Petition for Writ of Certiorari — De La Rama Steamship Co. v. United States

LIBRARY _

SUPREME COURT. U.S.

IN THE -

SUPREME COURT OF THE UN ITED STATES

* - OCTOBER TERM, 1952 ain

No. 368 ;

THE Pott LA RAM. A STE: \MSHIP COMPANY, INC.,

. ; Palitioner.

Ages agamst

UNITED STATFS PF AMERICA.

#.

PETITION FOR A WRIT ¢ OF CERTIORARI TO THE

UNITED STATES COURT: OF °APPEALS

; FOR THE SECOND CIRCUIT. *

©

: ee sake ROSCOE H. HUPPER, -

2 ‘ Counsel for Petitioner,

= y rie 27 William ‘Street,

ge tea / New York 5, N.Y,

September 29, 1952. at es

ass 5, ane ae

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~ Be Contents| me - Ween Se.

a es: | a 5 - "PAGE -

PMU Li iscr cigs pice ster. sce! pein bane ee

Opinions De ee paneer ha ee lepddae Rua:

Jurisdiction Pie viee tees JEN CRAB apes ee IGEN OS

: Principal quéstion presented ey ar © PRED EAS g

Statutes involved EN e Cee AW AGS Van eee hes peas 2

Short summary MatEMORE as A ie ae

Specification of. errors to be winged ree PUN eeetaes 5

REASONS FOR Grantine THE w = AP a oe ea ie hocks 5

1. : The decision below i is in dizect conflict with.

the Ninth Cireuit decision in ’nited States

@. McNair, 180 F. 2d 273 (1950). ........ et ae

The court below has decided a federal quos-

. tion in,a way we think clearly in conflict

with applicable decisions of this Court . bE

bo

3.. The court. below has decided an enoctha

question of federal law which has not been, .

but should be, setMed by this Court ........ 13

Petitioner requests that in the interest of

justice and fair expedition, particularly in

view of the pendency of this suit since 1944,

the writ snould not be limited to a review

of the question of jurisdiction but should

compreh&i the merits—at least the natter :

of constitutional ‘‘interést’’.......4. renee ae |

pte es Per rere er Wh eeewwne Lawes wnea pace 16

Apprenvix* I—Relevant portions of statutes involved 17

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es i. Bo rea ee

‘. |

_ Apppnpix I]—Other insurance cases now pending i in

the Southern District of New York brought

under the War Risk Insurance Act of June 29,

1940, as amended, in which jurisdiction after the

repeal in 1947 is dependent upon the general

spokes in statute, 1U.8. C..§ 109 , se oa a wily Sate ag ae

Authorities

CASES:

Adams et al v. United States, 101 F., ‘Supp. 956,

959 (D. Cis PAOOR: RIGO i od A eS

Alaskan, The, 85 ¥. Supp. 815; supplemental

decision 92 F, Supp. 785; affirmed 191 F. ed

26° (2d Cir. 1951); cert. don, "342 U.S. 941.

Albrecht v ad! nited States, 32 1G U. S. 999....0...

| @Beal v. Daiioe States, 182 F. 3d 969, 368 (6th

Cir. 19% wae at OME a a

Daranowich v. Lesa: 186 F. 2d 386 (2d Cir,

| 1951) cert. den. 341 U. S. 942)...., ree! es

\

Great Navthetn Ry. &. v. United sttashiaa 208 s

ae S. ee spun FOU CRG CANT Rae wale bie OS.

851) Te eee Pe oe an ee wre trerees Sasa Seecace #

Hallowell v. Com mons, 239 U.S. 506, ie

Insurance Company v. Ritchie, 72 v. S. ba].

4

Jacébs-v."United States, 290 v. S. 13, 16.17... ;

; Levine - v. United States, 80 Be. Hine 674, 679

(Ct. Cl. 1948), cert. -den, 336 U. S. 936... So eek ap

zt

PAGE

ili .

PAGE

National Bulk Carriers v. United States [The

’ Virginia}, oad F. 2d 943, $50 (3d Cir. 1948) . 10

150 East 47th Street Corp. v. Porter, 156 P. 2d ;

. 541 (IDEG) oes one's ioc cate ks KER Wadena ‘12, 13

Phelps ¥, United States, 274 U. S. 341, 343-4 . ».. 10,16 —

Standard Oil Company of N. J. vet 'nited States,

340 U. S, 54, affirming 178 F. 2d 488 (2d .

Cir. 1949) Su ty eres Reeeenees ase ues Porat ee

: Wnited States v. Carter, 171 F. 2d 530 0S Cir.

4948) ..%. aire e tute ted BAe ae 02 Ss Se hen eS = aa

United States v. Portier, 342-U., Ss. 160, 164,,

a. (62.8) affirming: 185 F. 2d 608, 611 (st Cin,

1950). 5. Rew EES EE Cees ee Nisbeoeeee 12

Umited States v. ah has (No. 1101) 330 U.S.

No BMGR EE ti os Va Se oe yk PEWS oot eg po ce Fae

United States v. Leahy, 148 F, 2d 462, 466 (3d

ae Wyo Waa ert ane Or Roi ke og

_ United States v. McNair, 180 F.. sie (9th Cir.

i 1) RPM PAB RRS Stare” Schigae © Rn en yy Se

United States v. Palletz (No. 1100) 330 U.S. 819 Si

‘United States v. Bet, 194 F. 2d MO team ir.

4 pie FRAIL Pana reser Gone ae are ae ae

“United States v. Thayer- We ae Point Hotet- Co.,

;. = 329 U. S.: 980, SO9-000 isa eer Ws eis SS

United States v. Wheelbarger (No. bad 331 ;

LTE MAS AUN Bao shale aah ghia DA Gas ales 5 Yas oh mS

° | tear bi ae

| Western Mail, The, 557 WS. 5 Oe * ee ie Ig. |

Wood v. Hills, 334 U.S. 210, 214, 2163.2... 0... Bee ©

—

iv

Sratures: . Soa | PAGE ~~

Emergency Price Control Act of 1942, §4(a)_ aioe

(56 Stat:e23. (1942); 50 U. S..c. App. (Supp.

