Pasternack v. Lubetich

• Decision Date: 20 May 1974
• Docket Number: No. 1886--1,1886--1
• Citation: 11 Wn.App. 265,522 P.2d 867
• Parties: , 1974 A.M.C. 1464 Howard N. PASTERNACK, Respondent, v. Martin LUBETICH et al., Appellants, Gilbert W. Wood et al., Defendants.
• Court: Washington Court of Appeals

Page 265

11 Wn.App. 265

522 P.2d 867, 1974 A.M.C. 1464

Howard N. PASTERNACK, Respondent, v. Martin LUBETICH et al., Appellants Gilbert W. Wood et al., Defendants.

No. 1886--1.

Court of Appeals of Washington, Division 1.

May 20, 1974.

Rehearing Denied July 18, 1974.

Jackson, Ulvestad & Goodwin, Thor P. Ulvestad, Seattle, for appellants.

Donald G. Cohan, Seattle, for respondent.

SWANSON, Chief Judge.

The King County Superior Court quieted title to a 28-foot boat in the plaintiff Howard N. Pasternack and ordered Martin Lubetich to return possession of the craft to the plaintiff and to pay $3,500 in damages for plaintiff's loss of use of the vessel. Lubetich appeals. ¹

This appeal comes to us only on the question of the trial court's jurisdiction. It is appellant's contention that an action to determine title to a vessel and the right to possession is essentially an in rem proceeding within the exclusive jurisdiction of the federal district court sitting as a court of admiralty. Respondent's position is that in such a case as this, the federal court's jurisdiction is concurrent with that of state courts and, consequently, the trial court acted with jurisdiction. We agree and affirm.

Article 3, section 2 of the United States Constitution extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction, ² and 28 U.S.C.A. § 1333, the language of which has evolved through amendment from the Judiciary Act of 1789, states in part:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

Although this statute endows the federal courts with 'exclusive' admiralty jurisdiction, it also includes the famous 'saving to suitors' clause. ³ It is from this clause in the statute that state courts derive in personam admiralty jurisdiction thereby creating an area of concurrent state and federal jurisdiction. Scudero v. Todd Shipyards Corp., 63 Wash.2d 46, 385 P.2d 551 (1963). In this context, respondent concedes that this action is a case cognizable in admiralty but asserts that the trial court correctly determined that it falls within the ambit of the 'saving to suitors' clause of 28 U.S.C.A. § 1333, and therefore the trial court had jurisdiction.

It is stated in 2 Am.Jur.2d Admiralty § 106 (1962):

The clause (saving to suitors clause) makes no affirmative grant of jurisdiction, however; it merely excepts from the exclusive admiralty or maritime jurisdiction of the federal courts all cases in which suits may be brought to obtain other than admiralty remedies to which suitors are 'otherwise entitled.' And it should be obvious that the jurisdiction of the state court does not exclude the admiralty jurisdiction of the federal courts. (Footnotes omitted.)

And at § 108:

But admiralty's jurisdiction is 'exclusive' only as to those maritime causes of action that are begun and carried on as proceedings in rem--that is, where a vessel or thing is itself treated as the offender and made the defendant by name or description in order to enforce a right.

It therefore appears that if the suit is in personam, a claimant may elect to bring the action either in admiralty or, because of the savings clause, in a state court by ordinary civil action. Where the suit is in rem, however, only the admiralty court has jurisdiction. Madruga v. Superior Court of California, 346 U.S. 556, 74 S.Ct. 298, 98 L.Ed. 290 (1954); The Hine v. Trevor, 71 U.S. (4 Wall.) 555, 18 L.Ed. 451 (1866); The Moses Taylor, 71 U.S. (4 Wall.) 411, 18 L.Ed. 397 (1866). 1 E. Benedict, The Law of American Admiralty (6th ed. A. Knauth 1940), describes what is meant by a proceeding in admiralty at § 11, page 20:

The foundation of jurisdiction In rem is the taking of the vessel into the custody of the court and the characteristic virtue of a proceeding In rem is that it operates directly upon the Res as the titular respondent in the suit and the actual subject-matter of the jurisdiction and not, as at common law, mediately through the right, title or interest of a party brought before the court as defendant through personal service or the mere attachment of property as his with a view to subjecting his interest therein to the satisfaction of the judgment. An admiralty court by seizure In rem acquires jurisdiction of all interests in the Res and by decree In rem binds all. (Footnotes omitted.)

What is the nature of the proceedings that took place in the instant case? The trial court's findings of fact show that Lubetich purchased the 28--foot boat in question from the factory and placed it in the possession of Gilbert W. Wood and Al Benson, d/b/a Riviera Marina. Thereafter Pasternack bought the boat from Riviers Marina for $11,000 and received a bill of sale. When Wood and Benson failed to turn over the purchase price to Lubetich, he repossessed the boat. Pasternack brought suit framed in the alternative, seeking either rescission of the sale of the boat or return of the boat and money damages. The court found that Lubetich's self-help repossession was wrongful and concluded the sale to Pasternack constituted a transfer of title. The trial court then quieted title to the boat in Pasternack, ordered Lubetich to return the boat to Pasternack, and awarded damages against Lubetich for loss of use in the sum of $3,500.

Appellant contends that this action is within the category of admiralty proceedings in rem, such as a suit for partition and sale, and directs our attention to Cline v. Price, 39 Wash.2d 816, 239 P.2d 322 (1951). In Cline, minority shareholders in a fishing vessel brought an action in the superior court seeking the appointment of a receiver to take possession of the vessel, an adjudication of rights of the parties, and an order for the sale of the boat and distribution of proceeds. In ruling on a challenge to the jurisdiction, our state Supreme Court held the partition action was primarily a proceeding in rem over which federal district courts have exclusive jurisdiction. Subsequently, the United States Supreme Court, in a 1954 decision, Madruga v. Superior Court of California, Supra, commented upon the diverse holdings in the various states as to the nature of a partition action and noted the holding in Cline v. Price, Supra, but decided that a suit by majority shareholders in a California state court for the sale of a vessel and partition of the proceeds was not primarily a proceeding in rem and therefore properly was brought in state court under the 'saving to suitors' clause. The court stated in Madruga, 346 U.S. at 560--561, 74 S.Ct. at 301:

Admiralty's jurisdiction is 'exclusive' only as to those maritime causes of action begun and carried on as proceedings In rem, that is, where a vessel or thing is itself treated as the offender and made the defendant by name or description in order to enforce a lien. See, e.g., The Moses Taylor, 4 Wall. 411, 427 (7 U.S. 411,) 18 L.Ed. 397; The Resolute, 168 U.S. 437, 440--441, 18 S.Ct. 112, 113, 42 L.Ed. 533. It is this kind of In rem proceeding which state courts cannot entertain. But the jurisdictional act does leave state courts 'competent' to adjudicate maritime causes of action in proceedings 'in personam,' that is, where the defendant is a person, not a ship or some other instrument of navigation. Rounds v. Cloverport Foundry & Machine Co., 237 U.S. 303, 306--309, 35 S.Ct. 596, 597--598, 59 L.Ed. 966. Aside from its inability to provide a remedy In rem for a maritime cause of action, this Court has said that a state, 'having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit' so long as it does not attempt to make changes in the 'substantive maritime law.' Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S.Ct. 274, 277, 68 L.Ed. 582.

The proceedings in this California partition case were not In rem in the admiralty sense. The...