423 F.2d 104 (3rd Cir. 1970), 17784, Red Star Towing & Transp. Co. v. Department of Transp. of State of New Jersey

Docket Nº17784.
Citation423 F.2d 104
Party NameRED STAR TOWING AND TRANSPORTATION COMPANY, as Assignee of Bouchard Transportation Co., Inc., and of Koppers Company, Inc., Appellant, v. DEPARTMENT OF TRANSPORTATION OF the STATE OF NEW JERSEY (as successor to New Jersey State Highway Department), David J. Goldberg, Commissioner of Transportation, and John Doe (name 'John Doe' being fictitious, pa
Case DateJanuary 23, 1970
CourtUnited States Courts of Appeals, Court of Appeals for the Third Circuit

Page 104

423 F.2d 104 (3rd Cir. 1970)

RED STAR TOWING AND TRANSPORTATION COMPANY, as Assignee of Bouchard Transportation Co., Inc., and of Koppers Company, Inc., Appellant,

v.

DEPARTMENT OF TRANSPORTATION OF the STATE OF NEW JERSEY (as successor to New Jersey State Highway Department), David J. Goldberg, Commissioner of Transportation, and John Doe (name 'John Doe' being fictitious, party intended is bridge tender and operator), Bridge Tender and Operator.

No. 17784.

United States Court of Appeals, Third Circuit.

January 23, 1970

Argued Sept. 25, 1969.

Stephen J. Buckley, Foley & Martin, New York City (Christopher E. Heckman and Robert J. Roventini, New York City, Edward V. Ryan, Newark, N.J., on the brief), for appellant.

Stephen Skillman, Asst. Atty. Gen., Dept. of Law and Public Safety, Trenton, N.J. (Arthur J. Sills, Atty. Gen. of New Jersey, Trenton, N.J., on the brief), for appellees.

Before HASTIE, Chief Judge, and McLAUGHLIN and VAN DUSEN, Circuit judges.

OPINION

HASTIE, Chief Judge.

Red Star Towing and Transportation Company, a West Virginia Corporation, brought suit in admiralty against the Department of Transportation of the State of New Jersey and David J. Goldberg, in his official capacity as Commissioner of Transportation, to recover for losses resulting from the collision of a barge with the fender system of the Witt-Penn Bridge which is owned by the State and spans the Hackensack River. Plaintiff alleges that the collision was due to defendants' negligence in maintaining a defective fender system and in delaying the opening of the bridge. The district court dismissed the complaint on the

Page 105

ground that the doctrine of sovereign immunity deprived the court of jurisdiction over the defendants. This is an appeal from that judgment.

An unconsenting State is immune from suits brought by individuals under the admiralty jurisdiction of the federal courts. 1 Recognizing this, the plaintiff does not deny that the New Jersey Department of Transportation and its Commissioner in his official capacity are normally entitled to immunity from suit. Rather, its theory of liability is that the State of New Jersey has waived its immunity by constructing and operating a bridge in interstate commerce.

The plaintiff argues first, and correctly, that Congress in the exercise of a valid regulatory purpose may condition a State's entry into commerce on the waiver of immunity from suit. Parden v. Terminal Ry. of Alabama State Docks Department, 1964, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233; Petty v. Tennessee-Missouri Bridge Commission, 1959, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804. But the critical question is whether Congress has so conditioned the kind of state activity that caused the harm in suit.

The Parden case involved a suit against a State-owned railroad to recover damages under the Federal Employers' Liability Act. That statute specifically creates a federal cause of action against 'every' common carrier engaged in interstate commerce for the benefit of its employees in such activity. 2 The Supreme Court held that Congress intended to include State-owned common carriers within the coverage of the Act, and that Alabama by entering into business as a common carrier by rail 'necessarily consented to such suit as was authorized by that Act.' 377 U.S. at 192, 84 S.Ct. at 1213.