V, 1946), § 901(b); Act as amended: June 30,. 9. “s

1945 (59 Stat. ce § RCE ne eee are mere a © |

‘_ General Savings atute ce Se s Saree

(2 0. 8.0. G10) 205 Porre 2, 3, 6,12, 14, 20

Housing and Rent ‘Act of. 1946, $5 ...... as 12

Housing and Rent Act of 1947, 4 1(a) {61 Stat.

193; 50 U. S.C. App. (Supp. IV), §1881(a)] 11,12

. Joint Resolution of July 25, 1947 (61 Stat. 449,

De ep Renee Bey seo Reread

Merchant Marine Act of 1936, as amended; bee oe

(46 U8. 0. 6105) Peiigae

Title 28 U. 8. C.- BONG ses ee 6

War Risk. Insuranicd Act of Suite 29, 1940 (54 |

-M@at. 689) as amended [46 U. S. C. (1940 ed.)

§§ 1128-1128h; Merchant Marine Act of 1936,

' as amended, $$ 221- S29} Sco pesese 2,3, 7, 9,17, 20

| § 1128a Title 46 U. S.-C fisice peeunie: awe TT

§ 11284, Title 46 U.S.C. 2020000... sees 8,7, 9,17

War Risk Insurance Act of Neal Bota 7, 1950 ‘ at

(64 Stat. 773; 46 U. S.C. $§ 1281- -1294) . : :

Veterans Emergeney Housing Act of 1946 (60

Stat. 207,211; 50 U.S. ¢. App. § 1821, et seq 11, 12

‘Miscen LANEOUS:

- H.R. Rep. Ry 799—80th ¢ Cong. tst Sess. (1947) 8

Sen. Dae. No. 42— 80th Cong. Ist Sess. (16 i Teg.

‘Sen: Rep. No. 399—s0th Cong. Ist Sess. (t woe Ja.

,

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\IN THE

*Supreme Court of ‘the United States

October Term, 1952

ar a4 No. Le 73) ne

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ca Ps. Pe Naya

Tey Dr 2a Rana SreaMsurr eek Og

COMPANY, ina 7

: : Petition, a

‘agamst Giraneries iat as ~

4 Unirep Srates or AMERICA.

| Pai pet

PETIT) FOR A WRIT OF CERTIORARI TO THE UNITED

STA COURT; Ar APPEALS FOR THE SECOND CIRCUIT.

. ‘The De La Hama Steamship Company, Inc, a Philippine.

corporation, prays that’ a writ of certiorari iss to review »

; , the judgment ofthe United States Court of Appeals for the

” Second Circuit whic became final July 29, 1952, °

_ The decision below is deemed highly prejudicial to peti-

tioger and not in accord with the purposes of the War Risk:

— Insurance Act and the general savings statute, and appears

to affect many pending litigations. It ie contrary to the

decision of the Court of Appeals for the Ninth Circuit in a

. similar case.

-Opinions Below |

The opinion of the Court of Appeals for ‘the Second |

- Cireuit (R. vol. IL, 1554-1560) is reported at 198 F. 2d 182.

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‘2

— = ‘Phe opinion of the District Court for ie ‘Southern

District of New York. (R. vol. IT, 1515-1536) is repétted

at 98 F. Supp, 514. Contemporaneously. that court filed

-détailéd findings of fact and conclusions of law AR. vol. H, ;

1504- ath

\

gaat eos Jurisdiction |

- The Court of Appeals? order (R. vol. I, 1573) denying

petitioner’s timely peepee ord rehearing, of said Court’s

judgment (R. 1560) entered July 2, 1952, was entered on

July 29,1952. The jurisdiction of. this Court is invoked

under 28 U. S. C, ae Egtic oats : :

_ Principal Question Presented

' Did the repeal Jaly 29, 1947-of the War Risk Insurance -

Act of June 29, 1940, as amended, which: ‘repeal madeeno

reference whatsoever. to. pending suits, divest the District

Court of jurisdiction of this then pending suit; which had

- been brought in 1944 under said statute for the recovery of

Government. war risk insurance. ae

Or (as petitioner earnestly | subinite) should not said

repeated j msurance statute, including the jurisdictional pro-

-~tisions thereof, have been treated as remaining in force as

concerns this suit, by virtue of the general savings statute

Ci.8. 0. § 109) and. long established legal and equitable

Rb cclanay aah of statutory’ construction.

- Statutes oe,

The ee rant portions of the: War-Risk Insurance Act. :

of June 2 40 (04 Stat. 689; 46 U.S. o., 1940 ed., §§ 1128-

11282; - 1-228, Merchant Marine Act of 1936), as

~~ amended; the Joint Resolution of July 25, 1947 (61 Stat..

' 449, 480) repealing said insuranceé statute; and the general -

| o- 3

savings statute’ (1 U.S. C. §109),¢ are set sorth 1 in hippest

dix I, nr pp. 17- 19, Sees | .

Short Summary Statement _

The Dona i was. torpedoed and sunk December —

25, 1942. She was under requisition and covered by Gov-

- ernment war risk insurance in an amount and at a valua-

tion measured by ‘just compensation’? , (R. vol. II, 1512). |

; When the parties conld not agree upon the ‘‘ just“¢om-

' pensation’’ to which ‘it became entitled, petitioner, on :.

