Weyerhaeuser Steamship Company v. United States

PETITIONER:Weyerhaeuser Steamship Company
RESPONDENT:United States
LOCATION:Beaumont Mills

DOCKET NO.: 65
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 372 US 597 (1963)
ARGUED: Feb 18, 1963
DECIDED: Apr 01, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – February 18, 1963 in Weyerhaeuser Steamship Company v. United States

Earl Warren:

Number 65, Weyerhaeuser Steamship Company, Petitioner, versus United States.

Mr. Rolph.

Henry R. Rolph:

May it please the Court.

Mr. Chief Justice, members of the Court.

My name is Henry Rolph.

I’m here representing the petitioner, Weyerhaeuser Steamship Company.

This case is a proceeding in admiralty and as an outgrowth of an action which was commenced in the United States District Court of the Northern District of California.

It developed from a mutual fault collision between two vessels.

One vessel, the F.E. Weyerhaeuser owned by Weyerhaeuser Steamship Company and the other vessel, United States Army Dredge Pacific operated by the Corps of Engineers of the United States Army.

The collision occurred on September 8, 1955 in the area near Coos Bay, Oregon.

The Weyerhaeuser was proceeding outbound from Coos Bay and the Dredge Pacific was on a opposing course and they both — collision — vessels came into collision.

Negotiations were conducted to attempt to explore the possibility of a settlement.

A settlement was impossible and the case was tried before Honorable Michael J. Roach in the United States District Court for the Northern District of California.

At the conclusion of the trial, the Court held that both vessels were at fault and entered a decree dividing the damages pursuant to the historic admiralty rule.

However, prior to the commencement of the action on the principal collision litigation, a suit had been filed in the United States District Court for the Western District of Washington by one Reynold E. Ostrom who was a seaman employee of the United States employed on the U.S. Army Dredge Pacific.

He had received compensation from the Government in a minor amount, to be exact of $329.01.

He was precluded under the terms of the Federal Employees’ Compensation Act from proceeding directly against the Government.

He commenced his action against Weyerhaeuser Steamship Company in the State of Washington and that action was held up pending the decision on the principal collision action.

At the conclusion of the collision action, a special hearing was held before the U.S. District Judge, Judge Roach on whether or not damages paid to Mr. Ostrom by Weyerhaeuser were includable in the overall damages resulting from the collision.

Now, in this connection, the suit filed by Ostrom, the government employee against Weyerhaeuser had been compromised for an agreed payment of $16,000.

The Government agreed that the amount of the settlement was reasonable but did not stipulate or agreed to the fact that it should be included in the overall damages resulting from the collision.

So that at the conclusion of the District Court case, the case was concluded for all practical purposes with the exception of this one item of damages.

Now, this is an extremely important point because — as it — it comes up in a case where the figures are relatively small but I think that it’s incumbent upon me to present to the Court the overall importance of what is involved here because if this doctrine which was ultimately determined to be the doctrine of the United States Circuit Court of Appeals in this case should be permitted to be the law of the country, then and in that event, you’ll have a situation where a private vessel comes into collision with a government vessel and should — if there is a substantial loss of life or great personal injury as there was in the collision between the United States Navy Hospital Ship, Benevolence and the private vessel, Mary Luckenbach where 15 Government employees were killed and 85 were seriously injured, you have a tremendous potential liability against the private vessel under the doctrine as concluded by the Ninth Circuit Court of Appeals.

Now, to back up a minute on the history of the case, Judge Roach held that the $16,000 item of damages was merely another item of damages and was to be included in the overall damages resulting from the collision and applying the admiralty rule, it would be divided by two.

Now, the Government protested that.

They requested a rehearing on the subject before Judge Roach.

The rehearing in the District Court was denied.

The matter was then appealed to the Ninth Circuit Court of Appeals by the Government and the case was heard before the Ninth Circuit and an order was entered ruling that the Federal Employees’ Compensation Act was paramount and that the payments which the Government made pursuant to the Compensation Act were exclu — the exclusive limit of their liability.

So that we have here before us now for the first time a case where there’s an attempt to make an exception to the divided damages rule which has existed since the beginning of time on these admiralty maritime collision cases.

Now, it’s our argument of course that the —

Arthur J. Goldberg:

Mr. Rolph —

Henry R. Rolph:

Yes.

Arthur J. Goldberg:

How about — if we have to draw this connection, when the — we haven’t (Inaudible)

Henry R. Rolph:

No.

Arthur J. Goldberg:

You would assume that you will reach that, is that right?

Henry R. Rolph:

Thank you for raising that point, Mr. Justice Goldberg.

Let’s assume on the basis of the entry of the decree which was made by Judge Roach at the District Court level that both vessels were held mutually at fault and the divided damages rule apply.

The Government has made no contention that there should be an apportionment of damages and that point isn’t in the case.

Now, so much for the factual background of the case, now, it’s interesting the way the question is presented to the Court and in comparing the statement of the question, there are some substantial differences between the way we state it, between the way the Government state it in its brief in opposition to our petition for certiorari, and the way the Government now states it.

Now, we state that what is involved in the case is — is the historic and established rule of divided damages in mutual fault collisions to be altered for the first time by a federal compensation statute.

The question as presented in the Government’s briefs in opposition to our petitioner for certiorari states it whether the exclusivity provision of the Federal Employee’s Compensation Act precludes the petitioner, Weyerhaeuser from covering — from recovering from the United States when half of its tort liability to a government employee in the mutual fault collision between petitioner’s vessel and the government vessel.

William J. Brennan, Jr.:

Mr. —

Henry R. Rolph:

Now —

William J. Brennan, Jr.:

— Rolph, I know you’ve said that — and it isn’t before us, no question here, the situation of apportioned damages, but on — if the lower court was right, will it be different — would it be a different problem if —

Henry R. Rolph:

Yes.

William J. Brennan, Jr.:

— for apportionment?

Henry R. Rolph:

Well, the — it’s accepted Mr. Justice Brennan that issue was determined in the lower court that both vessels were equally at fault, so then the mutual fault damage rule comes into play.

And the damages of both vessels are added together and then under the prehistoric moiety rule, they’re divided two.

Now, there’s no question on that basic procedure involved here.

The only question that is now before the Court is whether or not the Government must participate in the damages which Weyerhaeuser incur in affecting the settlement with Ostrom, the government employee, to whom the Government had previously made compensation payments.

William J. Brennan, Jr.:

Well, but my question though is, would — there was — wouldn’t it probably any difference that it were not the case of mutual fault or where there have been a propionate allocation of fault greater to one than to the other?

Henry R. Rolph:

Well, of course, under the mutual fault collisions historically in this country, Mr. Justice Brennan, as contrasted with the law of England, if both vessels are found to be at fault, there’s only one rule that can be applied under the historic decisions of this Court including the Chattahoochee and the Atlas, and the Juanita, and these many other decisions at — the (Voice Overlap) —

William J. Brennan, Jr.:

I know — I know that.

Henry R. Rolph:

Yes.

William J. Brennan, Jr.:

What I’m trying — I’m not making myself clear, and I shouldn’t be wasting your time that the issue wasn’t here.

As I understand it, what’s involved here is whether by reason of the exclusivity provision of the federal statute, the ordinary admiralty rule can be here applied.

Now, if we actually had a case of proportioned responsibility for the division of the same $16,000, 12 and 4, let’s say, wouldn’t we still have a question whether in place of the exclusivity provision?

Henry R. Rolph:

The (Inaudible) —

William J. Brennan, Jr.:

Whatever it assigned to the Federal Government, couldn’t it?

Henry R. Rolph:

Yes.

Henry R. Rolph:

That was a — excuse me, I misunderstood the question —

William J. Brennan, Jr.:

I know.

Henry R. Rolph:

— Mr. Justice Brennan.

Yes.

To — under that situation, the question would be identical.

William J. Brennan, Jr.:

I know, okay.

Henry R. Rolph:

Now, significantly the Government in its brief before this Court in stating the question prefers to ignore now the mutual fault collision divided damage rule and states the question this way, whether Section 7 (b) of the Federal Employer’s Compensation Act which states the liability of the United States under the Act for injuries to its employees shall be exclusive.

And in place of all other liability of the United States for the employee and on the — one otherwise entitled to recover it from the United States on account of such injury precludes a suit by a third party to obtain contribution the payment of damages on account of an injury to a federal employee covered by the Act.

Without belaboring the point, it’s quite obvious that the way the question is presented where the Government in its brief here had completely ignores the mutual fault divided damages, admiralty doctrine arising where you have a maritime collision and both vessels have been found to be equally at fault.

Now —

Really, what it comes down to is you want to back away from the limitation the Government relies on and say that this is a separate admiralty proceeding, it doesn’t make any difference as far — what this other statute provide.

Henry R. Rolph:

Well, —

And they want to say now that the application of mutual fault doctrine or apportionment doctrine means that you have to read it in connection with this other statute and that being so, then they say you have to exclude that $16,000 from the division.

Henry R. Rolph:

Well, basically that’s the argument —

That’s right.

