exceptions to certain interrogatories propounded by libellant. Pursuant to the request of libellant's counsel, says the next order dated October 3, Judge Kraft continued the aforesaid hearing to October 15, 1962.
Then on October 19, after partial hearing on respondent's exceptions, Judge Kraft ordered that final hearing thereon be continued until further order of Court upon request from either party. On that same day he sent identical letters to counsel for libellant and respondent, saying:
'After concluding the partial hearing today on respondent's exceptions to certain of libellant's interrogatories I had occasion to examine the record file and, in consequence of that examination, suggest that you both give consideration as to whether the appearance entered July 23, 1962 (Document 2) was not a general appearance for the respondent by its proctors and whether, if so, questions of the propriety of service and of discovery touching upon the propriety of service may not now be moot.'
This Court takes that letter as a caveat, as did counsel, and accordingly has given close attention to the problem. That question, indeed, is one of the principal points briefed and argued on the present motion. It does not appear, however, that Judge Kraft's letter is to be taken as anything more than a counsel of caution. Had he determined the point, as argued by libellant, it is believed that he would have stated such conclusion in the form of a ruling or order.
If determination is to depend upon the Federal Rules of Civil Procedure, the applicable section is Rule 12(b). It provides that objections such as jurisdiction over the person are to be raised either by motion before pleading, or may simply be stated in the answer with any other defenses. And it adds:
'* * * No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. * * *'
The effect of that section has been described in many different fashions, but never better than by Judge Maris in Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3rd Cir. 1944):
'* * * It necessarily follows that Rule 12 has abolished for the federal courts the age-old distinction between general and special appearances. A defendant need no longer appear specially to attack the court's jurisdiction over him. * * *'
The controversy which resulted in the opinion last cited came before the courts a number of times. Since the three opinions to which reference will be made all appeared under the same caption, Orange Theatre Corp. v. Rayherstz Amusement Corp., the caption will not be repeated in the following citations: 2 F.R.D. 278 (D.N.J.1941); 130 F.2d 185, 187 (3rd Cir. 1942); 139 F.2d 871 (3rd Cir. 1944) (cert. den. sub. nom. Orange Theatre Corp. v. Brandt, et al., 322 U.S. 740, 64 S. Ct. 1057, 88 L. Ed. 1573 (1944)).
The first of the opinions cited was a ruling of the district court on the motion of certain defendants for dismissal of the complaint on venue grounds. These defendants had entered into stipulations with opposing counsel twice extending the time within which to plead or otherwise move with respect to the complaint. 2 F.R.D. 278 (D.N.J.1941). The district court ordered dismissal, in accordance with defendants' motion, despite plaintiff's contentions that defendants' objections had been waived because their motion attacking venue came late, having been filed more than 20 days after service of summons.
It was from this order that the first appeal was taken. In an opinion by the late Judge Goodrich, that order was reversed. The stipulations in question were held to be purely private, regardless of the fact that they had been filed with the clerk of the district court. Stipulations made without approval of court, purporting to extend the time for pleading, are ineffective. Thus the defendants were in default and had waived their objections. Accordingly, the order was reversed and the cause remanded. 130 F.2d 187 (3rd Cir. 1942).
The second opinion of the Court of Appeals, by Judge Maris, describes the occurrences between August of 1942 and October of 1943, and passes on the validity of those transactions, in the following words:
'* * * the district court reinstated the complaint and granted the defendants an extension of time within which to answer or otherwise move with respect to it. The extension was granted under the authority conferred upon the district court by Civil Procedure Rule 6(b) * * * under which the court had ample power, in its discretion, to extend the time for serving a motion or answer.' 139 F.2d 871, 872.
The foregoing proposition, quoted from the second and final opinion of the Court of Appeals in the Orange Theatre case, demolishes libellant's argument -- from the standpoint of the Federal Rules of Civil Procedure -- that even stipulations which had been approved by order of court could not extend the time in which to object or answer.
