295 F. 372 (N.D.Cal. 1923), 17692, Rosenberg Bros. & Co. v. United States Shipping Board Emergency Fleet Corp.

Docket Nº:17692, 17693.
Citation:295 F. 372
Case Date:December 26, 1923
Court:United States District Courts, 9th Circuit, Northern District of California

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295 F. 372 (N.D.Cal. 1923)







Nos. 17692, 17693.

United States District Court, N.D. California.

December 26, 1923

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J. M. Mannon, Jr., Farnham P. Griffiths and McCutchen, Olney, Willard, Mannon & Greene, all of San Francisco, Cal., for libelants.

Ira S. Lillick, of San Francisco, Cal., for respondent.

PARTRIDGE, District Judge.

These two actions arise from the loss of the steamer West Aleta. In the Rosenberg Case, the libel alleges that the libelant shipped on the West Aleta 1,500 bags of rice, consigned to Rotterdam. In addition, libelant delivered to respondent 4,000 bags of rice for shipment on the Cockaponset for Rotterdam, but that respondent diverted 680 bags of this second lot, and shipped them on the West Aleta. The value of this rice is alleged to be the sum of $23,716. In the California Wine Association Case, libelant shipped on the West Aleta 11,000 barrels of wine, for shipment to Cardiff, and 2,992 barrels of wine and 1,108 barrels of brandy for shipment to Rotterdam. The value of the wine and brandy is alleged to be $642,871.

All the goods in both cases were shipped from San Francisco. Both libels then allege that the West Aleta deviated from her voyage and proceeded on an entirely different voyage to Hamburg, and that during this deviation she stranded upon Tershelling Island in the North Sea, and as a result of the deviation the ship and goods became a total loss. Both libels likewise allege that 'at all times herein mentioned' the vessel was an American steamer operated by respondent solely as a merchant vessel.

To these libels exceptions are filed directly attacking the jurisdiction of the court. The reasons for this attack are that it affirmatively appears that at the time of the filing of the libels the West Aleta was not operated as a merchant vessel, nor was she within the territorial limits of the United States or its possessions, nor within the jurisdiction of the court. In addition to that, the exceptions set up that at the time of the filing of the libel more than a year had elapsed since the going into effect of the Suits in Admiralty Act of March 9, 1920,

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and that therefore the causes of libel are barred by section 5 thereof (Comp. St. Ann. Supp. 1923, Sec. 1251 1/4d).

There is thus squarely presented to the court the questions:

(1) What is the status of a libel for the recovery of damages sustained by the loss of goods on a vessel operated by the Emergency Fleet Corporation, when the suit is filed more than one year after the act went into effect?

(2) Do the sections of the statute limiting actions to causes in which the vessel was employed in the merchant service and physically within the United States, apply where she has, by wrongful deviation, become a total loss?

The principle that the sovereign cannot be sued without his consent found no ready acceptance in these United States. It was, of course, settled law in England, at the time of the Revolution; although, as a practical matter, leave was almost always granted upon a petition of right. The doctrine was strongly urged in the Federalist, No. 81, in the following language:

'It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without his consent. This is the general sense, and general practice of mankind.'

But it certainly was not considered the 'general sense' of this country by the first Chief Justice of the Supreme Court of this republic. On the contrary, he most vigorously and picturesquely repudiated it, as unsuited to a free people--a people who were themselves the sovereign, and the only sovereign, ruling themselves by their duly elected representatives. Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440. In the same case Mr. Justice Wilson used this language:

'To the Constitution of the United States the term 'sovereign' is totally unknown. There is but one place where it could have been used with propriety. But even in that place it would not, perhaps, have comported with the delicacy of those who ordained and established that Constitution. They might have announced themselves sovereign people of the United States; but, serenely conscious of the past, they avoided the ostentatious declaration.'

In this case, however, the first Chief Justice did perceive a difference between a suit against a state, and against the United States. The language is as follows:

'I perceive, and therefore candor urges me to mention, a circumstance, which seems to favor the opposite side of the question. It is this: The same section of the Constitution which extends the judicial power to controversies 'between a state and the citizens of another state' does also extend that power to controversies to which the United States are a party. Now, it may be said, if the word 'party' comprehends both plaintiff and defendant, it follows, that the United States may be sued by any citizen, between whom and them there may be a controversy. This appears to me to be fair reasoning; but the same principles of candor which urge me to mention this objection, also urge me to suggest an important difference between the two cases. It is this: In all cases of actions against states or individual citizens, the national courts are supported in all their legal and constitutional proceedings and judgments, by the arm of the executive power of the United States; but in cases of actions against the United States, there is no power which the courts can call to their aid. From this distinction, important conclusions are deducible, and they place the case of a state, and the case of the United States, in very different points of view. I wish the state of society was so far

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improved, and the science of government advanced to such a degree of perfection, as that the whole nation could, in the peaceable course of law, be compelled to do justice, and be sued by individual citizens. Whether that is, or is not, now the case, ought not to be thus collaterally and incidentally decided: I leave it a question.' 2 Dall. 477, 1 L.Ed. 465.

Cohens v. Virginia, 6 Wheat. 380, 5 L.Ed. 257, is usually cited as the first case in which the Supreme Court recognized the general doctrine of immunity from suit. This, however, merely depends upon the general language of Chief Justice Marshall. And in fact the Chief Justice, in one of the greatest expositions of true political opinions ever written in any language, held that jurisdiction did attach. This case was, like Chisholm v. Georgia, a suit against a state, and did not in any wise involve the question of a suit against the United States. Almost 100 years after the decision in Chisholm v. Georgia, Mr. Justice Miller, in United States v. Lee, 106 U.S. 196, 1 Sup.Ct. 240, 27 L.Ed. 171, said:

'And while the exemption of the United States and of the several states from being subjected as defendants to ordinary actions in the courts has since that time been repeatedly asserted here, the principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine. United States v. Clarke, 8 Pet. 436; United States v. McLemore, 4 How. 286; Hill v. United States, 9 How. 386; Nations v. Johnson, 24 How. 195, 16 L.Ed. 628; The Siren, 7 Wall. 152, 19 L.Ed. 129; The Davis, 10 Wall. 15, 19 L.Ed. 875.'

And while, as Mr. Justice Miller said, no reasons for the principle had ever been given, a most persuasive argument had been made against it by Mr. Justice Wilson in the Chisholm Case. His language is as follows:

'For in the practice, and even, at length, in the science of politics, there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the state has claimed precedence of the people, so, in the same inverted course of things, the government has often claimed precedence of the state; and to this perversion in the second degree many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the state. This second degree of perversion is confined to the old world, and begins to diminish even there. But the first degree is still too prevalent, even in the several states of which our Union is composed. By a state I mean a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests: It has its rules; it has its rights; and it has its obligations. It may acquire property, distinct from that of its members. It may incur debts, to be discharged out of the public stock, not out of the private fortunes of individuals. It may be bound by contracts, and for damages arising from the breach of those contracts. In all our contemplations, however, concerning this feigned and artificial person, we should never forget that, in truth and nature, those who think and speak and act, are men.

'Is the foregoing description of a state a true description? It will not be questioned, but it is. Is there any part of this description, which intimates, in the remotest manner, that a state, any more than the men who compose it, ought not to do justice and fulfill engagements? It will not be pretended that there is. If justice is not done, if engagements are not fulfilled, is it, upon general principles of right, less proper, in the case of a great number,

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than in the case of an individual, to secure, by compulsion, that which will not be voluntarily performed? Less proper it surely cannot be. The only reason, I believe, why...

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