Henry R. Rolph:

— Mr. Justice (Voice Overlap) —

But it doesn’t make much here, and it’s how you put it — whether you put it your way and you put it the Government’s way.

Henry R. Rolph:

That’s right, I think it’s just the question of emphasis but I do think that it’s extremely important in approaching the question —

Yes.

Henry R. Rolph:

— under the previous decisions of this Court in the language particularly in the Halcyon case that if we recognize that what we have here before us is a mutual fault divided damages collision.

Potter Stewart:

But whether be half-and-half, or two-thirds one-third, or whatever, the basic question still remains —

Henry R. Rolph:

That would be —

Potter Stewart:

— and that question is whether this $16,000 is going to be put into the pot or not?

Henry R. Rolph:

That’s correct.

That’s exactly correct.

That’s the point.

Now, this is basically a question of statutory construction according to the Government’s interpretation of the matter and the applicable statute of course is the Federal Employees’ Compensation Act which provides that the United States shall pay compensation as herein specified for the disability or death of an employee resulting to personal injury sustained while in the performance of his duty.

But no compensation shall be paid if the injury or death is caused by willful misconduct of the employee.

Now, the important part of this, we — as we consider it is in the interpretation of the statute and that the statute itself restricts the liability here to an employ — to the liability arising to the employee, his legal representative, spouse, dependent, next to kin and anyone otherwise entitled to recover damages from the United States.

Now, that language is limiting language.

Henry R. Rolph:

Now, we think that the wording of the statute is most important and we consider that the wording of the statute shows a clear legislative intent on the part of Congress to restrict the liability as between the employer and his employee.

And Section 757 (b) of the Act specifically provides that the liability shall be one to the employee or someone in a relationship to him.

Now, the Government on the other hand is taking that language and in doing so, we think is violating the rules of construction which have been established by this Court in cases which we’ve — and cited in our brief and takes the language that anyone otherwise entitled to recover damages from the United States would include some third person unrelated to the employee-employer relationship.

Now, the specific categories in the statute are the employee, his relatives and his dependents.

And the Government is attempting here to apply the general words, anyone otherwise entitled to recover damages to a person seeking to recover after mutual fault collision which is obviously a matter unconnected with the employer’s relationship with his workers and their families.

Now, when we stop and think of the purpose of the Federal Employees’ Compensation Act, we can see that there was obviously no intention by Congress that this should apply to a third person because the purpose of the Employees’ Compensation Act as set forth in the legislative discussion in our brief and in appendix to it was to give to the employee an assured recovery and in return as part of the quid pro quo, the Government was to have a limitation of liability and it was — and the scheme was of — the Compensation Act were adopted for this very purpose.

And it would be quite inappropriate to hold that a third party vessel owner which had no relationship to the employee-employer relationship and was not involved in the quid pro quo exchange should be called upon to bear the entire front of the damages resulting from the collision to which the government vessel had been equally responsible through its negligence.

Now, further we wished to point out that in the Act, the word a direct is used.

Direct modifying judicial proceedings in Section 757 (b) of the Act and this obviously is not a direct legal proceeding.

What we have here is an action which arose out of the collision.

The collision was — action was commenced between the employee and Weyerhaeuser Steamship Company and totally unrelated to him in the State of Washington and the principal action was an action for collision damages between the Weyerhaeuser Steamship Company and the United States Government.

So, obviously what we have before us on a basis of the construction of the statute is not a direct proceeding as the term that’s meant in the Act.

Now, furthermore we think from a standpoint of determining the intention of Congress in this statute, the proceedings with reference to the 1949 Amendments to the Federal Employees’ Compensation Act are quite enlightening and we think indicative of the fact that Congress intend —

William J. Brennan, Jr.:

Mr. Rolph, before you get to that —

Henry R. Rolph:

Yes.

William J. Brennan, Jr.:

— do you suggest who would be included within that language, anyone otherwise entitled to recover damages?

Henry R. Rolph:

Yes.

That point has come up in a case of Thol versus the United States, Your Honor and I have the citation here.

And the — they must be individuals in a relationship that Thol versus the United States, Ninth Circuit Court of Appeals, 1954, 218 F.2d 212.

And that was a suit by a father for the death of a son killed as a firefighter under the Federal Torts Liability Act and the action was dismissed as it was held that the father was limited to the rights under the Federal Employees’ Compensation Act and he was described in that opinion as anyone otherwise entitled to recover damages from the United States for such instrumentality.

That particular —

Hugo L. Black:

That’s cited in your brief?

Henry R. Rolph:

It was not cited in our brief, Your Honor.

I’m — will repeat the citation.

Thol versus the United States, Ninth CCA, 1954, 218 F.2d, page 12.

William J. Brennan, Jr.:

This was a father of —

Henry R. Rolph:

This was a father of a boy who was killed.He was a smoke jumper Your Honor and evidently was a paratrooper who was used — was attempting to fight fires in Montana.

William J. Brennan, Jr.:

And he didn’t come within the —

Henry R. Rolph:

The fa —

William J. Brennan, Jr.:

— language “next to kin”?

William J. Brennan, Jr.:

He was not?

Henry R. Rolph:

It was held — no, the point is that he brought — brought an independent action under the Federal Torts Liability Act.

William J. Brennan, Jr.:

Oh, I see.

Henry R. Rolph:

And the action under the Federal Torts Liability Act was dismissed and the Court held that the father was limited to the rights which in this case was strangely enough for only burial rights amounting to $450, some odd, was included in the language, anyone otherwise entitled to recover from damages for — from the U.S. and therefore the only right of recovery was under the Federal Employees’ Compensation Act.

Now, coming up to the point of the 1949 Amendments to the Federal Employees’ Compensation Act, we wish to point out that there was — that the Court has previously reviewed these amendments in the case of Johansson versus the United States and the legislative history is quite well-defined there but we do wish to make this comment that there was — in the original draft, when the bill was before the House, there was very general language that the remedy would be afforded to any person under the Act with respect to his own injury or the death of another individual unless otherwise specifically provided by law.

Now, the situation was that it went over to the Senate that in this very general language was revised and then it went a joint conference and the present language which is much more specific was adopted which restricts it to the liability to the United States or its instrumentalities under this Act, thereof with respect to the injury or death of an employee shall be exclusive.

So that they’ve gone from the general to the specific and therefore we think that the only proper construction of that change is that Congress con — intended that it was to be an Act which applied exclusively between the employee and the employer and had no bearing on outside third persons, in this case an independent shipowner.

Potter Stewart:

There’s — there’s no indication at all that anyone in the Congress gave any consideration to the problem we have in this case as such, isn’t there?

Henry R. Rolph:

That’s quite right Your Honor and we’ve tried to define what information we could.

In the appendix to our brief, there’s a language in the Court between Senator Morris and Senator Lucas.

Senator Lucas was evidently the manager of the Bill in the Senate.

And Senator Morris requested that the Bill be amended to provide that it should not apply to the master or seaman of any vessel.

And thereafter, that amendment was added in but in the case of Johansson versus the United States, it was held that the acts of the master and the seaman where the rights were the same after the legislation as they had been before.

So therefore they were both precluded, both the master and the seaman from maintaining an independent action.

And that’s in the case of Johansson versus United States where this Court has previously gone into the legislative history of this Act.

Now, we think further that to permit the Government to be immune from participating in the divided damages resulting from mutual fault collision is in clear violation of the spirit intent of the Public Vessels Act of the United States.

Now, this Court in the case of the Canadian Aviator in 1945 and United States versus Shaw in 1940 have reviewed the provisions of the Public Vessels Act and held that they are fully applicable to the United States and the history of course of the Public Vessels Act is that — in 1924, in the case of United States versus Shaw, and the case of the Western Maid, Justice Holmes held that unless there was affirmative action by the United States to participate in the litigation, it was immune under the doctrine of sovereign immunity.

Thereafter, quite interestingly and this is most important, Judge Holmes in the case of Thekla decided in 1924 also that the — if the United States joins in litigation under the — regardless of whether there’s a statute of sovereign immunity or not and this decision of this Court preceded the Public Vessels Act, joins in the litigation arising from a maritime collision as it had in that case by filing either a libel or a cross libel.

And the significant point is that here although we file the libel, the United States filed a cross libel seeking affirmative damages.

So that even in the absence of the Public Vessels Act, the — there was a right of the Courts to grant a recovery against the United States where United States had joined in the proceeding.

Therefore, basically even before the passage of the Public Vessels Act where the Government did as it did here filed a cross libel and affirmatively joined in the litigation, then it waived it sovereign immunity.

Now, we make an — we emphasize this because we think that quite inappropriately in the Ninth Circuit Court of Opinions — Appeal written by Just — Judge Barnes, he brings in the question of sovereign immunity which we feel has no place in the case.

But — and indicates that by the passage of the Federal Employees’ Compensation Act, there was a withdrawal of the sovereign — waiver of sovereign immunity originally granted in the Public Vessels Act, and therefore we mention this because we think that to grant any sort of an end road through the Federal Employees’ Compensation Act in an indirect way in favor of the Government would in affect — in effect be reducing the effect of the Public Vessels Act and the effect granted by this Court that where the United States joins in litigation that that is a complete waiver in — of its sovereign immunity.

