member of the dredge's crew or that the Government may have been
only indirectly concerned with the operation of the vessel. See
United States v. Matson Nav. Co., 201 F.2d 610 (9th Cir. 1953)
and Francese v. United States, 229 F. Supp. 10 (E.D.N.Y. 1964).
The whole basis of Petersen's claim is that the alleged damage to
its dock was a result of the dredging operation performed by a
vessel. And Petersen's claim against the Government here
considered stems from its alleged misdirection of that vessel. If
Petersen had a vessel damaged because of the improper dredging,
his cause of action against the United States would be in
admiralty. It should make no difference because it was its dock
which was damaged. See U.S.Code Cong.Service, 80th Cong. 2nd
Sess., Vol. 2, 1948, p. 1899. To deny application of § 740 in
this situation would revive the artificial distinction Congress
was concerned with abolishing and ignore the maritime nature of
the Government's activities.
III. United States Consent under the Suits in Admiralty Act.
If there is a remedy against the: United States under the Suits
in Admiralty Act, 46 U.S.C. § 741-752, then suit under the
Federal Tort Claims Act is barred. 28 U.S.C. § 2680(d). 46 U.S.C. § 740
provides that suits against the United States for damage
done on land by a vessel on navigable water under the Public
Vessels Act, 46 U.S.C. § 781-790 or the Suits in Admiralty Act
may not be filed until six months after an administrative claim
has been made. Department of Highways, State of La. v. United
States, 204 F.2d 630 (5th Cir. 1953). The Federal Tort Claims
Act, as applicable here,*fn5 has no such requirement
Prior to 1960, 46 U.S.C. § 742. which is the section of the
Suits in Admiralty Act wherein the United States has consented to
be sued, read: "In cases where if such vessel were privately
owned or operated, or if such cargo were privately owned and
possessed, a proceeding in admiralty could be maintained * * * a
libel in personam may be brought against the United
States, * * * provided such vessel is employed as a merchant
vessel." "Such vessel" refers back to 46 U.S.C. § 741 which
speaks of "vessel owned by * * * or in the possession of * * * or
operated by or for the United States." "Such cargo" refers back
to the same section which speaks of "cargo owned or possessed by
the United States." The Government concedes that before 1960 in
cases not involving Government vessels it had not consented to be
sued under the Suits in Admiralty Act and that the Federal Tort
Claims Act constituted the Government's waiver of sovereign
immunity for maritime torts not involving Government vessels. For
example, Somerset Seafood Co. v. United States, 95 F. Supp. 298
(D.Md. 1951) involved a vessel which collided with a wreck that
had been negligently created and marked by the United States. In
rejecting the contention that 28 U.S.C. § 2680(d) precluded
application of the Federal Tort Claims Act the court stated "They
(the Suits in Admiralty Act and the Public Vessels Act) are
concerned principally with torts which may be committed by
vessels owned and used by the United States as public vessels or
as merchant vessels. But there are other types of maritime
torts * * *" The Court of Appeals affirmed this reasoning at
193 F.2d 631 (4th Cir. 1951). The decisions in Moran v. United
States, 102 F. Supp. 275 (D.Conn. 1951); Steamtug Aladdin, Inc. v.
City of Boston, 163 F. Supp. 499 (D.Mass. 1958); Indian Towing Co.
v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955);
Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305
(1960) are in accord.
In 1960, Congress amended 46 U.S.C. § 742. Pub.L.No.86-770,
80th Cong. 2nd Sess., 74 Stat. 912 (September
13, 1960). The Government contends that by the inclusion of the
words "or if a private person or property were involved" Congress
intended to include all maritime torts within the Suits in
Admiralty Act and not just those involving vessels owned,
possessed, or operated by or for the Government. Although the
cases cited by the Government, Beeler v. United States,
224 F. Supp. 973 (W.D.Pa. 1964), reversed on other grounds,
338 F.2d 687 (3rd Cir. 1964); Utzinger v. United States, 246 F. Supp. 1022
(S.D.Ohio 1965); Tankredereit Gefion A/S v. United States,
241 F. Supp. 83 (E.D.Mich. 1964) do support that proposition, this
court believes that the 1960 amendment had no such purpose.
The original purpose of the 1920 Suits in Admiralty Act was to
free government shipping, both ships and cargo, from the
inconvenience of arrest and seizure, and in lieu thereof to
provide a remedy by a libel in personam for persons entitled to
redress from the United States by reason of the operation of
government ships or the transportation of government cargo.
Prudential Steamship Corporation v. United States, 220 F.2d 655
(2nd Cir. 1955). The 1960 Amendment was not intended to change
this basic purpose of the statute by enlarging the jurisdiction
it conferred but was merely an attempt to alleviate the problems
stemming from the fact that suits against the United States
involving certain maritime transactions could be brought either
in the Court of Claims under the Tucker Act, 28 U.S.C. § 1346,
1491, or in the District Court under the Public Vessels Act, or
Suits in Admiralty Act. See U.S.Code Cong. and Admin.News, 86th
Cong. 2nd Sess., Vol. 2, pp. 3583, 3584 (1960). Because of
certain confusing language in the statutes suits were often
erroneously filed under one statute in one court and then
dismissed because it was too late to refile the suit under the
correct statute in the other court. The amendment, therefore,
authorized transfer of cases between the District Courts and
Court of Claims and vice versa while tolling the statute of
limitations. 28 U.S.C. § 1406(c), 1506. To eliminate the cause
of the problem the confusing language was clarified or
eliminated. The requirement in the Suits in Admiralty Act that
the Government vessel be operated as a "merchant vessel" which
had created the most confusion and had given rise to the
possibility that the Government vessel could fall outside the
scope of both the Suits in Admiralty Act and the Public Vessels
Act was eliminated. See Gilmore and Black, supra at 775. The
words "or if a private person or property were involved" were
added not to bring all maritime torts by the Government into the
statute's range but more likely merely to: (1) avoid the
technical distinction of when goods owned by the Government to be
carried on a vessel have ceased to be "merchandise" and have
become "cargo" which was the point of decision in Ryan
Stevedoring Co. v. United States, 175 F.2d 490 (2nd Cir. 1949).
