TANKREDERIET GEFION A/S v. United States
| Decision Date | 03 June 1964 |
| Docket Number | No. 23964.,23964. |
| Citation | 241 F. Supp. 83 |
| Parties | TANKREDERIET GEFION A/S, as owner of the MOTORSHIP GYDA, Plaintiff, v. The UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Raymond A. Ballard, Foster, Meadows & Ballard, Detroit, Mich., MacDonald Deming, Charles S. Haight, Jr., Haight, Gardner, Poor & Havens, New York City, for plaintiff.
Lawrence Gubow, U. S. Atty., Barton W. Morris, Asst. U. S. Atty., Detroit, Mich., William E. Gwatkin, III, Atty., Admiralty and Shipping Section, Dept. of Justice, Washington, D. C., for defendant.
Plaintiff, a corporation of the Kingdom of Norway, brings this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and §§ 2671-2680. The matter is now before the Court on defendant's motion to dismiss based on the ground that the defendant, United States of America, has not consented to be sued nor waived its immunity from suit under the Federal Tort Claims Act and, more specifically, for the reason that the complaint shows on its face that the plaintiff's claim arises out of damages alleged to have been sustained by a vessel on navigable waters, for which claim plaintiff may sue the United States only in admiralty pursuant to the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, which act provides plaintiff's exclusive remedy.
Insofar as pertinent to the instant motion, the complaint alleges that the motorship Gyda, owned by plaintiff, after loading a cargo of scrap at Muskegon, Michigan, proceeded to Detroit, where the vessel took on additional cargo and where the vessel was boarded by employees and agents of the United States to investigate the heating of the cargo; that such employees and agents discovered the temperature of the cargo was higher than the maximum permitted by pertinent Government regulations and, in violation of their duties to require said cargo to be unloaded and to prohibit the continued carriage thereof, nevertheless allowed the vessel to continue its voyage, and as a result thereof, the said vessel proceeded to Philadelphia, Pennsylvania, where a fire occurred in the said cargo, causing damage to the vessel in the amount of approximately $350,000.
Plaintiff contends that the Federal Tort Claims Act applies to all maritime torts for which no remedy is provided by the Public Vessels Act, 46 U.S.C.A. §§ 741-752, or Suits in Admiralty Act, 46 U.S.C.A. §§ 781-790, and that neither of these acts provides a remedy in the case at bar.
Plaintiff has filed a contingent cross-motion that it be permitted to file a libel in admiralty, as an amended pleading, under the Suits in Admiralty Act, relating back to the date of filing of the complaint herein, if the motion to dismiss said complaint is granted.
Section 1346(b), Title 28 U.S.C.A., in pertinent part provides:
"Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for injury or loss of property, * * * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."
Section 2680, being a part of chapter 171, Title 28 U.S.C.A., insofar as relevant, provides:
The key question, therefore, is, do Sections 741-752 or 781-790 of Title 46 provide a remedy to plaintiff?
The Government argues that the present action by its nature is one in admiralty and that admiralty actions must be brought in an admiralty court and cannot be brought under the Federal Tort Claims Act. To support these arguments, it points out that the present language of 46 U.S.C. § 742 originated in Section 3 of the Act of September 13, 1960, 74 Stat. 912, which it claims amended the Suits in Admiralty Act so as to end certain jurisdictional uncertainties which had long plagued the courts. The Government also argues that Congress intended to make it perfectly clear by such amendment that the Suits in Admiralty Act was to provide the exclusive remedy, not merely for admiralty claims involving Government vessels, but for all admiralty claims against the United States. 1960 U.S. Code Cong. and Adm. News, p. 3583.
Section 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...
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