Copper SS Co. v. State of Michigan

• Decision Date: 18 February 1952
• Docket Number: No. 11344.,11344.
• Parties: COPPER S. S. CO. v. STATE OF MICHIGAN et al.
• Court: U.S. Court of Appeals — Sixth Circuit

194 F.2d 465 (1952)

COPPER S. S. CO. v. STATE OF MICHIGAN et al.

No. 11344.

United States Court of Appeals Sixth Circuit.

February 18, 1952.

Robert Branand, III, Cleveland, Ohio (Hill, Essery, Lewis & Andrews, Detroit, Mich., Johnson, Branand & Jaeger, Cleveland, Ohio, on the brief; Carl V. Essery, Detroit, Mich, Gilbert R. Johnson, Robert Branand, III, Cleveland, Ohio, of counsel), for appellant.

Sparkman D. Foster, Detroit, Mich. (Frank G. Millard, Atty. Gen., on the brief; Sparkman D. Foster, Detroit, Mich., of counsel), for appellee.

Before HICKS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The Copper Steamship Company appeals from an order of the District Court which dismissed its libel against the respondents for lack of jurisdiction.

The libel was filed by The Copper Steamship Company against the State of Michigan, The State Highway Department and The State Highway Commissioner. It sought damages in the amount of $20,147.93 by reason of a collision in the Straits of Mackinac on June 19, 1949, between the Robert L. Ireland, of which the libelant was the bareboat charterer, and the City of Petoskey owned by the State of Michigan and used as a ferry by the Highway Department of the State of Michigan. The libel charged negligence on the part of the respondents and those in charge of the navigation of the City of Petoskey. The respondents moved that the libel be dismissed on the ground that at the time and place stated in the libel they were engaged in the performance of a governmental function. The District Judge treated the motion as raising not only the defense of immunity from liability by reason of being engaged in the performance of a governmental function, but also immunity from suit. Both issues were properly before the Court. Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 467, 65 S.Ct. 347, 89 L. Ed. 389. He dismissed the action on the ground that the State of Michigan was immune from suit in the United States District Court.

It is settled law that a State can not be sued in the Federal court without its consent. Eleventh Amendment, United States Constitution; Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L. Ed. 842; Worcester County Co. v. Riley, 302 U.S. 292, 296, 58 S.Ct. 185, 82 L.Ed. 268; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058. Such immunity on the part of a State exists in a suit in personam in Admiralty brought by a private person without its consent. Ex parte State of New York, No. 1, 256 U.S. 490, 497-500, 41 S.Ct. 588, 65 L.Ed. 1057.

It is also equally well settled that a suit against the officers of a State, even though the State itself is not made a party defendant, may nevertheless be in effect a suit against the State and subject to the defense of sovereign immunity. The question is determined by the essential nature and effect of the proceeding as it appears from the entire record. Pennoyer v. McConnaughy, 140 U.S. 1, 9-10, 17, 11 S.Ct. 699, 35 L.Ed. 363. In the present case, the libel against the State of Michigan, the State Highway Department and the State Highway Commissioner is essentially of such a nature as to make it a suit against the State. Smith v. Reeves, 178 U.S. 436, 438 through 440, 20 S.Ct. 919, 44 L.Ed. 1140; Ex parte State of New York, No. 1, supra, 256 U.S. 490, 500-502, 41 S.Ct. 588, 65 L.Ed. 1057.

Appellant's contention on this appeal is that sovereign immunity from suit can be waived, Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780, and that the State of Michigan waived such immunity by enactment of the Court of Claims Act, Public Act No. 135, 1939, as amended by Public Act No. 237, 1943 and Public Act No. 87, 1945.

Section 8 of the Court of Claims Act confers jurisdiction upon the State Court of Claims to hear and determine all claims and demands liquidated and unliquidated, ex contractu and ex delicto, against the State and any of its departments, commissions, boards, institutions, arms or agencies, and, except as provided in Section 13 of the Act made such jurisdiction exclusive. Section 13 of the Act provides as follows: "No claimant shall be permitted to file claim in said court against the state nor any department, commission, board, institution, arm or agency thereof who has an adequate remedy upon his claim in the federal courts. * * *." Section 17 of the Act provides "Every claim against the state, cognizable by the court of claims, shall be forever barred unless the claim is filed with the clerk of the court or suit instituted thereon in federal court as authorized in section 13, within 3 years after the claim first accrues."

The Act clearly waives the sovereign immunity of the State with respect to actions filed in the Michigan Court of Claims. There is nothing in the Act expressly stating that the State of Michigan gave its consent to be sued in the federal courts. A State in giving its consent to be sued can limit it to certain courts and still claim its immunity from suit in other courts. Smith v. Reeves, supra, 178 U.S. 436, 441, 20 S.Ct. 919, 44 L.Ed. 1140. Such consent to be sued can be limited to the state courts and not be applicable to actions in the federal courts. Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S. Ct. 873, 88 L.Ed. 1121; Ford Motor Co. v. Dept. of Treasury, supra, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389.

Appellant claims that although the Act contains no express waiver of immunity from suit in the federal courts, there is an implied waiver through the use of the language in Sections 13 and 17. By Section 13 the Court of Claims is not available to a claimant "who has an adequate remedy upon his claim in the federal courts". Section 17 imposes a 3-year statute of limitations on claims against the State which are being prosecuted against the State either in the Court of Claims or "in federal court as authorized in section 13". It is argued that at the time of the passage of the Court of Claims Act there was no remedy against the State in the federal courts and that the references to suits in the federal courts in Sections 13 and 17 contemplated the filing of such suits against the State in cases where federal jurisdiction existed, as in suits between other litigants. Several authorities are cited as examples of such implied waiver. Saranac Land & Timber Co. v. Roberts, C.C.N.D.N. Y., 68 F. 521; Warren Bros. Co. v. Kibbe, D.C.Or., 43 F.2d 582; Curran v. State of Arkansas, 15 How. 304, 308-309, 14 L.Ed. 705. Although those cases and others hold that under certain conditions, materially different from those in the present case, implied consent to be sued may be found, it still leaves open for consideration whether such implied consent can be found in the language of Sections 13 and 17 of the Court of Claims Act. Waiver of immunity by implication is the exception to the general rule, and should be clearly established to be effective. Blackfeather v. United States, 190 U.S. 368, 376, 23 S.Ct. 772, 47 L.Ed. 1099.

The appellant contends that in considering the question of implied consent, the statute should be given a liberal construction. Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 65 S.Ct. 639, 89 L.Ed. 901; American Stevedores, Inc. v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011; United States v. Loyola, 9 Cir., 161 F.2d 126; McInnis v. United States, 9 Cir., 152 F.2d 387. Such cases, however deal with the proposition that when statutory authority to sue has been given, such authority is to be liberally construed with respect to the character of claims encompassed in the language of the statute. United States v. Shaw, 309 U.S. 495, 500-501, 60 S.Ct. 659, 84 L.Ed. 888. For example, where the statute, 46 U.S.C.A. § 781, authorizes suits against the United States "for damages...