McLain v. Lance

• Decision Date: 15 January 1945
• Docket Number: No. 11118.,11118.
• Citation: 146 F.2d 341
• Parties: McLAIN et al. v. LANCE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

146 F.2d 341 (1944)

McLAIN et al. v. LANCE et al.

No. 11118.

Circuit Court of Appeals, Fifth Circuit.

December 20, 1944.

Rehearing Denied January 15, 1945.

Douglas W. McGregor and Charles Murphy, both of Houston, Tex., for appellants.

Russel H. Markwell and Charles J. Stubbs, both of Galveston, Tex., for appellees.

Before HUTCHESON, WALLER, and LEE, Circuit Judges.

WALLER, Circuit Judge.

A group of Texas residents, known as the "Houston Pilots," filed a libel in personam, seeking a declaratory judgment against another group of residents known as the "Galveston Pilots." Libelees moved to dismiss on the grounds: (a) That courts of admiralty are not authorized to render declaratory judgments; (b) that the controversy here is not maritime and hence a court of admiralty has no jurisdiction to determine same; (c) that libelants and respondents are all duly commissioned officers of the United States Coast Guard and the proceeding is one to delineate, restrict, and control the authority of the Coast Guard over its commissioned officers, and that such is beyond the authority of a court of admiralty; (d) that a proceeding between the same parties, over the same subject matter, and for the adjudication of the same controversy was filed in, and the law of the case settled by, the state courts of Texas prior to the institution of the libel in the present case in which the decision was adverse to the contentions of the libelants. See Houston Pilots v. Goodwin et al., Tex.Civ.App., 178 S.W.2d 308, writ of error denied and libelants' (appellants') motion for leave to file a petition for mandamus denied by Supreme Court of Texas, all prior to the bringing of the present suit.

Sometime after the present war began the Galveston and Houston Pilots were taken into the Coast Guard and commissioned as officers; however, they were not placed on a salary but continued to be remunerated entirely from pilotage fees as provided by state law. The authority of the pilots for the Galveston Harbor and of port pilots generally is found in Articles 8270 et seq., and the authority of the Houston Pilots or of pilots in navigation districts such as the Harris County Houston Ship Channel Navigation District is found in Articles 8248 et seq.,¹ of the Revised Civil Statutes of Texas, insofar as such statutes affect registered vessels.

As a precaution against the menace of submarines, merchant vessels not destined for Houston or Galveston were required by the Navy to anchor in waters of Galveston Bay and particularly at or near a portion thereof known as "Bolivar Roads," while awaiting a safe and appropriate time to proceed, either alone or in convoy. Thus many vessels did not enter either the Port of Houston or the Port of Galveston for the purposes of trade and commerce, but only took refuge in the waters of Galveston Bay. The Houston Pilots, both here and in the state suit, have insisted that they have the right to pilot these "refuge vessels" into and out of Bolivar Roads. The Galveston Pilots, both here and in the state suit, have insisted that under Texas statutes Bolivar Roads is within the pilotage area of the Galveston Pilots, within which they and they alone are entitled to pilot vessels coming into or out of Galveston Harbor for Bolivar Roads and to collect the fees therefor, and that the Houston Pilots are entitled to pilotage fees only for vessels entering the waters within the Harris County-Houston Ship Channel Navigation District.

The controversy is one solely between groups of rival pilots and is wholly between citizens of Texas and ultimately involves a construction of Texas statutes prescribing the authority of pilots as instrumentalities of the state government in respect to pilotage in waters in and around Galveston Bay and the Houston Ship Channel. It is not cognizable in federal court under any jurisdictional ground set out in Secs. 41 or 371, of 28 U.S.C.A., unless a case of admiralty jurisdiction is shown under the admiralty clauses of subsections (3) of Sections 41 or 371. If the controversy between these rival pilots is not one which can be maintained in admiralty, then the "actual controversy" required² in a proceeding for a declaratory judgment would be absent, even if it be conceded, or ascertained, that a court of admiralty has power to render declaratory judgments.