December, 22] 1944, filed ‘its libel. in the District Court,

pursuant to §1128d of the War Rigk Insurance Act

[§ 225, Merchant Marine Act of 1936, as amended]. The

then’ exclusive jurisdiction of the District Court is well

settled.** fara

During the aden four years between the repeal of the &~

insurance statute in 1947 (61 Stat. 449, 450) and the District

Court trial in 1951, the Government had contested the, case

in the District Conri on the merits. In October 1948, the

court referred the valuation issue; extensive hearings were

held before the Commissioner, ending i in November, 1949. ‘

The case was argued and briefed and the. Commissioner

made his, report in March, 1950. valuing the vessel at

$2,082,000 as of the date of loss (R. vol. I, 825-855; 1950

* Section 13, Revised Statutes, ori enacted as § 4 of the

Act of February 25, 1871, ¢. 71, 16 Sfat. 432, formerly 1 U.S. C.

$29. On July 30, 1947 this section, as amended, was enacted as

§ 169 of Title 1, U. S. C., and it is referred to agate semi this

petitian as ‘‘§ 109”.

** The Court of Claims had 1 never ved jusinliation of war risk

insurance claims undef the Act of June 29, 1940, as amended (46

“UNS. C. §§ 1128- 1128h), it. having been held in United States y

Leahy, 148 F. 2d 462, 466°(3d Cir. 1945), alse in Levine-v..U nited

States, 80 F. Supp. 674, 679 (Ct. Cl. 1948) cert. den. 336 U. S, 936,

that the district courts had exclusive pfrisdiction of such claims

under § 1128d (compare Adams et ai v. United States, 101 F, Supp.

936, 959, D. C. Mass. 1952.)., — = . %

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‘Am. Mar. Cas. 644). ‘The case was then argued and briefed |

-and the District Court egnfirmed the Commissioner’s —

e\

valuation in July, 1950 (Rrvol. I, 862-899; 92 F. Supp. 243).

Not until the trial, March 6-7, 1951, did the Government

heataad for yte first thne that the repeal had divested the

“District Coart if jurisdiction of this suit.*

The District CourtJgld that in yiew of the general sav-

ings statute and the absence of any express language in-

the repeal statute covering the point,-jurisdiction continued

for the purpose of determining the liability saved by the

-. general savings statute. 98 F. Supp. 514 at 518-519. Ae-

cordingly, a final decree was entered July 6, 1951 (R. vol.

Il, 1587) awarding petitioner $1,476,377.38, based on the °

Commissioneér’s valuation, with adjustment for payments .

on account, ete. :

‘The Court of Avypeaia. however, held that although the

_ insurance statute remained in force as far as substantive

liability was concerned, that intrinsic portion of the statute

which authorized the filing and maintenance of the present

suit was repealed and the District Court was thereupon .-

deprived of jurisdiction to continue with the suit to enforce §

the saved liability TR. vol. IT; 1556-1558):

<

*The Government refrained from saline the same contention

to the Second Circuit on its appeal May 8-9, 1951-in-a similar suit

under the same repealed insurance statute to gecover for total loss —

of the AuasKAn [The Alaskan, 85 F. Supp. 815; supplemental ‘

decision 92 F. ade 785; affirmed 191 F. 2d 26 (24 Cir. 1951) °

cert. den. 342 U. S. 941]. Prior to its decision herein said, court-

had disposed of many war risk insurance cases on their merits

after the repea' of the insurance statute on avhich jurisdictidn as-—

well iability depended,.e.g.. The Alaskan, supra; Daranowich

v. Lénd 186 F. 2d 886 (1951) cert. den. 341 U. S. 942; Gregory.

United States, 187 F. 2d 101 (1951) ete. ete. Moreovtr, this

Court, after having granted certiorari, decided Dipole Oil Com:

pany of New Jersey v. Vnited States, 340 U. S. 54, affirming 178

F. 2d 488 (2d Cir. 1949). wherein Hiabititg and jurisdiction

depended solely on the same insurance statute, previously repealed.

- Specification of Errors to be Urged

The Court of Appeals erred ; Ss

1. In holding that the Hiriedietion of the District Court

conferred by the War Risk Insurance Act of June 29, 1940,

‘tinder which the suit was properly commenced in. December,

1944, wa divested by the repeal of said statute by the Joint

Resolution of July 25, 1947 (61 Stat. 449, 450) ;

2. Tn, iling ‘to hold that jurisdiction was: preserved

by the general savings statute (1 U.S.C. §109);

3. In reversing the decree of the District Court and

directing that court to dismiss “thé libel for want -of.

jurisdiction. ) :

4. If certiorari is s granted, petitioner believes that this

‘ourt shonid- ‘review the entire vase or at least consider not

only the Jurisdictional question but also petitioner’s fon-

terition decided against it®n the District Court and rfised

_ in tthe court beiow but not passed on, that, it is entifled to

constitutional ‘‘interest’’ as part of ‘‘just: compepKation’’,

as from the date of loss (rather than from the date of the _ .

commefhcement of suit) pursuant to petitioner’s second

cross-assignment of error (R. vol. I, 1547).

Reasons for Granting the Writ

1. The decisio¥pbelow is in direct conflict with the Ninth —

Circuit's decision fn United States v. McNair, 180 -F. 2d ,

273 (1950). : ie

| That case involved the same insurance statute and the

sdme repeal statute as are involved here. . The Ninth.

Cireuit decided that, nofwithstanding the repeal, the Dis-

trict Court’s s jurisdiction had been preserved by the general’

savings ‘statute,’ saying:

; ‘We are of the opinien that the liability here-

t atter stated having beep incurred by the United

, | ; fa

States prior to the repeal of the Act of. June 29

1940, the right of recovery therefor continued f

exist under 1 U.S. C. & 29 [now § 109]? (p.. 274).

. ° g - 2! 2

- Accordingly, the Ninth Cireuit affirmed (with imma-

terial modification) the’ District Court decree for the -

-libellant-for a war. risk recovery based upon the repealed.

’ statuteé, both, as regards liability and jurisdiction.

