Schnell v. United States

• Decision Date: 07 October 1946
• Docket Number: No. 17119.,17119.
• Parties: SCHNELL et al. v. UNITED STATES. THE ILLAPEL.
• Court: U.S. District Court — Eastern District of New York

69 F. Supp. 877

SCHNELL et al. v. UNITED STATES.

THE ILLAPEL.

No. 17119.

District Court, E. D. New York.

October 7, 1946.

J. Vincent Keogh, U. S. Atty., of Brooklyn, N. Y. (Reid, Cunningham & Freehill and William J. Tillinghast, Jr., all of New York City, of counsel), for respondent in support of exceptions.

Joffe & Joffe and Joseph Joffe, all of New York City, for libelants.

KENNEDY, District Judge.

Respondent excepts to a libel filed in this Court on June 26, 1944. In substance, the libel under attack alleges a claim against the United States "as owner of the steamship `Illapel'", based upon the fact that a cargo of melons and onions, which arrived in the port of New York on that steamship on May 15, 1944, was discharged in defective condition as a result, so it is said, of the negligence of the ship in respect to loading, stowing, custody, care, and because of her unseaworthiness. The third article of the libel alleges that the bills of lading covering the shipment were "issued, signed and delivered to the shipper by the duly authorized representative of the steamship `Illapel' marked `Bills of Lading No. 17 and No. 18'".

The libel was of course filed under the Suits in Admiralty Act, Act of March 9, 1920, 46 U.S.C.A. § 741 et seq.

It is specifically alleged in the libel that the libelants are members of a partnership, and that all of them, except one, reside in this district.

On September 22, 1944 the respondent answered and said, among other things (Article Seventh), that it "does not contest the admiralty and maritime jurisdiction of the United States and of this Court".

In support of its present exception, respondent files affidavits and exhibits establishing that on the 27th day of August 1943 the respondent United States of America transferred the steamship "Illapel" to the Republic of Chile on a demise charter basis. The Republic of Chile, in turn, assigned the ship to the Compania Sud-Americana de Vapores for operation, so that at the time of the contract of affreightment upon which the libel is based, the United States was merely the owner. All of this, of course, would tend to establish that there could be no liability in personam against the United States, but only a liability in rem.

Respondent goes further, and in its affidavits asserts that on May 31, 1944, prior to the filing of the libel under attack, the "Illapel" sailed from the port of New York and that on June 26, 1944, when the libel was filed, the ship was at a point between Chicama, Peru, and Valparaiso, Chile.

Upon the basis of the facts established by its affidavits and exhibits, respondent argues in support of its exception that there is no jurisdiction in this Court, because the only liability which could possibly be asserted against it is a liability in rem, and at the time of the filing of the libel the ship was not within the territorial waters of the United States (citing Blamberg Bros. v. United States, 1923, 260 U.S. 452, 43 S.Ct. 179, 67 L.Ed. 346; Carroll v. United States, 2 Cir., 1943, 133 F.2d 690, and other cases).

Libelants do not seriously controvert either respondent's argument that it is liable only in rem, or its assertion that when the libel was filed the ship was not within the territorial waters of the United States. They submit an affidavit alleging that the exceptions are filed too late, presumably because all preparations for trial have been completed. They say also that "Illapel" is at this moment within the territorial waters of the United States, and they ask permission to amend the libel in such fashion as to assert that the ship "is now or during the pendency of the process hereunder will be within the jurisdiction of the United States", and that "Libellants elect to have this suit proceed in accordance with the principals (sic) of suits in rem and also in personam".

Assuming that the libel is defective in its present condition, the effect of the amendment proposed by the libelants would be to extend the two-year statute of limitations, 46 U.S.C.A. § 745, and on this ground respondent opposes it.

If exceptions to libels are closely analogous to demurrers it is clear that I ought to concern myself only with what is alleged within the four corners of the libel, and that I should ignore respondent's affidavits, certainly on disputed issues of fact. The Sydfold, 2 Cir., 1936, 96 F.2d 611. There have been cases where no objection to the practice of considering "exceptive allegations" was interposed in cases like this (Pfeil v. United States, D.C.E.D. N.Y., 1923, 287 F. 265), but libelants in the present case do object strenuously, even though they have filed a cross-affidavit embodying an application to amend. Benedict (6th Ed., Vol. 2, Sec. 334) says in a footnote that Judge Hough in an unreported case (L. Littlejohn & Co., Inc. v. United States, D.C.S.D.N.Y., 1922, 49 F.2d 467) criticized the practice even of making suggestions of immunity from suit to the Court, and suggested that a proper mode of procedure would be to file an answer containing exceptive allegations, and then ask for a preferential trial on the issue raised.

I am inclined to think that in dealing with this exception I should ignore everything set forth in the supporting affidavits....