Nicholas E. Vernicos Shipping Co. v. United States

349 F.2d 465
CourtCourt of Appeals for the Second Circuit
DecidedJune 21, 1965
DocketNo. 423, Docket 29315
StatusPublished
Cited by8 cases

This text of 349 F.2d 465 (Nicholas E. Vernicos Shipping Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nicholas E. Vernicos Shipping Co. v. United States, 349 F.2d 465 (2d Cir. 1965).

Opinion

FRIENDLY, Circuit Judge:

The United States appeals from a judgment of the District Court for the Southern District of New York, 223 F. Supp. 116 (1963), awarding the owners of two Greek tugs an amount equal to three months’ expenses of maintenance, to wit, $24,098.70, and the crews an amount equal to three months’ wages, to wit, $5,577.60, for salvage services to two store ships of the Sixth Fleet at Piraeus in 1956. In this court the Government wisely has not disputed, as it apparently did below, 223 F.Supp. at 119-120, that libelants in fact rendered salvage services rather than mere tow-age. Its points on appeal are the overruling of its defense of sovereign immunity, the making of an award to the crew, and allegedly excessive amount.

Since none of the parties quarrels with Judge MacMahon’s statement of the facts, 223 F.Supp. at 117, it will suffice for the moment to say that the two naval vessels, having a value, together with stores, in excess of $2,000,000, found themselves in a condition of peril as a result of a violent squall in the early evening of October 29, 1956, while they were moored, tied to one another, at a dangerous anchorage in St. George’s Bay; that libelant’s tugs, which were kept in readiness to answer calls for assistance, promptly responded to radio summons; that the tugs made it possible for the ships to return to their former position; and that when the weather again worsened, the tugs returned on request and stood by throughout the night, pushing against the side of one of the vessels to relieve the strain on the lines.

(1) Since the salvage services were rendered to naval vessels which are not within the Suits in Admiralty Act of 1920, 46 U.S.C. §§ 741-752, the only basis for suit against the United States is the Public Vessels Act of 1925, 46 U.S.C. §§ 781-790. Section 1 of that Act, 46 U.S.C. § 781, would generally be quite adequate for the purpose but when, as here, the suit is “by a national of any foreign government,” the United States has not consented to be sued “unless it shall appear to the satisfaction of the court in which suit is brought that said government, under similar circumstances, allows nationals of the United States to sue in its courts,” § 5, 46 U.S.C. § 785. Libelants’ right to sue thus depends on whether the United States court is satisfied that the Greek courts would entertain an action by a United States national for salvage services to a vessel of the Royal Hellenic Navy.

The conflicting expert testimony on this issue is exceedingly unsatisfactory.1 We have found more help in Nicolas Eu-stathiou & Co. v. United States, 154 F. Supp. 515 (E.D.Va.1957), where Judge [468]*468Hoffman had to decide a related issue— whether the owners of a United States merchant ship could sue in Greece for collision damage inflicted by a Greek naval vessel — and apparently received more assistance from experts than was rendered here.

Judge Hoffman answered his question in the affirmative, reasoning as follows: Article 914 of the Greek Civil Code of 1946 imposes liability on any person who has illegally caused damage to another blamefully — a provision which clearly would encompass collision damage. Article 4 of the Civil Code gives foreign citizens the same civil rights as are enjoyed by Greek citizens. Hence the owner of an American ship could sue the private owner of a Greek ship for collision damage. Whether he could sue the Greek Government would depend on Articles 104 and 105 of the Civil Code, which we quote in the margin.2 Apparently— and, from our reading of a translation of the Stassinopoulos text, “Civil Liability of the Government of the Civil Servants and of the Juristic Persons of Public Law under the Civil Code,” referred to in Judge Hoffman’s opinion, 154 F.Supp. at 518, which has been made available to us by the parties, we would say rightly — he disregarded Article 104 as inapplicable to “public property” such as a naval vessel. On the other hand, suit would be permitted by Article 105 unless excluded by the italicized clause, which must have come straight from Delphi.3 On its face this would exclude liability for collision caused by violation of the Rules of the Road. But, Judge Hoffman concluded, the words have not been given such a stultifying breadth but have been read as relating only to provisions established exclusively in the public interest; apparently the aim is to allow liability for typically private claims but to exclude it when the duty is peculiarly governmental, a limitation resembling those of the Federal Tort Claims Act in 28 U.S.C. §§ 2672, 2680. See Stassinopoulos, supra, at 297. He therefore decided that the hypothetical action would lie in Greece and hence that the actual one would lie in the United States. So far as the Eustathiou opinion discloses, no contention was there made concerning the allegedly inhibiting effect of Article 6 of the Brussels Convention, see fn. 1 supra and the discussion infra, although since the Convention covers collision as well as salvage claims against naval vessels, the issue could have been raised there to the same extent as here.

Applying Judge Hoffman’s analysis, we begin with the question whether Greek law recognizes a claim for salvage against a privately owned ship. The Government does not appear to contest this, and we scarcely need proof of the recognition of this right by the legal system of a seafaring nation, derived from the Roman law which insists on preventing unjust enrichment, see Norris, Salvage § 6 (1958). As to sovereign immunity, the claim is not barred by the language of Article 105 either as it requires an illegal act or omission or as it excludes obligations established in the “public interest.” The illegal act or omission in the hypothetical case would not be the handling or location of ships so as to expose them to danger, but the failure to pay salvage for the help received. And a claim for salvage represents a typically private obligation far [469]*469removed from the peculiarly governmental duties of a public official to which the proviso of Article 105 is apparently addressed. See Stassinopoulos, supra, at 312. In the absence of more persuasive expert testimony than the Government offered, we thus incline to the view that Greece would permit American nationals to sue for salvage services to a Greek naval vessel — unless some treaty binding upon her calls for a contrary result.

The United States contends that three treaties, individually or in combination, have that effect. Two of these are manifestly irrelevant. The International Convention for the Unification of Certain Rules Relating to the Salvage of Vessels at Sea, codifying various substantive and procedural rules, signed at Brussels, September 23, 1910, to which the United States and Greece are parties, 37 Stat. 1658 (1910), provides in Article 14 that it “does not apply to ships of war or to Government ships appropriated exclusively to a public service.” This simply remits claims for salvage of such ships to local law free of any obligation under this treaty.

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Nicholas Vernicos Shipping Company v. United States
349 F.2d 465 (Second Circuit, 1965)

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349 F.2d 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholas-e-vernicos-shipping-co-v-united-states-ca2-1965.