Shafter v. United States

• Decision Date: 26 July 1967
• Docket Number: No. 65 Ad. 1136.,65 Ad. 1136.
• Citation: 273 F. Supp. 152
• Parties: Alfred M. SHAFTER, as next friend of the dependents and next of kin of Joaquin Farina Muniz, and for such other persons as may be similarly situated, such as dependents and next of kin of Georg Joseph Kostka, Gerhart Rudi Richard Klatt, Dieter Ahrens, Koch Lothar Ludwig Wilmes and Gunter Schikulla, and Karl-Heinz Weinhold, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Alfred M. SHAFTER, as next friend of the dependents and next of kin of Georg Joseph Kostka, Dr. Horst Willner, as Administrator of the Estate of Georg Kostka, Deceased, the owner of the GERMAN MOTORSHIP DIRK, Albingia Versicherungs-Aktiengesellschaft, and the British Marine Mutual Insurance Association Ltd., Third-Party Defendants.
• Court: U.S. District Court — Southern District of New York

273 F. Supp. 152

Alfred M. SHAFTER, as next friend of the dependents and next of kin of Joaquin Farina Muniz, and for such other persons as may be similarly situated, such as dependents and next of kin of Georg Joseph Kostka, Gerhart Rudi Richard Klatt, Dieter Ahrens, Koch Lothar Ludwig Wilmes and Gunter Schikulla, and Karl-Heinz Weinhold, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Alfred M. SHAFTER, as next friend of the dependents and next of kin of Georg Joseph Kostka, Dr. Horst Willner, as Administrator of the Estate of Georg Kostka, Deceased, the owner of the GERMAN MOTORSHIP DIRK, Albingia Versicherungs-Aktiengesellschaft, and the British Marine Mutual Insurance Association Ltd., Third-Party Defendants.

No. 65 Ad. 1136.

United States District Court S. D. New York.

July 26, 1967.

Jacob Rassner, New York City, for plaintiffs and third-party defendant, Shafter, Bernard Shafter, New York City, of counsel.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, Louis E. Greco, Atty. in Charge, Admiralty and Shipping Section, Dept. of Justice, for United States, Bruno E. Ristau, Washington, D. C., Philip A. Berns, New York City, of counsel.

Haight, Gardner, Poor & Havens, New York City, for third-party defendants, MacDonald Deming, New York City, of counsel.

FRANKEL, District Judge.

On February 10, 1964, an American Government vessel, the USNS BLUE JACKET, collided with a fishing boat, the M/V DIRK, on the Weser River in the territorial waters of the Federal Republic of Germany. Six members of the DIRK'S seven-man crew were killed; the seventh survived, but suffered physical injuries. In this lawsuit, brought on November 16, 1965, by the surviving crew member and a representative of those whose lives were lost, recovery is sought from the United States under the Public Vessels Act, 46 U.S.C. § 781 et seq. for the pain, suffering, and other damages attendant upon the deaths and personal injuries.¹ The Government has moved for summary judgment dismissing the suit, asserting that the matter has been withdrawn from the court's subject-matter jurisdiction by the provisions of the North Atlantic Treaty Status of Forces Agreement ("NATO-SOFA") of June 19, 1951, 4 U.S.T. 1792, to which the Federal Republic of Germany acceded by a Supplementary Agreement of August 3, 1959, effective July 1, 1963, 14 U.S.T. 531. Those treaty arrangements, the Government contends, create a comprehensive and exclusive scheme for adjudication and settlement of claims within their purview. The argument appears to be clearly correct. The only question initially creating some doubt as to whether the motion should be granted is whether the BLUE JACKET, at the time of the disaster, was part of a "force" governed by the provisions of NATO-SOFA.

I.

Article VIII, paragraph 5 of NATO-SOFA provides in pertinent part (4 U.S.T. at 1806-08):

"Claims * * * arising out of acts or omissions of members of a force or civilian component done in the performance of official duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties, * * * shall be dealt with by the receiving State in accordance with the following provisions:—²

"(a) Claims shall be filed, considered and settled or adjudicated in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces.

"(b) The receiving State may settle any such claims, and payment of the amount agreed upon or determined by adjudication shall be made by the receiving State in its currency.

"(c) Such payment whether made pursuant to a settlement or to adjudication of the case by a competent tribunal of the receiving State, or the final adjudication by such a tribunal denying payment, shall be binding and conclusive upon the Contracting Parties.

