Continental Grain Company v. Barge/Dissent Whittaker

by Charles Evans Whittaker

United States Supreme Court

364 U.S. 19

Continental Grain Company  v.  Barge

 Argued: April 20, 1960. --- Decided: June 27, 1960

Mr. Justice WHITTAKER, with whom Mr. Justice DOUGLAS joins, dissenting.

I think that this case, if its true facts be recognized and faced, is controlled by the Court's opinion in Hoffman v. Blaski and Sullivan v. Behimer, 363 U.S. 335, 80 S.Ct. 1084. I also think that the Court's opinion fails to recognize and face the crucial fact-that one of the two claims in this 'civil action' was brought in rem against the Barge, not as an attachment or 'device' to force appearance of the owner or to provide security for the payment of any in personam judgment which might be recovered against the owner, but as a personified 'debtor or offending thing' as the settled law authorizes ^[1]-which gives rise to the principal question that produces my disagreement. Indeed, I think the Court's opinion endeavors to sweep that crucial fact 'under the rug.' I will now undertake to make a plain and chronological statement of the simple facts.

On July 2, 1958, petitioner, Continental Grain Company, ^[2] brought this libel in personam against Federal Barge Lines, Ind., ^[3] and in rem against Barge FBL-585 ('Barge'), in and on the admiralty side of the United States District Court for the Eastern District of Louisiana, New Orleans Division-where the Barge then was, and ever since has been, located-to recover damages in the sum of $90,000 to petitioner's cargo, caused by the alleged unseaworthiness and consequent partial sinking of the Barge while being loaded at Memphis, Tennessee, on November 6, 1957. The libel prayed a decree against both Federal Barge Lines, Inc., and Barge FBL-585, for the cargo damage; that Federal Barge Lines, Inc., be cited to appear and answer; that process issue against 'Barge FBL 585 and that all persons claiming any interest in said vessel be cited to appear and answer this libel,' and that 'Barge FBL-585 be condemned and sold to pay the amount due libelant herein.'

After Federal Barge Lines, Inc., was served with process, and after process had issued against the Barge but before actual arrest of the Barge thereunder, Federal Barge Lines, Inc., on July 23, 1958, delivered its letter addressed to petitioner, which the latter accepted and has acted on, saying, in pertinent part, that: 'In consideration of your not having seized (the barge), under the in rem process which has been issued * * * and in further consideration of our not being required to post the usual bond for the release of that vessel, (w)e agree that we shall * * * file claim to Barge FBL 585 and (shall file) pleadings in the * * * action, and that, (whether the) vessel (be) lost or not, we shall pay any final decree which may be rendered against said vessel in said proceeding.' The last paragraph of the letter said:

'It is the intent of this undertaking that the rights of the libelant and claimant-respondent in this proceeding shall be, and for all purposes shall be taken to be, precisely the same as they would have been had the vessel, in fact, been taken into custody by the United States Marshal under said in rem process, and released by the filing of claim and release bond, we, as claimant, reserving in behalf of the vessel all other objections and defenses otherwise available except those which might be predicated upon the fact that the vessel was not actually so seized.'

Accordingly, on July 29, 1958, Federal Barge Lines, Inc., filed its claim to 'Barge FBL-585, proceeded against herein, and claim(ed) the said barge as owner and pray(ed) that it be permitted to defend according to law'; and on September 18, 1958, it filed its answer to the libel.

On October 13, 1958, Federal Barge Lines, Inc., filed its motion to transfer 'this action to the United States District Court for the Western District of Tennessee, Western Division, on the ground that such transfer is necessary for the convenience of the parties and witnesses and in the interest of justice as will appear from the affidavit attached hereto and made a part hereof.' ^[4] After hearing, the District Court granted the motion and ordered the action transferred as requested by the movant, but the district judge, acting under the Interlocutory Appeals Act, 28 U.S.C. § 1292(b), 28 U.S.C.A. § 1292(b), 'certified that this order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order may materially advance the ultimate termination of this litigation.' ^[5]

Petitioner then sought and was allowed an appeal by the Court of Appeals under 28 U.S.C. § 1292(b), 28 U.S.C.A. § 1292(b). ^[6] That court, relying heavily on its opinion in Ex parte Blaski, 5 Cir., 245 F.2d 737, affirmed 5 Cir., 268 F.2d 240, and we granted certiorari 361 U.S. 811, 80 S.Ct. 79, 4 L.Ed.2d 59.

