United States of America Ex Rel. James H. Moore v. George Koelzer
457 F.2d 892
3rd Cir.
1972
Check Treatment

*1 “demurrage” paid while for A.M.C. being unload- ship to and moved America ex rel. STATES of UNITED Riv- on the Columbia dock ed at another MOORE, Appellant, H. James er. Bellingham costs stipulated that George KOELZER et al. proximate delay the direct were No. 71-1018. is clear of the accident. It result Appeals, United States Court of demur- have recovered Wilhelmsen could rage Third Circuit. Bellingham, had the costs if from Submitted Jan. 1972. already covered Jebsens Bellingham However, Decided contends March A.M.C. not obli- were that gated Jebsens A.M.C. par- their charter the terms of pay the demur-

ties to Wilhelmsen

rage, paying, charterers acted volunteers, disqualifies them subrogation. recovery ‍​​​​​‌‌​‌​‌​‌​​‌‌​‌​​​‌​‌​‌​‌​​​‌​‌​‌‌​​​‌​‌‌​‌‌‍in judgе applied a different The district Belling- urged by from that

standard terms of the charter

ham. Based on the

parties, believed and A.M.C. Jebsens obligated they good faith that were judge demurrаge. pay The district a reasonable

found that this belief was

interpretation char- of the terms of the good

ter-parties and that a reasonable obligated pay

faith belief that one is equi- application ‍​​​​​‌‌​‌​‌​‌​​‌‌​‌​​​‌​‌​‌​‌​​​‌​‌​‌‌​​​‌​‌‌​‌‌‍sufficient for subrogation.

table doctrine of agree. good faith standard

We The policies behind

follows from the liberal subrogation. Credit doctrine of Corp. Beckstead, 63 Wash.2d In Farm- P.2d 864 re Bank, & Wash.

ers’ Merchants State (1933). parties ‍​​​​​‌‌​‌​‌​‌​​‌‌​‌​​​‌​‌​‌​‌​​​‌​‌​‌‌​​​‌​‌‌​‌‌‍26 P.2d Washington specifi-

havе cited case no cally adopting this rule and we have none, in-

found but the standard is not Washington

consistent with

Jebsens and A.M.C. were con probable possible

fronted with liabili

ty. protect To their interests and to defending

avoid costs of a suit

Wilhelmsen, paid the charterers

shipowner. good hold We that this faith

belief was sufficient to entitle them to subrogation rights ‍​​​​​‌‌​‌​‌​‌​​‌‌​‌​​​‌​‌​‌​‌​​​‌​‌​‌‌​​​‌​‌‌​‌‌‍against Bellingham demurrage for which the latter was

responsible. Conway, See Mosher v.

Ariz. 46 P.2d 110

Affirmed.

pellant presently was convicted and is Penitentiary incarcerated in the Leavenwоrth, at Kansas. complaint

A motion to dismiss the filed on behalf of all the and defendants affidavits were thereof filed denying allegations complaint the the of any “dealings” specifically denying and by defendants with the other capacities. than in their official An аf- by appellant fidavit reiterated the charges. Moore,pro se. James H. ‍​​​​​‌‌​‌​‌​‌​​‌‌​‌​​​‌​‌​‌​‌​​​‌​‌​‌‌​​​‌​‌‌​‌‌‍granted The District Court the motion Atty., Stephen Stern, Herbert J. U. S. ground to dismiss the on the Newark, appellees. King, J.,N. E. that the failed a to state claim DUSEN, Before and VAN appealed. Plaintiff Judges, GREEN, and District Judge. Preliminarily, it clear the is that Dis jurisdiction

