Petition for Writ of Certiorari — Triem v. Tamico, Inc.
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Buprems Court, US.
ee et Bee
95161 JAN 10 19%
/
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1994
FRED W. TRIEM and DAVID A. BERG,
Petitioners,
TAMICO, INC.,
Respondent,
On Petition for a Writ of Certiorari to the
Supreme Court of Alaska
PETITION FOR A WRIT OF CERTIORARI
Fred W. Triem
David A. Berg
Box 129
Petersburg, Alaska
99833-0129
(907) 772-3917
In Propria Persona
a ne LS
She etry IY
QUESTIONS PRESENTED
1. Do state courts have jurisdiction that is concurrent
with that of the federal courts to hear admiralty and mari-
time cases—such as this case of maritin » salvage?
2. Does the Saving to Suitors Clause’ of 28 U.S.C. §
1333(1) create a concurrent jurisdiction in state courts that
allows them to try admiralty and maritime cases?
3. Was the historical purpose of the Saving to Suitors
Clause merely to cure the abuses’ of the pre-Revolutionary
War admiralty courts?
4. Is the true meaning of the Saving to Suitors Clause
found in Justice Field's explanation that it only preserves
a common law remedy but not in a common law court?
* The Saving to Suitors Clause derives from Section 9 of the
Judiciary Act of 1789; full text of original and modern versions is
set out at pages 23-24 of the Appendix.
* The two abuses were denial of jury trials and denial of trial in
a local vicinage.
° The Moses Taylor, 71 U.S. (4 Wall.) 411, 431, 19 L.Ed. 397, 402
(1867) (only case in which the Supreme Court has directly em-
braced this issue: what the Clause really means).
ii
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED .............eeee. i
vy (8 Bs tt gy > p> Se ere ae ii
pe oP Bs) a lige. 8: ig y | >: peer ne iii
Geet EAETE . o vcvcvnteccéssbssiedeeeu 1
Fe ook cok c'n oko ods bs Lae 1
CONSTITUTIONAL PROVISION
P12 od keg -. Serres pine ere T 2
SIATEMeN: OF THE CABE ooccccssccceuss 2
REASONS FOR ALLOWANCE OF WRIT... 4
I. EXORDIUM: THE ADMIRALTY JURISDIC-
Sat Ee MEE ED 946 440000 8 8ae se 10
II. ALASKA’S JUDICIAL POLICY OF HEARING
ADMIRALTY CASES IN THE STATE
COURTS VIOLATES THE ADMIRALTY
CLAUSE OF THE CONSTITUTION ....... 19
III. THE TRUE MEANING OF THE SAVING TO
SUITORS CLAUSE NEEDS TO BE SETTLED . 24
IV. CODA: SUMMARY DISPOSITION BY RE-
WIRES 06's Ko. 0x xo 0s dee eee ket
CRP Re | vos Kane bond ke@ee aces eee 29
SEE a eee infra
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Cee eel
TABLE OF AUTHORITIES
Cases
A Raft of Spars, 20 Fed.Cas. 173 (No. 11,529)
SD sc cee pupend cvccene
Alyeska Pipeline Service Co. v. Anderson, 629 P.2d
asians, Vig eke bbeonss e6eees
Barber v. New England Fish Co., 510 P.2d 806
Rieke a Wet tecl eee ds dese eee
Bass v. Five Negro Slaves and A Canoe, Fed. Cas.
DE SERS BED oc ncoccvesvevsevecese
Brevoor v. The Fair American, 1 Pet. Adm. Rep.
87, 4 F. Cas. 73 (D.Pa. 1800) (No. 1,847) .....
Bjornson v. U.S. Dominator, Inc., __. P..2d ___
(Supreme Court of Alaska, Opinion No. 4023,
eR
Broere v. Two Thousand One Hundred Thirty-
Three Dollars, 72 F.Supp 115 (E.D.N.Y. 1947) .
Cobb Coin v. Unidentified, Wrecked, & Abandoned
Sailing Vessel, 525 F.Supp. 186 (S.D. Fla.
eine abcd ee besaeercdceeyesets
Colby v. Todd Packing Co., 77 F.Supp. 956, 12
Alaska 1, 1948 A.M.C. 1881 (D.Alaska 1948) ..
Cowin v. Bressler, 741 F.2d 410 (D.C. Cir. 1982) .
Dahle v. Atlantic Richfield Co., 725 P.2d 1069
A eer eee ee eee eee eee
DeLovio v. Boit, 7 F. Cas. 418 (C.C.D.Mass. 1815)
ee eva w ye peeesereves
Estate of Rhyner v. Farm Credit Bank of Spokane,
700 P.2a 1001 (Alaska 1969) ...............
PAGE
23
~]
11
21
iv
F/V America Eagle v. State, 620 P.2d 657 (Alaska
PO re rr ee re oe ee 20
50,000 Feet of Timber, 9 Fed.Cas. 47 (D.C. Mass.
1073) Cena) Cee. SD oes ok cnc ndenaxice 7
Florida Dept. of State v. Treasure Salvors, Inc.,
458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057
CRED obs cukddavedeileccesene ae 8
i sgelman v. Tidewater Barges, Inc., 7 47 F.Supp.
ae Ge i Be ao 6d 0 osae eieee 27
Garder v. Ninety-Nine Gold Coins, 111 F. 552
CE ee SE a v's vn doe Uiloeie babe eee
Ghen v. Rich, 8 F. 159 (D.Mass. 1881)........
Glass v. The Sloop Betsy, 3 Dallas 6, 1 L.Ed. 485
CTO. Cee, Sibe a oan cvdkukessdeabaseess 18
Great West Seafoods v. Seward Shipyard, Inc.,
Case No. 3AN-91-4255 CI, (reported in Alaska
Journal of Commerce, 12 April 1993, at page
OF tkaecacecentvabeditsaeriestentne 22
Hollingsworth v. Seventy Doubloons & Three
Small Pieces of Gold, Fed.Cas. No. 6,620 (D.C.
FO SE chs dpeacivauneekeudien teens 7
In re: The Glacier Bay, 746 F.Supp. 1379 (D.
pi PP err rrr rere 22
Insurance Company v. Dunham, 78 U.S. (11 Wall.)
eS Be 8 8. os errr rere sr ere 11
Mark v. South Continental Insurance Agency,
Inc., 1978 A.M. 519 (D.P.R. 1976) .......... 6
Maxwell v. Olsen, 468 P.2d 48 (Alaska 1970) .... 20, 22
O’Neill v. Schoenbrod, 355 So.2d 440 (Fla.App.
1978) appeal dismissed, 359 So.2d 1218 (Fla.
SOG vi ccakesvie theless alee 6, 23
Vv
Merritt & Chapman Derrick v. Tice, 103 N.Y.S.
rere eee 23
Reynolds v. Browning, Wells & Co., 231 N.Y.S.
ee ee: Se ES ake ck ence seeaweedeese
Shannon v. City of Anchorage, 478 P.2d 815
SE ie sae pd iwerund vacwsapee sins 20
State v. F/V Baranof, 677 P.2d 1245 (Alaska 1984) . 21
Thames Shipyard & Repair Co. v. Willametz, 428
A.2d 1143 (Conn.Super. 1978) .............. 23
The Catherina, 23 F.Cas. pp. 1028, 1030 (D.Pa.
See asi dG es ae ctedsabeac dacs 12
The Hine v. Trevor, 71 U.S. (4 Wall.) 555, 18 L.Ed.
EE wk Vicsscudsab obs sie en dete snewse's 19
The Moses Taylor, 71 U.S. (4 Wall.) 411, 19 L.Ed.
See EE Ciscb ced vier dcnaseseeetivivaseys i, 19
U.S. Dominator, Inc. v. Factory Ship Robert E.
Resoff, 768 F.2d 1099 (9th Cir. 1985)....... 22, 23
Wiggins v. 1100 Tons, More or Less, of Italian
Marble, 186 F.Supp 452, 1960 A.M.C. 1774
Ce | Seer ee, Pee eee 8
Williams v. Eckert, 643 P.2d 991 (Alaska 1982)... 21, 22
Other Authorities
Admiralty Clause, U.S. Constitution, Article III,
I ee ckecéckecenes passim
Judiciary Act of 1789, 1 Stat. 73............. passim
28 U.S.C. §1333(1) (Saving to Suitors Clause, cur-
Se EE Scenes ehasusueseeennsies passim
Salvage Act of 1912, 37 Stat. 242 (1912), codified
Oe Oe. Se POTD odbc coccendcncsvessns 8
vi
Supreme Court Rule 10.1(c)..........+.eeeeees 28
Comment, “Extending Admiralty Jurisdiction over
Nonmaritime Property: Ascertaining the Sal-
vor’s Possessory and Proprietary Rights to
Sunken Aircraft,” 15 Pacific Law J., 977, at
986-000, SOB-GOG CIUBE) vcccccwvccscvvscceces 6
2 Am.Jur. 2d ADMIRALTY, §14 (1962)....... 26
68 Am.Jur. 2d, Salvage §40, at 343........... 24
78 C.J.8., Salvage, $161, O6 GOS . 25 cccsccvccees 24, 25
Grey, Origins of the Unwritten Constitution:
Fundamental Law in American Revolutionary
Thought, 30 Stan.L.Rev. 8438, 870 (1978) .... 11
Norris, The Law of Salvage, §14 (1980)........ 26
D. Owen, “Some Legal Troubles With Treasure:
Jurisdiction and Salvage,” 15 J.Mar.L. & Com.
130, at 148 (ORR in cce ceed tiaeee i cie seers 8, 25
Robertson, Admiralty and Federalism, 126 (1970) . 26
Charles Warren, Congress, The Constitution, and
The Supreme Court, (2nd ed. 1935)........ 13
1 Farrand, Records of the Federal Convention, 124
(1911) ..0ccccndap ou eeeeeeeE ES obs este 14
3 Elliott’s, Debates 582 (2d ed. 1900).......... 14
3 Elliott’s Debates 571 (1788) ...........-ecee- - 45
Hamilton, The Federalist, No. LXXX (1788)... 14, 15
J. Frederick Bausman, Admiralty and Maritime
Jurisdiction, 36 Amer.L.Rev. 182, 187-88
(1902) ...cscesduneb es eee een aaes 17, 27, 28
Peg a ee ee ee et
IN THE
Supreme Court of the United States
OCTOBER TERM, 1993
FRED W. TRIEM. DAVID A. BERG. and
Petitioners,
Vv.
TAMICO, INC.,
Respondent.
Petition for Writ of Certiorari to the Superior
Court, First Judicial District, at Petersburg, Alaska
PETITION FOR WRIT OF CERTIORARI
SBEST AVAILABLE COPY
1
Petitioners respectfully pray that a writ of certiorari
issue to review the judgment and decision of the Superior
Court for the First Judicial District at Petersburg, Alaska
that was entered in this cause on 13 July 1993.
OPINIONS BELOW
The trial court's memorandum opinion of the District
Court for the First Judicial District at Petersburg, Hon.
Thomas E. Schulz, Presiding Judge, of 4 May 1992 has not
been reported. It is reprinted in the appendix below at
App. 1.
The appellate opinion of the Superior Court, Hon.
Walter L. Carpeneti, for the First Judicial District at
Petersburg is not reported. It appears in the appendix be-
low at App. 7.
The Order of the Supreme Court of Alaska that denied
a Petition for Hearing (discretionary review) was entered on
16 September 1993. It is not reported. It consists of only
two sentences: "It is ordered: the Petition for Hearing filed
on August 13, 1993 is denied. Entered at the direction of
the Supreme Court on September 16, 1993." (signed) Clerk
of the Appellate Courts.
JURISDICTION
The original judgment in this case was signed by Hon.
Thomas E. Schulz on 2 October 1991 and filed by the Clerk
of Court in Petersburg on 8 October 1991. After timely
motions for reconsideration and for relief from judgment
were denied, and after a timely appeal was noted and heard
in the Superior Court, the Supreme Court of Alaska denied
a Petition for Hearing on 16 September 1993.
Associate Justice O'Connor approved an application for
an extension of time within which to file a Petition for Writ
2
of Certiorari in an order signed on 7 December 1993, which
extended the time to file this Petition to and including
10 January 1994.
The jurisdiction of this Court to review the judgment of
the state court below is invoked pursuant to 28 U.S.C. §
1257(a) ("where any ... right, ... is specially set up or
claimed under the Constitution or the treaties or statutes
... of the United States").
