Sawyer v. United States

• Decision Date: 15 February 1946
• Citation: 66 F. Supp. 271,1946 AMC 420
• Parties: SAWYER v. UNITED STATES.
• Court: U.S. District Court — Southern District of New York

66 F. Supp. 271

1946 AMC 420

SAWYER v. UNITED STATES.

District Court, S. D. New York.

February 15, 1946.

Simone N. Gazan, of New York City, for libelant.

John F. X. McGohey, U. S. Atty., of New York City (Gay & Behrens and Edward J. Behrens, all of New York City, of counsel), for respondent.

KENNEDY, District Judge.

Libelant is a seaman who claims damages because of injuries sustained as a result of the negligent orders of the chief officer of the steamer Samuel F. Miller, a merchant vessel operated for the respondent United States of America. The claim of negligence is based on the fact that on March 11, 1944, while the Samuel F. Miller was at sea during heavy weather, libelant was needlessly ordered to the forepeak locker to remove an iron cover in the storeroom. As a result of the rolling and pitching of the ship he says he was thrown against the stanchion of a gun platform, and also the starboard towing bitts.

The libel does not disclose whether or not libelant is a resident of the Southern District of New York, and, naturally, it is silent on the question of the libelant's place of business. There is no article alleging that at the time of the filing of the libel the ship was within the territorial waters of the United States.

The answer sets up a special plea to the jurisdiction.

After opening the case counsel for the libelant requested that I rule on the jurisdictional point before proceeding with the trial. Counsel for the respondent addressed no motion to the libel. Strictly, therefore, there is nothing upon which a decision can operate unless it is the duty of the Court sua sponte to decide the point. During the discussion of the question, counsel for the libelant admitted that his client is not a resident of this district, and that the Samuel F. Miller was not in the Port of New York when the libel was filed.

As I understand it, I cannot decide this matter unless I take a position on all three of the following questions:

1. Did Congress intend by the Suits in Admiralty Act, 46 U.S.C.A. §§ 741-752, to permit the filing of a libel in personam, where such suit could have been brought under general maritime law, or did it merely create a proceeding which was in personam in form only as a substitute only for the proceeding in rem against Government-owned vessels which existed formerly by virtue of the Shipping Act of 1916. Act of September 7, 1916, 39 Stat. 728 et seq., 46 U.S.C.A. § 801 et seq.

2. When the statute talks about the district in which a suit in Admiralty may be brought against the Government (46 U.S.C.A. § 742; "the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found") was it setting up a limitation on jurisdiction over the subject matter, or was it merely defining venue?

3. If the statutory language concerning the proper district for the commencement of suit is not jurisdictional, does a respondent waive the point by pleading to the merits, when the libel itself is silent on libelant's residence or place of business, and on the location of the vessel involved?

It would serve no useful purpose to consider each one of these questions separately, because in the cases which have dealt with this problem all three considerations are interwoven. The better approach is to consider such precedents as I have been able to find, and to arrange them for discussion in chronological order.

In The Isonomia, 2 Cir., 1922, 285 F. 516, the libelant was a British corporation. The libel claimed a lien for wharfage, but there was no allegation that the vessel was in the Southern District at the time of the filing of the libel. The statutory language concerning the district of suit was construed as a venue provision, and it was held that even though libelant had a place of business in the Port of New York, it could not lay the venue of the suit in the Southern District of New York since it was seeking a remedy in rem and the ship was not in that district. The case was criticized and practically repudiated in Nahmeh v. United States, 1925, 267 U.S. 122, 125, 45 S.Ct. 277, 69 L.Ed. 536, not so much because the sentence in the statute dealing with the district in which suit could be brought was not a venue provision, but because the language of the Suits in Admiralty Act had been construed too strictly.

In Blamberg Brothers v. United States, 1923, 260 U.S. 452, 43 S.Ct. 179, 67 L.Ed. 346, a Maryland corporation filed a libel claiming damages because of the deterioration of cargo. The barge which was responsible for the damage was, at the time of the filing of the libel, in Havana, Cuba. Concluding that there was no liability in personam, and that therefore the proceeding must be one in rem, the Court said that so long as the ship was in a foreign port the proceeding could not be maintained. While the Court hints that it was somehow important that Government owned merchant vessels in foreign ports are not immune from seizure, I understand the holding in the case to be that the Suits in Admiralty Act is not broad enough to permit enforcement of a right purely and solely in rem by a libel in form in personam, unless the suit be brought in the district where the ship is found.

