Johansen v. United States

• Decision Date: 30 July 1951
• Docket Number: No. 275,Docket 22012.,275
• Parties: JOHANSEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

191 F.2d 162 (1951)

JOHANSEN v. UNITED STATES.

No. 275, Docket 22012.

United States Court of Appeals Second Circuit.

Argued May 4, 1951.

Decided July 30, 1951.

William L. Standard, New York City, for libellant-appellant, Louis R. Harolds, New York City, of counsel.

Holmes Baldridge, Asst. Atty. Gen., Irving H. Saypol, U. S. Atty., New York City, Leavenworth Colby, Sp. Asst. to Atty. Gen., Martin J. Norris, Atty. Dept. of Justice, New York City, for respondent-appellee.

Before L. HAND, CHASE and FRANK, Circuit Judges.

CHASE, Circuit Judge.

This appeal requires us to decide whether a civil service employee of the United States who is employed as a member of the crew of an army transport may sue the government, under the Public Vessels Act, 46 U. S.C.A. §§ 781-790, to recover for personal injuries received in line of duty, or must accept as sole compensation an award under the Federal Employees Compensation Act, 5 U.S.C.A. § 751 et seq.

The appellant, Johansen, was a member of the crew of the U. S. A. T. "Kingsport Victory" as a civil service employee of the United States and not as a member of the armed forces. We understand that the parties agree that the transport was engaged in a military operation when he was, on August 5, 1949, hit by falling lumber and injured, allegedly because of the negligence of the appellee or because of the unseaworthiness of the vessel. He was admitted to a marine hospital where he received treatment until, on October 24, 1949 he was discharged as cured.

The appellant was informed by his superiors, acting on behalf of the United States, that he, as a member of the civil service component of the crew of an army transport, had no right against the United States except to receive compensation benefits under the United States Employees Compensation Act. Believing this information to be correct and induced by it, he duly made application for such benefits and was awarded and paid in all $358.20. On November 7, 1949, he resumed his duties on full pay and his compensation payments were terminated. He then brought this suit, and appeals from a judgment which dismissed his libel on the ground that the acceptance of the compensation award was an election constituting a waiver of whatever right to sue he may have had.

We need not decide whether the appellant is disabled from bringing this suit by an election to accept a compensation award; since, the government not having consented to be sued, that was his only remedy.

If Johnson v. United States, 4 Cir., 186 F.2d 120, is to be read as holding that a civilian seaman on a patrol boat may sue the United States under the Public Vessels Act for injuries suffered in military operation, we are, with deference, constrained to disagree. This case falls within the category to which Bradey v. United States, 2 Cir., 151 F.2d 742, certiorari denied 326 U.S. 795, 66 S.Ct. 484, 90 L.Ed. 483, belongs. We there held, following Dobson v. United States, 2 Cir., 27 F.2d 807, certiorari denied 278 U.S. 653, 49 S.Ct. 179, 73 L.Ed. 563, that a naval enlisted serving as a member of the crew of a public vessel was not permitted by the Public Vessels Act to sue the government for personal injuries received in line of duty, and that such injuries were compensable only under the special provisions of law applicable to naval personnel. We took it to be a significant indication of the intent of Congress...