398 F.2d 167 (2nd Cir. 1968), 463, Ira S. Bushey & Sons, Inc. v. United States

Docket Nº:463, 32086.
Citation:398 F.2d 167
Party Name:IRA S. BUSHEY & SONS, INC., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
Case Date:June 19, 1968
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 167

398 F.2d 167 (2nd Cir. 1968)

IRA S. BUSHEY & SONS, INC., Plaintiff-Appellee,


UNITED STATES of America, Defendant-Appellant.

No. 463, 32086.

United States Court of Appeals, Second Circuit.

June 19, 1968

Argued April 30, 1968.

Page 168

Philip A. Berns, Washington, D.C., (Edwin L. Weisl, Jr., Asst. Atty. Gen., Joseph P. Hoey, U.S. Atty., Louis E. Greco, Atty. in Charge, New York Office, Admiralty and Shipping Section, Peter M. Klein, Atty., Admiralty and Shipping Section, Dept. of Justice), for the United States, appellant.

Christopher E. Heckman, New York City, Foley & Martin, New York City, for appellee Ira S. Bushey & Sons, Inc.

Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

FRIENDLY, Circuit Judge:

While the United States Coast Guard vessel Tamaroa was being overhauled in a floating drydock located in Brooklyn's Gowanus Canal, a seaman returning from shore leave late at night, in the condition for which seamen are famed, turned some wheels on the drydock wall. He thus opened valves that controlled the flooding of the tanks on one side of the drydock. Soon the ship listed, slid off the blocks and fell against the wall. Parts of the drydock sank, and the ship partially did-- fortunately without loss of life or personal injury. The drydock owner sought and was granted compensation by the District Court for the Eastern District of New York in an amount to be determined, 276 F.Supp. 518; the United States appeals. 1

Before reaching the merits, we must deal with a procedural issue injected by the district judge, since we would have no jurisdiction of the appeal if his decision of the question was correct. Although Bushey, the drydock owner, had brought its libel under the Public Vessels Act, 46 U.S.C. §§ 781-790, and the United States did not dispute the applicability of that statute save for unsuccessfully contending that Bushey must first present its claim to the Coast Guard Board of Contract Appeals, 2 the judge ruled that the damage to the drydock was not 'caused by a public vessel of the United States' since 'the Tamaroa was not, in a practical sense, a ship causing a 'collision,' but an inert mass.' 276 F.Supp. at 523. He then proceeded to hold (1) that sovereign immunity was nevertheless waived under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674, the exception in § 2680(d) for 'any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States' being inapplicable because, as he believed, no such remedy was provided; (2) that Bushey's pleading would be deemed amended to allege a claim under the Tort Claims Act which it had not asserted; (3) that New York law applied, 28 U.S.C. § 1346(b); (4) that this, however, was the 'whole' law of New York; and (5) that New York would, indeed must, determine liability for a tort on navigable waters in accordance with maritime law. Hence, from a substantive standpoint, the chase was thought to have ended where it began, save for a caveat as to the applicability of distinctive admiralty remedies, notably limitation, an issue not practically important here.

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What does remain important is that our powers to review a judgment determining liability but not fixing damages are entirely different if the action was in admiralty as the parties thought or at law as the judge held. If it was the former, we have jurisdiction under 28 U.S.C.§ 1292(a)(3) relating to 'interlocutory decrees * * * determining the rights and liability of the parties to admiralty cases in which appeals from final decrees are allowed,' whereas if it were the latter, we would have none. Beebe v. Russell, 60 U.S. (19 How.) 283, 285, 15 L.Ed. 668 (1856); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945).

We perceive no basis for the court's restrictive reading of the Public Vessels Act. It is no strain whatever on the language to say that a public vessel has 'caused' any tort damage for which she is legally responsible. Thomason v. United States, 184 F.2d 105 (9 Cir. 1950). The Act speaks of causing 'damage'; it says nothing about causing 'collision.' Such debate as there has been concerning the scope of the Public Vessels Act relates to claims sounding in contract, see Calmar S.S. Corp. v. United States, 345 U.S. 446, 456 n. 8, 73 S.Ct. 733, 738, 97 L.Ed. 1140 (1953), and even as to that 'equivocal language should be construed so as to secure the most harmonious results.' Id. Furthermore, and decisively, even if the judge's narrow reading of § 1 of the Public Vessels Act had been warranted, the suit could nevertheless be maintained under § 2 of the Suits in Admiralty Act as amended, 46 U.S.C. § 742. This provides, inter alia, that in cases where if any vessel owned by the United States 'were privately owned or possessed, * * * a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States * * *.'-- the language of the 1920 statute restricting the Suits in Admiralty Act to merchant vessels having been stricken in 1960, 74 Stat. 912, for the very purpose of avoiding fruitless jurisdictional controversies and bringing all maritime claims against United States vessels into the admiralty jurisdiction of the district courts. See S.Rep. 1894, 86th Cong. 2d Sess., 2 U.S. Code Cong. & Adm. News, p. 3583 et seq. 3

With our appellate jurisdiction under 28 U.S.C. § 1292(a)(3) thus established, we return to the facts. The Tamaroa had gone into drydock on February 28, 1963; her keel rested on blocks permitting her drive shaft to be removed and repairs to be made to her hull. The contract between the Government and Bushey provided in part:

(o) The work shall, whenever practical, be performed in such manner as not to interfere with the berthing and messing of personnel attached to the vessel undergoing repair, and provision shall be made so that personnel assigned shall have access to the vessel at all times, it being understood that such personnel will not interfere with the work or the contractor's workmen.

Access from shore to ship was provided by a route past the security guard at the gate, through the yard, up a ladder to the top of one drydock wall and along the wall to a gangway leading to the fantail deck, where men returning from leave reported at a quartermaster's shack.

Seaman Lane, whose prior record was unblemished, returned from shore leave a little after midnight on March 14. He had been drinking heavily; the quartermaster made mental note that he was 'loose.' For reasons not apparent to us or very likely to Lane, 4 he took it into his head, while progressing along the gangway wall, to turn each of three large

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wheels some twenty times; unhappily, as previously stated, these wheels controlled the water intake valves. After boarding ship at 12:11 A.M., Lane mumbled to an off-duty seaman that he had 'turned some valves' and also muttered something about 'valves' to another who was standing the engineering watch. Neither did anything; apparently Lane's condition was not such as to encourage proximity. At 12:20 A.M. a crew member discovered water coming into the drydock. By 12:30 A.M. the ship began to list, the alarm was sounded and the crew were ordered ashore. Ten minutes later the vessel and dock were listing over 20 degrees; in another ten minutes the ship slid off the blocks and fell against the drydock wall.

The Government attacks imposition of liability on the ground that Lane's acts were not within the scope of his employment. It relies heavily on § 228(1) of the Restatement of Agency 2d which says that 'conduct of a servant is within the scope of employment if, but only if: * * * (c) it is actuated, at least in part by a purpose to serve the master.' Courts have gone to considerable lengths to find such a purpose, as witness a well-known opinion in which Judge Learned Hand concluded that a...

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