* The Ninth Cireuit’s decision applied literally the

language of §109, which treats, as- apill in force “such

[repealed] statute’’, not merely parts of such statute. That

construction accorded also with the remedial purpose of

the general savings statute. : |

The contrary is true of the construetion adopted by the .

Second Circuit. That Court ‘‘most reluctantly’? (R. 1560) ©

was led to treat the words ‘‘such statute’’ in the savings

clause as if the language had read ‘‘the parts of such statute

creating a liability but'not the parts establishing jurisdic-

tion’’. Sapo nde ¥ 4

-. «Much of. the language of the savings statute.would be

redundant under the decision of the Second Cireuit. ei

that statute merély aimed to preserve existing liabilities.

under the repealed statute, this was accomplished by the -

@ language reading: | efne

“The repeal of any statute shall not have-the effect

to release or extinguish any * * * liability incurred

under such statute, * * *”’ .

There would have beén no need to add the further

language: | . x ra

‘“* * * and such. statute shall be treated as still.

remaining in force for. the purpose of sustaining-any

proper action or prosecution for the enforcement of

» such * * * jiability [ie ‘‘liability incurred under -

such statute’’]’’.

e . ~~

Here a.clear distinetion is envisée between the

‘liability’? which is not to be extifguished and the means

of enforcing’.that liability, which is also preserved by treat-

7 3 .

° : r >

ing the statute as’ still in fpree to sustain ‘any proper

action or, prosecution for the enforcement of such * * *

ltability”’. A

Since the remedy is to be ‘preserved by treating the

statute as remaining in force, it is clear that the remedy

under the statute—in this case, by a suit in the District

C ourt—w as preserved, : :

What more ‘‘proper action or pecuadatiie! could there

be for the enforeement -of the preserved lability than by

continuance. of the suit that had been properly broughi’ for

enforcement of the liability under the statute? :

. There is no warrant for the suggestion by the court

. below (Opinion; R. vol. II, 1558) that ‘‘it may well be’?

that the Ninth Cireuit “thought”? that jurisdiction in the |

McNair case was sustainable under the Tucker Act, or that

the jurisdictional question involved here was not passed

on there. The Me Nair record (which we have examined)

and the’ court’s opinion in that ease foreclose any such .

‘suggestion. Neither the Tucker Act nor any alternative.

basis of jur isdiction was referred to. ®° tk:

«Chief Judge Denman first stated (273) that the ‘*juris-

“diction of the Court below was inivoked under See, 1128d”’.

He then called attention to the repeal of the Insurance Act |

-,Of June 29,1940 by the repealing Act of July 25, 1947 and

. “‘‘ealled for and received briefs on {Re jurisdictional. ques-

tion presented’’ (274).° Thereafter followed the unanimeus:

opinion of that Court’ in favoy of ee which the .

‘Second Cireuit did not.see fit to follew.

‘It is clear that the Ninth Cireuit based its decision on

the general savings statute, and not on ofher considera-

tions. This is shown by its quoting fro this Court’s -

opivion in Great Northern Ry. Co, v. Unitgd States, 208

U.S. 452, 465, that the provisions of the general a

statute: :

‘fare to be treated as if incorporated in and as a

part of subsequené enactments, and therefore under

- e 8

the general principles of construction requiring, if

possible, that effect be given to all the parts of a law

declaration or necessar¥.implication, arising from the

the section must be enforced unless either by express -

terms of the law, as a whole, it results that the legis-—

lative mind will be set at naught bygiving effect to

| the Breeton of §13.’’ [180 F. 2d 274]

- There is no enicgootion that shere is anything in the

' repeal statute itself that evinces any purpose of the ‘‘legis- .

lative mind’’ to minimize the saving effect of § 109 or to.

deprive the District Court of jurisdiction of any then pend-

ing insurance spit under the repealed statute’. 4

The Second Circuit’? misconception of the situation is

manifest from ‘the ¢ authorities it cited. They were cases

were: the repealed statute was merely a jurisdictional

‘stattte not, as here, a statute under which substantive rights

arose, With intrinsic provision in the statuteas to jurisdi¢-

tion to enforce such substantive rights.

Thus, in Halfowell v. Commons, 239 U. S. 506, the repeal

dealt specifically and solely with the statutory ptevision

relating to jurisdiction, The repeal did not purport to deal

‘with any substantive right and there was no basis for urging

that preservation of substantive rights by” the "savings

statute so ae to. save an inherent jurisdictional provi-

‘sion in the repealed s statute The repeal: had nothing to

*The legislative’ history of the repeal statute ‘supports our

position that the repeal was not related to jurisdiction. The title

shows that the purpose of the repeal was to-effect ‘‘termination

of war and emergency power no longer considered essential to

the war éffort’’ (Sen. Rep. No. 399 and H. R. Rep. No. 799—R0th

Cong., Ist Sess. [1947]). Of the insurance statute, one of the

many war power statutes repealed, the Department of Justice

advised the Senate Judiciary Committee (Sen. Doc. No. 42, 80th

Cong., 1st- Sess. [1947]) :

‘“‘This statute may be repealed inasmuch as the authority:

provided thereunder is no longer needed and its effectiveness:

is limited to the present war’’ (p. 88).

Nothing was said anywhere about. jurisdiction or pending’ suits,

—

. ns A

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9

. 1871.

. 9

operate on except jurisdiction, Inthe language of Mr. -

Justice Holmes, the repeal: care

“takes away no substantive right but siniply changes

the tribunal that is to hear the case’? (239 U. S., at .

308). . . = Soa . Bs e.

The same is true of Bruner w. United States, 343 U. 8.

112. Here again there was no repeal of any statute under _

* which substantive rights accrued [5 U. 8. C. 43; 56 Stat.

