The opinion of the court was delivered by: WILLSON
Plaintiff, Judith Beeler, a minor, was injured on June 12, 1961 in a boating accident which occurred on the navigable waters of the Allegheny River in this judicial district. At the time of the accident plaintiff was a passenger in a pleasure boat which was swept over the Kittanning Lock. It is alleged by the minor plaintiff and her parents who join her in this suit that she sustained severe and extensive injuries because employees of the United States Army, Corps of Engineers, as agents and servants of the government, were responsible for giving adequate warning of the presence of the Lock, i.e., '* * * Said employees were negligent in that they did not properly locate warning signs so as to be visible to craft on the River. This failure constituted the proximate cause of the injuries to Judith Beeler, plaintiff herein.'
The suit was commenced as a civil action on April 29, 1963. Under the Civil Action Number appears
'FEDERAL TORTS CLAIMS ACT
28 U.S.C.A. Section 1346'
The pleading is designated a 'Complaint'. The Third Paragraph reads:
'THIRD: This Court has jurisdiction of this cause under the provision of Paragraph 1346 of Title 28 United States Code, known as the Federal Torts Claim Act.'
The Complaint ends with 'A JURY TRIAL IS DEMANDED.'
The government filed a responsive answer and, thereafter, filed a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The grounds for the motion are:
'* * * (1) that there are no genuine issues of material fact, (2) that plaintiffs' exclusive remedy for their maritime cause of action against the United States lies under the Suits in Admiralty Act (46 U.S.C. 741-750), and (3) that the Court accordingly lacks jurisdiction over plaintiffs' civil action brought under the Federal Tort Claims Act (28 U.S.C. 1346(b)).'
In the alternative, says the government, it is entitled to summary judgment because plaintiffs' claim is based upon misrepresentation, a tort expressly excluded from the Federal Tort Claims Act jurisdiction by 28 U.S.C. § 2680(h). However, the latter point is not reached in this decision. Counsel have been heard at oral argument on two occasions. Briefs and a reply brief have been filed and the matter duly considered. I am of the view that the defendant is entitled to prevail on its motion.
'The provisions of this chapter and section 1346(b) of this title shall not apply to * * * '(d) Any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States.'
It should be emphasized at this point that the accident took place on June 12, 1961, according to the plaintiff's averment in the Complaint. On September 13, 1960, Public Law 86-770, 74 Stat. 912, became effective. The first two sections permitted the transfer of cases between the Court of Claims and the District Courts when the wrong jurisdiction was invoked. Section 3 of the statute, however, amended the first sentence of Section 2 of the Suits in Admiralty Act, Title 46 U.S.C.A. § 742, by inserting '* * * or if a private person or property were ...