Johnson v. United States, No. 6098.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: PARKER, and SOPER and DOBIE, Circuit
• Citation: 186 F.2d 120
• Parties: JOHNSON v. UNITED STATES. THE PATROL BOAT NO. Q — 14.
• Decision Date: 16 December 1950
• Docket Number: No. 6098.

186 F.2d 120 (1950)

JOHNSON
v.
UNITED STATES.
THE PATROL BOAT NO. Q — 14.

No. 6098.

United States Court of Appeals Fourth Circuit.

Argued October 3, 1950.

Decided December 16, 1950.

186 F.2d 121

Roy L. Sykes and R. Arthur Jett, Norfolk, Va. (Jett, Sykes & Howell and Meyer Koteen, Norfolk, Va., on the brief) for appellant.

Leavenworth Colby, Sp. Asst. to the Atty. Gen., (H. G. Morison, Asst. Atty. Gen., George R. Humrickhouse, U. S. Atty., Richmond, Va., and John P. Harper, Asst. U. S. Atty., Norfolk, Va., on the brief) for appellee.

Before PARKER, Chief Judge and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

The important questions in this case are whether a civilian seaman on a public vessel of the United States who has been injured by the negligence of the operator of the ship has the right to recover damages from the United States under the Public Vessels Act, 46 U.S.C.A. §§ 781 to 790, notwithstanding he is entitled to compensation under the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq.; and if so, whether such a seaman who has elected to proceed and has received compensation under the Federal Employees' Compensation Act is relieved from the consequences of his election because he was a minor at the time he was injured and received the compensation.

On October 13, 1946 Herbert L. Johnson, the appellant, was a civilian deck hand aboard the patrol boat No. Q-14, a public vessel of the United States in service in the harbor of Norfolk, Virginia, and while on duty was severely burned under circumstances tending to show negligence on the part of a superior officer. On January 30, 1947, while still a patient in the United States Marine Hospital at Norfolk, he applied for compensation, and on April 18, 1947, after his release from the hospital, he filed a claim for a continuation of compensation. He received a total of $599.77 from the period October 20, 1946 to March 13, 1947, which was paid him in March, April and May, 1947. At the time of his injury he was 19 years of age; and at the time when he applied for and received the compensation he was 20 years of age. On June 17, 1948 he brought the present suit for damages against the United States under the Public Vessels Act, claiming the benefits of the Jones Act, 46 U.S.C.A. § 688. The District Judge was of the opinion that the libellant had the option to sue the United States in admiralty or to apply for compensation, but dismissed the suit because the libellant had applied for and accepted compensation.

The government contends that the libel should have been dismissed on both grounds. The question whether the Federal Employees' Compensation Act furnishes the exclusive remedy of a federal employee who is injured by the negligence of a merchant vessel of the United States was considered by us in U. S. v. Marine, 4

186 F.2d 122

Cir., 155 F.2d 456. We there held, basing our decision in part upon an assumption made by the Supreme Court in Brady v. Roosevelt S. S. Co., 317 U.S. 575, 577, 63 S.Ct. 425, 87 L.Ed. 471, that a United States custom inspector, who was injured while he was leaving a merchant vessel of the United States under circumstances that would have entitled a private citizen to judgment against the United States under the Suits in Admiralty Act, 46 U.S.C.A. § 742, was entitled to maintain an action against the United States under that Act, and was not limited to a proceeding under the Federal Employees' Compensation Act. We called attention to the explicit provisions of the Suits in Admiralty Act that a libel in personam may be brought against the United States in the operation of a merchant vessel whenever, if the vessel was privately owned or operated, a proceeding in admiralty could be maintained against it, and we held that we were not empowered to limit the Act to persons outside the provisions of the Compensation Act in the absence of any such limitation in a statute which was intended to put the United States in relation to its merchant vessels on the same basis as private ships, except as to the seizure of the ship. In addition we pointed out that there was nothing in the Federal Employees' Compensation Act which limited a federal employee to the benefits of the Act,¹ although obviously he might not proceed under both Acts, and if he elected to sue under one, he had no claim under the other

We see no reason to depart from this position. The present suit, however, was brought under the Public Vessels Act and the question remains whether this Act was intended to subject the government to the same sort of liability for the activities of its public vessels as it has for the activities of its merchant vessels under the Suits in Admiralty Act. The government strongly contends that there is a marked distinction between the activities of its public and its merchant vessels and that it cannot be supposed that it was the intent of Congress to open the courts to the complaints of civilian members of the crews of public vessels and thereby disclose the secret operations of its war vessels and subject the orders and actions of its naval officers to attack by their subordinates. Such a construction of the statute it is said would be so detrimental to the public interest and so destructive of military discipline that it must be rejected in the same manner that this court in Jefferson v. U. S., 4 Cir., 178 F.2d 518,² having regard for the peculiar relation that exists between a soldier and superior military authority, held that a member of the armed forces on active duty could not recover under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., for injuries caused by the negligence of an army surgeon; and it is pointed out that just as the Army or Navy man, in place of...