UNITED STATES OF AMERICA, PETITIONER v. IONIAN GLOW MARINE, INC.

   No. 81-2355

   In the Supreme Court of the United States

   October Term, 1981

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to the review the judgment of the United
States Court of Appeals for the Fourth Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Fourth Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statute involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-4a) is
reported at 670 F.2d 462.  The opinion of the district court (App. B,
infra, 5a-13a) is reported at 510 F. Supp. 196.

                             JURISDICTION

   The judgment of the court of appeals (App. C, infra, 14a-15a) was
entered on January 26, 1982.  On April 23, 1982, the Chief Justice
extended the time for filing a petition for a writ of certiorari to
June 25, 1982.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                           STATUTE INVOLVED

   Section 1 of the Public Vessels Act, 46 U.S.C 781, provides:

         A libel in personam in admiralty may be brought against the
      United States, or a petition impleading the United States, for
      damages caused by a public vessel of the United States, and for
      compensation for towage and salvage services, including contract
      salvage, rendered to a public vessel of the United States:
      Provided, That the cause of action arose after the 6th day of
      April, 1920.

                          QUESTION PRESENTED

   Whether a private shipowner may collect contribution from the
United States for damages paid to servicemen injured on active duty in
a maritime collision.

                               STATEMENT

   1. On March 4, 1979, the M/V STAR LIGHT, a Greek flag cargo vessel
owned by Ionian Glow Marine, Inc. ("Ionian Glow"), collided with the
USS FRANCIS MARION, an amphibious attack transport of the United
States Navy line commissioned as a surface combat vessel, off Cape
Henry, Virginia (C.A. App. 37).  /1/ Both vessels were damaged, and
three crew members on active duty aboard the USS FRANCIS MARION were
injured (App. A, infra, 1a).  On March 9, 1979, Ionian Glow filed a
complaint in the United States District Court for the Eastern District
of Virginia, seeking limitation of liability under 46 U.S.C. 181 et
seq. (C.A. App. 1, 11-14).  The government and the three injured
servicemen then filed claims for damages arising out of the collision.
 Ionian Glow asserted a counterclaim under the Public Vessels Act, 46
U.S.C. 781 et seq., against the United States and the FRANCIS MARION.
It sought damages for the injury to its ship and contribution for any
damages that might be assessed against Ionian Glow in favor of the
three servicemen (C.A. App. 17-29).  Before trial Ionian Glow settled
the claims of the injured servicemen for a total of $700,000 (App. A,
infra, 2a).

   The United States and Ionian Glow agreed that the United States
would pay 35% of Ionian Glow's provable damages and that Ionian Glow
would pay 65% of those incurred by the United States, in accordance
with the admiralty rule of apportioning damages arising out of
collisions.  The parties presented to the district court on
cross-motions for partial summary judgment the question whether Ionian
Glow's provable damages could include the $700,000 it paid to the
three servicemen in settlement of their claims (App. B, infra, 5a).
The government contended that its direct and indirect liability for
injuries to servicemen on active duty was limited to compensation
payable under the Veterans' Benefits Act, 38 U.S.C. 301 et seq.  /2/
See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666
(1977);  Feres v. United States, 340 U.S. 135 (1950).

   2. The district court granted the government's motion for partial
summary judgment (App. B, infra, 5a-13a).  The court recognized that
the Public Vessels Act, 46 U.S.C. 781 et seq., waives the government's
sovereign immunity for damages incurred by private parties in mutual
fault collisions.  But the court found that that waiver does not
extend to claims against the United States by members of its armed
forces (App. B, infra, 81), just as the waiver of sovereign immunity
in the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., does not
extend to servicemen's claims.  Feres v. United States, supra.  See
Charland v. United States, 615 F.2d 508 (9th Cir. 1980);  Beaucoudray
v. United States, 490 F.2d 86 (5th Cir. 1974).  The district court
found equally applicable in suits under the Public Vessels Act the
corollary rule applied under the Federal Tort Claims Act -- that the
Feres doctrine also prohibits recovery of indemnity or contribution
against the United States when a joint tortfeasor has paid damages to
an injured service member.  Stencel Aero Engineering Corp. v. United
States, supra.

