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DUPREE v. UNITED STATES

November 5, 1956

Eugene DUPREE
v.
UNITED STATES of America



The opinion of the court was delivered by: LORD

This matter comes before the Court on defendant's Motion to Dismiss. The Government contends that the complaint fails to state a cause of action with respect to which the United States has consented to be sued in accordance with the Federal Tort Claims Act, Title 28 U.S.C.A. § 1346(b) and 2680(a).

Plaintiff alleges that in 1930 the United States Coast Guard issued to him a five year master's license, which certified his fitness to be a matter of merchant vessels of unlimited tonnage. The license was reissued each five years thereafter. In September, 1950 plaintiff sought from the Coast Guard a validated certificate which was then required as a prerequisite for an officer or seaman to sail on a ship of United States registry. Such certificate was required by the Act of August 9, 1950, 64 Stat. 427, Title 50 U.S.C.A. § 191, and Executive Order No. 10173, 15 Fed.Reg. 7005, U.S.Code Cong. Service 1950, p. 1661.

 On May 23, 1951, plaintiff was advised that he was denied the validated certificate on security grounds. In November of 1955, the Coast Guard reversed its prior position and determined that plaintiff was eligible for employment.

 Thereafter, the plaintiff commenced an action in the United States Court of Claims for reimbursement of wages lost and other damages which he allegedly suffered during the period that the allegedly Guard withheld certification.

 The Court of Claims granted the Government's motion to dismiss plaintiff's action. See Dupree v. United States, 141 F.Supp. 773. Following this dismissal, suit was instituted in this Court.

 Plaintiff contends that the refusal of the Coast Guard to certify him was a negligent act and thus is a suit that is cognizant under the Federal Tort Claims Act, supra.

 Plaintiff was denied certification as authorized by the Act of September 26, 1950, supra, which was passed by Congress during the Korean crisis. The Act authorized the President, in a time of national emergency, to make rules and regulations governing the movement and anchorage of vessels in the territorial waters of the United States. The primary purpose was, 'in order to secure such vessels from damage or injury or to prevent damage or injury, to any harbor or waters of the United States,' and in pursuance of this purpose when necessary, to take 'full possession and control of such vessel and remove therefrom the officers and crew thereof * * *.'

 Pursuant to the authority of this Act, the President issued Executive Order 10173, which required that each seaman secure a certificate that his employment on a merchant vessel was consistent with the purpose sought to be accomplished by the Act. This order vested enforcement of the Act in the Commandant of the Coast Guard.

 The Federal Tort Claims Act, supra, provides when actions can be brought against the United States as follows:

 " 1346. United States as defendant

 The defendant contends it has specifically withheld its consent to be sued under the following exception to the Act:

 ' § 2680. Exceptions

 'The provisions of this chapter and section 1346(b) of this title ...


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