Canadian Aviator v. United States

142 F.2d 709, 1944 U.S. App. LEXIS 4327, 1944 A.M.C. 732

• Court: Court of Appeals for the Third Circuit
• Decided: May 2, 1944
• Docket: No. 8429
• Status: Published

Opinions

MARIS, Circuit Judge.

Canadian Aviator, Limited, the owner of the steamship Cavelier, filed a libel in the District Court for the District of New Jersey seeking to recover $75,000 from the United States under the Public Vessels Act, 46 U.S.C.A. § 781, for damages alleged to have been sustained by the Cavelier. The respondent prayed that the libel be dismissed upon the grounds that it failed to state a cause of action within the provisions of the Public Vessels Act for which the United States has consented to be sued. The district court dismissed the libel for want of jurisdiction.

The district courts, of course, have no jurisdiction of a suit against the United States unless the United States has consented to be sued. United States v. Sherwood, 1941, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058. The libellant contends, however, that consent to the present suit has been given by Congress in the Public Vessels Act. Section 1 of that act, 46 U.S.C.A. § 781, provides:

“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.”

This statute, the libellant urges, is applicable to the facts of the present case.

The libel in the case before us avers that the United States was the owner of the patrol boat YP 249, a public vessel in the service of the United States Navy; that the Cavelier while en route from Canada to Jamaica received orders from the United States naval authorities to enter the Delaware Bay; that upon approaching the bay she received instructions from the naval authorities that the YP 249 would precede her through the waters of the entrance to Delaware Bay and received orders from such authorities to follow directly astern of the YP 249; and that pursuant to these orders “the Cavelier proceeded directly astern of the YP 249 and attempted as ordered to enter Delaware Bay following directly astern of the YP 249 but about 9:30 p.m., while proceeding directly astern of YP 249 as ordered, the Cavelier struck a submerged wreck and sustained serious damages.” It is thus averred, says the libellant, that the damages were caused by a public vessel owned by the United States, a cause of action for which the United States has waived its sovereign immunity and for which it has consented to be sued in personam in admiralty.

The question which we must determine, therefore, is whether the damage to the Cavelier can be said, upon the libellant’s averments, to have been “caused by a public vessel,” the YP 249, within the meaning of the Public Vessels Act. In determining this question we must bear in mind that the act, being the relinquishment of a sovereign immunity, must be strictly interpreted. United States v. Sherwood, 1941, 312 U.S. 584, 590, 61 S.Ct. 767, 85 L.Ed. 1058; Schillinger v. United States, 1894, 155 U.S. 163, 166, 15 S.Ct. 85, 39 L.Ed. 108.

Since the phrase “caused by a public vessel” is not further defined in the act, it is appropriate to seek the legislative intent in its usage. State of Maine v. United States, 1 Cir., 1943, 134 F.2d 574. The Committee on Claims of the House of Representatives had this to say in its report¹ as to the purpose of the bill (H.R. 9535) which became the Public Vessels Act:

“The chief purpose of this bill is to grant private owners of vessels and of merchandise a right of action when their vessels or goods have been damaged as the result of a collision with any Government-owned vessel, though engaged in public service, without requiring an application to Congress in each particular instance for the passage of a special enabling act.”

“Shipowners, whose vessels have suffered a collision with any Government-owned ship in the public service and who have a cause of action under existing procedure, must apply to Congress for the passage of a special enabling act before suit can be brought in the admiralty courts.”

In a portion of the report devoted to the legislative history of governmental immunity the Committee on Claims stated:

“The only general legislation covering the subject matter of the pending bill is-the provision embodied in the act of December 28, 1922, authorizing the Secretary of the Navy to adjust claims involving not more than $3,000. This latter is, of course, wholly inadequate, since the damages in collision cases are usually very large in amount.”

In dealing with the law in other countries as to the right to sue the sovereign in cases such as that sought to be covered by the proposed bill the report stated :

“Wholly apart from the petition of right, a simple and efficacious method of relief is available in England for the very claims now under consideration. In the case of a collision between a British public vessel and the ship of a subject or a foreigner, it is the established English practice to permit the private owner to begin suit in the English courts against the navigating officer of the Government vessel. As a matter of course, the solicitor for the treasury appears on behalf of the respondent. Tire case is tried as if between private parties, with similar rights of appeal to either litigant. If it is shown that the public vessel, through her navigators, was at fault, the Government, after judicial assessment of the damages, pays the loss sustained by the private owner.”