CONSTITUTIONAL PROVISION AND STATUTES
(See Appendix)
STATEMENT OF THE CASE
This is a case about judicial piracy. This is a classical
maritime salvage case—raising a sunken object from the
ocean floor—truly an admiralty case in every historical
sense of the term. This lawsuit should have been tried in a
court of admiralty, in a federal court. But it got shanghaied
into a state court proceeding by Alaska's judicial policy of
hearing admiralty and maritime cases in state courts rather
than in federal courts.
Petitioners objected to the state court's false claim of
subject matter jurisdiction. They made the argument in the
trial court and they repeated it on appeal. They explained
that the federal court's jurisdiction to hear admiralty and
maritime cases is grounded in Article III of the Constitu-
tion; that maritime salvage cases have always been tried in
courts of admira!ty since time immemorial; and that the
Saving to Suitors Clause does not create in the state courts
a concurrent jurisdiction to hear such cases, but merely pre-
serves a common law remedy though not in a common law
court. Petitioners lost because Alaska's courts routinely ig-
nore the Admiralty Clause.
3
(A) Salvage of Sunken Airplane: This litigation arose
from the maritime salvage of a sunken airplane that had
made a forced landing in the shipping channel of the
Wrangell Narrows, which is Southeast Alaska's primary
north-south maritime highway.
The airplane, a vintage DC-3 that was built during
World War II, was on an international flight in June 1989
from Fairbanks, Alaska through Canadian airspace to Cali-
fornia, when it stopped in Petersburg, Alaska, to refuel. As
it was taking off from the Petersburg airport to continue its
journey south, the DC-3's aileron cable broke and the pilot
lost control. He then chose to make an emergency landing
into the well-traveled waters of the Wrangell Narrows,
probably to avoid a less comfortable landing in the sur-
rounding mountains nearby. Please see Exhibits A and B,
which are photographs of the salvage operation and which
depict the channel and surrounding terrain. [Exhibits A and
B appear in the Appendix herein.)
After the flight crew ditched the plane and were picked
up by a passing fishing boat, the plane sank in the main
shipping channel of the Wrangell Narrows in about 17
fathoms of salt water.
Petitioners David Berg and Fred Triem who are Peters-
burg’s travel agent and attorney, respectively, grew up in
aviation families and developed a reverence for antique air-
craft. So they set out to save the DC-3, which had been
named "Dixie" by her former owners in Fairbanks, where
she had served for decades flying in the Interior of Alaska.
Petitioners were able to locate the approximate position of
the sunken aircraft by flying over the Wrangell Narrows at
a low altitude and observing the sheen on the water caused
by the aviation fuel escaping from the DC-3's fuel tanks.
Messrs. Berg and Triem then found the exact location of the
3
plane by dragging the bottom with a grappling hook, aided
by the use of a depth finder. A diver then affixed a buoy to
the plane and petitioners temporarily retreated to their
offices in Petersburg, where they incorporated Petersbu:z
Aircraft Salvors, Inc. [PAS], the third petitioner.‘
(B) The Contract for Maritime Salvage: After Petitioners’
diver had attached a buoy to the sunken plane, Petersburg
Aircraft Salvors, Inc. entered into a contact with Tamico,
Inc. to salvage the airplane, to raise it to the surface and to
tow it to shore. One of Tamico's employees made a pre-
salvage estimate of $3,000.00 to salvage the plane. But just
as Tamico's tow boat, barge, and crane were about to leave
the dock and sail for the salvage site, Tamico presented
PAS with a written contract calling for an hourly rate of
$400.00 per hour to be "paid regardless of the success of the
salvage operation.” Contract between PAS, Inc. and Tamico,
Inc. of 5 July 1989. The salvage operation continued over
parts of two days, and successfully ended when the plane
was deposited on Petersburg's seaplane ramp and towed up
onto dry land. Several days later, Tamico sent PAS a bill
for $14,600, more than twice the estimated cost of the sal-
vage operation. PAS protested; Tamico persisted; and this
lawsuit followed when Tamico sued PAS and its two in-
corporators, Fred Triem and Dave Berg.
(C) State Court Litigation About the Salvage of the Air-
plane: On 8 October 1991, the district court entered a judg-
ment against the petitioners, which had been signed by
Judge Schulz in Ketchikan, Alaska on 2 October 1991. [The
judgment is set out in the Appendix below at App. 22). The
* Pursuant to Supreme Court Rule 29.1, Petitioners state that
there are no parent companies or subsidiaries of Petersburg
Aircraft Salvors, Inc. They believe the same statement can be
made about Tamico, Inc., the respondent herein.
5
petitioners filed a timely Defendants’ Motion to Reconsider
on 21 October 1991, which protested that only the federal
court sitting in admiralty has jurisdiction to hear a case
such as this of maritime salvage. The trial court granted re-
consideration and indicated that it would treat the Motion
to Reconsider as a motion for relief from judgment. The
petitioners also filed Defendants’ Motion for Relief from
Judgment on 20 December 1991, which explained in abys-
mal detail why the Constitution prevents the state court
from trying this case: Article III confers exclusive jurisdic-
tion upon the federal district court sitting in admiralty.
On 4 May 1992, Judge Schulz entered an oral decision
on the record that decided: "In conclusion, I find the court
had jurisdiction for the judgment in this case" and he
denied the Motion for Relief from Judgment. App. 6. [The
full text of that decision is set out in the Appendix below.]
The petitioners noted a timely appeal from the district
court to the superior court. On appeal, the petitioners re-
newed their constitutional argument that maritime salvage
cases are within the exclusive jurisdiction of the federal
court sitting in admiralty. Again, the state court rejected
this argument and affirmed the trial court's claim of subject
matter jurisdiction. Judge Carpeneti, another superior court
located in Juneau, rendered the decision on appeal on 13
July 1993.°
® It is a quirk of Alaska Law that this "appeal" was actually no
more than a review of the decision of one superior court judge
(Judge Schulz, the Presiding Judge) by another superior court
judge in his own district (Judge Carpeneti). In fact, the trial
judge outranked the appellate judge. Under Alaska law, the
defendant in a civil action filed in district court can take a direct
appeal only to the superior court, not to the Supreme Court. AS
22.05.010(b); AS 22.10.020. Because Tamico filed this case in
(continued...)
6
After filing a timely request in the Supreme Court of
Alaska to enlarge the time to seek discretionary review in
that court and after more time was granted, the petitioners
filed a Petition for Hearing in the Supreme Court of Alaska
on 13 August 1993. Attached to that Petition were two
cases that are squarely on point and set out an indefeasible
argument why the state court does not have jurisdiction to
hear a case of maritime salvage.°
On 16 September 1993, the Supreme Court of Alaska en-
tered an order denying the Petition for Hearing. With that,
the losing defendants exhausted all of their appellate rem-
edies under state law. The Alaska courts are adamant: they
can hear admiralty and maritime cases—or so they believe.
Although this Petition for Certiorari was due in mid-De-
cember, Justice O'Connor kindly extended the time for fil-
ing it until 10 January 1994.
® (...continued)
district court, the defendants had no right of appeal to the
Supreme Court. Jd. Although not enshrined in the Constitution,
there is a right of appeal that has two elements: (a) appeal to a
higher court, and (b) review by a multi-judge panel. Harlon Leigh
Dalton, "Taking the Right to Appeal (More or Less) Seriously,” 95
Yale L.J. 62, 66 (1985).
® These two cases are O'Neill v. Schoenbrod, 355 So.2d 440
(Fla.App. 1978) appeal dismissed, 359 So.2d 1218 (Fla. 1978)
(only federal courts sitting in admiralty have jurisdiction to hear
salvage cases; it matters not that the plaintiff brought his action
in personam instead of in rem); Mark v. South Continental
Insurance Agency, Inc., 1978 A.M. 519 (D.P.R. 1976) (federal court
sitting in admiralty has jurisdiction to hear maritime salvage
case involving salvage of sunken land-based aircraft from
navigable waters). The Mark case is discussed in an exciting law
review article about the maritime salvage of sunken aircraft.
Comment, "Extending Admiralty Jurisdiction over Non maritime
Property: Ascertaining the Salvor's Possessory and Proprietary
Rights to Sunken Aircraft,” 15 Pacific Law J., 977, at 986-990,
993-994 (1984).
7
(D) A Paradigm for Admiralty Jurisdiction: The author
of a textbook would have to search long to find a better
example of a classical admiralty case than the instant case.
There are at least five reasons why this case is a paradigm
for the exclusive jurisdiction of the federal court sitting in
admiralty:
(1) Maritime Location: The sunken airplane landed in
ocean water, the navigable waters of the United States,
smack in the middle of a major shipping lane.
(2) Maritime Subject Matter: The raising of a sunken
object is a classical form of maritime salvage and has
always been a subject within the exclusive jurisdiction of
courts of admiralty.’
” Admiralty law does not require that maritime salvage necessar-
ily involve either a vessel or its cargo. The term "salvage" is much
broader in its reach. For example, see Colby v. Todd Packing Co.,
77 F.Supp. 956, 12 Alaska 1, 1948 A.M.C. 1881 (D.Alaska 1948)
(salvage claim for recovery of floating fish traps); A Raft of Spars,
20 Fed.Cas. 173 (No. 11,529) (S.D.N.Y. 1849) (lumber); 50,000
Feet of Timber, 9 Fed.Cas. 47 (D.C. Mass. 1871) (No. 4,783)
(timber).
Other examples that illustrate the wide range of objects that
can become the subject of a maritime salvage action are demon-
strated in the following cases: Hollingsworth v. Seventy Dou-
bloons & Three Small Pieces of Gold, Fed.Cas. No. 6,620 (D.C.Pa.
1820) (box floating in the ocean and containing specie); Garder v.
Ninety-Nine Gold Coins, 111 F. 552 (D.C.Mass 1899) (also specie);
Broere v. Two Thousand One Hundred Thirty-Three Dollars, 72
F.Supp 115 (E.D.N.Y. 1947) (money found on a dead body found
floating in the water). An extreme example is presented by an
early American admiralty case, Bass v. Five Negro Slaves and A
Canoe, Fed.Cas. No. 1,093 (D.S.C. 1803), where salvage was
awarded for the recovery (i.e., capture) of escaping slaves, who
had been found adrift in the Gulf stream.
The admiralty will recognize a claim for salvage, regardless of
whether the object saved is floating on the water or has sunk
below the water. Ghen v. Rich, 8 F.159 (D.Mass. 1881) (libel for
value of fin-back whale, killed by exploding harpoon, sunk, and
(continued...)
8
(3) Maritime Contract: This case involves a maritime
contract to perform salvage. The contract was made and
performed on the water.
(4) Traditional Maritime Nexus: Admiralty law in-
cludes a wide range of topics within its ambit, such as
towage, wharfage, moorage, passage, salvage, collision, and
general average, as well as maritime contracts and mari-
time torts.°
(5) International Maritime Treaty: State court judges
and non-admiralty attorneys are unaware that the United
States is a signatory to a host of international maritime
treaties on the subject of salvage. In addition to many
binary salvage treaties such as one with Canada, the
United States is a party to The Salvage Convention of 1910,
Brussels, 23 September 1910, U.S.T.S. No. 576, 37 Stat.
1658, 1670 (1913). Our substantive law of salvage derives
from this Treaty. The Salvage Act of 1912, 37 Stat. 242
(1912), codified at 46 U.S.C. §§727-731. The salvage of this
airplane was directly controlled by the Treaty of Salvage
and Wrecking—Canada, 18 May 1908, U.S.T.S. No. 502, 35
Stat. 2035 (1908), which covers an international flight from
7 (continued)
later washed ashore); Wiggins v. 1100 Tons, More or Less, of
Italian Marble, 186 F.Supp 452, 1960 A.M.C. 1774 (E.D.Va. 1960)
(marble retrieved from sunken vessel); Cobb Coin v. Unidentified,
Wrecked, & Abandoned Sailing Vessel, 525 F.Supp. 186 (S.D. Fla.
1981) (sunken Spanish treasure ship); Florida Dept. of State v.
Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d
1057 (1982) (the Nuestra Senora de Atocha, a Spanish galleon
with her sunken treasures).
® "In fact, the traditional statement is that the federal court has
exclusive jurisdiction of an action seeking a salvage award.” D.