"(d) Every claim paid by the receiving State shall be communicated to the sending States concerned together with full particulars and a proposed distribution in conformity with sub-paragraphs (e) (i), (ii) and (iii) below. In default of a reply within two months, the proposed distribution shall be regarded as accepted.

"(e) The cost incurred in satisfying claims pursuant to the preceding subparagraphs and paragraph 2 of this Article shall be distributed between the Contracting Parties, as follows:—

"(i) Where one sending State alone is responsible, the amount awarded or adjudged shall be distributed in the proportion of 25 per cent. chargeable to the receiving State and 75 per cent. chargeable to the sending State.

"(ii) Where more than one State is responsible for the damage, the amount awarded or adjudged shall be distributed equally among them; however, if the receiving State is not one of the States responsible, its contribution shall be half that of each of the sending States.

"(iii) Where the damage was caused by the armed services of the Contracting Parties and it is not possible to attribute it specifically to one or more of those armed services, the amount awarded or adjudged shall be distributed equally among the Contracting Parties concerned: however, if the receiving State is not one of the States by whose armed services the damage was caused, its contribution shall be half that of each of the sending States concerned.

"(iv) Every half-year, a statement of the sums paid by the receiving State in the course of the half-yearly period in respect of every case regarding which the proposed distribution on a percentage basis has been accepted, shall be sent to the sending States concerned, together with a request for reimbursement. Such reimbursement shall be made within the shortest possible time, in the currency of the receiving State.

"(f) In cases where the application of the provisions of sub-paragraphs (b) and (e) of this paragraph would cause a Contracting Party serious hardship, it may request the North Atlantic Council to arrange a settlement of a different nature.

"(g) A member of a force or civilian component shall not be subject to any proceedings for the enforcement of any judgment given against him in the receiving State in a matter arising from the performance of his official duties.

"(h) Except in so far as sub-paragraph (e) of this paragraph applies to claims covered by paragraph 2 of this Article, the provisions of this paragraph shall not apply to any claim arising out of or in connexion with the navigation or operation of a ship or the loading, carriage, or discharge of a cargo, other than claims for death or personal injury to which paragraph 4 of this Article does not apply."

Two conclusions follow for the present case from the foregoing treaty language:

(1) If the wrongs alleged arose out of "acts or omissions of members of a force or civilian component done in the performance of official duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible," the claims of the "third parties" suing here were subject to adjudication or settlement by the Federal Republic of Germany under its applicable law and procedure.

(2) The jurisdiction thus created would displace the remedy plaintiffs invoke under the Public Vessels Act.

Plaintiffs assail both these propositions with arguments of variable substance.

First, they stress that the Government has not questioned the jurisdiction of this court under the Public Vessels Act to consider the claims for property damage arising out of the same collision. Not only is it anomalous, they argue, to distinguish death and personal injury claims from suits for harm to property; more importantly, they urge, the Government's acknowledgment of jurisdiction over the pending property-damage cases is required by the relevant treaty language and is likewise required in this case. For this contention plaintiffs repeatedly, in their brief and other papers, quote from paragraph 5(h) of Article VIII, ending the quotation just before the words underscored here (4 U.S.T. at 1808):

"With immaterial exceptions, the provisions of this paragraph shall not apply to any claim arising out of or in connexion with the navigation or operation of a ship or the loading, carriage, or discharge of a cargo, other than claims for death or personal injury to which paragraph 4 of this Article does not apply."³

It is unnecessary to linger over the fallacy plaintiffs propose beyond recording the court's strong disapproval of such truncated and misleading quotations.

As to the point that jurisdiction of a foreign State under NATO-SOFA should be deemed to preclude the remedy they invoke, plaintiffs appear to urge that this would effect an impermissible "repeal by implication." This argument is not frivolous, but it must in the end be rejected. There is no doubt that the later provisions of NATO-SOFA are to be harmonized so far as possible with those of the Public Vessels Act. It seems equally clear that the specific and detailed remedial apparatus under the later treaty should be deemed to substitute pro tanto for the general consent to suits under the statute. In giving its assent to NATO-SOFA, the Senate noted specifically both the benefits and the burdens of the jurisdictional agreement. It was observed that disposition of third-party claims by the Government of the place where the asserted wrong occurred (normally the country of the claimant's citizenship or residence, as in the case of the claimants here) would promote fairness, ease friction, and, incidentally, be likely to result in awards against the United States more modest than those commonly recovered in American courts. It was mentioned approvingly that 25% of such awards would be borne under the treaty by the receiving State. And it was recognized that the United States was undertaking the same jurisdictional burdens, and procuring the same benefits, for American...