257 U.S. 419 | SCOTUS | 1922
Lead Opinion
delivered the opinion of the court.
These are petitions for prohibition to prevent District Courts'of the United States from exercising jurisdiction of proceedings in rem for collisions that occurred while the vessels libeled were owned, absolutely or pro hac vice, by the United States, and employed in the public service.. The questions arising' in the three cases are so nearly the same that they can be dealt with -together.
,The Liberty was a pilot boat let to the United States on the bare-boat basis at a nominal rate of hire. She had been manned by a crew from the United States Navy and commissioned as a naval dispatch-boat, and was émployed t.o serve military needs-in war service. The collision took place on December 24,1917, while she was so employed, in Boston Harbor. Afterwards the vessel was redelivered to the owners and still later, on February 5, 1921, the suit now in question was brought against- her. On February 14, under the Act of March 9, 1920, c. 95, § 4, 41 Stat. 525,
The Steamship Carolinian had been chartered to the United States upon a .bare-boat charter, and had been assigned to the War Department, by which she was employed as an army transport and furnished with an army crew. While she was so employed the collision took place in the harbor of Brest, France, on February 15, 1918. Afterwards the Carolinian was returned to the owners, and she was employed solely as a merchant vessel on July 9, 1920, when the suit in question was begun, under which -the vessel was seized. .In the same month' the United States filed a suggestion of interest, and on January 6, 1921, set up the foregoing facts and prayed that the libel be dismissed. The District Court maintained its jurisdiction and this petition' was brought by the Attorney General along with the other two. 270 Fed. 1011.
It may be -assumed that each of these vessels might have been libeled for maritime torts committed after the redelivery that we have mentioned. But the Act of September 7, 1916, c. 451, § 9, does not create a liability on the part of the United States, retrospectively, where one did not exist before. Neither, in our opinion, is such a. liability created by the Act of March 9, 1920, c. 95, § 4, authorizing, the United States to assume the defence in suits like these. It is not required- to abandon any defence that otherwise would be good. It appears to us plain that before the passage of these acts neither the United States nor the vessels in the hands of the United States were liable to be sued for these alleged maritime torts. The Liberty and the Carolinian were employed for public and government purposes, and were owned pro hac vice by the United States. It is suggested that the Western Maid was a merchant vessel at the time , of the
In deciding this question we must realize that however ancient may be the traditions of maritime law, however diverse the sources from which it has been drawn, it derives its whole and only power in this- country from its haying been accepted and adopted by the United States. There is no mystic over-law to which even the United States must bow. When a case is said to be governed by foreign law or by general maritime law that-is only a short way of saying that for this.purpose, the sovereign power takes up a rule suggested from without and makes it part of its own rules. The Lottawanna, 21 Wall. 558, 571, 572. Dalrymple v. Dalrymple, 2 Hagg. Cons. 54, 58, 59. Dicey, Conflict of Laws, 2d ed., 6, 7. Also .we must realize that the authority that makes the law is itself superior to it, and that if it consents to apply to itself the rules that it applies to others the consent is free and may be withheld. The sovereign does not create justice in an ethical sense, to be sure, and there may be cases in which it would, not dare to deny that justice for fear of war or revolution. Sovereignty is a question of power, and no human power is unlimited. Carino v. Insular Government of the Philippine Islands, 212 U. S. 449, 458. But. from the necessary point of view of the sovereign and its organs whatever is enforced by it as law is enforced as the
The United States has not consented to be sued for torts, and therefore it cannot be said that in a legal sense the United States has been guilty of a tort. For a tort is a tórt in a legal sense only because the law has made it so. If then we imagine the sovereign power announcing' the system of its laws in a single voice it is hard to conceive it as declaring that while it does not recognize the possi-. bility of its acts being a legal wrong and while its immunity from such an imputation of course extends to its property, at least when employed in carrying on the operations of the Government, — specifically appropriated to national objects, in the language of Buchanan v. Alexander, 4 How. 20,—yet if that property passes into other hands, perhaps of an innocent purchaser, it may be seized upon a claim that had no existence before. It may be said that the persons who actually did the act complained of may or might be sued and that the ship for this purpose is regarded- as a person. But that is a fiction not a fact and as a fiction is the creation of the law. It' would be a a strange thing if the law created a fiction to accomplish the result supposed. It is totally immaterial that in dealing with private wrongs the fiction, however originated, is in force. See Liverpool, Brazil & River Plate Steam Navigation Co. v. Brooklyn Eastern District Terminal, 251 U. S. 48, 53. The personality of a public vessel is merged in .that of the sovereign. The Fidelity, 16 Blatchf. 569, 573. Ex parte State of New York, No. 2, 256 U. S. 503.