Although the Court of Appeals found 'that fair application of the letter undertaking * * * requires that we reat it as though, upon the libel being filed, the vessel had actually been seized, a Claim filed, a stipulation to abide decree with sureties executed and filed by Claimant, and the vessel formally released,' it held that, inasmuch as the claimant-respondent had by its motion to transfer consented 'to an unlimited submission of the cause (to the Tennessee District Court) even though it could not have been filed there initially,' transfer of the in rem action to that court 'presents no real or conceptual difficulties,' because '(t)he Court does not undertake to transfer the res, nor does it even attempt to transfer the cause while the res is still in custody of the Court'; that when, as here, a 'bond (stipulation)' is given and substituted for the vessel '(t)raditional notions are not affected if that security floats with the cause wherever the law navigates it.' Id., 268 F.2d at pages 243, 244.

It is not disputed that the libel, insofar as it is in personam, might have been brought by petitioner against respondent, Federal Barge Lines, Inc., in the United States District Court for the Western District of Tennessee, as that court had jurisdiction to entertain such an action and Federal Barge Lines, Inc., was amenable to the service of monition there. Hence, if this libel had been brought only in personam against Federal Barge Lines, Inc.-i.e., had omitted the claim in rem against the Barge-it could have been transferred to the Tennessee District, for such an action could have been brought in that forum. But, as the parties agree, petitioner had a legal right to join in one action, as it did here, a claim in personam against Federal Barge Lines, Inc., and one in rem against the Barge. ^[7] The Court's opinion says that, because the claim in personam might have been brought in the Memphis forum, it is a mistake to say that 'the entire civil action must remain in the inconvenient New Orleans forum.' But respondent's motion did not ask transfer of only the claim in personam, if indeed the court could have severed the two claims and have transferred one and kept the other-a matter not at all dealt with in the Court's opinion. Instead it asked transfer of the whole action, and so we are presented with the question whether an admiralty action in rem, or partly in rem, may be transferred, upon application of the claimant of the res, to a district in which the res is not located, and in which the libellant did not have a legal right to bring it.

The Court treats this case as a 'single' damage action against only the barge owner. That treatment simply ignores the crucial fact which gives rise to the question we have here. Of course, if this were simply a 'single' action for damages against only the barge owner we would not have the question that confronts us, for we all agree that such an action 'might have been brought' in the Memphis forum, and, hence, if brought elsewhere it could have been transferred to that forum under § 1404(a). But those are not the facts. The facts are that there were two claims in this 'civil action,' one in personam against the owner, and one in rem against the Barge. And we cannot decide the question presented by denying its existence or by ignoring the facts that created it. One of the two claims of this 'civil action' was in rem against the Barge. The Barge was in New Orleans when this suit was brought. Therefore, this 'civil action' could not have been brought in Memphis, and, hence, cannot be transferred to that forum if the limiting words of § 1404(a), 'where it might have been brought,' are to have any meaning.

Petitioner, relying on the established principle that an action in rem may be brought only in the district where the res is located, ^[8] or possibly, under the accustomed practice in admiralty, in the district where, as alleged in the libel, the res (vessel) will be 'during the pendency of the process (issued on the libel),' ^[9] contends that inasmuch as the Barge was located in the Eastern District of Louisiana when the libel was filed, this action could not have been brought or prosecuted in any other district and, hence, the court was without power, under 28 U.S.C. § 1404(a), 28 U.S.C.A. § 1404(a), ^[10] to transfer it, upon respondents' motion and even with their waiver of venue and jurisdiction, to the Western District of Tennessee, where it could not have been brought by the libellant. This contention accords with our opinion in the Blaski and Behimer cases, 363 U.S. 335, 80 S.Ct. 1084.

But respondents contend that an admiralty court is not subject to the provision of § 1404(a) limiting the transfer of an action to a district 'where it might have been brought,' but is empowered by Admiralty Rule 44 to transfer an action, on the motion of the claimant-respondent and a mere showing of convenience, to any other district. This contention is wholly without merit. Admiralty Rule 44, ^[11] which in effect authorizes District Courts to formulate local rules of practice, is expressly limited to 'cases not provided for by these rules or by statute * * *.' The matter of transferring 'any civil action'-which phrase includes actions in admiralty ^[12]-is expressly prescribed by a statute. Section 1404(a) expressly limits a District Court's power to transfer a civil action to a district or division 'where it might have been brought.' Hoffman v. Blaski, supra. The power to transfer actions cannot derive from local practice but only from substantive law. Nor is there any showing here that the District Court has ever even purported to promulgate any applicable local rule of practice.

