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June 17, 1974

A Cargo Of Petroleum Products Laden On the Steam Tanker HILDA

Huyett, J.

The opinion of the court was delivered by: HUYETT


 The ebb and flow of admiralty jurisdiction has not been characterized by the same predictability as the waters it governs. *fn1" Thus, the Supreme Court in Victory Carriers, Inc. v. Law, 404 U.S. 202, 205, 30 L. Ed. 2d 383, 92 S. Ct. 418 (1971) stated: "The historic view of this Court has been that the maritime tort jurisdiction of the federal courts is determined by the locality of the accident and that maritime law governs only those torts occurring on the navigable waters of the United States." A little more than a year later, however, the Court held that maritime tort jurisdiction did not exist, absent a significant relationship to traditional maritime activity, when an aircraft goes down on navigable waters or when negligence occurs while the aircraft is flying over such waters. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972). These cases confirm Mr. Justice Holmes' statement in The Blackheath, 195 U.S. 361, 365, 49 L. Ed. 236, 25 S. Ct. 46 (1904): "The precise scope of admiralty jurisdiction is not a matter of obvious principle or of very accurate history."

 Nor can we in seeking to ascertain the proper boundaries of admiralty jurisdiction take comfort from Professors Gilmore and Black's observation "that the important cases in admiralty are not the borderline cases on jurisdiction; these may exercise a perverse fascination in the occasion they afford for elaborate casuistry, but the main business of the [admiralty] court involves claims for cargo damage, collision, seaman's injuries and the like -- all well and comfortably within the circle, and far from the penumbra." G. Gilmore & C. Black, The Law of Admiralty 24 n. 88 (1957). In this case we are concerned with a method of process having an admiralty lienage never clearly defined and an admiralty rationale never clearly articulated.

 The question presented is whether admiralty jurisdiction comprehends a suit to try title to or the right to possession of cargo when the claim to the cargo is not based on the breach of a maritime contract or the commission of a maritime tort. We hold that admiralty does not encompass such a suit.

 A claim to the cargo has been filed by Coastal States Marketing, Inc. as purchaser from a refinery at Priola, Italy. Coastal States has moved to dismiss for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b) (1).

 In admiralty suits to try title to property independent of questions concerning possession are referred to as petitory suits. A petitory suit must be based on a claim of legal title; the assertion of a mere equitable interest is not sufficient. See, The Captain Johnson, 64 F. Supp. 559 (D.N.J. 1946). A possessory action is one in which a party seeks to adjudicate the right to possess property wrongfully taken. See Silver v. Sloop Silver Cloud, 259 F. Supp. 187 (S.D.N.Y. 1966); 1 E. Benedict Admiralty § 73 (6th Ed. 1940). The nature of these actions and their recognition as part of admiralty jurisdiction of this country has been well established since Justice Story's decision sitting as a Circuit Justice in The Tilton, 23 F. Cas. 1277 (No. 14,054 C.C. Mass. 1830). Petitory actions and actions for possession are in rem actions analogous to the common law remedies of replevin and detinue. *fn4" We must determine the circumstances in which admiralty provides for such suits.

 A suit to try title to or possession of a ship wrongfully taken has long been considered within the jurisdiction of admiralty courts regardless of whether the claim to the ship is based on the breach of a maritime tort. Ward v. Peck, 59 U.S. (18 How.) 267 (1855); The Tilton, supra ; Gallagher v. Unenrolled Motor Vessel River Queen, 475 F.2d 117, 119 (5 Cir. 1973); Atamanchuck v. Atamanchuck, 61 F. Supp. 459 (D.N.J. 1945); Gilmore and Black, The Law of Admiralty 24 (1957). The courts in sustaining admiralty jurisdiction in this instance recognize the maritime nature of questions involving the title and possession of ships. The courts' reasoning is analogous to that employed to sustain jurisdiction over questions involving injuries to seaman while in the performance of the ship's duties even though the injuries occur on land. See O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 87 L. Ed. 596, 63 S. Ct. 488 (1943). The questions raised in such actions bear a significant relationship to maritime service, commerce or navigation. As stated by Justice Story:

Indeed, the titles to ships principally depend upon the maritime law, as recognized and enforced in the common law; and the admiralty does little more in most instance causes, than to carry into effect the declarations of the maritime law, so recognized and enforced. No doubt exists, that the admiralty possesses authority to decree restitution of ships wrongfully withheld from the owners.

 The Tilton, 23 Fed. Cas. supra at p. 1279. See also, Grigg v. The Clarissa Ann, 11 Fed. Cas. 47 (No. 5, 826 E.D. Va. 1877).

 Courts in other situations, however, have clearly limited jurisdiction to questions involving maritime torts or contracts. In Five Hundred and Twenty Eight Pieces of Mahogany, 9 Fed. Cas. 200, 201 (No. 4,845 D. Mass. 1874), the court stated:

[Where] the possession of movable property has been changed, against the right of the true owner, either by a maritime tort or by the breach of a maritime contract, to which the property was subject, the owner may vindicate his title in a court of ...

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