Inland Waterways Corp. v. Doyle, 14553.

• Decision Date: 16 June 1953
• Docket Number: No. 14553.,14553.
• Citation: 204 F.2d 874
• Parties: INLAND WATERWAYS CORP. et al. v. DOYLE.
• Court: U.S. Court of Appeals — Eighth Circuit

204 F.2d 874 (1953)

INLAND WATERWAYS CORP. et al. v. DOYLE.

No. 14553.

United States Court of Appeals Eighth Circuit.

June 16, 1953.

Leavenworth Colby, Special Asst. to the Atty. Gen. (Holmes Baldridge, Asst. Atty. Gen., and George L. Robertson, U. S. Atty., St. Louis, Mo., were with him on the brief), for appellants.

Douglas MacLeod, St. Louis, Mo., for appellee.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

William A. Doyle, in October 1947, was a civil service seaman on the steam towboat "St. Louis," a merchant vessel owned and operated by the Inland Waterways Corporation, a wholly owned instrumentality of the United States. He was injured in the course of his employment on October 7 and 22, 1947, when he fell, due to oil on the soles of his shoes and on the steps of the metal stairs leading from the upper deck of the vessel's engine room to the lower deck. The presence of oil on Doyle's shoe soles and the steps was the result of the engines of the vessel being inadequately enclosed and throwing oil "more or less continuously" on the metal plates of the lower deck of the engine room, whence it was carried on the shoes of the crew to the steps or stairs on which Doyle fell.

Sometime prior to October 30, 1947, the day Doyle left the vessel at St. Louis, Missouri, he signed, at the instance of the Master and in the presence of the boat's Clerk, the customary Bureau of Employees Compensation forms "Employee's Notice of Injury" and "Request for Treatment" for injuries received in line of duty. The Clerk had filled out these papers, and he advised Doyle that, under the Federal Employees' Compensation Act of 1916, 39 Stat. 742, 5 U.S.C.A. § 751 et seq., he could not receive at the same time compensation and accumulated leave pay, and suggested that Doyle wait until his paid leave expired on December 5, 1947, before filing a claim for compensation. Doyle was not informed by anyone that he had any other remedies or rights.

Upon presentation of the "Request for Treatment" form, Doyle received treatment and hospitalization from the United States Public Health Service, as an Employees' Compensation Commission patient.

In December 1947, while at the United States Marine Hospital at Kirkwood, Missouri, Doyle, with the assistance of the United States Health Service personnel, executed Bureau of Employees' Compensation form "Claim for Compensation" covering the period December 6, 1947, to December 22, 1947, and on March 3, 1948, he executed a form "Claim for Continuance of Compensation," with a supporting affidavit.

Doyle received one compensation check from the Bureau. The check was dated May 25, 1948, and was drawn on the Treasurer of the United States in the amount of $65.20, covering the period December 6, 1947, to December 22, 1947. Doyle did not cash the check, but retained it from the time he received it in the latter part of May, 1948, until it was returned by his attorney on December 9, 1948.

Doyle thereafter sued the Inland Waterways Corporation and the United States in admiralty to enforce his alleged rights under the Merchant Marine Act of 1920, known as the Jones Act, 46 U.S.C.A. § 688,¹ and for redress under the Suits in Admiralty Act of 1920, 41 Stat. 525, 46 U.S. C.A. § 741 et seq.² His amended libel, filed February 6, 1951, contained two counts. In the first count he asserted his right to damages for actionable negligence of the respondents (appellants). In the second count, in reliance "upon his ancient maritime rights, enforceable against the respondents by virtue of the Suits in Admiralty Act," he asserted his rights to maintenance, care and cure.

The respondents in their answer denied that Doyle could enforce any rights under the Merchant Marine (Jones) Act or could obtain redress under the Suits in Admiralty Act. They asserted that in accepting medical treatment for his injuries, and making claim for and receiving compensation under the Federal Employees' Compensation Act, he had elected to pursue his remedy under that Act and was barred from maintaining an action in admiralty. The respondents also asserted that the award of compensation to Doyle by the United States Employees' Compensation Commission constituted an adjudication of his rights to recover for his injuries. They further alleged that Doyle had no ancient maritime rights enforceable against respondents under the Suits in Admiralty Act.

