Brief for Petitioner — De La Rama Steamship Co. v. United States

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SUPREME COURT. U. a

eee ee , = | Nec 26. 1992 |

A SMe aoe IN THE - oy cant

SUPREME COURT OF THE U ED STATES ae

OCTOBER TERM, 1952 Nhe ea ses Se

No. 368

THE DE LA RAMA STFAMSHIP COMPANY, INC. *

: Petitioner

vet I oy ad against

UNITED STATES OF AMERICA

; Respondent

_ON W RIT ‘OF CERTIORARI TO. THE UNITED STATES COURT OF

APPEALS FORsTHE SECOND CIRCUIT

— ——— — coed a

BRIEF FOR PETITIONER

ROSCOE H. HUPPER

Counsel for Petitioner

27 William Street

New York 5.N. y.

_ Harotp M. Kennepy

~ 'NorMAN M. Barron

Hervey C, ALLEN

= Sars. of Counsel

December 24, 1952

Got Wm 6 8D Re et

Opinion Bruow. ...... EE Py fe Pa

wa ’ f a

JURISDICTION «4.2.0... 0... Koy sce ere ene eee

error Pmanbertan os, dss ok ae

Statutes INvoivEp +..9. 0 SR 60. Oe we ‘i, i ee zi OO 9 88 6s ee « ‘eee

inner nes Spon te wa ele hy yee Pree eee

Sreciricév10on or Errors....._. eee eee yo mOek ea.

SuMMary OF ARGUMENT............., Pceedeeweane

ARGUMENT ........ wetiens's deren atheees ee eee aie

1. The general savings statute (1 U. §. C. 109)

~ efféetively Preserved not oily the insurance

ance stdtute but also the «istriet court juris-

dicti conferred by said-statute to enforce

' such liability BUEN See ge ad ep a a

~“

i ne iit ht under the‘repealed insur- -

3. The insurance statute was not a “‘merely

_ procedtral statute’? as to’ which §109 ad-

mittedly wou Id have no-application. ......, :

4. The decision of the court below is in conflict

with appiicable decisions of this Court... *e

5. All the equities favor the literal—likewise.

reasonable—application of § 109 advocated

by the petitioner. .. Sine wae PERVae eee eee s

, 6. Tn any event the district court continued to

have jurisdiction under the Suits in Ad-

miralty Act ......., SSSCPONS SRS Se Rab anaes |

Cemeiaen 3 sD sierra ae

3 it

"PAGE

APPENDIX IL -Other } insurancé cases now. pending in

the Southern District -of New York brought

under the War Risk Giocabitaeney Act gf: June 29,

1940, as amended Sr dca ceduscen ee becue 29

oes a. f _° Authoritiés

Mathes The,. gs: Fr ile 815, supplemental

ee decision 92 F. Supp. 785; ; afirmed, 191 F. 2426 _

_ (2d Cir. 1951) ; cert. den,, i: us S, PA 6s sec ae

aac United States, 343 U.S. 112 saat. 6 13, 14, 20

Byonnes, N. S. & Son, ete. ¥. ere Stites: 298 et

F.. 123 (S. D. N. Y.: ;L. Hand Re} 22 -

ules Steamship. Corp. v. United States 197

_ F. 2d 795, 802 (2nd. Cir. 1952), cert. granted

Oct. 20, 1952—No. eee aegis 24

i Dabimedicg v. Land, 186 F. 2d 386 (2d Cir,, | 5

etl cert. den. 341 Ds Whe Vas edo: ee

Eustern Piao Co. v. United: States, |

' 272 U.S. 675, 689 et ‘es DERE COUT Ce eer nan 22

Epstein vy. United States, 86 find Supp. 740, 743,

(S. D. N. X. 1949) PEERS ess, cp bis pote ure Tee aa

Great Northern Ry. Oo. v. L pushed States, 208 |

U. ee MO OO Seri Cee higcger ce Re 15

Gregory ¥ v. Unitéd States, 187 F. 2d 1101 (2a Cir

Soph WONT Sse ee TTT PS en ays 3

econ @ ”