Attached to the report and made a part of it are letters from Secretary of State Charles E. Hughes, Acting Secretary of the Navy Theodore Roosevelt, Jr., Secretary of the Treasury Andrew W. Mellon, Secretary of War John W. Weeks, Attorney General Harlan F. Stone and Secretary of Commerce Herbert Hoover written to the Committee on Qaims in response to a request as to their views upon a proposed bill (H.R. 6989, 68th Cong., 1st Sess.) authorizing suits against the United States in admiralty for collisions caused ‘by public vessels belonging to the Únited States. H.R. 6989 was an earlier bill which was supplanted by H.R. 9535. Each writer expressed himself as being in favor of an act authorizing suits against the United States in cases of collisions with public vessels of the United States. Except for claims for towage and salvage services for which the bill also provided, the discussion of the cabinet officers dealt solely with collision claims. We do not find the faintest suggestion either in the correspondence or in the report itself that the bill would effect a general waiver of the sovereign immunity from suit on all claims for damages resulting from the negligence of the personnel of a public vessel even though the vessel itself was not the physical instrument which did the injury. The' House Committee report, with its accompanying correspondence, was adopted in toto by the Committee on Claims of the Senate as its report.²

The libellant points out that, whereas the earlier bill (H.R. 6989) was limited in terms to suits for collisions caused by public vessels, the bill finally enacted (H.R. 9535) authorized suits for damages caused by such vessels. It argues that the change in phraseology indicates a Congressional intent to cover a field of damage claims broader than those arising solely from collisions. We think that this change in the phraseology of the bill was intended to extend the waiver of immunity beyond cases of actual collision to those cases in which the vessel is the physical cause of the injury even though it does not come into actual physical contact with the injured object.³ We are satisfied, however, that Congress did not intend by the act to extend the waiver of immunity beyond those cases in which the vessel itself was the physical instrument by which the damage was done. The fact that the Congressional committees appended the correspondence regarding H.R. 6989 to their reports on H.R. 9535 is strong evidence that they did not consider that the latter bill was substantially broader than the former one. Certainly if Congress had contemplated that H.R. 9535 would permit suit against the United States for all damages resulting from the negligence of naval personnel aboard public vessels it would not have used this correspondence as it did, but would have submitted the new bill to the department heads for their views upon the desirability of such a radical departure from historic sovereign immunity.

In using the phrase "damages caused by a public vessel” Congress. was not using language unfamiliar to the law. In the case of The Vera Cruz (No. 2), 9 L.R. Prob.Div. 96 (1884), the English Court of Appeal was called upon to construe the meaning of the phrase “damage done by any ship” in the English Admiralty Court Act of 1861. In that case the Master of the Rolls said (p. 99):

“In 1861 came the Act with the words ‘any claim for damage done by any ship,’ and in 1862 there was the case of The Malvina (Lush. 493), wherein Dr. Lushington stated that, the 7th section of the Act of 1861 was passed for the purpose merely of including damage done by a ship. With that view I agree. The section indeed seems to me to intend by the words ‘jurisdiction over any claim,’ to give a jurisdiction over any claim in the nature of an action on the case for damage done by any ship, or in other words, over a case in which a ship was the active cause, the damage being physically caused by the ship. I do not say that damage need be confined to damage to property, it may be damage to person, as if a man were injured by the bowsprit of a ship. But the section does not apply to a case when physical injury is not done by a ship.”

In the same case Judge Bowen said (pp. 100, 101):

“Shortly, the question is, whether this is a claim for damage done by a ship, and I think that the history of the law on this point proves that it is not. Apart from that, however, the obvious meaning of the Act leads to the same conclusion—for the Act gives a claim for compensation for damage done by the ship—this, and this only, is the cause of action. 'Done by a ship’ means done by those in charge of a ship, with the ship as the noxious instrument.”

In the case of The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 487, 47 L.Ed. 760, the Supreme Court had under consideration the meaning of a Wisconsin statute which provided that every ship, boat or vessel navigating the waters of that state should be liable “for all damages arising from injuries done to persons or property by such ship, boat, or vessel.” The suit was by a seaman who had been injured by reason of an improvident and negligent order of the master in respect of the navigation and management of the vessel. The court said, pages 176, 177 of 189 U.S., page 487 of 23 S.Ct., 47 L.Ed. 760:

“But the vital question in the case is whether the damages arose from an injury done to persons or property by such ship, boat, or vessel. The statute was doubtless primarily intended to cover cases of collision with other vessels or with structures affixed to the land, and to other cases where the damage is done by the ship herself, as the offending thing [emphasis supplied], to persons or property outside of the ship, through the negligence or mismanagement of the ship by the officers or seamen in charge. * * *

“The act in this particular uses the same language as the 7th section of the English Admiralty Court Act of 1861, which declares that ‘the high court of admiralty shall have jurisdiction over any claim for damage done by any ship.’ Construing that act, it has been held by the court of admiralty that it applies to damages occasioned by a vessel coming in collision with a pier, The Uhla, L.R. 2 Adm. & Eccl. 29, note, and also to cases of personal injury, The Sylph, L.R. 2 Adm. & Eccl. 24, where a diver, while engaged in diving in the river Mersey, was caught by the paddle wheel of a steamer and suffered considerable injury; but not to a case'where personal injuries were sustained by a seaman falling down into the hold of a vessel, owing to the hatchway being insufficiently protected, The Theta [1894] Prob. 280, or to loss of life, The Vera Cruz, L.R. 9 Prob. Div. 96. As we have indicated above the statute was confined to cases of damage done by those in charge of a ship with the ship as the ‘noxious instrument,’ [emphasis supplied] and that cases of damages done on board the ship were not within the meaning of the act of damages done by the ship.”