Owen, "Some Legal Troubles with Treasure; Jurisdiction and
Salvage," 15 J.Mar.L. & Com. 139, at 148 (1985) (emphasis in the
original).
9
Canada to the U.S. where the salvage occurs "within a dis-
tance of thirty miles from the International Boundary” on
the Pacific Coast. Id.
REASONS FOR ALLOWANCE OF WRIT
This is a small case with a big issue of constitutional
law: Do state courts have a concurrent jurisdiction to hear
maritime and admiralty cases, such as this case of mari-
time salvage? Squarely presented here is the oldest open,
still-unanswered question in American Constitutional juris-
prudence: Does the Saving to Suitors Clause of The Judicia-
ry Act of 1789 create in the state courts a concurrent jur-
isdiction to hear admiralty and maritime cases? And if it
does, then is the Saving to Suitors Clause unconstitutional,
being repugnant to The Admiralty Clause, Article III, Sec-
tion 2, Clause 1 of our Constitution, which confers exclusive
jurisdiction to hear such cases upon the federal courts
sitting in admiralty?
The courts of a few states, notably those of Alaska, New
York, and Connecticut are interpreting the Saving to
Suitors Clause to mean that all admiralty cases can be
tried in state courts. But the historical evidence from the
time of the Revolution shows that the Saving to Suitors
Clause was not intended to diminish or subvert the exclu-
sive nature of the federal court's admiralty power. Instead,
the Saving to Suitors Clause was intended only to cure two
evils of the pre-Revolutionary War era. First, the Crown's
use of the admiralty courts to defeat the right to trial by
jury in certain revenue and customs offenses. Second, the
admiralty court's practice of conducting these trials outside
the local vicinage where the offense was alleged to have
been committed or where the defendant resided. The true
purpose of the Saving to Suitors Clause was to preserve a
10
common law remedy (jury trial in local vicinage) but not in
a common law (state) court.
Despite Article III's command of exclusive jurisdiction,
there are powerful contrarian economic incentives in state
courts to ignore the Constitution and to stretch the mean-
ing of the Saving to Suitors Clause beyond what its Fram-
ers intended. The Clause is not unconstitutional, except as
it is being applied in some state courts. These monetary in-
centives frequently surface in the state courts of Alaska,
which offer more generous awards of attorney's fees and
prejudgment interest than might be had in courts of ad-
miralty.
There are two reasons why a writ of certiorari should
issue: (1) There is a conflict between state courts, Supreme
Court Rule 10.1(a), and (2) This is an important question of
federal law that needs to be settled, Supreme Court Rule
10.1(c).
I. EXORDIUM: THE ADMIRALTY JURISDICTION IS |
EXCLUSIVE
The word “exclusive” does not appear in the Admiralty |
Clause. But it means exclusive. When placed in a chronolog-
ical sequence, there are twelve categories of information
and legal authority to support the proposition—universally
accepted—that the jurisdiction of the federal courts to hear
admiralty and maritime cases is exclusive.
(1) English Admiralty Jurisdiction Was Exclusive: Some
legal scholars contend that our American admiralty juris-
diction was simply intended to embrace and adopt the jur-
isdiction of the English court of admiralty as it existed at
the time of the Revolution. A modest collection of cases de-
fining the English jurisdiction will be found in the de-
11
fendants’ memorandum of 19 December 1991 at page 41.
[Aside: Justice Story did not accept this narrow view of
American admiralty jurisdiction. He contended that our jur-
isdiction was much broader in scope. The classical exposi-
tion is found in DeLovio v. Boit, 7 F. Cas. 418 (C.C.D.Mass.
1815) (No. 3,776), approved in Insurance Company v. Dun-
ham, 78 U.S. (11 Wall.) 1, 20 L.Ed. 90 (1871).]
(2) The Vice Admiralty Courts in the Colonies Had Ex-
clusive Jurisdiction: The historical evidence shows that the
purpose of the Saving to Suitors clause was to preserve the
common law rights of jury trial and trial in a local vicinage.
These rights had been abrogated by the colonial vice ad-
miralty courts, which had exclusive admiralty jurisdiction
and which were used by the Crown to deny the colonists a
jury trial in their own vicinage.
An issue subsidiary to taxation, but also of constitu-
tional status, was the colonists’ insistence on a right to
jury trial. Violations of the Sugar Act and the Stamp Act
were subject to prosecution in the Vice-Admiralty courts,
where trial was before a judge alone; furthermore, a
Vice-Admiralty court in Halifax, Nova Scotia, was given
jurisdiction over offenses in all the American colonies, so
that trials could be held entirely free from the check of
local opinion. According to the entirely mythical version
of history that Coke and other founders of English
Whiggery constructed, and to which colonial spokesmen
firmly adhered, Englishmen had from immemorial anti-
quity enjoyed the right to be punished only upon the ver-
dict of a jury of their peers. Smuggling offenses in
England had long been subject to trial by jury in the
common law courts. Accordingly, colonial spokesmen con-
sidered the admiralty jurisdiction an unconstitutional
violation of the Englishman's right to jury trial. Grey,
Origins of the Unwritten Constitution: Fundamental Law
in American Revolutionary Thought, 30 Stan.L.Rev. 843,
870 (1978). (footnotes omitted).
12
A more complete discussion of the role of the vice admiralty
courts in the Colonies can be found in the defendants’ reply
brief of 10 February 1992 at pages 4-24. The attention of
the Court is invited to this former pleading, in which the
appellants—here, petitioners—have explained the true pur-
pose of the Saving Clause.
(3) The Federal Court had Exclusive Jurisdiction During
the Revolution: Under the Articles of Confederation, there
was a federal Court of Appeals that was created to hear ad-
miralty cases during the American Revolution. Some of the
decisions of this court are reported in 1 Dallas (reprinted in
Vol. 1, L.Ed.). The Court of Appeals continued the practices
established before the Revolution and it inherited the ex-
clusive jurisdiction of the pre-war admiralty cases. The fact
that a war intervened, to be followed by a new system of
government in the Colonies, did not change the exclusive
nature of the federal admiralty jurisdiction.
[TJhe change in the form of our government has not ab-
rogated all the laws, customs, and principles of jurisdic-
tion we inherited from our ancestors, and possessed at
the period of our becoming an independent nation. The
Catherina, 23 F.Cas. 1028, 1030 (D.Pa. 1795) (No.
13,949).
The old practices continued; the exclusive jurisdiction of the
admiralty continued during and after the Revolutionary
War.
(4) Correspondence Before the Constitutional Convention:
In the four years preceding the Constitutional Convention
of 1787, the nation's leaders corresponded with each other
and proposed changes to the Articles of Confederation.
[The contemporaneous writings of the Framers of the
Constitution included the following comments showing
their intent to award jurisdiction of admiralty exclusive-
ly to the federal judiciary:]
13
Charles Pinckney's plan dating as early as 7 August
1786 (Congress to have the exclusive right of instituting
in each State a Court of Admiralty); George — wrote
to Arthur Lee ("The most prevalent idea,. .. to
establish . . . a judiciary system with a rs tc of all
such matters as depend upon the law of nations . . .");
Madison wrote to Randolph on 8 April 1787 ("The ad-
miralty jurisdiction may be fully submitted to the
National Government.") and to Washington on 16 April
1787 ("The admiralty jurisdiction seems to fall entirely
within the purview of the National Government”).
Charles Warren, Congress, The Constitution, and The
Supreme Court, pg. 30, ftn. 1 (2nd ed. 1935) (footnote to
text quoted above from pgs. 29-30).
Even before the Convention convened in Philadelphia, there
was a consensus that the admiralty jurisdiction should be
within the sole province of the new federal government.
(5) The Constitutional Plans: When the delegates ar-
rived in Philadelphia in late spring of 1787, some of them
had already drafted proposals and plans for a new constitu-
tion. There was a unanimous view that the admiralty jur-
isdiction should remain exclusively with the federal govern-
ment.
Eighth, the jurisdiction given to the Judiciary over na-
tional matters. . . The remaining portions of jurisdiction
granted to the Federal Judiciary were simply an exten-
sion of similar jurisdiction possessed by Courts under
the Articles of Confederation as to such national matters
as admiralty cases. Many of the subjects over which jur-
isdiction was granted by the Constitution had been sug-
gested in pamphlets and letters for four years prior to
the Convention. Charles Warren, Congress, The Consti-
tution, and The Supreme Court, pg. 29-30 (2nd ed. 1935)
[footnote omitted).
These plans were circulated at the Convention and incorpo-
rated into the new Constitution.
14
(6) The Constitutional Convention—Debate and Lack of
It: The records of the Constitutional Convention are almost
silent on the subject of the admiralty jurisdiction. This is so
because there was no debate of the topic—everyone having
agreed that the new federal government should establish
courts, which in turn would have exclusive jurisdiction over
such matters.
[Tjhe admiralty jurisdiction ought to be given wholly to
the national government, as it relates to cases not within
the jurisdiction of particular states, and to a scene in
which controversies with foreigners would be most likely
to happen. 1 Farrand, Records of the Federal Convention,
124 (1911).
The silence of the record simply reflects the common con-
sensus of the time. There was no disagreement on this
topic.
(7) Ratification Debate: After the Convention recessed
in September 1787, the disciples of the new Constitution re-
turned to their homes, where each state conducted its own
constitutional convention. The debate in some of these con-
ventions has been recorded and handed on to us. The de-
bate in Virginia is especially enlightening for what it shows
about the intent of the framers to preserve the exclusive
jurisdiction of the federal judiciary in maritime matters.
If, in any case, uniformity be necessary, it must be in the
exposition of treaties. The establishment of one revision-
ary superintending power can also secure uniformity... .
To the same principles may also be referred their cog-
nizance in admiralty and maritime cases. As our inter-
course with foreign nations will be affected by decisions
of this kind, they ought to be uniform. This can be done
only by giving the federal judiciary exclusive jurisdiction.
Controversies affecting the interests of the United States
ought to be determined by their own judiciary, and not
be left to partial, local tribunals. 3 Elliott's, Debates 532
(2d ed. 1900).
15
‘Cases of admiralty and maritime jurisdiction cannot,
with propriety, be vested in particular state courts. As
our national tranquillity and reputation and intercourse
with foreign nations may be affected by admiralty de-
cisions; as they ought, therefore, to be uniform; and as
there can be no uniformity if there be thirteen distinct,
independent jurisdictions,—this jurisdiction ought to be
in the federal judiciary.’ 3 Elliott's Debates 571 (2d ed.
1900).
Cases of admiralty and maritime jurisdiction cannot,
with propriety, be vested in particular state courts. As
our national tranquillity and reputation, and intercourse
with foreign powers, may be affected by admiralty de-
cisions; as they ought, therefore, to be uniform; and as
there can be no uniformity if there be thirteen distinct,
independent jurisdictions,—this jurisdiction ought to be
in the federal judiciary. On these principles, I conceive
the subjects themselves are proper for the federal ju-
diciary. Governor Randolph at the Virginia Consti-
tutional Convention. 3 Elliott's Debates 571 (1788).
There are no reports of any dissenting views on this point.
It seems that no one dissented from the exclusivity propos-
al,
(8) The Federalist Papers: The most publicized ratifica-
tion debate took place in the popular press of New York.
Alexander Hamilton, a proponent of a strong federal
government, wrote often on the subject of the new Constitu-
tion. Here are his views on the admiralty jurisdiction:
To judge with accuracy of the due extent of the federal
judicature, it will be necessary to consider, in the first
place, what are its proper objects.
The fifth point will demand little animadversion. The
most bigoted idolizers of state authority, have not thus
far shown a disposition to deny the national judiciary
16
the cognizance of maritime causes. These so generally
depend on laws of nations, and so commonly affect the
rights of foreigners, that they fall within the consider-
ations which are relative to the public peace. The most
important part of them are, by the present confedera-
tion, submitted to federal jurisdiction. Hamilton, The
Federalist, No. LXXX (1788).
Although Hamilton had many detractors, none chose to con-
tradict his opinion on this point.
