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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1953
- **Citation:** 344 U.S. 386

## Text

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

é ‘ " P , : *
~ 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

. @&

i e Z
\
a . : 1 Veet
+ ; ‘

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.

,

tea ? a
= .
85 UO . A
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ee .
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nd Pe a ’
s

\IN THE

*Supreme Court of ‘the United States
October Term, 1952

ar a4 No. Le 73) ne

/

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.

VS

SY) : ;
4 . if . s mm

‘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.)., — = . %

S

‘\ wos 4
~= ~ ki ’ ° Q
\ .@

‘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):

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
* : > in d

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.

=—
/

| 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 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0193%3A2. Public record. Not legal advice.