author: LYNCH, District Judge.

text:
    WESTAR MARINE SERVICES, et al., Plaintiffs, v. HEEREMA MARINE CONTRACTORS, S.A., et al., Defendants.
    No. C-84-4998 EFL.
    United States District Court, N.D. California.
    Nov. 18, 1985.

      Sheldon A. Vogel, Thacher, Proffitt & Wood, New York City, Graydon S. Staring, Lillick McHose & Charles, San Francisco, Cal., for defendants.
    Ronald Lovitt, Lovitt & Hannan, Inc., John E. Droeger, Hall, Henry, Oliver & McReavy, San Francisco, Cal., for plaintiffs.
   ORDER GRANTING PARTIAL SUMMARY JUDGMENT

LYNCH, District Judge.

I. INTRODUCTION

On the afternoon of July 3, 1984 a number of crafts were fastened together and moored in San Francisco Bay south of the Richmond-San Rafael Bridge. The flotilla consisted of the Heerema Barge H. 109, one or more barges owned by Kaiser Steel Corporation, and a large oil drilling rig owned by Shell California Production, Inc.

At approximately 3:30 p.m. the Heerema Barge dragged her mooring anchor and the flotilla began to drift northward toward the bridge. In response to distress calls, the tug Polaris motored to the flotilla and offered assistance. The offer was accepted, and the Polaris then maneuvered to attach a towline to the Heerema Barge. Once the towline was affixed, the Polaris attempted to position the flotilla so that the strong westerly wind would push the flotilla to shallower waters in the eastern part of the Bay. At approximately 4:15 p.m. the flotilla was grounded upon a rock in the eastern part of the Bay approximately 500 yards south of the bridge. With the assistance of other tugs that had arrived at the scene during the events described above, the Polaris towed the flotilla to Anchorage No. 5 in the Bay and was released from further obligations at 6:20 p.m.

The owner, charterer, and two-person crew of the tug Polaris have initiated litigation to obtain a salvage award for the acts performed on July 3, 1984. Defendants have brought a motion for partial summary judgment urging this Court to clarify and limit the factors it may consider in making a salvage award. Before such a determination can be made, the Court must decide what law governs this case.

II. CHOICE OF LAW

Salvage awards are the subject of local, national, and international laws. When this Court sits as an admiralty court, it applies the general federal maritime law. Southern Pac. Co. v. Jensen, 244 U.S. 205, 215, 37 S.Ct. 524, 528, 61 L.Ed. 1086 (1917). The Court must determine precisely what constitutes the federal maritime law in this case. Defendants contend that the Court is bound by The Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea, Sept. 23, 1910, 37 Stat. 1658 (1913), T.S. No. 576, reprinted in 3A M. Norris, Benedict on Admiralty App. B-1 (7th ed. 1984), (sometimes referred to as The Brussels Convention of 1910; hereinafter the “Salvage Treaty” or “Treaty”). Plaintiffs argue that the maritime common law of the United States, exclusive of the Salvage Treaty, should be the guide. For the reasons outlined below, this Court is compelled to apply the Salvage Treaty.

The Supremacy Clause of the United States Constitution makes clear that along with the Constitution and laws of the United States, “all Treaties ... made ... under the Authority of the United States ... shall be the Supreme Law of the Land.” U.S. Const, art VI, cl. 2. Article II explains that a treaty is made under the authority of the United States when it is signed by the President and ratified by two-thirds of the Senate. U.S. Const. art. II, sec. 2, cl. 2. As a result, once a treaty is ratified it is the law of the United States and is as binding as a federal statute. See In Re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1309 (9th Cir.1982) (upholding the applicability and constitutionality of the Warsaw Convention’s limitations on air carrier liability).

The Salvage Treaty was signed by the United States in 1910 at Brussels and was ratified in 1913. 37 Stat. 1658 (1913). Thus, if by its own terms the Salvage Treaty applies to the case before this Court, it must be given effect. Warshauer v. Lloyd Sabaudo S.A., 71 F.2d 146, 148 (2d Cir. 1934) (The Treaty is self-executing; it needs no implementing legislation.). The Court appreciates that the Salvage Treaty “has played little part in the development of American salvage law and has rarely been construed, discussed or cited,” G. Gilmore & C. Black, The Law of Admiralty 534 (1975), but that historical observation is not a justification for this Court to ignore the Treaty if it is applicable.

The scope of the Salvage Treaty is laid out in its Articles 1, 14, and 15. Article 1 provides that the Treaty will apply to salvage operations, regardless of where they occur, involving seagoing vessels and vesseis of inland navigation. Article 14 exempts from the Treaty’s coverage ships of war and Government ships. There is no contention here that either the nature of the vessels involved or the location of the operation renders the terms of the Salvage Treaty inapplicable to this case.

Article 15 makes the Treaty applicable when any of the vessels involved belongs to a country that has signed the Treaty. However, it provides that it will not apply “where all the persons interested” are from the country in which the case is being tried. There is a dispute in this case as to the meaning of the phrase “all the persons interested”; plaintiffs contend that all the persons interested are from the United States while defendants contend that they are not.

The Court can find no American authority interpreting the phrase, nor was it directed to any foreign authority that has provided an interpretation. Nevertheless, the Court is confident that in this case it would be error to conclude that all the persons interested are from the United States. The phrase certainly requires consideration of the nationalities of the plaintiffs. In this case the human plaintiffs are American citizens while the corporate plaintiff is part of an entity incorporated under the laws of one of the United States. The phrase must also encompass the defendants. However, plaintiffs and the defendants opposing this motion disagree as to how the phrase should be interpreted with respect to the defendants. Plaintiffs have urged the Court to treat only those defendants who have been served and have appeared before the Court as members of the class of all the persons interested. The Court believes that to reinterpret “all the persons interested” as “all parties served” would be to violently restrict the scope of the Treaty. The phrase must at least encompass named defendants, and in this case two of the named defendants, Heerema Marine Contractors, S.A. and Vareos Shipping, S.A., are corporations formed under the laws of countries other than the United States.

There is no inequity to the plaintiffs in interpreting the Treaty so that it is invoked when a named defendant is from a different country. As the masters of their complaint, plaintiffs can avoid naming foreign defendants in order to elude the Treaty’s reach. Cf. 13B C. Wright, A. Miller & E. Cooper, supra note 11, at 413-14 (a plaintiff may have an action dismissed as to a non-indispensable party to avoid diversity and preserve jurisdiction); Ross v. Int’l Bhd. of Elec. Workers, 634 F.2d 453, 456 (9th Cir.1980).

More importantly, interpreting the phrase so as to favor liberal application of the Treaty by considering the nationality of. named defendants even though they have not appeared, is consistent with the Treaty’s intent to provide uniformity among nations in the resolution of salvage cases. Such an interpretation also comports with the ordinary meaning of the phrase “all the persons interested” better than would an interpretation limiting its meaning to include only those persons who have been served and have appeared. In light of the intent of the Treaty and the peculiarity of the interpretation plaintiffs have urged upon the Court, the Court will interpret the phrase “all the persons interested” to include all named defendants.

Thus, this Court is convinced that the Salvage Treaty governs the resolution of this issue. The question remains as to what factors can be considered in making salvage awards under the Treaty.

III. THE CONSIDERATIONS IN A SALVAGE AWARD

The factors to be considered in making a salvage award are enumerated in Article 8 of the Treaty. It reads:

The remuneration is fixed by the court, according to the circumstances of each case, on the basis of the following considerations: (a) Firstly, the measure of success obtained, the efforts and deserts of the salvors, the danger run by the salved vessel, by her passengers, crew and cargo, by the salvors, and by the salving vessel, the time expended, the expenses incurred and losses suffered, and the risks of liability and other risks run by the salvors, and also the value of of the property exposed to such risks, due regard being had to the special apropriation (if any) of the salvor’s vessel for salvage purposes; (b) second, the value of the property salved.

Salvage Treaty, Art. 8.

The Treaty places an upper limit on the salvage award at the value of the property salved.

A. Limits on the Factors to be Considered

Plaintiffs urge this Court to include within these categories of salvage award considerations both “the pubiic interest” and the value to defendants in being spared from liability to third parties such as the owners and users of the Richmond-San Rafael Bridge (a concept sometimes referred to as “liability salvage”). No Américan Court has yet determined whether so-called liability salvage is a permissable consideration in making a salvage award under the Treaty or any other body of salvage doctrine. This Court feels compelled to conclude that it cannot be considered in this case as it is not within the contemplation of the Treaty. The Court is also compelled to exclude consideration of the public interest as a distinct factor in making the award.

