Boston Sand & Gravel Co. v. United States

• Decision Date: 04 June 1927
• Docket Number: No. 2118.,2118.
• Court: U.S. Court of Appeals — First Circuit
• Parties: BOSTON SAND & GRAVEL CO. v. UNITED STATES.

19 F.2d 744 (1927)

BOSTON SAND & GRAVEL CO. v. UNITED STATES.

No. 2118.

Circuit Court of Appeals, First Circuit.

June 4, 1927.

Foye M. Murphy, of Boston, Mass. (Edward A. Neiley and Blodgett, Jones, Burnham & Bingham, all of Boston, Mass., on the brief), for appellant.

A. Chesley York, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

The main question in this admiralty appeal is whether the United States is liable for interest on damages awarded under a special act not specifically providing for interest. The appellant filed on May 29, 1922, a libel to recover damages arising out of a collision of the United States government destroyer Bell with the Cornelia, on August 9, 1918, in Broad Sound Channel in Boston Harbor. On appeal from a finding in favor of the government, this court held (7 F.2d 278) both vessels at fault and that the damages to the vessels should be divided. On proceedings pursuant to the mandate, the court below, affirming a finding of the commissioner, entered judgment for the libelant for $45,542.34, one-half the damages, without interest, and for one-half the costs in that court. By this appeal the appellant seeks to recover interest at 6 per cent. from the date of the collision, and full costs. The suit is brought under a special act of May 15, 1922, 42 Stat. 1590, which reads:

"That the claim of the owner of the steam lighter Cornelia arising out of a collision between said steam lighter and the United States destroyer Bell in Broad Sound, Boston Harbor, Massachusetts, on the ninth day of August, 1918, for and on account of the losses alleged to have been suffered in said collision by the owner of said steam lighter Cornelia by reason of damages to or the loss of said steam lighter, her boats, engines, boilers, tackle, apparel, furniture, and supplies, may be submitted to the United States court for the district of Massachusetts, under and in compliance with the rules of said court sitting as a court of admiralty; and that the said court shall have jurisdiction to hear and determine the whole controversy and to enter a judgment or decree for the amount of the legal damages sustained by reason of said collision, if any shall be found to be due either for or against the United States, upon the same principle and measure of liability with costs as in like cases in admiralty between private parties with the same rights of appeal: Provided, that such notice of the suit shall be given to the Attorney General of the United States as may be provided by order of the said court, and it shall be the duty of the Attorney General to cause the United States attorney in such district to appear and defend for the United States: Provided, further, that said suit shall be brought and commenced within four months of the date of the passage of this act."

The appellant's chief reliance is a decision by the Circuit Court of Appeals for the Second Circuit, dated January 10, 1927. New York & Cuba Mail S. S. Co. v. United States, 16 F.(2d) 945, 947. In that case that learned court, construing the special act of February 28, 1923 (42 Stat. 1778), which mutatis mutandis is identical with the act here in question, sustained the claim for interest, overruling the court below. The grounds of that decision appear in the following excerpt from the opinion of Circuit Judge Manton:

"By the authority of the statute, the appellee may maintain its libel, as it would between private parties. In a suit between private parties in admiralty growing out of collision, it has long been settled that interest is awarded as part of the measure of damages. The object of the award of damages is to place the injured party in the same pecuniary position as he would have been in but for the collision.

"This principle has been referred to in admiralty as that of the right to a full and complete indemnity. The phrase, the legal `damages * * * found to be due * * * upon the same principles and measures of liability as in like cases in admiralty between private parties,' when given the interpretation intended by Congress in this enactment, included an award of interest, as is allowed in the case of a litigation between private parties in admiralty. The United States is not liable to pay interest, in the absence of a statutory provision to that effect, except where it has contracted to pay it, or where the United States submits itself to the jurisdiction of the court, or, if sued, places itself in the position of a private party. United States v. Thekla, 266 U. S. 340, 45 S. Ct. 112, 69 L. Ed. 313. Interest may be provided for by the name of legal damages. Congress has done so in granting this relief to private parties, where a vessel has been injured in collision with a public vessel. We must give to the language employed its ordinary and accepted meaning. We must presume that Congress intended that the principle of `restitutio in integrum' should be applied, as it is in cases in admiralty of like nature between private parties. In The Paquete Habana, 189 U. S. 453, 23 S. Ct. 593, 47 L. Ed. 900; Nuestra Señora de Regla, 108 U. S. 92, 2 S. Ct. 287, 27 L. Ed. 662.

"In U. S. ex rel. Angarica v. Bayard, 127 U. S. 251, 8 S. Ct. 1156, 32 L. Ed. 159, interest was disallowed, and this because interest is not collectible against the government, except where the government stipulates to pay interest, or where interest is given expressly by an act of Congress, either by the name of interest or by that of damages. That case is distinguishable because there was no such exception. In Seaboard Air Line Ry. v. United States, 261 U.S. 299, 43 S. Ct. 354, 67 L. Ed. 664, the Supreme Court pointed out the exception within the doctrine of the Angarica Case, where a statute employed terms so comprehensive as to require allowance of interest, and allowed interest as just compensation. The present act of Congress, upon which this libel is maintainable, provides for the jurisdiction, adjudication of conflicting claims of the government and a citizen, and requires such adjudication, including the measure of damages, to be made in the same legal method as private controversies are adjudicated. The intention of Congress is clear and explicit to grant full indemnity in the award against the United States, if any is made. Indemnity is not complete without interest. The admiralty courts in suits against private persons have always followed this rule. We think Congress intended that it should be followed in this instance."

We agree with that court that the question is purely one of statutory construction; what was the intent of Congress? The difficulty we find in according with the conclusion there reached is grounded in large part on the history of analogous legislation.

We start with the well-settled principle that the United States is not liable to pay interest on claims against it, in the absence of a plain statutory provision to that effect. In United States v. Bayard, 127 U. S. 251, 260, 8 S. Ct. 1156, 1161 (32 L. Ed. 159) the court said:

"It has been established as a general rule, in the practice of the government, that...