Hastie and Ganey, Circuit Judges, and Clary, District Judge.
Our opinion today, In the Matter of the Petition of Oskar Tiedemann and Company, 367 F.2d 498, deals with appeals centering on the liability of Oskar Tiedemann & Co., the owner of the ship Elna II, as imposed by the consolidated decree in which the district court undertook to make final disposition of numerous death and personal injury claims which resulted from the collision of the ships Elna II and Mission San Francisco. The present opinion deals with those appeals from the consolidated decree which question relief granted to claimants against the United States, as owner, and Mathiasen's Tanker Industries, Inc., as operator, of the naval supply ship Mission San Francisco.
We consider first a contention that under the relevant statutes the United States alone is liable on the seamen's death and personal injury claims and that the additional entry of judgment against Mathiasen's Tanker Industries was error.
The essential facts concerning the ownership and operation of the vessel were pointed out in an earlier stage of this litigation. See 155 F. Supp. 714, aff'd 259 F.2d 608; 179 F. Supp. 227, aff'd 289 F.2d 237. Briefly, Mission San Francisco was an undocumented tanker owned by the United States. At the time of the collision, this tanker was being operated by Mathiasen under a contract with Military Sea Transportation Service, an agency of the United States Navy. The agreement provided that Mathiasen would "manage and conduct the business of the Government with respect to" the tanker and, to that end, would "equip, fuel, supply, maintain, man, victual, and navigate" the ship. Mathiasen supplied a master and a civilian crew. There is no suggestion that under this contract the tanker could be or ever was used except in "the business of the Government", more particularly as a naval supply ship. Affirmatively, the court below found that the vessel had most recently delivered and discharged a cargo of jet aviation fuel for the Navy and was proceeding in ballast on another mission as directed by the Navy when the collision occurred.
Relying on these facts, the claimants here argue that Mathiasen was such a "charterer or owner pro hac vice" as under established principles of law must respond in damages for harm caused by the negligent navigation of the vessel operated by it. Moreover, it is argued that we already have so decided in affirming the district court's refusal to dismiss Mathiasen's limitation petition, 259 F.2d 608, and later affirming the decision that the dangerous condition and grossly negligent navigation of the ship were such as to deprive both its owner and its operator of the benefit of limited liability. 289 F.2d 237.
Our earlier decisions in this case neither considered nor foreclosed the contention now made that the relevant federal statutes provide for recovery against the United States as owner of a public vessel and preclude recovery against Mathiasen as operator for the government, even though but for such legislation the operator might also be liable. A petition for limitation of liability, such as Mathiasen filed here neither admits liability nor waives any defense. Smith v. United States, 4th Cir., 1965, 346 F.2d 449, cert. denied 382 U.S. 878, 86 S. Ct. 163, 15 L. Ed. 2d 119; Petition of Spearin, Preston & Burrows, 2d Cir., 1951, 190 F.2d 684. It is an anticipatory protective measure to avoid full personal responsibility if liability shall later be imposed. Accordingly, the first decision of the district court and our affirmance of it merely recognized that as the person who operated a ship, employing a master and a crew for that purpose, Mathiasen faced sufficient risk of liability for harm caused by that ship to justify it in asking for a limitation of liability. In that connection, we said merely that "responsibility may well be ascribed to Mathiasen". See 259 F.2d at 611. This in no way precluded Mathiasen from asserting as a defense later, when injured parties attempted to prove their claims against both the United States and Mathiasen, that the controlling statutes made the government exclusively liable for Mathiasen's operation of a public vessel.
Similarly, in later affirming the refusal of the district court to grant Mathiasen limitation of liability we held merely that the dangerous condition and improper navigation of the naval ship were such as to deprive anyone who might be responsible for her faults, whether the owner or the operator, or both, of the benefits of limitation of liability. Here again, we neither considered nor decided whether, in the circumstances of this case, the controlling statutes permit recovery against both the government and the operator.
