Opinion
Huffer, Hayden & Bucey, of Seattle, Wash., for libelant North Coast Stevedoring Co.
Lloyd R. Savage, of Seattle, Wash., for libelant Puget Sound Stevedoring Co.
Thomas P. Revelle and John A. Frater, both of Seattle, Wash., and M. Snow, of Portland, Or., for the United States.
NETERER, District Judge.
The Supreme Court, in Blamburg Bros. v. U.S., 43 Sup.Ct. 179, 67 L.Ed. . . ., decided January 2, 1923, held that the court is without jurisdiction to entertain suit against the United States in personam as substitute for a libel in rem when the United States vessel was not in a port of the United States or of one of her possessions. It is contended by the United States attorney that the same conclusion obtains where the vessel is not within the jurisdiction of the court where the libel is filed. The Supreme Court in Blamburg Bros. v. U.S., supra, says:
'The first section of the act is limited in its inhibition of seizures of vessel and cargo of the United States to ports of the United States and its possessions. The second section is in pari materia, and the same limitations must be implied in its construction. * * * It was intended to substitute this proceeding in personam, as the first section of the act expressly indicates, in lieu of the previous unlimited right of claimants to libel such vessel in rem in the ports of the United States and its possessions.'
A party may have a remedy, where a vessel is privately owned, in personam or in rem, or may have both remedies. It is clear from the act, and, if not, it is conclusively shown by the report of the committee in the Senate and in the House, that the object of the bill is not to add to the liability of the government, but to prevent a seizure and detention of the government ships and therefore eliminate unnecessary loss, and that the sole purpose was that, if the vessel was privately owned, the vessel could be seized in rem, that a personam action should lie against the United States to proceed in accordance with the principles of libel in rem, and that there was no purpose to extend the substantive rights of any claimant, but merely a provision to effect the remedy. That being the purpose, to proceed in accordance with principles of libel in rem, the conditions must all be present in a proceeding if the vessel was privately owned, and the presence of the vessel in the district in which the court's jurisdiction is invoked in such case is essential. Adm. Rule 22 (267 F. xii); Bene. par. 305. The jurisdiction of the court by the act is limited to places where the libelants or some of them live or have their principal place of business, or where the vessel may be. This is a general provision and has relation to in personam and in rem proceedings. The special provisions with relation to proceedings in rem being limited to the status of privately owned vessels, and the court not having jurisdiction of a proceeding in rem where the vessel is privately owned, unless the vessel is within the district, the same condition must obtain where the vessel is owned by the United States, and a proceeding in accordance with principles of libel in rem must proceed where the vessel may be, and, the vessel not being in the district, this court has not jurisdiction. I think this is sustained by the Blamburg Case, supra, and so held in Cunard S.S. Co., Ltd., v. U.S., Owner of the Isonomia, 285 F. 516 (Court of Appeals of the 2d Circuit, opinion by Judge Rogers).
The libelant contends that respondent appeared generally, and not having made specific objection on account of venue, must be deemed to have waived the objection, and cites in support U.S. v. Hvoslef, 237 U.S. 1, 35 Sup.Ct. 459, 59 L.Ed. 813, Ann. Cas. 1916A, 286. In this case Justice Hughes (237 U.S.at page 12, 35 Sup.Ct. 462, 59 L.Ed. 813, Ann. Cas. 1916A, 286), said:
'But, assuming that the subject-matter was within the jurisdiction of the court, the requirement as to the particular district within which the suit should be brought was but a modal and formal one, which could be waived, and must be deemed to be waived, in the absence of specific objection upon this ground before pleading to the merits.'
And (237 U.S.on page 11, 35 Sup.Ct. 462, 59 L.Ed. 813, Ann. Cas. 1916A, 286):
'The petitioners were the surviving members of a copartnership engaged in business in the city of New York, 'within the district aforesaid,' and that their 'business and petitioner's residence was and is in the borough of Manhattan, city of New York in said district.' It is said that the allegation was insufficient to show the residence required by the statute, but it does not appear that any such objection was made in the court below.'
The contention being that the jurisdiction of the court was under section 5 of the Tucker Act, being Comp. St. Sec. 1575 (see section 297, Judicial Code, being Comp. St. Sec. 1274), providing that suit is to be brought in the district where the plaintiff resides. In the instant case the exceptions state:
'Said libel fails to allege that the (vessels were) at the time of the filing of said libel within the jurisdiction of this court.'
And the libels allege the vessels to be out of this district. It would therefore appear that specific objection was made upon the ground that the vessel was not within the jurisdiction of this court.
In Swanson et al. v. U.S., decided April 26, 1922, this issue, among others, was in the record, but was not fully presented nor fully considered, and this court at the time overruled the exception. That case, however, is still pending.
Dismissed under rule 48, January 28, 1929.
An action in rem cannot be maintained unless the res is within the jurisdiction of the court (Adm. Rule 22, supra; Bene. 305, supra), and for purposes of libel in rem jurisdiction may not be stipulated by the master, the vessel not being in the district (The Hungaria, 41 F. 109), and the United States cannot be sued without its consent through statutory enactment, and courts may not go beyond the letter of such consent, and jurisdiction must be exercised subject to the restrictions imposed by the Congress (Kawananahoa v. Polyblank, 205 U.S. 349, 27 Sup.Ct. 526, 51 L.Ed. 834; Schillinger v. U.S., 155 U.S. 163, 15 Sup.Ct. 85, 39 L.Ed. 108).
The act affecting the remedy in admiralty of government-owned
Page 754.
vessels must be read according to the natural and obvious import of the language, without resorting to enforced construction for the purpose of extending its operation (U.S. v. Temple, 105 U.S. 97, 26 L.Ed. 967; Moore v. U.S., 249 U.S. 487, 39 Sup.Ct. 322, 63 L.Ed. 72), and in harmony with the maintenance of the general policy of court procedure, and where a right to sue is extended it should not be enlarged merely by the use of words general enough to include it where the purpose to maintain the general policy is apparent (Reid v. U.S., 211 U.S. 529, 29 Sup.Ct. 171, 53 L.Ed. 313).
This being a proceeding according to the principle of libel in rem, and specific objection being made that the vessel is not within this district, and if the vessel were privately owned the proceeding could not be entertained, the exceptions must be sustained.