Respondents next contend that even if § 1404(a) applies to the transfer of admiralty actions, that section does not preclude transfer of an admiralty action in rem to a district where the res is not located if the claimant-respondent, after having prevented the arrest or procured the release of the res by giving bond or other acceptable security, so moves and agrees to submit to the jurisdiction of the transferee court. They argue that authority to proceed in admiralty against the res (vessel) is a mere security device and, after the claimant-respondent has prevented the arrest or procured the release of the res by giving bond or other acceptable security, the in rem action is converted into one in personam, and may accordingly be transferred under § 1404(a), on motion of the claimant-respondent (but not of the libellant) ^[13] and a finding of convenience, to any other district in which the action if originally in personam 'might have been brought.' The Court appears to agree with that argument. It criticizes the settled doctrine of personification of the ship. It says that 'perhaps (it) is going too far (to refer to the fiction of personification of the ship) as 'archaic,' 'an animistic survival from remote times,' 'irrational' and 'atavistic" (citing The Carlotta, 48 F.2d 110, 112), but it does not suggest that the numerous cases of this Court which have established and adhered to that 'fiction' for more than 150 years should be overruled-something I could understand, even at this late day. Instead, it seems merely to brush them aside or to fail to recognize their application here.

But admiralty proceedings in rem are not a mere security device. From its earliest history to the present time, this Court has consistently held that an admiralty proceeding in remis one essentially against the vessel itself as the debtor or offending thing; and, in such an action, the vessel itself is impleaded as the defendant, seized, judged and sentenced. ^[14] In Rounds v. Cloverport Foundry & Machine Co., 237 U.S. 303, 35 S.Ct. 596, 59 L.Ed. 966, Mr. Justice Hughes, in distinguishing between in rem actions against a vessel, on the one hand, and attachments against a vessel to force appearance of the respondent or to provide security in an action in personam, on the other hand, said:

'Actions in personam with a concurrent attachment to afford security for the payment of a personal judgment are in a different category. The Belfast, 7 Wall. 624, 19 L.Ed. 266; Taylor v. Carryl, 20 How. 583, 598, 599, 15 L.Ed. 1028, 1033, 1034; The Robert W. Parsons, supra. And this is so not only in the case of an attachment against the property of the defendant generally, but also where it runs specifically against the vessel under a state statute providing for a lien, if it be found that the attachment was auxiliary to the remedy in personam. Leon v. Galceran, 11 Wall. 185, 20 L.Ed. 74; see also Johnson v. Chicago, etc., Elevator Co., 119 U.S. 388, 398, 399, 7 S.Ct. 254, 30 L.Ed. 447, 450, 451; Knapp, S. & Co. v. McCaffrey, 177 U.S. 638, 646, 648, 20 S.Ct. 824, 44 L.Ed. 921, 925, 926.' Id., 237 U.S. at page 307, 35 S.Ct. at page 597.

Indeed, the absence of liability of the owner of a vessel does not necessarily exonerate the vessel itself. ^[15] If, for example, a vessel under bareboat charter damages another as the result of the negligence of her crew, the vessel is liable in rem even though an action in personam would not lie against her owner. ^[16] Likewise, the right of one damaged by the wrong of a vessel to proceed against her follows her into the hands of an innocent purchaser, although the latter is not liable in personam. ^[17] Similarly, a vessel is liable in rem for damages resulting from her negligent operation by an independent pilot to whose control the law required her to be confined, although her owner is not liable in personam. ^[18]

The cases cited by the Court, ^[19] holding that in expressly exonerating by statute shipowners from certain liabilities for casualty losses of cargo at sea, Congress similarly intended to exonerate their property, i.e., their ships, from such liabilities, are wholly inapposite. They involved only interpretation of particular statutes, and did not at all deal with, and certainly were not intended to destroy, for they expressly recognized, the historic difference and distinction between admiralty actions in personam and those in rem. Nor does this Court's Admiralty Rule 54, discussed by the Court, touch the question of transferability of this case. This is not a limitation of liability proceeding, specially covered by that Rule, and the parties make no such claim. Rather we have here only a simple motion to transfer a 'civil action' from one District to another, and such a motion is exclusively governed by § 1404(a).

