Brief for the Respondent in Opposition — Portland General Electric Co. v. United States

IN THE

Supreme Court

of the United States

October Term, 1944

PORTLAND GENERAL

ELECTRIC COMPANY,

a corporation,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

HAMPSON, KOERNER, YOUNG & SWETT,

ALFRED A. HAMPSON,

CLARENCE J. YOUNG,

800 Pacific Building,

Portland, Oregon.

Proctors for Respondent.

|

THE IVY PRESS, PORTLAND

SAIS RRSTONCES as

INDEX

Page No.

oe es sk ei A

|, ASSN GT a SER AAP UC A Oe ES CRO a 4

I. PETITION NOT FILED IN TIME. eller tani 4

Il. CERTIORARI PREVIOUSLY DENIED 8

Il. ACCORD, NOT CONFLICT, EXISTS BETWEEN

CIRCUIT COURTS OF APPEALS... 11

IV. NO PUBLIC INTEREST JUSTIFIES ISSU ANCE OF

TRU RT ee I cc iceeeeetcieneeetrenee 14

V. GOVERNING PRINCIPLES OF LAW HERETO-

FORE SETTLED BY THE SUPREME COURT... 18

CONCLUSION Pita Mcset ul eisiad ee tacucabiaateheciin tra 23

APPENDIX “A” = 3 .~

APPENDIX “B* _. . 8

TABLE OF CASES

Page No.

Bell Telephone Company vs. United States of America

(The SS. Cavateade), 1943 A.M.C. 220, D.C., E.D.,. N.Y. 18

Bell Telephone Company vs. United States of America

(The SS. Cavaleade), C.C.A. 2nd Circuit, decided July

25, 1944 . ane: ie

Blackheath, The, 195 U. S. 361, 49 L. ed. 236 (1904) ... 19

Mont Agel, 1924 A.M.C. 401, D.C., N.D., Lane 14

Morrow S.S. Co. vs. Superior Water, Light & Power Co.,

31 F. (2d) 486 (1928), D.C., W.D., Wis... i 17

New York Telephone Co. vs. Cities Service Transporta- i-

tion Co., 23 F. Supp. 426, D.C., E.D., N.Y. (1938)... 12

Nippon Yusen Kabushiki Kaisha vs. Great -Western

Power Co., 17 F. (2d) 239 (1927), C.C.A. 9th Circuit;

cert. den. 274 U. S. 745, 71 L. ed. 1325.0. 3, 4, 8, 9, 10, 11,

12, 14, 17, 18

No. 6, The, 241 Fed. 69, 71 (1917), C.C.A. 2nd Circuit... 12

Plymouth, The, 3 Wall 20, 18 L. ed. 125 (1866).

Portland General Electric Company v. United States of

America, 142 F. (2d) 552, C.C.A. 9th Circuit (instant

case)

Postal Telegraph Cable Co. vs. SS. “Cananova”, 1942

A.M.C, 281, D.C., S.D., Fla. 14

£SLAER ETRE LL CLI Pm EC HO TE

3

ee

i

%

TABLE OF CASES—Continued

Page No.

Postal Telegraph Cable Co. vs. P. Sanford Ross, Inc., 221

Fed. 105, D.C., E.D., N.Y. (1915) 10, 12, 22

Poughkeepsie, The, 162 Fed. 494 (1908), affirmed in Per

Curiam Opinion in 212 U. S. 558, 53 L. ed. 651...............21, 23

Puget Sound Power & Light Co. vs. King County, 264

U. S. 22, 68 L. ed. 541. Annotation 87 L, ed. 261... 7

Raithmoor, The, 241 U. S. 166, 60 L. ed. 937... 19

Rosenberg vs. Heffron, 131 F. (2d) 80, 82, C.C.A., 9th

Circuit 2 8

Russell No. 6, The, 42 F. Supp. 904, D.C., E.D., N.Y.

RE ir issutinncintoce much, 14, 18°

State of Maine vs. United States (The Ilex), 134 F. (2d)