   3. The court of appeals reversed (App. A, infra, 1a-4a).  The court
recognized that "if this * * * suit were in the form of an indemnity
suit under the FTCA it would be barred * * * by the Feres-Stencel Aero
doctrine" (id. at 2a).  But because the litigation arose from a
maritime collision, the court concluded that Weyerhaeuser Steamship
Co. v. United States, 372 U.S. 597 (1963), controlled the issue of the
government's immunity.  Weyerhaeuser held the owner of a private
vessel involved in a collision was entitled in admiralty law to
contribution from the United States for damages paid to an injured
civil servant, even though the Federal Employees' Compensation Act, 5
U.S.C. 8101 et seq., was the employee's sole recourse against the
United States.  Though it did not address the policies underlying
Feres and Stencel Aero, the court stated that it saw "(n)othing in
(these decisions which) convinces us that the Supreme Court intended
to alter the Weyerhaeuser rule.  Until that Court expresses its
intention to modify the rule in Weyerhaeuser, we are bound to follow
it" (App. A, infra, 3a-4a).

                   REASONS FOR GRANTING THE PETITION

   The United States has not waived its sovereign immunity to either
direct or derivative claims for damages arising out of injuries to
military personnel on active duty.  The government's direct liability
to injured service members is limited to the benefits afforded by the
Veterans' Benefits Act, 38 U.S.C. 301 et seq., a statutory no-fault
compensation scheme.  In Stencel Aero Engineering Corp. v. United
States, supra, 431 U.S. at 673, quoting Laird v. Nelms, 406 U.S. 797,
802 (1972), this Court held that allowing a joint tort-feasor to
recover from the United States any additional damages paid to a
serviceman "'would be to judicially admit at the back door that which
has been legislatively turned away at the front door.'" The court of
appeals' decision accepts that principle for the government's indirect
liability to servicemen injured on land and in the air, but creates
another rule for those injured at sea.  This anomaly not only
frustrates the purpose of the Veterans' Benefits Act, but also ignores
the concerns voiced in Stencel Aero, 431 U.S. at 673, and United
States v. Brown, 348 U.S. 110, 112 (1954), about judicial scrutiny of
the relation between a serviceman and his superiors.  The Court has
recently reiterated that "'(i)t is difficult to conceive of an area of
governmental activity in which the courts have less competence'" than
military affairs or where the peculiar dynamics of discipline and
decisionmaking are more "'subtle'" and "'complex.'" Rostker v.
Goldberg, 453 U.S. 57, 65 (1981), quoting Gilligan v. Morgan, 413 U.S.
1, 10 (1973).  An action for indemnity such as that allowed by the
court below presents the same threat to military discipline and
decisionmaking as would a direct action by a serviceman against the
United States.

   The court of appeals' decision, although incorrect, is at least
understandable in light of the tension that exists between this
Court's holdings in Feres v. United States, supra, and Stencel Aero,
on the one hand, and its decision in Weyerhaeuser Steamship Co. v.
United States, supra, on the other.  In general terms, these cases
seem to direct different outcomes when the government is sued for
indemnity or contribution because of injuries to a federal employee
covered by a statutory compensation scheme.  It is important for this
Court to resolve that tension in the context of maritime collisions
involving the military, which occur with some regularity and threaten
the government with considerable monetary liability.

   1. The considerations that underlie this Court's decisions in Feres
and Stencel Aero make apparent that the government's liability for
contribution or indemnity on account of injuries to its servicemen on
active duty should not vary with the branch of service or the location
of the injury.  Feres v. United States, supra, rejected the right of
soldiers in the Army to recover under the Federal Tort Claims Act
(FTCA) for negligent medical treatment and unsafe quarters.  Although
the Court saw indications in the FTCA that such claims might be
permitted, 340 U.S. at 138-139, it found more compelling an
interpretation that would "fit * * * into the entire statutory system
of remedies against the Government * * *" (id. at 139).  One component
of that structure was a congressionally established "system() of
simple, certain, and uniform compensation for injuries or death of
those in the armed services," intended to provide exclusive recourse
for injured or deceased service members and those suing on their
behalf (id. at 144).  The very fact that Congress made no effort in
the FTCA to adjust "these two types of remedy * * * is persuasive that
there was no awareness that the (FTCA) might be interpreted to permit
recovery for injuries incident to military service" (ibid.).  A second
factor was that the recognition of tort liability in this context
would impermissibly disrupt the "peculiar and special relationship of
the soldier to his superiors * * *." United States v. Brown, supra,
348 U.S. at 112;  Feres v. United States, supra, 340 U.S. at 141-143.
Third, the Court observed that recognition of tort actions by
servicemen would subject their recovery to the vagaries of state law
in a manner inconsistent with the uniquely federal relationship of the
soldier to his government (id. at 143).

