Broussard v. The Jersbek
| Decision Date | 08 May 1956 |
| Citation | 140 F. Supp. 851 |
| Parties | Morris BROUSSARD, Libelant, v. THE JERSBEK, her boilers, engines, etc., and against Knohr & Burchard, N.F.L. through its agents, Moxey Savon-Lawric, Inc., Respondents. Partenreederei Jersbek, a partnership, Claimant. |
| Court | U.S. District Court — Southern District of New York |
Marvin Schwartz, New York City, for libelant.
Nelson, Healy, Baillie & Burke, New York City, Allan A. Baillie, New York City, of counsel, for claimant.
This is a libel in rem by a seaman against the S. S. Jersbek arising out of a collision between said ship and the Tug Tarpon, the vessel on which the libelant was employed. The collision is alleged to have occurred on or about May 22, 1954, in the Houston Ship Channel, Houston, Texas. The libelant commenced a suit against the Tug Tarpon in the Southern District of Texas, Houston Division, and that action is now pending. The libelant, by his proctor, also states that an attempt was made to bring an action in personam against the S. S. Jersbek in the District Court in Texas and that the jurisdiction of said court to entertain the action is contested. Consequently, the libelant filed an in rem action against the S. S. Jersbek in this district, which has since been bonded.
The libelant now moves to transfer this suit from this district to the United States District Court for the Southern District of Texas, Houston Division. The basis alleged for the application for transfer is for the convenience of witnesses and in the interest of justice.
The authority for the transfer of an action by a District Court to another district is found in Section 1404(a) of Title 28 U.S.C.A., which reads as follows:
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." (Emphasis added.)
Manifestly, the term "any civil action" includes a libel in the nature of an in rem proceeding commenced pursuant to admiralty law. Becker v. Lykes Bros. S. S. Co., Inc., D.C., 119 F.Supp. 408; Torres v. Walsh, 2 Cir., 1955, 221 F.2d 319, 321.
The basic question is whether this action "might have been brought" in the District Court in Texas so as to warrant a transfer of this suit to said court. In Cain v. Bowater's Newfoundland Pulp & Paper Mills, D.C.E.D.Pa. 1954, 127 F.Supp. 949, 950, the court concluded that the phrase " `might have been brought' " means where the action might have been brought at the time the court passes on the motion to transfer. The affidavit in opposition to this motion indicates that the S. S. Jersbek is not now in a Texas port and that the ship has not returned to a Texas port since the collision. Therefore, since the ship presently cannot be attached in Texas, an action cannot now be brought in a district court in that state. Furthermore, it does not appear that an action might have been brought in Texas at the time when this action was instituted. It is clear that an in rem action might be brought only in the district where the res is or will be located at the time of the commencement of the action. Thus, in Fettig Canning Co. v. Steckler, 7 Cir., 1951, 188 F.2d 715, certiorari denied 341 U.S. 951, 71 S.Ct. 1019, 95 L.Ed. 1373, it was held that an Indiana District Court was correct in refusing to entertain an in rem libel for condemnation of certain cases of food instituted by the Federal Government, where the suit had been transferred by a Missouri District Court and where the food had been found and attached in Missouri. Of course, if it can be established that the S. S. Jersbek can presently be found in the Southern District of Texas this court would then be justified in transferring this suit to the court in said district. See Internatio-Rotterdam, Inc., v. Thomsen, 4 Cir., 1955, 218 F.2d 514.
There is no square holding by the Court of Appeals for the Second Circuit with respect to the problem as presented here. However, in Torres v. Steamship Rosario, D.C.S.D.N.Y., 1954, 125 F.Supp. 496, a transfer of an in rem proceeding to Puerto Rico was allowed at the request of the ship owners where the court found that the ship could have been arrested as easily in Puerto Rico as in this district and, in addition, conditioned the granting of the motion upon the...
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...292; Fettig Canning Co. v. Steckler, 7 Cir., 188 F.2d 715, 717—718. Cf. Torres v. Walsh, 2 Cir., 221 F.2d 319, 321; Broussard v. The Jersbek, D.C., 140 F.Supp. 851, 852—853. 9 Notwithstanding the provision of Admiralty Rule 22 (28 U.S.C. p. 5226, 28 U.S.C.A.) that if the libel be in rem it ......
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