ZUBIK v. UNITED STATES.
No. 10449.
United States Court of Appeals Third Circuit.
July 11, 1951.
Argued June 7, 1951.
190 F.2d 278
Even if it be assumed that the two witnesses last above mentioned would testify on the stand exactly as they have written the facts in their letters, appellants are still entitled to ascertain on cross examination whether there are any additional or explanatory facts, and to test the knowledge and competence of the witnesses and the basis of their professional opinions.
For the reasons stated, the judgment appealed from must be reversed, and the cause remanded, without prejudice to further proceedings before the deputy commissioner, and in the district court, consistent with this opinion. The cause is to be retained in the district court until the deputy commissioner has an opportunity to conduct further hearings in the matter, after which the court should act upon the record as thus supplemented. What has been said also disposes of the cross appeal.
Reversed and Remanded.
1. Other than the medical testimony above referred to, the only evidence as to the nature of claimant‘s injury was that of claimant himself, of which the following is typical: “Q. Will you describe, Mr. Lane, the symptoms, that is, where did your back hurt after you lifted the sugar? A. It seemed like it hurt in the lower back or something—I don‘t know how it did but it seemed like it pulled loose or something—it seemed like something pulled loose.”
Patrick F. Cooney, Washington, D. C. (Holmes Baldridge, Asst. Atty. Gen., Edward C. Boyle, U. S. Atty., Pittsburgh, Pa., J. Frank Staley, Washington, D. C., W. Wendell Stanton, Pittsburgh, Pa., on the brief), for the United States.
Before GOODRICH, KALODNER and HASTIE, Circuit Judges.
GOODRICH, Circuit Judge.
This appeal raises objections to the seizure and proposed sale by the United States of a river barge alleged to belong to appellant.
On April 5, 1951 a libel in personam under the
On April 10, 1951, five days after the filing of the libel, and before any responsive pleading had been filed, Zubik presented to the District Court a petitiоn seeking a rule on the commander of the Army Engineers to show cause why the barge should not be returned to Zubik and an order restraining the proposed sale until determination of the proceeding upon its merits. The petition was denied by the District Court without opinion. Zubik appealed.
We pass over several interesting points regarding the appealability of the order complained of and whether the United States has consented to be sued in the manner pursued here. We assume both without deciding either, because we сonclude that appellant has stated no cause of action on the merits and that the libel should be dismissed.
Libellant states in his libel that the United States Engineers in removing his barge were acting pursuant to
The libel itself discloses that the barge sank in the navigable portion of the Allegheny River on November 28, 1950. The United States Engineers directed its owners to remove it, and this was nоt done. Finally on March 10, 1951, three and one-half months after the sinking, the Engineers stepped in and removed the barge and propose to put it up for public sale. All this appears to be in strict accordance with the provision quoted above. Of what, then, doеs appellant complain? We consider his points in order.
(1) It is asserted that the barge was not in fact abandoned. This is immaterial. Under statute the Secretary of the Army is given the right to remove an obstruction which has existed for over 30 days, “or whenever the abandonment of such obstruction can be legally established in a less space of time.” We read this language to mean that the obstruction may be removed and disposed of by the government if it is not removed by the owner within 30 days, regardless of whether the owner actually in fact intends to abandon the vessel. Failure to remove for 30 days amounts to a forfeiture to the United States in the event that
(2) The second contention is that the government acted arbitrarily in failing to give appellant 30 days or a reasonable time to remove the bаrge after he bought it from American Barge Lines. It will be remembered that the deadline for removal set by the United States Engineers in its notice to American Barge Lines was March 5. Zubik acquired title to the barge on March 7, after the deadline. The Engineers removed the bargе on March 10. This set of allegations we consider immaterial also. In the first place the statute makes the giving of notice to the owner to remove the obstruction a purely discretionary matter with the Secretary of the Army.3 It is difficult to see, therefore, how removal without notice could be arbitrary or unreasonable. Moreover, according to the libel the Engineers did give adequate notice to American Barge Lines to remove the barge and of its intention to do so itself if this was not done by March 5. The purchase by Zubik did not give him rights over and above that of his transferor, as though he were a holder in due course of a negotiable instrument. Such a requirement as appellant contends for would make it possible to prevent removal of the vessel under this Section by the simple expedient of transferring title.
(3) It is next asserted that the barge is worth twice what it cost the government to remove it, and that therefore it was arbitrary and unreasonable for the government to refuse Zubik‘s offer to pay these expenses in exchange for the return of the bаrge. The language of the statute disposes of this contention. It provides that the vessel may be “sold, or otherwise disposed of by the Secretary of War at his discretion, without liability for any damage to the owners of the same” and that “any money received from the sale of any such wreck * * * shall be covered into the Treasury of the United States.” It may be that this language permits the Secretary of the Army to do what appellant requests. But it expressly gives him the discretion to sell the barge and in such case all the proceеds must go into the Treasury. The courts cannot interfere with this discretion given him. It is immaterial that as a matter of hindsight it appears that the government stands to gain rather than lose by the deal. If the costs of removal exceeded the value of the barge the owner would nоt be liable for the difference.4 He cannot conversely, claim the benefits simply because the salvage operations proved financially successful.5
(4) In the court below libellant made the assertion that his barge did not obstruct or endanger navigation. Hе repeats the assertion here. The government
We conclude that, even assuming everything to be true as stated by libellant, the Secretary of the Army, acting through the local commander of the Army Engineers, was acting in strict accordance with the authority given him by the Act and that the libel therefore must be dismissed for failure to state a cause of action against defendant.
Thе order of the District Court is affirmed and the case remanded with directions to dismiss the libel.
HASTIE, Circuit Judge, (concurring).
To me it seems clear that the district court lacked jurisdiction to entertain this libel because this is a suit against the United States to which the United States has not consented.
In support of jurisdiсtion libellant relies upon the following provision of the
No disagreement with the views expressed by the court on the merits of the controversy is either expressed or implied. I do not reach that aspect of the case at all.