In the present case, by constructing and operating the Witt-Penn Bridge over a navigable waterway, the State of New Jersey became subject to Acts of Congress regulating navigation, among them the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401, 403 (1964), which requires a federal permit for bridge building and prohibits unauthorized obstruction of navigation. But Congress in exercising this regulatory authority over navigation did not, as it had in...

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39 practice notes
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • September 17, 1979
    ...Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (C.A. 2, 1972); Red Star Towing & Transportation Co. v. Department of Transportation, 423 F.2d 104, 105 (C.A. 3, 1970); Hughes v. Ranger Fuel Corp., 467 F.2d 6, 8 n. 1 (C.A. 4, 1972); 52 Guthrie v. Alabama By Products, 456 F.2d 1294 (C.A. 5,......
  • 299 S.E.2d 618 (N.C. 1983), 97PA82, Guthrie v. North Carolina State Ports Authority
    • United States
    • North Carolina Supreme Court of North Carolina
    • February 8, 1983
    ...Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Red Star Towing and Transportation Co. v. Dept. of Transportation of New Jersey, 423 F.2d 104 (3rd Cir.1970). Based on the foregoing, we hold that the Superior Court had no jurisdiction over plaintiffs' claims. When statutory provisio......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • June 26, 1978
    ...Georgia, 482 F.2d 361, 366-367 (5th Cir. 1973); Red Star Towing & Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104, 106 (3d Cir. 1970). The rule in this Circuit is somewhat unclear. In Alameda Conservation Association v. California, 437 F.2d 1087, 1094-1095......
  • 514 F.Supp. 754 (S.D.W.Va. 1981), Civ. A. 75-0026, Gunnells v. United States
    • United States
    • Federal Cases United States District Courts 4th Circuit Southern District of West Virginia
    • March 31, 1981
    ...& Western Ry. Co., 349 F.Supp. 121, 122 (W.D.Va.1972); Red Star Towing & Transportation Co. v. Department of Transportation, 423 F.2d 104, 105 (3d Cir. 1970); Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140 (N.D.Ala.1971), aff'd, 456 F.2d 1294 (5th Cir. 1972), cert. denied, 410......
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39 cases
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • September 17, 1979
    ...Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (C.A. 2, 1972); Red Star Towing & Transportation Co. v. Department of Transportation, 423 F.2d 104, 105 (C.A. 3, 1970); Hughes v. Ranger Fuel Corp., 467 F.2d 6, 8 n. 1 (C.A. 4, 1972); 52 Guthrie v. Alabama By Products, 456 F.2d 1294 (C.A. 5,......
  • 299 S.E.2d 618 (N.C. 1983), 97PA82, Guthrie v. North Carolina State Ports Authority
    • United States
    • North Carolina Supreme Court of North Carolina
    • February 8, 1983
    ...Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Red Star Towing and Transportation Co. v. Dept. of Transportation of New Jersey, 423 F.2d 104 (3rd Cir.1970). Based on the foregoing, we hold that the Superior Court had no jurisdiction over plaintiffs' claims. When statutory provisio......
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • June 26, 1978
    ...Georgia, 482 F.2d 361, 366-367 (5th Cir. 1973); Red Star Towing & Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104, 106 (3d Cir. 1970). The rule in this Circuit is somewhat unclear. In Alameda Conservation Association v. California, 437 F.2d 1087, 1094-1095......
  • 514 F.Supp. 754 (S.D.W.Va. 1981), Civ. A. 75-0026, Gunnells v. United States
    • United States
    • Federal Cases United States District Courts 4th Circuit Southern District of West Virginia
    • March 31, 1981
    ...& Western Ry. Co., 349 F.Supp. 121, 122 (W.D.Va.1972); Red Star Towing & Transportation Co. v. Department of Transportation, 423 F.2d 104, 105 (3d Cir. 1970); Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140 (N.D.Ala.1971), aff'd, 456 F.2d 1294 (5th Cir. 1972), cert. denied, 410......
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