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NIKIFOROW v. RITTENHOUSE

November 11, 1970

Victor NIKIFOROW
v.
John F. RITTENHOUSE


Kraft, District Judge.


The opinion of the court was delivered by: KRAFT

In this maritime action for personal injuries, plaintiff, a member of the United States Coast Guard, after trial to a jury, recovered a verdict and judgment of $60,000 *fn1" against the defendant, Rittenhouse.

 On November 13, 1969, the jury found, in answer to specific interrogatories, that the defendant's vessel was seaworthy; the defendant was negligent and the plaintiff was not guilty of contributory negligence.

 Subsequent to the entry of judgment, the United States sought leave to intervene under the Medical Care Recovery Act, 42 U.S.C.A. § 2651 *fn2" in order to claim medical expenses of $5,795.60, which it had incurred in providing medical treatment for the plaintiff. Intervention was allowed under a stipulation of all parties, including the United States, and approved by the Court, that the original defendant would have the same right to plead and assert any right *fn3" he might have had, had the United States intervened prior to trial of the matter.

 In his answer to the government's complaint, defendant filed a counterclaim against the United States seeking indemnity. Thereupon, the United States filed a motion to dismiss the counterclaim upon the sole ground that "such counterclaims are barred by the decision of the Honorable John W. Lord, Jr., in the captioned action, dated November 21, 1967." *fn4"

 This motion was taken under advisement by the Court, and counsel agreed to rely upon the record of the plaintiff's trial, as supplemented by additional testimony, offered by the defendant, to enable the Court to adjudicate the respective claims of the government and the counterclaim of defendant, Rittenhouse.

 In deciding the government's motion, the threshold question is whether the earlier decision of Chief Judge Lord bars the defendant's counterclaim as the "law of the case." At the time of Chief Judge Lord's decision the posture of the case was that the defendant, Rittenhouse, sought leave to join the United States as a third-party defendant. In denying such joinder, Chief Judge Lord held 277 F. Supp. at p. 613:

 
"As the defendant has candidly disclosed to the court, plaintiff cannot directly sue the United States since he is a member of the armed services. 50 U.S.C.A. § 551(2), Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1951). Under such circumstances, the United States is not liable for contribution or indemnity under the Federal Tort Claims Act. 28 U.S.C.A. § 1346(b); Drumgoole v. Virginia Electric & Power Co., 170 F. Supp. 824 (E.D. Va. 1959); United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir. 1964). Absent any indication as to how the United States is amenable to suit under such circumstances, defendant's motion to join the United States as a third-party defendant will be denied." (emphasis ours).

 In the present posture of this litigation, the "circumstances" under which the United States is "amenable to suit", for indemnity, have now changed and matured. Unlike the pre-trial situation, when the United States was sought to be joined as an involuntary third-party defendant, the United States has now voluntarily intervened as a party plaintiff and has requested the interposition of this Court's equitable powers in aid of its claim to be reimbursed for the reasonable value of the care and treatment it furnished to the plaintiff. Such right may be barred by substantive defenses, such as contributory negligence. *fn5"

 Additionally, since the United States seeks indemnity, which is a remedy derived from equity, it must be prepared to do equity. *fn6" Accordingly, we conclude that, in the changed circumstances and under the parties' stipulation, the defendant may properly assert his counterclaim for indemnity against the United States and the motion to dismiss should be denied.

 Turning our attention to the main issues in this case, we conclude, for reasons which will hereinafter more fully appear, that the United States is barred by its own negligence from recovering on its claim for medical expenses and that the defendant, Rittenhouse, is entitled to be indemnified for all sums which he has been compelled to incur in defense of this litigation.

 The events giving rise to this litigation occurred on August 24, 1965, when the defendant, Rittenhouse, while operating his 1962 Sica Cabin Cruiser in the Great Egg Harbor Waterway, near Sea Isle City, New Jersey, ran aground on a sand bar in the vicinity of Marker Number 76. The grounding of the defendant's vessel occurred while the tide was on the ebb.

 The plaintiff, Nikiforow, a seaman apprentice in the United States Coast Guard, was serving aboard the Coast Guard Cutter CG-30439, under the command of a coxswain, Buddy Short. The Coast Guard Cutter approached the defendant's vessel without request from Rittenhouse and offered to tow the defendant's vessel off the sand bar, in consideration of the execution by defendant of a release holding the United States harmless for damage to the defendant's vessel during the tow. Short directed Nikiforow to inspect the vessel only for the legally required safety equipment. Defendant executed the waiver, and, after assuring the coxswain that the sampson post on the bow deck was strong, Rittenhouse took aboard a two inch nylon line *fn7" from the Coast Guard Cutter, affixed the line to the post and threaded it through a small chock on the port bow of his vessel.

 Prior to the start of the tow, neither the coxswain nor Nikiforow made any inspection to determine the degree of entrenchment in the sand or the depth of the water at the point of the grounding, nor did they make any inspection of the structure or the strength of the sampson post. In fact, plaintiff never received ...


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