And the Court hearing the case can proceed to judge all damages arising in the case and in this case, injuries to those on either vessel, parties on either vessel.

Now, we think that it’s also significant in the consideration of this Court that the Court consider its decisions starting with the Halcyon case and the Ryan case and the Nacirema-Weyerhaeuser case, Crumady versus Fisser and the Waterman versus Dugan & McNamara cases.

Now, those cases starting with the Ryan Stevedoring case versus Pan-Atlantic have recognized that even though and in that — those cases decided under the Longshoremen and Harbor Workers’ Act, that even though there’s an — there is an attempt under the Compensation Acts to give an exclusive liability to the employee as against this employer that the third party can recover.

Now, —

Hugo L. Black:

May I ask you —

Henry R. Rolph:

Yes.

Yes, Justice —

Hugo L. Black:

— what’s the similarity between your case and the Stevedoring?

Is it here, in the Longshoremen Act?

Henry R. Rolph:

They are substantially the same.

The exclusivity provisions Mr. Justice Black in that one is a Federal Employees’ Compensation Act which is the Act that we have here.

We also have the Longshoremen and Harbor Workers’ Act which was before this Court in the Ryan case and the other cases that have been decided —

Hugo L. Black:

But isn’t it what the Government make in the Ryan case?

Henry R. Rolph:

The Ryan took — in the Ryan case, it’s quite an interesting point, Your Honor, they were not a party to the case, but they filed an amicus curiae brief and their position in the Ryan case was an they had actually adjoined in the petition for rehearing that the compensa — that the Federal Longshoremen and Harbor Workers’ Act was exclusive only as between the employee and the employer.

And if the employee filed an independent action in this case against the shipowner, in the Ryan case, then and in that event, there would be a right of a full recovery in the event that there was found to be a breach of the so-called warranty of indemnity to perform the stevedoring contract in a workmanlike manner.

Hugo L. Black:

That’s similar to their position in Ryan?

Henry R. Rolph:

And their position here, we consider to be entirely inconsistent in — and as a matter of fact, Your Honor we quote from their brief, in the Ryan case and I think that it’s particularly significant that Mr. Justice Black has raised this question because we think that the briefs in the Ryan case and the other amicus curiae briefs which have been written by the Government of which I believe there are others in the Waterman case and in the Crumady versus the Henry Fisser case, take the diametrically opposed position to what they are taking here.

But my counsel of — on my right — well, as they have indicated in their brief will attempt to reconcile this apparent inconsistent position of the Government on the ground that the Ryan case was decided on the basis of the fact that there was a breach of warranty of the contract to perform on a workmanlike manner.

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

Well, in that case Your Honor, the case went off on the ground of contract and it’s quite obvious on the cases that have come up since.

There was a Crumady versus Hendrik Fisser where there was no relationship at all between the shipowner and the employee.

And then in fact the case there was — the suit was brought against it or the charterer of the vessel had in fact employed the stevedoring company.

The shipowner had had no direct relationship with them.

And then in the later case of the Waterman versus Dugan & McNamara Company which incidentally we’ve neglected to cite in our brief, but I’m certain that the Court is well familiar with it, it was held by this Court in the Waterman case that there was — would still be a right of recovery even though there wasn’t an expressed contract where the arrangements for the unloading of the vessel between the stevedoring contactor and the employee were made by a consignee of the cargo.

And so that the point is, the case still recognizes that there was a contractual relationship and based on this violation of the breach of warranty to perform on a workmanlike manner, there was a right of recovery recognized over in spite of the Longshoreman and Harbor Workers’ Act by the shipowner which was called upon to pay the judgment to the individuals steved —

Hugo L. Black:

Why is that have the exclusivity provision?

Henry R. Rolph:

Well, that’s the effect Mr. Justice Black of the Ryan case and the cases which have followed it, quite obviously that the Federal Longshoreman and Harbor Workers’ Act is an exclusive liability provision exactly as this is, but that’s between the stevedoring contractor who was the employer and the individual longshoreman.

So that under that Act, there is no direct right between the longshoreman and his employer.

But as result of his going to the shipowner and filing a suit against the shipowner just as was done by Ostrom, the Government employee here, then he would have a right independent of the statute and the Ryan case and the following cases of this Court under the Ryan doctrine have recognized that the shipowner would then have a full right of recovery over for whatever damages he incurred if he was able to establish that there has been a breach of the warranty of indemnity to perform the service of unloading or loading the vessel in the workmanlike manner.

So that there is a striking similarity and get — the Government’s position, we think, is utterly inconsistent in the Ryan case and the following cases and this particular case.

And the — in the Ryan opinion, the Government made — pointed this out to the Court.

The Compensation Acts in concurring immunity on the employer from common law suits by the employee and its dependents did not mean to free the employer from suits by outsiders.

Now, what could be clearer than that?

That’s what we have right here before us in this case.

This is the Government’s brief in the Ryan case.

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

Well, it shows that the purpose of the Compensation Acts in granting an immunity on the employer from common law suits did not mean to free the employer from suits by outsiders.

Henry R. Rolph:

Now, in this case, you’ve got the Government to reverse position.

In the Ryan case, the Government was interested in the position of the shipowner.

Here of course, the Government’s interest is not in the shipowner but in the position of the employer.

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

That’s correct, Your Honor, but it stated its —

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

— it stated its position in the briefs quite clearly and his interest in the case was that of a shipowner and in ship operator, and of course that came from the cases which the Government had in operating and owning vessels as it did through the War Shipping Administration during the war and the year shortly following the war.

So the position there basically is that the — they’re around on the other foot trying to get over — a right over against the employer so that they won’t be held liable for all the damages.

So, plainly and simply Your Honor, I think when the cases are compared to this case it’s quite evident that there’s an obvious inconsistency in the Government’s pos — only can try to explain its position on one basis which Mr. Mondello will attempt to do, I’m sure.

And that is in these cases involving the Long — Federal Longshoremen’s and Harbor Workers’ Compensation Act, there’s been some sort of a contractual relationship and based on this contractual breach of warranty by the stevedore to perform in a workmanlike manner, that breach of the warranty of indemnity gives the right over by the shipowner against the employer.

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

Well, we — we’re not in the position to, Your Honor.

I mean — well, you see, we were talking about a mutual fault collision.

We have two vessels, one, a government vessel, one, a private vessel, both on opposing courses in a fog, no negotiations.

One vessel’s presence is unknown to the other, and they come into collision.

We haven’t any — a basis for pointing out that there was any prior relationship or that the cargo of one vessel was dependent on the work of the stevedoring contractor as has been recognized by this Court in the Ryan and the —

Hugo L. Black:

Well, do you concede that that’s the sole evidence (Inaudible)

Henry R. Rolph:

Yes.

That’s right.

That’s — on this particular point, Your Honor.

Byron R. White:

Mr. Rolph, don’t you depend on — that what you can’t claim on the contract that you are claiming the basis of a completely separate port between these two vessels —

Henry R. Rolph:

That is —

Byron R. White:

— and the right of contribution as a — in the admiralties of — absolutely separate and independent towards the — and it doesn’t arise solely because an employee was injured.

Henry R. Rolph:

That’s exactly correct —

Byron R. White:

I mean, if you are —

Henry R. Rolph:

— Mr. Justice White and —

Byron R. White:

It’s like the — like the shipowner to recover from — on the longshoreman because he’s got an independent right of action against him under contract and you’re saying that this shipowner got an independent right of action against the other shipowner because of the historic maritime law.

Henry R. Rolph:

That’s — that’s a correct statement Your — Mr. Justice White.

And that’s the next point that I was going to make in my argument here, and that is that we consider that the long established admiralty rule of divided damages should not be modified or changed by indirection and that what occurs here is when two vessels come into collision and under the historic decisions which have construed the mutual fault doctrine and applied the divided damages rule, it’s been recognized that the cause of action arises not on a derivative basis or not on the basis of any contractual relationship but directly from the tort, directly from the act of the two vessels coming into collision.

And from that fact, of the vessels coming in to collision, all of the damages which result from the collision must be totaled and divided by two.

Byron R. White:

Are there always equal — equal sharing in the damages in collision cases, where both are at fault?

Henry R. Rolph:

They’re — under the —

Byron R. White:

In the American (Voice Overlap)?

Henry R. Rolph:

There is, Your Honor.

That’s correct.

Byron R. White:

Under English admiralty law, one vessel could sue the other in a — even though both were at fault.

Henry R. Rolph:

Well, of course, both can sue here and it’s just a question of determination.

In this case, for instance —

Byron R. White:

You mean you can — if somebody can prove that one is more than — more at fault than the other, there should be unequal —

Henry R. Rolph:

No, not that.

No, under the American doctrines, if both vessels are found at fault, there would be no apportionment of damages.

Byron R. White:

A big point.

Henry R. Rolph:

That’s correct.

Byron R. White:

So that one can’t recover from the other at all.

Henry R. Rolph:

That’s correct.