We think that Congress in enacting the Public Vessels Act likewise had in mind the concept that the phrase “caused by a public vessel” meant caused by those in charge of the vessel, with the vessel as the ‘noxious instrument’ by which the injury is physically done. Our conclusion in this regard is supported by two decisions of the Circuit Court of Appeals for the Second Circuit. O’Neal v. United States, D.C.E.D.N.Y., 1925, 11 F.2d 869, affirmed 2 Cir., 1926, 11 F.2d 871; Dobson v. United States, 2 Cir., 1928, 27 F.2d 807.

The libellant strongly urges that this is too narrow a construction to be placed upon the statute, that under the ancient rule in the admiralty a vessel is personalized and must answer as a jural personality for the negligence of her officers and crew, and that it was in this personalized sense that Congress referred to the vessel as causing damage. While it is true that a ship is ordinarily thus personalized in the admiralty it does not follow that Congress intended by the Public Vessels Act to endow the public vessels of the United States with such a personality.

The fiction of the ship as a jural personality arose in the admiralty as an expression of the principle that one who has a contract, to which the ship is bound and which is breached, or who, through the instrumentality of the ship, has suffered a wrong that is within the maritime jurisdiction, shall have by way of security or redress, an enforceable interest in the ship. 1 Benedict on Admiralty, 6th Ed. § 11. The interest thus given is known as the maritime lien and by its enforcement the ship answers for its liabilities whether in contract or tort. Thus the personalization of a ship has no significance in the absence of an enforceable maritime lien. It is only in the enforcement of such a lien by a proceeding in rem against the vessel that this legal fiction may be invoked.

The Public Vessels Act, however, in Section 8, 46 U.S.C.A. § 788, expressly provides that nothing in the act “shall be construed to recognize the existence of or as creating a lien against any public vessel of the United States.” Section 1 of the act, as we have seen, authorizes the filing •of a libel in personam against the United States. The act does not authorize a proceeding in rem against a public vessel •and any possibility of such a proceeding is negatived by the express denial of a maritime lien. It follows that the legal fiction by which the ship is held to answer for the torts of her officers and crew has no place in a proceeding against the United States under the act.

It seems unlikely that Congress would intentionally burden the national defense by making 'the public treasury answerable in damages for injuries caused by members of the naval forces in the performance of their duties, even though the duties be negligently performed. But if it did decide to give up its sovereign immunity to this unprecedented extent we think that it would do so directly in clear and •unequivocal language and would not seek ■to achieve the result in any such obscure And circuitous way as is involved in the •statutory construction urged upon us by the libellant. We cannot think that in authorizing an action in personam against the United States for damages caused by a public vessel Congress intended to refer to “public vessel” in the sense of a fictional personality responsible for damages caused by her officers and crew, and thus by implication to impose upon the United States liability for such damages as if caused by the personalized vessel, merely because in a wholly different kind of proceeding,— an action in rem against a private vessel to enforce the lien for a maritime tort,— the admiralty has for perfectly valid reasons not here present thus personalized the vessel.

Turning to the averments of the libel it is clear that the YP 249 was not the “noxious instrument” which physically caused the injury to the Cavelier. The physical cause was the submerged wreck. Libellant’s complaint in reality is of the negligence of the navigating officers of the YP 249, whose directions the Cavelier was following. Its grievance would have been no different if those officers had directed the course of the Cavelier from her own bridge instead of from the bridge of the YP 249. The latter vessel, as a physical instrumentality, had no part in the matter. The United States, however, has not consented to be sued generally for damage resulting from the negligence of its naval personnel but only when by reason of such negligence a public vessel causes the damage. It follows that the district court was right in dismissing the libel for want of jurisdiction.

The decree of the district court is affirmed.

1 House Report No. 913, 68th Cong., 1st Sess.

2 Senate Report No. 941, 68th Cong., 2d Sess.

3 Thus in Coastwise Transp. Corporation v. United States, D.C.Me.1930, 43 F.2d 401, recovery was permitted for damages to a vessel pushed or pulled onto a reef by the navy tug which had her in tow. In The Harding Highway, 3 Cir., 1931, 53 F.2d 938, recovery was allowed against the United States upon proof that the United States dredge W. L. Marshal in attempting to pass the ferryboat Harding Highway occupied more than her share of the channel and crowded the ferryboat so that it struck a stone jetty and sustained damage. In McCormack Sand & Gravel Corporation v. United States, D.C.N.Y.1938, 1938 A.M.C. 1569, recovery was permitted for damages to scow's which resulted from swells negligently set up by a United States destroyer.