1068 (1942) ; 57 Stat. 75 (1943); Beal v. Knited States, 182

FP. 2d 565, 568 (6th Cir. 1950) ]- The repeal related only-to-

the jurisdictional provision in the Tucker Act which had

conferred concurrent jurisdiction on the Distrjct Court and

the Court of Claims. TAere was no basis, therefore, for

contending that, with the saving of.a substantive statutory

right, an intrinsic enforcement provision was. also saved.‘

Unlike the repeal statute here, the situation in the: Bruner

case was, as this Court said (343 U.S. at 117):

‘‘Congress has not altered the nature or validity

of petitioner’s rights or the Government’s liability

but_has simply reduced ‘the number ~of tribunals ©

_ authorized Yo bedr and determine such rights. and

liabilities’, —~~ Noy . four

Insurance Company v. Ritchie, 72 U. S. 541, ‘also cited

by the court below (R. 1556), was decided in 1866, several

years before the general savings statute Was’ enacted in

‘ When the Act of June 29, 1940 as a whole is treated as

the ‘‘statute’’ repealed—aAs it was by the Ninth Cireuit, as

well as. the District Court in the present case-—such cases

as Bruner v. United States and Hallowell v. Commons are

clearly imapplicable. If the statute was. repealed as a-

whole, it must necessarily be preserved-.as a whole (includ-

ing § 1128d conferring District-Court jurisdiction) by the

provision saving ‘‘such statute’’.

va

“The decision below would effect far more than requiring .

petitioner’ to re-litigate this case in the Court of Claims.

~

. Here, the. Gaveteinia’’ s liability sould be . nee ia

altered unless the entire insurance statute was saved> Such ,

a situation was noted-as absent in the Bruner case (343 "

U.S. at 117).

For example, substantial interest had already accrued

to petitioner as early as the repeal date. National Bulk:

Carriers v. U nited States [The V irginia], 169 F. (2d) 943,

950 (3rd Cir, 1948) ; ‘Levine v. United States, 80 F. Supp.

674, 679. [Ct. Cl. 1948; cert. den. 336 U.S. 936]. But if

: relegated to the Couré of Claims, petitioner might loseall

such accrued: interest. or the Court of Claims appears

pegabtites to award erate only from ‘the date of entry

of judgment (28 U.S. C. § 2516),—which would be years

after the time to which Ms had already accrued. Such

accrued interest would thus be wiped out. j

_ The decision below would have. even more detrimental

eonsequendes. Shipowners, even though they brought

_timely rete suits in the District Court, the only court

then having jurisdiction, may now find themselves time-

~ batred in the Court of Claims. ,

It would indeed ‘be a sebiious sort of. “liability ” that

would be preserved if thé savings statute is interpreted

in a way. to result in*claimants having theoretical sub- .

stantive rights without the means of enforcing them,—

Fava ’, as Mr. Justice Holmes called them. The Western

Maid, 257 U.S. 419, 433. , 7

No wonder tliat the Second -Cireuit said it reached its

‘harsh conclusion only ‘‘most reluctantly’’. This, on its

face, seems to raise the question whether the Second Cir-

- ecuit’s construction ofthis remedial statute, .the general

savings statute, was sound. This Court should review the

matter before allawing to be erystalized into law a narrow

_and strained construction of a statute aimed to preserve

rights, / 3K &

Sms aN yi

- 2 The court below has decided a federal question in a

way we think clearly in conflict with applicable decisions 7

of this Court,

No ‘ether ection since the enactment of the savings |

statute in 1871 has held that upon repeal of a statute creat-

ing a substantive liability and also conferring jurisdiction

for enforcement of the same, the savings statute operates

to preserve only the subsfantive liability but not the statu-

__ toy remedy to enforce it. To the contrary, this Court has. .

~ repeatedly held that the statutory jurisdiction, as well as oe

the liability, survives the repeal. |

United States v. Kromer (No. 1101), and Unite

v. Palletz (No. 1100), 330 U. S. 812, involved he

commenced August 29, 1946 in the district court t¢ recover

rent overcharges made.in 1944 and 1945 contrary to § 4( a)

of the Emergency Price Control Act of 1942 [56 Stat. 23 -

(1942), 50 U. & ce. App. (Supp. V 1946), § 901 et Ag

§ 904(a)], wherein district court jurisdiction bad been con-

ferred by § 205(¢) [50-U. S. C.-App. (Supp. V) § 925(e) }.

By its terms said Act, as amended June 30, 1945 (59 Stat.

306), terminated June 30, 1946." Accordingly, the district °

court dismissed for want of jurisdiction. This Court re-

versed per curiam, 330 U.S. 812, holding, as the authorities

therein cited show, that district court jurisdiction was pre-

served by the general savings statute as, well as. by the cor- _

respondingsavi ings clause in the repealed statute. §1(b),.as

amended, 50 U.S. C. App. (Supp. V, 1946), §901(b).- This

decision was follow ed ini United States v.. a esgcortad hea

1334), ete., 331 U. S. 791. a

In similar proceedings under the Véterans hoes ney

Housing Act of 1946 (60 Stat. 207, 211, 50 U. S. ©. Xpp. ;

) 1821 ef seq.) which had been repealed by §1(a) of” thy

States

edings

* A month later, Act of July 25, 1946; ¢. 671,-$ 1, 66 Stat. 664,

purported to revive the Price Control Act until June 30, 1947, but |

it is clear -from the record and briefs in this Court that the Price

Control Act was treated as terminated on June 30, 1946, the cases

- being argued and decided on that basis. . aie ,

~~

i

°

' Housing and Rent ‘Act of 1947. (61 Stat. 193, 50 U.S C App.

(Supp. IV), §1881(a)], this Court, affirm! ng the court

below, indicated clearly that as to transactions occurring ~

before such repeal the general savings statute would pre-

=

ow the repealed statute. United States v. F ortier, 342 U. S.

160, 161 (f.n.3), affirming 185 F, 2d 608, 611 (1st Cir..1950).

| “See United States v. See, 194 F. 2d 100 (9th Cir. 1952).

