The Henry Koerber, Jr.

• Decision Date: 27 September 1920
• Docket Number: 1176.,1166,1165
• Citation: 268 F. 561
• Parties: THE HENRY KOERBER, JR. THE CHARLOTTE (two cases .
• Court: U.S. District Court — Western District of New York

268 F. 561

THE HENRY KOERBER, JR. THE CHARLOTTE (two cases .

Nos. 1165, 1166, 1176.

United States District Court, W.D. New York.

September 27, 1920

Charles D. Newton, Atty. Gen., and Edward G. Griffin, Deputy Atty Gen., for State of New York.

Stanley & Gidley, of Buffalo, N.Y. (Ellis H. Gidley, of Buffalo N.Y., of counsel), for respondents.

HAZEL District Judge.

The separate libels substantially allege that the tugboats Charlotte and Henry Koerber, Jr., while under charter by the superintendent of public works of the state of New York, and under his control and direction, were so negligently navigated that damages were sustained by several barges and vessels, of which the libelants were either bailees or owners. The proceeding is in rem. The owners of the towing tugs claim to be innocent parties to the subject-matter since the towing tugs at the time of the accident were chartered by the superintendent of public works of the state of New York for the benefit of the state under an act of the Legislature authorizing him to tow boats for hire in the Erie Canal, and appropriating $200,000 to carry the provisions of the act into effect.

After the libel was filed, the claimants of the tugs, under admiralty rule 59 (29 S.Ct. xlvi), cited the superintendent of public works to appear and answer the libel. In the petition it is stated that, in case the superintendent of public works cannot be found, then the goods and chattels of the state of New York within this district be attached to the amount of the claim. The Deputy Attorney General of the state appeared specially on the return of the monition, and moved for a dismissal of the proceeding on the ground that this court is without jurisdiction of the person or the subject-matter herein, either in a libel in rem or in personam.

The point is whether the proceeding is a suit in law or equity against the state of New York, or simply a suit in admiralty and of maritime jurisdiction. It is a suit, in my opinion, of the latter class. The decisions as I understand them, point to this conclusion. The only exemption from process by reason of a sovereign attribute under the admiralty law is possessed by the national government alone. Workman v. Mayor, etc., 179 U.S. 552, 21 Sup.Ct. 212, 45 L.Ed. 314. The Eleventh Amendment of the Constitution, true enough, provides that--

'The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.'

But this broad provision has several times been construed in a way that does not include actions in rem to recover for a maritime tort; such actions not being strictly civil suits at law or in equity. The distinction between the latter forms of action and proceedings in rem is clearly suggested by Mr Justice Story in his Commentaries on the Constitution of the United States (volume 3, Sec. 1683), wherein he expresses a doubt as to whether the Eleventh Amendment of the Constitution extends to causes of that character. He states that a suit in admiralty is not, correctly...