But it is said that the decisions have recognized that an obligation is created in the case before us. Legal obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp. The leading authority relied upon is The Siren, 7 Wall. 152
Rule absolute for writs of prohibition.
Concurrence Opinion
with whom concurred-
The question in the cases is without complexity, and the means of its solution ready at hand. The question is, What is the law applicable to colliding vessels and what remedy, is to be applied to the offending one, if there be an offending one? .The question, I venture to say, has unequivocal'answer in a number of decisipns of this court if. they be taken at their word. And why should they
What then do they express to be the law of colliding vessels, the assignment of offence, if offence there be, and how far is it dependent, if at all, upon whether the offender was in public or private service?
The answer may be immediate. This court has kept steadily in mind that the admiralty jurisprudence of the country, as adopted by the Constitution, has a distinctive individuality, and this court has felt the necessity of keeping, its principles in definite integrity, and the remedies intact by which its principles can alone be realized. The most prominent and efficient of its remedies is that which subjects its instrumentalities, its ships particularly, to judgment. Personality is assigned to them and they are considered in pledge to indemnify any damage inflicted through them. They are made offenders and have the responsibility of offenders, and the remedy is suited to the purpose. In Rounds v. Cloverport Foundry & Machine Co., 237 U. S. 303, 306, it is said, Mr. Justice Hughes delivering the opinion of the court, “ The proceeding in rem which is within the exclusive jurisdiction of admiralty is one essentially against the vessel itself as the debtor or offending thing, — in which the vessel is itself ‘ seized and' impleaded as the defendant, and is judgecLand sentenced accordingly.’”
In The John G. Stevens, 170 U. S. 113, 120, the court, .through Mr. Justice Gray, declared, “The foundation of the rule that collision gives to the party injured a pis in rein the offending ship is the principle of the maritime law that the ship, by whomsoever owned or navigated, is considered as herself the wrongdoer, liable for the tort, and subject to a maritime lien for the damages. This principle, as has been observed by careful text writers on both
The Siren was cited and the fact is pertinent as we shall presently see. The China, 7 Wall. 53, was also cited and quoted from. The quotation was repeated in Ralli v. Troop, 157 U. S. 386, 402, 403, where it is said that the liability of a vessel is not derived from the authority or agency of those on board, either under the civil or common law,' “ but upon a distinct principle of maritime law, namely, that the vessel, in whosesoever hands she lawfully is, is herself considered as the wrongdoer, liable for the tort, and subject to a maritime lien for the damages.”
In Tucker v. Alexandroff, 183 U. S. 424, 438, this court by Mr. ■ Justice Brown gave graphic representation to the same principle. He described a ship prior to her launching as “a mere congeries of wood.and iron” but after launching she took- on a name, a personality of her own and had in a sense volition, became competent to contract and be contracted with, sue and be sued, could have agents of her own, was capable of committing, a tort and was pledged to its reparation. Cáses were cited, The Siren among others.
The doctrine thus explicitly announced is denied application in the pending cases and upon what grounds? As I understand, the contention is that a vessel has not independent guilt, that there' must be fault in its owner or
But if the contention were conceded it would not determine these cases. I reject absolutely that because the Government is exempt from suit it cannot be accused of fault. Accountability for wrong js one thing, the wrong is. another.
But I do not have to beat about in general reasoning. I may appeal to the authority of The Siren, 7 Wall. 152, and the cases that have approved and followed it. A gloss is attempted to be put upon it — which we think is unjustified and inaccurate unless indeed, -it can be asserted that the writer of -the opinion did not know the meaning of the words he used, and, that the members of the court who concurred with him, were equally deficient in understanding. And their insensibility to what the words conveyed had no excuse. A dissenting justice tried to bring their comprehensive import to understanding, proclaimed indeed, that the words had the extent and consequence that the court now says were not intended or accomplished.
The Siren, while in charge of a prize master and crew, having been taken in prize by the United States, ran into in the port of New York and sank the sloop Harper. The collision was regarded by the court as the fault of the-Siren. She was condemned as prize and sold and the proceeds deposited with the Assistant Treasurer of the United States. The owners oh the Harper asserted & claim upon her and her proceeds for the damages sus
The United States was an actor in the case and this was regarded by the court, who spoke by Mr. Justice Field, as removing the impediment to the claim of the owners of the Harper. It was not, however, the basis of recovery. There was no confusion in the language or conception of the learned Justice, nor in the court, of that. By becoming the actor, the United States, it was said, waived its exemption from direct suit and opened “to consideration all claims and equities in regard to the property libelled ” — not, of course, that the waiver of exemption created the “claims and equities”. They, it was explicitly said, were created against the offending vessel by the collision. “In such case”, the language was, “the. claim exists equally as‘if the vessel belonged to a private citizen, but for reasons of public policy, already stated, cannot be enforced by direct proceedings against the vessel.” And again, “The inability to enforce the claim against-the vessel is not inconsistent with its existence.”