(9) The Enabling Legislation: When the First Congress
met in New York in the spring of 1789, Senate Bill No. 1
was the legislation that became the First Judiciary Act. A
careful reading of Sec. 9 shows that the First Congress
carefully distinguished between those types of cases for
which the federal and state courts had a concurrent juris-
diction from those cases in which the federal jurisdiction
was exclusive:
Sec. 9. And be it further enacted, That the district
courts shall have, exclusively of the courts of the several
States, cognizance of all crimes and offences that shall be
cognizable under the authority of the United States, com-
mitted within their respective districts, or upon the high
seas; where no other punishment than whipping, not ex-
ceeding thirty stripes, a fine not exceeding one hundred
dollars, or a term of imprisonment not exceeding six
months, is to be inflicted; and shall also have exclusive orig-
inal cognizance of all civil causes of admiralty and maritime
jurisdiction, including all seizures under laws of impost,
navigation or trade of the United States, where the seizures
are made on waters which are navigable from the sea by
vessels of ten or more tons burthen, within their respective
districts as well as upon the high seas; saving to suitors, in
all cases, the right of a common law remedy, where the
common law is competent to give it; and shall also have ex-
17
clusive original cognizance of all seizures on land, or other
waters than as aforesaid, made, and of all suits for penal-
ties and forfeitures incurred, under the laws of the United
States. And shall also have cognizance, concurrent with the
courts of the several States, or the circuit courts, as the
case may be, of all causes where an alien sues for a tort
only in violation of the law of nations or a treaty of the
United States. And shall also have cognizance, concurrent
as last mentioned, of all suits at common law where the
United States sue, and the matter in dispute amounts, ex-
clusive of costs, to the sum or value of one hundred dollars.
And shall also have jurisdiction exclusively of the courts of
the several States, of aj] suits against consuls or vice-con-
suls, except for offences above the description aforesaid.
And the trial of issues in fact, in the district courts, in all
causes except civil causes of admiralty and maritime juris-
diction, shall be by jury.
The Judiciary Act of 1789, 1 Stat. 73 , 76-77 (underlining
supplied to illustrate the careful distinction that was made
between concurrent and exclusive jurisdictional grants, and
to show that the Saving to Suitors Clause is squarely in the
middle of a long sentence of exclusive grant).
A careful reading of this section, in which the underlin-
ing shows which causes were exclusive and which were
concurrent, reveals that the admiralty jurisdiction is listed
as “exclusive.” If Congress had intended that there be a
concurrent jurisdiction with the state courts, then it surely
would have said so, as it did say for other types of cases
also mentioned in the same section. This point is explained
in more detail by Frederick Bausman, Admiralty and Mari-
time Jurisdiction, 36 Amer.L.Rev. 182, 187-88 (1902)
("[t]hat the framers of the Constitution intended the ad-
miralty jurisdiction to be exclusive is clear, despite the
silence of the instrument’).
18
(10) The Early Federal Cases: The early decisions of the
new federal courts reflect the common knowledge and
understanding of the times: that federal courts and only
federal courts can hear admiralty cases. See, e.g., Brevoor
v. The Fair American, 1 Pet. Adm. Rep. 87, 4 F. Cas. 73
(D.Pa. 1800) (No. 1,847) ("as to the jurisdiction of this court,
in cases of salvage on the sea, ... nor do I see how a
common law court could legally take cognizance of such a
case”).
(11) The Early Decisions of the Supreme Court: In the
earliest years of the new Republic, the admiralty jurisdic-
tion was a topic that came before the new Supreme Court.
It was always sustained.
The judges being decidedly of opinion, that every
district court in the United States possesses all the
powers of a court of admiralty, whether considered as an
instance, or as a prize court, and that the plea of the
aforesaid appellee, Pierre Arcade Johannene, to the jur-
isdiction of the District Court of Maryland, is insuffi-
cient.
... no foreign power can of right institute, or erect,
any court of judicature of any kind within the jurisdic-
tion of the United States .. ., it is therefore decreed and
adjudged that the admiralty jurisdiction, which has been
exercised in the United States by the consuls of France,
not being so warranted, is not of right. Glass v. The
Sloop Betsy, 3 Dallas 6, 1 L.Ed. 485 (1794) (Jay, C.J.)
(the jurisdictional challenge was overruled, and the
district court's decision to dismiss the compiaint for want
of subject matter jurisdiction was reversed).
The opinions of the Supreme Court in its early years,
especially those of Chief Justice Marshall and Chief Justice
Taney, reflect the Court's understanding of the Constitu-
tional grant. These early cases are collected and discussed
in the defendants’ memorandum of 19 December 1991 at
pages 26-28.
19
(12) Early Decisions of the State Courts: During the first
century of our new Republic, the state courts also were
called upon to make decisions in admiralty and maritime
cases. They consistently and uniformly refused to do so. The
early case law to illustrate this point is collected in the de-
fendants' memorandum of 19 December 1991 at pages 33-
36. Before the Civil War, the state courts recognized that
they had no jurisdiction to hear admiralty cases. But as the
Framers of the Constitution died off and the memories of
the abuses of the colonial vice admiralty courts faded, the
states’ rights advocates took over. And after the Civil War,
there began to appear isolated examples of attempts by
state courts to usurp the federal admiralty power. When-
ever these cases were appealed to the U.S. Supreme Court,
they were reversed—the Supreme Court holding that only
federal courts could decide maritime and admiralty dis-
putes. See, e.g. The Moses Taylor, 71 U.S. 411 (1867)
(Justice Field explained that the Saving to Suitors Clause
preserved a common law remedy but not in a common law
court); The Hine v. Trevor, 71 U.S. (4 Wall.) 555, 18 L.Ed.
451 (1867) (Congress did not intend to give suitors state
law remedies).
Il. ALASKA'S JUDICIAL POLICY OF HEARING AD-
MIRALTY CASES IN THE STATE COURTS VIO-
LATES THE ADMIRALTY CLAUSE OF THE CON-
STITUTION
The first reason for granting certiorari is the conflict
that exists between the decisions of the Supreme Court of
Alaska and decisions about the same issue that have been
made by the highest courts of other states. The recent de-
cisions from Alaska—and some older cases from New
York—show that these state courts are marching to a dif-
ferent drummer; they are not in step with the Constitution.
20
(A) Alaska has its Own Admiralty Jurisprudence: In
Territorial days, the only courts in Alaska were the federal
courts. Thus, every case was a federal case and admiralty
cases had to be filed in the proper court—there was no
choice. But soon after Alaska achieved statehood 35 years
ago, its new state courts began to hear admiralty cases
under the purported authority of the Saving to Suitors
Clause, Section 9, Judiciary Act of 1789, now codified at
28 U.S.C. §1333(1). See, e.g., Maxwell v. Olsen, 468 P.2d 48
(Alaska 1970) (Saving to Suitors Clause "means that a
suitor asserting an in personam admiralty claim may elect
to sue in a ‘common law’ state court through an ordinary
civil action") (Rabinowitz, J.). Under the leadership of
Alaska's most senior jurist, our state supreme court has run
rough-shod over the Admiralty Clause, usually relying upon
the Saving to Suitors Clause. Shannon v. City of Anchorage,
478 P.2d 815 (Alaska 1970) (Saving to Suitors Clause
allows plaintiff to elect to sue in a common law or state
court) (Rabinowitz, J.). When deciding cases involving mari-
time torts, the Alaska Supreme Court has paid some obeis-
ance to federal law. Barber v. New England Fish Co., 510
P.2d 806 (Alaska 1973) (when admiralty cases are tried in
state court, Alaskan courts must apply same substantive
law as the federal court when dealing with federal mari-
time tort). Alaska courts have not always limited their
state-court "admiralty jurisdiction" to claims brought in per-
sonam; Alaska's admiralty jurisdiction has been applied
even to cases brought in rem. F/V America Eagle v. State,
620 P.2d 657, 671 (Alaska 1980) (Rabinowitz, C.J.).
Some areas of maritime law for so long have been held
to be within admiralty's exclusive jurisdiction that few state
courts would attempt to hear such cases. For instance,
maritime salvage cases. But even these disputes have been
21
brought within the expansive sweep of Alaska's "admiralty
jurisdiction." Williams v. Eckert, 643 P.2d 991, 997 (Alaska
1982) (salvors' misconduct results in reduction in salvage
award; awarding attorney's fees to prevailing party under
Alaska Civil Rule 82 and again invoking the Saving to
Suitors Clause).
Even when faced with a protest to its admiralty jurisdic-
tion, the Supreme Court of Alaska has squarely repudiated
Article III's grant of exclusive jurisdiction to the federal
courts. State v. F/V Baranof, 677 P.2d 1245 (Alaska 1984)
("statutes conferring exclusive jurisdiction on the federal
district courts are to be strictly construed, and state court
jurisdiction is not to be defeated by implication [!]"). Oc-
casionally, the Alaska courts explain their jurisdiction in
admiralty cases as being concurrent with that of the federal
courts. Estate of Rhyner v. Farm Credit Bank of Spokane,
780 P.2d 1001 (Alaska 1989) (Rabinowitz, J.).
(B) Contrarian Economic Incentives Vanquish Article
IIT’s Grant of Exclusive Jurisdiction to the Federal Courts
of Admiralty: Why? A reader in Washington, D.C. might
wonder. Why would Alaska's courts want to hear admiralty
cases? And why would the plaintiffs file in state court
rather than in admiralty (federal) court? The answer to
both questions is money. The salary of Alaska's district
court magistrates depends in part upon their case load (the
number of cases they hear or decide), as does the judiciary's
annual appropriation of operating funds from the Alaska
legislature. Plaintiffs’ attorneys also have an irresistible
economic incentive to pursue their clients’ admiralty claims
in state court. Alaska's courts grant generous awards of
prejudgment interest and attorney's fees. The rate of pre-
judgment interest in state court proceedings is 10.5%, AS
09.30.070(a); AS 45.45.010(a), but in federal court it is
22
much lower, recently only one-half or one-third as much, 28
U.S.C. § 1961(a).
Unlike the other 49 states, Alaska has completely re-
jected the "American Rule” that requires each party to bear
its own attorney's fees. Instead, Alaska has adopted the
"English Rule” that can provide huge awards of attorney's
fees to the prevailing party. Alyeska Pipeline Service Co. v.
Anderson, 629 P.2d 512 (Alaska 1981) (award of $100,000
for attorney's fees affirmed); Dahle v. Atlantic Richfield Co.,
725 P.2d 1069 (Alaska 1986) (attorney fee award of $55,000
affirmed); Williams v. Eckert, 643 P.2d 991 (Alaska 1982)
(award of attorneys fees to owner of fishing vessel who pre-
vailed in maritime salvage dispute was proper and affirmed
on appeal). When admiralty cases have been brought in
Alaska's state courts, our trial judges routinely grant attor-
neys fees to the prevailing party. Great West Seafoods v.
Seward Shipyard, Inc., Case No. 3AN-91-4255 CI, (reported
in Alaska Journal of Commerce, 12 April 1993, at page 9B)
(after determining that this was an admiralty action, trial
court awarded attorneys fees despite losing party's argu-
ment that in an admiralty action each side is required to
bear its own attorney's fees; rejecting federal law).
(C) State Courts Adrift in a Federal Sea: The good news
for admiralty plaintiffs——but of no avail to defendants, such
as the Petitioners here—is that the federal court in Alaska
does correctly apply The Admiralty Clause and The Saving
to Suitors Clause. Compare In re: The Glacier Bay, 746
F.Supp. 1379 (D. Alaska 1990) (Saving to Suitors Clause
does not give plaintiff a choice between common law stan-
dards or maritime law) with Maxwell v. Olsen, 468 P.2d 48,
50-52 (Alaska 1970) (Saving to Suitors Clause gives plain-
tiff a choice of filing admiralty case in state court or in fed-
eral court); compare U.S. Dominator, Inc. v. Factory Ship
23
Robert E. Resoff, 768 F.2d 1099 (9th Cir. 1985) (affirming
salvage award and finding no abuse of discretion in trial
court's award of prejudgment interest at the federal rate)
with Bjornson v. U.S. Dominator, Inc., ___P.2d (Su-
preme Court of Alaska, Opinion No. 4023, 12 November
1993) (interpreting 46 U.S.C. §10601 and relying upon an
armada of federal admiralty cases to support its decision).
The almost-total absence of case authority from other state
courts is a powerful clue that the state courts of Alaska
have not charted a proper course.
Finally, it would be unfair to focus all of the blame upon
the courts of Alaska. Indeed, there have been some deci-
sions in the courts of New York and Connecticut that also
misapply the Saving to Suitors Clause, thereby appearing
to create an admiralty jurisdiction in state courts. See, Mer-
ritt & Chapman Derrick v. Tice, 103 N.Y.S. 333 (App.Div.