In its. per curiam ‘affirmance of the Fortier case, supra,

_this ‘Court (in footnote 3) referred to United States y.

Carter, 171 F. 2d 530 (5th Cir: 1948). It is noteworthy that .

the Carter case, at 532,. characterized § 109 as ‘‘the gereral

law relatiny to the preservation of legal rights and remedies

- ‘under a preexisting statnte’’ [emphasis supplied]. ‘'Bhe

Fifth Cireuit accordingly held that a 1947 repeal (50

U.S. C. App.; § 1881, et’ seq.) of 45 of the Veterans Emer-

gency Housing Act of 1946 did not take away the District

Court remedy. provided .in the repealed Act whereby the

Government eduld ‘secure restitution of overcharges made

While the 1946 Act was in effect.

The court below was unrealistic in trying to SHitawuiah’ :

150 East 47th Street Corp. v..Porter, 156 F. 2d 541 (1946) |

because of the ‘‘complex: interrelated jurisdictional setup”’

(R. vol. If, 1959}. Although the Emergency Court of Ap-

peals mav have been more ‘“persuaded”’ by such setup

_ that its already determined construction of §1(b) was

correct (044), the fact was that jurisdiction was preserved

by the savings clause in § 1(b),—as was recognized by this

. Court i in Wood v. Hills, 334 U.S. 210, 214, 216:

““* * * Since the offense complained of in the case

at bar oceurred before the termination date, §1(

would apply and the Emergeney Court of Sn |

would still have exclusive jurisdiction to pass%on the

validity of thie second rent order * * *,”’

oi * + . %

c*# * * the ‘exclusive jurisdiction’ provision in.

§$ 204(d) * * * was preserved by the saving clause

of, a(0).2"

eee et

The Act of oa une 29, 1940 was also drawn on the prin- .

ciple that exclusive jurisdiction over ingurance claims was

to center in the district courts (cases cited, fSotnote, page

3 hereof), That there has been no Congressional deviation

_ from this principle, is confirmed .by Congress having again

| Pied exclusive jurisdiction in the district courts in the

| Sahsequent War Risk Insurance Act of September 7, 1950

~ (64 Stat. 773; 46 U.S. C. §§ 1281-1294, 1292). 43

' Can it be believed that it was intended that suits’ brought

in the District Court under the old Insurance Act must

be dismissed and the assureds relegated to the. Court of:

Claims; but that-suits under the new Insurance Act must

' be brought in thd District Courts and, nowhere else?

Nor was the Porter case, supra, distinguishable on the

other ground suggested (R. 1559), i.e., that there was no

statutory authority for any other court to entertain the.

suit. The meaning of the general savings statute cannot

depend on. how it may work ouf in different cases:

- The decision helow should be reviewed not uty because

of the conflict with the Ninth Cireuit, but also because the |

tourt below has adopted a construction of the general sav- °

ings statute ‘at variance with that indicated by this Court. ‘

-It should be applied liberally rather than grudgingly, as

required by its Riss ohn resp banat and remedial purpose.

3. The courtNoelow has decided an important question

- af federal law we h has not eee: but should be, peies |

- ’ by this Court. 3

Although, as pointed out supra pages 11 12, this court

has dealt—favorably from.our point of view—with analo

gous situations in price control and/rent control cases

resulting from the repeal of statutes containing jurisdic-

tional provisions, it has never passed directly on the effect

~ of the 1947 repeal of the insurance statute on pending cases,

or the effect of-the general ‘savings statute in relation

thereto.” Fae ae ,

te | ; -. wit . os a

Many admiralty suits for insurance. recov eries’ under®

the repealed Acgpt June 29, 1940, all properly commenced

in the district court, wherein jurisdiction depends on the

‘saving effect of 1 U.S. C. $109, are still pending un-

determined. -.

Our examination of the court records discloses that

in the Southern District of New York ther e are now pending

at least nineteen such suits involving amounts- aggregating

over $26,000,000. These cases are listed in Appendix. |i

‘SAEs, ‘pages 20-22.

suits invaive not only total loss claims for “just

compensation’’-buf also other i insurance claiins such as for.

vessel and cargo damage from collision, loss of life, per-

sonal i injuries, et..— all brought under the repealed insur-

ance statute. = ewe : ;

3

/ xa ~~ -

a Bee protattive | suits - ‘appear to haye been commenced

ain the Court»of Claims.

Doubtless Gmerous other r suits properly. commenced

inder the reeealal | insurance statute are pending i in other-

district courts.

<.

veep

<

ciant general importance to warrant action by this court to

clarify the savings statute in relation to the repealed i insur

ance_statute. Such decision would not only determine the

jurisdictional question here and in other pending insurance

suits, but also settle the application of the savings statute

upon repeal of other statutes ereating substantive rights

and conferring jurisdiction for their enforcement.

.

“ \ :

. 3 . fas

\ ° : ‘

-*

.

The question of jurisdiction would seem to be -of sufti-

: | ee

4. Pett oner requests that in the interest of fastip e and

fair expediti , partinaarly i in view of the pendency of this —

suit since 1944, the writ should not be limited toa feview of

the question of jurisdiction but. should compfehend the

merits—at least the matter of constitutional ‘‘interest’’,

Having decided that the District Court was without

jurisdiction, the court below did not pass on,the point (R.

vol. II, 1547) that, petitioner was age to constitutional

‘‘imterest’’ as from the.date of the los} December 25, 1942,

rather than interest from ‘the oem Fe of the libel, December

22, 1944. | es c : pans

This ae a which we believe could with propr iety be .

turns on-the interpretation of decisions of .

dealt with no

this court, United States v. Thayer-West Point Hotel Co.,

329-U. S. 585, 589-590; Albrecht v. United States, 329 U.S

O99, “and earlier cases, inchiding Jacobs -v. United State: s,

290: U.S. 13, 16-17; Phelps-v. United States,2 214 U.S. 341,.