674. CCA. 1st Coeat

Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399,

67 L. ed. 719 EAP OT AIO 8

Toledo, The, 242 Fed. 168, D.C., D.N.J. (1917) .--ccoceoe 10, 14

Trinidad, The, 1932 A.M.C. 1144, D.C., W.D., Wash... 14

Troy, The, 208 U. S. 321, 322, 52 L. ed. 512 16

United States of America vs. Tug John R. Williams,

C.C.A. 2nd Circuit, decided July 25, 1944 oe

4, 11, 13, 14, 16, 18, 21

United States vs. North German Lloyd, 239 Fed. 587,

D.C., S.D., N.Y. (1917) re 10, 12

United States vs. The Majestic, 1932 A.M.C. 1079, D.C.,

S.D., N.Y. aoe

United States vs. Tug Williams, 1941 A.M.C. 1588.................12, 13

Westfall Larson & Co. vs. Allman-Hubble Tug Boat Co.,

73 F. (2d) 200, C.C.A. 9th Circuit (1934) nn 4, 11,12

STATUTES

Page No

O.C.L.A., Sees. 67-801 (4), 67-803-817 ie ae

28 U.S.C.A., Sec. 350 .... 3, 5,8

46 U.S.C.A., Sec. 742, Suits in Admiralty Act... 2, 15, 16

46 U.S.C.A., Sec. 781, Public Vessels Act : 2

TEXTS

Page No.

Cyclopedia of Federal Procedure, 2d Ed., Vol. 10,

See. S008 2

“Manual of Federal Appellate Procedure”, 3rd Ed., page

283, by Paul P. OP Brien enn nenmenewn-nemnnnnnnnnnneinnnnnnnmn

Robinson, Admiralty, pp. 52, 53 Ce

NO, 314

IN THE

Supreme Court

of the United States

October Term, 1944

PORTLAND GENERAL

ELECTRIC COMPANY,

a corporation,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Because, as hereinafter pointed out, this petition was

not filed in time, we believe the Court will have no occa-

sion to consider whether there are any “special or im-

portant reasons” for reviewing the case on writ of certi-

orari. However, since motion to dismiss the petition does

not lie, we direct our answer and supporting brief not

2

only to the jurisdictional issue, but also to the “reason

relied on for the issuance of the writ,’ together with

reasons why the writ should not issue.

It will be noted that the District Court sustained ex-

ceptions to the second amended libel and thereupon dis-

missed the same, the order of dismissal being affirmed

on appeal (Tr. of Rec., pp. 2-9, 29). On the record the .

allegations of the second amended libel must, of course,

be taken as true (Tr. of Rec., pp. 2-4). It is significant

that the allegations held insufficient appear in the second

amended libel. The original libel, before time to answer

had expired, was displaced by a first amended libel. Ex-

ceptions filed against the substituted pleading were sus-

tained (Tr. of Rec., p. 9). Proctor for petitioner had

opportunity, through use of pretrial proceedings, to elab-

orate upon the facts, but elected not to do so. Instead

he filed a second amended libel and stood upon the same

after exceptions thereto had been sustained. Thus, al-

though by two amendments successively made, counsel

endeavored to strengthen his position, yet upon all facts

most favorable to libelant, both the district and appellate

courts ruled that no cause within the admiralty and mari-

time jurisdiction of the Court was set forth.

It will further be noted from the allegations of the

second amended libel that the basis of the claim against

the United States of America is the Suits in Admiralty

Act, 46 U.S.C.A., Sec. 742, and the Public Vessels Act,

46 U.S.C.A., Sec. 781. However, neither act permits

proceedings against the United States of America in

cases not cognizable in admiralty against private vessels

or their owners. State of Maine vs. United States (The

Ilex), 184 F. (2d) 574, C.C.A. 1st Circuit. This principle

was conceded by proctor for petitioner both in the district

and appellate courts and no suggestion otherwise is made

in the petition herein.

\ccordingly, the controversy on its merits involves only

one question: Does admiralty jurisdiction attach where a

vessel in dragging her anchor breaks an electric power

transmission cable which is attached to connections on each

side of a navigable river and extends from shore to shore

along the bed of the river?

The “reason relied on for the issuance of the writ” is

that this is an important point of admiralty jurisdiction

on which the courts in the different circuits are at variance

and it is in the public interest that it be settled. Respondent

denies the validity of these reasons and each of them and

on its own part asserts that the petition for writ of

certiorari should be denied for the following reasons:

1. This Court has no jurisdiction to entertain the peti-

tion because the application was not made within three

months after entry of the decree in the Circuit Court of

Appeals for the Ninth Circuit (28 U.S. C. A., Sec. 350).

2. Certiorari was denied by this Court in a previous

case where the identical issue as to admiralty jurisdiction

was involved. Nippon Yusen Kabushiki Kaisha vs. Great

Western Power Co., 17 F. (2d) 289 (1927) C. C. A.

9h Circuit; cert. den. 274 U. S. 745, 71 L. ed. 1325.

4

3. No Circuit Court of Appeals has ever rendered a

decision in conflict with that in the instant case; on the

contrary, the only appellate court decisions involving the

same issue are in accord with the decision herein (Nippon

etc. vs. Great Western Co., supra, Westfell Larson and

Co. vs. Allman Hubble Tug Boat Co. 73 F. (2d) 200 C.