1907); (state court has authority to hear action for enforce-
ment of salvage lien); Reynolds v. Browning, Wells & Co.,
231 N.Y.S. 362 (App. Div. 1928) (similar); Thames Shipyard
& Repair Co. v. Willametz, 428 A.2d 1143 (Conn.Super.
1978) (suit by salvage company to recover from owner of
sunken boat on an oral contract to raise the boat).
These state court cases are aberrations in the law, dere-
licts adrift in a federal sea. Counter examples are hard to
find because it is so rare that a plaintiff would attempt to
file a maritime salvage case in state court. For an example
of what invariably happens, see O'Neill v. Schoenbrod, 355
So.2d 440 (Fla.App. 1978), appeal dismissed, 359 So.2d
1218 (Fla. 1978) (the plaintiffs’ in personam complaint for
salvage dismissed by trial court for lack of jurisdiction over
the subject matter on the ground that such cases are "with-
in the exclusive jurisdiction of the federal district courts sit-
ting in admiralty"; affirmed on appeal and rejecting argu-
24
ment that state court has concurrent jurisdiction with fed-
eral court under the Saving to Suitors Clause).
Ill. THE TRUE MEANING OF THE SAVING TO
SUITORS CLAUSE NEEDS TO BE SETTLED
The second reason for granting certiorari is the long-
standing need to resolve the true meaning of the Saving
Clause. No matter what your views on the admiralty jur-
isdiction and the Saving to Suitors Clause, there is some-
thing out there in the legal literature to support your posi-
tion. Everyone has some authority, some support in the
cases and treatises. But the contrast and the confusion will
boggle a proctor's mind.
Starting with the most basic authorities, the legal en-
cyclopedias, we can see what appears to be rock-solid sup-
port for the exclusive jurisdiction of the federal court sitting
in admiralty:
§ 40 Jurisdiction. Salvage is a matter peculiarly within
the jurisdiction of the admiralty courts, not only because
of the place where the service is performed, but also be-
cause of the peculiar system of awardiiig the compen-
sation. This jurisdiction extends to libels in rem against
proceeds of salvaged property, as well as to libels in per-
sonam where the owner of the vessel or cargo has made
himself personally liable to pay for salvage services. Be-
cause of this primary jurisdiction, contracts relating to
salvage service are also within the jurisdiction of admi-
ralty. The jurisdiction of admiralty extends to all waters
that are in fact navigable for the purpose of trade and
commerce. 68 AmJur 2d, Salvage §40, at 343.
The other general encyclopedia is in accord:
§151 Jurisdiction. Suits for salvage belong by long cus-
tom to courts of admiralty.
25
While a suit for salvage has been tried in a court of
common law, it is well recognized that common-law
courts do not have jurisdiction of salvage cases, but that
they belong by long custom to courts of admiralty, which,
from their extraordinary processes, are the only proper
tribunals, and the court's jurisdiction of the action, if one
for salvage, is not ousted by the fact that the services
were rendered under contract, if notwithstanding this
fact the services rendered were salvage services.
78 C.J.S., Salvage, §151, at 568.
Legal scholars and experts in the field appear to join in
the view that admiralty's jurisdiction—at least in maritime
salvage cases—is truly exclusive:
In admiralty cases subject matter jurisdiction is com-
monly referred to merely as “admiralty jurisdiction.”
Specifically, this is the jurisdiction over all admiralty
and maritime cases conferred by Article III of the Con-
stitution and 28 U.S. C. §1333. In fact this is the most
specific, if not the only, grant of federal judicial power
over a named subject matter. Admiralty jurisdiction is
subject matter jurisdiction.
Now that terminology has been explained, the sub-
stance of the jurisdiction will next be explored. A federal
district court has admiralty jurisdiction in cases involv-
ing (a) maritime contracts, (b) maritime torts, (c) mari-
time claims of traditional admiralty cognizance, such as
salvage, general average, and maintenance and cure,
and (d) statutory rights in rem, as the foreclosure of pre-
ferred ship mortgages. In fact the traditional statement
is that the federal court has exclusive jurisdiction of an
action seeking a salvage award. D. Owen, "Some Legal
Troubles With Treasure: Jurisdiction and Salvage," 15
J.Mar.L. & Com. 139, at 148 (1985) (footnotes omitted;
emphasis in the original).
But a wider search leads to heavy weather. Other
authorities contend that the Saving to Suitors Clause really
26
does allow a state court to hear a maritime case. See, 2
AmJur 2d Admiralty, §14 (1962) ("The jurisdiction of the
federal courts in admiralty and maritime matters is ex-
clusive. There are exceptions, however, as in cases invoking
the ‘Saving to Suitors Clause”). The same inconsistency can
be found upon a close reading of many of the encyclopedias
and treatises. For instance, compare 3A BENEDICT ON
ADMIRALTY (7th ed. 1983) §14 (Saving to Suitors Clause
does not give jurisdiction to state courts) with id, 1 BENE-
DICT ON ADMIRALTY §123 (7th ed. 1983) (some salvage
cases can be heard in common law courts).
If we focus on the purpose and meaning of the Saving to
Suitors Clause, we find an equally confusing debate in the
legal literature. Compare Robertson, Admiralty and Feder-
alism, 126 (1970) (purpose of the Clause was "preservation
of the pre-Constitutional concurrent jurisdiction of the com-
mon law courts. [which courts were state courts] in mari-
time cases prior to 1789") with:
The American colonial vice-admiralty courts followed the
principles laid down by the English Court of Admiralty
in deciding salvage cases brought before it. Cases of sal-
vage were not tried in American common-law courts be-
fore the establishment of the Republic of the United
States of America. Therefore, the saving to suitors clause
of the Act of September 24, 1789 which provided that the
district courts of the United States ‘shall also have ex-
clusive original cognizance of all civil causes of admiralty
and maritime jurisdiction ... saving to suitors, in all
cases, the right of a common-law remedy, where the
common law is competent to give it, etc.’ does not apply
to salvage suits. It does not give to the common-law
courts jurisdiction over a class of cases which it never
possessed. Norris, The Law of Salvage, §14 (1980) [foot-
note omitted].
es
27
There are even modern cases in the federal courts that
contain dicta to support the view that there is a concurrent
jurisdiction in state courts. (state courts have concurrent
jurisdiction to try in personam admiralty actions, citing
Saving to Suitors Clause); Fogelman v. Tidewater Barges,
Inc., 747 F. Supp. 348, 354 (E.D. La. 1990) (plaintiff can file
a maritime action in state court under the Saving to Suitors
Clause, which preserves the plaintiffs right to common law
remedies).
But how can the Saving to Suitors Clause, a mere
statute, trump the Constitution? If the former is applied to
yield a concurrent jurisdiction while the latter creates an
exclusive one, then how can the statute and the Supreme
Law be reconciled? This very question was asked almost a
century ago, but the answer was lost in the legal literature:
That the framers of the Constitution intended the ad-
miralty jurisdiction to be exclusive is clear, despite the
silence of the instrument. Decisions to that effect seem
to be perfectly correct. But equally did they intend, that
maritime controversies also should belong exclusively to
the Federal courts. Every utterance of that day supports
this view, nothing during the next generation in any of
the Federal or State decisions will be found against it.
Being near the sea, with little internal commerce, nearly
all the maritime controversies of our ancestors occurred
with the citizens of other States or the subjects of other
countries. In 1816 we find Story [in Martin v. Hunter's
Lessee) classing the judicial clause in admiralty and
maritime causes with the exclusive one relating to am-
bassadors and consuls, which it immediately follows, and
in 1866 the learned Field [in The Moses Taylor], not dis-
approving his language, comments on its many excellent
reasons. It is since that time that the decisions have sus-
tained the State jurisdiction on the common law side by
citing the saving clause of the Judiciary Act. But it is
28
important to note here that the unconstitutionality of
that clause, the suggestion of this article, has been
neither raised nor decided.
The saving clause, as we have already explained,
appears to us unconstitutional if it intended to leave the
common law remedy to State tribunals. That this is
what it intended has always been taken for granted, and
yet nobody has questioned its constitutionality. But why
take for granted what may make it unconstitutional?
Why not suppose that it meant to save the common law
remedy to Federal courts only, Circuit or District? There,
in the common tribunals of the nation, that uniformity
of decision would be maintained which was the admitted
object of our ancestors. Let the statute be read however
carefully and nothing will be found contrary to this con-
struction. It was a statute distributing causes among
Federal courts, and the portion involved here was a
regulation of procedure in the District court. From such
an enactment State court jurisdiction will not naturally
be derived. Nor is there anything strained in this. The
Judiciary Act in effect declared—our District Courts
shall be exclusive if you wish to proceed in admiralty;
you may proceed at common law in your maritime con-
troversy, but since it is maritime, that common law
action must, under the Constitution, be tried in our Fed-
eral courts, Circuit or District, as the statutes may
otherwise provide. Bausman, "Admiralty and Maritime
Jurisdiction, 36 Amer.L.Rev., 192 at 197-188 (1902) (em-
phasis in the original).
The authorities that can be marshaled on this debate are
like statistics: they can be used to be prove either side of
the argument. And this is why certiorari should be granted.
Because the exclusivity, vel non, of federal jurisdiction is
"an important question of federal law which has not been,
but should be, settled by this Court.” Supreme Court Rule
10.1(c)).
29
IV. CODA: SUMMARY DISPOSITION BY REVERSAL
Because it is such a well-settled principle of American
constitutional law that federal courts have exclusive jur-
isdiction to hear admiralty and maritime cases, the instant
case clearly has been wrongly decided by the state court.
The decision of the Alaska court is just plain wrong and it
should be reversed. Pursuant to Supreme Court Rule 16.1,
petitioners move for summary reversal, with instructions to
the lower court to dismiss this case.
CONCLUSION: THE SAVING TO SUITORS CLAUSE
NEEDS TO BE EXPLAINED AND THEREBY SAVED
FROM THE ABUSES OF STATE COURTS
Admiralty law is important in our Nation's relations
with the world community. This is one of the reasons why
the Framers took this topic away from the state courts and
placed it within the exclusive domain of the federal courts,
so that we would have uniformity of law throughout the na-
tion. As an example of the international flavor of maritime
law, consider salvage contracts. Almost all modern salvage
is done pursuant to a standard contract, the Lloyd's Open
Form Contract, which has recently been revised.’ Public
policy favors the strict maintenance of the exclusive jur-
isdiction of the federal courts in admiralty. The institu-
tional role of the Supreme Court as the final arbiter of the
Constitution” should inspire this court to grant certiorari
* The revisions to this standard contract have been discussed in
a series of articles that have appeared in recent years in the
Journal of Maritime Law and Commerce.
© Cowin v. Bressler, 741 F.2d 410, 425 (D.C. Cir. 1982) ("the
institutional role of the Supreme Court weighs in favor of
considering its rulings to be general rather than limited to the
(continued...)
30
and pronounce the law of the Saving to Suitors Clause.
After two hundred years, its meaning is still in doubt in
many state courts, and these doubts should be resolved. For
these reasons, certiorari should be granted. Let the writ
issue.
Respectfully submitted this 10th day of January 1993 at
Petersburg, Alaska.
Respectfully submitted,
Fred W. Triem
David A. Berg
Box 129
Petersburg, Alaska
99833-0129
(907) 772-3917
In Propria Persona
© (continued)
particular facts. The Supreme Court, unlike the lower federal
courts, is given a largely discretionary jurisdiction, which is used
when areas of the law require clarification.”) (Bork, J.).
APPENDIX
App. 1
[DATED May 4, 1992]
IN THE SUPERIOR COURT FOR
THE STATE OF ALASKA
FIRST JUDICIAL DISTRICT AT PETERSBURG
TAMICO, INC.,
Plaintiff,
v.