Judge Goddard said in Cross v. United States, D.C.S.D.N.Y., 1923, 8 F.2d 86, that it was possible to file a salvage libel in personam in the Southern District of New York in the absence of the ship. In the Cross case libelant was a resident of the Southern District of New York, and the exceptions were overruled. The Cross case is a clear holding that a suitor having a right purely in personam may maintain suit in the district of his residence under the Suits in Admiralty Act.

Nahmeh v. United States, 1925, 267 U.S. 122, 45 S.Ct. 277, 278, 69 L.Ed. 536, was a suit by a seaman for personal injuries. It was filed in the Eastern District of New York. At the time of the filing of the libel the ship was in the Southern District of New York. The libelant was a resident of the Eastern District of New York. The Supreme Court opinion does not make it clear whether Nahmeh's libel was filed as a substitute for a libel in rem only. But the Court assumed this, and said that even in what would be a suit in rem between private parties, a libel could be properly filed under the Suits in Admiralty Act in the district where libelant resided. It made no difference where the vessel was, said the Court, "provided only, that it was within the jurisdiction of the United States."

In Eastern Transportation Co. v. United States, 1927, 272 U.S. 675, 47 S.Ct. 289, 71 L.Ed. 472, the libel was in personam. The claim arose as the result of a collision between libelant's barge and the wreck of a Government ship called the Snug Harbor. The district of suit was the Eastern District of Virginia, and the statutory basis of liability was of course the Wreck Act of March 3, 1899, 33 U.S.C.A. § 409. The principal question agitated in that case was again whether the Suits in Admiralty Act offered a substitute only for proceedings strictly in rem, or whether, on the other hand, Congress intended that the expression "proceeding in Admiralty" was broad enough to cover both libels in personam and libels in rem. The Supreme Court reversed the judgment of the District Court dismissing the libel for want of jurisdiction. It held that the Court does have jurisdiction over the subject matter of proceedings in personam against the Government by virtue of the Suits in Admiralty Act. There is little question that in the Snug Harbor there was no real "venue" question; the statutory provisions regarding the district of suit seem to have been treated as jurisdictional, both by the District Court and the Supreme Court.

Kunglig Jarnvagsstyrelsen v. United States, 2 Cir., 1927, 19 F.2d 761, involved a cargo libel brought in the Southern District by a Swiss corporation with no office in the United States. At the time of the commencement of the libel the offending vessel was in the Eastern District of Virginia. The majority of the court held that the provisions in the statute relating to the district of suit are not jurisdictional, but relate merely to venue. The Circuit Court reversed a District Court decree and overruled the exceptions to the libel. Circuit Judge Learned Hand dissented, being of the opinion that the allegation that the ship is in the waters of the United States when the libel is filed is a jurisdictional averment and, therefore, the libel was properly dismissed.

In Carroll v. United States, 2 Cir., 1943, 133 F.2d 690, 692, the libelant, a non-resident, filed his libel against the United States and the Waterman S. S. Agency Ltd. He had been injured while at sea because of the negligence of the ship's cook in putting a coffee pot on the deck of the galley during a storm. As a result of this, libelant was scalded. Although the ship at the time of the filing of the libel was at Jersey City, and therefore within the territorial waters of the United States at the time of the trial, there was no showing that she was within the waters of the United States when the libel was filed. The holding in the case was that the only possible liability against the Government was in rem, and therefore it was entitled to a dismissal of the libel, the ship not being in the district of suit. The opinion hints that it is an open question whether the ship's presence in the territorial waters of the United States when the libel is filed is not also a requirement in the case of liability purely in personam.

Sportiello v. United States, D.C.E.D.N. Y., 1944, 55 F.Supp. 551, was a suit arising out of the death of a longshoreman. Presumably, the libelant was a resident of the Eastern District of New York, where the libel was filed. Judge Galston was of the opinion that, since jurisdiction in personam existed, the absence of the ship from United States...