Well, no.

Excuse me.

That would be rule of contributory negligence which is not applicable here wherein in admiralty under the divided damages rule.

So each vessel is at fault.

It becomes a question of damage —

Byron R. White:

Oh, I see.

Because one is damaged — if one is damaged $10, another damaged, $100, they split the damage.

Henry R. Rolph:

That’s — that’s exact —

Byron R. White:

And so that one doesn’t recover from the other?

Henry R. Rolph:

Yes.

That’s right.

You split the damages and divide it by two and —

William J. Brennan, Jr.:

You mean, you add them together and divide them?

Henry R. Rolph:

Well, yes.

You add the damages together and then —

Byron R. White:

So, if one is damaged $50 and one is damaged at $50, total of $100, you can’t recover from the other vessel?

Henry R. Rolph:

That’s correct.

It’s an adjustment of damages and there are many, many cases that have recognized this.

But to digress for a minute, the Canadian law permits an apportionment, and the British law permits an apportionment of damages based on relevant degrees of fault.

If however, there is not such a thing under our doctrine as determining the relative degrees of fault.

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

Well —

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

The difference is this, Mr. Justice Black that contribution is really what we consider not to be an appropriate term for divided damages because what occurs is that there’s an impact between two vessels as resulting damage to each.

The damages are added up and there then divided by two.

Now, that arises properly from the collision itself.

It’s not a participation as between two people to the damages involved to a third person which was a situation which was before the Court in the Halcyon case.

The damages here arise directly from the maritime collision and as a result of the maritime collision, the so-called moiety rule applies and with the moiety rule, all of the damages resulting from the collision are totaled together.

If both vessels are found to be at fault, as they were in this case, and then they’re equally distributed between both vessels.

So under strict analysis, that is not contribution as we analyze it as the term has been used in other tort cases.

But it’s a —

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

No — that’s quite correct Your Honor.

This — it isn’t necessary at all to overrule Ryan in this case for the reason that you’ve got the —

Hugo L. Black:

Or Halcyon?

Henry R. Rolph:

Halcyon — no, there’s a — of course in the Halcyon case, there’s a specific provision for this situation directly in the Court’s opinion which is as follows, Halcyon Lines versus Haenn Ship Ceiling, where two vessels collide due to the fault of both.

It is established admiralty doctrine that the mutual wrongdoers shall share equally the damages sustained by each as well as personal injury and property damage inflicted on innocent third parties.

This maritime rule is of ancient origin and has been applied in many cases.

But this Court has never expressly applied it to non-collision cases.

So that —

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

That’s correct, Your —

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

That’s the very point in issue, yes, Your Honor.

And as far as the Halcyon case is concerned, it made specific provision for this very case so that there would be no conflict whatsoever with Halcyon at all.

Henry R. Rolph:

Now —

Byron R. White:

But likewise — likewise, Ryan is very a persuasive theory because it’s — because Ryan made specific — say at this specific case here and said that Halcyon is what the joint tortfeasors contribution case, and so they didn’t even have to consider this problem with anything else, and they specifically, left this case, put this case aside.

Henry R. Rolph:

That’s correct.

Byron R. White:

So that Ryan really isn’t persuasive either, is it?

Henry R. Rolph:

Well, —

Hugo L. Black:

(Inaudible)

Byron R. White:

That’s —

Hugo L. Black:

(Inaudible)

Byron R. White:

That’s the —

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

That’s the —

Hugo L. Black:

(Inaudible)

Henry R. Rolph:

That’s quite correct, Mr. Justice Black.

But the rationale of the decision is that that was reached.

The exclusive provisions were in fact overcome by the finding of a breach of a warranty of a contractual relationship but the contractual relationship with each succeeding case since Ryan has become vaguer and more difficult to proceed.

Now, —

William J. Brennan, Jr.:

That’s an understatement.

Henry R. Rolph:

Yes.

Now, in addition before closing, I wish to call the Court’s attention the striking similarity between — what the situation that we have here and the Harter Act decision starting with the case of the Chattahoochee and the Harter Act was a case or the Harter Act is a statute which grants immunity to a shipowner for suits brought by his own cargo.

And this Court in the famous case of the Chattahoochee held that a shipowner, although he had no direct right for damages — no direct liability for damages to his own cargo.

Nevertheless, he would be called upon to pay if in a suit over against the other vessel, his cargo was called upon to pay into the overall contribution then, he would have to share a part of those damages equally.

Now, the Court went — recognized that the Harter Act granted immunity between a shipowner and a cargo owner so that the cargo owner — so that the shipowner could not be liable for any damages resulting to the cargo on his own ship.

But if the cargo on his own ship filed a cross libel against the other vessel as it did in the Chattahoochee then — and gained a recovery, then the non-carrying vessel would have the right to apportion those damages to the cargo on the carrying vessel to the damages resulting from the overall collision.

So that you have a strikingly similar situation under the Harter Act and to what you have here under the Federal Employees’ Compensation Act and there have been decisions since by this Court since the Harter Act, United States versus Atlantic Mutual Insurance Company decided in 1952.

And before closing on that, I would just like to call to —

Arthur J. Goldberg:

Mr. Rolph, before you do —

Henry R. Rolph:

Oh.

Arthur J. Goldberg:

Outside the fact that the Government was a party to this, and in fact there’s a difference, would you say clearly it’s pretty much this case?

Henry R. Rolph:

It is this case Your Honor.

There’s no question about it.

Henry R. Rolph:

And in this particular case, interestingly enough to show how the mechanics of it work, in the record on the case, there is a breakdown of the damages which appear on page 74 of the record and it shows in this very case that our vessel was called upon under the provisions of the doctrine of the Chattahoochee to pay half the damages resulting to dam — to the cargo on its own vessel.

And if you — looking on the record at page 74, it says, $16,000 paid to Ostrom and then it says $20,490 paid to the intervening liableness, the intervening liableness in this case were the cargo representatives on the F.E. Weyerhaeuser who have filed the suit.

There was no cargo on the Government dredge and those damages were brought into play and under the doctrine of the Chattahoochee, our client F.E. — the owner of the F.E. Weyerhaeuser was called upon to pay half of the damages to its own cargo even though it extensively have immunity against those damages under the provisions of the Harter Act.

Hugo L. Black:

May I ask you just a moment?

Henry R. Rolph:

Yes, Mr. Justice Black.

Hugo L. Black:

I wonder what do you think (Inaudible) seemed to mean, the insurance company had sold their policies and the business have been established from the basis that the case — that the only payment had to be made falls under the Act.

Is there anything here that could show us how the — I am sure that insurance companies are involved, I’m not asking about that because most of the business is handled that way —

Henry R. Rolph:

That’s right.

Hugo L. Black:

— to take judicial notice of that.

Is there any showing here as to what is the standard practice or belief of the insurance company when fixing their rates in connection with this or is this a true minor or nature to justify any such —

Henry R. Rolph:

No.

Hugo L. Black:

— statement (Voice Overlap) —

Henry R. Rolph:

Are you asking me now Mr. Justice Black with reference to the situation that we have in this case?

Hugo L. Black:

While your client is — I’m sure it bought insurance, presumptively, maybe the Government doesn’t buy insurance, that’s in the judgment, I guess it has its own insurance.

But is this of — frequent enough occurrence and so forth so that the rate for the insurance company would be altered, conceivably altered by way — whichever way we decide it?

Henry R. Rolph:

Yes.

Hugo L. Black:

And if so, what has been the accepted practice heretofore?

Henry R. Rolph:

That’s a very good question, Your Honor, and the answer to it would be this that there would be a very materially great rise, I would think, in the rates, the protection and indemnity insurance rates on private vessels if in the future under this doctrine, if it’s permitted to stand up in this case, that the private vessel will be responsible for all of the damages resulting on the publicly owned vessel.

Now, you take the Benevolence collision which I referred to with the Hospital Ship, Benevolence was sunk on a trial trip off from San Francisco in 1950.

The ship was lost.

There were 85 serious injuries.

There were 15 deaths.

Under the doc — and incidentally, it’s an interesting sidelight, we haven’t ever been able to obtain the damages of — that was — the case was settled and evidently the — as part of the settlement, it was concluded that the damage figures would not be released.

So, they’ve not been available to us.

But the effect would be in a situation of that type and we can take it to another collision that occurred just a few weeks ago off of Long Beach between the Peninsula and Oriental lines, Oriana and the United States Navy Carrier, Kearsarge.

Now fortunately, the damages weren’t particularly great in that, but if both of those vessels had been damaged and if there have been a great loss of life on the Kearsarge with serious personal injury, that this doctrine would be permitted to hold up, then the limit off the Government’s liability would be under the statutes for the soldiers and sailors.

There would be no right of recovery but those same soldiers and sailors could sue that private vessel, namely the Oriana in this case, for an unlimited amount and there would be no apportionment through the divided damages equal fault doctrine.

Hugo L. Black:

That has been in vogue for how long (Voice Overlap) —

Henry R. Rolph:

That’s been in vogue since the beginning of time and it was first defined by this Court in detail in the case of the Catharine.

