STATE OF CALIFORNIA, BY AND THROUGH DEPARTMENT OF FISH AND GAME v. SS Bournemouth

• Decision Date: 18 December 1969
• Docket Number: Civ. No. 69-1994-F.
• Court: U.S. District Court — Central District of California
• Parties: STATE of CALIFORNIA, BY AND THROUGH its DEPARTMENT OF FISH AND GAME, Plaintiff, v. S.S. BOURNEMOUTH, Lloyds Registry Number 516-2504, Official Number 720, her engines, tackle, apparel, furniture and equipment, Defendant.

307 F. Supp. 922

STATE of CALIFORNIA, BY AND THROUGH its DEPARTMENT OF FISH AND GAME, Plaintiff, v. S.S. BOURNEMOUTH, Lloyds Registry Number 516-2504, Official Number 720, her engines, tackle, apparel, furniture and equipment, Defendant.

Civ. No. 69-1994-F.

United States District Court C. D. California.

December 18, 1969.

Thomas C. Lynch, Atty. Gen., David B. Stanton, Deputy Atty. Gen., Los Angeles, Cal., for plaintiff.

Lillick, McHose, Wheat, Adams & Charles, Michael D. Dempsey, Los Angeles, Cal., for defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

FERGUSON, District Judge.

The plaintiff, State of California, by and through its Department of Fish and Game, filed a complaint in rem against the vessel S.S. Bournemouth to recover damages incurred by discharging a quantity of bunker oil into the navigable waters of the State of California and of the United States.

The complaint alleges that the S.S. Bournemouth (hereinafter called "Bournemouth") is a ship of the Liberian Flag, Lloyds Registry Identification Number 516-2504, Official Number 720, owned and operated by Bournemouth Shipping Company, Monrovia, Liberia, and presently under charter to States Marine Lines, Inc., a Delaware corporation.

The acts complained of allegedly occurred on or about October 3, 1969, while the Bournemouth was moored in the navigable waters at Long Beach, California, Berth 10, Pier A, to discharge cargo. Plaintiff seeks relief in the form of damages to compensate for injury to property arising out of pollution to the water and for costs of abatement.

The Bournemouth, while lying at anchor at Berth 10, Pier A, Long Beach, California, was seized, arrested and taken into possession October 5, 1969, by the United States Marshal for the Central District of California subject to a warrant for arrest in an action in rem. A bond was posted, and the Bournemouth was permitted to leave the United States.

The defendant made a restricted appearance under Admiralty and Maritime Claims Rule E(8) and moved to dismiss for lack of jurisdiction over the subject matter, lack of jurisdiction over the vessel, and failure to state a cause of action. The defendant's motion is premised on the belief that the plaintiff acted solely under authority granted in Sections 151 and 152 of the California Harbors and Navigation Code,^* which both parties concede does not provide for a remedy in rem. Defendant urges that since Section 151 does not provide for a lien or privilege upon the offending thing, the plaintiff is not entitled to proceed in rem, but is entitled to prosecute the matter only by obtaining in personam jurisdiction over the owners of the vessel. The motion correctly asserts, and it is not contested by plaintiff, that a maritime lien is a necessary condition to a suit in rem in admiralty. The Duchess, 15 F.2d 198, 199 (E.D.N.Y. 1926), The Resolute, 168 U.S. 437, 440, 18 S.Ct. 112, 42 L.Ed. 533 (1897).

Plaintiff in opposition to the motion to dismiss points out that the complaint contained no mention of the California Harbors and Navigation Code. Plaintiff urges instead, that the act of causing oil to be placed in the navigable waters of the State is a maritime tort: (1) within the admiralty jurisdiction of the United States pursuant to 46 U.S.C. § 740; and (2) states a cause of action long recognized by admiralty courts without the existence of a statute.

The Statutory Basis

Defendant, in reply to plaintiff's opposition to the motion to dismiss, agrees with plaintiff that 46 U.S.C. § 740 is applicable, conceding that "pollution of harbor waters obviously is a maritime tort which is within the admiralty jurisdiction of this court". This court has jurisdiction pursuant to 28 U.S.C. § 1333(1). Defendant argues, however, that jurisdiction under 46 U.S.C. § 740 as applied to the facts of this case, is in personam and not in rem, requiring the court to dismiss for want of jurisdiction over the vessel in the absence of a maritime lien to support this action.

Both parties, however, are in error in relying on 46 U.S.C. § 740. The statute, designated the Extension of Admiralty Jurisdiction Act, provides:

"The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land (emphasis added).

"In any such case suit may be brought in rem or in personam according to the principles of law and the rules of practice obtaining in cases where the injury or damage has been done and consummated on navigable water: Provided, That as to any suit * * * for damage or injury done or consummated on land by a vessel on navigable waters, * * *."