Plaintiffs argue that the Court can interpret the Treaty so as to take into consideration the prevention of liability to defendants under both parts (b) of Article 8 as an aspect of the value of the property salved and under several of the other factors to which part (a) directs consideration. The Court disagrees: neither liability salvage nor the public interest may be considered as distinct factors under either part of Article 8.

1. Delimiting “the value of the property salved.”

Plaintiffs cite United States v. Cornell Steamboat Co., 202 U.S. 184, 26 S.Ct. 648, 50 L.Ed. 987 (1906), for the authority that liability to third parties can be considered an aspect of the value of the property salved. The Court notes that the case is not an interpretation of the Treaty and so is of limited relevance to this discussion, and the Court doubts that the Cornell case can be taken for such a broad proposition. In Cornell, a ship delivering sugar caught fire in New York harbor. The salvor saved the sacks of sugar, and then collected a salvage award from the U.S. Government on the theory that because the duty on the sugar had already been paid to the Government, saving the sugar spared the Government from having to refund the duty which would not have been owed had the sugar not been unloaded. Id. at 192, 25 S.Ct. at 650.

This Court does not read Cornell for the proposition that any liability to a third party that a salvor prevents must be considered an aspect of the property salved. General salvage law and the Treaty recognize that freight and passenger money can be a subject of salvage and are therefore includable within the value of the property salved. The liability for repaying the duty paid in Cornell is very much like the liability for repaying prepaid freight which the salvage law recognizes. Both are for a finite and predetermined amount closely related to the value of the tangible cargo on board the ship. Neither liability is as speculative or contingent as the possible liability to someone like the bridge owner would be in this case. Thus, Cornell at most stands for a slight extension of the concept of salvable property in federal maritime common law to include prepaid duty. Moreover, it is not clear that even such a limited extension is the law under the Treaty. The Treaty was drafted after Cornell was decided, but no mention is made of prepaid duty either in Article 1 in the description of what can be salved, or in Article 8 describing the factors to be considered in making the salvage award.

Recent proposals to modify the Treaty by international agreement persuade this Court that the present Treaty does not include potential liability to third persons within the concept of the value of the property salved as used in Articles 2 and 8 of the Treaty. In light of recent maritime disasters in which supertankers have become disabled and threatened coastlines with ecological disaster, the Treaty has been criticized for its inability to appropriately encourage salvors to render aid and prevent an ecological disaster. The shortcoming critics found in the Treaty is its requirement in Article 2 that a “useful result” be obtained in order for a salvor to even be eligible for a salvage award. The language of Article 2 codifies the “no cure, no pay” rule which is an ancient and fundamental aspect of the law of salvage. The problems critics found with the “no cure, no pay” rule was that salvors were provided with little or no incentive to prevent an oil spill when it was unlikely that the ship itself could be saved, or when the value of the saved ship would be too small in relation to the efforts the salvors would undertake to prevent the spill. In short, the problem was that “useful result” was equated with arrived salved value (in this case, the value of the flotilla when it arrived at Mooring 5). When the arrived salved value was small (no cure), there could be no award at all (no pay) or the limit on the award would be so small as to make salvage efforts unprofitable.

To solve the problem the proponents of the Montreal Draft International Convention on Salvage (“Draft Convention”) created in salvors a new duty to use their best efforts to prevent or minimize damage to the environment. Those efforts may then be considered as a factor in determining the amount of the award, but the award is still subject to the limit set by the arrived salved value of the property. However, the Draft Convention allows for special compensation when a salvor attempts to minimize damage to the environment. Whether successful or not the salvor is entitled to compensation for his expenses, and if successful in minimizing damage to the environment, he may receive up to double his expenses. The special compensation is only available if the salvor is not entitled to a “conventional” salvage award (which may be arrived at after considering efforts taken on behalf of the environment) as large as his special compensation might be.

The perception of a problem and the Draft Convention solution indicate that the present Treaty does not include within the concept of the value of the property salved possible liability to third parties. If the Treaty did include such liability within the value of the property salved, there would have been no reason to tinker with it: a salvor who aided a damaged supertanker would have been able to come into court and argue for a salvage award up to the limit of the liability he would claim he prevented the shipowner from incurring. Clearly, the scholars who conceived the Draft Convention felt that the present Treaty does not allow the prevention of liability to be considered either as an aspect of the value of the property salved or as a cure or “useful result” as those terms are used in the Treaty.

The existence of a perceived need to revise the Treaty persuades this Court that it cannot consider the prevention of potential liability under the present Treaty, and the deliberations the revisers undertook convinees this Court that it should not read liability salvage into the Treaty. The proponents of the Draft Convention explicitly considered and rejected the concept of liability salvage when they chose instead to give enhanced rewards for minimizing damage to the environment. See O’May, supra note 16, at 1423-24; Coulthard, supra note 18, at 50-51. This Court will not disregard the conclusions of an international body of experts without a very good reason for so doing, and the Court finds no such reason in this case.

Thus, this Court is compelled to reject the concept of liability salvage in interpreting the Treaty. The avoidance of potential liability to third parties is not an aspect of the property salved which can be considered under Articles 2 or 8, nor does it fall within the list of salvageable items described in Article 1. So concluding, however, does not end the discussion, for there is still the question of whether or not the prevention of liability to third parties can be considered under any of the other factors described in Article 8.

2. Delimiting the other Article 8 factors.

Plaintiffs argue that two separate lines of cases, one English and one American, support their contention that preventing liability to third parties is a factor to be considered in making a salvage award.

Plaintiffs cite the English eases of The Whippingham, 48 Ll.L.L.R. 49 (1934), The Buffalo, 58 Ll.L.L.R. 302 (1937), and The Gregerso, 1 Q.B. 274 (1973), in support of their contention that the Court should consider the prevention of harm to third parties as a factor in making the salvage award. This Court finds those cases unpersuasive. In the first place, they are not cases decided under the Treaty and thus reflect the state of British maritime law independent of the Treaty, not the law of the United States either with or without the Treaty. More importantly, they are cases in which the issue of liability is mentioned so casually as to be the most unpersuasive kind of dicta. Thus, this Court agrees with Judge Sheen who said of the three cases and their impact on English law,

It seems to me that those dicta amount to no more than this: If the circumstances are such that, if it were not for the salvage services the shipowner might find himself liable in damages to others, that fact should have some bearing upon the amount of the salvage award because it makes the service of greater benefit to the shipowner.

Sheen, supra note 21, at 1405-06. The Court notes that the benefit to the shipowner is not currently one of the independent factors of which the Treaty allows consideration in making an award.

Plaintiffs rely on Tidewater Salvage, Inc. v. Weyerhaeuser Co., 633 F.2d 1304 (9th Cir.1980), and cases it cites in which American courts have granted salvage awards for clearing derelicts off the seas, for the proposition that the public interest is a factor in determining the amount of a salvage award. In so relying, plaintiffs have confused the rules of salvage with the policy which those rules seek to implement. Tidewater does contain language explaining that salvage awards are given because public policy requires that rewards be held out to encourage mariners to come to the aid of other mariners in distress, id. at 1306; thus, the public interest is a factor motivating the existence of salvage awards in the first place. However, that is not to say that the public interest, per se, is to be a distinct factor in the calculation of each award.

The authors of the Treaty, fully aware of the purposes of salvage awards, enumerated the factors to be considered in making a salvage award so as to accomplish those purposes and serve the public interest. In so doing they precluded, and obviated the need for, the consideration of the public interest as a distinct factor in the making of each subsequent award under the Treaty-

It is not for this Court to arrogate itself to the position of an international law-making body and read additional factors for consideration into the Treaty. Thus, this Court declines to consider the prevention of liability to third parties, the public interest, or “benefits to the shipowner” as distinct factors in arriving at a salvage award under the Treaty.

B. Clarifying the Factors to be Considered

Within its own terms the Treaty requires this Court to consider some factors closely resembling those plaintiffs would have the Court consider under the labels of the prevention of liability to third parties or the public interest. Article 8 instructs the Court to consider, inter alia, “the danger run by the salved vessel, by her passengers, crew and cargo, by the salvors, and by the salving vessel.” Article 8 also invites the consideration of “the risks of liability and other risks run by the salvors.”

In assessing the danger to which the vessels, crew and cargo were exposed, the presence of the bridge can be considered. However, it is the danger to the vessel from the bridge, not the danger to the bridge from the vessel, that is relevant. Thus, while expert testimony on the likely effect a collision with the bridge would have had on the barges and rig may be admissible, testimony as to the effect such a collision would have had on the bridge would not be germane.