   The same considerations were again decisive when this Court, in
Stencel Aero Engineering Corp. v. United States, supra, rejected a
joint tortfeasor's claim under the FTCA for indemnity after a National
Guard pilot was injured on duty.  Stencel Aero, a subcontractor, had
manufactured the ejection system whose malfunction injured the pilot,
and when sued by the pilot for negligence it cross-claimed against the
United States.  The Court concluded that such a third-party action "is
unavailable for essentially the same reasons that the direct action *
* * is barred by Feres." 431 U.S. at 673.

   In this case Ionian Glow seeks to recover contribution under the
Public Vessels Act, 46 U.S.C. 781 et seq., for damages paid to crew
members in the Navy.  Like the FTCA, the Public Vessels Act is silent
on the liability of the United States stemming from injuries to
servicemen on active duty.  It is clear, however, that just as in
Feres no direct action against the government was permitted under the
FTCA, so no direct action by a serviceman against the government is
permitted under the Public Vessels Act.  See Johansen v. United
States, 343 U.S. 427, 440 (1952) (civilian crew on public vessels);
Charland v. United States, 615 F.2d 508 (9th Cir. 1980);  Beaucoudray
v. United States, 490 F.2d 86 (5th Cir. 1974).  See also Dobson v.
United States, 27 F.2d 807, 808-809 (2d Cir. 1928), cert. denied, 278
U.S. 653 (1929).  By the same token, the considerations crucial to the
decisions in Feres and Stencel Aero preclude any indirect action
against the United States under the Public Vessels Act as well.

   a. One argument advanced in Stencel Aero was that Feres' emphasis
on the exclusivity of the serviceman's compensation remedy should not
be extended to third parties who had no right to recover under the
Veterans' Benefits Act.  This Court responded (431 U.S. at 673;
emphasis added;  citations omitted):

         A compensation scheme such as the Veterans' Benefits Act
      serves a dual purpose:  it not only provides a swift, efficient
      remedy for the injured serviceman, but it also clothes the
      Government in the "protective mantle of the Act's
      limitation-of-liability provisions." * * * Given the broad
      exposure of the Government, and the great variability in the
      potentially applicable tort law, * * * the military compensation
      scheme provides an upper limit of liability for the Government
      as to service-connected injuries.  To permit petitioner's claim
      would circumvent this limitation, thereby frustrating one of the
      essential features of the Veterans' Benefits Act.  As we stated
      in a somewhat different context * * *:  "To permit (petitioner)
      to proceed. . . here would be to judicially admit at the back
      door that which has been legislatively turned away at the front
      door.  We do not believe that the (Federal Tort Claims) Act
      permits such a result."

   See also Hatzlachh Supply Co. v. United States, 444 U.S. 460, 464
(1980) (Veterans' Benefits Act is "the sole remedy (against the
government) for service-connected injuries").  There is no reason to
believe that the "limitation-of-liability provisions" of the Veterans'
Benefits Act have any less force when contribution claims are asserted
under the Public Vessels Act, rather than under the Federal Tort
Claims Act.  Nothing in the former statute suggests that maritime
contribution claimants are more worthy of governmental concern than
similar claimants under the FTCA.  /3/

   b. The second of the factors relied on in Stencel Aero was the
effect that allowing suits for indemnity or contribution could have on
military discipline.  Military service entails special requirements of
discipline and order that contrast sharply with relationships among
private citizens.  See Rostker v. Goldberg, supra, 453 U.S. at 65-66;
Brown v. Glines, 444 U.S. 348, 356-357 (1980);  Greer v. Spock, 424
U.S. 828, 837-838 (1976);  Parker v. Levy, 417 U.S. 733, 743-749
(1974);  Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953).  Crucial
characteristics of that setting are "(v)igor and efficiency on the
part of the officer and confidence among the soldiers in one another."
In re Grimley, 137 U.S. 147, 153 (1890).  This Court accordingly
recognized in Feres and later cases that Congress did not intend the
courts to pass on the propriety of military decisions or to place
members of the service in the position of having to testify in an
adversarial setting as to each other's actions.  The prospect of
judicial scrutiny, and of potential governmental tort liability, might
exert improper pressures on officers and result in hesitation where
decisive judgment is required.  Stencel Aero recognized that allowing
third parties a right of recovery would entail identical consequences.
 It would place the United States and members of its armed forces in
an adversarial relationship in which recovery would turn on "the
degree of fault, if any, on the part of the Government's agents and
the effect upon the serviceman's safety.  The trial (of a third-party
claim) would * * * involve second-guessing military orders, and would
often require members of the Armed Services to testify in court as to
each other's decisions and actions" in a manner inimical to military
discipline and order.  431 U.S. at 673.  The same concerns would be
present if private shipowners were permitted to seek contribution
against the United States for damages paid to servicemen injured in a
maritime collision.  /4/

