The opinion of the court was delivered by: KAUFMAN
Libelant sues in admiralty for damages for personal injuries allegedly based upon negligence and unseaworthiness and for maintenance and cure. He was employed as a seaman by the United States, through the Inland Waterways Corporation, a wholly owned instrumentality of the United States. The accident took place aboard the Illinois, a ship which was owned, manned and operated by the Inland Waterways Corporation and was employed as a merchant vessel.
The exceptive allegations now before the Court squarely raise the issue whether libelant's remedy under the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq., bars this suit under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq.
This Court does not write upon a clean slate. In Johansen v. United States, 1952, 343 U.S. 427, 72 S. Ct. 849, 96 L. Ed. 1051, the Supreme Court held that a civilian seaman employee of the United States injured on a 'public vessel' was barred from suing the Government under the Public Vessels Act, 46 U.S.C.A. § 781 et seq., because his sole and exclusive remedy was under the Federal Employees' Compensation Act. On the precise issue presented in this case, the Eighth Circuit, in Inland Waterways Corp. v. Doyle, 1953, 204 F.2d 874, held that a civilian seaman employee of the United States injured on a 'merchant vessel' could sue under the Suits in Admiralty Act, the Compensation Act being merely an alternative remedy. This holding was expressly followed in Cowan v. Inland Waterways Corp., D.C.E.D.Ill. 1954, 121 F.Supp. 683. Judge Dimock of this District in Patterson v. United States, D.C.1955, 129 F.Supp. 794, held contra to Doyle and Cowan.
The Eighth Circuit felt impelled to its conclusion by certain language in the Johansen case. Although the Court of Appeals found some language in Johansen which supported the view that the Compensation Act was a bar to a remedy under the Suits in Admiralty Act, it was convinced that other language in Johansen dictated its contrary holding. It was with reluctance that the Eighth Circuit held as it did, for the Court said:
'We have no hesitation in saying that we can conceive of no sound reason for making a distinction with respect to remedies between civilian seamen employed by the United States on its 'public vessels' and those employed on its 'merchant vessels'. * * * We think that the remedy provided by the Federal Employees' Compensation Act should be exclusive. Our sole concern, however, is with what the law is and not with what it should be.' 204 F.2d at page 878.
Actually, in Johansen, Justice Reed stated that the Court would review and hold on only the 'public vessel' issue, leaving open the 'merchant vessel' question.
The language in the opinion cuts both ways on the instant question and renders it ambiguous or, at least, 'leaves the issue open.'
The language of both the Public Vessels Act and the Suits in Admiralty Act prima facie would seem to authorize suit by a seaman-employee of the United States. The language and legislative purpose of both Acts are similar. The Suits in Admiralty Act, passed in 1920, waived the Government's sovereign immunity with respect to merchant vessels. In 1925 the Government extended its waiver, in the Public Vessels Act, to all of its vessels by including public vessels within the sphere of liability.
I can discern no rational basis for granting an election of remedies to a civilian employee of the United States aboard a merchant vessel when his counterpart aboard a public vessel is denied such an election.
The exceptive allegations are sustained and the libel ...