trict Court has under 28 U. 1331(a) provides: THE S.C. See. which OPINION OF COURT origi- “The courts district shall have GREEN, CLIFFORD District SCOTT jurisdictiоn nal all of civil actions Judge. controversy wherein the matter in ex- Plaintiff, Moore, Appellant, James H. $10,000, ceeds the sum or of vаlue ex- herein, Complaint filed a the costs, clusive of interest and and United States District Court for the Constitution, laws, under arises the Jersey demanding District New dam- treaties the United States.” ages alleged violations his civil rights “rights and of his Constitutional The hand-written Also, requested a judgmеnt to fair trial.” that a demand for enjoined “$10,00,0000” may be “fur- defendants con- be construed as deprivations rights, taining plaintiff’s allegation ther a that privileges, guaran- controversy and immunities as matter in a is of sum or val- by the teed and Constitution of the ue in excess of ten thousand dollars. United States.” Appellant bases his cause of action on Defendant, George Koelzer, an As- violations his civil under 42 Attorney, sistant United States Defend- 1981-1983, and on violation of §§ ants, Ralph Antonius Genakos “rights to a fair trial” under the Frank, are of the Federаl Constitution. Investigation. alleged It is This Circuit has held that a cause of that defendants Genakos action for not accrue un- does legal falsify Frank “did a docu- seq. der 42 U.S.C. 1981 et for an al- §§ ment” which was offered into evidence leged violation federal Act of- аgainst appellant in a federal criminal ficers under color of federal prosecution; defendants, also, said Reid, Bethea v. 445 F.2d 1163 trial, witnesses in the criminal are al- exists, if a it cause action must leged given testimony to have “false un- on based a violаtion of a constitution- der defendant, oath.” The other Koel- protected right ally plaintiff. zer, to have solicited the testimony.” Subsequent “fraudulent Plaintiff con- dismissal Court, Supreme tends the aforesaid District Court of directed conduct was against opinion by him “beсause he is black man United in an Mr. trial, ap- muslim.” In a violation of Justice Brennan held criminal right Supreme the Fourth Amendment to be se- Court declined to against cure unreasonable searches consider the defense of raised gave agents dam- seizures rise to an action for the federal because had not ages against passed upon by Ap- federal district court the Court of right agents, peals. Similarly, immu- Reid, federal absent a su- nity. pra, *3 Unknown Named Six this Bivens v. Court declined to decide the Narcotics, Agents question judiсial Federal Bureau or executive immu- nity pre- involved, 403 91 29 L.Ed.2d for the U.S. S.Ct. 1971). ferring (June 21, development 619 to await fuller pro- We will the same follow facts. Thereafter, relying on Bivens v. present cedure in the case. Agents Named Six Unknown of Federal Accordingly, the order оf the District Narcotics, supra, Court this Coui't will affirmed insofar dis- Reid, supra, in Bethea that a held complaint against defend- missed ant, violations of Koelzer, Assistant United States Fourth and Fifth Amendments Attorney, and and remanded reversed upon stated a claim proceеdings inconsistent further not granted. remaining opinion this with as to action, In this we do have a not defendants. charge of a Fourth Amendment viоla tion; however, there are alle Judge (concur- DUSEN, Circuit VAN gations of Fifth Amendment violations ring). damages. to an action for Biv Judge agree opinion I with Agents ens Six Unknown Named reaches, but, and the result it Green Narcotics, Federal Bureau of rec preparation of of the this view ognizes a cause of action for layman-prisoner,1 by a constitutionally protect for violation of page full 2 of the second sentence on interests, ed limited to majority complaint’s opinion, re- and the Fourth Amendment viоlations. 241,2 on 18 I liance allegation U.S.C. believe § “did immunity and Frank that Genakos unless there is suit, willfully knowingly with malice a claim states George aforethough[t] conspire with which relief can be How men- ever, Reid, supra, Koelzer to commit the above this signifi- is also held tion сriminal acts” Court that an [ed] Assistant United Breckenridge, 403 Attorney judicial cant. See Griffin v. is clothed with 88, 102, L.Ed.2d 29 Miller, when U.S. S.Ct. in his official ca pacity. Riсhardson v. defendant 1971). (3d clearly Koelzer’s indicate F.2d Cir. affidavit both “dealings” only that his with Judge concurs Circuit capacity, and, inwas his official accord Judge expressed views in District ingly, immunity. entitled opinion in those ex and also GREEN’s Judge pressed In Bivens v. Unknown Named Six VAN DU Agents Narcоtics, opinion. SEN’s 2. 18 1. Sec Richardson v. 324,8 (3d injure, joyment “If citizen two or more oppress, Cir. § any right 3971). threaten, Miller, free exercise or рersons conspire privilege 446 F.2d this or intimidate wording: secured en- to him having so exercised the imprisoned of the United “They [*****] 42 U.S.C. shall be fined ... § the Constitution States, or or because of both; same; ... . or . . . . or .