I believe the date is 1854, it was gone over again in the North Star, it was reviewed again in Chattahoochee, it was reviewed recently in it by this Court in the Canadian Aviator, and the United States versus —

Hugo L. Black:

Well, not as fixed as anything in the admiralty law, isn’t it?

Henry R. Rolph:

Your Honor?

Hugo L. Black:

It’s about as fixed in the (Voice Overlap)

Henry R. Rolph:

Its — there’s just absolutely no question about it and I could stand here and go on with no end of authorities on the subject.

It’s very definitely accepted, had been fixed from the beginning in the admiralty jurisdiction of this Court.

William J. Brennan, Jr.:

Mr. Rolph.

Henry R. Rolph:

Yes Mr. —

William J. Brennan, Jr.:

(Inaudible)

Henry R. Rolph:

Mr. —

William J. Brennan, Jr.:

(Inaudible) point of view.

Certainly, the long — the exclusivity provision of the Longshoremen’s Act and what we’re dealing with here on the Employees’ Compensation Act, they’re identically phrased, aren’t they?

One must be the pattern for the other.

Henry R. Rolph:

Yes.

We (Voice Overlap) —

William J. Brennan, Jr.:

Which is first?

Henry R. Rolph:

Which —

William J. Brennan, Jr.:

Or it doesn’t matter?

Henry R. Rolph:

With the federal employee — Federal Employees’ Compensation Act was originally enacted in 1916, was modified in 1949.

William J. Brennan, Jr.:

Well, that being so, that precedes the Longshoremen’s Act, doesn’t it?

Henry R. Rolph:

Yes.

William J. Brennan, Jr.:

Well, now the language of both is identical as I read them that the liability in there as to the employer, here as to the United States shall be exclusive in place of all other liability.

Here, the United States, there, the employee and that statute also has the language and anyone otherwise entitled to recover damages, the Longshoremen’s Act has as this one does.

Now, in Ryan, we said that nevertheless under the circumstances of that case, that was not exclusive and the literal reading — language of exclusivity was not to be given effect.

Well, now your argument here I should think can be as narrow as similarly for the reason you’ve stated, namely the historic admiralty rule and applicable in situations of this kind ought to be a good reason for not giving exclusivity to the identical language of this provision, shouldn’t it?

Henry R. Rolph:

Yes.

William J. Brennan, Jr.:

Why do you have to go beyond that?

Henry R. Rolph:

Except for the fact that we have here a special situation which has been defined by this Court in the Halcyon case, you have an admiralty collision case with its special rules of damages, and for that reason we have a separate and distinct matter before the —

William J. Brennan, Jr.:

That I agree but I’ve — what I’m wondering, why isn’t that an argument against giving exclusivity to this provision just as we refuse to give exclusivity to the identical language for a different reason in Ryan?

Henry R. Rolph:

Well, the — I would say that this case is controlled or certainly should be influenced by the doctrine of this Court in Ryan.

The only point is that the Government in its brief has attempted to distinguish Ryan and therefore we have to go outside of Ryan because of the fact that Ryan went off on the fact that there was a contract.

Henry R. Rolph:

We have no contract.

Hugo L. Black:

Well, that contract becomes more and more evanescent since then in the (Inaudible) —

Henry R. Rolph:

That’s quite true, Your Honor.

Hugo L. Black:

Really, what’s left under that tort committee?

Henry R. Rolph:

Well, each case has narrowed it down very considerably so we have this case in 1962, the Ellerman Lines case and the Waterman and McNamara case and it’s a very, very thin shred of a contract that’s left but yet the Government ceases to — insist in placing considerable importance there.

Therefore, we have to go outside and find another explanation besides the contract.

Earl Warren:

Mr. Mondello.

Anthony L. Mondello:

Mr. Chief Justice, may it please the Court.

The issue in this case is whether the liability of United States on the Federal Employees’ Compensation Act is a complete substitute for any and all tort liabilities that it might otherwise owe a third party arising out of injury to a federal employee.

Our argument in brief is that Congress has given us the fullest indication in the language of Section 7 (b) and in the legislative history which brought that language into being.

And in the legislative history in terms of the basic Act of 1916 that any sharing by the United States of the burden of a tort liability, any exposure to the hazards of large tort verdicts arising out of an employment injury would violate the most basic purposes of the compensation schemes.

Hugo L. Black:

That sounds strikingly familiar to me here, as though I have written it in a dissent in Ryan.

Anthony L. Mondello:

The thrust of our argument, Your Honor, is precisely that.

The facts in this case are not in dispute.

I’d like to review them very briefly.

In 1955, the S.S. Weyerhaeuser and the Army Dredge Pacific collided.

This action was thereafter brought by petitioner against United States under the Public Vessels Act.

On cross libel, the District Court found that the collision occurred through the mutual fault of the two vessels and the damages suffered by each party was stipulated and the only disputed item involved the liability of United States, the contribution to the amount of the settlement with — which petitioner had made with Reynold Ostrom, the federal employee aboard the Pacific who had suffered the personal injury in the collision.

The District Court ruled that the amount of the settlement was an item of provable damage to which the United States had to contribute in the division of damages and the final degree incorporating that ruling was entered.

On the appeal of the United States, Court of Appeals for the Ninth Circuit reversed that decision holding instead that the exclusive liability provisions of Section 7 (b) of the Compensation Act precluded contribution by the United States on account of an injury to one of its employee.

It’s not very much that we can say about the plain language and the meaning of Section 7 (b).

To us, its meaning is clear and it prohibits contribution to any tort liability with respect to the injury to a federal employee.

Petitioner sees it otherwise but we suggest that the meaning which you must give that language can best be determined from an understanding of the basic policy that Congress wrote into the Compensation Act.

And I’d like to address myself to that immediately.

Our argument on that score is in two parts.

The first part of which seems to us strong and clear; the second of which presents a good deal more difficultly for us.

The first part of the argument is devoted to the question whether the liability of United States to pay compensation under the Act can be increased because of the inclusion in the Act of the employee’s right to sue third parties.

We’ll show first as to that that the liability of United States when it alone is negligent was very carefully regulated by the Congress, and involves the balance of competing interest which lies at the heart of every Workmen’s Compensation Act.

Hugo L. Black:

May I — I don’t want to interrupt you.

I am — I’m wondering if your number one argument is —

Anthony L. Mondello:

Yes.

Hugo L. Black:

— precisely the number one argument that was made in Ryan?

Your number one argument, that you could not increase —

Anthony L. Mondello:

Increase.

Hugo L. Black:

— liability because the statute had said that was all.

Anthony L. Mondello:

I think that’s so, Your Honor, yes.

We will then show from the history of the reimbursement provisions of Compensation Act that first they were not intended to affect these more basic rights of the parties.

And second, that the employee’s right to recover any amount in excess of the statutory compensation was viewed as being less important to the compensation scheme than the right of the United States to be reimbursed.

Our conclusion from this will be that the right to sue third parties cannot result in increasing beyond the statutory terms, the liability of the United States.

In short, United States owes no more when it and another are at fault then it owes when it is solely at fault with respect to an injury.

The second major part of our argument will attempt to answer the questions whether the United States gets off scot-free so to speak when it shares its mutual fault or whether it must first — it must instead contribute to the extent of its statutory liability.

In effect, the Bacille case situation.

We start with this where Congress started when it said about in 1915 and 1916 on the hearings to consider what could be done to improve the plight of the disabled federal employee.

It was well known then that Workmen’s Compensation Acts are designed to serve two basic purposes.One is to provide for employees a sure remedy which is both expeditious, and independent of proof of fault.

The other is to provide for employers a liability which, though absolute in terms of fault, is limited and determinant free in a word from the hazards — the former hazards of large tort verdicts.

These two purposes were Congress’ purposes in 1916 when in passing the Federal Employees’ Compensation Act, it chose to follow the pattern established by the best there could then be found in the various state acts and particularly had it on that in New York State.

The legislative history testifies overwhelmingly to the existence of both these major purposes.

Proponents of the measure were intent on providing federal employees a swift, economical, and assured compensation for injury arising out of employment regardless of the negligence of the employee or that of his fellow servants, and regardless of the lack of fault of the United — on the part of United States.

And in exchange for this assumption of liability without fault that was reserved to the United States, a limitation as to the types and amounts of damages recoverable for employment connected injury.

It’s of interest to note that at the time that the yielding of sovereign immunity then to this limited extent occurred at the time when the United States unlike most employers who were then covered under Compensation Acts was immune from any tort liability to its employees at all.

We have recited at pages 13 and 14 of our brief some statements from the debate which point out the terms of this hard fought bargain for compromise for employees, a measured long-range system of assured compensation for the United States, an absolute but limited liability, both of them available regardless of fault.

This is the same compromise that exists at the heart of every Workmen’s Compensation Act.

Byron R. White:

Yes, but they have also —

Anthony L. Mondello:

Now —

Byron R. White:

— what the United States (Inaudible)

Anthony L. Mondello:

Well, that’s a different part of the —

Byron R. White:

If he recovers.