FRED TRIEM, DAVID BERG,
and PETERSBURG AIRCRAFT
SALVORS, INC.,
Ne ee ee ee ee ee ee” ee” ee” ee”
Defendants. No. 1PE-89-113 CI
TRANSCRIPT OF DECISION ON RECORD
The Honorable Thomas E. Schulz
Superior Court Judge
The Superior Court for the State of Alaska, First Dis-
trict at Ketchikan is now in session, the Honorable Thomas
E. Schulz presiding.
Please be seated. The court is on record to put a state-
ment of decision on the record in Tamico, Inc. v. Triem,
Berg and Petersburg Aircraft Salvors. A judgment has
been entered in this case and then a motion for recon-
sideration was brought in and the defendants argue, or
make the comment early in their brief, that the court
didn’t decide that motion for reconsideration and that’s
not really correct. What the court did was rule that the
motion for, that the matter was not properly recorded
for a motion for reconsideration. Under Rule 77, because
App. 2
for the first time in this case, the defendants are raising
the issue of subject matter jurisdiction of the underly-
ing claim and I ruled earlier, and remain convinced, that
raising an argument such as that under Rule 77, a mo-
tion for reconsideration is simply not a proper applica-
tion of that Rule. The court did say that I would treat
it as properly before the court under Rule 60 and defen-
dants have also brought the court’s attention to Rule 12.
In any event, the plaintiff has filed an answer, defendants
have replied, we’ve had oral argument. The court has had
an opportunity to review the briefs of the parties and
authorities and primarily, on the basis of a relatively re-
cent federal decision, I am going to deny the motion. That
decision is Metropolitan Dade County v. One Bronze Can-
non and it’s found in 587 Fed. Supp. 923 and it’s a 1982
case in the United States District Court for the Southern
District of Florida.
To begin with, I don’t have any quarrel with the basic
proposition and, of course, neither does the Metropolitan
Dade County court, with the general proposition that ad-
miralty cases are within the exclusive jurisdiction of the
Federal District Court. That’s a matter of Constitutional
law and I think it’s also a matter of proper interpreta-
tion of the Federal Judiciary Act. The problem is that
this is not an admiralty case. What happened in this case
was that a DC-3, on its way from Fairbanks to California,
stopped in Petersburg to refuel and then apparently, be-
cause of some problems not relevant to the decision pres-
ently before the court, crashed. It had experienced some
problems shortly after take-off from Petersburg and was
ditched in Wrangell Narrows, which is a body of navigable
water immediately adjacent to the town of Petersburg.
The plane crashed abut eight or ten miles from the air-
port. It came to rest, ultimately, in somewhere between
EE BEN OI POs CS 2 a ial Ae a
App. 3
fifteen and twenty fathoms of water. The defendants, the
individual defendants, were successful in locating the air-
plane, formed a corporation to salvage it and then, by
their own pleadings, by their statements in their brief,
they had entered into an agreement with the plaintiff to
raise the airplane. The airplane was raised, the bill was
presented, and the amount of the bill was in dispute. This
litigation followed, and ultimately judgment was entered
for the plaintiff. It was at that point that the defendants
raised the jurisdictional issue. In order to, well let me
put it this way, the basis for their argument appears to
the court to be, that Tamico itself has characterized this
as a salvage operation, and it was a salvage operation.
An airplane crashed, sunk and it was raised, and under
common understandings of salvage that’s what salvage is
all about, the airplane was, at least to the extent that
it was raised out of the water, it was salvaged. It is not
necessary to the court’s decision as to whether its been
totally repaired and back to service or what happened to
it, but it was salvaged, but this is not a salvage claim
as the term is used in maritime law. It’s not the kind of
salvage claim that the Constitution and the Judiciary Act
intended to give exclusive jurisdiction to federal courts.
In order to have a salvage claim, there needs to be a
maritime peril. Now that can be a fire at sea, or even
in port, or aboard a vessel; it can be in peril from a storm
or from hitting reefs or numerous myriad of other things,
and be involved in a maritime peril. But once an airplane
has crashed and sunk, it is no longer involved in any kind
of a maritime peril, so that element I think is missing.
It doesn’t make any difference that it was a land plane.
I agree with the commentators that have expressed a
view based on the sea plane case, that whether you’re
involved in maritime salvage or some other kind of law
suit should not depend on the kind of airplane it was. The
App. 4
basis for this part of the ruling is simply that there was
no maritime peril involved. It was not a maritime peril
that got the airplane in trouble, at least there’s no allega-
tion of that, in fact, the defendants seem to be contend-
ing to the contrary, a malfunction, some part of the air-
craft itself, and it happened to crash in the water, or come
down in the water. Then, in order to, the second element
of the maritime salvage claim is that the service is ren-
dered voluntarily. It cannot be a service that is required
by existing duty or by special contracts. Here we clearly
had an agreement, Tamico, pardon me, Petersburg Air-
craft Salvage, the corporation formed by the two individ-
ual defendants, clearly entered into an agreement with
Tamico to salvage the airplane and the dispute is over
how much is owed, but this is not a voluntary undertaking
by Tamico. And then the salvage efforts must be success-
ful. Well, the airplane was raised. That was what Tamico
was hired to do. And those elements are set out in the
plaintiff's reply brief at pp. 2 and 3, and they appear to
me to be an accurate statement of what the elements of
maritime salvage involve and so while the defendants’
brief goes into a long detailed, and frankly interesting,
discussion of the sources of the admiralty jurisdiction and
the exclusivity of it, it’s simply not, it’s not relevant to
the case before the court, and that’s made, I think, crystal
clear in the Metropolitan Dade County v. One Bronze
Cannon case. That case involved a, initially, an agreement
between some folks and the Haitian government to con-
duct some salvage exploration operations off the Haitian
coast. Ultimately, in 1971, a salvage expedition was suc-
cessful in raising a couple of cannons, and then the can-
nons were placed on display in a historical museum in
Florida for apparently a number of years before a dispute
as to ownership arose, and then there was a lawsuit in
state court, in which one of the disputants was awarded
¥
4
;
4
H
;
f
App. 5
title (garbled). Ultimately, Dade County got some interest
in it from a co-salvor, and they filed an admiralty claim,
a maritime salvage claim in Federal District Court. And
contrary to the defendant’s argument, the Federal District
Court did not decide that the State Court common law
action couldn’t handle the claim. What he ruled was that
the State Court did not have the maritime salvage issue
before it, it didn’t decide that and the State Court de-
cision didn’t bar him, therefore, from proceeding on the
admiralty claim, from deciding those issue. He also, of
course, ruled, and I think this is correct, that the State
Court wouldn’t have jurisdiction of the maritime salvage
claim in any event. But that case, as I indicated earlier, is
found at 537 Fed. Supp. at 923, and if you look at page 927,
and I’m going to quote here, from page 927, the judge
says:
A plaintiff who has an admiralty claim for damages
for breach of contract has several options: (1) “The
claimant may invoke the federal admiralty jurisdic-
tion under the t of original subject matter juris-
diction 28 U.S.C. section 1333,” or (2) “By virtue of
the saving suitors clause he may sue at law in State
Court or in Federal District Court. [If however, the
plaintiff elects the latter], the requirements of diver-
sity of citizenship and the jurisdictional amount must
ae 14 Wright, Miller and Cooper, section
3672.
See Romero v. Bethlehem Steel Corp., 515 F.2d 1249, that’s
a 5th Cir. case, for that proposition. “The basic reason-
ing is,” he’s going on here, “the basic reasoning is that
suits on maritime contracts that are in personam and may
be brought into Federal Court under the head of diversity
jurisdiction. For instance, in Romero the court acknowl-
edged that ‘an action for personal injury cognizable in ad-
miralty may be brought, assuming the existence of some
App. 6
independent jurisdictional base like diversity of citizen-
ship, as a civil suit pursuant to the ‘savings to suitors
clause’ of 28 U.S.C. Section 1333,” and the plaintiff is en-
titled to a jury trial.” (Citation omitted). No where in that
Metropolitan Dade County case does the Federal District
Court hold that, as the defendants seem to be arguing,
that if you elect to pursue a common law remedy as the
plaintiff did here, you have to do it in Federal District
Court. What the Metropolitan Dade County case stands
for has been good law for hundreds of years. It is that
admiralty jurisdiction rests exclusively within the Federal
District Court, but under our Judiciary Act plaintiffs who
may have an admiralty claim can also bring a common
law claim if they have, if that claim is supported by an
appropriate jurisdictional basis.
In conclusion I find the court had jurisdiction for the
judgment in this case and deny the motion for relief from
judgment. The request for a judgment debtor hearing, set
that on in the next couple of weeks and notify counsel.
We can go off record.
Dated at Ketchikan, Alaska, this 4th day of May, 1992.
/s/) Thomas E. Schulz
Thomas E. Schulz
Superior Court Judge
App. 7
[DATED May 13, 1993]
IN THE SUPERIOR COURT FOR
THE STATE OF ALASKA
FIRST JUDICIAL DISTRICT AT PETERSBURG
TAMICO, INC.,
Plaintiff-Appellee,
V.
FRED TRIEM, DAVID BERG,
and PETERSBURG AIRCRAFT
SALVORS, INC.,
Ne ee ee ee ee ee ee ee ee ee ee”
Defendants-Appellants. No. 1PE-89-113 CI
MEMORANDUM OF DECISION ON APPEAL
I. Introduction
The defendants appeal the district court’s decision which
denied their motion to dismiss and which found that the
court had jurisdiction. Defendants also appeal several other
decisions of the district court rendered early in the pro-
ceedings.
I]. Facts
This case starts with a plane crash. A DC-3 airplane
made a forced landing and sunk in the Wrangell Narrows
near Petersburg. When the plane crashed, an Anchorage
insurance company sold the plane to Fred Triem and David
Berg, who incorporated Petersburg Aircraft Salvors, Inc.
(PAS) for the purpose of recovering the plane. PAS hired
App. 8
the plaintiff-appellee, Tamico, Inc., to raise the plane.’ The
recovery of the airplane was completed on July 6, 1989,
10 days after the plane had sunk. Tamico submitted a bill
of $14,160 to PAS dated July 8, 1989? PAS did not pay
the bill.
Tamico filed a complaint for debt on October 3, 1989.
Substantial litigation followed. Finally, as a sanction for
persistent discovery violations, default judgment was en-
tered against PAS, Fred Triem, and David Berg, jointly
and severally the amount of $22,974.61. (Judgment, Oc-
tober 2, 1991) The default was entered because of the
“defendants’ failure to respond to the motion requesting
dismissal of the answer and entry of default.”* (Order,
September 24, 1991) PAS filed a motion to reconsider.
(Defendants’ Motion to Reconsider, October 21, 1991).
While that motion was pending, defendants moved for
relief from judgment, challenging for the first time the
+ The contract, however, was not contingent upon Tamico’s suc-
cess in the venture. It was a contract for services.
2 While preparing for retrieval of the plane, Tamico allegedly
resented PAS with a written contract ifying a base fee of
,000 plus an hourly rate for overtime. (Petition for Review of
Petersburg Aircraft Salvors, Inc., April 19, 1990, at 3-4)
* The defendants argue that they simply could not comply with
discovery because Fred Triem was disqualified from representing
—— (Appellants’ Opening Memorandum, ber 5,
, a
Defendants challenge many of the district court’s decisions from
early in the suit. For example, defendants e that (1) they
should have been allowed to represent themselves, (2) that the
district court erred in not dismissing Triem and Berg in their in-
dividual capacities, (3) that the district court erred in computing
attorney’s fees and Dye interest. (Appellants’ Opening
Brief, ber 5, 1992, at 4-5) The implication that defendants
make is that but for these allegedly erroneous decisions, there may
never have been a default judgment entered.
App. 9
jurisdiction of the state court. (Defendants’ Motion for
Relief from Judgment, December 20, 1991) Both motions
were denied by Order of May 4, 1992. The district court
concluded that it had jurisdiction. (Transcript of Decision
and Order, May 4, 1992, at 7)
Ill. Arguments
1. Jurisdiction
PAS frames the argument thus: “Does the Saving to
Suitors Clause of the Judiciary Act of 1789 create in the
state courts a concurrent jurisdiction to hear admiralty
and maritime cases?” (Appellants’ Opening Brief, October
5, 1992, at 1) (hereinafter “At. Br.”] PAS argues that this
action is a salvage action that rests squarely within fed-
eral admiralty jurisdiction. The saving to suitors clause
only preserves a common law remedy, but not the right to
have the case heard in a common law court, PAS argues.
Tamico responds that this is a contract action, not an
salvage action. Tamico argues that PAS fails to establish
either that a maritime peril existed or that the salvage
service was voluntary, both of which are elements of a
salvage action. Tamico argues that there is no need for
federal court expertise because this action involves a con-
tract, and thus there is no necessity to make a “salvage
award” which might require greater expertise. Tamico
also argues that admiralty jurisdiction may not extend to
land-based aircraft. Finally, Tamico cites authority to the
effect that if a contract is non-contingent on recovery of
the vessel, that the contract is not a salvage contract.
