WALLENIUS BREMEN G. mb H. v. United States

• Decision Date: 25 April 1969
• Docket Number: No. 12353.,12353.
• Citation: 409 F.2d 994
• Parties: WALLENIUS BREMEN G. m. b. H., Owner of the M/V MARTHA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

409 F.2d 994 (1969)

WALLENIUS BREMEN G. m. b. H., Owner of the M/V MARTHA, Appellant, v. UNITED STATES of America, Appellee.

No. 12353.

United States Court of Appeals Fourth Circuit.

Argued October 30, 1968.

Decided April 25, 1969.

Bernard G. Barrow, Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellant.

Morton Hollander, Atty., Dept. of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., Alan S. Rosenthal and Walter H. Fleischer, Attys., Dept. of Justice, and Claude V. Spratley, Jr., U. S. Atty., on brief), for appellee.

Before CRAVEN and BUTZNER, Circuit Judges, and McMILLAN, District Judge.

CRAVEN, Circuit Judge:

The single question presented on appeal is whether the exclusive remedy provision of the Federal Employees' Compensation Act bars the claim of a third party for indemnity against the federal government for damages paid an injured government employee. We think it does not and, accordingly, reverse the entry of summary judgment in favor of the United States.

After inspecting agricultural products aboard the M/V MARTHA, a ship owned by Wallenius Bremen,¹ United States Department of Agriculture inspector Mitchell fell off an accommodation ladder between the ship and the dock. He was severely injured when he struck a wooden fender. On January 7, 1966, the inspector filed a libel against Bremen and the MARTHA, seeking damages for his personal injuries allegedly resulting from Bremen's negligence. Bremen settled his suit for $110,000, and then brought suit against the United States, under the Federal Tort Claims Act² and the Suits in Admiralty Act,³ seeking indemnity for the amount paid the inspector in settlement, plus attorney's fees and expenses. The theory of Bremen's suit, the merits of which, if any, we do not reach, was that the inspector's physical condition was such, and was known or should have been known by the United States to be such, that he could not perform his duties with safety to himself and others, and that his physical infirmities had caused or contributed to his fall. Such allegations, fleshed out in the complaint, presented a three-pronged theory of recovery. Conceivably Bremen might be entitled to recover on either (1) a strict tort indemnity theory, or because of (2) implied warranty or contract of indemnity said to arise from the conduct of the United States in requiring the ship to submit to agricultural inspection. It was also contended that Bremen was entitled to recover on (3) an independent tort theory based upon an alleged breach of a duty of care not to Inspector Mitchell but to the ship.

The motion of the United States for summary judgment was granted by the district court on the sole ground that suit by the inspector against the United States was barred by the Federal Employees' Compensation Act (5 U.S.C. §§ 751 et seq., now §§ 8102(a) et seq. (1964)). The district judge reasoned that Bremen could not be awarded indemnity without supporting liability on the part of the indemnitor (the United States) to the person injured, and that there could be none because of the statute.

In pertinent part, the statute provides that "the liability of the United States or any of its instrumentalities * * * with respect to the injury or death of an employee shall be exclusive, and in place, of all other liability of the United States or such instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and anyone otherwise entitled to recover damages from the United States or such instrumentality, on account of such injury or death * *." § 757(b) (now § 8116(c)).

The listing of those excluded from other remedies is the employee, his legal representative, spouse, dependents, next of kin, and finally, the catch-all category "anyone otherwise entitled" which, we think, relates back to previous nouns. All are connected to and closely related to the government employee. The catch-all category simply expresses congressional caution, typical in the drafting of statutes, to exclude all deriving their claims from a personal relationship to the government employee. Ejusdem generis would, for example, perhaps exclude from any other remedy an adopted child, neither next of kin nor dependent, but would not exclude a stranger.

The reason for excluding those in a personal relationship to the government employee is that they presumably benefit from the creation of the exclusive statutory remedy, whereas third-party tortfeasors who are also victims of the government's tortious conduct do not. Thus, Bremen urges that when a third party's right of action against the United States arises out of an independent duty owed by the United States to the third party, it is not barred, nor intended to be barred, by the foregoing statutory limitation, and that so to construe the statute is a distortion of congressional purpose.

