The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
An intoxicated seaman opened several floodgate valves of the floating drydock on which his ship, the 210 foot U.S. Coast Guard vessel Tamaroa, was being overhauled. Within the hour, the drydock sank and the ship fell over on its side. Ira S. Bushey & Sons, Inc. seeks $750,000 from the United States for the resulting damage to its drydock and the United States seeks twice that sum from Bushey as compensation for damage to the vessel. For the reasons indicated below, the United States is liable.
Pursuant to contract, the Tamaroa sailed into one of Bushey's wooden drydocks in Gowanus Canal, Brooklyn. Bushey's men raised the drydock by pumping water out of its tanks, using valve controls located on the drydock's walls. The ship then rested on blocks on the drydock floor, permitting its drive shaft to be removed and hull repairs to be made.
Officers and crew continued to live aboard the vessel, assisting with painting and supervising repairs. Access to the ship was provided by a route past the yard's security guard at the gate to the Bushey shipyard, through the yard, up a ladder to the top of one drydock wall and along the wall to a gangway leading to the fantail deck of the ship. On the fantail was a quartermaster's shack where men returning from leave reported.
Seaman Lane, a member of the Tamaroa's crew, returned from shore leave shortly past midnight on March 14, 1963. His prior record in the Coast Guard was unblemished and he had received a superior efficiency rating from the captain of the Tamaroa. For reasons not made clear, while he was on the drydock wall leading to the gangway, he turned three large wheels which controlled flooding of the tanks on one side of the drydock. Each heavy wheel was turned some twenty times, requiring a sustained and deliberate effort. That his act caused the sinking of the drydock and the consequent capsizing of the Tamaroa cannot be doubted.
At eleven minutes after midnight the ship's quartermaster logged Lane aboard, making mental note of the fact that Lane had been drinking and was "loose." Lane, even in his inebriated condition, evidently realized the possible serious consequences of his action. Shortly after he boarded the ship, he attempted to tell two members of the crew what he had done. In the mess hall he mumbled to an off-duty seaman that he had "turned some valves;" this crew member "figured he was joking" and ignored him. A seaman who was standing the engineering watch and inspecting equipment in the engine room cut off a statement about the "valves" and walked away from Lane because he was "drunk."
Less than ten minutes after Lane came aboard, at 12:20 A.M., water was discovered coming into the drydock by a member of the Tamaroa's crew. By 12:30 A.M. the ship began to list, the alarm was sounded and the crew was ordered to muster ashore. Awakened in his cabin at approximately 12:35 A.M., the captain was told to "hurry" and get off the ship "or it will be too late." By 12:40 A.M., the vessel and dock were listing over 20 degrees. Ten minutes later, at 12:50 A.M., the ship slid off the blocks and fell against the drydock wall.
The officers and crew of the Tamaroa acted with admirable dispatch and decisiveness in abandoning the ship. Had they not moved as quickly as they did, serious injury, perhaps loss of life, would have resulted.
Once on shore, the ship's officers immediately notified the shipyard's security guard and asked that pumping of the sinking drydock be started. The guard notified Bushey's other personnel, but no steps to check further listing were taken.
II. BUSHEY'S CLAIM AGAINST THE UNITED STATES
1. Waiver of Immunity; Jurisdiction
Bushey mistakenly seeks relief pursuant to the Public Vessels Act. 46 U.S.C. §§ 781-790. This Act waives governmental immunity and permits a "libel in personam in admiralty" against the government "for damages caused by a public vessel of the United States." See also 46 U.S.C. § 740 (injury "caused by a vessel"). Reliance should have been upon the Federal Tort Claims Act - subdivision (b) of section 1346 of title 28 of the United States Code. Waiver of immunity under the latter Act is based upon torts of government employees acting within the scope of their employment; it grants:
"* * * district courts * * * exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for injury or loss of property * * * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment * * *."
The exclusion from the Federal Tort Claims Act of "any claims for which a remedy is provided by sections * * * relating to claims * * * in admiralty against the United States" would not be applicable since no such remedy is provided. 28 U.S.C. § 2680(d).
The Public Vessels Act is primarily designed to permit recovery against the United States when one of its ships is improperly operated and causes damage as by a collision. See Gilmore and Black, The Law of Admiralty, 776 (1957) (the "most natural usage" is "physical damages arising out of her operation."). While damage to the drydock was literally "caused" by the Tamaroa "colliding" with the dock, the Tamaroa was not, in a practical sense, a ship causing a "collision," but an inert mass. See Gilmore and Black, 30 ("perhaps the best approximation would be to say that the term 'vessel' is applied to floating structures capable of transporting something over the water"). At the time of the accident she was in drydock on blocks, her machinery inoperative, her watertight doors blocked by lines running through them, her hull open and her shaft removed.
Seaman Lane's opening of valves on a structure other than his ship was the primary cause of the accident. Analytically the situation would have been no different had the drydock been pierced by a nearby bulkhead rather than by the ship. Cases holding that a ship in drydock is "in navigation" for purposes of workmen's compensation are not helpful. See Carumbo v. Cape Cod S.S. Co., 123 F.2d 991 (1st Cir. 1941); Hunt v. United States, 17 F. Supp. 578 (S.D.N.Y.1936), aff'd per curiam, 91 F.2d 1014 (2d Cir.), cert. denied, 302 U.S. 752, 58 S. Ct. 271, 82 L. Ed. 581 (1937).