   c. The third factor mentioned in Stencel Aero was the irrationality
of permitting the liability of the United States for the injury of an
active serviceman to turn entirely on the "fortuity of the situs" of
the accident.  431 U.S. at 672.  It was unlikely that Congress, in
enacting the FTCA, intended the government's vast military undertaking
with its distinctively federal character to be regulated by "the law
of the place where (a negligent) act or omission occurred." 28 U.S.C.
1346(b);  Feres v. United States, supra, 340 U.S. at 142-143.  It is
equally improbable that Congress, in enacting the Public Vessels Act,
intended to incorporate in that statute the anomalies that flow from
the court of appeals' decision in this case.  Had the injury to the
individual claimants in this case resulted from the mutual fault of
the United States and the respondent during an unloading operation on
a pier, for example, respondent's claim for contribution would be
barred.  Not only does the availability of contribution in the Fourth
Circuit now depend on whether the injury takes place at sea, on land,
or in the air, but the law applicable even to maritime collisions may
vary with the waters where they occur.  The right to and extent of
contribution thus are subjected to the vagaries of foreign, rather
than state, law.  See generally Lady Nelson, Ltd. v. Creole Petroleum
Corp., 286 F.2d 684, 686 (2d Cir. 1961);  The Mandu, 114 F.2d 361, 362
(2d Cir.), cert. denied, 311 U.S. 715 (1940);  States Marine Lines,
Inc. v. The M/VKokei Maru, 180 F.Supp. 255, 256 (N.D. Cal. 1960);  G.
Gilmore & C. Black, The Law of Admiralty 489 (2d ed. 1975).

   2.a. The court of appeals felt free to disregard these weighty
considerations precluding contribution for injuries to servicemen
because, it said, "(n)othing in Feres, Stencel Aero, or the cases that
follow convinces us that the Supreme Court intended to alter the
Weyerhaeuser rule.  Until that Court expresses its intention to modify
the rule in Weyerhaeuser, we are bound to follow it" (App. A, infra,
3a-4a).  Weyerhaeuser Steamship Co. v. United States, supra, involved
a collision between an Army dredge and a private vessel, which a Civil
Service employee aboard the Army dredge was injured.  The owner of the
private vessel brought an action against the United States under the
Public Vessels Act and claimed, as part of its damages, a portion of
the amount it had paid to the Army's civilian crew member.  This Court
began its opinion by pointing out that "the Public Vessels Act 'was
intended to impose on the United States the same liability * * * as is
imposed by the admiralty law on the private shipowner * * *.'" 372
U.S. at 600, quoting Canadian Aviator, Ltd. v. United States, 324 U.S.
215, 228 (1945).  It then rejected the government's contention that
the admiralty rule of divided damages was displaced by the exclusive
liability provision in the Federal Employees' Compensation Act (FECA)
(now codified at 5 U.S.C. 8116).  The FECA, like the Veterans'
Benefits Act, affords a statutory compensation scheme for federal
employees and explicitly states that the government's liability under
the Act "is exclusive * * * of all other liability * * * to the
employee * * * and any other person otherwise entitled to recover
damages from the United States * * * because of the injury or death
(of the employee)." /5/ The Court nevertheless concluded that the
divided damages rule "which, for more than 100 years, has governed * *
* the correlative rights and duties of two shipowners whose vessels
have been involved in a collision in which both were at fault(,) * * *
must prevail over a statutory provision which * * * limited the
liability of one of the shipowners * * *." 372 U.S. at 603.  /6/