The Court also declines to allow consideration of the danger of lawsuits by third parties who might have been injured absent the salvors’ assistance (such as the bridge owner or shipping lane users) under the rubric of danger to the vessel, crew, and cargo. It is a well-founded principle of salvage doctrine that “the ‘peril which can be properly considered in determining a salvage award is not to be estimated in the light of subsequent or contingent events, but of the facts which surround the salvage service at the time it is rendered.’ ” B. V. Bureau Wijsmuller v. United States, 702 F.2d 333, 340 (2d Cir.1983) (quoting 3A M. Norris, supra note 17, § 249). The possibility of lawsuits by third parties, is an event too contingent to be considered by this Court in determining the amount of the salvage award. As Justice Story said, “Salvage is a compensation for the rescue of the property from present, pressing, impending perils; and not for the rescue of it from possible future perils____ It is allowed because the property is saved; not, because it might have been otherwise lost upon future contingencies.” The Emulous, F.Cas. 4480 (C.C.Mass.1832). There is no indication that the Treaty has been or should be treated any differently so as to expand the concept of danger to include the danger of potential lawsuits. Thus, just as the Court would not consider evidence that, for example, the vessels were saved from a storm that occurred a week after the salvage operation if admission of such evidence were sought, so the Court will not consider evidence about lawsuits that might have been filed but for the salvor’s assistance. To conclude otherwise would be to tamper with an international agreement for no good reason.

Article 8 of the Treaty allows consideration of “the risks of liability and other risks run by the salvors.” Plaintiffs correctly point out that a salvor may be liable for damage inflicted by property in their care, 3A M. Norris, supra note 17 § 120, and argue that “[h]ad plaintiffs been unsuccessful in their attempts to save the flotilla and had it crashed into the bridge, they would undoubtedly have been named as defendants in actions for the damage that resulted.” Plaintiffs’ Memo, at 11. The Court considers the likelihood of being named in a lawsuit irrelevant in the consideration of a salvage award; the Treaty speaks of liability, not vulnerability to suit. The Court has serious doubts as to whether the plaintiffs would have any liability simply for failing to bring the flotilla under control. Liability would have to be based on negligence evidenced by the lack of ordinary skill in the salvage attempt, 3A M. Norris, supra note 17, § 122, and mere failure does not necessarily constitute negligence.

However, the salvor certainly ran some risk of liability in the endeavor. In order to consider those risks, the Court would entertain evidence as to what the perception of risk was to the plaintiffs before and during the salvage operation. In adopting an analysis of the risk of liability that is subjective and from the prospective perspective of the plaintiffs, the Court is being faithful to the underlying purpose of considering the risk to the salvor at all. That purpose is to encourage rescues even in the face of danger by enhancing the award when such danger is present. See 3A M. Norris, supra note 17, §§ 264-66; C. Black & G. Gilmore, supra note 17, at 562. Thus, after-the-fact testimony as to what the damage to the bridge might have been had the flotilla not grounded is irrelevant to the Court’s assessment of the risk of liability run by the salvors.

IV. CONCLUSION

While it has been cynically suggested that reciting the many factors to be considered in making a salvage award merely “serves the useful purpose of indicating that the variables are so many and so incapable of exact measurement that it will probably be fruitless for either party to take an appeal merely on the ground that the award was incorrectly computed,” C. Black & G. Gilmore, supra note 17, at 559, the Court believes that clarifying some aspects of these factors is important so that the parties can better evaluate their cases.

In rejecting the consideration of the prevention of liability to third parties and the public interest as independent factors, the Court is not only faithfully interpreting the Treaty as it is now written, but is maintaining a position on the issues which is consistent with that taken by the reformers of the Treaty.

However, having clarified the factors that will be considered in making the salvage award, the Court notes that it is still left with considerable discretion in how those factors are to be weighed so that a fair salvage award that will serve the interests of the parties and the public can be awarded.

IT IS SO ORDERED.

      . Plaintiffs' amended complaint alleges that the rig weighs approximately 22,000 tons, is 720 feet long, 180 feet high, and 280 feet wide. The size was such that the rig could pass under the Richmond-San Rafael Bridge only at low tide and if partially submerged.

      . Plaintiffs’ amended complaint alleges that in light of the danger caused by the threat of the flotilla, the California Highway Patrol closed the Bridge at approximately 4:15 p.m.

      . The Court understands that the question of whether the efforts of the Polaris were instrumental in grounding the flotilla or whether the flotilla would have run aground regardless is in dispute and the characterization of the facts presented here in no way resolves that dispute.

      . See, e.g., Cal.Harb. & Nav.Code § 534 (West 1978) (providing that certain persons who rescue a vessel or its cargo from danger are entitled to a reasonable compensation to be paid out of the property saved).
      Because subject matter jurisdiction in this case is based on the Court’s admiralty and maritime jurisdiction under 28 U.S.C. § 1333 (1982) and not on diversity of citizenship under 28 U.S.C. § 1332 (1982), California law is irrelevant to the resolution of this motion. Southern Pac. Co. v. Jensen, 244 U.S. 205, 214-18, 37 S.Ct. 524, 528-30, 61 L.Ed. 1086 (1917).
      Even if section 534 of the California Harbors and Navigation Code were to apply, the result should be the same as that reached here. “It is now well settled that 'The general rules of the maritime law apply whether the proceeding be instituted in an admiralty or common law court.’ ” Intagliata v. Shipowners & Merchants Towboat Co., 26 Cal.2d 365, 371, 159 P.2d 1 (1945) (citing, inter alia, Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259, 42 S.Ct. 475, 476, 66 L.Ed. 927 (1921). To the extent California law might be different, the federal maritime law would preempt it. Cobb Coin, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 549 F.Supp. 540, 548 (S.D.Fla.1982).

      . For an example of an omission of reference to the Treaty, see Sobonis v. Steam Tanker National Defender, 298 F.Supp. 631, 635 (S.D.N.Y.1969) (allowing a salvage award to Greek seamen on a ship owned by a Greek corporation for salvage assistance rendered to an American-owned ship based not on the law of either of the countries involved, nor on the Salvage Treaty, but relying instead on the jus gentium ). But cf. Caminiti v. Tomlinson Fleet, 1981 A.M.C. 201, 204 (N.D.Ohio 1979) (The Treaty, as interpreted in Warshauer v. Lloyd Sabaudo S.A., 71 F.2d 146 (2d Cir.1934) to not impose liability on a shipowner for breach by the ship’s master and crew of the duty to rescue, was not applicable where all parties were U.S. citizens.); In Re The Snow Maiden, 159 F.Supp. 30, 32 (D.Mass.1958) (citing Article 3 of the Treaty to support the view that no remuneration can be awarded where the assistance has been expressly rejected).

      . "Article 1. Assistance and salvage of seagoing vessels in danger, of any things on board, of freight and passage money, and also services of the same nature rendered to each other by seagoing vessels and vessels of inland navigation are subject to the following provisions, without any distinction being drawn between the two kinds of service and in whatever waters the services have been rendered.”

      . "Article 14. This Convention does not apply to ships of war or to Government ships appropriated exclusively to a public service.” See United States v. The James L. Richards, 179 F.2d 530, 533 (1st Cir.1950) (applying the two-year limitations period in Article 10 of the Treaty to bar a suit where assistance was rendered by a British government ship to a private American vessel).

      . "Article 15. The provisions of this Convention shall be applied as regards all persons interested when either the assisting or salving vessel or the vessel assisted or salved belongs to one of the Contracting States, and in any other cases for which the national laws provide.
      Provided always, that:
      1. As regards persons interested who belong to a non-Contracting State the application of said provisions may be made subject by each of the Contracting States to the condition of reciprocity.
      2. Where all the persons interested belong to the same State as the court trying the case, the provisions of the national law and not of the Convention are applicable.
      3. Without prejudice to any wider provisions of any national laws, Article 11 [requiring masters of every ship to render assistance to any ship in danger of being lost] only applies as between vessels belonging to the states of the High Contracting Parties."
      (Emphasis added in proviso 2.)

      . Suit was first filed in this Court by Westar Marine Services (“Westar”), and the crew of the Polaris. Westar asserts that it is the bareboat charterer and owner pro hac vice of the Polaris. Westar is a division of a California corporation, Cross Link, Inc. Both members of the Polaris crew reside in California.

      . Even if the plaintiffs’ narrow concept of “all persons interested” were adopted, the Treaty would still be applicable; for plaintiff-in-intervention, Robert Atthowe (who is claiming a right in the salvage award as owner of the Polaris) has served defendant Heerema Engineering Service, B.V., a foreign corporation, in his state court suit which has been removed to this Court and related to this case.

