The Isonomia

• Court: U.S. Court of Appeals — Second Circuit
• Citation: The Isonomia, 285 F. 516 (2nd Cir. 1922)
• Decision Date: 24 November 1922
• Docket Number: 50.
• Parties: THE ISONOMIA. v. UNITED STATES. CUNARD S.S. CO., LIMITED,

285 F. 516

THE ISONOMIA.

CUNARD S.S. CO., LIMITED, v. UNITED STATES.

No. 50.

United States Court of Appeals, Second Circuit.

November 24, 1922

Lord Day & Lord, of New York City (Allen Evarts Foster, of New York City, and George De Forest Lord, of Cedarhurst, N.Y., of counsel), for appellant.

William Hayward, U.S. Atty. (Ralph B. Romaine, Sp. Asst. U.S. Atty of New York City, of counsel), for appellee.

The libelant is a corporation organized and existing under the laws of the United Kingdom of Great Britain and Ireland. It has its principal place of business at Liverpool, England. Its principal place of business in the United States is in the city of New York. The respondent was and is at the times hereinafter mentioned the owner of the steamship Isonomia which at the times hereinafter mentioned was employed by respondent as a merchant vessel.

The libel alleges that on August 30, 1920, a contract was entered into by and between Victor S. Fox & Co., Inc., as agents for the steamship Coosa, then owned by the United States and the libelant, whereby it was agreed that the said steamship Coosa should be berthed and wharfed at libelant's pier 32, North River, at the rate of $185 per day, while the vessel was loading, or while any part of her cargo remained on the pier, together with the expense of lights, water and telephones, and any other expenses incurred by the libelant by reason of the berthing of said vessel at said pier, all of which was to be paid by said steamship Coosa to the libelant as the agreed wharfage. It further alleges that pursuant to said agreement, on September 2, 1920, cargo was deposited on said pier by Victor S. Fox & Co., Inc., as such agents, and further cargo was so received on said pier thereafter, and remained on said pier up to and including September 22, 1920. And it alleges that on September 20, 1920, by consent of the parties to said contract, the steamship Isonomia, for which vessel said Victor S. Fox & Co., Inc., were also agents, was substituted for the steamship Coosa, and on said day the steamship Isonomia, then and now owned by the respondent, berthed at said pier and thereafter said cargo was laden on board her. The Isonomia left said pier on September 22, 1920.

It then claims that by virtue of the facts alleged a lien in favor of the libelant exists against the Isonomia, pursuant to section 30, subsection P of the Act of June 5, 1920 (41 Stat. 988), known as 'the Ship Mortgage Act.' And it claims that by reason of the premises stated the respondent became and is now indebted to the libelant for wharfage for 21 days at the rate of

$185 per day and for expenses, amounting in all to the sum of $3,914, with interest thereon from September 22, 1920. And the libel further states that libelant 'elects that this libel shall proceed in accordance with the principles of libels in rem.'

The United States appeared specially and, without submitting to the jurisdiction of the court, excepted to the libel in the following particulars: (1) In that it is not alleged in the libel that the steamship Isonomia or its cargo, at the time of the filing of the said libel, was found within the Southern district of New York and within the jurisdiction of this honorable court. (2) In that the facts alleged in the said libel do not constitute a cause of action in rem in admiralty. And it was prayed that the libel be dismissed. The court below sustained the exceptions and dismissed the libel.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

The libel claims a lien upon a ship in her home port for wharfage furnished in aid of her loading; but, before considering that, there is a preliminary question which must be first considered, and the determination of that question may make it unnecessary to refer to any other. It appears that the libel does not allege that the vessel sought to be charged with liability was at the time of the filing of the libel found in the Southern District of New York in which the libel was filed. The respondent, therefore, insists that the District Court was without jurisdiction to entertain the suit.

The suit is predicated upon the assumption that a suit in admiralty can be maintained against the United States. If that assumption be well founded, it must be because some statute has conferred the right; for no principle is better settled than that a broad distinction exists between the existence of a right and the power to enforce it in a court of justice, and the United States, like all other sovereignties, cannot be impleaded in a judicial tribunal, except in so far as it has consented to be sued. Cotton v. United States, 11 How. 229, 231, 13 L.Ed. 675. This makes it necessary to inquire whether Congress has consented that the United States can be sued in admiralty, and, if so, to what extent.

On March 3, 1887, Congress passed the Tucker Act, which authorized certain suits against the government to be brought in the Court of Claims, including suits upon any contract with the government, or for damages, liquidated or unliquidated, in cases not sounding in tort, 'in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable.' 24 Stat.c. 359, p. 505 (Comp. St. Sec. 991). The District Courts were given concurrent jurisdiction where the amount of the claim did not exceed $1,000. The Circuit Courts were given concurrent jurisdiction where the amount exceeded $1,000 and did not exceed $10,000.

On September 7, 1916, Congress passed the act creating the United States Shipping Board. Section 9 of that act provided as follows:

'Every vessel purchased, chartered, or leased from the board shall, unless otherwise authorized by the board, be operated only under such registry or enrollment and license. Such vessels while employed solely as merchant vessels shall be subject to all laws, regulations, and liabilities governing merchant vessels, whether the United States be interested therein as owner, in whole or in part, or hold any mortgage, lien, or other interest therein.' 7 U.S. Comp. St. Sec. 8146e, p. 8651.

The act of 1916 came before the Supreme Court in The Lake Monroe, 250 U.S. 246, 39 Sup.Ct. 460, 63 L.Ed. 962. That vessel, which was owned and operated by the United States, had collided with the Helena off the coast of Cape Cod, and the District Court in Massachusetts, a libel having been filed against the Lake Monroe, issued process for the seizure of the ship. The Supreme Court held that, because of the act of 1916, in spite of her ownership by the United States, the vessel was subject to the same arrest as any vessel privately owned.

The arrest and seizure of government-owned merchant vessels was regarded as detrimental to the public interest. While it was recognized as proper that the United States should permit suits to be brought in admiralty against the government, it was deemed wise to restore the immunity of such vessels from seizure which had been taken away by the Shipping Act of 1916. As respects government vessels of war, or those employed in the revenue service of the government, they were always exempt from seizure; their immunity from arrest not having been taken away by the act of 1916. The consequence was that in 1920 Congress passed the Suits in Admiralty Act, which provided that no vessel owned by the United States should be subject to arrest or seizure by judicial process. 41 Stat. 525. In other words it restored the immunity from seizure which merchant vessels owned by the government possessed prior to the act of 1916, and it declared that a suit in personam in admiralty might be brought against the United States in a case where, if the vessel had been privately owned or operated, a proceeding in admiralty could be maintained at the time of the commencement of the action. Then the act went on to provide, as already set forth, that such suits shall be brought in the District Court 'for 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. ' Section 2.

This is the act upon which the libelant's right to maintain this suit depends, and the meaning of that act we are now called upon to determine. Section 1 of the act provides:

'That no vessel owned by the United States * * * shall hereafter, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions. * * * '

And section 2 provides:

'That in cases where, if such vessel were privately owned or operated, * * * a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States, * * * provided that such vessel is employed as a merchant vessel. * * * Such suits shall be brought in the District Court of the United States for 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.'

In interpreting the act, permitting as it does a suit to be brought against the United States, we must follow the rule of strict construction. This follows from the fact that the United States cannot be sued without their consent, and, if Congress in certain cases gives its consent, the courts are confined to the letter of the statute which expresses such consent. Schillinger v. United States, 155 U.S. 163 166, 15 Sup.Ct. 85, 39 L.Ed. 108. And all the provisions of such a statute are...