Militano v. United States

• Decision Date: 09 July 1946
• Docket Number: No. 240,Dockets 20150,241,51.,240
• Citation: 156 F.2d 599
• Parties: MILITANO v. UNITED STATES. SAME v. STATES MARINE CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

156 F.2d 599 (1946)

MILITANO v. UNITED STATES.

SAME v. STATES MARINE CORPORATION.

Nos. 240, 241, Dockets 20150, 51.

Circuit Court of Appeals, Second Circuit.

July 9, 1946.

Jacob Rassner, of New York City, for appellant.

Corydon B. Dunham and John F. X. McGohey, U. S. Atty., both of New York City, for appellees.

Before L. HAND, SWAN, and PHILLIPS, Circuit Judges.

SWAN, Circuit Judge.

The appellant was a stevedore in the employ of the United States at the Army Base, Brooklyn, N. Y. On January 19, 1943 he was ordered aboard the S. S. "Benjamin Hawkins" to operate a winch at hatch No. 5 in loading government-owned cargo. This vessel was a Liberty ship owned by the United States and managed by States Marine Corporation under a general agency contract with the War Shipping Administration; she lay at a pier at the Army Base. While performing his work as winchman the appellant suffered injuries to the fingers of his left hand by reason, as he claims, of defects in the wire cable running from the drum to the gin block. To recover damages for such injuries he filed a libel against the United States and a civil action in tort against States Marine Corporation. A jury trial having been waived in the latter action the two cases were tried together to the court and resulted in a judgment of dismissal in each.

The libel was dismissed on the ground that suit was barred because the libelant on February 19, 1943 filed a claim with the United States Employees' Compensation Commission and such proceedings were had thereon that thereafter he was allowed and accepted compensation of $193.75. This was a valid defense to the libel. As a stevedore in the employment of the United States Militano was entitled to the benefits of the Federal Employees' Compensation Act, 5 U.S.C.A. § 751. By applying for and accepting compensation under this Act he elected his remedy and surrendered any right of action he may have had against the United States under either the Suits in Admiralty Act, if the ship was a "merchant vessel," 46 U.S.C.A. § 741, or the Public Vessels Act, if the ship was a "public vessel," 46 U.S.C.A. § 781.¹ Dahn v. Davis, 258 U.S. 421, 42 S.Ct. 320, 66 L.Ed. 696; Brady v. Roosevelt S. S. Co., 317 U.S. 575, 581, 63 S.Ct. 425, 87 L.Ed. 471. The libelant disputes this conclusion on the ground that no "award" was made by the commission as required by section 36 of the Act, 5 U.S.C.A. § 786. But the record does not support the contention. The commission dealt with his application in the usual manner and marked the file "Final," which meant that the claim was closed, subject only to being reopened if an additional claim for recurrent disability should be filed; and none was. He was allowed and accepted everything he claimed under the Compensation Act and the authorities above cited establish the rule that this barred his suit against the United States.

The libelant also urges that his rights are to be found in the Act of March 24, 1943, 50 U.S.C.A.Appendix, § 1291, which expressly provides that "seamen" to whom it applies "shall not be considered as officers or employees of the United States for the purposes of the United States Employees Compensation Act." But acceptance of this argument is precluded by the very terms of § 1291 which limits "seamen" to "officers and members of crews * * * employed on United States or foreign flag vessels as employees of the United States through the War Shipping Administration." Militano was not a member of the crew of the Benjamin Hawkins, nor was he employed through the War Shipping Administration. He was a long-shoreman on the stevedore payroll of the Army Base in Brooklyn. Moreover, the section sets up another hurdle which Militano cannot jump, even if he were held to be a seaman within the meaning of the Act. It requires that a claim in writing be filed for consideration by the War Shipping Administration and be "administratively disallowed" before a suit can be brought against the United States. Fox v. Alcoa S. S. Co., 5 Cir., 143 F.2d 667, certiorari denied 323 U.S. 788, 65 S.Ct. 313, 89 L.Ed. 628. No such claim was filed by the libelant. For the foregoing reasons dismissal of the libel must be affirmed.

We now pass to a consideration of the action against States Marine Corporation. In as much as the plaintiff is a citizen and resident of New York and the defendant is a corporation of the same state, federal jurisdiction cannot rest on diversity of citizenship. Since the plaintiff's counsel conceded that the Jones Act, 46 U.S.C.A. § 688, is inapplicable because there was no employer-employee relationship between the defendant and the plaintiff, the trial judge treated the case as though transformed into a suit in admiralty stating an ordinary claim for negligence. Under the terms of the general agency agreement between the defendant and the War Shipping Administration any recovery by the plaintiff would ultimately be paid by the United States. Consequently the trial judge was of the opinion that to allow recovery against the agent would be an "evasion of the legal principle" that led him to dismiss the libel. This conclusion would have been correct under the authority of the United States Shipping Board Merchant Fleet Corp. v. Lustgarten, 280 U.S. 320, 50 S.Ct. 118, 74 L.Ed. 451, but that case was overruled in Brady v. Roosevelt S. S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471, as this court noted in Carroll v. United States, 2 Cir., 133 F.2d 690, 693, and as the Supreme Court expressly stated in Hust v. Moore-McCormack Lines, 66 S.Ct. 1218.

Militano's injuries were caused by the fact that splinters or "fish hooks," which had developed in some of the strands of the steel cable leading from the drum of the winch he was operating, caught in his glove and drew his left hand into the gin block before he could stop the winch. Relying on the Brady case, supra, he urges that the defective condition of the cable renders liable States Marine as the operating agent of the vessel. The defendant replies that under its agreement with the War Shipping Administration it had no control over the vessel or its crew, was not charged with the duty to repair but merely with the duty to report the condition of the vessel to its principal, the United States, and, if the cable needed to be replaced, it developed upon the crew to replace it, as spare cables were on board. It argues that the Brady case is inapplicable because of differences in the agency agreement there involved and the one under which it was acting. Those differences were pointed out in Murray v. American Export Lines, D.C. S.D.N.Y., 53 F.Supp. 861, where the same form of "Service Agreement" (GAA 4-4-42) was used as in the case at bar.² But such differences cannot be deemed material, we think, in view of Hust v. Moore-McCormack Lines, supra....