The Barge itself being the 'offending thing,' and here being itself subject to suit, and having been sued, in rem, we think it may not be said that the giving by respondent, Federal Barge Lines, Inc., and the acceptance by petitioner, of the 'letter undertaking,' to prevent the physical arrest of the Barge, converted the in rem action into one in personam. That letter expressly said that the rights of the parties would for all purposes be 'precisely the same as they would have been had the vessel, in fact, been taken into custody by the United States Marshal under said in rem process, and released by the filing of claim and release bond * * *.' That this letter was legally effective in accordance with its terms is not disputed. This Court has from an early day consistently held that a bond, given to prevent the arrest or to procure the release of a vessel, is substituted for and stands as the vessel in the custody of the court. ^[20] Inasmuch as the parties agreed that the letter involved here was to have precisely the same effect as a bond, it follows that the letter is, just as a bond would have been, a substitute for the vessel in the custody of the court, and that the giving and accepting of the letter did not convert the in rem action into one in personam.

Respondents finally argue that even though the Barge itself could be and was sued as the 'offending thing' and, being located in the district of suit, this action in rem against it could not have been brought elsewhere without respondent's consent, it was as possible for the Barge voluntarily to enter appearance in and submit to the venue and jurisdiction of the transferee court as it would have been for one sued in personam to do so, ^[21] and that their motion to transfer had that effect. Whether jurisdiction over a res in an action in rem may be conferred by consent of its owner, given either before or after the action has been brought, upon a court that does not have territorial jurisdiction or custody of the res we need not decide, for the question here is not such, but, rather, it is simply whether a District Court is empowered by § 1404(a) to transfer such an action to a district in which the libellant did not have the right to bring it, independently of the will or wishes of the claimant-respondent. That question was ruled in the negative by Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, and I think it follows that the judgment in this case should be reversed.

