Suspine v. Compania Transatlantica Centroamericana

• Decision Date: 06 December 1940
• Citation: 37 F. Supp. 263
• Parties: SUSPINE et al. v. COMPANIA TRANSATLANTICA CENTROAMERICANA, S. A., et al.
• Court: U.S. District Court — Southern District of New York

37 F. Supp. 263

SUSPINE et al. v. COMPANIA TRANSATLANTICA CENTROAMERICANA, S. A., et al.

District Court, S. D. New York.

December 6, 1940.

Herbert J. De Varco, of New York City, for libellants.

Hunt, Hill & Betts, of New York City (John W. Crandall, of New York City, of

counsel), for respondent Arnold Bernstein Shipping Co. Inc.

Adolph Finkelstein, of New York City (Sydney Saxon, of New York City, of counsel), for respondent Compania Transatlantica Centroamericana, S. A.

HULBERT, District Judge.

Two interesting questions are presented by these cross motions: The more important one is whether citizens of the Philippine Islands may be debarred, under the provisions of the Neutrality Act of 1939, 22 U.S.C.A. §§ 245j to 245j — 19, from serving as seamen on a vessel of foreign registry clearing from a port of the United States; the other is, to what extent exceptive allegations may be employed to bring before the court facts not found within the four corners of the libel, in an attack upon its legal sufficiency.

The Treaty of Peace between the United States and Spain authorized the Congress to determine the civil rights and political status of the native inhabitants of the Philippine Islands, and the Act of July 1, 1902, 32 Stat. 691, declared that all inhabitants continuing to reside therein who were Spanish subjects on April 11, 1899, and then residing in the Islands, and their children born subsequent thereto, "Shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain" according to the Treaty.

Citizens of the Philippine Islands are not aliens. Gonzales v. Williams, 192 U.S. 1, 13, 24 S.Ct. 177, 48 L.Ed. 317. They owe no allegiance to any foreign government and were not eligible for naturalization until the Act of 1906, 34 Stat. 606, § 30, 8 U.S.C.A. § 360.

They have been no less favorably dealt with than the American Indians whom Attorney General Cushing classified as "subjects" (Op.Atty.Gen.1855, page 746), but the courts held to be "wards". United States v. Kagama, 118 U.S. 375, at page 383, 6 S.Ct. 1109, 30 L.Ed. 228. The Filipinos are at least destined for a greater independence and freedom.

The status of the Filipinos has been variously affected by Acts of Congress such as "The Alien Registration Act, 8 U.S.C.A. §§ 137, 155, 156a, 451-460; The Immigration Act, 8 U.S.C.A. §§ 203, 215; The National Fire-arms Regulations, 15 U.S.C.A. §§ 901-909; The Selective Service Act, 50 U.S.C.A.Appendix § 301 et seq.; and the Merchants Marine Act of 1936, 46 U.S.C.A. § 1101 et seq.", setting them apart and placing them in a category peculiar to themselves.

The Constitution of the Philippines, adopted February 8, 1935, and approved by the President of the United States by Proclamation on March 23, 1935, provides in an Ordinance annexed thereto, as follows: "Section 1. Notwithstanding the provisions of the foregoing Constitution, pending the final and complete withdrawal of the sovereignty of the United States over the Philippines — (1) All citizens of the Philippines shall owe allegiance to the United States." 30 Philippine Pub. Laws, p. 386.

It is the contention of the libellants that Filipino seamen can neither serve upon vessels of American registry or vessels of foreign registration whose destination is within the combat area defined by the President of the United States pursuant to the Neutrality Act of 1939, and hence the constitutionality thereof is brought into question.

On October 25, 1940, pursuant to Sec. 401, Title 28 U.S.C.A., notice of the pendency of this action was given to the Honorable, the Attorney General of the United States, and he, through the United States Attorney for the Southern District of New York, has interpleaded.

Admiralty Rule 27, 28 U.S.C.A. following section 723, provides: "Either party may except to the sufficiency, fullness, distinctness, relevancy or competency of any of the pleadings or interrogatories filed by the other party; and if the court shall so adjudge on a hearing on the exceptions, and shall order further pleadings or answers to be filed by either party, such pleadings or answers shall be filed within such time and on such terms as the court may direct."

Exceptions to a pleading in Admiralty perform the functions of a demurrer (The Underwriter, D.C., 6 F.2d 937, reversed on other grounds, 2 Cir., 13 F.2d 433, affirmed Maul v. United States, 274 U.S. 501, 47 S.Ct. 735, 71 L.Ed. 1171; The Vema, D.C., 27 F.Supp. 679); they admit facts well pleaded (The Fred E. Sander, D.C., 212 F. 545; The Augustine, D.C., 8 F.2d 287; The Senator, D.C., 54 F.2d 420; The Blue Mountain, D.C., 20 F.Supp. 165), and the libel is to be very liberally construed. The Underwriter, supra; the Nesco, D.C., 47 F.2d 643.

