GOODMAN, District Judge.
These seven consolidated cases are actions in tort against the United States. All of the libelants were shoreside civilian employees of the United States. On November 19, 1946, they were engaged in repairing the United States Aircraft Carrier Antietam, at San Francisco Naval Shipyard, Hunters Point. An explosion occurred and the libelants all suffered injuries.
Heretofore Judge Harris of this court decided that the actions could proceed under the Public Vessels Act, 43 Stat. 1112, 46 U.S.C.A. 781 et seq. When the cases were called for trial, the Court, with the consent of all parties, proceeded to conduct a preliminary trial to determine whether or not the libelants had received and accepted compensation pursuant to the Federal Employees Compensation Act, hereinafter referred to as FECA, 39 Stat. 742, 5 U.S.C.A. § 751 et seq. Witnesses testified in each of the cases as to applications for and receipt and acceptance of compensation by the libelants.
The evidence showed that six of the libelants received compensation for varying periods. One libelant, James C. Gibbs, received medical treatment and hospitalization, but no compensation.
Upon conclusion of the preliminary trial there were submitted to the court for decision the following issues:
1. Was the FECA the exclusive remedy of the libelants?
2. If it was not, was the receipt and acceptance of compensation an election of remedies on the part of libelants thus estopping them from maintaining tort actions against the United States?
Exclusiveness of Remedy.
A study of the statutory system for compensating injured federal employees, as well as of the various statutes whereby the United States has consented to be sued for tort liability, and applicable decisions, is persuasive that, until the FECA was amended in 1949, it did not provide an exclusive remedy and did not prevent suits by employees of the United States under the Public Vessels Act.
Since the first federal employees compensation statute was adopted in 1908 up to the amendment of October 14, 1949, there has never been a provision in any of the compensation statutes or their amendments, either in form or effect, making the benefits thereof the exclusive remedy of federal employees. Footnoted is a chronological list of the statutes and their scope.
It is equally true that in none of the statutes by which the United States has waived its sovereign immunity and consented to be
From a review of court decisions, it can be categorically stated that no federal court decision, other than the case of Posey v. Tenn. Valley Authority, 5 Cir., 1937, 93 F.2d 726,
Indeed numerous suits by seamen injured on government merchant vessels have been allowed to proceed against the United States and the United States Shipping Board Fleet Corporation without any discussion of the effect of the FECA.
It is true that there are three cases in the Second Circuit denying naval personnel the right to sue under the Public Vessels Act.
It has been argued by the Government that Section 9 of the Public Vessels Act, 46 U.S.C.A. § 789,
On October 14, 1949, the Congress added subsection (b) to Section 7 of the FECA, 5 U.S.C.A. § 757(b), and there provided specifically and clearly that the Act was the exclusive remedy of all employees of the United States except the masters or members of the crew of vessels. Public Law 357 81st Cong., 1st Sess. The issue of exclusiveness of remedy therefore is no longer precedentially significant. The 1949 amendments may be said to have some argumentative weight as indicative of Congressional awareness that up to that time the compensation statute was not the exclusive remedy of employees; or, to say the least, that there was grave doubt in the matter.
It is my conclusion that the compensation statute was not the exclusive remedy of the libelants in these cases.
Election of Remedies.
There has been almost uniform approval, in the authorities, of the rule that acceptance of compensation under the compensation statute, in the absence of coercion or other improper influence, is a bar to tort suits against the United States for damages.
The evidence in all of the consolidated cases, except that of Gibbs, is clear and convincing that the libelants applied for and periodically received compensation under the statute. The evidence shows that some, if not all of the six libelants, other than Gibbs, suffered serious burns and injuries in the Antietam explosion. These men were immediately hospitalized and received medical attention. The employees of the Compensation Commission prepared all the necessary papers for the injured men and cooperated in every way to secure the prompt payment to them of their compensation payments. The evidence shows, and it is my conclusion, that all six men were fully aware that they were receiving compensation under the compensation statute. It was suggested and argued by counsel for libelants that some duty rested upon the employees of the Compensation Commission to advise libelants that they might have a right of action against the United States in tort for damages. There is no basis in law or in fair dealing for such a duty. To the contrary, it was the conscientious duty of the employees of the United States, administering the compensation statute, in the circumstances of this case to see to it that the injured men were assisted in every way to promptly and regularly receive the compensation to which they were entitled. It is my opinion and finding that the libelants uncoercedly received and accepted compensation under the compensation statute. There is not the slightest evidence to sustain the claim that the acceptance of compensation was either not free or was coerced.
It is contended by libelants the making of claims for and acceptance of compensation under the statute is not sufficient to constitute an election without a final award by the Commission. This argument is invalid. See Frader v. U. S., supra, footnote 16.