   b. The apparent inconsistency between Feres and Stencel Aero on the
one hand, and Weyerhaeuser on the other, is a conflict that only this
Court can finally resolve.  The government believes that such a
decision must ultimately sustain the applicability of Stencel Aero to
a case such as this.  The court of appeals' decision took no account,
for example, of the intrusion on military discipline and the anomalous
treatment of sailors caused by a contrary result.  Moreover, this
Court has recently granted certiorari in Lockheed Aircraft Corp. v.
United States, No. 81-1181 (Apr. 5, 1982), to consider the scope of
the rule laid down in Weyerhaeuser and the force of the FECA'S
limitation-of-liability provision as applied to non-maritime indemnity
claims.  Under these circumstances it is especially appropriate for
this Court to provide direction to the lower federal courts about
which of two conflicting yet apparently controlling precedents they
should follow.  See Stencel Aero Engineering Corp. v. United States,
supra, 431 U.S. at 670 ("In this case we must resolve the tension
between Feres and (United States v.) Yellow Cab" Co., 340 U.S. 543
(1951));  United States v. Brown, supra, 348 U.S. at 111 ("The case is
here on a petition for certiorari which we granted * * * because of
doubts as to whether Brooks v. United States, 337 U.S. 49, or Feres v.
United States, 340 U.S. 135, controlled this case").

   3. It is particularly important for this Court to resolve the
uncertainty that now exists in this area of the law, because maritime
collisions involving the military -- though not commonplace -- occur
with unfortunate frequency, and the great number of personnel
threatened with injury or death in such incidents increases the
government's exposure to monetary liability far beyond the limits
fixed by the Veterans' Benefits Act.  For example, actions arising out
of the collision between the USCGC CUYAHOGA and an Argentine flag
vessel, in which 12 Coast Guardsmen were killed, are currently pending
in the United States District Courts for the Districts of Maryland and
Massachusetts.  Empresa Lineas Maritimas Argentinas, S.A. v. United
States, Civ. No. T-78-2106 (D. Md.);  Martha S. Makin, et al. v.
Empresa Lineas Maritimas Argentinas, S.A., 78-2810-N, et al. (D.
Mass.).  Should the servicemen's representatives prevail against the
private shipowner, the United States may be open to indirect liability
in the Maryland action under the Fourth Circuit's decision in this
case.  The United States has also entered into a stipulation in In re
Kingston Shipping Co. and Apex Marine Corp., Civ. No. 80-134-T-GC
(M.D. Fla.), to pay 60% of the damages assessed against the private
shipowner for the wrongful deaths of 23 Coast Guardsmen, contingent
upon the ultimate resolution of this case.  We are informed that the
government's potential liability in these two actions alone could
approximate $9 million.  Another pending incident is the July 22,
1980, collision of the aircraft carrier USS MIDWAY and a foreign flag
ship in the Phillipine Sea, in which four of the MIDWAY'S crew were
killed or injured.  Still other incidents involving only property
damage illustrate the regularity with which such collisions take
place.  /7/ It is often only a matter of good fortune that such
accidents do not result in serious injuries or loss of life.

   The court of appeals' conclusion is particularly unfortunate
because the United States' largest naval base -- at Norfolk, Virginia
-- is located within the jurisdiction of the Fourth Circuit, as is
another large naval installation at Charleston, South Carolina.
Moreover, under the venue rules as applicable to Public Vessels Act
cases, many collisions that occur outside the waters covered by the
Fourth Circuit may nonetheless be litigated in that circuit.  Section
4 of the Act, 46 U.S.C. 784, provides:

         Such suit(s) shall be brought in the district court of the
      United States for the district in which the vessel or cargo
      charged with creating the liability is found within the United
      States, or if such vessel or cargo be outside the territorial
      waters of the United States, then in the district court of the
      United States for the district in which the parties so suing, or
      any of them, reside or have an office for the transaction of
      business in the United States;  or in case none of such parties
      reside or have an office for the transaction of business in the
      United States, and such vessel or cargo be outside the
      territorial waters of the United States, then in any district
      court of the United States. * * *

   In other words, when a collision takes place outside the
territorial waters of the United States, the private vessel owner may
generally sue in the Fourth Circuit if it has an office there or (in
the case of a foreign owner) if it has no office in this country.  See
also Fed. R. Civ. P., Supplemental Rules for Certain Admiralty and
Maritime Claims, Rule F(9) (venue in limitation-of-liability actions).
 Given the legal uncertainty occasioned by the influence of
Weyerhaeuser on this area of the law, those who collide with
government ships will undoubtedly prefer to take advantage whenever
possible of the generous contribution doctrine espoused by the court
of appeals in this case, with the consequent impairment of military
discipline and decisionmaking.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   JOHN H. GARVEY

      Assistant to the Solicitor General

   WILLIAM KANTER

   MARK H. GALLANT

      Attorneys

   JUNE 1982

   /1/ "C.A. App." refers to the joint appendix in the court of
appeals.