2. Alaska Statute 10.06.848(a)
PAS argues that Tamico failed to comply with AS
10.06.848(a) when it filed suit. Alaska Statute 10.06.848(a)
App. 10
requires that a corporation prove its good standing at the
time that it files suit. PAS argues that failure to establish
good standing at the time that suit is filed cannot be
cured by subsequent proof of good standing. Therefore,
PAS argues, the suit must be dismissed.
Tamico argues that it has proven its good standing.
Tamico argues that AS 10.06.848(a) is not in the nature
of a pleading requirement, but is simply meant to ensure
that corporations doing business in Alaska comply with
the appropriate rules and regulations. Tamico cites case
law from a similar predecessor statute that hold that ca-
pacity to sue can be alleged or proven at a later date than
at the time an action is commenced.
3. Attorney’s Fees Based on Default or Contested Suit
Standards
PAS argues that because a default judgment was en-
tered against it, the default standards of Alaska Civil Rule
82 should apply.
Tamico argues that this matter was “hotly contested”
and, although settled short of trial, should be governed
by the contested trial standards.
4. Dismissal of Triem as Legal Counsel for PAS
PAS argues that AS 22.20.040, which forbids a corpora-
tion from appearing pro se, is unconstitutional because it
violates the separation of powers doctrine. It also argues
that DR 5-101, refusing employment when the interests
of the lawyer may impair his independent professional
judgment, and DR 5-102, withdrawal as counsel when the
lawyer becomes a witness, are both unconstitutional. PAS
argues that it was prejudiced because in the confusion of
App. 11
looking for an attorney to represent it, default was en-
tered.
Tamico argues that PAS has suffered no prejudice be-
cause it simply refused to obey the court order because
Triem continued to file motions on behalf of the appel-
lants. Tamico argues that Triem could have at least ap-
peared himself. Tamico also argues that important inter-
ests are advanced by preventing an attorney who is also
a major witness from testifying at trial.
5. Claims against Triem and Berg in their Individual
Capacity
PAS argues that the action in reality involves a suit
between two corporations and that the claims against
Triem and Berg should have been dismissed. PAS argues
that the court ruled in its favor on this issue, but then
did not enter a judgment of dismissal in its favor.
Tamico argues that the district court at no point in-
tended permanently to dismiss Triem and Berg from the
suit. Tamico argues that the 1990 orders leave no doubt
about the district court’s decision to leave Triem and Berg
in the suit.
6. Calculation of Prejudgment Interest
PAS argues that no writing or contract between the
parties specifies a rate higher than the statutory rate
of 10.5%. Tamico argues that AS 09.30.070(a) requires a
10.5% rate of interest unless otherwise established by a
writing. They argue that its bill of July 8, 1989 states
that amount of the claim, and also states that unless the
bill was paid in full within 30 days that the unpaid balance
would accrue interest at the rate of 1-1/2% per month.
App. 12
Tamico argues that although PAS never expressly con-
sented to this rate of interest, its failure to pay within
30 days was an implied acceptance of the terms.
IV. Standard of Review
The district court’s findings of fact will not be set aside
unless “clearly erroneous”. Alaska R. Civ. P. 52(a). Before
setting aside a finding of fact, the court must be left with
“a definite and firm conviction on the whole record that
the judge made a mistake.” Smith v. Smith, 673 P.2d 282,
283 (Alaska 1983). If there are no disputed facts, then a
question of law is presented. Fireman’s Fund Mortgage
Corp. v. Allstate Ins. Co., 838 P.2d 790, 792 n.4 (Alaska
1992). On questions of law, this court is not bound by the
lower court’s decision but will apply its independent judg-
ment in applying the applicable rule of law. In the event
that the law is not settled, a reviewing court will exer-
cise “independent judgment and adopt the rule which is
most persuasive in light of precedent, reason, and policy.”
Id.; Guin v. Ha, 591 P.2d 1281, 1284 n.5 (Alaska 1978).
V. Issues
1. Whether the district court had jurisdiction to decide
the contract dispute
2. Whether the action should be dismissed because of
Tamico’s failure to prove its good standing at the time
that it filed suit
3. Whether attorney’s fees were appropriately calculated
4. Whether dismissal of Triem as attorney for PAS was
proper
App. 13
5. Whether the district court erred in allowing claims
against Triem and Berg in their individual capacity
6. Whether the appropriate rate of prejudgment interest
was used
VI. Analysis
1. Whether the district court had jurisdiction to decide
the contract dispute
Whether or not a state court will have jurisdiction over
the present claims will involve, in one way or the other,
an interpretation of 28 U.S.C.A. Sec. 1333(1) (West 1966
& Supp. 1993):
The district courts shall have original jurisdiction,
exclusive of the courts of the States, of:
(1) Any civil case of admiralty of maritime jurisdic-
tion, saving to suitors in all cases all other remedies
to which they are otherwise entitled.
The district found that this was not a maritime salvage
action because (1) no maritime peril was involved and be-
cause (2) the service to recover the vessel was not volun-
tarily rendered.* (Transcript on Decision on Record, May
4, 1992, at 4-5) This court upholds the conclusion reached
by the district court—that a state court may decide the
dispute—but for different reasons.
As to whether a marine peril was involved, it is general-
ly accepted that recovery of a sunken vessel, including
4 Tamico reiterates these themes, although it provides no legal
citation for these two specific propositions. Tamico also argues that
the expertise of the maritime courts is not necessary because this
case presents a simple action of contract interpretation, and no
salvage award is necessary.
App. 14
airplanes,’ satisfies the peril standards. 68 Am. Jur. 2d
Salvage § 52 (2d ed. 1993); 3A Martin J. Norris, Benedict
on Admiralty § 31 (1993) [hereinafter ““Benedict”’]. “Peril”
does not mean imminent threat:
The peril necessary to constitute a salvage service
need not be one of imminent and abselute danger.
The property must be apprehended. It is not the
degree of peril which makes for a salvage service.
If distress or peril is present then with voluntary
service and success a valid salvage service has been
performed. The degree of peril—whether slight or
serious—can affect the amount of the award, but not
the establishment of a salvage service.
Benedict, supra § 63 (footnotes omitted). The recovery of
the component parts of the plane alone were estimated
at close to $200,000, and clearly the components were in
peril as defined by Benedict.
As to the voluntariness requirement, the district court
held that because there was a contract between PAS and
Tamico, Tamico’s actions were not voluntary. (Transcript
at 5) This would be true if the action were a “pure sal-
vage”’ action, but not necessarily if it were a “contract
salvage” action. A “pure salvage’ action is defined as
a “voluntary service rendered to imperiled property on
navigable waters where compensation is dependent upon
success, without prior agreement or arrangement having
5 The district court rejected the contention that land-based air-
craft were not subject to maritime salvage actions. (Transcript at
4) The court finds this reasoning sound and in accord with recent
case law. See Mark v. South Continental Ins. Agency, Inc., 1978
A.M.C. 519 (P.R. Cir. 1978); Martin J. Norris, The Law of Seamen,
§ 9.31 (4th ed. 1985) (while the question is still not free from doubt,
admiralty courts can and should t salvage awards for beneficial
service rendered to distressed land-based planes).
App. 15
been made regarding the salvor’s compensation... .”
Benedict, supra § 159 (emphasis added). In contrast, a
“contract salvage” is “that type of salvage service entered
into between the salvor and the owners of the imperiled
property, or by their representatives, pursuant to an
agreement, written or oral, fixing the amount of com-
pensation to be paid whether successful or unsuccessful
in the enterprise.” Benedict, supra Sec. 159 (footnotes
omitted). The district court clearly only contemplated the
first type of salvage claims: pure salvage. But pure sal-
vage is not even at issue here: it is uncontested that PAS
and Tamico entered into a contract prior to the plane’s
removal. The fact that they entered into a contract does
not mean that a salvage action may not be maintained
under maritime jurisdiction: “A court of admiralty has
jurisdiction of the subject matter in salvage suits whether
the action is one of pure salvage or one of contract sal-
vage.” Benedict, swpra § 159 (emphasis added); see Clif-
ford v. M/V Islander, 565 F.Supp. 922, 927 (D. Mass. 1983)
(applying contract salvage principles).
Whether or not the contract between PAS and Tamico
is a valid contract salvage is made the more difficult to
determine because the contract did not require successful
completion of the contract. There is a split of authority
whether a contract salvage must be contingent upon suc-
cessful salvage of the vessel. Martin J. Norris, The Law
of Seamen § 9.43 (4th ed. 1985) (must be contingent on
successful salvage); Benedict, swpra § 159 (no contingen-
cy on success necessary); Clifford, 565 F.Supp. at 927 (no
contingency on success necessary).
The court need not finally decide whether or not PAS’
claim may be maintained as a contract salvage action. The
central question is whether a claim cognizable both at
common-law and also as a contract salvage action may be
App. 16
heard in a state court. PAS has subtly misstated the prob-
lem before the court. PAS would have the court believe
that the question is whether or not state courts have con-
current jurisdiction with federal courts to hear admiralty
and maritime cases. The way PAS formulates the ques-
tion, the answer can only be no. More accurately, how-
ever, the question is whether a state court may hear an
action that may be maintained either as a contract action
or as a contract salvage action.
The courts have interpreted the “savings to suitors”
clause as preserving a common law remedy where the
common law is competent to give it: “This gives the Plain-
tiff ‘who has an in personam claim the choice of pro-
ceeding in an ordinary civil action,” or ‘bringing a libel
in admiralty.’” Metropolitan Dade County v. One (1)
Bronze Cannon, 537 F.Supp. 923, 927 (Fla. 1982) (quoting
14 Charles A. Wright et al., Federal Practice and Pro-
cedure § 3672 (1976)). It has been explained that admiral-
ty jurisdiction is exclusive only to in rem proceedings:
“‘Admiralty’s jurisdiction is ‘exclusive’ only as to those
maritime causes of action begun and carried on as pro-
ceeding in rem, that is, where a vessel or thing is itself
treated as the offender and made the defendant by name
or description in order to enforce a lien.”’ Dade, 537 F.
Supp. at 928. The “savings to suitors” clause preserves
the common law remedies, i.e., those remedies which are
in personam in nature. Bergeron v. Quality Shipyards,
Inc., 765 F.Supp. 321, 323 (E.D. La. 1991); see also
Thames Shipyard & Repair Co. v. Willametz, 428 A.2d
1143 (1978) (on facts very similar to the instant case, ex-
cept that an oral contract was involved, the court applied
exclusively state contract doctrines with no mention of
federal law). Bergeron makes clear that Tamico’s in per-
sonam action may be maintained in state court. In fact,
App. 17
in cases where a party has attempted to remove a case
from state to federal court on the ground that a common
law claim was in reality an admiralty claim, the courts
have expressly rejected the removal. Fogleman v. Tide-
water Barges, Inc., 747 F.Supp. 348, 355 (E.D. La. 1990).
In essence, that is precisely what PAS seeks to do: it
seeks a ruling that the common law claim is in reality
a salvage claim that may only be brought in federal court.
This court could not make such a finding without thereby
also changing the very nature of the claim, and therefore
declines PAS’ suggestion to hold Tamico’s claim to be an
admiralty salvage claim. See Bergeron, 765 F.Supp. at 323.
While Tamico could have chosen to pursue its remedies
under salvage contract law, an effort that may or may
not have been successful, it chose to pursue its normal
contract remedies. Its decision is expressly permissible
under the “savings to suitors clause’’.
2. Whether the action should be dismissed because of
Tamico’s failure to prove its good standing at the time
that it filed suit
Tamico did not prove its good standing until six months
after it filed suit. The certificate of compliance that Tamico
finally filed indicated that Tamico, Inc. has been in good
standing continuously since July 29, 1976.
PAS argues for strict compliance with AS 10.06.848,
which reads in part:
A domestic or foreign corporation may not commence
a suit, action, or proceeding in a court in this state
without alleging and proving at the time it commences
the suit, action, or proceeding that it has paid its
biennial corporation tax last due and has filed its
biennial report for the last reporting period.
App. 18
The predecessor provision was somewhat more loosely
worded:
No corporation shall be permitted to commence or
maintain any suit, action, or proceeding in any court
of this state, without alleging and proving that it has
paid its annual license fee last due...
