United States v. Marine

• Decision Date: 11 May 1946
• Docket Number: No. 5477.,5477.
• Citation: 155 F.2d 456
• Parties: UNITED STATES v. MARINE.
• Court: U.S. Court of Appeals — Fourth Circuit

155 F.2d 456 (1946)

UNITED STATES v. MARINE.

No. 5477.

Circuit Court of Appeals, Fourth Circuit.

May 11, 1946.

Southgate L. Morison, of Baltimore, Md. (Bernard J. Flynn, U. S. Atty., C. Ross McKenrick, Asst. U. S. Atty., William A. Grimes, and Ober, Williams & Stinson, all of Baltimore, Md., on the brief), for appellant.

George W. P. Whip, of Baltimore, Md. (Avrum K. Rifman, of Baltimore, Md., on the brief), for appellee.

Before GRONER, Chief Justice, United States Court of Appeals for the District of Columbia, and SOPER and DOBIE, Circuit Judges.

GRONER, C. J.

Garland C. Marine, a United States Custom Inspector, was seriously injured when in the discharge of his official duties he was leaving the Steamship "Dundas," a merchant vessel owned and operated by the United States. The injury occurred while the vessel was berthed at a dock in Baltimore Harbor and a libel, under Section 2 of the Suits in Admiralty Act,¹ was timely begun in the District Court for Maryland.

It is conceded by the United States that the injury was due to the defective, unsafe and unseaworthy condition of the vessel and her gangway, and to the fault and negligence of her crew, without contributory fault or negligence on the part of libellant. The District Court made an award of damages, the amount of which is not questioned.

In the court below and on this appeal the contention is that the Employees' Compensation Act² provides libellant — an employee of the United States — his sole and exclusive remedy against the Government; in short, that the subsequent enactment of the Suits in Admiralty Act, in the circumstances, added nothing to his rights. The District Court rejected the contention. The single question, therefore, is whether libellant may sue the United States under the Suits in Admiralty Act for an injury sustained by him on board a merchant vessel owned and operated by the United States.

Judge Chesnut, in a well reasoned opinion, bottomed in large measure on the language of the Supreme Court in Brady v. Roosevelt Steamship Co.,³ held that the suit was properly brought under Section 2 of the Act. That case was an action against the Steamship Company alone, to recover for personal injuries negligently inflicted by the Company while operating the S. S. "Unicoi" for the United States Maritime Commission. The facts in the case are in all material respects the same as in the case here. In both, a United States Custom Inspector in the discharge of an official duty was injured as a result of a defective ladder used as a gang-plank to board or leave the vessel; in each, the vessel belonged to the United States and was engaged in the merchant service. The difference in the two cases, aside from the fact that one was brought at law against the Steamship Company and the other in admiralty against the United States, is that in the Brady case the Government employee had claimed and received compensation under the Employees' Compensation Act, whereas in the present case libellant made no such claim and no compensation was ever paid. In the Brady case suit was begun in a New York State Court and afterwards removed to the District Court, where it was tried to a jury, and, after denial of defendant's motion to dismiss because the remedy, if any, was exclusively under the Suits in Admiralty Act, a judgment was had on the law side of the court. On appeal the Second Circuit reversed (128 F.2d 169), on the ground that the Suits in Admiralty Act provided the exclusive remedy, and that accordingly the injured inspector's rights were limited to a libel in personam against the United States or the Maritime Commission.

The Supreme Court granted certiorari to determine whether the Steamship Company, in the circumstances we have named, was, because of the provisions of the Suits in Admiralty Act, non-suable for the negligent exercise of its delegated powers Answering the question in the negative, the Court reversed. It will thus be seen that the precise point involved in the Brady case is different from that involved in the present case. But in reaching its conclusion as to the Steamship Company's liability, the Supreme Court announced its views fully on the point involved here. For example, the Court said:⁴

"We agree with the court below that this was a maritime tort over which the admiralty court has jurisdiction. * * *

"And we may assume that petitioner could have sued either the United States or the Commission under the Suits in Admiralty Act.

"In any event such a suit would be the exclusive remedy in admiralty against either of them" — (i.e., the United States of the Maritime Commission). (Emphasis supplied).

Granting all of this, the Supreme Court, nevertheless, thought that for its negligent acts as operating agent, the Steamship Company was liable to suit without regard to the Suits in Admiralty Act. It is of course not contended, as was pointed out by Judge Chesnut, that the quoted language of the Supreme Court was necessary to its decision, or that it is controlling here. But it would be going very far to conclude that what the Supreme Court said in that case is entitled to no respect, or that it should be disregarded, or even to suggest that it was said incidentally and without consideration. And our view in this respect is confirmed by the fact that the Court was careful to qualify the precise and definite statements we have italicized by pointing out that what it said in that regard would not apply in a case in which the injured employee had asked for and received compensation under the Employees' Compensation Act. All of this indicates, we think, that the whole opinion in the Brady case was intended as a complete coverage of the subject. And if we are correct in this assumption, it follows, of course, that the right of a person in the position of appellee to sue the United States under the Suits in Admiralty Act is unchallengeable.

But wholly aside from all of this, we have no manner of doubt from the plain words of the statute, considered in the light of the ordinary rules of statutory construction, that we are required to reach the same result. In substance, the provision in question is that whenever a proceeding in admiralty could be maintained against a privately owned and operated vessel, a libel in personam may be brought against the United States in the operation of its merchant fleet. We are not at liberty to alter or add to the plain language of the statute to effect a purpose which does not appear on its face. There is certainly no suggestion in this language, or in any other language of the Suits in Admiralty Act, which implies that the right is limited to persons outside the provisions of the Employees' Compensation Act, and it is a...