Alaska Barge and Transport, Inc. v. United States

• Decision Date: 17 March 1967
• Docket Number: No. 206-65.,206-65.
• Citation: 373 F.2d 967,179 Ct. Cl. 216
• Parties: ALASKA BARGE AND TRANSPORT, INC. v. The UNITED STATES.
• Court: U.S. Claims Court

179 Ct. Cl. 216, 373 F.2d 967 (1967)

ALASKA BARGE AND TRANSPORT, INC. v. The UNITED STATES.

No. 206-65.

United States Court of Claims.

March 17, 1967.

COPYRIGHT MATERIAL OMITTED

Ernest H. Land, Washington, D. C., for plaintiff. Alan F. Wohlstetter, Washington, D. C., attorney of record.

Thomas F. McGovern, Washington, D. C., with whom was Acting Asst. Atty. Gen. J. William Doolittle, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

COWEN, Chief Judge.

In this case, the court is called upon to resolve a jurisdictional issue involving three sets of related variables: two separate supply contracts, both executed between the plaintiff and the Government; two courts, only one of which may retain jurisdiction over plaintiff's entire claim; and two bodies of law, one relating to the general law of Government contracts, and the other relating to the principles of admiralty.

On February 2, 1961, Alaska Barge and Transport, Inc., a carrier by land and water, was awarded three Army contracts for the transportation of general and bulk cargo from ports on the West Coast of the United States to remote ports and military stations in Alaska, the Pacific and Arctic Oceans, and the Bering Sea. Contained in the invitation for bids were two rate levels, the application of which was dependent upon the size of the cargoes delivered.

Claiming that it had been overcharged on several shipments because of plaintiff's application of an incorrect rate, the Government withheld $127,807.32 from sums admittedly due plaintiff under a similar supply contract entered into in 1963 for the delivery of items to Project MONA LISA military installations in Alaska. On June 16, 1965, the Government filed a libel for declaratory judgment in the United States District Court for the Northern District of California, praying for a judicial declaration that the plaintiff had made erroneous billings under the rate systems governing the 1961 shipments.

Shortly thereafter and before answering in the admiralty action, Alaska Barge filed a petition in this court for recovery of the amount deducted as overcharges on the 1961 shipments. On August 20, 1965, the Government moved for an order transferring and consolidating plaintiff's claim with the libel action in California or, in the alternative, for an order dismissing the petition for lack of jurisdiction. In support of its motion, the United States asserts that the plaintiff's cause of action is based upon a maritime contract of affreightment and is therefore within the exclusive jurisdiction of the district courts under the Suits in Admiralty Act of March 9, 1920, 41 Stat. 525, as amended, 46 U.S.C. §§ 741-752. Alaska Barge has countered with the petition that its claim stems from a contract part maritime and part non-maritime and is therefore not cognizable in admiralty.

Both Alaska Barge and the Government have consistently maintained that the 1963 supply contract is determinative of the jurisdictional question. That position was urged in their original briefs, as well as in supplemental briefs filed in response to a court order of October 28, 1966, which specifically directed the parties to describe the nature of the 1961 shipments. Neither the plaintiff nor the defendant, however, has advanced persuasive authority for their contention.

We need only point out that the underlying dispute relates to the parties' conflicting interpretations of the 1961 rate provisions. There is no controversy concerning the 1963 shipments, and it is conceded that the Government's offset was made against amounts admittedly owing to the plaintiff as a result of deliveries in that year. If our jurisdiction is to attach, therefore, it must be founded on the nature of the 1961 contracts.

This has always been the rule in our common carrier cases and its extension to the present controversy is clearly warranted. Boston & Maine R. R. Co. v. United States, 169 F.Supp. 957, 144 Ct. Cl. 803 (1959); Atlantic Coast Line R. R. Co. v. United States, 112 F.Supp. 594, 125 Ct.Cl. 235 (1953). To resolve any further doubt, we direct the parties' attention to the explicit language of Rule I(2) (F) in Appendix B of our Rules, and the analogy which may be drawn therefrom:¹

The word "dispute" * * * means the shipment or shipments with respect to which the General Accounting Office or other agency of the Government determined that the carrier\'s charges had been overpaid * * * rather than subsequent shipments which are not in dispute except for the fact that the overpayments determined as to the shipments in dispute have been deducted from the amount of the carrier\'s bills covering such subsequent shipments.

In our system of Federal courts, jurisdiction over maritime matters is vested exclusively in the district courts, and the Court of Claims is precluded from entertaining such actions, even though they might otherwise be cognizable under the terms of the Tucker Act, 28 U.S.C. § 1491, 1964 ed.; Brady v. Roosevelt Steamship Co., 317 U.S. 575, 579, 63 S.Ct. 425, 87 L.Ed. 471 (1943); Isthmian Steamship Co. v. United States, 191 F.Supp. 338, 344 (S.D.N.Y.1961), aff'd, 302 F.2d 69 (2d Cir. 1962); Field v. United States, 113 F.Supp. 190, 191, 125 Ct.Cl. 559, 561 (1953), cert. denied, 346 U.S. 922, 74 S.Ct. 308, 98 L.Ed. 416 (1954). Whenever presented with a threshold question as to the propriety of our adjudicating a claim having maritime elements, it is our responsibility to view the facts as would a court of admiralty. If admiralty jurisdiction is found to exist, then we must transfer the case to its proper forum. Act of September 13, 1960, 74 Stat. 912, 28 U.S.C. § 1506. It is only where a district court would not assume jurisdiction under the Suits in Admiralty Act that we may justifiably permit the claim to be litigated here.²

For jurisdictional purposes, admiralty law has long viewed the nature and subject matter of a contract as controlling. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476, 42 S.Ct. 157, 66 L.Ed. 321 (1922); Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1, 26, 20 L.Ed. 90 (1870). And to serve as the basis of a suit in admiralty, the contract must be "purely" or "wholly" maritime. The Eclipse, 135 U.S. 599, 608, 10 S.Ct. 873, 34 L.Ed. 269 (1890); The Ada, 250 F. 194, 196 (2d Cir. 1918).

The latter rule, however, has undergone two judicial refinements. The first holds that if the non-maritime feature is merely incidental, an admiralty court will not be ousted of its jurisdiction over the entire claim. United Fruit Co. v. U. S. Shipping Bd. Merchant Fleet Corp., 42 F.2d 222, 224 (Mass.1930); Gronvold v. Suryan, 12 F.Supp. 429, 430 (W.D.Wash.1935). Included in this category would be the unloading of cargo onto a pier. Florez, et al. v. The Scotia, 35 F. 916, 917 (S.D.N.Y.1888). The second modification extends to those cases in which the non-maritime feature of the contract is separable from the maritime elements, so that it may be severed and litigated independently without prejudice to any party. Luckenbach Steamship Co. v. Coast Mfg. & Supply Co., 185 F.Supp. 910, 916 (E.D.N.Y. 1960); D. C. Andrews & Co. v. United States, 124 F.Supp. 362, 129 Ct.Cl. 574 (1954).

Applying these principles to the 1961 contracts between the United States and Alaska Barge, we hold that an admiralty court would neither assume jurisdiction of plaintiff's entire claim nor sever the non-maritime features of the contracts for separate adjudication. Plaintiff, therefore, is properly before this court under the provisions of the Tucker Act, 28 U.S.C. § 1491, 1964 ed.

Plaintiff's contracts contemplated ocean carriage from ports in the United States to ports in Alaska, the Pacific...