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February 14, 1979

Fidel Catarino BLANCO, as Administrator of the goods, chattels and credits of Catarino Blanco, Deceased, Plaintiff,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: COOPER

The decedent, a United States citizen, was employed by defendant, United States Government, as a seaman and crew-member aboard the USNS Sealift Atlantic in April, 1977 when the incidents allegedly leading up to his wrongful death at forty-eight occurred. While the vessel was in the mid-Atlantic the decedent became hysterical, suffering from hallucinations that people were trying to kill him.

The Master of the ship directed that the decedent be confined under guard in the ship's hospital. He escaped confinement on several occasions in the next few hours; on April 16, 1977 he went overboard and disappeared.

On October 17, 1977, plaintiff, one of the decedent's sons and ultimately the administrator of his estate, filed a suit in admiralty for recovery of damages for wrongful death and conscious pain and suffering. Plaintiff alleges that the wrongful death was caused by the negligence of defendant, its officers, agents, servants and employees by reason of their failure to exercise due care in restraining the decedent; further, that the vessel was unseaworthy.

 By stipulation of the parties, plaintiff filed a second complaint on July 6, 1978; it differed from the first only in that plaintiff alleged his own United States citizenship, and that he had been granted Limited Letters of Administration by the Surrogates Court (Bronx County) for the purpose of filing this suit.

 Defendant has raised affirmative defenses in its answer: (1) Plaintiff and/or the persons in whose behalf plaintiff has brought suit are foreign nationals whose government does not allow suits by nationals of the United States in its own courts under similar circumstances. Thus, the court lacks jurisdiction over the matter by virtue of the fact that the United States Government has not waived its sovereign immunity under the statutes invoked by the plaintiff; (2) decedent was contributorily negligent; (3) the negligence of third parties; (4) Plaintiff lacks capacity to sue on behalf of decedent's survivors due to improper evidence of fiduciary power; and (5) the second cause of action (for conscious pain and suffering) fails to state a claim for relief inasmuch as decedent committed suicide.

 Plaintiff moves to strike defendant's first and fourth affirmative defenses; defendant cross-moves to dismiss the complaint.


 This complaint alleges that jurisdiction over the claim is based on "the Public Vessels Act, 46 U.S.C.A. § 781 et seq., or, alternatively, the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq." Both of these statutes constitute a waiver by the United States Government of its sovereign immunity against suits arising out of maritime incidents, subject to the requirements of the provisions of each statute.

 Section 781 of the Public Vessels Act (the PVA) provides that:

A libel in personam in admiralty may be brought against the United States . . . for damages caused by a public vessel of the United States . . . .

 Section 785 of the PVA, the "reciprocity clause," limits recovery as follows:

No suit may be brought under this chapter by a national of any foreign government 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.

 The special requirements for recovery under the PVA include (1) that the vessel be a "public vessel," (2) that the libelant(s) be United States citizens, or (3) if libelants are foreign nationals, that they prove reciprocity for similar suits by United States citizens under the laws of their own countries.

 Alternatively, the complaint seeks jurisdiction under 46 U.S.C.A. § 741 et seq., the Suits in Admiralty Act (the SIAA) which also waives the sovereign immunity of the Government under the following conditions:

§ 742. In cases where if such vessel were privately owned or operated . . . a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States . . . . *fn1"

 The determination whether a proceeding could be maintained "if such vessel were privately owned or operated" leads to other relevant federal statutes, e.g., the Jones Act, 46 U.S.C.A. § 688, and the Death on the High Seas Act (the DOHSA), 46 U.S.C.A. § 761 et seq., important provisions of which will be discussed shortly. Suffice it to say now that certain provisions of these statutes supplement the PVA and the SIAA by allowing recovery for wrongful death, by ...

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