Jentry v. United States

• Decision Date: 14 October 1947
• Docket Number: No. 5816.,5816.
• Citation: 73 F. Supp. 899
• Court: U.S. District Court — Southern District of California
• Parties: JENTRY v. UNITED STATES.

73 F. Supp. 899

JENTRY v. UNITED STATES.

No. 5816.

District Court, S. D. California, Central Division.

October 14, 1947.

David A. Fall, of San Pedro, Cal., for libelant.

James M. Carter, U. S. Atty., and Robert E. Wright, Asst. U. S. Atty., both of Los Angeles, Cal. (Leavenworth Colby, of Washington, D. C., Atty., Admiralty & Shipping Section, Department of Justice, of counsel), for respondent.

MATHES, District Judge.

Libelant, formerly "an employee of the United States of America by and through the Army Transport Service", filed this libel in personam against the United States for allegedly unpaid wages and bonus.

The libel avers that libelant served as able-bodied seaman aboard various army transports and tugs from April 6, 1944 until March 30, 1945 pursuant to a written contract of employment with the Army Transport Service providing for certain base pay plus war bonuses; that certain overtime, together with area war bonus of $5 per day for all service in the Pacific Ocean west of the 180th Meridian, accrued to libelant under the contract and remains unpaid.

Consent to invoke the admiralty jurisdiction of this court to enforce his claim against the Government is found, libelant asserts, in the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq. The Government has filed exceptions urging that the libel fails to allege facts sufficient to show the jurisdiction of this court over the person of respondent in this cause. Cf. United States Shipping Board Emergency Fleet Corporation v. Rosenberg Bros., 1927, 276 U.S. 202, 214, 48 S.Ct. 256, 72 L.Ed. 531. Attached to these exceptions are exceptive allegations to the effect that the sovereign has never consented to be sued on a claim arising under the circumstances said to be involved here.

The United States of America, as sovereign, consents to be sued when the nature of the claim and the circumstances of suit are such as fall within the provisions of the Tucker Act of March 3, 1887, 28 U.S.C.A. § 41(20); or the Suits in Admiralty Act of March 9, 1920, 46 U.S.C.A. § 741 et seq.; or the Public Vessels Act of March 3, 1925, 46 U.S.C.A. § 781 et seq.; or the War Shipping Administration (Clarification) Act of March 24, 1943, frequently referrred to as Public Law 17, 50 U.S.C.A. Appendix, § 1291; or the Federal Tort Claims Act of August 2, 1946, 28 U.S.C.A. § 921 et seq.—and not otherwise. Reid v. United States, 1909, 211 U.S. 529, 538, 29 S.Ct. 171, 53 L. Ed. 313.

Libelant's claim is clearly not within the scope of the Federal Tort Claims Act. It is of the character dealt with in the Tucker Act, but in that Act Congress has expressly withheld consent to sue the Government in this court on claims for fees, salary and compensation of "officers of the United States". 28 U.S.C.A. § 41(20). This exception is applied to every grade of employee of the Federal Government; hence to libelant as "an employee of the United States of America by and through the Army Transport Service." United States v. Hartwell, 73 U.S. 385, 393, 6 Wall. 385, 393, 18 L.Ed. 830; Kennedy v. United States, 5 Cir., 1944, 146 F. 2d 26, 28; Oswald v. United States, 9 Cir., 1938, 96 F.2d 10, 13.

The exceptive allegations represent that during the period of libelant's employment the Government vessels mentioned in the libel were operated "by the Army Transport Service, Transportation Corps, United States Army, an agency of the War Department * * * and * * * employed exclusively as public vessels of the United States and not as merchant vessels nor in any commercial operations." In the absence of objection by libelant, I shall assume these to be facts which should be judicially noticed. Pfeil et al. v. United States, D.C.E.D.N.Y.1923, 287 F. 265; The Seminole, D.C.E.D.N.Y.1890, 42 F. 924; cf. The Rosalia, 2 Cir., 1920, 264 F. 285, 289.

If the ships on which libelant served were not then being employed as merchant vessels 46 U.S.C.A. § 742, the Suits in Admiralty Act cannot be the source of consent to sue the sovereign in this action. Shewan & Sons v. United States, 1924, 266 U.S. 108, 111, 45 S.Ct. 45, 69 L.Ed. 192; The Western Maid (United States v. Thompson), 1922, 257 U. S. 419, 431, 432, 42 S.Ct. 159, 66 L.Ed. 299; Bradey v. United States, 2 Cir., 1945, 151 F.2d 742, certiorari denied 1946, 326 U.S. 795, 66 S.Ct. 484, 90 L.Ed. 483.

And since the so-called Clarification Act of 1943 is applicable only to "employees of the United States through the War Shipping Administration" 50 U.S.C. A.Appendix, § 1291, consent to sue the Government on the claim at bar for services as "an employee of the United States by and through the Army Transport Service" is not granted in Public Law 17. Lopez v. United States, D.C.S.D.N.Y.1944, 59 F.Supp. 831; cf. Fox v. Alcoa S. S. Co., 5 Cir., 1943, 143 F.2d 667, certiorari denied 1944, 323 U.S. 788, 65 S.Ct. 313, 89 L.Ed. 628.

There remains then to consider whether the requisite consent is to be found in the Public Vessels Act, which provides that "A libel in personam in admiralty may be brought against the United States * * * for damages caused by a public vessel of the United States * * *." 46 U.S.C. A. § 781. Respondent concedes that each of the ships of the Army Transport Service which libelant served as able-bodied seaman was a "public vessel of the United States." Cf. Caffey v. United States, 2 Cir., 1944, 141 F.2d 69, 71, certiorari denied 323 U.S. 750, 65 S.Ct., 84, 89 L.Ed. 601, rehearing denied 1944, 323 U.S. 815, 65 S.Ct. 115, 89 L.Ed. 648. So the inquiry becomes narrowed to the question whether libelant's suit is "for damages caused by a public vessel" within the meaning of the Act.

In American Stevedores, Inc., v. Porello and the United States, 1947, 330 U.S. 446, 67 S.Ct. 847, 850, it was held that by the Public Vessels Act the Government has consented to be sued for personal injuries suffered by a stevedore aboard a public vessel while engaged in loading. Discussing the language of the Act, the Supreme Court said: "`Damages,' * * * have historically been awarded both for injury to property and injury to the person—a fact too well-known to have been overlooked by the Congress in enacting this statute."

Historically, the award for breach of contract has also been damages. See Ames, History of Assumpsit, (3 Selected Essays Anglo-Am.Leg.Hist. 259). And in O. F. Nelson & Co. v. United States, 9 Cir., 1945, 149 F.2d 692, 698, 699, a libel under the Public Vessels Act for damages arising from breach of a contract of affreightment was sustained as a claim "for damages caused by a public vessel."

More recently, in United States v. Loyola, 9 Cir., 1947, 161 F.2d 126, where, as at bar, libelant was a civilian seaman employed by the United States through the Army Transport Service, the decision was that the Government has consented to be sued under the Public Vessels Act for damages arising from breach of the shipowner's implied contractual obligation to furnish maintenance and cure.

In Canadian Aviator, Ltd., v. United States, 1945, 324 U.S. 215, 228, 65 S.Ct. 639, 646, 89 L.Ed. 901, the Supreme Court declared...