Despite the exclusive remedy provision of statutes destroying tort liability of the government and substituting the statutory scheme, indemnity has been allowed in at least three situations by the United States Supreme Court. In 1956, the Supreme Court, while deciding a claim for indemnity in a case involving the Longshoremen's and Harbor Workers' Compensation Act, specified that "We do not meet the question of a noncontractual right of indemnity or of the relation of the Compensation Act to such a right." Ryan Stevedoring Co. v. Pan-Atlantic SS Corp., 350 U.S. 124, 133, 76 S.Ct. 232, 237, 100 L.Ed. 133 (1956). In Ryan, the employee of a stevedore sued a shipowner for injuries sustained in a cargo accident, and the shipowner filed a third-party complaint against the stevedore. Five members of the Supreme Court approved allowing the third-party complaint, rejecting the stevedore's contention that the Longshoremen's and Harbor Workers' Compensation Act, in limiting the stevedore's liability to the compensation provided for in the Act, barred the shipowner from recovering indemnity from the stevedore for damages for which the shipowner had been held liable as a result of the stevedore's breach of a contractual duty owed the shipowner. Such a contractual duty was found in the stevedore's agreement to stow cargo for the shipowner, and therefore to stow it properly.

More closely in point, because it interprets the statute in our case, is Weyerhaeuser SS Co. v. United States, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d (1963), involving a mutual fault collision between a ship and an Army dredge. A United States employee on the dredge sued the shipowner and collected. When the admiralty rule of divided damages was applied, allowing each party to recover from the other one-half of its provable damages and court costs, the shipowner was allowed to include in his damages, and thus partially to recover from the United States, the amount he had paid the United States employee for his injuries. The Court held that the Federal Employees' Compensation Act did not abrogate the historic admiralty rule of divided damages in mutual fault collisions. While the Court conceded that there was no contractual obligation, as in Ryan, it said that there was "instead, a rule of admiralty law which, for more than 100 years, has governed with at least equal clarity the correlative rights and duties of two shipowners whose vessels have been involved in a collision in which both were at fault." 372 U.S. at 603, 83 S.Ct. at 930.

This statement of the Court in Weyerhaeuser, is, we think, of controlling importance and strongly supports Bremen's view of the Act:

"The legislative history of the Federal Employees\' Compensation Act, originally passed in 1916, shows that the concern of Congress was to provide federal employees a swift, economical, and assured right of compensation for injuries arising out of the employment relationship, regardless of the negligence of the employee or his fellow servants, or the lack of fault on the part of the United States. The purpose of § 7(b), added in 1949, was to establish that, as between the Government on the one hand and its employees and thir representatives or dependents on the other, the statutory remedy was to be exclusive. There is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of admiralty law affecting the mutual rights and liabilities of private shipowners in collision cases." (Emphasis added.) (Footnote omitted.)

Weyerhaeuser permits indemnity to the shipowner who had satisfied the claim of the injured United States employee, even though the injured employee could not himself have maintained a suit for damages against the United States because of the limitation of the Act.

Thus it seems clear that the exclusive remedy provision of the Act is not per se a bar to an action for indemnity.

That the Court may have thought that other types of obligations, as well as the divided damages rule, were intended to be undisturbed by the Federal Employees' Compensation Act when claims based on them were pressed by third parties, is indicated by the disposition of Treadwell Const. Co. v. United States, 372 U.S. 772, 83 S.Ct. 1102, 10 L.Ed.2d 136 (1963). The conclusion of the Court of Appeals for the Third Circuit, sub nom., Drake v. Treadwell Const. Co., 299 F.2d 789 (3rd Cir. 1962), was that the United States could not be made to contribute as a joint tort-feasor when prosecution of a tort action by the injured person against the United States was barred by § 7(b) of the Compensation Act. This decision was vacated and the case was remanded to the district court to consider in the light of Weyerhaeuser the validity of a claim by a government contractor for indemnity, after the contractor paid damages to a government employee who was injured by the explosion of a tank provided by the contractor.

But the government urges that Ryan, Weyerhaeuser and Treadwell are distinguishable, and therefore not controlling, and...