Williamson Towing Co., Inc. v. State of Ill., 75-1711

• Decision Date: 15 April 1976
• Docket Number: No. 75-1711,75-1711
• Parties: In the Matter of WILLIAMSON TOWING CO., INC., as owner and operator of the M/V GREENVILLE, praying for exoneration from or limitation of liability, Plaintiff-Appellant, v. STATE OF ILLINOIS, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 758

534 F.2d 758

In the Matter of WILLIAMSON TOWING CO., INC., as owner and operator of the M/V GREENVILLE, praying for exoneration from or limitation of liability, Plaintiff-Appellant, v. STATE OF ILLINOIS, Third Party Defendant-Appellee.

No. 75-1711.

United States Court of Appeals Seventh Circuit.

Argued Jan. 9, 1976.

Decided April 15, 1976.

Joel J. Henderson, Clayton J. Swank, Greenville, Miss., John G. Holland, Cairo, Ill., for plaintiff-appellant.

William J. Scott, Atty. Gen., Paul V. Esposito, Asst. Atty. Gen., Chicago, Ill., for third party defendant-appellee.

Before TONE and BAUER, Circuit Judges, and HOFFMAN, Senior District Judge. ^*

TONE, Circuit Judge.

The issue before us in this action against the State of Illinois for negligent operation of a bridge across the Mississippi River is whether the state has surrendered its immunity under the Eleventh Amendment. The District Court held that it has not, and we affirm.

One night in January, 1973, a flotilla of barges towed by a Williamson Towing Company tug collided with a pier of the Upper Cairo Highway Bridge, which spans the Mississippi River between Illinois and Missouri and is owned and maintained by those two states. Williamson filed an action in admiralty in the United States District Court for the Northern District of Mississippi pursuant to the Limitation of Vessel Owner's Liability Act, 46 U.S.C. § 181 et seq., seeking exoneration from, or limitation of, liability for all claims arising out of the collision. Shortly thereafter, the Alter Company, owner of the barges and bailee of the cargo, filed a claim against Williamson to recover for damage suffered by the barges and the cargo. On Williamson's motion, the case was transferred under 28 U.S.C. § 1404(a) to the Eastern District of Illinois so the State of Illinois could be impleaded. Williamson then filed a third-party complaint against the state, alleging negligence in failing to have the bridge's navigation lights turned on. From the District Court's dismissal of the third-party complaint on the ground of lack of jurisdiction under the Eleventh Amendment, Williamson took this appeal.

The Eleventh Amendment provides as follows:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

The Supreme Court has construed the amendment to bar a suit in admiralty, such as the present one, brought against a state in federal court. Ex parte State of New York, 256 U.S. 490, 497-498, 41 S.Ct. 588 589, 65 L.Ed. 1057, 1060 (1921); Ex parte Madrazzo, 32 U.S. (7 Pet.) 627, 632, 8 L.Ed. 808, 810 (1833). The State of Illinois is therefore immune from suits such as this unless it has waived its immunity. ¹

The Illinois Constitution of 1970 provides as follows:

"Except as the General Assembly may provide by law, sovereign immunity in this State is abolished." Art. XIII, § 4.

The General Assembly has, however, restored the state's immunity, except to the extent suit is permitted by the Court of Claims Act:

"Except as provided in 'AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named', filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court." Ill.Rev.Stat. ch. 127, § 801 (1973).

The Court of Claims Act, in turn, permits suits founded on various categories of claims, including tort, to be brought against the state in the Illinois Court of Claims. Ill.Rev.Stat. ch. 37, § 439.1 et seq. (1973).

Williamson argues that sovereign immunity, having been abolished by the state constitution, is not restored by the statute, and that the latter merely provides a procedure for asserting claims against the state. It further argues that the Court of Claims Act is unconstitutional because it requires admiralty claims against the state to be litigated in a state court, thereby purporting to limit the federal court's admiralty jurisdiction.

The net effect of the state constitutional provision and the statute is not, however, to abolish all sovereign immunity. The Illinois General Assembly, exercising the authority granted to it by article XIII, section 4, of the state constitution, reasserted sovereign immunity for the state, except to the extent that suit was permitted by the Court of Claims Act. Williams v. Medical Center Commission, 60 Ill.2d 389, 394-395, 328 N.E.2d 1, 4 (1975). Thus it is not the Illinois Court of Claims Act that precludes Williamson from asserting its admiralty claim against the state but the doctrine of sovereign immunity embodied in the Eleventh Amendment.

