The opinion of the court was delivered by: HERLANDS
Defendant, United States of America, has moved for summary judgment on two grounds: (1) that the Court lacks jurisdiction over the subject-matter of the action and over the person of the defendant; and (2) that there is no genuine issue as to any material fact.
Plaintiff, Liberty Mutual Insurance Company, has cross-moved for summary judgment on the ground that there is no genuine factual issue.
The Background of the Action.
The action was instituted on December 16, 1955, under the provisions of the Tucker Act, 28 U.S.C.A. § 1346(a)(2), to recover the sum of $ 2,670.10. Plaintiff's claim arises out of the following factual background.
On or about December 27, 1945, one Louis Elias, a longshoreman employed by The Jarka Corporation, was injured while in the course of his employment aboard the steamship Sea Hydra, a vessel owned and operated by the United States of America and docked at Pier 29, Brooklyn, New York. At the time and place of the injury, The Jarka Corporation was performing stevedoring services aboard the Sea Hydra, pursuant to the terms of a stevedoring contract between The Jarka Corporation and the United States, entitled 'Warshipsteve 3/1/44 North Atlantic' No. WSA-6983.
In conformity with the provisions of the contract, The Jarka Corporation had obtained from plaintiff its 'Standard Workmen's Compensation and Employer's Liability Policy' No. W.C.-2C-81109-NY, effective from March 1, 1945, to March 1, 1946, insuring the liability of The Jarka Corporation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. 901 et seq.
This policy bore an endorsement, dated March 1, 1945, which read:
'Waiver of Subrogation Endorsement
'The company waives any right of subrogation against the United States of America which might arise by reason of any payment under the policy.'
Because of the injuries suffered by him, Elias was entitled to compensation benefits and medical payments under the provisions of the Longshoremen's and Harbor Workers' Compensation Act. Plaintiff paid compensation benefits to Elias in the sum of $ 2,000 and made medical payments in his behalf in the sum of $ 670.10.
All of these expenditures were made without any order awarding compensation having been made by the United States Employees' Compensation Commission. The payments by plaintiff, totaling $ 2,670.10, have been retained by Elias. Plaintiff has not recovered any part of this total amount so paid.
Thereafter, and on or about September 30, 1947, Elias elected to prosecute a third-party action against the United States. He commenced such an action in the United States District Court for the Eastern District of New York by filing a libel charging the United States with negligence in its ownership, operation and control of the Sea Hydra, and with maintaining an unseaworthy vessel at the time and place of the accident.
During the pendency of this third-party action, plaintiff-insurance company notified the United States that it claimed an equitable lien in the sum of $ 2,670.10 in any recovery had by Elias against the United States in the third-party action.
Thereafter, under date of September 13, 1951, Messrs. Kirlin, Campbell & Keating, of counsel to the United States Attorney, wrote to plaintiff advising it that Elias' personal injury suit was going to be settled by the United States for the sum of $ 11,170.10; and further advising that, of this sum, the undisputed share of $ 8,500 was to be paid to Elias, and the remainder of $ 2,670.10 was being reserved by the United ...