navigable waters of Chesapeake Bay. The complaint alleged that the loss of The Anderson was due solely to the negligence of the United States in creating and marking the wreck of The San Marcos.

The District Court held that (1) the complaint stated a case within the Tort Claims Act under federal wreck-marking statutes; (2) that the maritime law as adopted by the State of Virginia, applying the rule of divided damages for contributory negligence was the "law of the place" under the Tort Claims Act; (3) that defendant in maintaining the wreck buoy approximately 525 feet from the nearest part of the 300 foot long wreck did not negligently mark it; (4) that the wreck was not a continuing nuisance; and (5) that the stranding was proximately caused by incompetent and defective navigation of the Mate of The Anderson who apparently avoided the buoy by 750 feet, and passed with the wreck buoy on his right hand.

The complaint was, accordingly, dismissed and Somerset has appealed. The opinion below is reported in D.C., 95 F. Supp. 298.

We think the District Judge correctly ruled that the complaint stated a case under the Act, though the question is not free of difficulty.

Here we are particularly concerned with Sections 1346, 2674, 2680 of the Act, all found in 28 U.S.C.A. Section 1346(b) provides that the federal District Courts "shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

The test of liability under the Act is thus prescribed in Section 2674: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."

In Section 2680 are listed twelve classes of cases expressly excepted from the grant of jurisdiction under the Act, and we quote two of these excepted classes:

"(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."

"(d) Any claim for which a remedy is provided by sections 741-752 (Suits in Admiralty Act), 781-790 (Public Vessels Act) of Title 46, relating to claims or suits in admiralty against the United States."

The contention of the United States that the case before us is not within the Act seems to stem primarily from § 2680(d) just quoted above, which, we are told, evidenced an intent on the part of Congress to except from the Act all maritime torts which might be made the basis for a suit in admiralty. With this we cannot agree, and we think it is necessary to add little to what was said by the District Judge.

The instant action was not brought, and could not be brought, under either the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., or the Public Vessels Act, 46 U.S. C.A. § 781 et seq. The exceptions in § 2680(d) of the Act are expressly limited to claims under the Suits in Admiralty Act and the Public Vessels Act. It seems crystal clear, as the District Judge pointed out, that the two Acts just mentioned fall far short of covering the whole field of maritime torts. See, United States v. Spelar, 338 U.S. 217, 220, Notes 6, 9, 70 S.Ct. 10, 94 L.Ed. 3; Baltimore, Crisfield & Onancock Line, Inc., v. United States, 4 Cir., 140 F. 2d 230; Corby v. Ramsdell, 2 Cir., 48 F.2d 701; State of Maryland, to use of Pryor, v. Miller, 4 Cir., 194 F. 775.

We are not impressed by the scattered remarks of some members of Congress, found in the Congressional Record, that the legislative intent was to include within the ambit of the Act only common law torts and to exclude all maritime torts. The Act must be given a liberal construction to ward off the obvious evil which the Act was passed to prevent — the cumbersome and unwieldy practice of seeking relief in Congress by private bills. The jurisdiction granted to the federal District Courts by § 1346(b) of the Act is couched in quite broad and very expansive language. See, United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 383, 70 S.Ct. 207, 94 L.Ed. 171; American Stevedores v. Porello, 330 U.S. 446, 453, 67 S.Ct. 847, 91 L.Ed. 1011; United States v. Travis, 4 Cir., 165 F.2d 546, 547.

We find no merit in the contention that the United States is relieved of liability by virtue of §§ 1346(b) and 2674 of the Act. By § 1346(b) liability is imposed "under circumstances where the United States, if a private person, would be liable"; while § 2674 reads: "The United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances".

The initial duty of removing or marking a wrecked ship rests upon the owner until abandonment of the ship. After abandonment, this duty clearly rests on the United States under the Wreck Acts, 33 U.S.C.A. §§ 409, 736, 14 U.S.C.A. § 86, in substitution for the initial activity required of the individual owner. Here, the United States was the original owner of The San Marcos, before its abandonment.

There is nothing in the celebrated case of Feres-Jefferson-Griggs v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, which militates against our conclusion, which was also that of the District Judge. All that case really decided was "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arose out of or are in the course of activity incident to service." 340 U.S. at page 146, 71 S.Ct. at page 159. Mr. Justice Jackson in his opinion 340 U.S. at page 139, 71 S.Ct. at page 156, remarked: "The Tort Claims Act was not an isolated and spontaneous flash of congressional generosity. It marks the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit." See, also, Cerri v. United States, D.C., 80 F.Supp. 831; Moran v. United States, D.C., 102 F.Supp. 275. Cf. United States v. Travis, 4 Cir., 165 F.2d 546; Baltimore, Crisfield & Onancock Line, Inc. v. United States, 4 Cir., 140 F.2d 230; The Mary A. Bickel, 4 Cir., 46 F.2d 988; Gilbert v. Trinity House, 1886, 17 Q.B.D. 795; Jolliffe v. The Wallasay Local Board, 1873, L.R. 9 C.P. 62.

It is suggested that it was not intended to impose liability on the United States for damages arising out of the exercise of what are essentially "governmental" functions as distinguished from those which might be carried on by private individuals, but we think that there is no basis for such distinction. As was said by Judge Roche in Cerri v. United States, D.C.N.D.Cal., 80 F.Supp. 831, 833: "The defense that this act does not apply to those cases wherein the negligence occurred during the exercise of a sovereign power of the United States, if heeded, would create a twilight zone of governmental activities in which the consent given by this statute could not be applied. Too numerous are the affairs of a purely governmental or sovereign nature, prohibited to or not duplicated by the activities of private individuals, to consider this to be the intent of Congress. Certainly, the statute itself makes no distinction between governmental activities of a sovereign nature and those of a proprietary nature, nor does it include within the claims exempted, 28 U.S.C.A. § 943 (under revision of 1948, 28 U.S.C.A. § 2680), those of this type."

The case is favorably discussed by Judge Yankwich in 9 F.R.D. 143, at page 156 where he says: "In this respect, the opinion accords with the latest decisions of the Supreme Court which do not recognize in the law of public liability of the United States the distinction between governmental and other capacities. This was put very pithily by Mr. Justice Frankfurter in a well-known case: `Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it.' Federal Crop Ins. Corp. v. Merrill, 1947, 332 U.S. 380, 383, 68 S.Ct. 1, 92 L.Ed. 10." And in Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 391, 59 S.Ct. 516, 518, 83 L.Ed. 784, the Supreme Court, in holding that a governmental corporation's liability to suit is not to be...