The Florence H.

Decision Date22 April 1918
Citation248 F. 1012
PartiesTHE FLORENCE H.
CourtU.S. District Court — Southern District of New York

H. E Moss & Co., the owners of the British vessel Mirlo, filed a libel in rem against the steamer Florence H., alleging a collision on the high seas, for which the libel claimed damages. The stipulation upon which the suggestion of record was heard stated that the Florence H. up to August 3, 1917 was under construction at one of the private shipyards of the United States. On that day the United States Shipping Board Emergency Fleet Corporation, under the Urgent Deficiency Act of June 15, 1917 (40 Stat. 182, c. 29), requisitioned the Florence H. for national purposes connected with the war and took title by executive order of the President under powers conferred on him by that act. After her completion, the Florence H. was delivered by the Fleet Corporation to the United States Shipping Board, a governmental agency of the United States, and was registered in the name of the United States by the Shipping Board on the 19th day of November 1917. Subsequently the board chartered the Florence H. to the French government for one round trip voyage from the United States to France. The charter was a demise, and she was manned by a French crew and carried a cargo of food for the French government. Returning from France in ballast, and while still in the possession and control of her French crew she came into collision with the British steamer Mirlo, owned by the libelants. On her arrival in New York the French government redelivered her to the Shipping Board, which in turn redelivered her to the United States Shipping Board Emergency Fleet Corporation under a charter which likewise constituted a demise. After this delivery she was berthed in the port of New York for a cargo belonging to the French government, which was to be transported from that port to France on behalf of the French government. She remained, however, still in the possession of the Fleet Corporation under the aforesaid charter. The Fleet Corporation was organized under the laws of the District of Columbia in pursuance of section 11 of the Shipping Act, passed September 7, 1916 (Act Sept. 7, 1916, c. 451, 39 Stat. 728 (Comp. St. 1916, Secs. 8146a-8146r)). All the stock is held by the United States Shipping Board, except one share each held by the six trustees of the Shipping Board by virtue of their title.

In accordance with the prayer of the libel, process was issued from the District Court to the marshal for the Southern district of New York, who, in pursuance of the said process, arrested the steamship Florence H. and put his custodian in charge of her, and thereafter, at the request of the United States Shipping Board Emergency Fleet Corporation, the custodian was withdrawn in consideration of a letter by the counsel for the United States Shipping Board Emergency Fleet Corporation, agreeing to give a bond to cover the claim of the libelant in the event that the court should sustain jurisdiction against the Florence H. The case in its present aspect, therefore, is to be dealt with upon the assumption that the marshal is now in actual custody of the ship. The United States Shipping Board and the Emergency Fleet Corporation appear by admiralty counsel and suggest upon the record that the ship may not be subject to arrest as in ordinary civil cases. The district attorney for the Southern district of New York likewise appears specially on behalf of the United States and objects to the jurisdiction of the court. Mr. James K. Symmers appears as amicus curiae on behalf of the French government.

John M. Woolsey, of New York City, for libelants.

Francis G. Caffey, U.S. Atty., of New York City, appearing specially by John Hunter to object to the jurisdiction.

Alfred Huger, of Charleston, S.C., and Henry H. Little, of Norfolk, Va., for U.S. Shipping Board and U.S. Shipping Board Emergency Fleet Corp.

James K. Symmers, of New York City, as amicus curiae, appearing on behalf of the republic of France.

LEARNED HAND, District Judge (after stating the facts as above).

The question raised is of the propriety of the arrest attempted by the marshal in accordance with the prayer of the libel. It depends, first, upon the immunity of the ship from any arrest because of her ownership and possession; second, upon the existence of any lien arising from the collision at a time when she was in possession of the French republic under charter from the United States, assuming, of course, the truth of the facts alleged in the libel upon which the lien depended.