C. A. 9th Circuit, United States of America vs. Tug John

R. Williams, C. C. A. 2nd Circuit, decided July 25, 1944,

not yet reported. See also Bell Telephone Company of

Pennsylvania vs. United States of America (The S. S.

Cavaleade), C. C. A. 2nd Circuit, decided July 25, 1944,

not yet reported. )

4. There is no public interest justifying issuance of

writ of certiorari herein.

5. The principles of law governing the issue here in-

volved have been settled by prior decisions of the Supreme

Court.

ARGUMENT

I. PETITION NOT FILED IN TIME.

This case came on for hearing before the Circuit Court

of Appeals for the Ninth Circuit on April 24, 1944. The

Court, after hearing oral argument by proctor for appel-

lant (petitioner herein), declined to hear argument on

behalf of respondent and from the Bench ordered that

the decree of the District Court be affirmed. (See “Ex-

cerpt from Proceedings,” Tr. of Rec., p. 20.) On the

os A i a

5

same date, that is April 24, 1944, final decree of the Cir-

cuit Court of Appeals, affirming the decree of the District

Court, was filed and entered with the Clerk of the Appel-

late Court (Tr. of Rec., p. 21). Not until August 2,

1944, over three months after the decree of which peti-

tioner complains was entered, was respondent served with

notice of filing of the petition. We understand that the

petition was docketed in the United States Supreme Court

on the same date.

28 U.S.C. A., Sec. 850, provides:

“No writ of error, appeal, or writ of certiorari, in-

tended to bring any judgment or decree before the

Supreme Court for review shall be allowed or enter-

tained unless application therefor be duly made with-

in three months after the entry of such judgment or

decree * * *,”

It is apparent that the application for writ of certiorari

herein was not made within the three months’ time allowed

by the above quoted statute, and that the finality of the

Circuit Court of Appeals decision for purposes of review

has been established; hence the petition for certiorari

should be dismissed.

Proctor for petitioner, however, has informally urged

that the computation of time should commence not on

April 24, 1944, but rather on May 8, 1944, the date on

which a Per Curiam Opinion was filed in the Circuit

Court of Appeals (Tr. of Rec., pp. 22, 23). Reliance is

placed upon the statement of Mr. Paul P. O’Brien (Clerk

of the Circuit Court of Appeals for the Ninth Circuit),

6

who, in his “Manual of Federal Appellate Procedure,”

3rd Ed., page 283, says:

“A judgment is entered in the Circuit Court of

Appeals (C. C. A. 9), on the day the opinion is

rendered and filed, and unless a petition for re-

hearing is filed, the time for application for writ of

certiorari begins to run from the date the opinion

is filed.”

(No petition for rehearing was filed in the instant

case.) Of course if May 8, 1944, should be considered as

the starting point of the three months’ period, the appli-

cation herein was made in time.

It is apparent, however, that Mr. O’Brien was discuss-

ing the usual practice of the Circuit Court of Appeals

for the Ninth Circuit. His statement that the time for

application for writ of certiorari begins to run from the

date the opinion is filed applies in ninety-nine out of one

hundred cases decided in that Court. The instant case

happens to be the one hundredth case, to which the state-

ment has no application. Ordinarily the written opinion

is a condition precedent to entry of the decree or judg-

ment because the latter is necessarily based thereon. In

the instant case the Per Curiam Opinion filed May 8,

1944, was obviously not a condition precedent to and was,

indeed, wholly unnecessary as a basis for entry of the de-

cree on April 24, 1944. As above pointed out, the decree

was based upon the decision of the Court announced from

the Bench and recorded in the Court’s proceedings of the

same date. To contend that the opinion of May 8th gov-

erns rather than the decree of April 24th is tantamount

7

to arguing that if the opinion of May 8th were never

prepared or filed, the time to make application for a

writ of certiorari would never commence to run!

The principle controlling in the instant case was an-

nounced in Puget Sound Power and Light Co. vs. King

County, 264 U.S. 22, 68 L. ed. 541. (See, also, Annota-

tion in 87 L. ed. 261.) In the Puget Sound case the Sec-

ond Department of the Washington Supreme Court

filed its opinion October 15, 1921. The case was re-argued

before the Court en bane which, in a Per Curiam Opin-

ion filed June 12, 1922, approved the decision of the

Second Department and affirmed the judgment of the

Superior Court. On July 10, 1922, there was entered

in the minutes of the Washington Supreme Court an

order affirming the judgment of the Superior Court. On

September 22, 1922, application was made for writ of

error to the United States Supreme Court. It will be

noted that the application was made within three months

after the judgment of the Washington Supreme Court,

but more than three months after the Per Curiam Opin-

ion was filed.