The distinction was clearly made between .exemption of the United States, the offence of the vessel and the existence of a claim against it in consequence of its offence. And the distinction was emphasized in the dissent of Mr. Justice Nelson. He was at pains to distinguish between liability to suit and legal liability for the act. of injury, the ground of suit. And the basis of his dissent was the same as the basis of the opinion of the court in the present cases, but not so epigrammatically expressed. In the opinion in these cases it is said that “ the United States has not consented to be sued for torts, and therefore it cannot be said that in a legal sense the United States has been guilty of a tort. For a tort is a tort in a legal sense only because the law has made it so.”
Mr. Justice Nelson was more discursive. He said that-“if the owner of the offending vessel [he regarded the Siren as owned by the United States] is not liable at all
I repeat, that in view of these extracts from Mr. Justice Nelson’s dissent, misapprehension of its* opinion by the court is not conceivable nor carelessness of utterance. Yet the opinion in the present cases practically so asserts and, in effect, regards Mr. Justice Nelson’s dissent as the law of the Siren and not that which the court pronounced. The court decided that the vessel was the offending thing, and though it could not be reached in the hands of the Government, this “ inability to enforce the claim against the vessel ” was “ not inconsistent with its existence.”
The inevitable deduction is that in such situation the enforcement of a claim is suspended only, and when the vessel passes from the hands of the Government, as the offending vessels have in the cases at bar, they and “ all claims and equities in regard to ” them may be enforced..
The case was commented op in The Davis, 10 Wall. 15, 20, and the gloss now put upon it rejected. It is there said that the well supported doctrine of the case is “ that proceedings in rem to enforce a lien against property of the United States are only forbidden in cases where, in order to sustain the proceeding, the possession of the United States must be invaded under process of the court.”
So again in Workman v. New York City, 179 U. S. 552, where it is said, Chief Justice White delivering the opinion of the court, after an exhaustive review of cases, such as
Against this array of cases and their reasoning, Ex parte State of New York, No. 2, 256 U. S. 503, and Ex parte State of New York, No. 1, 256 U. S. 490, are .adduced. Neither case has militating force. The latter case decided nothing but tha,t a State cannot.be sued without its consent. An indisputable proposition which this court in its opinion had to clear from confusing or disturbing circumstances. In the former case, The Queen City, a steam tug, was in the possession and service of the State of New York and to have awarded, process against it as the District Court did, would have arrested the service. This court rightfully reversed, that action. The tug had not been released from that immunity as the vessels were in the pending cases.
Counsel for claimants in opposition to the petition cite cases at circuit and district which- followed The Siren.
The rules should be discharged.
General Mutual Insurance Co. v. Sherwood, 14 How. 351, 363; The Creole, 2 Wall. Jr. 485, 518; The Mayurka, 2 Curtis, 72, 77; The Young Mechanic, 2 Curtis, 404; The Kiersage, 2 Curtis, 421; The Yankee Blade, 19 How. 82, 89; The Rock Island Bridge, 6 Wall. 213, 215; The China, 7 Wall. 53, 68; The Siren, 7 Wall. 152, 155; The Lottawanna, 21 Wall. 558, 579; The J. E. Rumbell, 148 U. S. 1, 10, 11, 20; The Glide, 167 U. S. 606.
The U. S. S. Hisko, U. S. S. Roanoke and U. S. S. Pocahontas (Circuit Judge Manton, S. D. N. Y.) (March 17, 1921, unreported opinion annexed to brief);
The U. S. S. Newark (District Judge Knox, S. D. N. Y.) (March 18, 1921, unreported opinion annexed to brief);
■The U. S. S. Sixaola (District Judge Mayer, S. D. N. Y.) (April. 21, 1921, unreported opinion annexed to brief);
The F. J. Luckenbach, 267 Fed. 931;. The Liberty, now before this court; The Carolinian, 270 Fed. 1011, also now before this court.
Also: The Florence H., 248 Fed. 1012; The Gloria, 267 Fed. 929; The City of Philadelphia, 263 Fed. 234.
.Counsel also cites: The Tampico, 16 Fed. 491; Thompson Navigation Co. v. City of Chicago, 79 Fed. 984; Johnson Lighterage Co., 231 Fed. 365; The Attualita, 238 Fed; 909; The Luigi, 230 Fed. 493; The Othello, 5 Blatchf; 343.