Anthony L. Mondello:

Yes, Your Honor.

I’ll take that up when I discuss the Bacille —

Byron R. White:

So, they’ll consider no (Inaudible) in the case, in this particular case.

Anthony L. Mondello:

Well, I’d like to get to the next set of provisions in the statute which Congress put there too at the same time it was doing this back in 1916 which has bearing on that.

In 1916, the Act also was made to contain provisions concerning third parties and the right to recover through an action against third parties.

These provisions are Sections 26 and 27 of the Act.

We placed them at — reproduced them at pages 37 and 38 of the Government’s brief.

When you examine them, you find that they are explicit and detailed.

They contain mandatory instructions that the reimbursement to the United States of any compensation it has paid is a first charge on any recovery from the third party made by the employee or made on his behalf by the United States.

To ensure this priority of payment, the United States authorized to require an injured employee to assign to it his cause of action against the third party.

Hugo L. Black:

Was that true in the Harbor Workers’ Act?

Anthony L. Mondello:

Section 33 is a companion provision, I think it is true there also, Your Honor.

These reimbursement terms are written to apply across the board.

They apply to every recovery against the third party libel and damages for the injury.

But the obvious purpose of these provisions was commented on by this Court in Dahn v. Davis, a case which we’ve cited at page 18 of our brief where the Court said plainly by these two sections and I’m quoting now, “Congress deals with the liability of persons other than the United States to employees entitled to compensation under the Act not for the purpose of increasing that compensation but for the purpose of reimbursing the Government for payments made and of indemnifying it against other amounts payable in the future.”

Arthur J. Goldberg:

But Mr. Mondello, is there an excerpt over the amount of payment that’s gotten into — that the worker gets from it?

Anthony L. Mondello:

The provisions of the reimbursement sections are that while he can get the recovery, yes, the amount of the recovery less the expenses it cost him to get it are applied for the benefit of the United States as a credit against any payments that may have to make in the future.

Arthur J. Goldberg:

But the surplus had prevented him, the worker itself.

Anthony L. Mondello:

Well, there can’t be any —

Arthur J. Goldberg:

(Inaudible)

Anthony L. Mondello:

I’m sorry, Your Honor I don’t — there can be no surplus after that.

Arthur J. Goldberg:

If it’s a third party?

Anthony L. Mondello:

The typical situation covered by the reimbursement provision is that the employee recovers from the third party, makes reimbursements of United States precisely as was under this case.

And any balance remaining to him, less deductions for the expense of what it cost him to get that money in, he keeps the dollar but a credit is setup on the books of the Federal Employees’ Compensation Act.

Arthur J. Goldberg:

(Inaudible)

Anthony L. Mondello:

Yes, because the Government’s liability for compensation persists along as the disability does and he may well take it up in the future years since.

Arthur J. Goldberg:

But the Government — they were not entitled to (Inaudible)

Anthony L. Mondello:

Well, we start with the ideas that he gets the surplus and he gets it immediately, yes.

It’s clear from the legislative history of the Act that Congress’ primary concern was the definition of the change, rights and liabilities of the United States and its employees which were brought about by the elimination of fault as a consideration between them and compensation for injury.

The primary result, we know, was swift in certain compensation for the employee, limited though absolute liability for the United States.

It’s also clear that the retention of the employee’s right to sue a third party was a relatively incidental matter to the Congress.

When Congress provided the carefully regulated compensation scheme, it effectively decided that this was far more important and beneficial to the employee than the illusory right to seek a large tort verdict from the Government.

At the same time, there was no reason to allow a third party to benefit from these arrangements to which he was a stranger, hence there was opposition expressed to the retention of the employee’s right to sue a third party.

Anthony L. Mondello:

But as we’ve seen in the reimbursement provisions, the real limit of Congress’ concern in dealing with a third party was to ensure that any recovery would be applied to the credit of the United States against its payment of either past or future compensation.

We conclude from this that since Congress, through the reimbursement provisions has prevented the employee from enjoying any tort recovery until the United States has first recovered it’s compensation payment, its statutory liability, that it follows quite naturally —

William J. Brennan, Jr.:

Does the Longshoremen’s Act have a similar provision for a credit (Voice Overlap)?

Anthony L. Mondello:

Yes, it does Your Honor.

But it follows from this quite naturally that no employee would be allowed to increase his recovery by a tort action if the result would be to impose upon the United States a liability in excess of that imposed by the Act.

Byron R. White:

I can make just as good an argument for the purpose of the provision was to start United States off a plea that the consequences, the factions that the act made for the United States, namely the waiver of the institutions, things like that — they’re getting back to this and say, “You cannot be liable to the employee in this situation if we didn’t see what their part is.

So we’ll just start you off as though there hadn’t been any — and there was an absolute prohibition against liability to an employee.”

So you can’t be hurt — hurt or harmed by the provisions of the Compensation Act, it wouldn’t leave you there.

And then if you have to be liable, the third party, for — on the basis of some other law or some other doctrine, why does it worry you about (Inaudible) following the liability Act.

Anthony L. Mondello:

My difficulty with that Your Honor is that what Congress did, it put in to the reimbursement provisions and it didn’t seem to have this design in doing so.

But if this is so, then there’s no warrant in the statute or its history for believing that Congress would have tolerated through the indirect mechanism of a third party suit.

A result of it faced directly and squarely prohibits.

We submit that the basic terms and policies of the Act prohibit the subjection of United States to a greater liability when it and another party are both negligent than when it alone.

Your real problem here, from the Government standpoint is to get out from under Ryan, isn’t it?

Because everything you said up to date was argued as I remember it in Ryan, the statute, in the saying, in the wording, arguments made, the same.

And the only thing I can find in your brief is you say it’s contractual in that case, and that’s the difference and I hope you come to what that mean as a distinction.

Anthony L. Mondello:

I will show too, Your Honor.

One final note on this, the basic policy of Congress has placed in the compensation scheme generally and in the reimbursement provisions.

As we’ve noticed, the reimbursement provisions permit the United States after an assignment to the — of the employees’ claim to bring the suit against a third party on behalf of the employee.

Now, contributions were allowable.

This places the United States in the awkward position of suing for a judgment half of which would be executable against itself.

This is an odd procedure to say the least and you think that had this kind of procedure has been in the contemplation of Congress.

You’d expect to find something about it in the reimbursement provisions.

It’s not there and we think it’s significant that it means that Congress didn’t contemplate this kind of arrangement.

That the United States was to be free of tort liability in this fashion.

Now, to this point, we have no difficulty with the argument that no liability in excess of the amount of statutory liability should be visited upon the United States.

We must admit, however, that a more difficult question is presented, that the petitioner’s thrust is directed at only the amount that is the statutory liability of the United States under the Compensation Act.

We’re faced as petitioner reminds us with the availability to him in other circumstances of a case law rule of contribution, the moiety rule, divided damages rule.

And we’ve tried to asses whether there can be any accommodation among the relationships of the third party, the employee and United States, which wouldn’t disturb the more fundamental purposes of the Compensation Act.

We’ve — we have found only three reconciliations and while we have stated them at some detail in our brief, I’d like merely to mention them summarily and give the reason why they seemed to us to be inappropriate.

Anthony L. Mondello:

First, you — the Congress could have cut off the employee’s right of action against a negligent third party or could have limited that right of action.

It didn’t and for two reasons, we believe this alternative as a judicial compromise is unavailable.

For one thing, Congress didn’t make explicit provisions for such a lawsuit and the employee is entitled to have it.

It even made provisions for — how the recovery should be distributed in very explicit term and would be most difficult to fashion the rule which would limit the employee’s right around these restrictions.

Second, such an alternative would interfere with the well-established right of an innocent third party to recover his full damages from either of two wrongdoers through whose fault this injury occurred.

The risks and burdens of obtaining contribution have always been placed by Courts on the wrongdoer who is sued so the employee shouldn’t be put to that verdict.

The second possible reconciliation of these competing interest is to hold the United States liable for contribution but only to the extent of a statutory liability.

This is the alternative — it once adopted by the Third Circuit in construing the Longshoremen and Harbor Workers’ Act provisions, which are in this respect virtually identical to those of the Federal Employees’ Compensation Act, in the Bacille case.

Now, there are many difficulties we think presented by this approach.

First of all, neither the Longshoremen’s Act nor the Federal Employees’ Compensation Act contains any authority and written into the statute for such a tort based compromise.

Each one provides that the liability under that Act is the exclusive liability and if those words mean anything, there is no rational way to convert a tort liability for contribution or divided damages of admiralty into a liability arising under the Act.

These are two different arrangements.

And second, the reimbursement provisions of both these Compensation Acts also stand in the way.

And in Pope & Talbot v. Hawn, we cite this case in our brief at page 22.

This Court faced the contention of a third party that it and not the negligent employer should have the benefit of a reduction in liability equivalent to the statutory liability of the Employer under the Compensation Act.

In rejecting this contention, the Court pointed to the specific provisions for reimbursement in the Longshoremen’s Act.

It noted that the contention and I’m quoting, “If accepted would frustrate this purpose to protect employers who are subjected to absolute liability by the Act.”