The case was tried to the court, which found the facts to be substantially as we have stated them. The court determined that Doyle was injured in line of duty as the result of respondents' negligence; that as a seaman injured in the service of his vessel he was entitled under the General Maritime Law to maintenance and cure at the expense of his employer, and that as an American seaman with more than sixty days service on United States vessels he was entitled by statute to the medical treatment he received from the United States Public Health Service, "in addition to, and notwithstanding his eligibility for such treatment as a civil service employee of the United States"; that in this regard he "received nothing by way of `Compensation' that he was not entitled to get, irrespective of the Compensation Act"; and that, therefore, "and also by virtue of the failure of the respondents to meet their burden of proving that he applied for Compensation under the Act with full understanding of his rights," Doyle had made no binding election to proceed under the Federal Employees' Compensation Act, and was entitled to litigate this suit. The court awarded him $820 as damages under the first count of his libel, and $430 for maintenance and cure under the second count. From the ensuing judgment, the respondents have appealed.

Two questions are presented for review, neither of which is free from doubt. (1) Was Doyle's remedy under the Federal Employees' Compensation Act exclusive? (2) If not, did he make a binding election to pursue his remedy under the Act?

We have no doubt that Doyle was sufficiently an employee of the United States to come within the coverage of the Federal Employees' Compensation Act, although in 1947 the Act did not, as it does now through amendment in 1949, expressly include employees of wholly owned Government instrumentalities. See 63 Stat. 854, 860; 5 U.S.C.A. § 790(b). The amendments of 1949 made the liability of the United States or its instrumentalities under the Federal Employees' Compensation Act exclusive, but contained provisos the effect of which "was not to alter the rights of seamen in any way." Johansen v. United States, 343 U.S. 427, 436, 72 S.Ct. 849, 855, 96 L.Ed. 1051.

The Supreme Court, in Johansen v. United States (together with Mandel, Administrator, v. United States), 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051, held that the exclusive remedy of a civilian employee of the Government who was a member of the crew of a "public vessel" of the Government and who through negligence suffered injury or death in the performance of his duties, was under the Federal Employees' Compensation Act, and that he could not maintain a suit against the Government for damages under the Public Vessels Act of 1925, 43 Stat. 1112, 46 U.S.C.A. § 781 et seq.

The respondents contend that the reasons upon which the opinion of the Supreme Court in the Johansen case is based require a ruling that the exclusive remedy of a civilian member of the crew of a "merchant vessel" of the United States who is injured in the course of his employment, due to negligence of the Government, is under the Federal Employees' Compensation Act, and that he is precluded from maintaining an action under the Suits in Admiralty Act.

In the Johansen case, the Supreme Court said on page 439 of 343 U.S., on page 857 of 72 S.Ct.:

"The Federal Employees Compensation Act, 5 U.S.C. § 751 et seq., 5 U.S. C.A. § 751 et seq., was enacted to provide for injuries to Government employees in the performance of their duties. It covers all employees. Enacted in 1916, it gave the first and exclusive right to Government employees for compensation, in any form, from the United States. It was a legislative breach in the wall of sovereign immunity to damage claims and it brought to Government employees the benefits of the socially desirable rule that society should share with the injured employee the costs of accidents incurred in the course of employment. Its benefits have been expanded over the years. See 5 U.S.C. (Supp. III) § 751 et seq., 5 U.S.C.A. § 751 et seq. Such a comprehensive plan for waiver of sovereign immunity, in the absence of specific exceptions, would naturally be regarded as exclusive."

The court pointed out that the Government, as the operator of its own public vessels, had established by the Compensation Act a method of redress for employees, and said, "There is no reason to have two systems of redress." Page 439 of 343 U.S., page 856 of 72 S.Ct. The court disapproved the decision in United States v. Marine, 4 Cir., 155 F.2d 456, which allowed recovery to a civilian employee of the Government not a member of the crew of the merchant vessel involved under the Suits in Admiralty Act, and the decision in Johnson v. United States, 4 Cir., 186 F.2d 120, which allowed recovery to a civilian seaman on a public vessel of the United States, under the Public Vessels Act. Page 439 of 343 U.S., page 856 of 72 S.Ct.

What we have said thus far of the opinion in the Johansen case would seem to indicate that the remedy of a civilian seaman employed by the Government on any of its vessels, whether "public" or "merchant," is exclusively that provided by the Federal Employees' Compensation Act. There are, however, a number of statements in the opinion which indicate that the Supreme Court thought that the rights and remedies of such seamen depended upon whether the vessel upon which they were employed was a "public vessel" or a "merchant vessel." Thus, on pages 428 and 429 of 343 U.S., on ...