Blanco v. U.S.

• Decision Date: 15 October 1985
• Docket Number: No. 85-6044,85-6044
• Citation: 775 F.2d 53
• Parties: Fidel Catarino BLANCO, as Administrator of the Goods, Chattels and Credits of Catarino Blanco, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 53

775 F.2d 53

1986 A.M.C. 1130

Fidel Catarino BLANCO, as Administrator of the Goods Chattels and Credits of Catarino Blanco, Deceased Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 85-6044.

United States Court of Appeals Second Circuit.

Argued May 20, 1985.

Decided Oct. 15, 1985.

Paul S. Edelman, New York City (Kreindler & Kreindler, New York City), for plaintiff-appellant.

Janis G. Schulmeisters, Atty. in Charge, Torts Branch, Civil Division, Dept. of Justice, New York City (Rudolph W. Giuliani, U.S. Atty., Dept. of Justice, New York City), for defendant-appellee.

Before FRIENDLY and PRATT, Circuit Judges, and METZNER, ^* District Judge.

FRIENDLY, Circuit Judge:

This appeal in a suit in admiralty for the wrongful death of a seaman, begun more than seven years ago and never tried, raises interesting questions, some seemingly of first impression, too numerous for summarization. We affirm.

The facts, gleaned from the complaint and other papers, are as follows: Plaintiff, a citizen of the United States, was granted limited letters of administration by the Surrogate's Court of Bronx County, New York, for the purpose of filing this suit in admiralty against the United States for the wrongful death of his father, Catarino Blanco, also a United States citizen. Catarino had been employed by the United States through an operating agent, Marine Transport Lines, Inc. (MTL), as a seaman on the USNS Sealift Atlantic. Allegedly, on or about April 16, 1977, while the Sealift Atlantic was on the high seas, Catarino Blanco became "extremely mentally unstable and was experiencing hallucinations that someone was trying to kill him." A superior officer ordered him sent to the vessel's hospital. However, due to inadequate supervision, he was able to walk out of the hospital and went overboard. He was survived by his wife and thirteen children, all Honduran nationals except for one son, Fidel Catarino Blanco, plaintiff in the present suit.

The complaint predicated the jurisdiction of the court to entertain the suit against the United States on the Public Vessels Act (PVA), 46 U.S.C. Sec. 781 et seq., or, alternatively, on the Suits in Admiralty Act (SIAA), 46 U.S.C. Sec. 741 et seq. The difference between them which is significant in the present context is that the PVA contains a provision, 46 U.S.C. Sec. 785 (the "reciprocity clause"), having no counterpart in the SIAA, which provides:

No suit may be brought under this chapter by a national of any foreign government unless it shall appear to the satisfaction of the court in which suit is brought that said government, under similar circumstances, allows nationals of the United States to sue in its courts.

Although the complaint did not refer to any statute creating a cause of action, the United States does not dispute that, absent its defense under the reciprocity clause of the PVA, the plaintiff could appropriately have relied on the Jones Act, 46 U.S.C. Sec. 688, or the Death on the High Seas Act, 46 U.S.C. Sec. 761 et seq.

The United States pleaded the reciprocity clause of the PVA as an affirmative defense. Plaintiff moved to strike this and the United States cross-moved to dismiss the complaint. Judge Cooper denied plaintiff's motion and granted the motion of the United States with leave to plaintiff to amend his complaint "to allege reciprocity as required by the jurisdictional provisions of the Public Vessels Act." 464 F.Supp. 927, 934 (S.D.N.Y.1979).

Plaintiff then submitted an amended complaint that was identical to his original complaint but for the addition of a confused allegation concerning reciprocity. ¹ Thus matters rested for three years until plaintiff, represented by new counsel, moved on April 28, 1982, for reconsideration of the 1979 order. The first ground of the motion was allegedly newly discovered evidence that the Sealift Atlantic was not owned by the United States and therefore, in counsel's view, was not a public vessel, permitting jurisdiction to be predicated on the SIAA rather than the PVA and thereby removing Sec. 785 as an obstacle. The second ground rested on the American citizenship of the decedent and of plaintiff, his personal representative, which plaintiff contended made Sec. 785 inapplicable, and also on Articles I and II of the Treaty of Friendship, Commerce and Consular Rights between the United States and Honduras (the "Honduras Treaty"), 45 Stat. 2618 (1929), proclaimed on July 23, 1928, which plaintiff contended had superseded Sec. 785 with respect to wrongful death actions on behalf of Honduran nationals. Nothing was said about the amended complaint.

