5 F.2d 234 | W.D. Wash. | 1925
This is a common-law action seeking to recover damages from the defendant for personal injuries sustained while employed on board a ship, while being repaired under authorization and contract of the defendant; it being alleged that defendant was operating such vessel as a merchant vessel. The defendant, appearing specially, moves to quash the service, alleging that the defendant is a corporation organized under the laws of the District of Columbia, that at the time of the accrual of the action the defendant was not doing business in King county or the state of Washington, and that the person upon whom service was attempted to be made was not such as authorized under the laws of the state, that the Congress, by the Suits in Admiralty Act, 41 Stat. 525 (Comp. St. Ann. Supp. 1923, §§ 1251%-1251%i), provided an exclusive remedy in admiralty for adjudication of claims such as in issue here.
While I believe the dissenting opinion in the Sloan Shipyards v. U. S. Shipping Board, etc., Case, 258 U. S. 549, 42 S. Ct. 386, 66 L. Ed. 762, states the real purpose and intent of the Congress, the majority opinion is the law fixing the corporate entity of the defendant. Sloan Shipyards v. Shipping Board, 258 U. S. 549, 42 S. Ct. 386, 66 L. Ed. 762; Shipping Board v. Sullivan, 261 U. S. 146, 43 S. Ct. 292, 67 L. Ed. 577; U. S. v. Matthews (C. C. A.) 282 F. 266; Providence v. Downey (C. C. A.) 294 F. 641; Puget Sound Mch. Depot v. Shipping Board (D. C.) 293 F. 768; Mfg., etc., v. Shipping Board (C. C. A.) 284 F. 231; Gould v. U. S. Shipping Board (D. C.) 261 F. 716; Lord v. Shipping Board (D. C.) 265 F. 955; Perna v. Shipping Board (D. C.) 266 F. 896; Pope v. Shipping Board (D. C.) 269 F. 319; American, etc., v. Shipping Board (D. C.) 270 F. 296; Eichberg v. Shipping Board, 51 App. D. C. 44, 273 F. 886; Buffalo v. Shipping Board, etc. (C. C. A.) 291 F. 23; Traylor v. Shipping Board (D. C.) 277 F. 248; Ingersoll v. Shipping Board, 195 App. Div. 838, 187 N. Y. S. 695; U. S. v. Puget Sound Mch. Depot (D. C.) 298 F. 353. The defendant operating a merchant vessel and charged with a tort, is within the rule announced in the Sloan Case.
The record, I think, is conclusive that the defendant did authorize the repairs upon the ship upon which plaintiff was employed, did have charge thereof, was maintaining an office and place of business in which business of defendant was transacted, and within the purview and provisions of the law within this state. Puget Sound Mch. Depot v. Shipping Board (D. C.) 293 F. 768; Kirby v. Louismann (D. C.) 221 F. 267; Smolik v. Philadelphia, etc. (D. C.) 222 F. 148; Michigan v. Alumnus, 190 F. 879; Dungan v. Bally (D. C.) 271 F. 517; Lee v. Fidelity, etc., 51 Wash. 208, 98 P. 658; Strandall v. Alaska, etc., 73 Wash. 67, 131 P. 211; Hayworth v. McDonald, 67 Wash. 496, 121 P. 984; Grams v. Idaho, 105 Wash. 602, 178 P. 815; Smith v. Dickinson, 81 Wash. 465, 142 P. 1133; Pacific v. International, 125 Wash. 273, 216 P. 358, 32 A. L. R. 767; sections 202 and 226, Remington’s Code of Washington; 9 Fletcher on Corporations, § 5939, p. 10020.
The defendant being a corporate entity and doing business in the state, and having directed the doing of the particular work on which the plaintiff was,injured, the service upon the district director in charge of the defendant in this district was sufficient. Subdivisions 8 and 9 of section 226, Rem. & Bal. Code of Wash. See Knutson v. Campbell Mills (D. C.) 300 F. 241.
Under the Sloan Case, the Suits in Admiralty Act invoked by the defendant has no application.
It is immaterial whether the United States owns any or all of the stock in the corporation, under all of the authorities. It waives its sovereignty when it enters into a commercial enterprise, and the corporate entity is amenable in the civil courts for its acts. The contention is not persuasive that the Congress could not have intended to extend the jurisdiction of the district court over the defendant, when thought of with-relation to the Tucker Act March 3, 1887, e. 359 (24 Stat. 505), and the Lever Act August 10, 19T7, 40 Stat. 276, § 25 (Comp. St. § 3115%q); the pertinent language of each respectively being: “All claims * * '* founded upon * * * any law of Congress” or “upon any regulation of an executive department,” or “upon any contract, expressed or implied, with the government of the United States,” and all claims which may be referred to it by either house of the Congress. Court of Claims Act (Comp. St. § TT36). “* * * In respect of 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.” Tucker Act. “ * * * And shall be entitled to sue the United States to recover such further sum as, added to said seventy-five per centum, will make up such amount as will be just compensation in the manner provided by section twenty-four, paragraph twenty, and section one hundred and forty five of the Judicial Code.” Section 25, Lever Act. Sections 24 and T45, Judicial Code (Comp. ,St. §§ 99T, 1136), incorporate, respectively, the provisions of the Tucker Act and the Court of Claims Act. Nor can any confusion which may be created by the several acts, if the Suits in Admiralty Act is not held exclusive, be controlling. This is a matter for legislation for the' Congress, and not for the courts.
The defendant is a corporate entity engaged in commerce — see U. S. v. Clallam County (D. C.) 283 F. 645, affirmed 263 U. S. 341, 44 S. Ct. 121, 68 L. Ed. 328— and is answerable for its torts in the District Court, jurisdictional facts being present, irrespective of the stock ownership of the United States. Sloan Case, supra. In Re Eastern Shore Shipbuilding Corporation (C. C. A.) 274 F. 893.
“But surely the fact that the Eleet Corporation was employed as an agency of the President does not of itself clothe the agency so employed with the immunities of his office.” In Re Eastern Shore Shipbldg. Corp. supra, at page 902.
The purpose of the Suits in Admiralty Act appears in section 1251C. S. 1923, which provides: “That no vessel owned by the United States or by any corporation in which the United States or its representatives shall own the entire outstanding capital stock or in the possession of the United States or of such corporation or operated by or for the United States or such corporation * * * shall hereafter, in view of the provisions herein made for a libel in per-sonam be subject to arrest * * * ” The sole purpose being to prohibit seizure and to substitute a proceeding in personam in lieu of the proceeding in rem, other requirements being present as provided in the act.
The plaintiff, being injured, had a remedy against the defendant, a corporate entity for any default which proximately resulted in his injury. He can invoke the common-law remedy or proceed under the Suits in Admiralty Act. Judge Hand, in John G. Wright v. Shipping Board (D. C.) 285 F. 647, so held. See, also, Rosenberg v. Shipping Board (D. C.) 295 F. 372; Banque v. Shipping Board (D. C.) 266 F. 897; Shipping Board v. Banque, 286 F. 918; Sloan Case, supra.
Motion to quash denied.