Rivet v. East Point Marine Corp.
| Decision Date | 31 March 1971 |
| Docket Number | Civ. A. No. 5920-70-T. |
| Parties | Kelton RIVET, Plaintiff, v. EAST POINT MARINE CORP. and American Commercial Barge Lines, Inc., Defendants and Third-Party Plaintiffs, v. ALABAMA STATE DOCKS DEPARTMENT, a corporation, et al., Third-Party Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
Peter J. Abadie Jr., New Orleans, La., for plaintiff.
Allen Clay Rankin III and Alex F. Lankford, III, Mobile, Ala., for East Point Marine Corp.
George F. Wood, Mobile, Ala., for Self Towing Co., Inc.
MacDonald Gallion, Atty. Gen. of the State of Ala., Montgomery, Ala., Mylan R. Engel, Special Asst. Atty. Gen., Mitchell G. Lattof, Mobile, Ala., for Sovereign State of Ala.
Broox G. Holmes and T. K. Jackson, III, Mobile, Ala., for American Commercial Barge Lines, Inc.
Emmett R. Cox, Mobile, Ala., George A. Frilot III and William E. O'Neil, New Orleans, La., for Federal Barge Lines, Inc.
Robert F. Adams, Mobile, Ala., for Glens Falls Ins. Co.
This matter comes on to be heard on the following motions:
1. Motion to dismiss East Point Marine Corporation's third-party complaint against the Barge ACBL 2643 filed by American Commercial Barge Lines, Inc. on October 21, 1970; taken under submission after argument on November 27, 1970.
2. Motion to dismiss cross-claim of Federal Barge Lines, Inc. filed by the Docks on December 2, 1970; taken under submission on briefs on December 18, 1970.
3. Motion for reconsideration of the Court's ruling of August 14, 1970, granting the State of Alabama's motion to dismiss the third-party complaint of American Commercial Barge Lines, Inc. filed on December 22, 1970; taken under submission on briefs on January 15, 1971.
4. Motion for reconsideration of the Court's ruling of August 14, 1970, granting the State of Alabama's motion to dismiss the third-party complaint of East Point Marine Corporation filed on January 4, 1971; taken under submission on briefs on January 15, 1971.
The legal issues presented by Motions 2, 3, and 4, is whether the State of Alabama waives its defense of sovereign immunity when the Alabama State Docks acts as a stevedore.
There are three main cases on this subject—two of which involve the State Docks: Parden v. Terminal Railway of Alabama State Docks Department, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Centraal Stikstof Verkoopkantoor, N. V. v. Alabama State Docks Department, 415 F.2d 452 (5th Cir. 1969); Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001 (4th Cir. 1968).
The Parden case, supra, was a personal injury suit under FELA by an employee against the Terminal Railway of the Alabama State Docks Department. The Court held that when a "State's consent to suit is alleged to arise from an act not wholly within its own sphere of authority but within a sphere * * * subject to the constitutional power of the Federal Government, the question whether the State's act constitutes the alleged consent is one of federal law." The Court, after concluding that the Docks was indisputably a common carrier by railroad engaging in interstate commerce, ruled that "when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, its subjects itself to that regulation as fully as if it were a private person or corporation."
In Centraal Stikstof Verkoopkantoor (C.S.V.), supra, a case where the Alabama State Docks, acting as a public warehouseman, again claimed sovereign immunity, the Fifth Circuit decided that Alabama did not consent to suit. The Court stated that the essential issue before the Court was whether the Docks as a warehouseman had entered into a federally regulated sphere in which a federal remedy was available. It answered that question in the negative because there was no federal remedy available even in absence of the immunity issue.
In Lauritzen, supra, the Fourth Circuit said 28 U.S.C. § 1333 allows causes of actions involving activities in and upon the navigable waterways of the Nation to be adjudicated in admiralty and is a congressional regulation as contemplated by Parden. In Lauritzen, a ship-owner sued a state agency for damages sustained when the ship struck a submerged, hurricane-damaged tower in navigable waters. The Court held that a suit under § 1333 could be brought against the State of Virginia because her entry into interstate and foreign commerce —an exclusive federal province— amounted to a waiver of sovereign immunity.
The plaintiff in the case at bar, a seaman, brought this action under the Jones Act. The facts giving rise to...
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In re Holoholo
...where private persons and corporations normally ran the enterprise. 377 U.S. at 185, 84 S.Ct. at 1209. See also Rivet v. East Point Marine Corp., 325 F.Supp. 1265 (S.D.Ala.1971). 26 FELA specifically provides that no case brought in state court may be removed to federal court. 45 U.S.C. § 5......
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