The cases of all the libelants except Gibbs will therefore be dismissed upon the ground that the libelants are barred from maintaining the actions because they have elected their remedy under the FECA. Findings should be submitted accordingly.
The case of Gibbs v. United States poses a somewhat different problem. Gibbs received certain benefits under the FECA, namely, medical and hospital attention. He did not apply for nor did he receive any compensation payments. The court will reserve ruling on the question as to whether or not there has been an election of remedies in his case. His case will be set for further trial on December 19, 1950, for the purpose of hearing further evidence on the issue of election of remedies and also on the merits as to the liability of the United States.
Act of March 11, 1912, 37 Stat. 74, extended the 1908 Act to employees engaged in hazardous work under the Bureau of Mines or the Forestry Service;
The Panama Canal Act of August 24, 1912, 37 Stat. 560, 48 U.S.C.A. § 1301 et seq., authorized the President to provide compensation for all employees injured while working in connection with the Panama Canal or the Panama Railroad;
The Federal Employees Compensation Act of September 7, 1916, 39 Stat. 742, 5 U.S.C.A. § 751 et seq., the present Act covering the employees of the United States, defined in Section 40, 5 U.S.C.A. § 790 as "all civil employees of the United States and of the Panama Railroad Company".
Act of July 15, 1939, 53 Stat. 1042, 5 U.S.C.A. § 797, extended the present Act to members of the Officers' and Enlisted Reserve Corps of the Army injured in line of duty in peacetime, and provided they should elect whether to receive benefits under the Act or pensions based upon military service.
The Federal Control Act of March 21, 1918, 40 Stat. 451, permitted the United States, through its Director General of Railroads, to be sued for any injury negligently caused on any line of railway in his custody, precisely as a common carrier corporation operating such line might have been sued;
The Suits in Admiralty Act of March 9, 1920, 41 Stat. 525, 46 U.S.C.A. §§ 741-752, subjected the United States and its wholly owned corporations to suits in personam in respect to all vessels owned by the United States or such corporations and employed as merchant vessels, and also authorized suits to proceed in accordance with the principles of libels in rem, but exempted United States' vessels from seizure by judicial process.
The Public Vessels Act of March 3, 1925, 43 Stat. 1112, 46 U.S.C.A. §§ 781-790, permitted libels in personam to be brought against the United States for damages caused by public vessels of the United States.
The Tennessee Valley Authority Act of May 18, 1933, 48 Stat. 58, 16 U.S.C.A. §§ 831-831dd, created the Tennessee Valley Authority, a corporate body, and granted it the power to sue and be sued.
The Federal Tort Claims Act of August 2, 1946, 60 Stat. 842, 28 U.S.C.A. §§ 1346, 2671-2680, subjected the United States to suits for damages caused by the negligence of its employees while acting in the scope of their employment.
Other statutes which merely granted certain federal corporations the power to sue and be sued are not included in this listing inasmuch as no pertinent cases concerning them have been found.
In O'Neal v. United States, D.C.E.D. N.Y.1925, 11 F.2d 869, the court appears to express the opinion that the Federal Employees Compensation Act is the exclusive remedy of federal employees. However, that case cannot be accepted as a holding to that effect inasmuch as the claimant was a coastguardsman, not entitled to compensation under the Act.
In at least two cases, seamen injured while employed aboard United States' vessels were permitted to sue under the Public Vessels Act without discussion of the effect of the FECA. United States v. Loyola, 9 Cir., 1947, D.C., 161 F.2d 126; Krey v. United States, 2 Cir., 1941, 123 F.2d 1008.
Employees of the Fleet Corporation were employees of the United States entitled to the benefits of the Federal Employees Compensation Act. Seamen aboard Fleet Corporation vessels were considered to be employees of the United States, even though the vessel was operated by a private agent, if the agency contract was the so-called MO 4 form of agreement. See 34 Op.Atty.Gen. 120 (1924) and 363 (1925). The cases cited above do not always make clear by whom or under what type of agreement the vessel involved was operated. But, the claimants in all of the cases appear to have been treated as employees of the United States; certainly this is true of those cases where the claimant established rights against the United States under the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688.
Compare Wootton v. United States (The Culberson), 3 Cir., 1932, 61 F.2d 194, 195 where the mother of a coast-guardsman was permitted to sue the United States under the Suits in Admiralty Act, without discussion of the effect of any possible compensation under the veterans' pension laws.
* No opinion for publication.
See also the dicta in Brady v. Roosevelt S. S. Co., 1943, 317 U.S. 575, 581, 63 S.Ct. 425, 87 L.Ed. 471, and Brooks v. United States, 1949, 337 U.S. 49, 53, 69 S.Ct. 918, 93 L.Ed. 1200. Compare White v. United States, D.C.N.J.1948, 77 F.Supp. 316.