F. & M. Schaefer Brewing Co. v. United States
| Decision Date | 03 March 1954 |
| Docket Number | Civ. A. No. 8148. |
| Citation | 121 F. Supp. 322 |
| Parties | F. & M. SCHAEFER BREWING CO. v. UNITED STATES (MORRIS & CUMINGS DREDGING CO. third-party defendant). |
| Court | U.S. District Court — Eastern District of New York |
Hagen & Eidenbach, New York City, for plaintiff; by Henry C. Eidenbach, New York City, of counsel.
Leonard P. Moore, U. S. Atty., Brooklyn, N. Y., for defendant and third party plaintiff; by Louis E. Greco, New York City, of counsel.
Burlingham, Hupper & Kennedy, New York City, for third party defendant; by Adrian J. O'Kane, New York City, of counsel.
This action was instituted on June 3, 1947 by plaintiff against the United States of America under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., for the recovery of damages arising from the collapse of plaintiff's bulkhead and dock, fronting on the east side of Wallabout Bay and Channel in Brooklyn, New York. Plaintiff claimed that the collapse was the result of negligent dredging operations conducted by the Navy Department in the vicinity of plaintiff's property.
It is not disputed that between March 29, 1945 and April 21, 1945 the Navy Department conducted dredging operations in the vicinity of plaintiff's property for the purpose of berthing the Aircraft Carrier Coral Sea (later renamed the Franklin D. Roosevelt), after the vessel's launching from the Brooklyn Navy Yard where it was then under construction. The dredging work was actually performed by Morris and Cumings Dredging Co. under a contract with the government.
The bulkhead collapsed on June 28, 1946 approximately fourteen months after the completion of the dredging operations.
In this action, which was commenced on June 3, 1947, plaintiff has sued only the United States of America and has not asserted any claim against the third party defendant, Morris and Cumings Dredging Co. Perhaps the Statute of Limitations has now run on such a claim. However, on February 17, 1950 a third party complaint was filed by the United States of America against the said dredging company, seeking only indemnity or contribution in the event the Government was held liable.
At a pretrial hearing held before me the Government requested leave to amend the Ninth allegation of its answer to read as follows:
"Ninth: The dredging of Wall-about Creek referred to in Paragraph Third of the complaint constituted (1) a discretionary governmental function for which the Government has not consented to be sued and which is specifically excluded under Section 2680, Title 28 U.S.C.A.,...
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...questioned in Mahler v. United States, 306 F.2d 713 (3 Cir., 1962). An opposite result was reached in F. M. Schaefer Brewing Co. v. United States, 121 F.Supp. 322 (E.D. N.Y., 1954). 13 The 15% loss is the same estimate as in the case at ...
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...In addition to the three cases cited by the Supreme Court above, similar rulings have been made in F. & M. Schaefer Brewing Co. v. United States, 121 F. Supp. 322 (E.D.N.Y.1954) and in Thomas v. United States, 81 F.Supp. 881 (W. D.Mo.1949). The Schaefer case presents a fact situation extrem......
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