This brings us to the merits of the controversy concerning the liability of Mathiasen. As against the United States the claimants necessarily rely upon the Public Vessels Act, 46 U.S.C. §§ 781-790, and its incorporation of the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, as serving to waive sovereign immunity and to permit and regulate libels against the United States for "damages caused by a public vessel of the United States". 46 U.S.C. § 781. But in thus permitting recovery against the United States, Congress has stipulated that "where a remedy is provided * * * [against the United States] it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent * * * of the United States * * * whose act * * * gave rise to the claim". 46 U.S.C. § 745.
Preliminarily, the claimants urge that Mission San Francisco was not a "public vessel of the United States". But for this contention, we would have thought it too clear for serious argument that a ship owned by the United States and used as directed by the Navy for the transportation of military supplies is "a public vessel of the United States". However, we must deal briefly with the contention that the manning and operation of the vessel by Mathiasen, a private corporation, make it something other than a public vessel, presumably a merchant ship. We find no case which supports this view. Certainly the two cited by the claimants do not. One of them, Calmar S.S. Corp. v. United States, 1953, 345 U.S. 446, 73 S. Ct. 733, 97 L. Ed. 1140, mentions the Public Vessels Act only tangentially. The issue there was whether a privately owned ship operated for hire on a war mission for the United States was "employed as a merchant vessel", and the Court decided that the ship was so employed. There is no suggestion that in similar circumstances a government owned vessel would be a merchant vessel rather than a public vessel. Equally unhelpful is the claimants' citation of George W. Rogers Const. Corp. v. United States, S.D.N.Y. 1954, 118 F. Supp. 927. There a government owned ship operated by "civil service employees of the United States" was found to be a public vessel. But this does not imply, as the claimants argue, that only ships operated by such civil service employees are public vessels. We think government ownership and use as directed by the government exclusively for a public purpose suffice without more to make a ship a public vessel. Smith v. United States, 4th Cir., 1965, 346 F.2d 449, cert. denied 382 U.S. 878, 86 S. Ct. 163, 15 L. Ed. 2d 119; cf. Bradey v. United States, 2d Cir., 1945, 151 F.2d 742; Sbarbaro v. United States, E.D.Pa.1953, 112 F. Supp. 93.
Despite the status of the ship as a public vessel, the claimants argue that the statutory provision for exclusive liability of the United States is inapplicable here. It is argued that Mathiasen was not "the agent * * * of the United States * * * whose act * * gave rise to the claim" within the meaning of section 745 of title 46. Undoubtedly, Mathiasen's faulty navigation of the ship caused the collision. Therefore, the contention must be that Mathiasen was not an "agent of the United States" within the meaning of the statute. Accordingly, we must decide whether in section 745 Congress used "agent" comprehensively to include such a contract operator as Mathiasen was in this case.
As a matter of legal definition, "agent" of the United States is an appropriate characterization of such a contract operator of a public vessel as Mathiasen. The accepted distinction between "servant" and "independent contractor" may place Mathiasen in the latter category, since it is arguable that Mathiasen's day to day working of the ship was not subject to government control. See Restatement, Agency, 2d, § 2. But an independent contractor, no less than a servant may be an agent in that he is employed as a fiduciary, acting for a principal with the principal's consent and subject to the principal's overall control and direction in accomplishing some matter undertaken on the principal's behalf. Restatement, Agency, 2d, § 14 N.
Certainly, under the contract in this case Mathiasen owed the United States obedience and loyalty and was in significant ways subject to the government's direction and control. Mathiasen expressly agreed "to manage and conduct the business of the Government with respect to such tankers" as the government should furnish "solely in the public use or in the protection of the National interest or economy". The government was to prescribe "voyages and cargoes". While Mathiasen undertook to "man, victual and navigate" the ships, the government was empowered "to terminate the employment of the master or any member of the crew" as the public interest might dictate. Wages of the crew and all costs of operating the ships, though paid by Mathiasen, were reimbursable by the government. We think the general sense and specific details of this agreement disclose a relation ...