United States v. Loyola, 11240.

Decision Date10 April 1947
Docket NumberNo. 11240.,11240.
Citation161 F.2d 126
PartiesUNITED STATES v. LOYOLA.
CourtU.S. Court of Appeals — Ninth Circuit

Frank J. Hennessy, U.S.Atty., and William E. Licking, Asst.U.S.Atty., both of San Francisco, Cal., and Leavenworth Colby, Atty., Dept. of Justice, of Washington, D.C., for appellant.

Gladstein, Andersen, Resner & Sawyer and Herbert Resner, all of San Francisco, Cal., for appellee.

Before DENMAN, HEALY and BONE, Circuit Judges.

DENMAN, Circuit Judge.

The United States appeals from a decree in admiralty awarding appellee damages caused by its failure to perform its contract to furnish maintenance and cure to appellee for his pulmonary tuberculosis, of which he became ill while a civil employee as room steward on a voyage from San Francisco to New Guinea on appellant's army transport ETOLIN.

It is not questioned that if the contract1 for maintenance and cure had not been performed by a private employer, both the employer in personam and the vessel would have been liable. The appellant contends that it, as sovereign, has not given any court the jurisdiction to entertain such a suit against it.

Appellee filed his libel in personam for $10,000 in the United States District Court, claiming his right to sue under the Tucker Act, the pertinent portions of which are stated in 28 U.S.C.A. § 41 (20), and which provides that district courts of the United States have jurisdiction "Concurrent with the Court of Claims, of all claims not exceeding $10,000 founded * * * upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable * * *."

Appellant has not raised the question whether the Tucker Act warrants jurisdiction in admiralty. We need not consider this because we think the United States to be so suable in admiralty and the jurisdiction exists under the Public Vessels Act of 1925, 46 U.S.C.A. § 781, providing "A libel in personam in admiralty may be brought against the United States or a petition impleading the United States, for damages caused by a public vessel of the United States, and for compensation for towage and salvage services, including contract salvage, rendered to a public vessel of the United States: Provided That the cause of action arose after the 6th day of April, 1920."

In Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 65 S.Ct. 639, 89 L.Ed. 901, it was held that the "damages" provided for in the Act included those arising from a failure of the government's officers in charge of the Y-P 29, a public vessel of the United States, to discharge their obligation safely to guide the steamship Cavalier, the latter having been ordered by the government to follow the former's guidance. Though the case was cast in tort, it was the breach of the officers' obligation which gave rise to the recoverable damages.

In the recent Supreme Court case of American Stevedores v. Porello and the United States, 67 S.Ct. 847, 851, for which case this court has withheld its decision in the instant appeal, the word "damages" in the Public Vessels Act was construed to mean what is recoverable for an injury, as distinguished from the singular word "damage" to the person or thing creating the right to recover. In that case, in holding the United States liable for an injury to a stevedore through acts of the employees of a public vessel, the Court accepted the statement of the Attorney General as to the coverage of the proposed bill for the Public Vessels Act that "The proposed bill intends to give the same relief against the Government for damages * * * caused by its public vessels * * * as is now given against the United States in the operation of its merchant vessels, as provided by the Suits in Admiralty Act of March 9, 1920."

Under the Suits in Admiralty Act of 1920, 46 U.S.C.A. § 741 et seq., we have held that "the United States in the operation of its merchant vessels" is liable for the relief of a seaman for his maintenance and cure. McInnis v. United States, 9 Cir., 152 F.2d 387. In reaching the conclusion that the sovereign has here yielded its immunity for suit, we follow the decision of the Canadian Aviator case 324 U.S. 215, 65 S.Ct. 643 that the broad language of the Public Vessels Act "was deliberate and is not to be thwarted by an unduly restrictive interpretation." Our interpretation is also supported by the long established rule that legislation affecting a seaman's injuries and maintenance and cure is to be construed liberally in the...

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27 cases
  • Vitco v. Joncich
    • United States
    • U.S. District Court — Southern District of California
    • 29 Abril 1955
    ...The Bouker No. 2, 2 Cir., 241 F. 831, 835-836, certiorari denied, 1917, 245 U.S. 647, 38 S.Ct. 9, 62 L.Ed. 529; cf. United States v. Loyola, 9 Cir., 1947, 161 F.2d 126, 128. The shipowner's obligation to furnish maintenance is coextensive in time with his duty to furnish cure, Skolar v. Leh......
  • Vaughan v. Atkinson, 92-6075
    • United States
    • United States Supreme Court
    • 14 Mayo 1962
    ...no duty to make payments for cure if marine hospital service is available, and a seaman seeks hospitalization elsewhere. United States v. Loyola, 9 Cir., 161 F.2d 126; United States v. Johnson, 9 Cir., 160 F.2d 789; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551; Zacke......
  • Johansen v. United States Mandel v. United States
    • United States
    • United States Supreme Court
    • 26 Mayo 1952
    ...O'Neal v. United States, D.C., 11 F.2d 869, affirmed 2 Cir., 11 F.2d 871; Lopez v. United States, D.C., 59 F.Supp. 831; United States v. Loyola, 9 Cir., 161 F.2d 126. See Bradey v. United States, 2 Cir., 151 F.2d 742, at page 743 (dictum). 6. Missouri Pac. R. Co. v. Ault, 256 U.S. 554, 562,......
  • Gibbs v. United States
    • United States
    • U.S. District Court — Northern District of California
    • 29 Noviembre 1950
    ...States' vessels were permitted to sue under the Public Vessels Act without discussion of the effect of the FECA. United States v. Loyola, 9 Cir., 1947, D.C., 161 F.2d 126; Krey v. United States, 2 Cir., 1941, 123 F.2d 1008. 8 White v. United States, D.C.N.J.1948, 77 F.Supp. 316. In Elgin v.......
  • Request a trial to view additional results
1 books & journal articles
  • Salvaging a Capsized Statute: Putting the Public Vessels Act Back on Course
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 29-2, December 2012
    • Invalid date
    ...contracts for the repair of United States government ships are governed by the provisions of the [SAA]____"), and United States v. Loyola, 161 F.2d 126, 127 (9th Cir. 1947) (finding breach of contract action by seaman for maintenance and cure governed by the provisions of the PVA), with E.S......

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