Ml: e

. « : F . }'

Os ‘Pkhe

Hallow ell v. Commons, 239 U 8. 506, 508 6 nite 6, 12, /\4

Insurance Co..v. Dunham, 11 Wall. 1, 21 ee, Se

" Insurance Co. v. Ritchee, (20, Gl ri 14

Jeffcott v. Aetna Ins. Co., 129 F. 2d. 582°(2nd Cir.,

BOER sy rye ess teak Se eee ++. 8,21

‘Levine v. United States, 80 Burp. 674, 679 | :

ACK Cl. 1948), cert. er 336 U.S. 936 ...... '. 18, 20

hia Navigation Co. v. United ‘St tes, 284

U.S. 352, 357 pais aeigk wpa ee ewe els is sialon 8, 22, 23

National Bulk Carriers v. United Stateq('The .

' Virginia), 169 F. 2d 943, 950 (3d Cir. 1948) . “20

_ North German Fire Insurance Co. 'v. Adams, iso

F. aot (7th Cir. 1905) revels, 6 le 04's « meee ce 21

150 ‘Bast 47th Street Core: v. Poviee 156 F. ad |

O41 (EK. ee er: re tees Ae eS 18, on

Reinold v. United States, 167 F. 2a 556 (1948), °

reversing on the merits 72 PF. Supp. 92, cert.

den. 335 U. S. 824 Therese eset eeeeeteeeeenes . 3

‘Standard Oil Company.of N. J. v. United States,

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

1949) secre Scere tes teeceeceseee 3,14

United States v. Ca, 171 F. 2d 530 (5th Cir.

(1948) Sea 6. 6.08 Coan ETS WORE Soe Moe 16 |

3), affirming 185° F. "94: 608, 611 lat Cir. |

BO). oa Sah oS see Bebe wa Lun ee 6, 15, 16

United: States v. Kromer (No. 1101),. 330° U. 8. Fone

1 ee cee are, J EEO eR. 6, 15, 16

= a Se PAGE

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

Cir. 1949) OCR Seni ea ied ose ekc sis Vee ceces 18

United States v. McNair, 180 F. 2d 273 (9th Cir. ,

OS CREE an ook Ue Sa a er ea

United States v. Obe rmeier, 186 F. 2d 243 (24

Sear eS a te en 14

United States v. Palletz (No. 1100) 330 U..8

ey eee Me icant eh ao

-Onited States v. Seg 128 U. ae 15

‘ >. United States v. See, 194 F.. 2d 100 (9th Cir.

pele (1952) ef E LIES ES Pa Te eeee 16

_. «United. States v. The Thekla, 266 U.S, 328, 339- |

eer re ee ee 19

United States v. Valeneuela, 95 F. Supp. 363

EE SE oS | SE | 5 a a ae:

United States v. W heelbarger. (No. 1334) 33 vA

es ass koe ce bn os 15

United States Lines.v. United States 2S, 92, F'.. Bupp.. 7

i CSS 9 Ee ae 24

Western Maid, The, 257 U.S. 33 Ys Sar 21

Woods v. Hills, 334 U.S. ane mG iG... ~..>4.6,87;18

‘ j

P sf

Statutes: _ ! PAGE

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

{56 Stat. 23 (1942) ; 00 U.S. C. App. (Supp.

V, 1946), §901(b); Act’ as amended June 30,

1945 (59 Stat. age ROT Ce te eee see 7 st 16, 17,18

“General Savings Statute vo ae

(1U.S.C.§ 109) .....2, 4,5, 8, 9, 10, 11, 12, 13, 17, 19

. Housing and Rent Act of IO GO tay eo 16

Housing and Rent Act of 1947, §1(a) [61 Stat.