343- 344,

We do not understand. if to te disputed that when the

vessel w nat equisitioned, petitioner became erititled in case

- of loss to “just compensation ’* ak guaranteed by the Fifth

Amendment and that-this ould include interest from the

tinie of takings ¢ fs an essentjal element of***just compensa-

tion’’. “The stakatory provision: for ‘‘just compensation’? |

[§ 902 of the Merchant Marine Act of 1936,,as amended,

(46 U.S. C., § 1242) could not-cut. down the constitutional

right to ust compensation”. : ee,

If the egoing is sou nd, petitioner’ S ac ceptiance of the

war risks" binder and exeeution of the requisition charter,

; both prov iding for ‘‘just cOmpensation’’ insurance: deter-

” mifled in aceordante with § 902, when petitioner had no

choice to take’ anything else \R. vol. II, 1506-7), eould

hardly’ be the basis for an argument that petitioner had

contracted away its constitutional® rights,

.

. ¢

i 16

No statutory ‘imitation upon interest can take away

_ the legal right to interest in the constitutional sense as the

sige alent in value of erment of sa bora Phelps

WEE nited States, 274 U.S. at 34 fod

Conclusion

This petition for a writ of certiorari should be gtanted

for a review ‘vf this case, as outlined aibove.

? Respectfully Aubmitted,

SPI rene . Roscoe H. Hurprn,

Counsel for Petitioner.

Dated, New York, N. Y. Septémbers29, 1952.

oF poe’

r 17 4 : x

Appendix I t aie?

Releva at, Poriioad of the War Risk Insurance. Act of

June 29, T940. as amended (467U. S.C. §§ 1128- -1128h;

S$ 221-229, Merchant Marine Act of 1926, as_amended) :

668 1128 [§ 222) | : y ; ; pa

‘The. C ‘ommiissiont [ See- Nata: below) may insure

against loss or damage by ‘the risks of war, persons,

property, or interests, as follows: _.,- oe

(a)(1) American vessels (inelnding connate

under construction}, (2) y essels registered under the

law of the Philippine Islands, * * *

J (b) -Cargoes shipped or to -be shipped on airy

vessels specified in subsection ( (apse,

9

(¢) The disbursements (including sivnnnes to

masters and. general average disbursements) and

freight and p passage moneys of such vessels.

(d) The ‘personal effects of the master, ios

and crews of such vessels, eee

’

(ec). Masters, officers, and ‘érews of? such ves

sels * * *# against loss of ‘life, personal injury, *-* *,

(fp ‘Statutory or contractual obligations or other

liabilities of*suech-v essels or of the owner or charterer

of such vesséls of the nature customarily cover ed by.

insurance; * * ®,

: - * age oN

§ 1128d [§ 225]

In the event of disagreement as to a claim for

losses or the amount, thereof, on acconnt-‘of insurance

under sections 1128-1128h of this title, an action on

the claim niay be brought and maintained against

the United States i in the district court of the United

States sitting in admiralty in the district in which...

the claimant or his agent may reside * * *. Said :

suits shall proceed.and shali be heard and determined

according to the provisions ‘of sections 741-752 .of

this title [Suits in Admiralty Act, sections’ -1-12]

ea |

_ insofar.as such provisions are not inapplicable and

are not contrary to or ineonsistent with the pro-

visions of sections 1128-1128h’ of this title. All

_persons haying or claiming to have an interest in

such insurance, or who it is believed might assert

such an interest, may be made parties to such Shit,

either initially or upon the motion of either party.

'. In any case where the Commission acknowledges the,

-. indebtedness of the United,States on account of such

‘ -s INsurange, and- there mayl be-a dispute as to the

‘ person o¥ persons entitled! to receive paymerit, the ©

Tnited States. may-bring-an action in the nature of

a, bill of interpleader against the persons having

or claiming to.have any interest in such insurance,

or who itis believed might assert such an interest:

in the District Court of the Enited States for tne

“ Districteof Crag ages in the district court in- and

for -the district in which any such person resides.

In either of such actions any persen claiming to,

Have an interest in such insurance, or who it is be-

lieved might asseyt such an interest, if not an in-

habitant of orffound within the district within which

either: cf such actions is’ brought,’"may be bronght

in by order of the court to-be served ‘personally or

by publication or in such other. reasonablemanner

as the court may direct, and if it be shown to-the

satisfaction of the court that persons, unknown.

might assert a claim on account of. such tisfrance,

the court may direct service+1pon such persons un-

known by ,publication in the Federal Register.

Judgment in any such action shall discharge the

_United States from further liability to any parties to. _

' Such setion, and to all persons where service by pub:

lication upon persons unknown is pepe gl the:

court. ©The procedure herein provided shall apply

_ to all actions now pending against the-United States

“under +-the provisions of sections 1128-1128h, as

_~ amended.’’ he 4 |

[Nore: By amendment of March 6,.1942 (56 Stat. 140)

the Administrator of War Shipping Administration, was

given aufhority to insure ete., in conformity with Executige

Order No. 9054 of, FeWfmary 7, 1942. ]

>

=—

/

| q

19

_ Section 1 of the Joint Resolution of July 25; 1947 (61. -

Stat. 449, 450). Re ty ae ne .

ah ¥ : y ww

. « “Somer RgsoLution a

To terminate certain emergency

and war powers : ma

~” Resolved by the Senate and House of Representatives

of the Untied States of America in Congress assembled, —

That the following statutory provisions are ‘hereby re-

\pealed :

‘Act of June 29, 1940 (54 Stat. 689, ch. 447.) as amended;

® =. a ‘s

. * € 5/7, o

ww.

ae

Approved July 25, 1947.”

