257 F. 863 | D. Mass. | 1919
The facts, while not admitted, are really not in controversy, and are sufficiently established by the formal proofs which have been submitted. The Ulrik Holm and the Catawissa were in collision in Boston Harbor. Both were damaged. The Reading Company, owner of the Catawissa, filed a libel in rem against the Holm, in answer to which her owners, Marius Nielsen & Son, Incorporated, of Copenhagen, appeared, stipulated, and answered. That suit is still pending. 'Three months and a half afterwards Nielsen & Son Incorporated, filed a cross-libel against the Catawissa, containing the usual prayer that the proceedings under the original libel by the Reading Company be stayed until security be given to respond in damages to the cross-libel, under admiralty rule 53 (29 Sup. Ct. xiv).
The Reading Company and Mr. Hines have each filed motions asking that he be substituted as' respondent in the cross-libel in place of the tug, and that the Catawissa be dismissed from the cross-libel as a party thereto. The present questions are: (1) Whether process shall issue against the Catawissa on the cross-libel, or whether that libel shall be dismissed as to her; (2) whether security shall be required of the Reading Company to respond in damages to the cross-libel as a condition of permitting it to proceed with its original libel; (3) whether, against the objection of Nielsen & Son, Incorporated, the Director General shall be substituted as respondent in the cross-libel.
I have just decided that section 10 of the Railroad Act (Act March 21, 1918, c. 25, 40 Stat. 456 [Comp. St. 1918, § 3115%j]) authorizes suits in admiralty against railroads while under federal control. Dampskibs, etc., v. Hustis, Receiver (D. C. Mass.) 257 Fed. 862, filed June 6, 1919. It follows that the usual admiralty procedure applies to such cases, including the right of arrest, unless that is forbidden by the last sentence of the first paragraph of section 10: “But no process mesne or final shall be levied against any property under such federal control.” If the arrest of the Catawissa be merely the equivalent.of attachment on mesne process' in an action at law, it is so forbidden.
The statutory provision just quoted does not, therefore, prevent arrest in admiralty proceedings, and process may issue against the Catawissa. General Orders of the Director General 50 and 50A impiledly authorize suits in admiralty against him. The further provisions limiting the control of the courts over such proceedings seem to me of extremely doubtful validity. lie cannot by his order prescribe how far he shall be subject to statutory law.
Motions denied.