193; 50 U.S. C. App. (Supp. IV), § 1881(a)] 9,15

) 17

; : ; 16,

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

WO ea ee Sth dR oaths ee tee 4,14

Suits in Admiralty Act (41 Stat. 525-528; 46

rRNA TMETOSY ok, oy reece 2, 4, 8, 21,23

Title 18 U.S, O2231 UGA eh pee ak es 16, 17

See BOARD 8. ss cL. 16,17 ~°

Title 28°U. S. C. §§'1500%nd'2516 ...... yee Rew ee ie

' Title'28 U. 8. ©, 2411(b) .. 7.2... orc rere - 20

War Risk Insurance Act. of June 29, 1940 (54

Stat. 689) as amended [46 U.S. C. (1940 ed.) |

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

as amended, §§ 221-229]... /........., 2, 4,5, 8,.9, 18

§ 112M, Title 46 U. 8.0... 2.0.2... 00.5, 9, 28

$ 1128d, Title 46 U.8.C.-/;......../. 3, B 9, 21, 23

War Risk Insurance Act-of September 7, 1950 ~

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

Sen. Doc. No. 42—80thh Cong. Ist Sess. (1947)... 12

_ - Sen. Rep. No. 399—80th Cong. Ist-‘Sess. (1947) ., 6,12

or . OB inne ae

_ Supreme Court of the United’ States ;

| accel October Term 1952. cae See

No. 368

' Tae De La Rama Sreamsutp

Company, Inc.

Petitioner .

against

. Usitep States OF ele ‘+.

sae

¥ On Writ of Certiorari ¢o the United

States Court of Appeals for the

_ Second Circuit.

orp ren peer cht eng atcichomentingrevirems eases swrenerseuae. Libedecanic lal

‘- . -

€ ©

BRIEF FOR PETITIONER

Opinion Below

The opinion of the Court of Appeals for the Second

: Cire, (R. Aji is reported at 198 F. 2d 182.

Jurisdiction

The Court of. hpaeale? order (R. 89) denying peti-

_ tioner’s timely petition for rehearing of said court’s judg-

‘ment entered July 2,-1952 (R. 77), was entered July 29,

1952. ° The’petition for a writ of certiorari was: led Septem-

ber 30, 1952 and was granted November 17, 52, limited

to the question of the jurisdiction of the. diatrict court

{Southern Distriet of New York). The jurisdiction of this

Court rests on 28 U.S. C. 1254(1).

Question Presented : wes

‘Did the,repeal July 25, 1947 of the War Risk Insurance

Act of June .29, 1940, as amended, which repeal made no’

reference to pending stits, divest the district court of juris-

diction of this then pending. suit, which had been properly

brought in 1944 under said statute for. the recovery of

Government war risk insurance? *

Or (as petitioner earnestly gubmits) was not the juris-

diction of the district court preserved by operation of the

‘general savings.statute (1.U. S. C. 109) in relation to the

repealed statute, or in any. event under the Suits in‘

Admiralty Act? : if Ge aie

Statutes | lved. Le EN

The relevant portion of the general savings statute (61 ©

Stat. 633; 1 U.S.C. 109) pro

iled

: \

109. The repeal of Statute shall not have

Abe effect to release or extinguish any penalty, for-

Yfeifure, 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. * °.°9*. -.

Relevaylt portions of the War Risk Insurance Act of June

29, 1940 (54 Stat. 689: 46 U.S. C., 1940 ed., 1128-1128¢;:

221-228; Merchant Marine Act.of 1936), as amended; the

Joint Resolution of July 25, 1947 (61 Stat. 449, 450) repeal-

ing said insurance statute; the Suits in Admiralty. Act (41

/ Stat. 525; 46 U. S. C. 741-752); and.the full text of the

general savings statute (1 U. S, C. 109)", are'set forth in

Appendix I infra, pp. 25-28, ed seiss

* Section 13, Revised Statutes, originally enacted as § 4 of Act

of February 25, 1871 ¢. 71,16 Stat. 432, formerly VU. S. C. 29.

