United States v. Weyerhaeuser Steamship Company

• Decision Date: 24 October 1961
• Docket Number: No. 17187.,17187.
• Parties: UNITED STATES of America, Appellant, v. WEYERHAEUSER STEAMSHIP COMPANY, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

294 F.2d 179 (1961)

UNITED STATES of America, Appellant, v. WEYERHAEUSER STEAMSHIP COMPANY, Appellee.

No. 17187.

United States Court of Appeals Ninth Circuit.

August 30, 1961.

Rehearing Denied October 24, 1961.

Wm. H. Orrick, Jr., Asst. Atty. Gen., John G. Laughlin and W. Harold Bigham, Attys., Dept. of Justice, Washington, D. C., and Laurence E. Dayton, U.S. Atty., San Francisco, Cal., for appellant.

Graham, James & Rolph, by Henry R. Rolph, San Francisco, Cal., for appellee.

Before CHAMBERS, BARNES and HAMLEY, Circuit Judges.

BARNES, Circuit Judge.

This case arises in admiralty upon a libel against the United States, and a cross-libel filed by the United States. The district court thus had jurisdiction under 28 U.S.C. §§ 1345 and 1346, and 46 U.S.C.A. § 782. A final decree was entered below, and this court has jurisdiction under 28 U.S.C. § 1291.

On September 8, 1955, appellee's vessel, the S.S.F.E. Weyerhaeuser, collided with appellant's vessel, the United States Army dredge Pacific, off the coast of Oregon. The trial court found that both parties were at fault and this finding is not challenged here. The accident caused significant damage to both vessels, and resulted in personal injury. Reynold Ostrom, an employee of the United States serving on the Pacific, recovered compensation from the United States in the amount of $329.01 under the Federal Employees' Compensation Act (5 U.S.C.A. § 751 et seq.). Ostrom also recovered $16,000 from appellee by settlement. St. Paul Fire & Marine Insurance Company intervened claiming $19,122.75 as damages under its policy of marine insurance for its cargo general average contribution arising out of the collision, and Fireman's Fund Insurance Company likewise intervened, claiming $923.85 for its marine insurance cargo general average contribution. The court found (Finding II, Tr. 72) the intervenors had made such general average payments, and also found in favor of intervenor Boston Insurance Company in the sum of $443.54, on the same basis, or a total general average recovery of $20,490.14.

In accordance with its finding of mutual fault the trial court divided the damages between the parties as required by maritime law. It found that each party suffered damages as follows:

                Weyerhaeuser Steamship Company
                  $27,652.13  physical and detention damages
                              of the S.S.F.E. Weyerhaeuser
                   16,000.00  paid to Ostrom in settlement
                              of suit against it
                  __________
                  $43,652.13  Total provable damages
                  United States of America
                  $16,949.12  physical and detention damages
                              of the Pacific
                   20,490.14  payable to intervening libelants
                              (insurance)
                  __________
                  $37,439.26  Total provable damages
                

(Finding of Fact IV, R. p. 74.) Since appellee's provable damages exceeded appellant's damages by $6,212.87, the court awarded appellee judgment in the sum of $3,106.44, plus interest. Appellant, claiming that the court erred in including the $16,000 personal injury award in appellee's provable costs, has taken this appeal.

Appellant does not deny the antiquity or propriety of the maritime rule requiring the apportionment of damages in cases of mutual fault. Appellant also does not deny that in most instances the apportionment rule applies to damages occasioned by personal injuries. Appellant does contend, however, that the apportionment rule does not apply to damages arising from an injury to any employee covered by the Federal Employees' Compensation Act. Under 5 U.S.C.A. § 757 (b), the liability of the United States under the Act, with respect to the injury or death of an employee is "exclusive, and in place, of all other liability of the United States * * * to the employee * * * and anyone otherwise entitled to recover damages from the United States * * * on account of such injury or death * * *." This statute on its face, then, does seem to save the United States harmless from any liability from injury to its employees other than that specified by the statute. The government points out that statutes such as these are "give and take" arrangements. The employer loses his defenses to the employee's action and the employee gets a remedy which is fast and certain. The employer, on the other hand, enjoys a liability which is limited and determinative. To permit recoveries beyond that specifically allowed by the Act would be subversive of the statutory scheme. This is so, appellant contends, even with respect to recoveries by third parties — what cannot be accomplished directly should not be permitted by the indirect means of a third party recovery.

