ERVIN, District Judge.
This was a libel in admiralty against the United States under the suits in Admiralty Act (46 USCA §§ 741-752; Comp. St. §§ 1251¼-1251¼k), as in rem, for an injury to the steamer Bostwick, caused by a collision with the steamer Casey, a Shipping Board Emergency Fleet Corporation vessel, and against the tugs Buzzard and Nimrod, and the Mobile Towing & Wrecking Company, their owner, the Todd Shipbuilding & Dry Dock Company, and the State Docks Commission.
The Casey was being shifted in the Mobile river to a slip of the Todd Shipbuilding Company on the west side of the river where the Bostwick was already moored on the south side of the slip. The Casey was under the command of T. E. Dorgan, a licensed pilot in Mobile, during the shifting, and Dorgan was employed by the State Docks Commission, who paid him a fixed salary and charged and received certain fees for the services rendered by the pilots in Mobile river.
Dorgan and the State Docks Commission were cited in by the United States under the fifty-sixth admiralty rule, and it was charged that the collision was caused by the negligence of Dorgan and the commission was sought to be held as his employer because they furnished him upon request and for pay to pilot the Casey during the maneuver.
The State Docks Commission and Dorgan, on being cited in by the United States, filed pleas to the jurisdiction, setting up that the commission was created by an act of the Legislature of Alabama and that neither it nor its officer was suable in this court, that it is only an agency of the state of Alabama, and that a suit against it was a suit against the state. The United States filed exceptions to the pleas and a submission was taken on such exception.
The act is found on pages 1 to 14, Acts of Alabama 1927.
I quote so much of the act as seems necessary for the determination of the question:
"Section 1. The authority and power granted the state of Alabama in act approved September 18, 1923 (which act is codified as chapter 44, article 4, in the Code of 1923), to engage in, through the agency hereinafter provided and designated and such other agencies as hereafter may be provided by law, works of internal improvement of promoting, developing, constructing, maintaining, and operating all harbors or seaports within the state, or its jurisdiction, including the acquisition or construction, maintaining and operating at seaports of harbor water craft and terminal railroads, as well as all other kinds of terminal facilities, provided that such work or improvement and facilities shall always be and remain under the management and control of the state through the governing agency hereinafter provided and designated, or such other governing agency or agencies as hereinafter may be provided by law. * * *
"Sec. 2. The said State Docks Commission is hereby provided and designated as the agency of the state through which it shall accomplish the acquisition, or construction, maintenance and operation of all of the improvements and facilities hereby authorized and through which the same shall be managed and controlled by the state, and hereinafter such agency shall be called the commission. * * *
"Sec. 3. The jurisdiction of the commission in any harbor or seaport within the state shall extend over the waters and shores of such harbor or seaport and over that part of all tributary streams flowing into such harbor or seaport in which the tide ebbs and flows, and shall extend to the outer edge of the outer bar at such harbor or seaport."
"Sec. 5. The commission must appoint a secretary-treasurer and as occasion requires may appoint such pilots, clerks, attorneys, collectors and other employees as may be necessary to perform all services needed in bringing vessels in and out of the seaport or harbor, loading and unloading such vessels, and in operating the terminal facilities provided for in this act. * * *
"Sec. 6. The said commission shall constitute a board of commissioners of pilotage for any seaport or harbor within the state and shall issue state licenses to such applicants as are qualified in the opinion of the commission to navigate such seaport or harbor and in such numbers as the proper service of such seaport or harbor renders necessary. The said commission shall issue rules and regulations concerning the examination and qualifications of pilots for the above special service and shall investigate all charges as to violation of general rules and regulations of the port and as to dereliction of duty or incompetency on the part of such pilots and said commission is hereby vested with the power to suspend such pilots or to withdraw such pilots' licenses for cause. The State Docks Commission is hereby authorized within the power of the state to establish and enforce rules and regulations concerning pilotage and to fix the pilotage fees for piloting vessels across the outer bar and into any harbor or seaport and between points in such harbor or seaport.
"Sec. 7. The state, in engaging in the work of internal improvement, of promoting, developing, constructing, maintaining, and operating harbors or seaports within the state and its jurisdiction, acting through the said commission, shall have power to acquire, purchase, install, lease, construct, own, hold, maintain, equip, use, control, and operate at seaports, wharves, piers, docks, quays, grain elevators, cotton compresses, warehouses and other water and rail terminals and other structures, and facilities needful for the convenient use of the same in the aid of commerce including the dredging of approaches thereto. * * * The state through the said commission shall have power to acquire, own, lease, and operate tug and pilot boats, to locate, install, construct, acquire, lease, own, hold, maintain, control, and operate at seaports a line of terminal railroads with necessary sidings, turnouts, spurs, branches, switches, yard track, bridges, trestles, and causeways and in connection therewith or appurtenant thereto shall have the further right to lease, install, construct, acquire, own, maintain, control and use any and every kind or character of motive power and conveyances or appliance necessary or proper to carry passengers, goods, wares, and merchandise over, along or upon the tracks of such railroads or other conveyances. The state, acting through the said commission, shall have the right and authority with its terminal railroads to connect with or cross any other railroad upon the payment of just compensation and to receive, deliver to and transport the freight, passengers, and cars of common carrier railroads as though it were an ordinary common carrier. The title to all property acquired under the authority of this act shall vest in the state of Alabama, but the commission, with the consent and approval of the Governor, may dispose of, sell or lease to others, at reasonable prices and for reasonable compensation, any of said property, equipment and facilities; provided that the proceeds of all such sales shall be returned to capital account. The proceeds from all leases shall become a part of the operating fund. * * * The power of eminent domain shall apply, not only as to all property of private persons or corporations, but also as to property already devoted to public use, provided, however, the said commission shall have no authority to acquire without the consent of the owner thereof any property now operated and used for port purposes or such purposes as the commission is authorized to acquire and use property for, unless an actual necessity therefor be alleged and proven. * * * The commission with the approval of the Governor is hereby authorized to bring and prosecute, for and in the name of the state, all such suits, actions, and other legal proceedings as may be proper or necessary for the enforcement of the rights of the state growing out of any of its transactions or operations authorized by this act. * * *"
"Sec. 9. The operation of all harbors and seaports within the state and the improvements and facilities hereby authorized shall be conducted in the name of the State Docks Commission. In such operation, the commission may contract such current indebtedness as is necessarily incident to the prosecution of the work in accordance with the terms of this act. The commission may adopt rules not inconsistent with the provisions of this act for the purpose of regulating, controlling and conducting the said operation.
"Sec. 10. The state, at the request of the commission approved by the Governor, may borrow from time to time such sums of money as may be immediately necessary in its general operation, or in the development and improvements hereby authorized, or for the payment of interest on outstanding bonds or other indebtedness lawfully incurred; and the commission, subject to the approval of the Governor, acting by and through its chairman and secretary-treasurer, is hereby empowered to execute notes or other like obligations of the state, but in its own name, for all sums so borrowed. * * *
"Sec. 11. It is intended to so provide that all of the revenues and income arising from the operations authorized hereby and from all property acquired under the provisions hereof shall be devoted to the payment of the expenses of such operation, to the payment of interest upon the bonds issued pursuant to the provisions hereof, and to the payment of the principal of said bonds as they respectively...