Under the applicable Washington statute, where hearing

en bane was ordered and had, as in the Puget Sound case,

the Per Curiam Decision became final when filed al-

though there was also in the statute specific provision that

a judgment should issue thereon. Upon motion to dis-

miss the writ of error, the United States Supreme Court

said:

“Tt is apparent that, however final the decision may

be, it is not the judgment. It is said that the latter

8

is a mere formal, ministerial entry of a clerical char-

acter, whereas the real judgment is the final decision.

Whatever the effect of the distinction in the pro-

cedure of the state, which counsel seek to make, we

are in no doubt that that which the Washington

statute calls the judgment is the judgment referred

to in the Act of Congress of September 6, 1916 * * *

‘fixing the time in which writs of error must be ap-

plied for and allowed.”

The motion to dismiss the writ granted the Puget

Sound Company was denied. In other words, Congress

in enacting 28 U. S. C. A., Sec. 350, meant exactly what

it said: the application for the writ must be made within

three months after entry of judgment or decree, not with-

‘n three months after the rendering or filing of the opin-

ion. In general, see Rosenberg vs. Heffron, 131 F. (2d)

80, 82, C. C. A., 9th Circuit; Cyclopedia of Federal Pro-

cedure, 2d Ed., Vol. 10, Sec. 5112.

Where no application for certiorari is filed within

three months after entry of the decree, the Supreme

Court loses jurisdiction to consider the merits of the de-

cree. Toledo Scale Co. vs. Computing Scale Co., 261 U.S.

399, 67 L. ed. 719.

Il. CERTIORARI PREVIOUSLY DENIED.

In 1927 the Circuit Court of Appeals for the Ninth

Circuit decided the Nippon case above cited and referred

to in petitioner’s brief, pages 11-13. In that case the Power

Company furnished electric power for industrial uses in

San Francisco. Part of the electric energy was gener

9

ated in Alameda County and conducted from the County

shore across to San Francisco by way of two cables which

rested on the bottom of the bay. A steamship, dragging

her anchor, damaged these cables. The Power Company

brought a libel in personam against the owner of the ship

in the District Court and was allowed to recover. The

Ninth Cireuit Court of Appeals reversed the District

Court, holding that admiralty had no jurisdiction in the

premises.

The Power Company then filed a petition for certiorari

to the United States Supreme Court, the proceeding be-

ing docketed under No. 1010. Reasons assigned for grant-

ing the petition included the following:

1. The Ninth Cireuit Court of Appeals had decided

an important question of law in a way probably unten-

able and in conflict with the weight of authority.

2. The Court had decided an important question of

Federal jurisdiction in a way probably in conflict with

applicable decisions of the United States Supreme Court

and which had not been, but should be, settled by the

Supreme Court.

3. The Court had so far departed from the accepted

and usual course of jurisdictional proceedings as to call

for an exercise of the power of supervision of the Supreme

Court.

(See petition for writ of certiorari in Nippon case,

page 2.)

nt ae

10

The case was ably and exhaustively briefed by proctors

for both parties. On May 2, 1927, certiorari was denied,

no formal opinion being rendered.

At the time of the Nippon decision three of the cases

relied upon by proctor for petitioner herein (see p. 3,

petition for writ of certiorari) had been decided, namely,

Postal Telegraph Cable Co, vs. P. Sanford Ross, Inc.,

9291 Fed. 105, D. C., E. D., N. Y. (1915) ; United States’

vs. North German Lloyd, 239 Fed. 587, D. C.. a4

N. Y. (1917), and The Toledo, 242 Fed. 168, D. C.,

D. N. J. (1917).

All of the cases just cited were considered by the Cir-

cuit Court of Appeals for the Ninth Circuit in the Nippon

case. The Court in its decision noted that all three cases

involved telegraph cables which may have had some use

in navigation “by the transmission of messages there-

through to direct the course and movement of vessels.”

No such use could follow as an incident to the purpose

of a power cable. More important, however, the Circuit

Court of Appeals pointed out that a power cable is

analogous to a revolving shaft in a waterproof casing

which might communicate physical impulses from bank

to bank along the bottom of the strait. Such shaft, the

Court held, would have no marine character. We quote

from the Nippon case:

“Tf the decisions in the telegraph cable cases are

applicable, the lines under water become detached

from the land structures and take character as a seg-

ment distinct from the rest of the physical system—

a legal amphibian, truly. It would seem that such a

11

segment cannot be thus separately defined, without

support from the very criterion—that every injury

committed by a ship is compensable in admiralty—

which the Supreme Court of the United States has

said is no part of American maritime law.”