General Savings Staiute (61 Stat. 633; 1 U.S. C. § 109)

-**$ 109. ‘The repeal of any statute shall not have -

the effect to release or extinguish any penalty, for-

feiture, or liability incurred under such statute,

' unless the repealing Act shall so expressly provide,

‘and such statute shall be treated’ as still remaining

in force for, the purpose of sustaining any proper

action or prosecution for the enforcement of such -

penalty, forfeiture, or liability. The expiration of a

temporary statute shall not have the effect to release

or extinguish any penalty, forfeiture, ‘or liability -

incurred under such statute, unless the. temporary

statute shall so expressly provide, and such-statute

shali be treated as still remaining in force for the

purpose of sustaining.any proper action or prosecu-

___tion for the enforcement of such penalty, forfeiture, _

+ orliability:’? — 3 ,

Paes) )

*

“ Appendix 1

"Other ' insurance cases now pending in the. Southérn District of New York Srought under the

War Risk Insurance Act of June 29, 1940, as amended, in which jurisdiction after the repeal in 1947

as dependent upon the general savings statute, 1 U: S. Cc, $109: ae ao.

2 ‘> a | ' * ° ‘ :

Docket Name of . ee : Date ae Date of ' - Amount+

No. Case | Cas fe Loss | Libel - Involved |

Ad 131-343 American Hawaiian Total loss by enemy action “Tufy 29, 1942 July 8, 1944 $478, 897: 35 |

8S. 8. Co. v, United

é . States

_ (HonoLuLan.\ “ ie aia ee ca 7 ; ae

© 139-359 pAmerican Hawaitan Total loss by enemy agtion Sept. 13, 1942 Sept.12, 1944 © 344921.57

S..8. Co. vi United - ; A | , Gy tage ;

States. — . Kise

(OREGONIAN ) ie ate aay

‘433-112 American Hawaiian Collision and subsequent Oct. 9 and Oct. 9, 1944 25, 000.00

8S. 8S. Co. v. United loss by enemy action June 3, 1942 ies 489, so. 21

States

(MonTANAN) >. picey mee mee

8S 135-237 Calmar 8. S. Corp: C’Potal loss by enemy action Oct. 9, 1943 Mar. 13, 1945 65,000.00

v. United States pill <a s

| | (YORKMAR) : | ;

‘* 131-327 Hoosier Marine Corp.. ‘Total loss by enemy action July 10, 1942 July a 2 1944 41,618.92

‘v. United States: i ae . oe es

(Hoosier) — °° a8

* Settlement unilerstood to be pending in this ease.

Sl

06

Ad.

68

‘6

ce

‘é

té¢

Dock,

No.

135-299.

‘Name of

> Cen:}:..°:

Paxama_ Transport

Co. v. United States

. (Esso Betorum)

138-11.

“431,311

145-162

131-117

Panama. Transport

Co. v. United States

(J. H. Senior) -

Penama - Transport

Co. v. United States

(STANDARD)

8

Panama Transport

Co. v. United States

‘(Esso Batroay

Petroleum. Shipping

Company Ltd, v.

Umited States

- (Sranvaé Catcurta)

134-169

‘Standard Oil Co. of

N.J.v. United States

(Esso CHarLesTon)

7 '

Nature of —

_ . Casualty

Convoy collision

&

N

Collision

Collision

\

_ Total loss by enemy action June 6, 1942

Collision

coat

' Convoy » cerca .

Le

“

Bar

Date of {

Loss

Oct. 25, 1942

Aug. 18, 1943

July 4, 1942

| Sept. 19, 1944

ad

Déc. 31, 1942

%

‘©

€

“Dateof “ Amount

Tibel - . Involwed

Mar. 23, 1945 $1,500.00:

Aug. 17, 1945 - 4,365,100.00

(Damage to _

J. H, SENIOR ©

and crew)

19,452,562.00

(Claims

again’st

J. H. Senior

. by colliding

vessels)

July 1, 1944 — “50,00080~

to

a oad

Sept. 18, 1946 622,308.85

May 29,1944. 3635414.

x

Dee. 26, 1944 54,478.74

ee

cs

Docket

Ad. 131-124 ed 3

| J.v. United es!

135-298

135-336

13F-337

158-143

éé

“€6

«sé

éé

137-6 ©

| 139-313

139-326

my €

131-223"

Name of

(EK. T. Beprorp)

Btandord Oil Co. of.

N.J.v. United States

(F. Q. Barstow)

Standard Oil Co. of

N.J.v. United States

(Esso MannaTTan)

- and cross suit

- Standard Oil Co, of

N.J.v.United mere

(Beacon) ,

Standard Oil Co. of

N.J.v. United States

(Watace E. Pratt)

Standard Oil Co. of

: N.J.v. United States

(Watace E. Pratr) ©

States Marine Corp.

v. United States -

_ (KEyYsTone)

134-233

&

‘Robert T. Welsh ‘v.

United States

( AIGRETTEE)

N ature of

‘Casualty.

Damage by enemy action

Convoy collision |

Damage from mine

Conv oy collision .

ee

e

' Convoy collision

Collision ©

Total loss by enemy action Mar. 13,

Total loss by enemy action Fey.

a

- Oct. 25,

"Mar. 29,

: June 15,

' Date of

Loss

May 31, 1942

1942

1943

VY

Date of ©

Tibel

: mA .

“May 31, 1944

Mar. 23, 1945

Mar. 28,

and Oct. & ef

1948 (Consoli-

» dated suit)

, 1943

1, 1943

1943

, 1943

1993

June 14, 1945

Nov. 24, 1945

Nov. 26, 1945.

July 6, 1944

Jan.

1945

5, 1945

Amount

Involved

$30,000.00 —

\ 5,500.90

of U.S. A.)

~ 42,000.00

~ 15,000.00

15,000.00

245,129.64

7,500.00

50,000.00:

‘ (443,567.96

eross-claim .

re