Orion Shipping and Trading Company v. United States

• Decision Date: 25 July 1957
• Docket Number: No. 15264.,15264.
• Citation: 247 F.2d 755
• Parties: ORION SHIPPING and TRADING COMPANY, a corporation, and Pacific Cargo Carriers Corporation, Appellants, v. UNITED STATES of America, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

247 F.2d 755 (1957)

ORION SHIPPING and TRADING COMPANY, a corporation, and Pacific Cargo Carriers Corporation, Appellants, v. UNITED STATES of America, Appellees.

No. 15264.

United States Court of Appeals Ninth Circuit.

July 25, 1957.

Bogle, Bogle & Gates, Robert V. Holland, Seattle, Wash., for appellant.

George Cochran Doub, Asst. Atty. Gen., Leavenworth Colby, Sp. Asst. to Atty. Gen., Keith Ferguson, Sp. Asst. to Atty. Gen., Graydon S. Staring, Attorney, Department of Justice, San Francisco, Cal., Charles P. Moriarty, U. S. Atty., Seattle, Wash., for appellee.

Before DENMAN, POPE and CHAMBERS, Circuit Judges.

DENMAN, Circuit Judge.

The two corporate appellants, hereafter Orion, appeal from the dismissal of a third party complaint filed in a suit at common law. The complaint was filed by one Basnight, a seaman on Orion's Steamship Seacoronet while in dock at Pier 2, in Pusan, Korea, where he was injured by the unseaworthiness of the vessel, exposing him to the fumes of chlorine gas which were negligently allowed to escape from the containers during their loading. Basnight could have sued in admiralty but he chose to sue at common law, as private persons and corporations are permitted. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 88, 66 S.Ct. 872, 90 L.Ed. 1099. His case was tried by a jury, a verdict rendered for him which Orion accepted and paid.

Orion's third party complaint states a claim on which Orion asserts that it is entitled to sue the United States under both "Federal Tort Claims Act, Title IV, Chapter 753 — Public Law 601 — Legislative Reorganization Act of 1946, the Suits in Admiralty Act, 46 U.S.C.-A. P. 741-752, and other applicable Federal Statutes."

It is obvious that Orion cannot recover under the Tort Claims Act since 28 U.S.C. § 2680(k) excepts from the act "any claim arising in a foreign country" as here at Pier 2 in Pusan, Korea, and 28 U.S.C. § 2680(d) excepts "Any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States."

Title 46 U.S.C.A. § 742 provides that:

"In cases where if such vessel were privately owned or operated, or if such United States cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States * * *."

The question then arises whether the authority so given to sue the United States in admiralty for torts in handling its cargo should be so liberally construed as to permit its assertion in a third party pleading in a common law suit in which the complaint alleges a liability both at law and in admiralty. We think we are required to give this liberal construction of a power so granted to suitors against the United States, by the Supreme Court decision in United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523. The court there holds that where the Government has given its consent to be sued at common law, it may be so sued for contribution for its torts by a joint tort-feasor or by a separate common law complaint, stating 340 U.S. at page 555, 71 S.Ct. at page 407, that "`when such authority is given, it is liberally construed.'"

The Government relies upon Johnson v. United States Board Emergency Fleet Corporation, 280 U.S. 320, 50 S.Ct. 118, 74 L.Ed. 451, decided in 1930, in which a strict rule of construction is given to the legislation for suits against the United States. We prefer to follow the more liberal 1951 rule of the Yellow Cab case since this liberal construction of a federal common law liability applies a fortiori to proceedings in admiralty, in which the Supreme Court so early held that liberality of construction exists, that it is now an elemental common place. Dupont De Nemours & Co. v. Vance, 1856, 19 How. 162, 171, 172, 15 L.Ed. 584. We therefore conclude that the district court has jurisdiction to consider Orion's third party pleading against the United States as provided for in the Suits in Admiralty Act.

This is in accord with the holding in the second circuit in Moore-McCormack Lines v. McMahon, 235 F.2d 142, 143, that "approach to modern admiralty as to modern civil procedure should be to permit convenient practice where we know of no authority that forbids." There cross libels against third parties were permitted in a proceeding in admiralty to limit liability. Similarly that circuit states, in Grillea v. United States, 232 F.2d 919, 921, that the Suits in Admiralty Act is not to be construed "with the same jealousy that ordinarily circumscribes the consent of the United States to be sued." Following this reasoning of its court of appeals the district court of the Southern District of New York has held in cases similar to the instant case that in a common law suit for damages the defendant may maintain a libel in admiralty against the United States as a third party. Dupuis v. Drytrans, Inc., D.C., 150 F.Supp. 436, 437; Hidick v. Orion Shipping & Trading Co., D.C., 152 F.Supp. 630; Canale v. American Export Lines, D.C., 17 F.R.D. 269, 271, 273; Skupski v. Western Navy Corp., D.C., 113 F.Supp. 726.

The United States contends that, assuming jurisdiction, the third party libel was improperly laid in the Western District of Washington and that since Orion does not reside or have its principal place of business in that...