Assuming that the decisions in the three telegraph cable

cases cited were in conflict with the Nippon decision which

involved a power cable, that conflict was not between Cir-

cuit Courts of Appeal, as contemplated by Rule 38-5 (b)

of this Court, but rather was between the Circuit Court

of Appeals for the Ninth Circuit and certain District

Courts in the Second and Third Circuits. As will here-

after be pointed out, the conflict with the District Courts

in the Second Circuit has now been eliminated by the

decision of the Circuit Court of Appeals for that Circuit

in the case of the Tug Williams. Moreover, the Circuit

Court of Appeals for the Ninth Circuit in 1984 in TWest-

fall Larson and Co, vs, Allman-Hubble Tug Boat Co.,

73 I’. (2d) 200, re-affirmed its decision in the Nippon

case and re-affirmed both holdings in its decision in the

instant case. Accordingly, if it was proper for the Supreme

Court of the United States to deny certiorari in the

Nippon case, a fortiori the Court should do so in the

instant case.

Ill. ACCORD, NOT CONFLICT, EXISTS

BETWEEN CIRCUIT COURTS

OF APPEALS.

The case of the Tug Williams was decided July 25,

1944, eight days before notice of filing the petition for

4 iT

%

12

certiorari in the instant case was served. The appeal was

from the Southern District of New Yous in the case dis-

cussed at page 14 of petitioner's brief, entitled United

States vs. Tug Williams, 1941 A. M. C. 1588. The decis-

‘on reverses the holding of the District Court which had

sustained admiralty jurisdiction for injury to a telephone

cable in New York Harbor and dismisses the libel as

against the Tug Williams and her stipulators. At the -

present writing the decision remains unreported, hence

we have attached as Appendix “A” to this brief a copy

of all pertinent portions of the decision. It is to be noted

that the Appellate Court in its decision cites the Nippon,

Westfall Larson and instant cases, calling attention to

the fact that the Circuit Court of Appeals for the Ninth

Circuit “is the only Court of Appeals that has considered

a question almost exactly resembling the one before us.”

The Court, however, overlooks a prior dictum of its own

in The No. 6, 241 Fed. 69, 71 (1917), C. C. A. 2nd Cir-

cuit, where it observed that damage to a submarine gas

pipe was not a maritime tort.

The effect of the decision by the Circuit Court of Ap-

peals for the Second Circuit is, of course, that all District

Court decisions in the same Circuit, which are not in ac-

cord with the Appellate Court’s holding, are no longer

the law in that Circuit. These decisions include not only

the Sanford Ross and North German Lloyd cases above

cited, but also United States vs. The Majestic, 1932 A.

M. C. 1079, D. C., S. D., N. Y., and New York Telephone

Co. vs. Cities Service Transportation Co., 23 F. Supp.

426, D. C., E. D., N. Y. (1988) (both of which are cited

OPA R RE ee oe Th —

ita ts nh

SR as

Sey, Ie

18

in petitioner’s brief, page 18. The decision in The Russell

No. 6, 42 F. Supp. 904, D. C., E. D., N. Y. (1941) (not

discussed in petitioner’s brief), holding that admiralty

jurisdiction did not attach in a case involving damage to

oil pipe lines running under water across the Arthur Kills,

is in effect approved.

In Bell Telephone Company vs. United States of

America (The SS Cavalcade ), 1943 A. M. C. 220, D. C.,

E. D., N. Y. (petitioner’s brief, page 14) a libel in ad-

miralty charged the SS Cavalcade, owned by the United

States of America, with negligently causing her anchor

to come in contact with submarine telephone cables. Ex-

ceptions to the libel were filed on the ground that the

cause was not within the admiralty jurisdiction, which

exceptions were overruled. The Government then filed

a petition in the United States Supreme Court, asking

that a writ of prohibition issue enjoining the trial court

for lack of jurisdiction from proceeding further with the

cause.

The Circuit Court of Appeals for the Second Circuit,

on the same date that it decided the case of the Tug

Williams, denied the petition. The Court stated that in

view of the allegations of the libel, it was “hard to see

how jurisdiction in admiralty can exist if the decision in

the United States vs. Tug Williams is correct.” Despite,

however, the likelihood that libelants would fail in the

District Court, the Appellate Court concluded that the

case should be left for decision in the lower court and “for

review in due course on appeal and not disposed of on ap-

plications for writs of prohibition and mandamus.” Since

14

the Cavalcade is likewise unreported as of the present

writing, we attach hereto as Appendix “B” all pertinent

portions of the Appellate Court’s decision therein.