      . An analogous issue to that raised here is faced by federal courts attempting to determine whether there is diversity of citizenship so as to create subject matter jurisdiction under 28 U.S.C. § 1332 (1982). In such cases the court must look to the named defendants and can ignore them only if they are nominal or formal parties. Navarro Sav. Ass'n v. Lee, 446 U.S. 458, 463, 100 S.Ct. 1779, 1782, 64 L.Ed.2d 425 (1980); see 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3606 at 409 (1984).

      . Of course, the plaintiffs would be ill-advised to seek to avoid the Treaty by failing to join important parties, for to do so is to risk dismissal under Rule 19 of the Federal Rules of Civil Procedure. Cf. Clinton v. Int’l Org. of Masters, Mates & Pilots of Am., Inc., 254 F.2d 370, 372 (9th Cir.1958) ("Diversity jurisdiction may not be artificially created by failing to join parties indispensable to the action and claiming instead against a citizen of a different state who is merely a possible party to the action.”); 13B C. Wright, A. Miller, & E. Cooper, supra note 11, at 412. The Court expresses no opinion as to which, if any, of the defendants named in this case might be indispensable.

      . The preamble to the Treaty indicates the intent to create uniform salvage law. That intent is also apparent from the history of the organization that formulated the Treaty. The Treaty is a product of the Comite Maritime International, an organization dedicated to unification whose existence represents a desire at the beginning of the 20th Century to revive the uniformity in maritime laws which had dominated the globe prior to the rise of nationalism. Paulsen, An Historical Overview of the Development of Uniformity in International Maritime Law, 57 Tul.L.Rev. 1065 (1983); see abo Yiannopoulos, The Unification of Private Maritime Law by International Conventions, 35 Law & Contemp. Probs. 370 (1965).

      . “A treaty shall be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Vienna Convention on the Law of Treaties, Art. 31, quoted in I. Brownlie, Principles of Public International Law 624 (3d ed. 1979).

      . “Article 2. Every act of assistance or salvage which has had a useful result gives a right to equitable remuneration.
      No remuneration is due if the services rendered have no beneficial result.
      In no case shall the sum to be paid exceed the value of the property salved."

      . "This arresting, if rather misleading, phrase was shorthand for a novel idea which amounted to the following: that salvors, in addition to being remunerated out of the salved property fund for services to ship and cargo, should also be entitled to receive additional remuneration for relieving shipowners (and cargo interests) from liability to third parties which they might otherwise have incurred but for the salvors’ efforts.”
      O’May, Lloyd’s Form and the Montreal Convention, 57 Tul.L.Rev. 1412, 1423 (1983).

      . Article 1 of the Treaty; supra note 6. "Freight” refers not to the goods carried but to the compensation which the carrier receives for carrying the goods. C. Black & G. Gilmore, The Law of Admiralty 245 (1975). Norris explains that "prepaid freight can be considered in the valuations of the property saved. The reason advanced for this proposition was that the prepaid freight would have to be paid back to the shippers as unearned if the cargo were lost.” 3A M. Norris, Benedict on Admiralty § 37, at 3 — 10 (7th ed. 1984).

      . For an explanation of the motivation for revisions in the Treaty, see Nielsen, Report to I.M.O. on the Draft International Convention on Salvage (Montreal 1981), (1984); Coulthard, A New Cure for Salvors? — A Comparative Analysis of the LOF 1980 and the C.M.I. Draft Salvage Convention, 14 J. of Mar.L. and Com. 45 (1983); O’May, supra note 16.

      . See Article 2 of the Treaty, supra note 15.

      . Professors Black and Gilmore suggest in their treatise that if an agreement were made whereby there would be payment even if the rescue were unsuccessful, the payment for unsuccessful services would not be for salvage, and such a contract would not be within the jurisdiction of the admiralty courts. C. Black & G. Gilmore, supra note 17, at 581.
      A salvor may bring an admiralty suit in rem against a salved ship or cargo, or the suit may be brought in personam against the owner of such property. In either case, the existence of some property capable of ownership and transfer is presupposed. Coulthard, supra note 18, at 46.
      The requirement that there be some tangible property when the suit is brought in rem is consistent with the nature of a maritime lien; the property on which such a lien is placed must be capable of being sold so as to satisfy the lien. See C. Black & G. Gilmore, supra note 17, at 35-37.

      . The worst-case scenario for the salvor would be the destruction of the ship after the expending of effort to save it. For example, after salvors had rendered aid to the Torrey Canyon, the floundering supertanker was bombed by the British government to minimize the environmental havoc it could wreak upon the English coastline. Sheen, Conventions on Salvage, 57 Tul.L.Rev. 1387, 1395-96 (1983).

      . See Coulthard supra note 18, at 50,.

      . Montreal Draft International Convention on Salvage, CMI Doc. 1981 Montreal 2 [hereinafter cited as Draft Convention], reprinted in 57 Tul.L. Rev. 1948 (1983).

      . Draft Convention, supra note 23, at Article 2-2(1).

      . Id. at Articles 3-2(1)(b), 3-2(2).

      . Id. at Article 3-3(1).

      . Id. at Article 3-3(2).

      . Id. at Article 3-3(1).

      . The acts of an international organization subsequent to the drafting of a treaty may be considered by a court interpreting that treaty. See I. Brownlie, supra note 14, at 624.

      . The Whippingham court said in awarding a salvage award of merely 350 pounds when a vessel valued at 3000 pounds aided The Whippingham, valued at 45,000 pounds which was adrift near other expensive yachts:
      The mere saving of a vessel from damage to other ships which might result in claims is a service, to my mind, because although the claim may not be a good one there is considerable damage attached to successfully defending a claim, because there is all the expense which you do not recover even when you are a successful defendant. I must think that in itself would be ground of claim for salvage.

        In this case I think the claim [for a salvage award] is much better. I think this ship was rescued from receiving damage herself.

      48 Ll.L.L.R. at 52 (emphasis added).

      . In The Buffalo the court said (in the paragraph discussing the danger from which the defendant’s crafts were saved) amidst the two pages of analysis it provided explaining its salvage award of 150 pounds when barges, which, in their damaged condition and with their cargo, were valued at 8500 pounds, were aided: "Then I think there was the question of some damage done to some other craft in the river, against which they might easily have bumped, and if they did bump up against these moored barges they might very easily have carried away.” 58 Ll.L.L.R. at 365-66.

      . In The Gregerso, the court concluded that the plaintiff was not entitled to a salvage award at all for freeing a ship struck in the harbor, because the aid was not rendered voluntarily but pursuant to a preexisting duty. Apparently in an effort to avoid having to reconsider the case if remanded, the court went on ;o say that in case it were mistaken the salvage award would be 1200 pounds. The court said:
      In the light of this advice [that the salvaged ship might have freed itself, that the salvaged ship probably would not have sustained any damage by being stuck, that there was nothing dangerous in the salvage operation, and that the salvage tug was well handled to save the stuck ship as it did], and the value of the [stuck ship], which was agreed at 33,400 pounds, and bearing in mind the potential liability of the defendants to third parties if the port had remained blocked, the amount which I should have awarded, if I had thought plaintiffs entitled in principle to salvage, is 1200 pounds____
      1 Q.B. at 283-84 (emphasis added).

      . See The Henry R. Tilton, 214 Fed. 165, 167 (D.Mass.1913); The Flora Rodgers, 152 Fed. 286, 288-89 (D.S.C.1907); The Agnes Manning, 59 Fed. 481, 482 (E.D.N.Y.1894); The Anna, 1 F.Cas. 928, 929 (E.D.N.Y.1872) (No. 398), aff'd, 1 F.Cas. 931 (C.D.N.Y.1873) (No. 401).

      . The Tidewater court cited, inter alia, The Blackwall, 77 U.S. 1, 14, 19 L.Ed. 870 (1869) ("Public policy encourages the hardy and adventurous mariner to engage in these laborious and sometimes dangerous enterprises, and with a view to withdraw from him every temptation to embezzlement and dishonesty, the law allows him, in case he is successful, a liberal compensation.”).

      . The salvage award must be neither too big nor too small. It cannot be so big as to discourage shipowners and masters from seeking salvage assistance or so big as to encourage unnecessary service; nor can it be so small as to fail to induce salvors to render needed assistance. 3A M. Norris, supra note 17, § 241 at 20 — 8, 20— 9.

      . See Brierly, The Law of Nations 340 (6th ed. 1963) (“Law by its very nature is a conservative force. This bias, too, ought to be stronger in international than it is in municipal law, for whereas the latter has to adjust to ever-shifting demands and interests of millions of people jostling one another in close and continuous relations, the states with which international law is concerned are few in number, and their needs are more stable and so do not constantly call for fresh adjustments.").

      . 3A M. Norris, supra note 17, § 255 at 21 — 13, 21 — 14 (dangers from which the saving of a ship can lead to salvage awards include the danger of a drifting ship striking an obstruction).

