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UNITED STATES v. GALLAGHER

November 30, 1970

UNITED STATES of America, Plaintiff,
v.
William GALLAGHER, Defendant


Beeks, District Judge.


The opinion of the court was delivered by: BEEKS

In this action United States seeks indemnification for unearned article wages and maintenance paid to a maritime employee who was negligently injured by defendant. The facts are not in dispute.

 On July 31, 1968, at Poulsbo, Washington, defendant, owner/operator of a taxicab, negligently operated his taxicab in such a manner as to cause injury to Ronald J. Frey, a passenger.

 At the time of the accident Frey was a member of the crew of SS GREENBAY VICTORY, owned by plaintiff, and was returning to his ship from authorized shore leave.

 As a result of personal injuries sustained, United States, through its General Agent, Prudential Lines, Inc., paid Frey unearned wages in the sum of $963.03 and maintenance in the sum of $1,256.00, for a total sum of $2,219.03. These sums represent amounts due him for lost wages from the date of injury until the termination of the voyage for which Frey had signed articles, and for maintenance from the date of injury until he was declared fit for duty.

 On May 21, 1969 the Superior Court of the State of Washington for King County, by way of summary judgment, adjudged defendant liable to Frey and the matter was subsequently compromised and settled between the parties. There is, however, no evidence before this court with respect to the amount paid or the items of special damage involved in Frey's claim.

 A question of indemnification such as this may arise in two situations. One is where a contract exists between employer and tortfeasor, and the injury is a result of the tortfeasor's breach of that contract. Such a situation is a clear fallout from Ryan1 and was recognized as such in United States v. Tug Manzanillo, 310 F.2d 220 (9th Cir. 1962), where United States as employer was awarded indemnity.

 The other situation is where, as here, a tortfeasor injures the seaman and the element of contract, express or implied, between the tortfeasor and the employer is absent.

 In this circumstance there is a split of authority evidenced by two leading cases, The Federal No. 2, 21 F.2d 313 (2nd Cir. 1927), denying indemnity, and Jones v. Waterman S.S. Corp., 155 F.2d 992 (3rd Cir. 1946) allowing indemnity. In The Federal No. 2, the court reasoned that unless the injury arose out of a breach of a contractual obligation between the tortfeasor and the employer, the tortfeasor owed no legal duty to the employer with respect to the contractual obligations of an employer to a seaman. Since the right to maintenance and cure is contractual, the court concluded that the employer's liability for maintenance and cure could not be shifted to the tortfeasor.

 In Standard Oil, a soldier was injured as a result of the negligence of Standard Oil Co. Relying on the theory that the government-soldier relationship is a status similar to that of master and servant, or parent and child, or husband and wife, the District Court permitted the government to be reimbursed for lost wages and expenses of hospitalization incurred as a result of the accident. On appeal, however, the Ninth Circuit Court of Appeals reversed. In so doing, it cited with approval The Federal No. 2. The Supreme Court subsequently affirmed the Court of Appeals, but did so on other grounds not here material.

 Although I am well aware of the equities of plaintiff's position *fn2" and sympathetic to its cause, I feel constrained to follow the pronouncement of the Court of Appeals to which I am accountable that it approves the holding in The Federal No. 2. *fn3" For this reason I am of the opinion that the Government does not have a right of indemnification herein. *fn4"

 Accordingly, the action is dismissed. Defendant's counsel shall prepare decree in accordance herewith for presentation to the court ...


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