There remains, in the Third Circuit, The Toledo, 242

Fed. 168, D.°C., D. N. J.. (1917), the only case not yet

directly overruled, which upholds admiralty jurisdiction

where a vessel injures a submarine telegraph cable. But

The Toledo ruling was disapproved in the Nippon case; °

this Court refused certiorari when it was urged that The

Toledo decision, among others, was in conflict with the

Nippon decision; The Toledo was noted, but disregarded,

by the New York District Court in The Russell No. 6;

The Toledo is in conflict with the Mont Agel, 1924 A. M.

C. 401, D. C., N. D., La., Postal T clegraph Cable Co. vs.

SS “Cananova’, 1942 A.M.C. 281, D.C., S.D., Fla. (both

in the Fifth Circuit), and The Trinidad, 19382 A. M. C.

1144. D. C., W. D., Wash., (Ninth Circuit), all of which

denied admiralty jurisdiction; and finally, it was disap-

proved by the Second Circuit Court of Appeals in the

Tug Williams. Considering the trend of the decisions else-

where, it is highly unlikely that if the New Jersey Court

were today passing on the same issue, it would do other

than follow the rule of the Second and Ninth Circuit

Courts of Appeals.

IV. NO PUBLIC INTEREST JUSTIFIES

ISSUANCE OF WRIT OF CERTIORARI.

The concluding portion of petitioner’s brief (pp. 15-18)

+s devoted to the contention that it is in the public interest

15

to have this question of admiralty jurisdiction settled.

The principal reason advanced is “the conflict of decisions

in the different circuits.” However, as already pointed

out, that conflict was practically eliminated by the Circuit

Court of Appeals for the Second Circuit a few days be-

fore the notice herein was filed.

It is urged that the use of submarine cables through-

out the country is increasing, with resulting frequency

of cable damage from ship’s anchors. The implication

seems to be that unless admiralty jurisdiction is extended,

the injured cable owner is left without remedy. But where

the offending vessel is privately owned, the injured claim-

ant has his common law right of action against the owner.

In Oregon the claimant may also in the State Court

seize the vessel under procedure substantially identical

with that in admiralty. (Secs. 67-801 (4), 67-803-817,

0. C. L. A.) In any other state bordering on navigable

waters where a similar boat lien law may not exist, the

legislature thereof is certainly competent to adopt a

similar statute.

In the instant case the United States of America, and

not a private individual or corporation, is the defendant.

Speaking generally upon this subject, proctor for peti-

tioner asserts that with the huge fleet of government

vessels now operating as merchant ships, cable damage is

ordinarily done by action of a government ship, and un-

less the cable owner can sue the United States under the

Suits in Admiralty Act, he is without redress.

This argument is more properly addressed to Congress

than to the Court. The United States of America can

anne ee 2

aes A, PEP RE it F + PIE dL MD SALE GP oh PL LI BEINN INGO 0 8-

16

never be sued without its consent. By the Suits in Ad-

miralty Act the Government, however, consented to be

sued in admiralty in any case where a private owner or

his vessel could be sued, provided however, that neither

vessels of the United States nor cargo owned or possessed

by the United States should be subject to arrest or seizure.

The holdings in the Tug Williams and instant cases are

simply to the effect that admiralty jurisdiction is not to

be extended irrespective of the identity of the respondent. |

If there are practical reasons why government immunity

should be lifted where a government ship in jures a sub-

marine cable, Congress is the body to do the lifting.

Reference is made by petitioner’s proctor to the “hair-

line distinction” suggested between a telephone or tele-

graph cable and a power cable. Insofar as the instant case

‘5 concerned, this distinction involves only a moot ques-

tion. Neither in the case of the Tug Williams, nor in the

instant case was any contention made that the cables were

aids to navigation—rather they were obstructions to navi-

gation. Cf. The Troy, 208 U.S. 821, 822, 52 L. ed. 512.

We next quote from page 16 of petitioner’s brief as

follows:

“The plain and indisputable fact * * * is that the

cable is not a structure on land. It lies loosely on the

bed of the river. It has, purposely, so much slack that

+t can be lifted to the surface and laid across barges

for examination or repair. At the time it is dam-

aged, it is not even on the bottom but lifted up and

dragged therefrom by the ship’s anchor, so it is

actually in the water * * *. The cable is not fastened

to the land as a pile driven into the river bed. It

ae a

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17

merely has electrical connections on the bank con-

necting it with the land cable * * *. It is * * * ‘an

adjunct, rather than a prolongation or extension of,

a structure on land’.”

We believe it can fairly be inferred from the opinion

in each case where admiralty jurisdiction was denied that

the cable in question lay loosely on the bed of the river.

It was necessary in the first instance that there be suf-

ficient slack in the cables to lay them in place. That same

slack would no doubt make it possible to lift any one of

these cables to the surface of the water and lay it across

a barge for repairs.