      . Defendants present an affidavit from Jean Warot, Honorary President of the French Maritime Law Association and Vice President of the Comite Maritime International, in which he states both that no case in France has included hypothetical risks in the calculation of a salvage award, and that there is no basis in the Treaty for allowing the consideration of the hypothetical value of avoided third-party liability. Defendants' Exhibit H, Deck of Jean Warot, at 6. Plaintiffs counter with the after-dinner address of the President of the Comité Maritime International in which he says only that cases have held that the avoidance of third-party liability is a "cure” for purposes of the Treaty. ("It could perhaps be held, and it has so been held in some cases, that the avoidance of a responsibility to the owner is by itself a 'resultat utile’ (useful result) for the purposes of Art. 2 of the 1910 Convention. However, even on the assumption that this provision can be so construed, the incentive would exist only in cases of actual responsibility of the owner and not where such responsibility does not exist.” Berlingieri, Salvage: From the 1910 Brussels Convention to the 1981 Montreal Draft (Dinner Address) in Marine Salvage, Proceedings of the Third International Symposium 132, 133 (1985)). This Court does not find in Mr. Berlingeri’s statement any indication that the Treaty allows consideration of potential lawsuits under the rubric of dangers run by the parties and property involved.

      . The Court acknowledges that it is engaging in linedrawing when it limits the concept of "danger” so as to preclude consideration of potential lawsuits, for losing property to a successful plaintiff is as real a loss as losing property on a rocky shoal. However, limiting the considerations allowed under the danger rubric would not prevent the Court in this case from satisfying the policy of awarding a sufficient reward to encourage needed salvage. To allow consideration of potential liability would require the Court to hear testimony regarding potential damage to third parties, the propensity of those third parties to sue, and the likelihood of success if such third parties did sue. Allocating judicial resources to such an endeavor seems ill-advised when a fair salvage award can be allowed based on consideration of the other factors the Treaty clearly allows.

      . But cf. Cobb Coin Co. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 549 F.Supp. 540, 559 (S.D.Fla.1982). Applying federal maritime common law, not the Treaty, the Cobb Coin court held that where salvors were actually arrested at one point during the operation, the threat of arrest may be considered as one element of the risk to salvors in calculating the award. Where, as in the instant case, the lawsuits are entirely speculative, the Court will not consider them part of the danger run by the salvors.

      . No priority was set in the Treaty, and the Draft Convention makes clear that the factors it outlines are not to be weighted by the order they are presented. Draft Convention, supra note 23, at Article 3-2(1).


source: Caselaw Access Project

author: JOSEPH H. YOUNG, District Judge.

license: Public Domain

text:
    Judy PERLOV, et al. v. G.D. SEARLE & COMPANY.
    Civ. No. Y-84-4504.
    United States District Court, D. Maryland.
    Nov. 18, 1985.

      Michael A. Pretl, Baltimore, Md., and Paul D. Rheingold, New York City, for plaintiffs.
    Paul F. Strain, Baltimore, Md., Robert C. Tucker, Cleveland, Ohio, Nell B. Stra.chan, James L. Shea and Elizabeth C. Honeywell, Baltimore, Md., for defendant.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Three pre-trial motions must be resolved in this tort action for injuries from the use of the Copper 7 intrauterine device (“IUD”). Motions pending include defendant’s motions for summary judgment on the statute of limitations and for exclusion of expert testimony, sanctions and costs, and plaintiffs’ motion for a default judgment.

Plaintiff’s motion for a default judgment is based upon defendant’s failure to file a timely answer. It was finally filed immediately upon receipt of the default motion. Although there is no apparent excuse for defendant’s delay, default judgments are generally disfavored in law, and in the absence of any showing of prejudice which plaintiffs suffered as a result of the delay, this Court will use its discretion and deny the motion. See Mason & Hanger-Silas Mason Co. v. Metal Trades Council, 726 F.2d at 166, 168 (5th Cir.1984). Having denied this motion, the Court can reach defendant’s underlying motions.

Defendant’s motion for summary judgment rests on the assertion that plaintiffs’ claims are barred by Maryland’s three-year statute of limitations. There is no dispute that the appropriate statute of limitations to apply in this civil action is three years. Md.Cts. & Jud.Proc. § 5-101; Harig v. Johns-Manville Products, 284 Md. 70, 73, 394 A.2d 299 (1978). Although ordinarily that statute begins to run at the time of injury, in this case the Maryland “discovery rule” should be utilized to determine when the cause of action accrued which is when the statute begins to run. Under this rule, the delayed filing of an action is tolerated for causes for action which are inherently unknowable, so the cause of action accrues only when “the claimant in fact knew or reasonably should have known of the alleged wrongs.” Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 677 (1981). This rule was adopted to mitigate the harshness of the statute of limitations for victims who cannot be charged with slumbering on their rights, Poffenberger, 290 Md. at 635, 431 A.2d 677, while still furthering the overall purpose of the statute of limitations, which is to ensure fairness to the defendant by encouraging the prompt filing of actions. Such promptness assures that no ancient obligations remain and that claims can be heard before “evidence has been lost, memories have faded, and witnesses have disappeared.” Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944); Hang, 284 Md. at 76, 394 A.2d 299.

The only question for the Court in this particular case is when the cause of action accrued for the two plaintiffs Judy Perlov and Deborah A. Sauer. This decision is made on the basis of the plaintiffs’

“actual knowledge — that is express cognition, or awareness implied from knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry (thus charging the individual) with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued.”

Poffenberger, 290 Md. at 637, 431 A.2d 677 (bracketing in original), Lutheran Hospital of Maryland v. Levy, 60 Md.App. 227, 233, 482 A.2d 23 (1985).

In cases in which the injury is unknown, a person may be charged with notice of all facts upon discovering the nature and cause of the injury. E.g., Harig, 284 Md. at 71, 394 A.2d 299 (latent development of disease was inherently unknowable). In Harig, once the disease appeared and the cause was identified as asbestos exposure in the workplace, the possibility of an underlying wrong was obvious to plaintiffs. Similarly, in Sisters of Mercy v. Gaudreau, 47 Md.App. 372, 423 A.2d 585 (1980), the defective nature of a roofing job should have been patent to plaintiffs, because the roof had just been fixed yet it continued to leak. An expert’s advice should be unnecessary in that type of situation.-

In some circumstances, however, an additional piece of information — namely an indication that there may have been a negligent act — may be necessary before an injured party can be charged with notice that a wrong may have been committed. For example, in some malpractice cases, unfortunate results do not necessarily lead one to assume that there must be an underlying tort. In Lutheran Hospital, 60 Md. App. at 236, 482 A.2d 23, the plaintiff continued to have problems with her ankle after being treated by her doctor for a break. She could have thought that the improper healing was due to any of a myriad of natural causes until a second doctor asked her who had told her to walk on her ankle. This question alerted her that “something wrong had been done” and at that point the cause of action accrued. Id. at 236, 482 A.2d 23. Thus, the additional piece of information about the possibility of negligence may come from an expert, but it could also come from a number of sources, including newspaper articles or advertisements.

A similar analysis applies in the case of infections from an intrauterine device. “Knowledge that injuries may have been caused by the (IUD) does not, in and of itself, indicate that plaintiffs were aware that a wrong had been committed against them.” Rockstroh v. A.H. Robins, 602 F.Supp. 1259, 1267 (D.Md.1985) (Miller, J.). In Rockstroh, it was not clear whether plaintiffs, who knew they had pelvic infections from IUD’s also knew more than three years before filing the action that the product may have been defective or that the manufacturer may have been negligent. Thus, there was a question of fact which was inappropriate to decide on a motion for summary judgment. The same approach was adopted in Amsler v. A.H. Robins, B-82-3295 (D.Md., Oct. 19, 1984) (Black, J.), in which, plaintiff knew in 1975 that her use of an IUD was a possible cause of her pelvic inflammatory disease. But the Court decided that it was possible that she did not know of the wrong until she heard of others who were suing the manufacturer, which was seven years later but within three years of filing the action. Pelvic inflammatory disease could have occurred without the use of any IUD or perhaps with the use of a non-defective IUD. In absence of some indication that there was a wrongdoing, a prudent person may not find it reasonable to aggressively inquire about possible product defects.