There is no authorization by statute or rule for exceptive allegations but the earliest sanction for their use in Admiralty is to be found in United States v. Four Hundred Twenty-Two Casks of Wine, 26 U.S. 547, 550, 1 Pet. 547, 550, 7 L.Ed. 257 (Story, Justice).

In The Seminole, D.C., 42 F. 924, an exceptive allegation attached to exceptions to the libel was held to be proper procedure to bring before the court "facts judicially known to the court". See also The West Keats, 1923 A.M.C. 1092; The Volsinio, D.C., 32 F.2d 357. Compare The Murray Glen, 1938 A.M.C. 1073.

Judge Nelson recognized the propriety of embracing a plea to the jurisdiction in the answer and the taking of testimony thereunder to "show that the tug was seized outside of the jurisdiction of this court" (The Lindrup, D.C., 70 F. 718, 719); but it has since been held that the better practice is to file separate exceptions before answer (The Elisabeth Van Belgie, D.C., 248 F. 1006), and in this district our local Admiralty Rule 14 so requires.

The procedure followed in The Seminole, supra, was approved in The John K. Gilkinson, D.C., 150 F. 454, although the exceptions and exceptive allegations were overruled in that case. And the practice has been permitted in the absence of objection. Pfeil v. United States, D.C., 287 F. 265. It was, however, regarded with disfavor in The Henry S. Grove, D.C., 283 F. 1019, but the weight of authority encourages the practice of filing of exceptive allegations.

In Standard Wholesale P. & A. Works v. Travelers Ins. Co., 4 Cir., 107 F.2d 373, at page 376, Northcott, C.J., said: "the greater weight of authority is to the effect that the judge may, in his discretion permit the filing of exceptive allegations under circumstances similar to those existing here."

In The Grasselli Chemical Co. No. 4, D.C., 20 F.Supp. 394, which involved the amendment of June 5, 1936, to Section 185 of Title 46 U.S.C.A. reducing to six months the time within which the vessel owner may limit liability, the Court sustained what were in effect, although not so designated, exceptive allegations and, in The Irving, 1939 A.M.C. 825, likewise dealt with a similar situation.

In cases relating to bills of lading, however, the court seemed prone to follow the Grove case, supra. The Haiti, 1938 A.M. C. 895, 896; The President Taft, 1938 A.M.C. 1090.

See also, Independent Transp. Co. v. Canton, Ins. Office, D.C., 173 F. 564 (breach of warranty of insurance policy), and United States v. Alex Dussel Iron Works, 5 Cir., 31 F.2d 535 (the defenses of laches — unless as a matter of law it appears on the face of the libel).

The Admiralty practice is liberal.

Admiralty Rule 44 provides: "In suits in admiralty in all cases not provided for by these rules or by statute, the District Courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules."

In liberalizing the Civil Rules, the United States Supreme Court provided in Rule 81, Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c: "These rules do not apply to proceedings in admiralty." And Alaska Packers Ass'n v. Pillsbury, 301 U.S. 174, 57 S.Ct. 682, 81 L.Ed. 988, seems to indicate the distinction. But the liberality of the Admiralty practice is emphasized in The Henry S. Grove, D.C., 287 F. 247, where the court said there was nothing in the rules to show that it was intended to deny the right of either party to require disclosure of matters touching the case or defense of the opposite party.

While these observations are foreign to the matter of exceptive allegations, reference thereto is made to further emphasize that the method of dealing with exceptive allegations is a matter for the exercise of sound judicial discretion as authorized by the liberal practice permitted under Rule 44, supra.

It is undisputed in this case that the 53 libellants are seamen, and citizens of the Philippine Islands. Compania Transatlantica Centroamericana, S. A., is a corporation organized under the laws of Panama, and Arnold Bernstein Shipping Company is alleged in the alternative to be a New York corporation or a foreign corporation; each of the respondents having an office for the regular transaction of business in this district.

On or about May 5, 1940, the libellants signed regular shipping articles at the Port of Newport News, Va., before the Consul of the Republic of Panama, and in his office, to engage in the service of the S/S Panamanian for a voyage from said port to foreign ports in England for a period not to exceed six months, at stipulated wages; respondent Compania owned, and respondent Bernstein operated and managed, the S/S Panamanian, registered under the laws of the Republic of Panama.

The libel alleges that on the 5th day of July, 1940, the libellants were unlawfully and illegally discharged by the respondents and evicted from said vessel.

Two causes of action are set up, one to recover damages for breach of contract from the date of said alleged discharge, and the...