AS 10.05.720 (superseded). Under AS 10.05.720, the case
law indisputably allowed a corporation to late-file its proof
of good standing. See, e.g., King v. Petroleum Servic:s
Corp., 536 P.2d 116, 118 (Alaska 1975). The purpose of
the requirement that a certificate of good standing be filed
is to ensure that corporations file the appropriate reports
and taxes. Blake v. Gilbert, 702 P.2d 631, 636-37 (Alaska
1985). It is clear in this case that Tamico has filed all
reports and paid all taxes; the question is whether it
should be barred forever from seeking relief in the courts
because it failed to allege that it had done so when it filed
suit.
Rigid adherence to the requirement that a corporation
file its certificate of good standing immediately at the
outset of the litigation, or not at all, is not mandated by
the law. Rigid adherence would defeat, to a substantial
extent, the civil rules’ goal for the just and speedy resolu-
tion of disputes. Alaska R. Civ. P. 1. Under PAS’ inter-
pretation, if a corporation late-files its certificate of good
standing, by even one day, dismissal must occur. This
result is not in accord with the general rule that dismissal
under Alaska Civil Rule 12(bX6) is not appropriate unless
the opposing party can produce no set of facts to cure
the defect. Shooshanian v. Wagner, 672 P.2d 455, 461
(Alaska 1983). It is also not in accord with the previous-
ly stated rule allowing a corporation to cure substantial
defects in its pleading even after initial filing. King, 536
P.2d at 118. While, therefore, filing of a certificate of good
standing may be required of a corporation which has not
App. 19
done so, or affirmative defenses raised based on a cor-
poration’s apparent lack of capacity for failure to file a
certificate when it files suit, dismissal of the action is
neither a necessary nor even a desirable result. The court
rejects PAS’ contention.
3. Whether attorney’s fees were appropriately calculated
Alaska Civil Rule 82 provides only a suggested schedule
of fees. Rule 82 specifically provides the court with discre-
tion in setting attorney’s fees. A grant of attorney’s fees
by the district court will be reviewed on an abuse of dis-
cretion standard. Grasle Elec. Co. v. Clark, 525 P.2d 1081,
1086 (Alaska 1974). The fact that this action was settled
by default judgment does not reflect the considerable un-
derlying litigation, and it was fully within the district
court’s discretion to award full attorney’s fees. The court
affirms the district court’s award.
4. Whether dismissal of Triem as attorney for PAS was
proper
PAS argues that DR 5-101(B), DR 5-102, and AS 22.20.040
are all unconstitutional. PAS does not support its claim.
Salutary reasons exist to support these rules. Most broad-
ly stated, the rules all advance the goals of integrity of
the legal process. The rules prevent the inherently incon-
sistent role of a lawyer attempting to be both advocate
and witness. This rule has been approved by courts both
in the corporate setting, Gasoline Expwy, Inc. v. Sun Ou
Co. of Pennsylvania, 407 N.Y.S.2d 65-66 (1978), and also
in the general setting of Alaska’s disciplinary rules, Mur-
ray v. Feight, 741 P.2d 1148, 1160 (Alaska 1987). The court
finds no good reason to find the rules unconstitutional,
and upholds the decision of the district court disqualify-
ing Triem as counsel for PAS.
App. 20
5. Whether the district court erred in allowing claims
against Triem and in their individual capacities
PAS argues that the district court ruled in its favor on
the issue of summary judgment dismissing it from the liti-
gation, but then refused to enter a judgment of dismissal
in its favor. The record does not support this claim. On
January 17, 1990, the district court did rule in its favor on
a summary judgment motion. However by order of clarifi-
cation dated June 4, 1990, the court held: “The court’s
order of January 17, 1990, granted summary judgment
only as to the claims stated in the original complaint.”
There is no indication that the court intended either Triem
or Berg to be permanently dismissed from the suit.
PAS argues that Triem and Berg were never proper
parties to the litigation. They fail to support this assertion.
Given the fact that Triem and Berg are the principals and
only stockholders in PAS, and given the limited purposes
for which PAS was formed, it may be that Triem and
Berg may be held individually liable based on an alter
ego theory of corporate law. In any event, it is not clear
to the court why Triem and Berg are not proper parties
to the action. The court finds no error in the district
court’s decision not to dismiss Triem or Berg.
6. Whether the appropriate rate of preyudgment interest
was used
Prejudgment interest is 10.5% unless a contract in writ-
ing® exists providing for payment at a specified interest
rate. AS 09.30.070. Tamico argues that the bill it presented
* Tamico argues that a writing is necessary, and points to its bill-
ing statement. It is correct that there must be a writing. However
the writing must be of a specific type: a contract.
App. 21
to PAS constituted a “dual offer’: PAS could either pay
the balance in full within 30 days and accrue no interest
charges or have the unpaid balance accrue interest at the
rate of 1-1/2% per month. Tamico argues, in effect, that
PAS accepted the accrued rate (18%) because it withheld
payment beyond 30 days.
Tamico must prove that PAS’ inaction or silence is an
acceptance. However, it fails to make any supportive ar-
gument or cite to any supporting legal authority. The gen-
eral rule is that silence and inaction will not be construed
as an assent to an offer. Samuel Williston, A Treatise on
the Law of Contracts § 6.49 (4th ed. 1991) [hereinafter
‘“Williston’’]. The surrounding circumstances may be con-
sidered. Williston, supra § 6.49. In this instance, the sur-
rounding circumstances indicate that PAS strenuously ob-
jected to paying the bill in the first instance; given its
strong objections to the bill, the court cannot conclude
that PAS’ silence was an acceptance as Tamico alleges.
Interest should therefore be calculated at the rate of 10.5%.
VII. Conclusion
For the foregoing reasons, the court affirms the district
court’s rulings in all respects except that a prejudgment
interest must be calculated at 10.5%. The case is affirmed
in all respects except interest calculation, and remanded
to the district court for entry of judgment in conformity
with this opinion.
IT IS SO ORDERED.’
Done this 13th day of July, 1993.
/s/ Walter L. C neti
WALTER L. CARPENETI
Superior Court Judge
7 Appellee, the prevailing party in this appeal, is awarded $500
in attorney’s fees pursuant to R.App.Pro. 508e).
App. 22
IN THE SUPERIOR COURT FOR
THE STATE OF ALASKA
FIRST JUDICIAL DISTRICT AT PETERSBURG
TAMICO, INC.,
Plaintiff-Appellee,
VS.
FRED TRIEM, DAVID BERG,
AND PETERSBURG AIRCRAFT
SALVORS, INC.,
)
)
)
)
)
)
Defendants-Appellants. )
No. 1PE-89-113 Cl
JUDGMENT
This matter came before the court on plaintiff's motion
for sanctions and entry of default on the 30th day of July
1991, and the court being duly advised in the premises,
NOW, THEREFORE, judgment is hereby entered against
defendants, jointly and severally, in the amount of Four-
teen Thousand One Hundred Sixty Dollars ($14,160.00)
plus accrued interest in the amount of Five Thousand
Forty-one and 74/100th Dollars ($5,041.74), together with
costs in the amount of Sixty-six and 56/100th Dollars
($66.56), Rule 82 attorneys’ fees in the amount of Three
Thousand Four Hundred Fifty-six and 31/100th Dollars
($3,456.31) and sanctions imposed on June 14, 1991, in the
amount of Two Hundred Fifty Dollars ($250.00), for a total
judgment in the amount of Twenty-two Thousand Nine
Hundred Seventy-four and 61/100th Dollars ($22,974.61).
Dated at Ketchikan, Alaska, this 2nd day of October,
1991.
/s/) Thomas E. Schulz
Superior Court Judge
App. 23
CONSTITUTIONAL PROVISION AND STATUTES
Admiralty Clause, U.S. Constitution:
Article III, Section 2, Clause 1: The judicial Power
shall extend to... all Cases of admiralty and maritime
jurisdiction ...
Saving to Suitors Clause (Original Version):
Sec. 9. And be it further enacted, That the district courts
shall have, exclusively of the courts of the several States,
cognizance of all crimes and offences that shall be
cognizable under the authority of the United States,
committed within their respective districts, or upon the
high seas; where no other punishment than whipping,
not exceeding thirty stripes, a fine not exceeding one
hundred dollars, or a term of imprisonment not exceed-
ing six months, is to be inflicted; and shall also have
exclusive original cognizance of all civil causes of admi-
ralty and maritime jurisdiction, including all seizures
under laws of impost, navigation or trade of the United
States, where the seizures are made on waters which are
navigable from the sea by vessels of ten or more tons
burthen, within their respective districts as well as upon
the high seas; saving to suitors, in all cases, the right of
a common law remedy, where the common law is compe-
tent to give it; and shall also have exclusive original
cognizance of all seizures on land, or other waters than
as aforesaid, made, and of all suits for penalties and
forfeitures incurred, under the laws of the United states.
And shall also have cognizance, concurrent with the
courts of the several States, or the circuit courts, as the
case may be, of all causes where an alien sues for a tort
only in violation of the law of nations or a treaty of the
App. 24
United States. And shall also have cognizance, concur-
rent as last mentioned, of all suits at common law where
the United States sue, and the matter in dispute
amounts, exclusive of costs, to the sum or value of one
hundred dollars. And shall also have jurisdiction exclu-
sively of the courts of the several States, of all suits
against consuls or vice-consuls, except for offences above
the description aforesaid. And the trial of issues in fact,
in the district courts, in all causes except civil causes of
admiralty and maritime jurisdiction, shall be by jury.
The Judiciary Act of 1789, 1 Stat. 73.
28 U.S.C. §1333(1) (Saving to Suitors Clause, current
version):
28 U.S.C. § 1333 Admiralty, maritime and prize cases
The district courts shall have original jurisdiction,
exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdic-
tion, saving to suitors in all cases all other remedies to
which they are otherwise entitled.
(2) Any prize brought into the United States and all
proceedings for the condemnation of property taken as
prize.
(As amended May 24, 1949, c. 139, § 79, 63 Stat. 101.)
App. 25
Petitioners sought discretionary review in the Supreme
Court of Alaska pursuant to Alaska Appellate Rule 302(b).
Their petition for hearing was timely but it was denied.
The Order of the Supreme Court of Alaska that denied
the Petition for Hearing was entered on 16 September 1993. It
is not reported. The text consists of only two sentences:
In the Supreme Court of the State of Alaska
Petersburg Aircraft Salvors, Inc.,
Fred W. Triem, and David A. Berg,
Petitioners
Tamico, Inc.,
Respondent
Case No. S-5822
It is ordered: the Petition for
Hearing filed on August 13, 1993
is denied. Entered at the direc-
tion of the Supreme Court on
September 16, 1993.
(signed)
Clerk of the Appellate Courts
Anchorage, Alaska
App. 26
ERRATA SHEET
Page 10, third paragraph, erroneous citation, should read:
(1) There is a conflict between state courts, SUPREME COURT
RULE 10.1(b). {Had miscited to 10.1(a).}
Page 27, first paragraph, missing case citation, should read:
There are even modern cases in the federal courts that
contain dicta to support the view that there is a concurrent ju-
risdiction in state courts. Bergeron v. Quality Shipyards, Inc.
765 F.Supp. 321, 323 (E.D. La. 1991) (state courts have con-
current jurisdiction to try in personam admiralty actions, citing
Saving to Suitors Clause); Fogleman v. Tidewater Barges, Inc.,
747 F.Supp. 348, 354 (E.D. La. 1990) (plaintiff can file a maritime
action in state court under the Saving to Suitors Clause, which
preserves the plaintiff's right to common law remedies).
{ Happily for the Petitioners herein, there never has been a decision
of a federal court in which the holding is to that effect. }
Page 30, final line, erroneous date of submission, should read:
Respectfully submitted this 10th day of January 1994 at
Petersburg, Alaska.
Page 30, footnote no. 10, missing parenthetical, should read:
10 (...continued)
particular facts. The Supreme Court, unlike the lower federal
courts, is given a largely discretionary jurisdiction, which is
used when areas of law require clarification.”) (Bork, J.)
(emphasis added)
EXHIBIT A—Maritime salvage operation with M/V Matanuska
in background (the Matanuska serves the Alaska
Marine Highway from Brit. Columbia).
EXHIBIT B—After the sunken plane was raised, it was towed
to shore.
nn
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.