This approach is most sensible not only because it is fair to potential claimants in tort actions but also because the alternative approach would encourage the frivolous filing of suits. Not every injury is tortious. Just as in medical malpractice cases, where every bad result is not evidence of negligence, so too with drugs and medical devices: every side effect or adverse reaction does not indicate either that the product is unreasonable dangerous and defective, or that the manufacturer was negligent in the promotion and sale of its product. To hold that knowledge of an injury from a medical device is, as a matter of law, evidence that a cause of action accrued would encourage the filing of frivolous actions. It would teach society that the appropriate reaction to medical disability is to find fault and file suit. Thus, this result is also appropriate from the defendant’s point of view, and once a potential claimant learns of a cause of action, the statute of limitations is in full force and the filing of state claims will not be tolerated.

In the instant case, both actions were filed on December 12, 1984. Plaintiff Perlov originally received her Copper-7 IUD in February, 1975 and had it removed because of bloating and pain the following month. Two years later, in March, 1977, she underwent surgery for pelvic inflammatory disease and shortly thereafter her doctor told her that it was likely that the IUD was a causal factor. There is a factual dispute about whether Perlov concluded that the product may have been defective after speaking with her doctor in 1977 or only upon seeing an advertisement in the newspaper in December, 1988.

The facts are similar for Sauer, who had a series of three Copper-7 IUD’s inserted and removed due to infections between 1977 and 1980. In December, 1981, she had a hysterectomy. Although it seems clear that she understood that there was a connection between her medical problems and the IUD, she claims that she thought the IUD was no more than an irritant and it did not occur to her that the IUD may have been defective. Like Perlov, Sauer insists that it was not until she saw articles and an advertisement at a later date that she realized that she may have been wronged.

On summary judgment, the moving party has the burden of proving that the material facts are not in dispute, and that there can be no reasonable dispute as to the legal conclusions to be drawn from these facts. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Morrison v. Nissan Co., Ltd., 601 F.2d 139, 141 (4th Cir.1979); Rockstroh v. A.H. Robins, 602 F.Supp. at 1264. In deciding the motion, the Court must view the facts and the inferences from those facts in the light most favorable to the non-moving party. Adickes v. Kress & Co., 398 U.S. at 157, 90 S.Ct at 1608. This is a case in which, due to complex medical and scientific factors, it may be unreasonable to expect plaintiffs, who had no special background or skill in the area, to understand or appreciate that an actionable harm may have been committed. Cf. Waldman v. Rohrbaugh, 241 Md. 137, 145, 215 A.2d 825 (1965); Jones v. Sugar, 18 Md.App. 99, 305 A.2d 219 (1973) (special background and skill may be considered). Although the basic facts are not disputed, there is disagreement as to whether one can infer that Perlov and Sauer should have known that the products may have been defective, or instead that plaintiffs were reasonable in assuming that the infections were a result of “particular body chemistry” or “a chance situation.” (Saul Perlov Deposition, Doc. 10, ex. C). Because of this question, defendant’s motion for summary judgment must be denied.

The third motion to be resolved is defendant’s request for exclusion of expert testimony, and for sanctions and costs pursuant to Rule 37, Fed.R.Civ.P. Defendant asserts that three of plaintiffs’ designated experts have failed to cooperate during depositions. This Court will not consider this motion, however, because the moving party has failed to comply with local Rule 34, which requires moving counsel to “advise the Court in writing that after personal consultation and sincere attempts to resolve differences (relating to discovery matters) with opposing counsel they are unable to reach an accord.” Rule 34, Rules of United States District Court (Md.). It appears that parties have made no effort to resolve these differences among themselves before involving the Court, and this is contrary to the expectations of this judicial district. Furthermore, the proper procedure under Rule 37, Fed.R.Civ.P., is to apply to this Court for an order compelling deponents to respond to questions, rather than immediately request that testimony be excluded. The Rule 37 procedures provide appropriate notice to all parties and are more conducive to promoting a fair trial in which both parties have access to the relevant information as well as the opportunity to fully present their cases. Therefore, defendant’s motion to exclude expert testimony and for sanctions and costs is denied.

       Originally there were two additional plaintiffs, Sussman and Craig, who were included in this motion, but their cases have been dismissed.


author: CYR, Chief Judge.

text:
    Everett R. SPAULDING, Sr., Personal Representative of the Estate of Russell B. Spaulding, Plaintiff, v. The UNITED STATES of America, Defendant.
    Civ. No. 85-0009-B.
    United States District Court, D. Maine.
    Nov. 18, 1985.
    Jed Davis, Augusta, Me., for plaintiff.
    Paula D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.
   MEMORANDUM AND ORDER DISMISSING COMPLAINT

CYR, Chief Judge.

Plaintiff brings this action under the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 1346(b), 2671-2680 (1982), alleging that the Government’s negligence caused the death of his son. The Government moves to dismiss for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1).

The court assumes the truth of the following facts alleged in plaintiff’s complaint. Plaintiff’s decedent, Russell Spaulding, enrolled in a federally sponsored Job Corps training program on October 6, 1981. On May 2, 1982, while still enrolled in the Job Corps, Spaulding was shot and killed by another Job Corps trainee, Alan Roberts. The shooting took place in Waterville, Maine, while both Spaulding and Roberts were on weekend leave from the program. Roberts suffered from severe depression, a personality disorder, and substance abuse. Prior to his enrollment in the Job Corps, Roberts had been found guilty of “criminal threatening” with the same shotgun used to kill Spaulding.

Thus, plaintiff charges that the Government was negligent in enrolling Roberts in the Job Corps, in assigning Roberts to the Penobscot Job Corps Center, and in granting Roberts leave to go to Waterville on the weekend Spaulding was killed. Finally, plaintiff alleges that the Government’s negligence was the proximate cause of Spaulding’s death. Complaint, 1111 6-13.

The FTCA provides that

subject to the provisions ... of this title, the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... [for] personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office ... under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). Although the FTCA contains “a broad waiver of the immunity of the United States from suit in tort,” 1 Jayson, Handling Federal Tort Claims, § 51, at 2-3 (1964), the waiver is subject to several statutory exceptions. See 28 U.S.C. § 2680. The Government contends that the court lacks subject matter jurisdiction because the instant action comes within one of the exceptions.

Subsection 2680(h) provides that the FTCA shall not apply to “[a]ny claim arising out of assault, battery, [or nine other intentional torts].” 28 U.S.C. § 2680(h). The Government argues that although plaintiff complains of the negligence of various Government employees, essentially he seeks recovery for an assault and battery committed by Roberts, a federal employee. On the other hand, plaintiff states that the complaint “has specifically alleged negligence on the part of the United States Government through its employees,” and therefore should not be barred by subsection 2680(h).

The court is guided by Shearer v. United States, — U.S. -, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), which was decided six months after plaintiff filed this action. While off duty, U.S. Army Private Shearer was kidnapped and murdered by another serviceman, Heard, who previously had been convicted and imprisoned for manslaughter while stationed with the U.S. Army in Germany. Upon release from prison, Heard was transferred to the United States; no further action was taken by the Army, although “high ranking military officers, aware of his violent disposition, recommended his discharge.” Shearer v. United States, 723 F.2d 1102, 1107 (3d Cir.1983), rev’d, — U.S. -, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). Shearer’s estate sued the Government, charging that the negligent supervision of Heard by the Army was the proximate cause of Shearer’s death.

The Third Circuit held that plaintiff’s claim was not barred by subsection 2680(h): “In this case, appellant’s allegations, if proven, would permit a court to find that the government’s negligence proximately caused Shearer’s injury, ...” 723 F.2d at 1108. The Third Circuit also held that Shearer’s suit was not barred by the Feres doctrine.

The Supreme Court reversed. The opinion of Chief Justice Burger addressed both the exclusion under the FTCA and the applicability of the Feres doctrine. Although not binding on this court, the opinion contains a careful analysis of the language and purpose of the relevant statutory exception. Chief Justice Burger noted that “[sjection 2680(h) does not merely bar claims for assault and battery; in sweeping language it excludes any claim arising out of assault or battery.” — U.S. -, 105 S.Ct. at 3042 (emphasis in original). The legislative history gives no indication that Congress ever intended to permit the Government to be sued on any claim arising out of a federal employee’s intentional tort, although several courts had permitted such actions prior to Shearer, As the Chief Justice noted, “[i]t is clear that Congress passed the [FTCA] on the straightforward assurance that the United States would not be financially responsible for the assaults and batteries of its employees____ No one suggested that liability would attach if the Government negligently failed to supervise such an assailant.” Id. (citation omitted).

