Ionian Glow Marine, Inc. v. U.S., 81-1466

• Decision Date: 26 January 1982
• Docket Number: No. 81-1466,81-1466
• Citation: 670 F.2d 462
• Parties: In the Matter of the Complaint of IONIAN GLOW MARINE, INC., as Owner of the M/V STAR LIGHT for exoneration from or limitation of liability, Appellant, v. UNITED STATES of America, Appellee, and Donald Miller, Defendant, American Institute of Merchant Shipping, Council of American-Flay Ship Operators, Federation of American Controlled Shipping, The London Steam-Ship Owners' Mutual Insurance Association Limited, The North of England Protecting and Indemnity Association Limited, The Oceanus Mutual Underwriting Association (Bermuda) Ltd, The West of England Ship Owners Mutual Protection and Indemnity Association(Luxembourg), Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 462

670 F.2d 462

In the Matter of the Complaint of IONIAN GLOW MARINE, INC.,

as Owner of the M/V STAR LIGHT for exoneration

from or limitation of liability, Appellant, v. UNITED STATES of America, Appellee, and Donald Miller, Defendant,

American Institute of Merchant Shipping, Council of

American-Flay Ship Operators, Federation of American

Controlled Shipping, The London Steam-Ship Owners' Mutual

Insurance Association Limited, The North of England

Protecting and Indemnity Association Limited, The Oceanus

Mutual Underwriting Association (Bermuda) Ltd, The West of

England Ship Owners Mutual Protection and Indemnity

Association(Luxembourg), Amici Curiae.

No. 81-1466.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 8, 1981.

Decided Jan. 26, 1982.

Richard T. Robol, Charles R. Dalton, Jr., Norfolk, Va. (Seawell, Dalton, Hughes & Timms, Norfolk, Va., on brief), for appellant.

Thomas L. Jones, Dept. of Justice, Washington, D. C. (Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D. C., Justin W. Williams, U. S. Atty., Alexandria, Va., Mark A. Dombroff, Dept. of Justice, Washington, D. C., on brief), for appellee.

Kieron F. Quinn, M. Hamilton Whitman, Jr., Ober, Grimes & Shriver, Baltimore, Md., on brief, for amici curiae.

Before WIDENER, ERVIN and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge.

On March 4, 1979, the USS FRANCIS MARION and the M/V STAR LIGHT, a Greek flag cargo vessel collided off Cape Henry, Virginia. Both vessels sustained damages. Two Navy officers and a crewman on board the FRANCIS MARION were injured.

Appellant, Ionian Glow Marine, Inc., owner of the M/V STAR LIGHT brought suit seeking apportionment of damages under the divided damage rule in mutual fault collision cases in admiralty. The parties agreed that 65 percent of the government's provable damages would be paid by Ionian Glow and 35 percent of Ionian Glow's provable damages would be paid by the government. The issue of what damages were provable was left for the district court's determination.

As part of its provable damages, appellant claims $700,000 it paid in settlement of claims brought by the three injured servicemen. The servicemen's exclusive remedy against the government is a compensation claim under Veterans Benefits Act, 38 U.S.C. § 321 et seq. The government argues that to require it to pay 35 percent of Ionian Glow's settlement with the servicemen would subject it to indirect liability on a claim that could not directly be brought against the government. The district court agreed, holding that such a recovery would run afoul of the rule in Feres v. U. S., 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and Stencel Aero Engineering Corp. v. U. S., 431 U.S. 666, 97 S.Ct. 2654, 52 L.Ed.2d 665 (1977). The only issue on appeal is whether the payments made to the three servicemen are proper items of appellant's damages. We hold that they are.

The Supreme Court in Feres held that servicemen could not bring an action against the government under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. for injuries sustained while on duty. This rule was extended to indemnity suits brought against the government by third parties who had paid servicemen's claims in Stencel Aero. It is, therefore, beyond question that if this present suit were in the form of an indemnity suit under the FTCA it would be barred. We are faced instead with a mutual fault collision case in admiralty under the long established rule of divided damages. The crucial question is how that traditional rule is affected by the Feres-Stencel Aero doctrine. We think that it is not.

The question of whether immunity of one shipowner from suirty prevents the other shipowner in a mutual fault collision from including as a proper item of damages payment of claims to...