On July 30, 1947 this section, as amended, was enacted ‘as 1 U. S. C.

109 and is referred to ihroughout.this Brief as **§ 109””,

Statement _

The steamship Dona Avrora, owned by the petitioner,

a Philippine corporation, was torpedoed and sunk Decem-

ber 25, 1942 while under - -requisition time-charter and

| covered by Government war risk insurance under the June

” 1940 Act, x an amount and at a valuation measured by

‘just compensation’? (R. 41-44). ° .

When the parties could né® agree upon the ‘ just com-

pensation”? to which it became entitled, petitioner filed its

libel: December 22, 1944 in the district court pursuant to

‘the War Risk Insurance Act of June ~ 1940 [§ 225, Mer-

‘chant Marine Act of 1936, as amended; § 1128a, 46 U. S. C.].

In Oetober 1948 the court cara the valuation issue

(R.. 32); extensive hearings were held before the com:

- missioner, ending in N ovember, 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. By grder dated August 4, 1950 (R. 36). the district

court overruled the respective exceptions of the respondent _

and libeilant (R. 33, 35) and confirmed the commissioner’ Ss

valuation (Opinion, 92 F. Supp. 243).

7 Not until the trial, March 6-7 , 1951, did the Gavornant’

contend, then for the first-time, that the repeal in 1947 had.

_ divested the district court of Jurisdiction of this. suit.*

* The Government refrained from making any such contention ©

to the Second Circuit on the argument of its appeal May 8-9, 1951

in a similar suit under the same repealed insurance statute to re-_

cover for total loss of the Alaskan [Th¢ Alaskan, 85 F. Supp. 815; .

supplemental decision, 92 eh 785 ; affirmed; 191 F. 2d 26 (2d

Cir. 1951), cert. den. 342 U. S. 941].. Prior to its decision herein

said court had disposed of sev a war risk i insurance cases on their.

merits after the repeal of the very same insurance statute which

is involved here, e.g. The Alaskan, supra; Standard Oil Co, v, United

States, 178 F. 2d-488 (1949), aff'd. 340 U. S. ge erences v.

Land, 186 F. 2d 386 (1951), cert. den. 341 U. ; G¥egory V.

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

4 ie

¢ The district court held that by virtue of the general

savings statute--there being no language in the repealing

statute indicating a contrary intention, jurisdiction con.

tinued for the purpose of determining a Ae liability saved

. by the general savings statute (R. 51-54;®8 F. Supp. 514 -

at 518-519). Accordingly, a final decree was intesad July

6, 1951 (R. 62) awarding petitioner $1,476,377.38 based on

the Commissioner’s valuation, after adjustmept for pay-

ments on account in April may 1947, plus intdrest hie as °

specified therein. :

The Court of tile however, held on.appea! that . -

although the insurance statute remained in force so far as

substantive liability was concerned, that intrinsic prevision -

of such statute which authorized the filing and maintenarce

of the present suit waXrepealed and the district court war

théreupon deprived of jurisdiction to continue with the

suit to enforce the s * liability (R. 74; 198 F. (2d). 182

- at 184-185). The deere ot the district court was thereupon —

reversed, with directi that the libel be dismissed for

want of jurisdiction (R. 77, 90).

oi Specification of Errors

The Court of Appeals erred:

eae holding that the jurisdiction of the district court

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

under which the suit ‘was properly commenced in December,

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

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

infra, p. 27); and that ‘such jurisdiction was not preserved

by the general savings: statute (1 U.S. C. 109; are 3,

infra, p. 27). :

Regardless of the repeal of the insurance statute in 1947

it is also submitted that the district court continued to have |

jurisdiction under the Suits 1 in Admiralty Act (46 U. S.C.

741-752).

a) . 5

f "ae P < .

