BISSELL, District Judge.
This matter arises out of a complaint filed on August 1, 1985 by Raoul Cruz, a merchant seaman in the United States Merchant Marine and a resident of San Francisco, against Marine Transport Lines, Inc. ("Marine Transport" or "MTL"). Jurisdiction is predicated on the General Maritime and Admiralty Law of the United States as modified by the Jones Act, 46 U.S.C. § 688. Defendant Marine Transport is a Delaware corporation having its principal place of business in New Jersey. In his complaint, plaintiff asserts that during his employ by Marine Transport as a crew member of the United States Naval Ship ("USNS") Sealift Pacific, on or about August 5, 1982, he was injured as a result of the negligence of defendant and the unseaworthiness of the Sealift Pacific. More specifically, he allegedly suffered injuries to his eyes, chemical burns on his body and shock when hoses connected to a pump which he was raising broke, spraying chemicals on his face and body. Plaintiff seeks $20,000 in damages.
Prior to this action, on July 31, 1984, plaintiff filed suit in the Northern District of California under the Public Vessels Act, 46 U.S.C. §§ 781-790, against the United States, the owner of the USNS Sealift Pacific, for the same alleged injuries. Because plaintiff failed to comply with the "forthwith service" requirements of 46 U.S.C. § 742, that action, which was then time barred, was dismissed on March 27, 1985 for lack of jurisdiction. Plaintiff appealed the district court's decision to the Ninth Circuit but later withdrew that appeal on September 5, 1985.
The United States, on behalf of its alleged agent, Marine Transport, moves for summary judgment pursuant to Fed.R.Civ.P. 56, asserting that this Court lacks subject matter jurisdiction under the exclusivity provision of 46 U.S.C. § 745, the Suits in Admiralty Act, and that plaintiff fails to state a claim upon which relief can be granted. Alternatively, if summary judgment is denied, the United States requests that this action be transferred to the Northern District of California pursuant to 46 U.S.C. § 782 or 28 U.S.C. § 1404(a). Lastly, the movant seeks the imposition of sanctions against plaintiff under Fed.R.Civ.P. 11.
The Court heard oral argument on November 25, 1985 but, upon plaintiff's request, reserved decision on the motion for summary judgment until after the Court had an opportunity to review the contract between the United States and Marine Transport.
The Court first addresses the argument raised by plaintiff that the United States, as a non-party to the suit, does not have standing to bring this motion. A similar issue was discussed in Carter v. American Export Isbrandtsen Lines, Inc., 411 F.2d 1185 (2d Cir.1969). There, the motion for summary judgment was brought by the defendant contract operator, American Export Lines, Inc. However, defendant was represented by government attorneys, a procedure which the plaintiff deemed improper. The Second Circuit disagreed, stating,
28 U.S.C. § 547 provides that the United States Attorney shall defend "all civil actions, suits or proceedings in which the United States is concerned" which arise in his district. Since American Export was the agent of the United States, the representation was proper.
Id. at 1186. Applying the Carter ruling to the case at bar, the Court finds that since Marine Transport is the agent of the United States, as discussed infra, the filing of the within motion by the United States is proper.
Certain facts are undisputed by the parties. Both accept that from June 15, 1974 to the present, the USNS Sealift Pacific has been a public vessel of the United States under a bareboat charter to the Government, engaged in the worldwide transportation of petroleum products for the United States Department of Defense. It is also uncontested that plaintiff Raoul Cruz was employed as a crew member of the Sealift Pacific when he was allegedly injured on August 5, 1982. The vessel was at sea on that date and called at Guam on August 9, 1982 where plaintiff was treated.
The parties do disagree on whether or not Marine Transport has been the agent of the United States as its vessel contract operator for the USNS Sealift Pacific. Movant states that it contracted with MTL to act as its vessel operator pursuant to a fixed price contract (United States' Brief at 3-4) and that Marine Transport has been its agent prior to August 5, 1982 until the present (United States' Statement of Uncontested Material Facts at para. 2).
The crux of the United States' argument on the dismissal issue is that defendant MTL was acting as the United States' agent and that "seamen's actions, such as plaintiff's, must be filed under the Public Vessels Act, 46 U.S.C. §§ 781-790, which incorporates by reference the Suits in Admiralty Act, 46 U.S.C. §§ 741-752 [and] may be commenced only against the United States and not against its agents. Carter v. American Export Isbrandtsen Lines, Inc., 411 F.2d 1185 (2d Cir.1969)." (United States' Brief at 4).
In Carter, supra, the Second Circuit held that because plaintiff seaman, allegedly injured on a public vessel of the United States, had an adequate remedy against the United States under the Public Vessels Act and the Suits in Admiralty Act, his sole remedy was against the United States, not against defendant, the operator of that public vessel and the agent of the United States.
A seaman's remedy against the United States is provided in the Public Vessels Act, 46 U.S.C. §§ 781-790, which establishes that a libel in personam may be brought against the United States in cases involving public vessels. 46 U.S.C. § 781. The Public Vessels Act incorporates by reference the provisions of the Suits in Admiralty Act, 46 U.S.C. §§ 741-752. 46 U.S.C. § 782. Section 742 makes available a libel in personam against the United States in any case in which a proceeding in admiralty could have been maintained against a privately owned vessel had it been involved. 46 U.S.C. § 742. That the remedy of a seaman injured aboard a public vessel, such as the USNS Sealift Pacific, lies exclusively against the United States is provided in 46 U.S.C. § 745 which reads:
where a remedy is provided by this Act [ 46 USCS §§ 741 et seq.] it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States or of any incorporated or unincorporated agency thereof whose act or omission gave rise to the claim . . . .