This aspect of the question was considered in Morrow

S.S. Co. vs. Superior Water, Light and Power Co., 31 F.

(2d) 486 (1928), D. C., W. D., Wis. In that case an

electric cable, which normally lay on the bed of the bay,

was, when damaged by collision with a ship, afloat on a

line of barrels or buoys on navigable water for repair pur-

poses. Contention was made that under the doctrine of

the Nippon case admiralty had no jurisdiction because the

cable was an instrumentality of land commerce. The Court

held that at the time of the accident “this cable was in

fact being navigated in a limited sense upon navigable

waters and temporarily, at least, was a part of navigation.

In this respect the case is clearly distinguishable from the

Nippon case.” The implication is that if the cable had

been damaged while lying in its normal position on the

bed of the bay, the rule of the Nippon case would have

been applied. That the power cable in the instant case

was capable of being lifted from the bed of the river for

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repair purposes is immaterial. At the time it was fouled

by the ship’s anchor, it was in its normal position on the

bed of the river. If, as proctor for petitioner argues, the

cable at the time it was damaged had already been lifted

up so that it “was actually in the water,” nevertheless, the

damage was the proximate result of the anchor coming

‘n contact with the cable while the same was in its normal

position, 1.e., resting on the bed of the channel.

18

In The Russell No. 6, supra, at page 908, the Court

said:

“Whether the pipe lines here in question were or

were not affixed to the bottom is of no moment.

The pipe lines in question were affixed onto the

plant on both sides of the Kill, and formed part of

the libellant’s plant as a whole, which could not have

been operated without such pipe lines, unless some

other means of sending the oil from Bayonne to Bay

Way was provided.”

V. GOVERNING PRINCIPLES OF LAW

HERETOFORE SETTLED BY THE

SUPREME COURT.

Except for denial of the petition for certiorari in the

Nippon case we have found no decision of this Court

touching upon the issue of admiralty jurisdiction where a

ship’s anchor damages a submarine cable. The applicable

principle of law, however, has been announced by the

Supreme Court in not one, but several decisions.

The relevant cases are cited and discussed in the N ippon

and Tug Williams opinions. We shall not unnecessarily

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repeat the discussion of those cases by the Second and

Ninth Courts of Appeals. We, however, select and com-

ment upon a few of the cases in order to indicate the prin-

ciple which underlies them.

In The Plymouth, 3 Wall 20, 18 L. ed. 125 (1866),

recovery in admiralty was denied where a wharf was dam-

aged by fire which started on board a ship moored to the

wharf. The Court ruled that both the origin and consum-

mation of the wrong had to be completed within the navi-

gable waters. The damaged wharf, however, was a land

structure which, although used in connection with ship

commerce, provided no maritime locus to support a tort

libel.

In The Blackheath, 195 U. S. 361, 49 L. ed. 236 (1904),

this Court held that damage done by a vessel to a beacon

erected on a point of land, but used for the purposes of

warning shipping, was cognizable in admiralty. The Court

said:

“* * * we now are dealing with an injury to a gov-

ernment aid to navigation from ancient times sub-

ject to the admiralty, — a beacon emerging from

the water, — injured by the motion of the vessel,

by a continuous act, beginning and consummated

upon navigable water, and giving character to the

effects upon a point which is only technically land,

through a‘connection at the bottom of the sea. In

such a case jurisdiction may be taken without

transcending the limits of the Constitution or en-

countering The Plymouth or any other authority

binding on this court.”

The ruling in The Blackheath was also applied in The

Raithmoor, 241 U. S. 166, 60 L. ed. 937, where the dam-

od

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20

age caused by the ship was to an incompleted beacon. We

quote from the decision as follows:

«“# #* * Cleveland Terminal & Valley R. Co. v.

Cleveland S. S. Co. 208 U. S. 316, 820, 52 L. ed.

508, 512, * * *. In that case it’ was decided that the

admiralty did not have jurisdiction of a claim for

damages caused by a vessel adrift, through its al-

leged fault, to the center pier of a bridge spanning a

navigable river and to a shore abutment and dock.

Referring to The Blackheath, and drawing the dis- —

tinction we have noted, the court said: “The dam-

age’ (that is, in The Blackheath) ‘was to property

located in navigable waters, solely an aid to navi-

gation and maritime in nature, and having no other

purpose or function... . But the bridges, shore

docks, protection piling, piers, ete.’ (of the Cleve-

land Terminal Company) ‘pertained to the land.

They were structures connected with the shore and

immediately concerned commerce upon land. None

of these structures were aids to navigation in the

maritime sense, but extensions of the shore, and aids

to commerce on land as such’.”