‘Summary of Argument

# The court below applied the geperal savings statute

too narrowly; it failed to give effect to the portion thereof

which clearly sustained district court jurisdiction. a

The insurance statute was repealed’ as a whole (61 Stat. .

"449, 450; Appendix I, infra, p. ‘97)—both the provisions: -.

whéreunder liability was incurred (46 U.S. C. 1128, 1128a)

and thé intrinsic provision thereof conferring junaliction

on the district eourt (1128d).

Alihough the court below recognized* that- the i ing

words of the general savings statute: + he

‘The repeal of any statute shall not have the

effect to release or extirguish * * * any liability i in-

curred under such statute, oes ee }

savdd the insurance ‘liability, ’* it treated as though non-

exi ent or inoperative the further provision of 1 U. me a

: a Pers |

“«* © * and such statute shall be treated as still re-

maining in force for the purpose/of sustaining any

proper te or prosecution for the enforcement of

such. *'* * liability [1.e. liability incurred under such

statute]. sat GRE . e

Since district court ‘jurisdiction had bedn conferred by |

-an intrinsic provision of the ‘‘statute’’ repealed, it seems

-inescapable—considering the express language and the

remedial purpose of 109—that the insurance statute in its

entirety must ‘‘be treated as: still remaining in force for

the purpose of sustaining’’ the present action, which hdd

been. properly’ instituted under the repeaied statute. Such

interpretation gives plain effect to the portion of 109 which

the court below disregarded.

6 reer

° oe

Petitioner's view is strongly supported by the decision

of the Ninth Circuit on the identical point [United States

v. McNair, 180 F. 2d 273 (1950)] which was followed by

the district court (R. 53), but net by the Court of Appeals.

2: ‘The legislative purpose of the repealing Act was

merely to terminate the Government’s war power to write

marine ‘war visk insurdnee [Sen. Rep. No. 399 and H. R.

Rep. No. 793—-80th Cobg. Ist Sess. (1947)).. It looked to

the future, not to the past...

3. The court below cracuenaae based its vd 3 on

| Sp holding that the general savings statute dees not: save.

‘‘merely jurisdictional statutes’’. Hallowell v. Commons,

239 U. S. 506, 508; Bruner v. United States,.343 U. S. 112;

ete.. Such authorities are clearly distinguishable and inap->

plicable since the repealed ‘statutes therein involved merely

conferre@ jurisdiction on a particular court and did not,

as here, likewise create the substantive fiability.

4. The construction of the! general ‘savings sbabke

adopted ‘‘most reluctantly’ by the court below (R. 77)-

appears to be contrary to applicable decisions of this

Court in analogous situations, e.g., in price control and

rent control cases where jurisdiction with respect to occur-

‘rences prior to the termination date of the respective stat- ”

utes was held to be preserv ed :by the general savings stat-

ute, or by similar sav ings clauses in the terminated statutes,

United tates v. Kromer (No. 1101); United States v. Pal-

_ letz (No. 1100), 330 U. S. 812; United States v. Fortier, 342

U.S: 160, 161 (fan. 3); Woods ¥. Hills, 334 U. Ss. 210, 214-

217, ete.

” 150 East 47th Street Cirn v. Porter, 156 F. 2d 541 (EK.

C. -A. 1946) also supports petitioner’s position, notwith- -—

standing © the effort of the court below to distinguish it

because of the ‘‘complex inter related j jurisdictional set- -up”’,

or because there was no statutory authority for any other

court to entertain that suit (R. 76). Jurisdiction was

preserved in the Porter case because it was ‘‘heyond doubt*’

that the situation came within the literal terms of the stat-

utory savings.clause [156 F, 2d 544]. The meaning and

application of the general savings statute cannot depend

on how it may work out in different cases, or upon the“

dégree of complexity- in the situation.

5. The harsh and illogical half- way application of the

general savings statute by the. court below, resulting in

dismissal of the libel, would relegate petitioner after having

secure 1a final decree in the district court uncontested as to °

jurisdiction, :to years of further litigation in the Court of .

