Rosenberg Bros. & Co. v. United States Shipping Board Emergency Fleet Corp.
Citation | 295 F. 372 |
Decision Date | 26 December 1923 |
Docket Number | 17692,17693. |
Court | U.S. District Court — Northern District of California |
Parties | ROSENBERG BROS. & CO. v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION. CALIFORNIA WINE ASS'N v. SAME. |
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.
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, 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:
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:
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:
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, 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:
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