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414

DOUGLAS, J., dissenting.

ance has been condemned by the Court of Appeals for the Fourth Circuit. See 184 F. 2d 552; 194 F. 2d 89. The alliance was illegal because it violated the Sherman Act. It was an arrangement that permitted Penn Water to be operated as though it were a department of Consolidated. All competition between the two companies was destroyed, as evidenced by the fact that in 1948 Consolidated vetoed a steam electric generating plant to be built by Penn Water at Holtwood, Pennsylvania. What Penn Water may do, the revenues it receives, the costs it will incur are largely determined by Consolidated under these illegal contracts.

The Commission in its opinion on rehearing said, “If there are questions as to the legality of the foundation contracts which are in litigation, as respondents' application for rehearing indicates, the validity of our order is not dependent upon the decision of those questions. In our opinion and order we took care to leave the continuation of the operation of the integrated and interconnected system in full effect, merely changing the rates, (Italics added.) 8 F. P. C. 170, 175. The Commission has accordingly approved the unholy alliance. It has allowed Consolidated to continue to manage Penn Water as though the latter were its alter ego. It is therefore disingenuous for the Court to say that hereafter Penn Water is subject to control by the Commission, not by Consolidated, and that the Commission did not premise any of its findings on the assumed existence and continuation of the illegal contracts.* No matter how vehement our denial, the truth is that the Commission has laced Penn Water to Consolidated under a manage

*The Commission entered its final order in the cases prior to the decision of the Court of Appeals in the Sherman Act litigation. The Commission opinion on rehearing was dated February 26, 1949, while the first decision of the Court of Appeals was on September 30, 1950.

Douglas, J., dissenting.

313 U.S.

ment contract that leaves Penn Water no initiative of private management.

Of course the Commission has authority under $ 202 of the Federal Power Act to promote and at times compel interconnection and coordination of the facilities of public utility companies. But I know of no power in the Commission that authorizes it to place one company on the back of another company, to merge and consolidate companies as it chooses, or to give the management of one company a veto power over the management of a competitor. Those are practices which the Sherman Act condemns, and which nothing in the Federal Power Act sanctions.

These cases should be reversed and remanded to the Commission with directions that the Commission build its rate order on the powers that it has under the Federal Power Act, not on the unholy alliance that these utilities created and that the Commission has sought to perpetuate.

Syllabus.

JOHANSEN v. UNITED STATES.

NO. 401.

CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT. *

Argued March 4, 1952.-Decided May 26, 1952.

In the case of a civilian employee of the United States who was a

member of the crew of a “public vessel" (not a "merchant vessel") of the United States and who, through negligence of the United States or unseaworthiness of the vessel, suffered injury or death in the performance of his duty, the benefits available under the Federal Employees Compensation Act of 1916 are exclusive, and a suit against the United States for damages under the Public Vessels Act is precluded. Pp. 428-441.

1. Although Congress did not specifically exclude such a claimant from the coverage of the Public Vessels Act, that Act must be fitted, as fairly as possible, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole. Pp. 431-434.

2. A different result is not required by the 1949 amendments to the Federal Employees Compensation Act. Pp. 434-441.

3. United States v. Marine, 155 F. 2d 456, and Johnson v. United States, 186 F. 2d 120, disapproved. P. 439.

4. To allow public-vessel seamen an election of remedies which is denied to civilian seamen employed through the War Shipping Administration, 50 U. S. C. App. $ 1291, would contribute neither to uniformity nor to fairness. Pp. 440-441.

5. As the Government has created a comprehensive system to award payments for injuries, it should not be held to have made exceptions to that system without specific legislation to that effect.

P. 441. 191 F. 2d 162, 164, affirmed.

In No. 401, a libel in admiralty against the United States under the Public Vessels Act was dismissed by the District Court. The Court of Appeals affirmed. 191

*Together with No. 414, Mandel, Administrator, v. United States, on certiorari to the United States Court of Appeals for the Third Circuit, argued March 4-5, 1952.

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F. 2d 162. This Court granted certiorari. 342 U. S. 901. Affirmed, p. 441.

In No. 414, the District Court overruled the Government's motion to dismiss petitioner's suit for damages. The Court of Appeals reversed. 191 F. 2d 164. This Court granted certiorari. 342 U. S. 901. Affirmed, p. 441.

Louis R. Harolds argued the cause for petitioner in No. 401. With him on the brief was William L. Standard.

Abraham E. Freedman argued the cause and filed a brief for petitioner in No. 414.

Leavenworth Colby argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baldridge and Paul A. Sweeney.

MR. JUSTICE REED delivered the opinion of the Court.

These cases present the question whether Congress, in enacting the Public Vessels Act of 1925, 43 Stat. 1112, 46 U. S. C. $$ 781 et seq., has consented that the United States be sued for “damages” by or on behalf of members of the civil service component of the crew of military transport vessels. We hold that the benefits available to such seamen under the Federal Employees Compensation Act of 1916, 39 Stat. 742, 5 U. S. C. $$ 751 et seq., are of such a nature as to preclude a suit for damages under the Public Vessels Act.

Petitioner Johansen, in No. 401, and petitioner Mandel's decedent, in No. 414, were at the time of their injuries employed as civilian members of the crews of Army Transport vessels, owned and operated by the United States. For purposes of this review it is clear that these vessels were at that time being used as "public vessels,"

427

Opinion of the Court.

not "merchant vessels,

1 and that therefore petitioners have no remedy by way of a suit for damages under the Suits in Admiralty Act of 1920, 41 Stat. 525, 46 U. S. C. § 742. Both seamen were injured in the performance of their duties; petitioners were therefore concededly eligible for benefits under the Federal Employees Compensation Act of 1916. Both allege that the injuries resulted from the negligence of respondent, and petitioner Johansen further relies upon the alleged unseaworthiness of his vessel. The relief sought by petitioner Johansen is "damages, wages, maintenance and cure”; that sought by petitioner Mandel is "damages” for wrongful death.

Petitioner Johansen was a carpenter in the crew of the transport Kingsport Victory. On August 5, 1949, he sustained a lacerated leg in the course of his duties aboard the vessel, which was lying at a pier at the Bethlehem Shipyard, Brooklyn, New York. He was treated at the Marine Hospital until October 24, 1949, as a beneficiary of the Bureau of Employees Compensation. He filed a claim for compensation benefits under the Federal Em

1 In No. 401, both parties have agreed throughout these proceedings that the vessel in question was, as indicated by the allegations of the libel, a “public vessel,” not a "merchant vessel.”

In No. 414, petitioner alleged in his libel that the vessel in question was a "merchant vessel.” The District Court was doubtful about this point, but did not decide it, holding that petitioner was entitled to recover whether the vessel was a “public vessel” or a “merchant vessel.” In reversing, the Court of Appeals held that (1) if the vessel was a "public vessel," petitioner's remedy under the Federal Employees Compensation Act precluded recovery in this action, but (2) if the vessel was a “merchant vessel,” the case would present different questions, which need not be decided on this record. Accordingly, the case was remanded to the District Court to permit petitioner, if he so desires, to introduce evidence to show that the vessel was a "merchant vessel.” This Court affirms that mandate. Since petitioner does not specify the second holding as error, we review only the first, and assume for purposes of this review that the vessel was a "public vessel.”

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