Claims where adequate relief j is apparently lacking. The

prohibition in that court against interest prior to ipdgine nt

(28 U. SC. § 2516)—if applied in this ease, would wipe out

substantial interest. accrued “before the repeal of the in-

surance statute, as well as thereafter while the Government

continued to litigate the ease solely on the merits.

The decisior below would also baye a devastaling etfect

on many other important ‘pending litigations in the Second

Cireuit involving Government insurance based ga the same

repealed insurance statute, and where recourse {o the Court |

of Claims apparently would be time-barred in many ine.

stances (see Appendix IT, infra, pp. 29-31).* ean |

All prejudice to petitioner and to others. similarly

situated—as well-as to the Government—would he’ avoid

by'the literal, likewise reasonable, application of the general -

savings statute advocated by petitioner.

6. Th e Government 's liability stemmed from the insur-

ance provisions of the reguisition time- charter - of the

- Roy teRbe pe titioner had filed a precautionary suit in: the

Court of Claims in December, 1948, within six years after the loss.

Our check-up indicated that.very. few other protective suits had

been filed in the Court of Claims-—very likely in view of the threat

implicit in 28 U.S. ©, 15 000. ‘

ty nes one ey ; fee

Beas ‘Konoai ‘aha the forimal binder issued thereunder.

Th liability would appear ‘to be enforcible in any event *

“in the district court under the Syits in.Admiralty Act (41 _

Stat. 525; 46 U. S. ©. -741). ‘Whe Dona’ AURORA . was

operated by petitioner ‘‘for’’ the. Gov yernment and ‘was em-

_ ployed as a-‘merchant vessel” at’ ‘the time of her loss (R. .

“41, 43- 44), Petitioner’ s cause of action was to. ‘recover

on ‘the Government’ s mariné insurance undertaking with

respect to a vessel requisitioned: on time- charter basis,”

and beifiz privately operated a ‘proceeding - in admiralty © 4

4m personam could have been. maintained. atson Navi- -

gation Co. v.-United States, 284 U.S. 352; ; Insurance Co. ae

v.. Dunham, 11 Wall. 1, 21; Jeffca tt v. “Adina Ins. Co., 129 -

F.2d 582 (2nd Cir., 1942), All the prerequisites for: suit. -

’ ‘against the United States under,the Suits in Admiralty Act

: appear to have been fully met in ‘this case.

aes aes, “Argument ,

Khe cent savings ‘statute (1 U. S. C. 109) effec:

-“threly preserved not ‘only the insurance liability incurred

under. the repealed insurance statufe but also the district

court jurisdiction conferred by sald statute to enforce such

liability. @ |

e basic e: error. in the decision telow 1 is thy court’s treat-

* ment of Section 225 of the Merchant Marine Act of 1936 -

“as amended (46 U. S.C. 1128d) as ‘a ‘‘statute’? separate-

and distinct from the other component sections of the War

Risk Insurance Act of June. 29,..1940. (46 U. S. C. 1128-

1128h). ‘That insurance statute as a whole was added to

said Merchant Marine Act of 1936.as a new and ‘Separate

Subdivision thereof on Insurance.

Said Act of June 29, 1940. (the insurance:statute) did

‘not consist of a number of separate ‘‘statutes’’ but was a

ingle statute made up of closely integr ated provisions, in- is

Cetuding’ Section ” > Bac NE ae

& cs pas ey wh . Px Saas

Cee: mt . ee *

“'The- Government’s insurance - Tiability was incurred .

der such insurance statute. But said statute also, in

ection 225, one of its integral provisions, conferred exelu-

> give jurisdiction on the district court through the medium

- under which substantiv

of the Suits in ‘Admiralty Act,—all as part and parcel of

the well considered statutory plan and. purpose. _

The court below pointed out correctly that the general

- savings ‘statute ‘‘applies only to those repealed statutes

which impose * * *Jiability’? and that ‘‘only such statutes’?

are continued in force after the repeal ‘‘for the purpose of ~

sustaining any proper action * * * for the enforcement of —

, ‘such * * * * liability’? (R. 74). This would seem. conclusive

-in petitioner’s favor. The court had-no warrant for its

immediately ensuing coriclusion that ‘‘The reference is thus

‘seen to be only to those provisions of repealed statutes

oats have. been: noqetred” (R. 74;

-eriphasis supplied).