The cases cited by plaintiff, all decided prior to Shearer, are not persuasive. Plaintiff relies primarily on Gibson v. United States, 457 F.2d 1391 (3d Cir.1972), in which a Job Corps instructor, who had been stabbed by a trainee, sued the Government for failing to provide adequate safety measures to protect those who were living and working with Job Corps trainees. Id. at 1393. In deciding that the claim was not barred by subsection 2680(h), the court stated that “the attack on Gibson was a foreseeable consequence of the Government’s failure to exercise due care under the circumstances and, therefore, it is not such an intervening act as will sever the necessary causal relation between the negligence and the appellant’s injuries.” Id. at 1395 (emphasis in original). The court concluded that “the attack was not an intervening act and the tort did not arise out of the assault and battery. It had its roots in the Government’s negligence.” Id. The Gibson court did not focus on the language of subsection 2680(h), however, but apparently was concerned with when a third party may be held liable in tort for injuries caused by the criminal conduct of another. See general ly W. Prosser, The Law Of Torts, § 54 at 344-46 (3d ed. 1964) [discussing when a duty arises to control the conduct of others]. However, there is no support for the sub silentio assumption of the Gibson court that Congress intended that the Government would be liable under the FTCA in situations where a private party would be liable for a third party’s intentional tort. Reading the FTCA in this manner ignores the “arising out of” language, and would effectively exclude only claims for assault and battery. The Third Circuit’s attempt at reasoning around the “arising out of” language is particularly unconvincing in light of Shearer.

The Gibson court further suggested that subsection 2680(h) might not apply because the plaintiff had alleged that the assailant was under the influence of narcotics, and therefore that “the requisite mental element necessary for the battery may well be absent.” 457 F.2d at 1396 (emphasis in original). Plaintiff raises the same argument in the present case, noting that Roberts was found “not guilty” of Spaulding’s murder “by reason of insanity.” Plaintiff suggests that “[t]he relationship of Roberts’ mental disorder to the element of intent, and the specific reason why a jury found him to be insane at the moment of the act, create unanswered factual questions which must be submitted to the trier of fact____” Memorandum in Support of Plaintiff’s Objection to Defendant’s Motion to Dismiss, at 10.

Although at least one other district court has taken the approach recommended by plaintiff, see Moffitt v. United States, 430 F.Supp. 34, 38 (E.D.Tenn.1976) [following Gibson, court holds that factual issues must be resolved by proof before the court can determine whether subsection 2680(h) applies], that approach is inconsistent with controlling precedent and the history of the FTCA.

The determination of whether subsection 2680(h) applies to a given case is an essential prerequisite to the valid exercise of the district court’s jurisdiction. See note 1, supra. Thus, “whether this claim is outside the intended scope of the Federal Tort Claims Act ... depends solely upon what Congress meant by the language it used in § 2680(h).” United States v. Neustadt, 366 U.S. 696, 706, 81 S.Ct. 1294, 1300, 6 L.Ed.2d 614 (1961). Neustadt distinguishes between the law to be applied in construing subsection 2680(h), which is the law according to “established tort definitions ... in 1946,” id. at 707, 81 S.Ct. at 1301, and the law to be applied in the event the suit is not barred by subsection 2680(h), which would be the substantive tort law as determined “in accordance with the law of the place where the act or omission occurred,” id. at 706 n. 15, 81 S.Ct. at 1300 n. 15, quoting 28 U.S.C. § 1346(b). As the Fourth Circuit has noted, “where the United States excepts itself from certain liabilities, as in Section 2680 of the [FTCA], such exceptions must be interpreted under the general law rather than under some peculiar interpretation of a State or Territory.” Stepp v. United States, 207 F.2d 909, 911 (4th Cir.1953).

The narrow question before the court, then, is whether an injury inflicted by an insane person is outside the definitions of assault and battery contemplated by Congress at the time of the enactment of subsection 2680(h) of the FTCA. The general rule is that “an insane or other mentally disordered person is civilly liable for injuries resulting from an assault or battery committed by him.” Annot., 77 ALR2d 625, 626 (1961) [collecting cases]. Most cases have held insane persons civilly liable for assault and battery, without discussing the extent or type of mental impairment or its effect on the ability of the assailant to form the necessary intent. See id. at 627. This general rule is of long standing, see Prosser, supra, § 129 at 1028-29. It is only some of the more recent cases which hold that the assailant’s affliction may be such “that he is incapable of entertaining the specific intent necessary for a particular tort____” Id. at 1029; see, e.g., Mullen v. Bruce, 168 Cal.App.2d 494, 335 P.2d 945 (1959). Given the prevailing case law, both in 1946 and now, it seems extremely unlikely that Congress contemplated that the subsection 2680(h) exception would be avoidable on so amorphous a basis as the assailant’s precise mental state at the moment of the commission of the tort.

Furthermore, allowing this question to be determined by the finder of fact, as plaintiff urges, may entangle courts in the very issues Congress sought to eliminate by its enactment of subsection 2680(h). One of the first commentaries on the statutory exception of subsection 2680(h) suggested that it would be dangerous to subject the Government to liability arising from intentional torts, “a type of tort which would be difficult to make a defense against, and which are (sic) easily exaggerated.” 2 Jayson, Handling Federal Tort Claims, § 260.01 n. 1.1, quoting Hearings Before a Subcommittee of the Committee on the Judiciary, 76th Cong. 3d Sess. 39 (March 6, 11, 1940) (Statement of Alexander Holtzoff, Dept. of Justice).

The position urged by plaintiff would involve the court in the abstruse exercise of attempting to determine whether an assailant, found insane by a state court, had the mental capacity to form the requisite intent to commit an assault or battery under federal law. As the Supreme Court has noted, “[t]here is nothing in the [FTCA] which shows that Congress intended to draw distinctions so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation.” Neustadt, 366 U.S. at 708, 81 S.Ct. at 1301, quoting Indian Towing Co. v. United States, 350 U.S. 61, 68, 76 S.Ct, 122, 126, 100 L.Ed. 48 (1955). As in Shearer, “no semantical recasting of events can alter the fact that the battery was the immediate cause of ... death and, consequently, the basis of [plaintiff’s] claim.” — U.S. -, 105 S.Ct. at 3042.

Accordingly, the court holds that a party presenting a claim arising out of an assault and battery may not avoid the subsection 2680(h) statutory exclusion for intentional torts by establishing that the assailant lacked the mental capacity to form the requisite intent, even where, as here, the assailant was found not guilty of the criminal assault charge by reason of insanity.

Defendant’s rule 12(b)(1) motion to dismiss is GRANTED.

SO ORDERED.

      . The Supreme Court has "interpreted the [FTCA] to require clear relinquishment of sovereign immunity to give jurisdiction for tort actions.” Dalehite v. United States, 346 U.S. 15, 31, 73 S.Ct 956, 965, 97 L.Ed. 1427 (1953). Thus, "any objection raised by the defendant which is based upon the exceptions listed in § 2680 goes to the issue of jurisdiction over the subject matter and hence to Rule 12(b)(1).” Gibson v. United States, 457 F.2d 1391, 1392 n. 1 (3d Cir.1972) (citations omitted).

      . Congress expressly stated that "[f]or the purposes of the Federal tort claims provisions in title 28, [Job Corps] enrollees shall be considered employees of the Government.” 29 U.S.C. § 1706(a)(3) (1982).

      . In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Court held that members of the armed forces may not recover under the FTCA for injuries which "arise out of or are in the course of activity incident to service.” Id. at 146, 71 S.Ct. at 159. Thus, for Shearer's estate to have a cause of action against the Government, the Third Circuit had to find that section 2680 did not bar suit and that the action was not barred under Feres.

      . The Court could have reversed the Third Circuit on either the subsection 2680(h) ground or the Feres doctrine. See note 3 supra. Chief Justice Burger’s opinion was joined by Justices White, Rehnquist and O’Connor. See-U.S. at -, 105 S.Ct. at 3041. Justice Brennan's brief concurring opinion, which did not discuss the FTCA but which joined the Chief Justice only in holding that Feres barred Shearer’s suit, was joined by Justices Blackmun and Stevens. See id. at -, 105 S.Ct. at 3044 (Brennan, J., concurring in part and concurring in the judgment). Justice Marshall concurred in the judgment, based on Feres, see id. (Marshall, J., concurring in the judgment) and Justice Powell did not take part in the decision. Thus only four of the eight justices in Shearer even discussed the applicability of subsection 2680(h) to a claim alleging negligent Government supervision as the proximate cause of injuries suffered by the victim of an assailant who was a federal employee.