That this controversy between rival pilots, which involves no vessel, no cargo, no contract, no tort, no owner, claimant, master, or seaman, and calls for no declaration of the law of the sea but for a construction of statutes of Texas relating to the jurisdiction of Gulf, and Navigation district, pilots, is cognizable in admiralty is gravely doubted. Definitely it is not one over which admiralty would have exclusive jurisdiction. Leon v. Galceran, 11 Wall. 185, 78 U.S. 185, 20 L.Ed. 74, 1 Am.Jr. 556, Sec. 18.

Likewise there is much uncertainty as to whether or not a court of admiralty is authorized to render a declaratory judgment.³

The lower Court was of the opinion that since Sec. 81(a) (1) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c provides that the Rules do not apply to proceedings in admiralty while Sec. 57 of the Rules provides that the procedure for obtaining a declaratory judgment shall be in accordance with those Rules, the inference is inescapable that the Supreme Court, in the approval of the Rules, had thus expressed the thought that courts of admiralty were not empowered to render declaratory judgments. It was on this reasoning that the lower Court dismissed the libel.

It is not necessary, however, that we decide either of those questions, for even though the controversy were one cognizable in admiralty, and even though courts of admiralty were authorized to render declaratory judgments in such a controversy, the exercise of that power rested in the sound discretion of the lower Court⁴ and it could have and doubtless should have, refused to render a declaratory judgment in a case where the state courts of Texas, having concurrent — and mayhap exclusive — jurisdiction of the same subject matter and of the same parties, had theretofore declared the rights of the parties to pilotage over the waters involved.

Moreover, the rights of the contending parties stem from local statutes of the State of Texas, rather than from maritime contracts of vessels to pay for pilotage services, or because, forsooth, the Navy or Coast Guard might, or might not, in the future make some order or regulation that would affect the parties. Courts do not concern themselves to decide abstract questions.⁵

In Olsen v. Smith, 195 U.S. 332, 25 S.Ct. 52, 53, 49 L.Ed. 224, the Court, in applying an Act of the Legislature of the State of Texas relative to pilotage in Galveston Harbor, said:

"The first contention in effect is that the state was without power to legislate concerning pilotage, because any enactment on that subject is necessarily a regulation of commerce within the provision of the Constitution of the United States. The unsoundness of this contention is demonstrated by the previous decisions of this court, since it has long since been settled that even although state laws concerning pilotage are regulations of commerce `they fall within that class of powers which may be exercised by the states until Congress has seen fit to act upon the subject.' Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996; Ex parte McNiel, 13 Wall. 236, 20 L.Ed. 624; Wilson v. McNamee, 102 U.S. 572, 26 L.Ed. 234."

Sec. 211, 46 U.S.C.A., provides:

"Until further provision is made by Congress, all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively enact for the purpose."

It will be observed that Congress has made no provision in Sec. 191 of 50 U.S.C. A., for the Navy or Coast Guard to take away from the states the right to regulate the fees of pilots in ports of the United States, nor did the Navy or Coast Guard undertake to do so in this instance. Furthermore, there is no allegation that the Secretary of the Treasury ever promulgated the regulation required to put that section into operation.

Any contention that the exclusive jurisdiction to settle the controversy here is, by the Constitution and laws, vested in a court of admiralty is untenable. Leon v. Galceran, supra. Subdivisions (3) of Secs. 41 and 371 of 28 U.S.C.A., each reserve to suitors any common law remedy which the common law was competent to give. A suit by one pilot against another pilot for money had and received, or for money wrongfully collected and converted, would be a common law remedy even though the right were fixed by state statute.

Since the federal courts would be bound by the construction of state statutes by state courts, they are encouraged to remit the construction of state statutes to state courts whenever there is a discretion in the federal court so to do, and the immediacy of an authoritative state court decision is obvious. In City of Chicago v. Fieldcrest Dairies, 316 U.S. 168, 62 S. Ct. 986, 987, 86 L.Ed. 1355, the complaint prayed for a declaratory judgment as to the meaning and effect of certain local laws. The Court said:

"We granted the petition for certiorari * * * because of the doubtful propriety of the District Court and of the Circuit Court of Appeals in undertaking to decide such an important question of Illinois law instead of remitting the parties to the state courts for litigation of the state questions involved in the case. Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L.Ed. 971.

"We are of the opinion that the procedure which we followed in the Pullman case should be followed here. Illinois has the final say as to the meaning of the ordinance in question. It also has the final word on the alleged conflict between...