The mere fact that the damage was done by a member of the ship's crew does not warrant application of the admiralty statute. A sailor's conduct may not be sufficiently attributable to his ship to support a finding that the ship caused the resulting damage, yet still be "within the scope of his employment" as that phrase is used in the Federal Tort Claims Act. "Maritime torts of employees of the United States, as distinguished from the torts of vessels of the United States, were intended to be covered by the Federal Tort Claims Act." Jayson, Handling Federal Tort Claims §§ 7.01, 257 (collects cases). See Moran v. United States, 102 F. Supp. 275, 277 (D.Conn.1951). The personification theory and fiction of maritime law that a ship, apart from the men who operate it, is responsible for damage offers no help in this case. Cf. In the Matter of the Petition of Den Norske Amerikalinje A/S, 276 F. Supp. 163 (N.D.Ohio, Oct. 27, 1967) (ship owner held personally liable for punitive damages on basis of captain's reckless and wanton misconduct); Gilmore and Black, The Law of Admiralty 510 (1957) ("It may be concluded that the fiction of ship's personality has never been much more than a literary theme. . . . Since then [the turn of the century] even as literature it has fallen into disrepute"); Note, 77 Harv.L.Rev. 1122, 1125 (1964) ("in rem admiralty actions [should] be analyzed in terms of policy, not metaphor. . . . Indeed, the pattern of results suggests that courts have tacitly been weighing the interests, the tag of personification being added only in those cases in which the balancing favors in rem liability.").
The government also urges the court to find that waiver of immunity rests on the ship's act (46 U.S.C. § 740) rather than on the seaman's tort (28 U.S.C. § 1346(b)) because, under the former, doctrines of limitation of liability come into play. See, e.g., 46 U.S.C. § 183; cf., Wyandotte Transportation Co., v. United States, 389 U.S. 191, 88 S. Ct. 379, 389 n. 22, 19 L. Ed. 2d 407 (1967) (liability of owner for costs of removing negligently sunk vessel not limited to value of vessel). It is quite possible that a ship owner may be liable for greater damage when a sailor - while remaining within the outer limits of scope of employment - departs so substantially from consideration of his ship's welfare as to preclude us from saying that the ship caused the damage. If there must be a ceiling on liability - a doubtful proposition as a matter of policy - perhaps the concepts of maritime limitations in title 46 can be imported into title 28 torts to avoid incongruities of this kind. But, this is a matter to which we need not now address ourselves since in the present case the value of the Coast Guard vessel exceeds the government's liability.
Under modern notions of procedure, the court deems Bushey's claim for relief as arising under the Federal Tort Claims Act. As the Advisory Committee on Admiralty Rules of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States indicated in its note to rule 1 of the Rules of Civil Procedure, the 1965 unification of admiralty and civil rules was designed to "abolish the distinction between civil actions and suits in admiralty." Even before unification, a change of theory would not lead to loss of jurisdiction. As one court put it, although "the United States [has] . . . been sued on the wrong side of the docket, it is [not] entitled to have the suit against it dismissed." Steamtug Aladdin, Inc. v. City of Boston, 163 F. Supp. 499, 501 (D.Mass.1958). "The courts have evinced a liberal attitude in permitting amendment of the pleadings so as not to prejudice a claimant who has made the wrong choice in his theory of the action, as where he has brought suit under the Tort Claims Act when he should have proceeded under the admiralty statute - or in the reverse situation where he has instituted the action on the admiralty side of the docket rather that the law side." Jayson, Handling Federal Tort Claims, § 257 (1966). See Steamtug Aladdin, Inc. v. City of Boston, 163 F. Supp. 499 (D.Mass.1958) ("The error is technical. No one has been prejudiced by the mistake.").
The Federal Tort Claims Act provides that the United States shall be liable for the negligence or wrongful acts of its employees "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The term "place" means the political entity in which the tortious act occurred - here New York State - and not the navigable canal where the dock was moored. Hess v. United States, 361 U.S. 314, 318, n. 7, 80 S. Ct. 341, 345, n. 7, 4 L. Ed. 2d 305 (1960). The "whole law of the State where the act or omission occurred" is applicable - and this law includes a state's rules on choice-of-law. Richards v. United States, 369 U.S. 1, 11, 82 S. Ct. 585, 592, 7 L. Ed. 2d 492 (1962). Since the states must apply federal maritime law to torts of this kind occurring on navigable waters, we are led by this round-about route back to maritime substantive law as determinative of the liabilities of the parties. See Hess v. United States, 361 U.S. 314, 316, 80 S. Ct. 341, 4 L. Ed. 2d 305 (1960) ("Since death occurred on navigable waters * * * Oregon would be required * * * to look to maritime law in deciding it"); Gilmore and Black, The Law of Admiralty, 382 (1957).
There is no inconsistency in a federal court's denying competence to admiralty while applying maritime law. Romero v. International Terminal Operating Co., 358 U.S. 354, 360, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959). Although the terms are often used interchangeably, generally "admiralty" refers to a specialized tribunal and practice in litigation - adjective or remedial ...