And the Court stated that the contention was a substantial equivalent of contribution which it had declined to require in the Halcyon cases.

And finally as to the second alternative of permitting contribution but only to the limit of United States’ liability under the Act, we’ve noted in our brief a number of practical difficulties that suggest that the adoption of this alternative would probably raise a good many more problems than it would solve.

The difficulty arises essentially from the fact that Congress made the welfare of federal employees a continuing Government responsibility.

And you can’t discharge that responsibility.

The United States cannot effectively by the commutation of future benefits, which is a practice which by implications from Section 14 of the Act is probably not available anyway.

Section 14 is a brief section, captioned lump sum settlements and which states the terms under which the Bureau of Employees’ Compensation is authorized to make lump sum settlements typically where the amounts don’t exceed in this $25 a month or beneficiaries about to leave the country.

But a very limited range of circumstances and it was certainly not within congressional contemplation that the commutation — the current value of these long range payments to support families of the disabled employee were to be few in this fashion.

These practical problems are intensified by the normal reluctance of courts of admiralty to enter decrees which might be suitable for this kind of long-range administration of the payment of compensation.

We certainly have found no practicable way to permit contribution to this limited extent and to insure at the same time that ultimately the United States won’t be made to pay something more than its share of the liability that all arises we think as the result of fact that we do have the responsibility to pay compensation whenever it is required and that means whenever dis — until disability ceases to persist.

And in the event that death occurs by natural consequence from the injury after a long term, we then have to continue compensation payments to widows or dependents.

It’s very difficult to bring all these short range into a precise amount of money payable now.

The third and last alternative which is that of requiring the negligent third party like petitioner to bear the entire burden of the damages which resulted from the injury is the only one which is totally consistent with the fundamental purposes of the — of purposes and the language of the Federal Employees’ Compensation Act in this Court’s decision, decision by Pope & Talbot v. Hawn.

Now, we have set out at pages 25 to 30 of our brief, the cases from five Courts of Appeals which have construed the exclusive liability provision of Section 7 (b) or the equivalent in the Longshoremen and Harbor Workers’ Act, Section 5.

Anthony L. Mondello:

Each of these cases involves a suit by a third party against the compensation paying employer where the third party claims that he doesn’t stand in the shoes of the employee, the representative next to kin and so on.

The uniform holdings of these Courts are that the third party suit is barred, barred by the plain meaning of the language of these sections and the fundamental purposes of this statute.

Petitioner has referred us to no appellate decisions to the contrary.

We have found none.

There’s nothing I wish to add to the treatment of those cases as they are handled in the brief.

Now, as to the indemnity cases, we think the reliance petitioner places on those is misplaced essentially for the reason that they defend for their result on the contractual right of indemnity.

Our concern here in this case —

Hugo L. Black:

May I suggest to you that the shipowner stipulated in the Ryan case, that he was not depending on the contract.

Anthony L. Mondello:

I remember — I think the acceptance by the majority of — in the Ryan case of the contractual basis for the decision is what makes it stand.

And there’s been no denial of this basis for that decision in the cases which follow it.

Hugo L. Black:

Now, may I ask you this —

Anthony L. Mondello:

But (Voice Overlap) —

Hugo L. Black:

— question about — for the long time since I’ve studied torts, but I — I have a big recollection about the mystery I had about the difference between a tort that was based on the obligation arising out of what they called ex contractu and one that was based on simply on injury that was wrong.

Now, suppose this man had sued in Ryan and plainly said, as I thought he did say, “We’re not suing on contract.

We are suing on the Court inflicted on us because there was obligation by a contractor not to — to view this right and yet we are suing on the Court, common law tort,” wouldn’t he have a right to do that?

Can’t you sue on either way?

Can’t you label it tort, a contract either one you choose?

Anthony L. Mondello:

I think you bringing the action can label it anything you choose.

Hugo L. Black:

I mean, suing for tort.

That if — when does a contract — can’t you sue and base your action and say I’m suing on a tort because I’m suing the violation of the obligation to do this for — in a certain way.

And that would be an action ex delicto as I recall the name of it.

But if you say, I’m suing here, you promise to this by contract.

I’m suing you for breach of contract, you’d reach the same result either way, wouldn’t you?

Anthony L. Mondello:

I think you would Your Honor.

Hugo L. Black:

So that what you are saying is that where the — parties can choose, either to call it ex delicto or ex contractu on the same circumstances that we should draw a distinction and disregard what was held in Ryan on that thin basis, isn’t it?

Anthony L. Mondello:

Well, I don’t regard the basis as thin for this reason.

If you look at the Ryan case and regard the right of action there, the — what produced the result in Ryan we say is the contractual element.

The way it has otherwise been stated here is that there was something independent that went on about Ryan that caused that result.

Now to us, I think the clearer basis for decision really is the fact that a contract could be looked at, I appreciate it was not written but an implied contract, a contract implied in fact of that variety and not anything by operation of law was going on in Ryan at least purportedly and certainly in the later cases —

Hugo L. Black:

But he could’ve sued either, ex delicto or ex contractu —

Anthony L. Mondello:

But the point — the point I’m trying to make Your Honor is that it doesn’t matter what the plaintiff calls it.

It matters what you have to consider it for whatever purpose you have before you when you’re making the decision.

Hugo L. Black:

You mean, if a contract has anything to do with it directly or indirectly that that simply changes it, doesn’t have to be a suit on the contract?

Anthony L. Mondello:

No sir.

What I’m trying to say is that if a plaintiff can — could prevail whether he sues in contract or sues in tort, he can do either and he can prevail.

But if there are other considerations for the Court that’s handling that suit, other matters for it to consider, it must consider those matters and decide within that framework, within that context whether — what it really is handling is a tort matter or what its handling is a contact matter.

Now, in Ryan you could point to a contract implied in fact which is what it was.

Hugo L. Black:

When you look at the facts.

When you look at facts what happens?

In each instance you have a case where a shipowner contributes to an injury — contributes to an injury.

Here, in that case, the Court was –what I thought created enough to decide for purposes of its own that there they would disregard the exclusivity part of it, and placed the liability on the shipowner.

On the basis of an ex — of contract, implied contract, here, there is a basis of a license, claim in the collision which is more than a century old I suppose, maybe several centuries, it’s a long established claim and you are saying that that should not be treated with as much dignity and given as much weight in determining whether the actual law of this case as it would be if they had certain claims on its contract.

Why isn’t that suit — whatever you call it, just as well established and why shouldn’t it be recognized just the same as one that you called ex contractu?

Anthony L. Mondello:

I think it shouldn’t because of the problem that the Court has faced rather than talk about the Ryan case, let’s — I want to talk about this one and the problem that we have here —

Hugo L. Black:

That’s the argument —

Anthony L. Mondello:

You have the language of Section 7 (b) and that language doesn’t raise any questions about — is this an independent kind of claim?

It raises very direct questions in terms whether — whatever you call the claim, is it a claim with respect to an injury or the other language of the statute, is it a claim brought on account of the injury and the critical —

Hugo L. Black:

On a what?

Anthony L. Mondello:

On account of is the language in the statute whether you bring the claim on account of an injury.

You take the injury to Ostrom out of this case and we have no argument with petitioner, none whatever.

Hugo L. Black:

Because —

Anthony L. Mondello:

We — you take the injury to Ostrom out of this case, the settlement with Ostrom, it just didn’t exist.

We wouldn’t be standing here arguing with petitioner about the — this problem which highlights the fact that we’re here because of the injury —

Hugo L. Black:

That’s what they argued in Ryan about.

Anthony L. Mondello:

Well, Ryan in the later cases still go off on this other question.

In Ryan, what you said was, there is between the two parties who are fighting about who’s going to pay ultimately — a contract, a different relation, a relation that has nothing to with the injury necessarily.

Now, when the injury arises and I’d like to point out too that in Ryan, this was a full recovery over.

This was an indemnification of the type which is known also to the law and probably is already a doctrine, as the admiralty doctrine, or the contribution doctrine which arose under the common law.

But the question under our section of the statute is, is this a tort liability?

And more specifically we get to the language of the section which is at page 3 of the Government’s brief.

Anthony L. Mondello:

Notice that it winds up mentioning that the proceedings in which the action is brought can be those in admiralty or those under any federal tort liability statute.

Now, this action was brought under the Public Vessel’s Act.

I don’t suppose that —

Hugo L. Black:

There’s no question about the Government consenting to be sued in this way, is there?

Anthony L. Mondello:

No, none whatever.

Hugo L. Black:

There’s no question.

Anthony L. Mondello:

My point is that the Federal Tort Claims Act, the Public Vessel’s Act, the suits in Admiralty Act are all regarded as waivers of jurisdiction in tort.

Arthur J. Goldberg:

All suits against the United States.

Anthony L. Mondello:

All suits against the United States but all tort cases.

Arthur J. Goldberg:

(Inaudible)

Oh, let me actually ask you these, will you take time — when it’s contemplated that — has it been in the workmen provision suit against the United with different amounts and has it been in a third party action, the workmen’s fee on a third party action, in the United States liability (Inaudible)

Is that what you’re argument means?

