Dobson v. United States

• Decision Date: 20 August 1928
• Docket Number: No. 345-347.,345-347.
• Citation: 27 F.2d 807
• Parties: DOBSON v. UNITED STATES. EGBERT v. SAME. HASELDEN v. SAME.
• Court: U.S. Court of Appeals — Second Circuit

27 F.2d 807 (1928)

DOBSON v. UNITED STATES.

EGBERT v. SAME.

HASELDEN v. SAME.

Nos. 345-347.

Circuit Court of Appeals, Second Circuit.

August 20, 1928.

Bigham, Englar & Jones, of New York City (T. Catesby Jones, James W. Ryan and W. J. Nunnally, Jr., all of New York City, of counsel), for appellants.

William A. De Groot, U. S. Atty., of Brooklyn (Horace M. Gray, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.

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

SWAN, Circuit Judge.

The libels were brought under the Act of March 3, 1925 (43 Stat. 1112). Section 1 (46 USCA § 781) provides:

"That a libel in personam in admiralty may be brought against the United States, or a petition impleading the United States, for damages caused by a public vessel of the United States, and for compensation for towage and salvage services, including contract salvage, rendered to a public vessel of the United States: Provided, that the cause of action arose after the 6th day of April, 1920."

Section 2 (46 USCA § 782) prescribes the venue of suits, and says they shall proceed in accordance with the provisions of the Act of March 9, 1920 (46 USCA §§ 741-752), relating to merchant vessels belonging to the United States, "in so far as the same are not inconsistent herewith," with an exception as to the allowance of interest. Section 3 (46 USCA § 783) relates to cross-libels, in the event that the United States is the libelant. Section 4 (46 USCA § 784) forbids the service of subpoena upon an officer or member of the crew of a public vessel of the United States without the consent of the secretary of the department having control of the vessel or of the commanding officer of such vessel. Section 5 (46 USCA § 785) relates to suit by a national of a foreign government. Section 6 (46 USCA § 786) authorizes the Attorney General to settle claims arising under the act. Section 7 (46 USCA § 787) provides for payment of any final judgment. Section 8 (46 USCA § 788) denies the creation of any lien against a public vessel. Section 9 (46 USCA § 789) accords to the United States the benefits of all exemptions and limitations of liability accorded to owners of vessels. And section 10 (46 USCA § 790) directs the Attorney General to report to each session of Congress final judgments and settlements under this act.

This statute, in conjunction with the Act of March 30, 1920 (41 Stat. 537 46 USCA § 761 et seq.), creating a cause of action where the death of a person is caused by wrongful act, neglect, or default occurring on the high seas, is said by appellants to justify their libels. Appellee, on the other hand, argues that the statute should be construed as limiting recovery to damages to property and not contemplating compensation for loss of life. We do not find it necessary to determine this question in the present case. The phrase "damages caused by a public vessel of the United States" would seem sufficient to include loss of life occasioned by the unseaworthy condition of the ship, even though this operates through the intermediation of collision with another vessel, and it may be assumed arguendo that, were the suit brought for the death of a passenger or member of the crew of the City of Rome, caused by the collision, we would sustain it; for the purpose of the Act of March 3, 1925, was apparently to assume liability for damage done by a public vessel (at least in favor of persons not of her company) similar to that already assumed by the United States with respect to its merchant fleet by the Suits in Admiralty Act of March 9, 1920 (41 Stat. 525).

Verbally, there is nothing which excludes liability for damage to property or person of officers or crew. Seamen on the merchant fleet of the United States are given a right of action in case of injury or death, by section 33 of the Jones Act (41 Stat. 1007 46 USCA § 688); and this has apparently been treated as an alternative remedy, not preventing suit by their legal representatives under the general admiralty law, coupled with the Act for Wrongful Death on the High Seas. See Axtell v. United States, 286 F. 165 (D. C. N. Y.); Burke v. United States, 15 F.(2d) 573 (D. C. Or.). It must be conceded, therefore, that appellants make a strong argument in favor of liability. The decision in O'Neal v. United States, 11 F. (2d) 869 (D. C. N. Y.), affirmed (C. C. A.) 11 F.(2d) 871, is not against them, for there the loss of life was caused, not by the unseaworthiness of the ship, but by the explosion of a shell, and without evidence of negligence in the handling of it.

Nevertheless the construction contended for by appellants involves so radical a departure from the government's long-standing policy with respect to the personnel of its naval forces that we cannot believe the act should be given such a meaning. The statute itself does not specify who may maintain suits under it. To allow suit by the officers and crew of the public vessel for damage caused by it to them would be too great a reversal of policy to be enacted by such general terms. The...