U.S.Code Cong. and Admin.News, 86th Cong. 2nd Sess., Vol. 2, p.
3586 (1960); (2) confirm that the Act was not limited to cases
where prior to it the Government vessel could have been seized in
rem but went farther and gave a remedy in personam against the
United States both in cases where only the vessel would be liable
and in those cases where the owner of the vessel, if privately
owned, would be personally liable. See Pennsylvania Railroad
Company v. United States, 245 F.2d 321 (2nd Cir. 1957); and (3)
lay to rest the notion that the Government's ownership of cargo
must be directly connected with the Government's ownership and
operation of a vessel. See Prudential Steamship Corporation v.
United States, supra.
That the 1960 amendment was not intended to change the
requirement of a vessel "owned by * * * or in possession
of * * * or operated by or for the United States", is supported
by the immediate statutory context of the phrase in question. Van
Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945
(1964). The full title of the chapter embracing 46 U.S.C. § 742
Suits in Admiralty By or Against Vessels or Cargoes of United
States. The amended 46 U.S.C. § 742, itself, still speaks of
suits being brought in the district "in which the vessel or cargo
charged with liability is found". And 46 U.S.C. § 740 speaks of
presenting a claim to the "agency owning or operating the vessel"
involved. Ira S. Bushey & Sons, Inc. v. United States,
276 F. Supp. 518 (E.D.N.Y. 1967), reversed on other grounds,
398 F.2d 167 (2nd Cir. 1968); 1 Jayson, Handling Federal Tort Claims, §
7.01 (1964); 2 Jayson, supra at § 257; and Petition of United
States, 216 F. Supp. 775 (D.Or. 1963) also support the view that a
Government vessel is still required. Based on the foregoing, the
court concludes that unless the vessel was "owned by * * * in the
possession of * * * or operated by or for the United States"
there is no remedy available under the Suits in Admiralty Act.
If that be so, then there is no bar to an action under the
Federal Tort Claims Act. Under that Act the court must apply the
"law of the place where the act or omission occurred". 28 U.S.C. § 1346(b).
The "law of the place" includes the state's
choice-of-law rules. Richards v. United States, 369 U.S. 1, 82
S.Ct. 585, 7 L.Ed.2d 492 (1962); Gowdy v. United States,
412 F.2d 525 (6th Cir. 1969). If the tort is within the application of
maritime law, then the state court would be required to apply
that law. Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4
L.Ed.2d 305 (1960); Gowdy v. United States, supra.
IV. Owned by * * * or in the possession of * * * or operated by
or for the United States.
This phrase has been subject to little judicial construction.
Since the pleadings are unclear as to the actual involvement of
the United States in the operation of the vessel, the court need
say only a few words.
It seems fairly clear that the United States neither owned or
possessed the dredge involved here, so the real issue is whether
the vessel was "operated by or for the United States."
In Matson Navigation Co. v. United States, 284 U.S. 352, 52
S.Ct. 162, 76 L.Ed. 336 (1932), the United States requisitioned
for its use several merchant vessels then owned and operated by
the petitioner. The Shipping Board then entered into a contract
called a "requisition charter" for the operation of each vessel.
It provided that the vessel should remain in the service of the
United States, to be employed as it might determine, but that
petitioner should operate the vessel, furnish new equipment and
pay for provisions, wages, shipping fees, and supplies. The
United States agreed to pay to petitioner certain enumerated
expenses of maintenance and operation of the vessel and ship hire
at a monthly rate. The court held that the vessels were operated
for the Government. In A.H. Bull S.S. Co. v. United States,
105 F. Supp. 474 (S.D.N.Y. 1952) the court held that a vessel was
operated for the United States where the Maritime Commission
employed her under a time charter relationship which left the
Commission in control of the voyages made, goods carried and
performance of its orders by master and crew. Epstein v. United
States, 86 F. Supp. 740 (S.D.N.Y. 1949) and Burkholder v. United
States, 60 F. Supp. 700 (E.D.Pa. 1944) involved vessels
requisitioned by the United States and operated under a time
charter with the War Shipping Administration which were held to
be operated for the United States. In N.S. Byonnes & Son
Dampskibsrederi Aktieselskab v. United States, 209 F. 123
(S.D.N.Y. 1923), the court held that a vessel chartered to the
United States and then subchartered to another was not operated
for the United States and intimated that much Government control
would be necessary to bring a vessel within that phrase. See
Burkholder v. United States, supra 60 F. Supp. at 703.
Although the above cases leave much of a vacuum, it would seem
to the court that extensive operation or direction of the vessel
by government personnel
would be required to make the vessel operated "by the United
States" and something closer to a time charter where the
Government directs the vessel's overall functions even though the
owner may control the operation of the vessel's personnel and
equipment rather than a single purpose contract entered into with
an independent contractor would be required to make the vessel
"operated for the United States".
The motion to dismiss is denied.