It is pertinent to note another point in the eventual disposition of the Orange Theatre case. In the district court, the defendants had objected on the ground of improper venue. When the reinstated case reached the Court of Appeals for the last time, however, that court found the real basis of defendants' grievances to have been want of jurisdiction of the court over the persons of the particular defendants. That is to say, these defendants had been trying to preserve objections to venue all along, whereas the correct ground was that the service of process was bad. Defendants in fact were not amenable to service in the place, and through the person, upon whom the ostensible service had been made.
Even that mislabelling or misstating of the grounds for objection did not effect a waiver of the true grounds, said the 1944 opinion. 139 F.2d 871. The court said that the gist of defendants' course of action was that whatever appearance they made was not voluntary. That is to say: they had been raising objections to matters other than the merits.
Since the defendants' appearance, regardless of its designation or other circumstances, in truth made no attempt to meet the merits, it was 'not voluntary.' Affirming the district court's action in quashing the service of process on these defendants, the court said that without proper service of process --
'* * * the district court could acquire the power to adjudicate the controversy only if the parties voluntarily appeared. Consequently the failure of the individual defendants to assert the defense of lack of jurisdiction of their persons could not at any time before their voluntary appearance fairly be treated as a waiver of the defense * * *.' Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 873 (3rd Cir. 1944).
Since the proceedings in the instant case involved no extensions of time not approved by order of court, and since the district courts have discretionary power to grant such extensions, there was no waiver by failure to answer or move within the 20 days required by the rule. Cf. Emerson v. Nat. Cylinder Gas Co., 131 F.Supp. 299 (D.Mass.1955).
On the record, there were no other acts or omissions of respondents which constituted waiver. The entire record, including the discovery procedures, has been examined. At all times respondents have insisted upon the fact that they are not amenable to service in this jurisdiction, and -- as stated, this court is convinced that the service of itself was invalid.
How is the result altered by the fact that it is in Admiralty? Not at all, so far as can be seen.
We agree that Rule 12(b) of the Federal Rules of Civil Procedure is technically not applicable to proceedings in admiralty. Rule 81(a)(1) Fed.R.Civ.P.; see also Rules promulgated 1939, 307 U.S. 653.
But it has been forcefully said that the liberalizing features of Fed.R.Civ.P. 12(b) may be recognized by analogy in admiralty. Untersinger v. United States, 172 F.2d 298, 301 (2nd Cir. 1949). First it recognized that there was a practice in admiralty by which it is not uncommon to join exceptions with the answer without a resulting waiver of jurisdictional grounds. The Troy Socony, 18 F.2d 629, 631 (E.D.N.Y.1926); The Elisabeth Van Belgie, 248 F. 1006, 1007 (S.D.Fla.1917); The Lindrup, 70 F. 718, 719 (D.Minn.1895). (All the more, it would seem, an uncharacterized appearance such as that made in the present case would not be an automatic waiver.) The Untersinger opinion continues:
'* * * In Boston Ins. Co. v. City of New York, 2 Cir., 130 F.2d 156, this court stated that although the Federal Rules of Federal Procedure have not yet been extended to admiralty, the 'practice in admiralty is concededly extremely plastic and always has been so', citing the Dupont case, ( Du Pont De Nemours & Co. v. Vance, 60 U.S. (19 How.) 162, 171-172, 15 L. Ed. 584 (1856)), 'and it is legitimate to treat it as not immune to some of the changes in procedure elsewhere.' Now that the highly technical and somewhat metaphysical rule of waiver has been done away with in civil actions in the federal courts, we think that a similar liberalization should by analogy be recognized in admiralty procedure. We find nothing in the General Admiralty Rules promulgated by the Supreme Court, 28 U.S.C.A., to stand in the way. * * *' Untersinger v. United States, 172 F.2d 298, 300 (2nd Cir. 1949).
