Mings v. United States
Decision Date | 10 October 1963 |
Docket Number | Civ. No. 62-1326. |
Parties | Clarence MINGS, Plaintiff, v. UNITED STATES of America, Defendant. |
Court | U.S. District Court — Southern District of California |
Magana, Olney, Levy, Cathcart & Gelfand, by Mitchell Levy, Los Angeles, Cal., for plaintiff.
Francis C. Whelan, U. S. Atty. for Southern Dist. of California, by Donald A. Fareed, Asst. U. S. Atty., Chief of Civil Section, Stanley M. Lintz, Asst. U. S. Atty., Keith R. Ferguson, Sp. Asst. to the Atty. Gen., and Jerome O. Hughey, Atty., Admiralty & Shipping Section, Dept. of Justice, Los Angeles, Cal., for defendant.
This case is presently before the Court on defendant's motion to dismiss.
Plaintiff Clarence Mings, a longshoreman employed by Marine Terminals, Inc., was injured December 3, 1961 in the course of his employment while he was working on the deck of a public vessel of the United States, the U.S.N.S. PRIVATE JOSEPH MERRELL, at Port Hueneme, California, on navigable waters of the United States. The accident occurred when a shoreside crane, owned by the United States and being operated by a civil service employee, dropped part of its load, striking plaintiff.
Plaintiff brought this action under the Federal Tort Claims Act, alleging defendant, through its servants, was negligent in operation of the crane. Defendant seeks dismissal of the action on the ground sole jurisdiction is in admiralty under the Suits in Admiralty Act (46 U.S.C. § 741 ff.) Defendant further maintains the action cannot be transferred from the law side to the admiralty side of the court.
The Federal Tort Claims Act provides, in part, at 28 U.S.C. § 2680:
Title 46, § 742 provides, in part:
"In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States * * *."
It is well settled that for the purpose of determining admiralty jurisdiction the place where the tort occurred is controlling.
See also Noel v. Airponents, Inc., 169 F. Supp. 348 (N.J.1958); Middlleton v. United Aircraft Corporation, 204 F. Supp. 856 (N.Y.1960); 2 C.J.S. Admiralty § 59 p. 114 ff.; Cf. Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 49 S.Ct. 88, 73 L.Ed. 232 (1928), wherein the Court held a stevedore unloading a vessel was engaged in maritime work within the meaning of the Merchant Marine Act.
Although the instrumentality causing the injury was on the dock, plaintiff was working on the deck of the vessel, and the blow causing the injury occurred there. Clearly the tort meets the "locality test" of admiralty law.
Plaintiff urges 46 U.S.C. § 742 is inapplicable in that the injuries complained of were not...
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