* * %* *

“The relation of the structure to the land was of

the most technical sort, merely through the attach-

ment to the bottom; it had no connection, either

actual or anticipated, with commerce on land. It

was simply to serve as an aid to navigation, and

while it had not yet been finished and accepted, it

was being erected under the constant supervision of

a government inspector acting under the authority

of the United States in the improvement and pro-

tection of navigation.”

* * %* *

“This is not the case of a structure which at any

time was identified with the shore, but, from the

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21

beginning of construction, locality and design gave

it a distinctively maritime relation. When completed

and in use, its injury by a colliding ship would in-

terfere, or tend to interfere, with its service to nav-

igation; and, while still incomplete, such an injury

would tend to postpone that service. We know of

no substantial reason why the jurisdiction of the

admiralty should be sustained in the one case and

denied in the other.”

The case, however, which the Circuit Court of Appeals

for the Second Circuit in the Tug Williams, thought to

be “most nearly in point’, is The Poughkeepsie, 162 Fed.

494 (1908), affirmed in Per Curiam opinion in 212 U. S.

558, 53 L. ed. 651. In that case certain borings had been

made in the bottom of the Hudson River for the purpose

of locating an aquaduct under the river. The borings con-

sisted of iron pipes surrounded by a platform on the sur-

face of the river. The steamer collided with the platform

and pipes causing damage thereto. No connection existed

between the borings and any structure on land, the bor-

ings being affixed only to the bed of the river. Admiralty

jurisdiction was denied, the District Judge, among other

things, saying:

“T am unable to see how without the authority of

The Blackheath the jurisdiction here could be sus-

tained. The project which the libellant was engaged

in is not even suggestive of maritime affairs. It was

supplying water to a city and the mere fact of the

means being carried under the bed of a river, with

extensions through the river to the surface, did not

create any maritime right, nor was it in any sense an

aid to navigation, which was the distinguishing fea-

ture of The Blackheath.”

22

The principles underlying the foregoing decisions may

be summarized as follows:

1. Where the injured object is a shore structure or

an extension of the shore and is concerned with commerce

on land, admiralty jurisdiction against the offending

vessel will not be sustained.

2. Where, however, the injured object, although af-

fixed to the earth, is surrounded by navigable water, is

solely an aid to navigation and maritime in nature, ad-

miralty jurisdiction against the offending vessel will be

sustained.

It is apparent that the instant case falls within the first

of the above mentioned categories. Portland General Elec-

tric Company’s cable lay on the bed of the river. It was

attached to connections on each bank of the river. Its pur-

pose was to transmit electrical energy from one side of

the river to the other to meet the needs of petitioner's

customers. No claim whatever is made that the cable was

an aid to navigation or maritime in nature—indeed, from

the standpoint of navigation, it would have been far better

if the cable,had never been laid. Its sole function was in

aid of land commerce.

Undoubtedly considerations of economy, practicability,

or convenience induced petitioner to place the cable on

the bed of the river. The transmission line could have been

an aerial cable or one attached to a bridge (if there had

been a bridge at this location). Under such circumstances

even the New York District Court in Postal Telegraph

Cable Co. vs. Ross, supra, would have conceded that ad-

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miralty had no jurisdiction. 221 Fed. 105, 108. The actual

position of the cable on the bottom of the stream did not

alter its nature or function.

If in The Poughkee psic, supra, where the boring equip-

ment was completely surrounded by navigable waters, but

had no attachment with the shore, admiralty jurisdiction

was denied, a fortiori in the instant case where the cable

lay under the water and was physically connected with

both shores, admiralty jurisdiction was properly denied.

CONCLUSION

There is neither statute nor judicial decision in the

United States authorizing an Admiralty Court to award

damages for injuries by vessels afloat to land structures

or their extensions which are not in aid of navigation.

Effort has been made to obtain Federal legislation ex-

tending admiralty jurisdiction in cases where vessels in-

flict damage on land structures, but such effort has been

without success. Robinson, Admiralty, pp. 52, 538. As-

suredly this court will not be persuaded by the prayer of

petitioner to legislate judicially in a respect as to which

Congress has declined to act. No showing has been made

to justify this Court in reversing its long line of prior

decisions holding against admiralty jurisdiction under

facts substantially identical with those involved in the

instant case.

For the reasons above set forth, we submit that the

petition for writ of certiorari should be denied.

" pe 5k acts Bek Ch 0 pees ES.

24

Dated at Portland, Oregon, this 28th day of August,

1944.

Respectfully submitted,

Hampson, Koerner, Youne & SwETT,

ALFRED A. Hampson,

CLARENCE J. YOUNG,

800 Pacific Building,

Portland 4, Oregon,

Proctors for Respondent.