Ex parte Green. No. ___, Original

• Decision Date: 23 May 1932
• Citation: 76 L.Ed. 1212,52 S.Ct. 602,286 U.S. 437
• Parties: Ex parte GREEN. No. ___, Original
• Court: U.S. Supreme Court

286 U.S. 437

52 S.Ct. 602

76 L.Ed. 1212

Ex parte GREEN.

No. ___, Original.

Submitted on Motion for Leave to File May 2, 1932.

Decided May 23, 1932.

Messrs. Winter S. Martin and Samuel B. Bassett, both of

Seattle, Wash., for petitioner.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This is a motion by Winfield A. Green for leave to file a petition for a writ of mandamus against the federal District Court for the Western District of Washington to show cause why the writ should not issue requiring the judge thereof to conform to the opinion of this court in Langnes v. Green, 282 U. S. 531, 51 S. Ct. 243, 75 L. Ed. 520. In that case Green had brought an action against Langnes in a superior court of the state of Washington to recover damages for personal injury suffered while employed upon the Aloha, a fishing vessel of which Languages was the sole owner. Four months thereafter, while that action was pending, Langnes brought a proceeding in the federal District Court, praying a limitation of liability under the appropriate provisions of the Revised Statutes. The parties stipulated that the vessel was of no greater value than the sum of $5,000. Upon the filing of the petition, the District Court issued an order restraining further proceedings in the state court, and a monition to all claimants to present their claims within a time fixed. Green filed his claim in the amount of $25,000 for damages, which was the only claim ever filed, and thereupon moved to dissolve the restraining order. The District Court denied the motion, and tried the cause in respect of respondent's claim, holding there was no liability and entering a decree accordingly. 32 F.(2d) 284. An appeal followed to the Circuit Court of Appeals for the Ninth Circuit. That court reversed the decree and remanded the cause upon grounds which need not now be stated. 35 F.(2d) 447.

We reversed the decrees of both courts, and remanded the cause to the District Court for further proceedings. We held that the action was properly brought in the state court under section 24(3) of the Judicial Code, U. S. C., Title 28, § 41(3), 28 USCA, § 41(3), which saves to suitors in all cases of admiralty 'the right of a common-law remedy where the common law is competent to give it,' and that the petition for a limitation of liability also was properly brought in the federal District Court. The situation then being that one statute afforded the right to a common-law remedy, and another the right to seek a limitation of liability, we said that a case was presented for the exercise of the sound discretion of the District Court whether to dissolve the restraining order and permit the state court to proceed, or to retain complete jurisdiction; and, upon consideration of the matter, we held that such discretion should have been exercised so as to permit the state court to proceed.

But we also said that the District Court, as a matter of precaution, should retain the petition for a...