In June 1982 the Government submitted answering affidavits containing facts about the Sealift Atlantic. It is one of nine Sealift-class tankers, all of which are privately owned but were built for bareboat charter to the United States for a period of five years, with renewal options totaling 20 years. The Sealift Atlantic operates as part of the Navy's Military Sealift Command under schedules fixed by the Command, transporting Department of Defense petroleum products in furtherance of the nation's defense. Personnel are hired and the details of operations are conducted by MTL under the Navy's orders.

On December 1, 1982, Judge Cooper denied plaintiff's motion as untimely under Rule 3(m) of the Local Rules of Civil Procedure for the Southern District of New York and its successor, Rule 3(j), which require that motions for reconsideration be "served within ten (10) days after the filing of the court's determination of the original motion," and under the one-year limitation in F.R.Civ.P. 60(b) applicable to motions based on mistake, inadvertence or newly discovered evidence.

On October 18, 1983, counsel for plaintiff moved a second time for reconsideration, alleging that Judge Cooper had agreed at a conference held on October 6, 1983, to allow another motion solely on the issue of whether the Honduras Treaty took precedence over the reciprocity clause of the PVA. Again, nothing was said about the allegation in the amended complaint that the reciprocity clause had been satisfied. The Government opposed both on the merits and for repetitiveness and untimeliness. On December 27, 1983, the court denied the motion.

Nothing having been done by plaintiff to pursue the amended complaint, the court, on January 31, 1985, entered an order reciting:

The above entitled cause having been dismissed pursuant to our Memorandum filed December 28, 1983, it is

ORDERED that this action is statistically closed.

Finally, on February 22, 1985, the court, at plaintiff's request, entered a judgment dismissing the action, which we quote in the margin. ² Six days later plaintiff filed a notice of appeal from this judgment, as well as from the opinion and orders of February 14, 1979, December 1, 1982, December 27, 1983, and January 31, 1985.

DISCUSSION

I. Appealability

The Government contends that the appeal was untimely since it should have been taken within 60 days from the filing of the 1979 opinion and order or, in the alternative, from the filing of one or the other of the two orders denying reconsideration. There is no merit in this contention. No final decision was rendered by the district court until it filed its judgment on February 26, 1985, dismissing the complaint. It is well established that a district court's order dismissing a complaint with leave to amend is not final and therefore not then appealable. See Elfenbein v. Gulf & Western Industries, Inc., 590 F.2d 445, 448 (2 Cir.1978); see also 9 Moore's Federal Practice p 110.08, at 115 n. 27 (1985) (citing cases). If the 1979 order was not final and appealable, orders refusing to reconsider it likewise could not have been. Indeed, the district court erred each time in considering plaintiff's motions to have been made under F.R.Civ.P. 60(b), since that section of the rule relates only to the reconsideration of final judgments and orders. See 7 Moore's Federal Practice, supra, p 60.20. ³

II. Applicability of the Public Vessels Act

Section 781 of the PVA provides:

A libel in personam in admiralty may be brought against the United States, or a petition impleading the United States, for damages caused by a public vessel of the United States, and for compensation for towage and salvage services, including contract salvage, rendered to a public vessel of the United States: Provided, That the cause of action arose after the 6th day of April, 1920.

Section 742 of the SIAA provides, in pertinent part:

In cases where if ... [a vessel owned by, in the possession of, or operated by or for the United States or any wholly owned corporation of the United States] were privately owned or operated, ... or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States or against such corporation.

Although the two statutes overlap on their face, actions involving public vessels are not cognizable under the SIAA but must be brought solely under the PVA. ⁴

Plaintiff contends that suit in this case is properly brought under the SIAA and the reciprocity clause of the PVA is therefore inapplicable because the Sealift Atlantic is not a public vessel. One of the conditions to being a public vessel--use as directed by the government exclusively for a public purpose--is clearly met in this case. As stated above, the Sealift-class tankers are engaged solely in non-commercial public service under the direction of the Military Sealift Command. The term "public vessel" was not intended to be limited to warships. ⁵ While there is equally little merit in plaintiff's claim that the Sealift Atlantic is not a public vessel because she is privately owned, though bareboat chartered to the United States, it may be well to discuss this at greater length in order to save the time of other courts that may be...