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IN RE AMERICAN EXPORT LINES

July 21, 1983

In the Matter of the Complaint of AMERICAN EXPORT LINES, INC., formerly known as AMERICAN EXPORT ISBRANDTSEN LINES, INC., as owner of the S/S C.V. SEA WITCH, seeking exoneration from or limitation of liability.


The opinion of the court was delivered by: TENNEY

TENNEY, J.

The government moves for summary judgment dismissing the third-party complaint asserted against it by American Export Lines, Inc. ("AEL") and the cross-claims asserted against it by Bath Iron Works Corporation ("Bath") and Sperry Rand Corporation ("Sperry"). For the reasons discussed below, the government's motion is denied.

 Background

 On June 2, 1973 the S/S C.V. Sea Witch collided with the S/S Esso Brussels in the New York harbor. Shortly thereafter, AEL, owner of the Sea Witch, filed a petition for limitation of liability pursuant to 46 U.S.C. § 183. Claims were filed against AEL by the Esso Brussels' interests, by injured and dead seamen aboard both vessels, and by owners of cargo aboard the Sea Witch, including the United States.

 One of the alleged causes of the collision was the failure of the Sea Witch's steering system. Accordingly, in December 1973 AEL filed third-party complaints against Bath, who built the Sea Witch; Sperry, who manufactured some of the Sea Witch's steering gear components; and Bond Hydraulic Equipment Service, Inc ("Bond") who modified the Sea Witch's steering gear.

 In early 1977, AEL sought leave to file a third-party complaint against the United States. The complaint alleged that if AEL were found liable by reason of its negligence or the Sea Witch's unseaworthiness, then the government -- upon whose expertise and approval AEL relied in its decision not to provide a dual steering system for the Sea Witch -- is bound to indemnify AFL. The Court permitted AEL to file its third-party complaint, and to advance therein both contractual and tort bases for its claim over. Shortly thereafter, the Court permitted Bath and Sperry to file similar cross-claims against the government. *fn1"

 Since that time, the parties to this case have engaged in extensive settlement negotiations. AEL has, in fact, settled a number of the claims against it. The government, however, has steadfastly maintained that it has no liability to AEL or any of the other parties under the circumstances of this case. The government now moves to dismiss the claims for indemnity against it.

 Arguments

 The government advances a number of arguments in support of its motion for summary judgment. The Court will consider here only those arguments which concern this Court's jurisdiction to entertain the claims that have been made against the government. *fn2" First, the government argues that the tort indemnity claims are essentially claims for contribution from a joint tortfeasor that accrued at the time of the collision, and that these claims are therefore barred by the two year statute of limitations for claims against the United States. *fn3" Second, the government argues that the contractual indemnity claims can be brought only in the Court of Claims.

 AEL, in response, argues first that its claims are for indemnity rather than simply for contribution from a joint tort-feasor; that the indemnnity claims accrued only when AEL settled the underlying cargo and personal injury claims; and that there is, therfore, no statute of limitations bar. *fn4" Second, AEL argues that the government has forfeited reliance on its time bar defense by asserting its cargo claims in this action.

 Discussion

 The United States as sovereign "is immune from suit save as it consents to be sued." United States v. Testan, 424 U.S. 392, 399, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941)). Thus, "Congressional waiver of sovereign immunity is a prerequisite to any suit brought against the United States under admiralty law or otherwise." Roberts v. United States, 498 F.2d 520, 525 (9th Cir.), cert. denied, 419 U.S. 1070, 42 L. Ed. 2d 665, 95 S. Ct. 656 (1974). The Suits in Admiralty Act ("SIAA"), 46 U.S.C. §§ 741-52, constitutes a waiver of sovereign immunity by the United States for certain maritime actions against the federal government. Blanco v. United States, 464 F. Supp. 927, 930 (S.D.N.Y. 1979). The SIAA provides that:

 In cases where if such vessal were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a preceeding in admiralty could be maintained, any appropriate nonjury ...


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