Notes

1. See note 15, infra.
2. Petitioner, Continental Grain Company, is a Delaware corporation maintaining its principal office in New York, New York, but is also authorized to do and is doing business in the City of Memphis in the Western District of Tennessee.
3. Federal Barge Lines, Inc., a Delaware corporation, is a common carrier by water, operating on the Mississippi River and its principal tributaries, and has offices and does business in, among other places, Memphis, Tenessee, and New Orleans, Louisiana.
4. The principal averments of the affidavit referred to were (1) that on June 27, 1958, Federal Berge Lines, Inc., filed an action at law against petitioner, Continental Grain Company, in the Circuit Court of Shelby County, Tennessee, for damages to its Barge FBL-585, caused by the alleged negligence of the grain company in loading it at Memphis on November 6, 1957, which action was removed by the grain company to the United States District Court for the Western District of Tennessee on July 15, 1958, and (2) that the necessary witnesses reside in or nearer to Memphis than to New Orleans.
5. In his unpublished per curiam the district judge said, inter alia, 'The libel is in rem as to the Barge FBL-585. While this libel could have been orginally brought in the Western District of Tennessee against the respondent, Federal Barge Lines, the owner of the barge, the libel as to the barge itself would ordinarily be restricted to the place where the barge is located at the time the libel is filed. At that time, and now, the barge is located in this district. However, since the barge was neither seized by the Marshal nor bonded by respondent, libellant having accepted respondent's letter undertaking to respond to any decree entered herein, and since the owner thereof, Federal Barge Lines, apparently is financially able to respond to any decree rendered against it, the interest of justice would best be served by * * * transferring this case to the Western District of Tennessee.'
6. The District Court stayed its order of transfer, pending determination of the appeal.
7. Newell v. Norton, 3 Wall. 257, 18 L.Ed. 271; In re Fassett, 142 U.S. 479, 484, 12 S.Ct. 295, 297, 35 L.Ed. 1087 ('The District Court has jurisdiction to determine the question, because it has jurisdiction of the vessel by attachment, and of Fassett by monition * * *.'); The Resolute, 168 U.S. 437, 442, 18 S.Ct. 112, 114, 42 L.Ed. 533; Turner v. United States, 2 Cir., 27 F.2d 134, 136.
8. The Ann, 9 Cranch 289, 291, 3 L.Ed. 734; Miller v. United States, 11 Wall. 268, 294, 20 L.Ed. 135; United States v. Mack, 295 U.S. 480, 484, 55 S.Ct. 813, 815, 79 L.Ed. 1559; Clinton Foods v. United States, 4 Cir., 188 F.2d 289, 292; Fettig Canning Co. v. Steckler, 7 Cir., 188 F.2d 715, 717-718. Cf. Torres v. Walsh, 2 Cir., 221 F.2d 319, 321; Broussard v. The Jersbek, D.C., 140 F.Supp. 851, 852-853.
9. Notwithstanding the provision of Admiralty Rule 22 (28 U.S.C. p. 5226, 28 U.S.C.A.) that if the libel be in rem it shall state 'that the property is within the district,' we are told that in practice the common, if not universal, jurisdictional statement in libels in rem recites 'That the vessel now is, or, during the pendency of process herein, will be, within the District and the jurisdiction of the Court.' See Internatio-Rotterdam, Inc., v. Thomsen, 4 Cir., 218 F.2d 514, 515-516-in some other aspects an anomalous opinion.
10. '§ 1404. Change of venue.
11. Rule 44. 'Right of Trial Courts To Make Rules of Practice
12. Torres v. Walsh, 2 Cir., 221 F.2d 319, 321; Internatio-Rotterdam, Inc., v. Thomsen, 4 Cir., 218 F.2d 514, 515, and see Ex parte Collett, 337 U.S. 55, 58, 69 S.Ct. 944, 946, 959, 93 L.Ed. 1207; United States v. National City Lines, Inc., 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226.
13. Respondents say in their brief:
14. The Mary, 9 Cranch 126, 144, 3 L.Ed. 678; The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397; The Belfast, 7 Wall. 624, 19 L.Ed. 266; The Glide, 167 U.S. 606, 17 S.Ct. 930, 42 L.Ed. 296; The Robert W. Parsons, 191 U.S. 17, 24 S.Ct. 8, 48 L.Ed. 73; Rounds v. Cloverport Foundry & Machine Co., 237 U.S. 303, 306-307, 35 S.Ct. 596, 597, 59 L.Ed. 966.
15. 'Such personification of the vessel, treating it as a juristic person whose acts and omissions, although brought about by her personnel, are personal acts of the ship for which, as a juristic person, she is legally responsible, has long been recognized by this Court.' Canadian Aviator, Ltd., v. United States, 324 U.S. 215, 224, 65 S.Ct. 639, 644, 89 l.ed. 901.
16. The Barnstable, 181 U.S. 464, 21 S.Ct. 684, 45 L.Ed. 954. The 'settled rule is that where the ship-owner provides the vessel only, and the master and crew are selected by the charterer, the latter and not the ship-owner is responsible for their acts.' The China, 7 Wall. 53, 70, 19 L.Ed. 67.
17. 'The maritime 'privilege' or lien * * * accompanies the property into the hands of a bona fide purchaser.' Vandewater v. Mills, 19 How. 82, 89, 15 L.Ed. 554. See also The China, 7 Wall. 53, 68, 19 L.Ed. 67; The John G. Stevens, 170 U.S. 113, 18 S.Ct. 544, 42 L.Ed. 969.
18. The China, 7 Wall. 53, 19 L.Ed. 67; Homer Ramsdell Transp. Co. v. La Compagnie Generale Transatlantique, 182 U.S. 406, 21 S.Ct. 831, 45 L.Ed. 1155.
19. The City of Norwich, 118 U.S. 468, 503, 6 S.Ct. 1150, 1162, 30 L.Ed. 134; Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, 320 U.S. 249, 253-254, 64 S.Ct. 15, 17-18, 88 L.Ed. 30.
20. The Palmyra, 12 Wheat. 1, 10, 6 L.Ed. 531; The Webb, 14 Wall. 406, 418, 20 L.Ed. 774; The Wanata, 95 U.S. 600, 611, 34 L.Ed. 461; United States v. Ames, 99 U.S. 35, 25 L.Ed. 295. In Judge Woolsey's very perceptive opinion in J. K. Welding Co. v. Gotham Marine Corp., D.C.S.D.N.Y., 47 F.2d 332, 335, the rule was summarized as follows:
21. See J. K. Welding Co. v. Gotham Marine Corp., D.C.S.D.N.Y., 47 F.2d 332, 335.