Eastern Transp Co v. United States

• Decision Date: 03 January 1927
• Docket Number: No. 57,57
• Citation: 47 S.Ct. 289,272 U.S. 675,71 L.Ed. 472
• Parties: EASTERN TRANSP. CO. v. UNITED STATES et al
• Court: U.S. Supreme Court

272 U.S. 675

47 S.Ct. 289

71 L.Ed. 472

EASTERN TRANSP. CO.

v UNITED STATES et al.

No. 57.

Argued Dec. 7, 1926.

Decided Jan. 3, 1927.

Messrs. John M. Woolsey, of New York City, and Edward R. Baird, Jr., of Norfolk, Va., for appellant.

[Argument of Counsel from pages 676-678 intentionally omitted] The Attorney General and Mr. J. Frank Staley, of Washington, D. C., for appellees.

[Argument of Counsel from pages 679-681 intentionally omitted] Mr. Chief Justice TAFT delivered the opinion of the Court.

The Eastern Transportation Company filed a libel in admiralty in personam against the United States in the District Court for the Eastern District of Virginia, under the Suits in Admiralty Act of 1920 (Comp. St. §§ 1251 1/4-1251 1/4 l), and against the seaboard Transportation Company, as joint defendants. It averred that the libelant, a corporation of the state of Maryland, was the owner of the barge Winstead and the bailee of the cargo of the barge; that the Seaboard Transportation Company owned the tug Covington and the barge Pottsville; that on August 15, 1920, the steamship Snug Harbor, owned and used by the United States solely as a merchant vessel, while on a voyage from Baltimore, Md., to Portland, Me., came into collision with a barge Pottsville in tow of the tug Covington, was sunk, and became a total loss; that the wreck of the Snug Harbor lodged about 4 1/4 miles from Montauk Point, in a frequented channel way within the harbors and inland waters of the United States; that it was not marked with a buoy or beacon by day or a lighted lantern by night, and was not removed by the United States or the Seaboard Transportation Company, and that no notice had been given or published advising mariners navigating the neighboring waters of the presence of the wreck; that the barge Winstead, loaded with a full cargo of coal, on the 14th day of September, 1920, came into conact with the wreck and as a result was sunk, and it and its cargo became a total loss, to the damage of the libelant in the sum of $105,000; that the collision between the Snug Harbor and the Pottsville was due to the negligence of both; that the collision of the Winstead with the wreck was without negligence of those engaged in her navigation, but was due to the unlawful presence of the wreck, for which the respondents were jointly and severally responsible.

The United States district attorney appeared specially for the government, for the purpose of suggesting to the court that it was without jurisdiction so far as the United States was concerned; that the cause of action stated related to a failure on the part of the officers and agents of the United States to perform a purely governmental function, or to the alleged negligence of such officers and agents in the performance of such a function, and created no liability on the part of the United States for which it was suable; that the cause of action in no way concerned a vessel employed as a merchant vessel; that the Suits in Admiralty Act was to prevent the arrest and detention of vessels owned or possessed by the United States then employed as merchant vessels, and it was only to prevent such arrest and detention and consequent interference with the operation of such vessels that the United States consented by the act to be sued in respect to such vessels, and that the United States had never consented by the act or otherwise to be sued in respect to a wreck or any object incapable of being employed as a merchant vessel; that the suit in personam provided for by the act was intended by Congress to be only a substitute for a suit in rem against such vessel itself, and by the terms of the act could be brought and maintained only in cases where, if such vessel were privately owned, a suit in rem could be maintained against her at the time of the commencement of such action, and not then unless such vessel was employed as a merchant vessel at that time; that section 15 of the Act of March 3, 1899 (Comp. St. § 9920), making it the duty of the owner of any vessel or craft wrecked and sunk in a navigable channel immediately to mark it with a buoy or beacon by day and a lighted lantern at night, had no application to the United States of America, imposed no duty upon it, and created no liability for which it was suable in the District Court below or elsewhere.

