
    SBARBARO v. UNITED STATES et al.
    No. 401 of 1947, Admiralty.
    District Court, E. D. Pennsylvania.
    Aug. 4, 1948.
    J. Wesley Oler, Ernest R. von Starck, Thomas B. K. Ringe and Clark, Brown, Mc-Cown, Fortenbaugh & Young, all of Philadelphia, Pa., for libellant.
    James P. McCormick, Asst. U. S. Atty., of Philadelphia, Pa., for respondents.
   McGRANERY, District Judge.

Libellant, as next friend of John L. Sbarbaro, Jr., alleges that he was injured by the negligence of respondents, the United States, and the United States Maritime Commission, and the unseaworthiness of the vessel U.S.S. Selinur, also known as Keystone State. It is not clear from the libel whether suit against the United States is under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., or the Public Vessels Act, 46 U.S.C.A. § 781 et seq., or both. The government has filed exceptions, which, inter alia, raise a jurisdictional issue. Conceding that the libel may be proper, it is difficult upon the record before the Court to properly decide this primary issue. Thus, jurisdiction, if it exists at all, will ultimately depend upon whether the vessel upon which the accident occurred was a merchant or public vessel of the United States. It would be unwise to characterize the vessel without having evidence or a stipulation as to which agency of the government owns it, the nature of its personnel, the terms under which it was loaned to the Commonwealth of Pennsylvania as a training ship, and the service to which graduate cadets entered. If, as I am inclined to believe, the ship is properly a public, rather than a merchant, vessel, then the degree of control exercised by some “independent establishment of the Government” at the time the cause of action arose (cf. 46 U.S.C.A. 784) may be crucial on the jurisdictional issue. Cf. United States v. Caffey, 2 Cir., 141 F.2d 69. Characterization of the vessel, and determination of the applicable statute may, of course, raise procedural issues, as well. Accordingly, therefore, decision on the exceptions to the libel filed by the government will be reserved until the record is ■ more complete or the issues are narrowed by stipulation or admission.  