Section 109° provides hat a repealed statute under

which liability was incagfed is to be saved, and is to be

treated ah comeing in force to sustain any proper action

for the enforcement of such liability. It does not purport’

to save only ‘‘thoséprovisions of repealed statutes’’ under

which liability has been incurred, to the exclusion of those

providing a ‘remedy. The court read into the savings

statute words not found in the, statute nor suggested by

its Purpose. |

The court below failed to appreciate the significance of

the fact that although petitioner’s insurafice rights and the

Government’s corresponding liabilities: were respectively

acquired and incurred under certain provisions. of the re-

- peated insurance statute (Section 222; 46 U.S. C. 18a),

that self-same statute by other intrinsic provisions thereof

. (Section 225; § 1128d) conferred district court eer chats

as the statutory remedy. : |

The repealing Act: of July 25, 1947- 61 Stat. 450) did

not pick out Section 225 as a “statute”? to be repealed, but

fi rs

Ree yy.

2 hy a

the contrary repealed the insurance statute as a whole:

e ‘‘Act of June-29,1940, as amended’’. Consequently the

repealed ‘‘statute’’ was preserved by § 109 not only as to

s ‘‘Hiability’? but also inevitably as to jurisdiction of this

’ “proper action * * * for the enforcement of such °*,* °

liability”’. Onjiy such interpretation gives effect and mean-

- ing to all parts‘of § 109.

If §109 was merely aimed to preserve ‘existing liabili-

ties under the repealed statute, this was Felten cnc by

- the language: .

“The repeal of arty oie shall: not have the

effect to release or extinguish any * * * liability in-

..~ > urred under stich statute °° °.”? ow

3 Me 4 .

3 There would. have been no need to add the further

language : Bn |

{

“eee and sack statute shall be treated as still re-

maining in force for the purpose of sustaizing any

proper action * * * for the enforcement of such * * *

We) sd

There i is therefore no warrant for. any departure from

the plain and usual meaning of ‘‘stajute’’ as said word is

used in the general savings statute. Since the remedy is

to be preserved by treating the repealed statute as ‘‘still

remaining in force\’ for the enforcement of. the saved lia-

- bility, it-is clear that the remedy provided under the insur-

ance statuté—in this case, the setion i in: the district’ court——

was ‘preserved.

_—~,

.Our proposition j is that “statute”? as used in § 109 means

tatute’’ and not something different and that where, as _

| sg Siogerky ‘statute’? both created the Government’s lia-

bility and conferred exclusive jurisdiction on the district —

ae _ court, § 109 preserved both the liability and the specified ©

remedy. This conclusion would appear to be compelled by

all standards-of statutory construction, likewise by every

applicable sat furthermore by the inherent equities.

ok:

There is mn a word in § 109 ‘eid ceupbeite. that where

it is operative with respect to a statute anything less than

that whole statute i is preserved. 7 cs

Contrary to the decision below, the Ninth Cireuit Court

of Appeals in United States v. McNair, 180 F. 2d 273 (1950). =

, Gecided. that notwithstanding the repeal of this same in-

surance statute the jurisdiction of the district court had

. been preserved by the general savings statute, In deciding

the question of jurisdiction which it had raised sua sponte,

the court said (at 274) :

“We are of the opinion that the liability hese:

ip after stated hawing.been incurred by the United

fs States prior to the repeal of the Act of Ju ne 29, 1940,

< . the right of recovery therefor continue

under 1U. S. Cc. 29 [now. 109]’’. BART

Accordingly, that court affirmed (with jmmaterial mod-

ification) the district court (District of Washington)\ decree

in admiralty for war risk recovery based on the repealed

statute, both as regards liability and jurisdiction.* |

2. Purpose of. the repeal was only to end certain 'W

"powers no ig necessary or appropriate to exercise.