This issue on jurisdiction was presented by a motion to dismiss, which was denied by the District Judge, on the ground that the question should be determined after the facts were elicited in the trial of the case. 283 F. 1015. Subsequently the judge reheard the suggestion of want of jurisdiction, and reached the conclusion on the facts alleged that the court was without jurisdiction, and dismissed the libel.

The record shows that by consent of the other parties the Seaboard Transportation Company has been dismissed for reasons appearing to the court and to counsel. It further appears that all questions of mere venue are waived.

This appeal, upon a certificate of the District Judge that the dismissal had been solely for lack of jurisdiction, was brought directly to this court on March 20, 1925, under section 238 of the Judicial Code (Comp. St. § 1215) as it was before it was amended by the Act of February 13, 1925, in accordance with section 14 of that act (43 Stat. 936, c. 229).

The case before us turns on the proper construction of the Suits in Admiralty Act. It was passed March 9, 1920. 41 Stat. at Large 525, c. 95. Its first section provides that no vessel owned by the United States or by any corporation in which the United States or its representatives owns the entire outstanding capital stock shall thereafter 'in view of the provision herein made for libel in personam be subject to arrest or seizure by judicial process in the United States or its possessions.'

By section 2, in cases where, if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action, a lible in personam may be brought against the United States if the vessel is employed as a merchant vessel. The suit is to be in a District Court of the United States for the district in which the parties suing reside, or at their principal place of business or in which the vessel or cargo charged with liability is found. The libelant is forthwith to serve a copy of his libel on the United States attorney for such district, and mail a copy thereof to the Attorney General, and make a sworn return of such service and mailing to constitute valid service on the United States and the corporation.

The third section provides that the suits shall proceed and be heard according to principles of law and to the rules of practice obtaining in like cases between private parties. A decree against the United States or such corporation may include costs of suit, and when the decree is for a money judgment, it shall include interest at the rate of 4 per cent. per annum until satisfied, or at any higher rate which shall be stipulated in any contract upon which such decree shall be based. Interest is to run as ordered by the court. The decrees are subject to appeal and revision as now provided in other cases of admiralty and maritime jurisdiction. Then follows this language:

'If the libelant so elects in his libel the suit may proceed in accordance with the principles of libels in rem wherever it shall appear that had the vessel or cargo been privately owned and possessed a libel in rem might have been maintained. Election so to proceed shall not preclude the libelant in any proper case from seeking relief in personam in the same suit.'

The United States is exempted from giving any bond, but it assumes liability to satisfy and decree in any cause in which a vessel of the United States has been arrested or in which a vessel previously possessed, owned or operated by the United States has been arrested in which the United States is interested and of which it desires release as suggested by the Attorney General.

Section 6 directs that the United States shall be entitled to the benefits of all exemptions and of all limitations of liability accorded by law to the owners, charterers, operators, or agents of vessels.

Section 7 provides that if any vessel or cargo of the United States is seized by process of a court of any country other than the United States, the Secretary of State of the United States is his discretion upon the request of the Attorney General direct the proper United States consul to claim immunity from such suit and seizure and to execute a bond on behalf of the United States as the court may require for the release of the vessel or cargo.

Section 8 appropriates the sums needed to meet the final judgments against the United States authorized by the sections of the act.

In view of the fact that the wreck which did the damage was a total loss, we assume that there is no res upon which a recovery in rem could be based, and therefore that a suit as between private persons, if maintainable, must rest on the personal liability of the owner of the wreck and must be in principle in personam, as distinguished from an action in rem against the vessel wrecked. Hence it is that the libelant must establish that under the Suits in Admiralty Act it was intended to give an action against the United States both in cases where the owner of the vessel would be personally liable, and in those where only the vessel would be liable.

The sovereignty of the United States raises a presumption against its suability, unless it is clearly shown; nor should a court enlarge its liability to suit conferred beyond what the language requires. It was this view which led us in Blamberg Bros. v. United States, 260 U. S. 452, 43 S. Ct. 179, 67 L. Ed. 346, to hold that as the substitution by the Suits in Admiralty Act was merely to furnish a balancing consideration for the immunity...