While the Constitution of the United States establishes that the federal judicial power extends to "all Cases of admiralty and maritime Jurisdiction" the boundaries of that jurisdiction were left to the courts to define. Historically, the single most important factor in determining whether a tort was within the scope of the admiralty court's jurisdiction was the situs of the occurrence. In The Plymouth, 3 Wall. 20, 70 U.S. 20, 33-34, 18 L.Ed. 125 (1865), the Court stated:

"In the case of Thomas v. Lane 23 Fed.Cas. No.13,902, 957, Mr. Justice Story, in a case where the imprisonment was stated in the libel to be on shore, observed: `In regard to torts, I have always understood that the jurisdiction of the admiralty is exclusively dependent upon the locality of the act. The admiralty has not, and never, I believe, deliberately claimed to have, any jurisdiction over torts, except such as are maritime torts; that is, torts upon the high seas, or on waters within the ebb and flow of the tide.' Since the case of the Genessee Chief 12 How. 443, 13 L.Ed. 1058, navigable waters may be substituted for tide waters. This view of the jurisdiction over maritime torts has not been denied."

The Court, in The Plymouth, supra, at 36, also stated as dictum that the jurisdiction of the admiralty over maritime torts does not depend upon the wrong having been committed on board the vessel, but upon its having been committed upon the high seas or other navigable waters.

Strict application of the locality rule has often resulted in obvious inequities. Actions in tort for damages to a bridge, The Troy, 208 U.S. 321, 28 S.Ct. 416, 52 L.Ed. 512 (1908); to a pier, The Curtin, 152 F. 588 (E.D.Pa.1907); or to a building struck by a vessel, Johnson v. Chicago & Pacific Elev. Co., 119 U.S. 388, 7 S.Ct. 254, 30 L.Ed. 447 (1886), for example, as extensions of the land, have historically been held not within the maritime jurisdiction. As a consequence, while the vessel could bring an action in admiralty for damages, and benefit from the substantive and procedural advantages peculiar to admiralty jurisdiction, the owner of the land-based property had no recourse for relief but to the local law of the place of the injury.

Adoption of the Extension of Admiralty Jurisdiction Act (46 U.S.C. § 740) was intended to modify the traditional rule that tort jurisdiction in admiralty did not embrace damage consummated on land. The legislative history clearly indicates that the Act makes available a concurrent remedy in admiralty for the existing common-law action. No new cause of action was contemplated by Congress in passing the Act; rather those causes of action which the cases have termed "ship-to-shore" torts now have a new form of relief available in admiralty. Fematt v. City of Los Angeles, 196 F.Supp. 89 (S.D. Cal.1961); United States v. Matson Nav. Co., 201 F.2d 610 (9th Cir.1953); Nacirema Co. v. Johnson, 396 U.S. 212, 220-223, 90 S.Ct. 347, 353-354, 24 L.Ed. 2d 371, 379-380 (1969).

In the complaint filed by the plaintiff, State of California, no injury caused by a vessel on navigable water, "done or consummated on land" was alleged. Here, the injury was to the water itself and presumably the marine life therein. It appears that reliance on 46 U.S.C. § 740 is unwarranted and misplaced. Another basis must therefore be found to exist in order to bring this type of action within the admiralty jurisdiction of the United States and subject the Bournemouth to in rem jurisdiction in this court. Otherwise, the plaintiff would be left with common-law remedies in personam against the owners of the vessel only.

The Maritime Tort Basis

Plaintiff alternatively urges that injury caused by oil pollution to its navigable waters states a maritime cause of action giving rise to a maritime lien and a suit in rem in admiralty independent of any statute. Defendant, on the other hand, contends that not every maritime tort results in a maritime lien, which lien both parties agree is a condition precedent to an action in rem. Defendant takes the position that only two types of maritime torts create maritime liens: collision claims and personal injury claims.

The issue before the court in ruling on defendant's motion to dismiss is therefore a narrow one. Stated simply, the issue is whether the tort of injury to plaintiff's property (navigable waters and marine life) will give rise to a maritime lien and thereby support an admiralty action in rem against the Bournemouth.

The court finds no merit in defendant's position and is of the opinion that the tort in question is maritime in nature; that a maritime lien against the Bournemouth arises in favor of the plaintiff which will support an admiralty action in rem, as a matter of general maritime law without the aid or necessity of a statutory lien.

The general proposition advanced by defendant that not every maritime tort results in a maritime lien is not established by the cases cited by defendant in support of the proposition. The Westmoor, 27 F.2d 886 (D.Or.1928), denied the existence of a maritime lien but in a case involving wrongful death resulting from the master's acts. No injury was caused by the vessel, and the court stated, ...