To the same effect is a decision of Judge Follmer in 1949. Walsh v. United States, et al., 81 F.Supp. 667 (E.D.Pa.1949). In that case, the answer, which raised inter alia the question of venue, was not filed within the 20 days provided by Rule 6 (now Rule 11) of the Local Admiralty Rules. By the same analogy, it was held that Respondent would not be defaulted, and that there had been no waiver of the objection to venue.
Since Miner v. Atlass, 363 U.S. 641, 80 S. Ct. 1300, 4 L. Ed. 2d 1462 (1960) a committee appointed by the United States Supreme Court has been subjecting the General Admiralty Rules to restudy. A number of amendments to existing rules, and several entirely new ones, were added to the General Admiralty Rules by order of the United States Supreme Court dated April 17, 1961; effective July 19, 1961. 368 U.S. 1023. While those changes bring the General Admiralty Rules and the Federal Rules of Civil Procedure closer, none of them affect the precise point at hand.
In the admiralty practice it would appear -- technically speaking -- that appearances are still general or special. 'There is no rule on the point; it has been sufficiently settled by the cases and the customary practice,' says Knauth in 2 Benedict on Admiralty 233, p. 49 (6th Ed., 1940). In the next sentence and almost in the same breath, however, he says:
'The Civil Rules (Fed.R.Civ.P.) are to the same effect; lack of jurisdiction of the person must be raised by objection, and is waived if not raised by motion, answer or reply: Rule 12(b) and (h).'
There is an excellent discussion of this seeming contradiction in Tsangarakis v. Panama Steamship Company, 185 F.Supp. 502 (E.D.Pa.1960, Kraft, J.). Libellant claimed as surviving spouse and administratrix of a seaman who was Killed while serving on respondent's vessel at sea. Certain respondents filed motions to set aside service, as having been made on an unauthorized person. Before hearing on the motion, respondents filed exceptions to the libel together with exceptive allegations. With exhaustive discussion of the authorities it was held that respondents' filing of exceptions and exceptive allegations constituted a general appearance and cured all defects of service. Only because those exceptions and exceptive allegations went to the merits, however, was that result reached. 185 F.Supp. 504.
It is a truism that admiralty practice is not technical in the sense that niceties of choice of words control substance. 'The rules of pleading in the admiralty are exceedingly simple and free from technical requirements.' DuPont De Nemours & Co. v. Vance, 60 U.S. (19 How.) 162, 171-172, 15 L. Ed. 584 (1856). The Tsangarakis case last cited and quoted (185 F.Supp. 502) in essence held that a purported limited appearance waived preliminary or personal objections if in fact it went to the merits. By the same line of reasoning, it seems clear that Respondent here, however and whatever the paper or papers it filed were entitled, in essence objected to jurisdiction of the Respondent's person in limine and never abandoned that position.
None of Respondent's interrogatories or answers to interrogatories were inconsistent with any attendance or participation in the proceedings other than the shadowy and tentative appearance at the threshold which the common law calls Special.
Looking at the matter somewhat subjectively, in order to make sure that no other interpretation is possible, there are these matters to be considered. Respondent's counsel represented the same entity, Lykes Bros. Steamship Co., Inc. in Novitski v. Lykes Steamship Co., 90 F.Supp. 971 (E.D.Pa.1950). He was then successful in convincing the court that Lykes was not doing business in Pennsylvania, although -- as pointed out -- its ships had called at Philadelphia five times in the last three years. Certainly he had in mind, at all times since he was brought into the case, that the same defense would be unanswerable in 1962 when no Lykes ships had entered Pennsylvania waters in the preceding five years. He stated at the outset, and never wavered, that he was authorized to act for Lykes for the sole purposes of preventing a default judgment and for filing a motion to vacate service. Nor is there anything in the record to indicate that Respondent's counsel in fact possessed any greater authority. The unlikely possibility that the same counsel would in these circumstances undertake to exceed his authority has not even been suggested.
Accordingly, the motion of the Respondent, Lykes Bros. Steamship Co. (Inc.) to vacate the service of citation and libel is hereby granted.
And it is so ordered.
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