CRISPIN COMPANY v. M/V KOREA, 65-H-157.

• Decision Date: 19 November 1965
• Docket Number: No. 65-H-157.,65-H-157.
• Citation: 251 F. Supp. 878
• Parties: The CRISPIN COMPANY, Libellant, v. M/V KOREA, her engines, etc., and Korea Shipping Corp., Respondent.
• Court: U.S. District Court — Southern District of Texas

251 F. Supp. 878

The CRISPIN COMPANY, Libellant, v. M/V KOREA, her engines, etc., and Korea Shipping Corp., Respondent.

No. 65-H-157.

United States District Court S. D. Texas, Houston Division.

November 19, 1965.

Robert A. Feltner, Houston, Tex., for libellant.

Royston, Rayzor & Cook and Gus Schill, Jr., Houston, Tex., for respondent.

CONNALLY, Chief Judge.

Libellant has filed in this Court a libel seeking to recover damages for cargo that was damaged en route from Kobi, Japan, to Houston, Texas. In addition to the claim for damages, libellant also seeks to recover $1,000.00 as reasonable attorney's fees for bringing the action. Respondents have filed an exception to that part of the libel seeking the recovery of attorney's fees, and they move that this part of the libel be stricken.

From the several memoranda filed in connection with this exception, it appears that it is libellant's position that Article 2226 of Vernon's Annotated Texas Civil Statutes is applicable to the instant cause. The applicable provisions of that statute are as follows:

"Any person having a valid claim against a person or corporation for * * * lost or damaged freight or express * * * the claim having been presented and denied * * * may also recover, in addition to his claim and costs, a reasonable amount as attorney's fees."

According to the libellant, the Texas statute should be applied because it is not repugnant to the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq., inasmuch as this act makes no provision for the payment of attorney's fees. As authority for this proposition, libellant refers the Court to the case of Missouri, K. & T. R. Co. of Texas v. Harris, 234 U.S. 412, 34 S.Ct. 790, 58 L.Ed. 1377 (1914). In that case the Supreme Court held that Texas had the power to provide for the recovery of attorney's fees in suits brought to recover for damaged goods in interstate commerce. While this case may be good authority for applying state statutes to cases brought under the "federal question" jurisdiction of the Federal Courts, I am of the opinion that the Texas statute in question is not applicable in cases brought under the admiralty and maritime jurisdiction of the Federal Courts.

That admiralty is a separate and distinct category of federal jurisdiction is clear from the case of Romero v. International Terminal Operating Company, 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), where the Supreme Court held that, absent diversity, a maritime claim does not give rise to "federal question" jurisdiction. Because admiralty is a distinct jurisdictional concept, it follows that state laws must be excluded from admiralty cases not only when such laws run contrary to Acts of Congress, but also when such statutes are contrary to admiralty decisions handed down by the Federal Courts. Cf. Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955).

It would seem to be the general rule in admiralty that, without specific authority therefor, attorney's fees are neither allowable nor taxable as costs. American Union Transport Co. v. Aquadilla Terminal Inc., 302 F.2d 394 (1st Cir. 1962). See also, The Baltimore, 8 Wall. 377, 75 U.S. 377, 19 L.Ed. 463 (1869); Gulf Stevedore Corporation v. S.S. Meltemi, 63-H-3 (S.D.Tex.1963); American Mannex...