534 F.2d 758 (7th Cir. 1976), 75-1711, Williamson Towing Co., Inc. v. State of Ill.

Docket Nº75-1711.
Citation534 F.2d 758
Party NameIn 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.
Case DateApril 15, 1976
CourtUnited States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 758

534 F.2d 758 (7th Cir. 1976)

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

April 15, 1976

Argued Jan. 9, 1976.

Page 759

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,

Page 760

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,

Page 761

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...

To continue reading

Request your trial
19 practice notes
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 26 Junio 1978
    ...action, the Third, Fifth, and Seventh Circuits have reached contrary results. Williamson Towing Co., Inc. v. State of Illinois, supra, 534 F.2d at 762; Intracoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361, 366-367 (5th Cir. 1973); Red Star Towing & Transportation C......
  • 708 F.2d 1235 (7th Cir. 1983), 82-1781, Ranyard v. Board of Regents
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (7th Circuit)
    • 23 Mayo 1983
    ...immunity. McDonald v. Illinois, 557 F.2d 596, 600-01 (7th Cir.), cert. denied, 434 U.S. 966 (1977); Williamson Towing Co. v. Illinois, 534 F.2d 758, 759-60 (7th Cir.1976). Accordingly, since Illinois has not consented to be sued in the federal court and since Ranyard's breach of contract cl......
  • 581 F.Supp. 1287 (E.D.Mo. 1984), 83-808A 1, Complaint of Valley Towing Service
    • United States
    • Federal Cases United States District Courts 8th Circuit United States District Court (Eastern District of Missouri)
    • 30 Marzo 1984
    ...Co. v. United States, 580 F.2d 302 (8th Cir.1978); Riggle v. California, 577 F.2d 579 (9th Cir.1978); Williamson Towing Co. v. Illinois, 534 F.2d 758 (7th Cir.1976); Intracoastal Transportation Inc. v. Decatur County, Georgia, 482 F.2d 361 (5th Cir.1973); Red Star Towing & Transportatio......
  • 557 F.Supp. 464 (D.Nev. 1983), CV-R-82-357, United States Ecology, Inc. v. State, Dept. of Human Resources
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. District of Nevada
    • 22 Febrero 1983
    ...v. Missouri Public Health Dept., 411 U.S. 279, 284, 93 S.Ct. 1614, 1617-18, 36 L.Ed.2d 251 (1973); Williamson Towing Co. v. State of Ill., 534 F.2d 758, n. 3 (7th Nevada's control of radiation hazards within the State is a nonprofit sovereign function. Although it involves a sphere of autho......
  • Request a trial to view additional results
19 cases
  • 577 F.2d 579 (9th Cir. 1978), 75-2865, Riggle v. State of Cal.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 26 Junio 1978
    ...action, the Third, Fifth, and Seventh Circuits have reached contrary results. Williamson Towing Co., Inc. v. State of Illinois, supra, 534 F.2d at 762; Intracoastal Transportation, Inc. v. Decatur County, Georgia, 482 F.2d 361, 366-367 (5th Cir. 1973); Red Star Towing & Transportation C......
  • 708 F.2d 1235 (7th Cir. 1983), 82-1781, Ranyard v. Board of Regents
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (7th Circuit)
    • 23 Mayo 1983
    ...immunity. McDonald v. Illinois, 557 F.2d 596, 600-01 (7th Cir.), cert. denied, 434 U.S. 966 (1977); Williamson Towing Co. v. Illinois, 534 F.2d 758, 759-60 (7th Cir.1976). Accordingly, since Illinois has not consented to be sued in the federal court and since Ranyard's breach of contract cl......
  • 581 F.Supp. 1287 (E.D.Mo. 1984), 83-808A 1, Complaint of Valley Towing Service
    • United States
    • Federal Cases United States District Courts 8th Circuit United States District Court (Eastern District of Missouri)
    • 30 Marzo 1984
    ...Co. v. United States, 580 F.2d 302 (8th Cir.1978); Riggle v. California, 577 F.2d 579 (9th Cir.1978); Williamson Towing Co. v. Illinois, 534 F.2d 758 (7th Cir.1976); Intracoastal Transportation Inc. v. Decatur County, Georgia, 482 F.2d 361 (5th Cir.1973); Red Star Towing & Transportatio......
  • 557 F.Supp. 464 (D.Nev. 1983), CV-R-82-357, United States Ecology, Inc. v. State, Dept. of Human Resources
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. District of Nevada
    • 22 Febrero 1983
    ...v. Missouri Public Health Dept., 411 U.S. 279, 284, 93 S.Ct. 1614, 1617-18, 36 L.Ed.2d 251 (1973); Williamson Towing Co. v. State of Ill., 534 F.2d 758, n. 3 (7th Nevada's control of radiation hazards within the State is a nonprofit sovereign function. Although it involves a sphere of autho......
  • Request a trial to view additional results