      . For example, in Gale v. United States, 491 F.Supp. 574 (D.S.C.1980), the court distinguished claims arising out of assault and battery, where the Government's liability is based solely on respondeat superior, from similar claims where liability is based on negligent supervision, holding that subsection 2680(h) did not bar claims based on alleged negligent Government supervision. Id. at 575. However, the court later vacated this ruling, following the lead of Hughes v. United States, 662 F.2d 219 (4th Cir.1981), which "accepted the majority rule in refusing to allow an action against the government where the assailant is a government employee." Gale, 525 F.Supp. 260, 261 (D.S.C. 1981). In Loritts v. United States, 489 F.Supp. 1030 (D.Mass.1980), the court held that subsection 2680(h) did not bar the federal tort claim of a member of a choral group who was raped by a cadet while visiting West Point. Noting that the Academy volunteered to provide escorts to members of the choral group, the court held that the failure to do so was negligence which could not be avoided by recourse to subsection 2680(h). Id. at 103 Í, 1032 [citing Gibson, discussed infra ]. See generally 2 Jayson, Handling Federal Tort Claims, §§ 260.01, 260.02 (rev’d 1984) [collecting cases]; 5 K. Davis, Administrative Law Treatise, § 27:17, at 92-94 (2d ed. 1984) [discussing the assault and battery exception to the FTCA].

      . In Gibson, as here, the court was considering defendant’s motion to dismiss, and therefore was assuming as true the facts alleged by plaintiff. See 457 F.2d at 1393. Ultimately, the Third Circuit held that the Government was not liable. See Gibson v. United States, 567 F.2d 1237 (3d Cir.1977) [holding that the United States, on the facts of the case, was neither liable for the actions of an independent contractor nor directly negligent in its actions].

      . The cases cited by the Gibson court, Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73 (1947), and Harrison v. Missouri Pacific Rail

        road. Co., 372 U.S. 248, 83 S.Ct. 690, 9 L.Ed.2d 711 (1963), involved claims brought by railroad employees for injuries arising out of an assault by a third person. In both cases the Court vacated summary judgment for the employer, holding that railroads might be liable where the assault was foreseeable and the railroad breached its duty of reasonable care. The actions were brought under the Federal Employers’ Liability Act [FELA], 45 U.S.C. §§ 51-60, which renders employers liable for injuries to employees "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” Id. § 51. Unlike the FTCA, the FELA does not exclude injuries “arising out of’ the intentional torts of its employees.

      . Although Chief Justice Burger’s opinion did not cite or discuss Gibson, the Third Circuit’s decision in Shearer, which was overturned by the Supreme Court, expressly relied on the holding of Gibson. See Shearer, 723 F.2d at 1108.

      . State v. Roberts, Cr. No. 83-577 (Kennebec Cty.Sup.Ct. Feb. 28, 1984).

      . In contrast, the Moffit court treated the issue of intent as a matter of state law, without any discussion of whether state or federal law should apply. See 430 F.Supp. at 37-38. Although the distinction is fairly well drawn in Neustadt, courts have not always recognized that the question of whether an exclusion applies must be determined as a matter of federal law; instead they have looked to state law to determine whether the elements of a tort are present in a given case. See, e.g., Lambertson v. United States, 528 F.2d 441, 444 (2d Cir.1976) [looking to state law to determine the elements of a battery]; see generally 2 Jayson, Handling Federal Tort Claims, § 241 (rev’d 1982) and cases cited therein.


author: TOM S. LEE, District Judge.

text:
    PENNSYLVANIA HOUSE DIVISION OF GENERAL MILLS, INC., Plaintiff, v. Claude Holbert McCUEN, Defendant.
    Civ. A. No. J85-0760(L).
    United States District Court, S.D. Mississippi, Jackson Division.
    Nov. 18, 1985.
    A. Spencer Gilbert, III, David W. Clark, Wise, Carter, Jackson, Miss., for plaintiff.
    H. Lanier B. Foote, Jackson, Miss., for defendant.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on motion of the plaintiff and counterdefendant, Pennsylvania House division of General Mills, Inc. (Pennsylvania House), to dismiss the counterclaim filed by the defendant, Claude Holbert McCuen. The court, having considered the motion together with the briefs filed in support and opposition thereto, is of the opinion that the plaintiffs motion is well taken and should be granted.

Pennsylvania House filed this action to enforce a guaranty and indemnity agreement executed by the defendant in favor of plaintiff. Plaintiff asserts that under the terms of this agreement McCuen agreed to guarantee the obligations due and owing to plaintiff by Highfill’s Classic Furniture Galleries, Inc. (Highfill’s). Defendant, a stockholder in Highfill’s, seeks in his counterclaim to recover from Pennsylvania House the sum of $135,500.00, representing his investment in the common stock of the corporation. The defendant asserts that Pennsylvania House breached certain obligations owed to Highfill’s causing it to go out of business and resulting in a loss to McCuen of his investment in the business.

Plaintiff contends that McCuen, as a stockholder, may not assert claims which belong to the corporation or which are derived from injuries to the corporation. Under Mississippi law, a corporation is an entity separate and distinct from its shareholders and an action to redress injuries to a corporation, whether arising in contract or tort, cannot be maintained by a stockholder in his own name but must be brought by the corporation. Bruno v. Southeastern Services, Inc., 385 So.2d 620 (Miss.1980). In that case, the court stated the well-established rule that a stockholder may not bring an individual cause of action against third persons for a wrongful injury suffered by a corporation even though the injury may result in the destruction or depreciation of the value of the plaintiff’s corporate stock. See Stevens v. Lowder, 643 F.2d 1078 (5th Cir.1981); Gregory v. Mitchell, 634 F.2d 199 (5th Cir.1981); United States v. Palmer, 578 F.2d 144 (5th Cir.1978). The court in Bruno noted an exception to this rule when the stockholder shows a violation of a duty owed directly to him and emphasized that in determining whether a claim may be asserted by a stockholder, a court must closely examine the injuries sought to be redressed.

McCuen argues that his counterclaim does not arise as a stockholders’ derivative action but from the contractual agreement between plaintiff and him personally as guarantor of the corporation’s obligations. He contends that he agreed to guarantee Highfill’s obligations to the plaintiff in consideration for plaintiff’s agreement to assume certain duties enumerated in paragraph D of the counterclaim. He charges that such duties were owed directly to him and would have benefited the corporation, a third party. The defendant has brought no such agreement to the attention of the court and has not cited any authority to support his position.

This issue was directly addressed by the Mississippi Supreme Court in Vickers v. First Mississippi National Bank, 458 So.2d 1055 (Miss.1984). In that case, a stockholder brought suit seeking damages from the defendant bank for losses sustained as a result of the defendant’s alleged breach of an agreement to provide the plaintiff’s corporation with interim ship construction financing. The trial court granted defendant’s motion for summary judgment and on appeal the Supreme Court stated the issue to be “whether, in the context of a third party beneficiary contract, a promisee/shareholder in the beneficiary corporation may on proper proof recover damages of and from his promisor consistent with our recent decision in Bruno v. Southeastern Services, Inc., 385 So.2d 620 (Miss.1980).” 458 So.2d at 1056. Inasmuch as the plaintiff sought to recover loss of income and profits from the corporation and the loss of his investment, the court held that under the rule announced in Bruno, those claims were for damages suffered by the corporation and could only be brought in a stockholders’ derivative suit. The court went further, however, examining the allegations that the defendant owed substantial contractual duties to the plaintiff individually and stating:

A review of the agreement of January 19, . 1976, suggests that James D. Vickers is a party to it in his individual capacity and that the Bank undertook substantial obligations owing to Vickers, although for the benefit of the corporation. Moreover, in addition to the Bruno-type damages sought, Vickers and his trustee also claim that Vickers, individually and not just derivatively, has been damaged, and recovery is sought therefor.

458 So.2d at 1062.

The court stated that under Bruno a plaintiff promisee has no standing to sue and recover from a promisor where all damages claimed were sustained by the corporate beneficiary and the losses incurred by the promisee were wholly derived from the corporation’s losses. With regard to the plaintiff’s claims for damages sustained by him individually, the court reversed and remanded for a trial on the merits. In the case before the court, the only actual damage claimed by the defendant in his counterclaim is the loss of his investment in the corporation which under the holdings of Bruno and Vickers is considered damage suffered by the corporation and not recoverable by the defendant in his individual capacity.

This court is therefore of the opinion that the defendant lacks standing to maintain his counterclaim for the loss of his investment and that the plaintiff’s motion to dismiss the counterclaim is well taken and should be granted. It is, therefore, ordered that the defendant’s counterclaim be and hereby is dismissed.

ORDERED this 18th day of November, 1985.

      . McCuen points out that Pennsylvania House has brought a similar action in the United States District Court for the Middle District of Louisiana naming Highfill's as a defendant. In that case, Highfill’s has filed a counterclaim raising essentially the same issues which the defendant here attempts to raise, further evidencing the fact that those injuries for which the defendant seeks damages are injuries suffered by the corporation, not the defendant individually, and that to allow the defendant to bring this counterclaim would be to allow the multiplicity of suits which the Bruno decision sought to avoid.