I may assume that a vessel owned by the United States and in its possession is immune from any process of court. The Parlement Belge, L.R. 5 P.D. 197; Briggs v. A Light Boat, 11 Allen (Mass.) 157. The Exchange, 7 Cranch, 117, 3 L.Ed. 287 was, it is true, the case of a ship of war, and the decision can hardly be thought to go further; yet it is significant that Lord Esher in The Parlement Belge, supra, used it as a basis for his conclusion that a ship used for any 'national public purpose' is within the immunity of the sovereign. In so far as The Charkieh, L.R. 4 Ad. & Ec. 59, has anything to the contrary, it must be thought overruled. Assuming the Florence H. to have been so immune while in the possession of the United States, yet in salvage cases it is certainly established that, where property of the sovereign is in the possession of an individual other than an officer of the sovereign, whose custody is only official, it is not exempt from process. The Davis, 10 Wall. 15, 19 L.Ed. 875; The Tampico (D.C.) 16 F. 491, 501; The Johnson Lighterage Cases (D.C.) 231 F. 365. Indeed, in certain cases the rule has been pressed further than this. U.S. v. Judge Peters, 5 Cranch, 115, 3 L.Ed. 53; U.S. v. Lee, 106 U.S. 196, 1 Sup.Ct. 240, 27 L.Ed. 171. In each of these cases it is difficult to see that the possession of the defendant was other than mere official custody, and yet process went (and that, too, in suits not in salvage) against the sovereign's property. Nor does it seem to me that the character of the suit can in any sense determine the question here at bar, which is only whether the sovereign's property may be subjected in invitum to the results of a contentious proceeding. It can make no difference whether the question is an implied contract arising from the salvage of the property or the existence of a lien from its tortious management. The question is whether the sovereign can be subjected to the necessity of defending his property from private claims to whose propriety he does not assent.

But, however that may be under general principles of law, the Shipping Act (section 9) removes any question about the liability of such vessels to arrest provided they are 'employed solely as merchant vessels.' The sentence in question reads as follows:

'Such vessels while employed solely as merchant vessels shall be subject to all laws, regulations, and liabilities governing
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10 cases
  • Brady v. Roosevelt Steamship Co
    • United States
    • U.S. Supreme Court
    • January 18, 1943
    ... ... That section was designed to avoid the inconvenience, expense and delay resulting from the holdings in The Florence H., D.C., 248 F. 1012, and The Lake Monroe, 250 U.S. 246, 39 S.Ct. 460, 63 L.Ed. 962, that libel in rem would lie against vessels owned by the United States. See S.Rep. No. 223, 66th Cong., 1st Sess.; H.Rep. No. 497, 66th Cong., 2d Sess. The wording of that section makes clear that the right to ... ...
  • Saffrhan v. Buck Steber, Inc.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • May 30, 1977
    ... ...         The Suits in Admiralty Act was adopted after the Supreme Court held that, although the United States, as sovereign, was immune to suit, its vessels could be seized for a maritime lien arising out of an in rem proceeding against a United States vessel. The Florence H., D.C., 248 F. 1012. See S.Rep.No.223, 66th Congress., 1st Sess; H.Rep.No.497, 66th Congress., 2d Sess. The Act permits suit in personam against the United States and thereby relieves the government of the possibility of obstruction of its commercial maritime affairs by liens ... ...
  • The Rogdai
    • United States
    • U.S. District Court — Northern District of California
    • May 25, 1920
    ... ... the courts are to defer to such authority, they should be ... advised of the executive will directly and from an ... authoritative source, and such source the foreign government ... may call into activity through appropriate diplomatic ... channels. The Florence H. (D.C.) 248 F. 1012, 1017. But the ... procedure here followed is not without precedent, and in view ... of the fact that the attitude of the State Department is ... unmistakably shown, though not approving of the practice, I ... have thought it proper under the circumstances to receive and ... ...
  • THE ELIZABETH M. MILLER
    • United States
    • U.S. District Court — Western District of New York
    • July 6, 1932
    ... ... If the agreement does not cover negligence, then the vessel is liable for the damage done by the collision, even though it was being navigated by the charterer under a demise charter, as here. Rev. St. § 4286 (46 USCA § 186); The R. Lenahan, Jr. (C. C. A.) 48 F.(2d) 110; The Florence H. (D. C.) 248 F. 1012; The Barnstable, 181 U. S. 464, 21 S. Ct. 684, 45 L. Ed. 954. However, no liability in personam attaches to the owner ...         The question whether the agreement such as the one at bar releases liability for negligence has been considered by the federal courts ... ...
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