Allen v. United States

• Decision Date: 31 December 1952
• Docket Number: No. 13034.,13034.
• Citation: 201 F.2d 263
• Parties: ALLEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

201 F.2d 263 (1952)

ALLEN v. UNITED STATES.

No. 13034.

United States Court of Appeals Ninth Circuit.

December 31, 1952.

Fall & Hayton, David A. Fall, San Pedro, Cal., for appellant.

James R. Browning, Acting Asst. Atty. Gen., Walter L. Binns, U. S. Atty., Los Angeles, Cal., Leavenworth Colby and Keith Ferguson, Sp. Assts. to Atty. Gen., Bernard B. Laven, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.

DENMAN, Chief Judge.

This is an appeal from a decree in admiralty dismissing a libel in which Allen sought (a) to recover damages for tuberculosis caused by the unseaworthy conditions on vessels in which the United States required him to serve in the Pacific in the Second World War and (b) under a provision of his contract for wages during his incapacity from his tuberculosis.

A. So far as concerns Allen's claim that he is entitled to recover for his injuries arising from employing him on vessels under unseaworthy conditions, causing his tuberculosis, it appears that he himself states that on August 14, 1947, he was entered at the Aiea Naval Hospital for treatment of bilateral pulmonary tuberculosis. Respondent's Exhibit A, page 26A, Appellee's brief. His amended libel, stating for the first time this cause of action, was not filed until October 14, 1949, more than the two years after Allen's cause of action arose. Hence the action is barred by the Suits in Admiralty Act, 46 U.S.C.A. § 745 and the Public Vessels Act, 46 U.S. C.A. § 781. This assumes that the cause of action did not arise until Allen knew of his tubercular condition, a condition he claims is supported by Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282. If, as claimed by the United States, the statute begins to run on the day after the last day of the voyage on which Allen was exposed to the unseaworthy conditions, the statute began to run on July 8, 1947.

B. As to Allen's claim for wages during disability, it is based on provisions of his first contract of employment of May 21, 1944, which Allen claims were embodied in a second contract of employment of date March 14, 1945. We do not have to pass on the question whether the second contract contained the provisions of the first, for if it does they constitute no claim for payment of wages during disability.

The first contract had two clauses, 7 and 8, one for straight wages during disability and the other for compensation under the Federal Employees Compensation Act, 5 U.S.C.A. § 751 et seq. Clause 7 provides that "In the event of illness or injury occasioned by his employment but not due to the Employee's misconduct, the base wages of the Employee will continue during the period of such incapacity."

This was followed by Clause 8 reading: "The Employee shall be subject to the benefits as he may be entitled to under the United States Employees' Compensation Act of September 7, 1916, as amended, for injury sustained while on the performance of his duty." That Act provides:

"Sec. 1. That the United States shall pay compensation as hereinafter specified for the disability or death of an employee resulting from a personal injury sustained while in the performance of his duty * * *.

"Sec. 7. That as long as the employee is in receipt of compensation under this Act, or, if he has been paid a lump sum in commutation of installment payments, until the expiration of the period during which such installment payments would have continued, he shall not receive from the United States any salary, pay, or remuneration whatsoever except in return for services actually performed, and except pensions for service in the Army or Navy of the United States." (Emphasis supplied.)

These provisions of the act are as much a part of Allen's contract with the government as if they were written in it. By choosing to accept the award of disability...