That the Federal Employees' Compensation Act provides the sole remedy for injured employees of the United States is well established. That was the only question before the Supreme Court in Patterson v. United States, 1959, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971. And it affirmed Johansen v. United States, 1952, 343 U.S. 427, 441, 72 S.Ct. 849, 96 L.Ed. 1051, which states: The United States "has established by the Compensation Act a method of redress for its employees. There is no reason to have two systems of redress." 343 U.S. at page 439, 72 S.Ct. at page 856.¹

In furtherance of this policy it has been held that a joint tortfeasor may not seek contribution or indemnity from the United States when the joint tortfeasor is sued by the administrator of a deceased United States employee (Christie v. Powder Power Tool Corp., D.C.D.C. 1954, 124 F.Supp. 693). Appellee contends, however, that this case cannot control here, for it does not deal with the admiralty rule requiring apportionment of damages. Appellee points out that the trial court did not award it any sum as compensation for the injury suffered by Ostrom. Rather the award reflects the damage which appellee suffered as a result of the collision when it was required to compensate Ostrom for his injuries. In other words, appellee sought and received recovery in its own right for appellant's breach of duty to it under the maritime law; appellee claims that its right is not derivative from any right which Ostrom may have had.

The question presented here is a difficult one. Its resolution will abridge either the statutory policy or the maritime law. To allow a third party recovery against the United States on any ground is subversive of the statute limiting the liability of the United States. On the other hand, the money paid to Ostrom is an element of the total damages suffered by appellee. And failure to apportion such damages is a breach of the maritime rule — for the rule requires the apportionment of all damages suffered without regard to the fact that some of those damages stem from liabilities which could not be imposed against one of the parties but for the apportionment. The Chattahoochee, 1899, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801. There appear to be no cases which can be described as controlling, but there are some precedents which may be helpful.

With the first portion of our last statement appellee would not agree. It refers us to United States (The U.S.S. Ruchamkin) v. The S.S. Washington (Texas Co. v. United States), D.C.E.D.Va. 1959, 172 F.Supp. 905, affirmed without opinion, 4 Cir., 1959, 272 F.2d 711 (no petition for writ of certiorari filed).

It is true that Judge Bryan in the Washington-Ruchamkin case, supra, did grant Texas Company, the private shipowner, judgment against the United States (for one-half of the awards made against the Texas Company in favor of the heirs of four soldiers killed aboard the government vessel in the collision) — and also ordered such judgment without deduction for the veterans benefits already paid by the government to the soldiers' heirs. We point out two things. First: the Washington-Ruchamkin case was, unlike this present action, brought under the Death on the High Seas Act, 46 U.S.C.A. § 761. This action was brought under 46 U.S.C.A. §§ 781-790, the Public Vessels Act. Yet both Acts must be construed together in laying down the pattern and marking the restrictions under which the United States may be sued. Mejia v. United States, 5 Cir., 1945, 152 F.2d 686, certiorari denied 328 U.S. 862, 66 S.Ct. 1366, 90 L.Ed. 1632; United States v. Caffey, 2 Cir., 1944, 141 F.2d 69. Secondly: (and of greater importance) Judge Bryan listed four issues before him, after the fourth circuit had held "The Texas Company also at fault." The first three do not concern us here; the fourth assumes as admitted the very legal question here in issue.² We do not know why this admission was made by the government in the Washington case. But no such admission was made in the instant case. And, of course, the government is not estopped from taking a position here contrary to that it has invariably or occasionally taken previously. Utah Power & Light v. United States, 1917, 243 U.S. 389, 409, 37 S.Ct. 387, 61 L.Ed. 791; United States v. City and County of San Francisco, 1941, 310 U.S. 16, 32, 60 S.Ct. 749, 84 L.Ed. 1050.

Appellee concludes its references to the Washington case in its brief with the following appeal to the court's conscience:

"The fact is that the United States with knowledge of the admiralty mutual fault collision rule enacted a scheme of compensation for its employees injured in the performance of duty without reference to negligence. Insofar as Weyerhaeuser is concerned the employee\'s compensation has nothing to do with this collision and should have no bearing on Weyerhaeuser\'s right to have all the damages resulting from the collision mutually apportioned between the two vessels. Any other result would be grossly unfair."

Whether fair or unfair, the Supreme Court has established the rule that the United States cannot be burdened directly with tort liability for injuries sustained by its employees. We do not presume that if there had never been a retreat by the United States from its absolute nonliability as a sovereign, appellee could or would here maintain that such...