The opinion of the court was delivered by: GANEY
On Application for Rehearing.
This matter comes before the Court pursuant to an application for a rehearing.
The petition for the rehearing and the argument thereon concern themselves with the amendment of the Order of this Court entered as of February 19, 1942, vacating an attachment and dismissing a libel against the Steamship "Advance" and in lieu thereof "that the motion to dismiss the libel be denied and that all proceedings in the case be stayed with leave, however, to the libellant at any time within six months after the deposit with the Treasurer of the United States of compensation for the steamship 'Advance', to amend said libel and proceed with the prosecution of the suit in accordance with the requirements of the Act of June 6, 1941, with regard to suits against such fund, with the same force and effect and in the same manner as if this suit were originally commenced against the said fund." In other words, the libellant asks that the decree vacating the attachment be not altered, since the "Advance" is now at sea, but that the libel be not dismissed but held in statu quo until a fund is deposited with the Treasury of the United States by way of just compensation for the taking of the vessel in order that the libellant might proceed against said fund. This retention of jurisdiction of the libel, counsel for the libellant contends should be done in the exercise of the broad equitable powers inherent in the Admiralty Courts. In substantiation of this contention, he cites The Pietro Campanella, D.C., 41 F.Supp. 656, and W. H. Stott & Co. v. A/S D/S Vesterhavet, D.C., 40 F.Supp. 637. With these rulings I am in agreement and were like factual elements to exist here I should grant libellant's prayer. However, in both of these cases, examination will disclose that the licen attached before the Government took over the vessels, which is an entirely different factual situation than that existing in the instant case, for here, while the cause of action arose previous to the Government taking, the attachment was not made until the vessel was the property of the United States.
Counsel for the libellant has also pressed upon the Court the case of The Kaiser Wilhelm II, 3 Cir., 246 F. 786, L.R.A. 1918C, 795, as an example of where a Court of Admiralty exercises its broad equitable powers and as an instance where the jurisdiction of a libel was retained for later disposition. However, again in this instance, the vessel was libeled while the property of a German company and it was only after the vessel had been libeled that the Government took the same over, and accordingly, since the Court had discretion to take jurisdiction here and did take it, I am in agreement with the Court's ruling that it was proper to retain jurisdiction of the libel for later disposition. Counsel has not cited, nor has diligence disclosed any authority which holds that the Court has any authority to retain jurisdiction of a libel which was filed against a vessel that was the property of the United States.
I feel that the Court never had jurisdiction here which it could retain by reason of the Suits in Admiralty Act of March 9, 1920, 46 U.S.C.A. § 741 whereof is as follows:
"Section 741. Exemption of United States vessels and cargoes from arrest or seizure. 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, and no cargo owned or possessed by the United States or by such corporation, shall, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions: Provided, That this chapter shall not apply to the Panama Railroad Company. (Mar. 9, 1920, c. 95, § 1, 41 Stat. 525.)"
While counsel for the libellant contends that this statute is inapplicable because most of the cases arising thereunder are where the cause of action against the vessel arose while owned by the United States, I am of the opinion that the Act should be construed strictly, as was held by the Court in The Isonomia, 2 Cir., 285 F. 516, 520, wherein the Court said:
"In interpreting the act [this chapter], permitting as it does a suit to be brought against the United States, we must follow the rule of strict construction. This follows from the fact that the United States cannot be sued without their consent, and, if Congress in certain cases gives its consent, the courts are confined to the letter of the statute which expresses such consent. Schillinger v. United States, 155 U.S. 163, 166, 15 S. Ct. 85, 39 L. Ed. 108. And all the provisions of such a statute are jurisdictional. As the liability and the remedy are created by the statute, the limitations of the remedy are regarded as limitations of the right. The Harrisburg, 119 U.S. , 214, 7 S. Ct. 140, 30 L. Ed. 358."
In construing this section of the Act, I therefore feel that it makes no difference when the cause of action arose on which the libel is grounded, but that what the Congress intended to prevent, was the interference with Government owned vessels by the filing of libels, and to substitute therefor actions in personam.
Accordingly, it is held that since the vessel was libeled as a Government owned vessel, this Court has no jurisdiction to retain the libel, and accordingly it must be dismissed.
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