We turn now to Williamson's more substantial argument, that the state has waived its immunity by acquiring and operating the bridge. The pertinent history begins with an act relating to another bridge, which was to cross the Ohio River at Cairo, Illinois. By this act, adopted in 1934, Congress created the Cairo Bridge Commission, giving it authority to construct and operate a bridge across the Ohio, Act of April 13, 1934, ch. 117, 48 Stat. 577, and providing, inter alia, that the Commission "may contract and be contracted with, sue and be sued, implead and be impleaded, complain and defend in all courts of law and equity . . .." Id. § 8. In 1938 Congress authorized the Cairo Bridge Commission to purchase and maintain the bridge involved in this case, and to convey respective portions of the bridge to the States of Illinois and Missouri after suitable financial arrangements had been made. Act of June 14, 1938, ch. 359, 52 Stat. 679. The Commission acquired the Mississippi River bridge and operated it as a toll bridge until 1954, when by warranty deed, pursuant to resolution, it conveyed the part of the bridge adjacent to Illinois to the State of Illinois. The Williamson tow struck a pier on the Illinois part of the bridge.

Williamson contends that the state, as successor and assignee of the Commission, succeeded to its powers and responsibilities, at least with respect to suing and being sued; and that the state's succession, in view of the quoted language in section 8 of the 1934 act, effected a waiver of Eleventh Amendment immunity. That section, however refers only to the Commission and not to its successors and assigns, an omission which undercuts Williamson's arguments since there are references in various other sections of the two acts to the "Commission and its successors and assigns." A careful reading of the two acts has persuaded us that Congress did not intend to make the sue-and-be-sued provision applicable to the state.

Williamson's final theory of liability is that the state has waived its immunity by acquiring and operating a bridge in interstate commerce. By so doing, the argument goes, the state became subject to the provisions of the Bridge Act of 1906, 33 U.S.C. § 491 et seq., prohibiting unreasonable obstructions to navigation, requiring lights and other signals, and providing penalties for violations, id. §§ 494, 495. That act, says Williamson, should be construed to create a private right of action against the state. We assume for purposes of this opinion that the 1906 act is applicable ² and turn to the question of whether the act creates a private right of action against the state.

There is no doubt that Congress, if it had chosen to do so, could have conditioned the state's entry into commerce on waiver of immunity from suit. Parden v. Terminal Railway of the Alabama State Docks Department, 377 U.S. 184, 192, 84 S.Ct. 1207, 1212, 12 L.Ed.2d 233, 239 (1964); Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 281-282, 79 S.Ct. 785, 789, 3 L.Ed.2d 804, 809 (1959). Petty found an express waiver of immunity in the language of an interstate compact, read in combination with a condition attached by Congress when it approved the compact. Parden held that the express provision for suits against railroads contained in the Federal Employers' Liability Act, 45 U.S.C. §§ 51, 56, was intended by Congress to apply to a state-owned railroad. In Employees of the Department of Public Health and Welfare of Missouri v. Department of Public Health and Welfare of Missouri, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), however, the Court refused to extend Parden to make the state subject to suit under the Fair Labor Standards Act, 29 U.S.C. § 216(b), finding that Congress had not expressly done so and "would not be presumed to take such action silently." ³ 411 U.S. at 284-285, 93 S.Ct. at 1618, 36 L.Ed.2d at 256.

The courts of appeals that have considered the applicability of Parden and Petty to situations similar to the one before us are divided. The Fourth Circuit, in Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001 (4th Cir. 1968), held that the state waived its immunity when a state agency constructed a bridge and tunnel spanning Chesapeake Bay pursuant to permission granted by federal authorities under the Rivers and Harbors Appropriations Act, 33 U.S.C. § 401 et seq. The Third Circuit reached a contrary result in Red Star Towing & Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104 (3rd Cir. 1970), observing that since the Rivers and Harbors Appropriations Act "created no new remedy other than penal sanctions, . . . it is illogical to imply that Congress intended that a violation by the State should give rise to a civil claim for damages." Id. at 196. Moreover, the court added, it would be arbitrary to infer a waiver by consent "to civil liability that could not be anticipated by reading the relevant federal statute." Id. The court recognized that its decision was in conflict with Chesapeake Bay Bridge. Finally, the Fifth Circuit also declined to follow Chesapeake Bay Bridge in a case in which the plaintiff sought, as Williamson does here, to rely on the state's...