Anthony L. Mondello:

That happens to be the necessary effect of a good many compensation statutes.

The state statutes contained very similar provisions to these.

The courts have openly commented about the fact that in certain limited situations, it’s true the compensation paying employer in effect comes off scot-free with the one caveat, I suggested before that the compensation paying employer, particularly the United States under this Act never knows when it’s through.

Arthur J. Goldberg:

Except, don’t you have to make the exception?

Well in those cases, they are not a vogue, traditional underlying doctrine of sharing the responsibility.

Anthony L. Mondello:

No, I — that, I don’t think you need to accept Your Honor because I don’t know how old the doctrine of contribution at common law after the common law courts decided it was not.

But we’ve had contribution in some states.

I guess it’s developed as a result of development of common law now, particularly the District of Columbia.

In most, it came about by statute but it’s certainly an old, old doctrine and the notion of sharing for a mutual fault is very, very old.

I see nothing — I see no difference, I guess it’s the way I would best put this, I see no difference between contribution at common law and contribution at admiralty law.

The divided damages rule for — however many other names it has, is nothing but a system for sharing the burden of loss in a tort incident.

Now, I think the Compensation Act cut across all tort liability of this sort and so when in Ryan, he went off on a contractual basis.

I think you did this because you had to.

There was no other way to go in Ryan.

So long as Ryan appear to you to be a tort case you had to follow the dictates of the equivalent of Section 7 because it purports to cut off and in the broadest terms, all tort liability.

Whatever is left is the only predicate you could possibly use for the full indemnity over that occurred in Ryan.

And this — at that point of course, you stopped talking about a sharing 50-50 or in any other basis.

You have taken the entire burden over which is the — also an old doctrine of contractual indemnity.

Anthony L. Mondello:

All these doctrines run, they’ve been running for a long, long time.

But in 1916, Congress which had the power to interfere with them did interfere with them.

And it did so in language, in a small section of the statute in broadest terms which says the United States shall not undertake under this Act tort liability.

Now, if you can make of — the only way you could find the way out, I think in this situation would be to make of the admiralty contribution rule something other than tort liability and that I don’t think it is.

Hugo L. Black:

Mr. Mondello, I want to add or know what I have asked you about the statute.

I know that that I think you’ve made a good argument although I am trying to think that you have a number of difficulties in your way.

Anthony L. Mondello:

It’s a difficult case, Your Honor.

The Harter Act, this will be my last — excuse me.

We think the analogy to the Harter Act case is inappropriate because of the differences really between the Harter Act as a working statute in this Compensation Act.

The Harter Act settled a much narrower question between the shipper and the carrier with respect to cargo.

And its terms and its legislative history and the expressions about those terms from that legislative history by this Court shows that it was never designed to interfere with the rights of third parties.

You have literally said that, you said it in Delaware, you said it again I think — you did in the Chattahoochee.

And in this, that statute is remarkably different from the Compensation Act.

And of this, you should have no doubt.

The Compensation Act is —

Arthur J. Goldberg:

The statute (Inaudible)

Anthony L. Mondello:

I think the statute — the statutory terms don’t purport to deal with third parties and the legislative history indications are that there was this very narrow arrangement of the exculpation from liability to negligence.

That the Congress was trying to correct between shipper and cargo carriers and that’s all that Congress had an interest at that point.

It was not — literally, it was not trying to affect third parties.

Arthur J. Goldberg:

Well, are you —

Anthony L. Mondello:

But more often —

Arthur J. Goldberg:

Wouldn’t that be arguable under this statute, the terms of the Government under the rule, the liability of the United States Court?

Anthony L. Mondello:

No sir.

You cannot argue that and still take account of the reimbursement provisions of this statute because in this statute Congress did talk about third parties and decided precisely wanted — what it wanted to do about it.

You don’t have that in the Harter Act.

And well, we submit that the summation of the factors that Judge Learned Hand used in the Matthews case where he denied contribution against this argument about the analogy to the Harter Act under Section 5 of the Longshoremen Harbor Workers’ Act and it fits like a glove here under the almost precise — precisely identical language of Section 7 (b) of the Compensation Act.

Potter Stewart:

Well, that’s the Halcyon case, that’s the Halcyon case, I suppose it is.

Anthony L. Mondello:

No sir.

Potter Stewart:

I mean, it’s the same doctrine, same question or not —

Anthony L. Mondello:

Yes, it is.

Anthony L. Mondello:

The contribution aspect under this —

Potter Stewart:

Yes.

Anthony L. Mondello:

— case, yes.

Earl Warren:

Mr. Rolph.

Henry R. Rolph:

Mr. Chief Justice, I’ll be very brief.

I just wanted to call to the Court’s attention the two recent cases decided by this Court which further go on — defined the Ryan case and makes the account warranty indemnity theory to be a very thin one and we did not cite them in our brief, that’s Waterman Steamship Corporation versus Dugan & McNamara decided in 1960 and Atlantic & Gulf Stevedores versus Ellerman Lines decided April 2, 1962.

The only comment which I would like to make in reply to Government’s argument is that he tempts to — attempted to minimize the importance of these third party actions and that it wasn’t Congress’ intent to consider them because they were relatively unimportant but they’re tremendously important and that’s illustrated by the whole series of cases of this Court starting with the Ryan case.

And they’re tremendously important if the Court will think of the factual situations that can be involved with this doctrine as set forth in the Ninth Circuit’s opinion.

And this case is permitted to stand where the private shipowner coming in to a mutual fault collision with a government vessel will be required to absorb all of the damages above the compensatory payments accruing on the government vessel and they could be a very tremendous amount.

So that the matter can’t be just brushed with — brushed off on the basis that these third party actions weren’t — aren’t important and therefore they weren’t considered by Congress.

Byron R. White:

Mr. Rolph, what was the argument in the — in the — the accruing of the damages in the rule?

Henry R. Rolph:

Well, it’s historic doctrine, it goes way back and the purpose of it was to prevent the injustices that would accrue if the straight rule of contributory negligence were applied.

For this reason Mr. Justice White, to take by way of illustration.

One vessel is damaged very extensively and we will say for the purposes of illustration, she suffered damaged of $2 million.

We would say that the other vessel which came in to collision with her suffered no damages at all.

But she was equally at fault and in violation of the duty to refrain from negligence as far — in her navigation as far as that vessel.

Well, if you apply to contributory negligence rule as we have it in common law, the vessel sought having sustained all the damages but equally at fault would be in a very weak position and it could cause a bankruptcy or insolvency of that shipowner.

So through the years and it goes back to — really, I think to the days in England when they first — they were trying to encourage people to invest in ocean shipping.

Byron R. White:

Wouldn’t the — when did we — when did this Court have —

Henry R. Rolph:

This Court first —

Byron R. White:

— the doctrine though?

Henry R. Rolph:

— recognized it formally in the — where it was defined in the case of the Catharine in 1854 and it was further recognized by the Court in the North —

Byron R. White:

When was it that the — that the English rule was rejected?

Henry R. Rolph:

Well, subsequently after the adoption by this Court of the mutual fault doctrine of divided damages and later on in history, the British courts evolved a system of apportionment of damages based on degrees of fault.

And that was never accepted in this country although arguments were made along that line in the case of the Chattahoochee and the doctrine was rejected in the Chattahoochee.

William J. Brennan, Jr.:

What year was the Chattahoochee?

Well, don’t bother, don’t bother, don’t waste your time.

Henry R. Rolph:

Well, Chattahoochee Mr. Justice Brennan was decided in connection with construction of the Harter Act and I should have it here —

William J. Brennan, Jr.:

Don’t bother.

Don’t waste your time.

Arthur J. Goldberg:

What does that review — what should that point?

Henry R. Rolph:

Well, what I was looking for Mr. Justice Goldberg is to see if we had here the date when the decision was handed down.

But in any event, starting with the Chattahoochee, all of decisions since then have uniformly accepted it one after the other, the Canadian Aviator —

Byron R. White:

Wouldn’t —

Potter Stewart:

1899 was the date of the Chattahoochee.

Henry R. Rolph:

(Inaudible)

Byron R. White:

What was it — did employees’ injuries were included in the hearing?

Henry R. Rolph:

They were —

Byron R. White:

— or they were just damaged because —

Henry R. Rolph:

They’ve always been considered — employee — any personal injury or loss of life has always been considered to be a proper item of damages in a mutual fault collision to be added into the total damages resulting from the collision.

And the Government up until the time of this case has settled many, many cases on that basis including this Benevolence case which had never actually went into litigation.

We settled on that basis and that formula has been applied uniformly down through the years so that it — the — there’s no question but that it applies to the personal injuries as well as the death cases, which resulted from collisions, Mr. Justice White.

And the — in closing, I just want to point out as we have in the brief that the state courts have uniformly recognized the rights of third parties in construing these Compensation Acts in rights over against the employers and we’ve cited the various cases in the matter, in our brief including the leading case from California, Baugh versus Rogers.

With that, I thank the Court for its attention.