   /2/ Commander Robert Leary remained on active duty after the
collision and, having received medical care for his injuries and drawn
his normal salary, is not expected to receive any disability payments
under the Act.  The same is true of Chief Petty Officer Louis Colley,
who retired with no disability.  Lt. Commander Donald Miller, the most
seriously injured of the three, is still on active duty pending a
determination of his disability status and entitlements by a medical
discharge evaluation board (App. B, infra, 5a n.1).

   /3/ Indeed, a comparison of the facts in this case and Stencel Aero
might suggest precisely the opposite.  Stencel Aero alleged that its
negligence was merely passive, and that the principal fault for the
injury to the government's pilot lay with the United States.  431 U.S.
at 668.  In this case it was agreed that respondent bore the greater
share of the fault (65%) for the collision that is the basis for its
contribution claim.

   /4/ It is true that in cases such as this there will almost
necessarily be claims of mutual property damage and that the owner of
a private vessel may seek to call servicemen as witnesses to establish
the negligence of the United States even if contribution claims for
personal injuries are precluded.  But the case is no different from
collisions on land or in the air between private and military vehicles
or airplanes, and there is no doubt that in those cases Stencel Aero
would preclude indemnity or contribution claims by the private party
even though claims for property damages might be allowed.  Cf. Stencel
Aero Engineering Corp. v. United States, supra, 431 U.S. at 676-677
(Marshall, J., dissenting).  Perhaps more important, the testimony of
military personnel in that context would not put them in an
adversarial role against their command, since the serviceman has no
personal interest in assuring recovery by the private party.  On the
other hand, when the serviceman sues a private shipowner and the
United States is a third-party defendant, the United States is
encouraged to "assert against the (serviceman) any defenses which the
(private shipowner) has to the (serviceman's) claim." Fed. R. Civ. P.
14(a).  And to insure against the private vessel owner's being unable
to satisfy the serviceman's claim, the serviceman could find it in his
interest to establish a larger share of proportionate fault on the
part of the United States in order to maximize his recovery.

   /5/ The language in the current version, 5 U.S.C. 8116(c), quoted
above, differs slightly from that in effect when Weyerhaeuser was
decided.  See 372 U.S. at 599.

   /6/ To the extent that the rule in Weyerhaeuser depended on the
century-old pedigree of the divided damage rule, it is open to
question after the decision in United States v. Reliable Transfer Co.,
421 U.S. 397 (1975).  In Reliable Transfer this Court abandoned the
rule of equally divided damages long applied in cases -- like
Weyerhaeuser -- arising from mutual fault collisions and replaced it
with a rule of proportionate division according to fault.  In the
course of its decision this Court stressed the role of the judiciary
to take "the lead in formulating flexible and fair remedies in the law
maritime * * *." 421 U.S. at 409.  It also emphasized that "'the
concept of "settled expectation" would be reduced to an absurdity were
it to be applied to a rule of damages for negligent collision.'" Id.
at 410, quoting G. Gilmore & C. Black, supra, at 531.  Those comments
apply with equal force to an interpretation of the divided damages
rule that would ignore the force of the considerations underlying this
Court's decisions in Feres and Stencel Aero.

   /7/ One example is the collision on March 22, 1982, off Cape Henry,
Virginia, between a Turkish vessel and the nuclear submarine USS
JACKSONVILLE.  Another, more highly publicized, incident was the
collision between the USS GEORGE WASHINGTON and the M/V NISSHO MARU in
the Japan Sea in April 1981.  An action arising out of the latter
incident has recently been filed in the United States District Court
for the Southern District of New York.  China National Technical
Import Corp., et al. v. United States, 82 Civ. 2205 (S.D.N.Y.)

   Appendix Omitted