_ There is nothing in the repealing Act evincing ahy

. legislative purpose or intent to minimize the saving effect

of § 109 or to deprive the district court of jurisdiction of

, any+then pending insurance actions under the repealed |

statute. To the contrary, the legislative history of the-re-

pealing Act shows that the repeal was not related to juris-

- diction. ° | i a

* The district court herein properly relied on the Meher case

in sustaining | jurisdiction (R. 53).

There is no warrant for the suggestion ‘by the court below (R.

75) that ‘‘it may well be’’ that. the Ninth Circuit ‘thougbt’ that

jurisdiction was” sustainable under the Tucker Act. Neither the

Tueker Act nor any other alternative basis of jurisdiction was re-

ferred to.

12°.

As indicated by. its title and the \Committee reports,

“the purpose of the repeal was to effect “termination of

| war and emergency powers no longer considered essential

to the war effort’’ (Sen. Rep. No. 399’ and\H. R. Rep. No.

.799—80th Cong.’ ‘Ist Sess. [1947]). As tothe ‘insurance .

‘statute, one of the many: war power statutes\repealed, the

Department of Justice had advised the, Sehate Judiciary

Committee (Sen. Doe. No. 42, 80th Cong. Ist Sess. [1947]) :

““Phis statute may be repealed: inasmuch as the

_ authority provided thereunder is no longer needed

and its pa rouyenees is limited’ to the present war’”’

(p. 88)..

The word authority obvibusly referred to powers’ in the

executive, not in the judiciary, and the time limitation—

‘*the present war’’—could refer only to the creation of new

obligations, not ‘to the settlement of existing ones.

Thus the Congressional | purpose in relation to the insur-

ance statute looked to future conditions only, and did. not

purport to touch pending litigation.

3. The insurance statute was not a ‘‘merely procedural

‘ statute’ as to which § 109 cuanto wosld have no

Senate: | ‘‘ |

The misconception of the éourt below (R. 74) is manifest -

from the authorities it cited. They were cases where the

repealed statute (or statutory provision) was merely a

jurisdictional statute (or provision), not, as here, a statute

under which substantive rights-arose with intrinsic provi- _

- sion in the’ same statute as to jurisdiction to enforce such

substantive rights.

Thus in Hallowell v. Commons, 289 U. 8. 506, the repeal 7

dealt specifically and solely with the statutory provision

relating to jurisdiction. It took away the jurisdiction of

the courts to determine the heirs of an intestate Indian

allottee and expressly vested such jurisdiction in the Secre- .

BO ie Ces

tary of the Interior. The repeal there did not affect or

purport to deal in any manner with; substantive rights or

liabilities created by or ‘‘incurred under’’ other provisions.

_ of the basic ——— were not-altered. That repeal

had nothing to operate on except jurisdiction. This Court

therefore held that the general savings statute could not

apply. In the language of: Mr. Justice Holmes the repeal

'**takes away no substantive right but simply changes.

the tribunal that is to hear the case. In doing so it —

evinces a change of policy, and an opinion that the

rights of the Indians can be better preserved by the

quasi-paternal supervision of the general head of

Indian affairs.’ |

Bruner v. United States, 343 U. S. 112, was an even

clearer case for non-application of the general savings

. statute, since there the sibstantive liability was incurred -

under statutes [5 U. S. C. 43; 56 Stat. 1068 (1942) ; 57°Stat.

~ 75 (1943)] entirely separate from the Tucker Act, which

‘merely conferred jurisdiction upon the district court con-

eurrent with the Gourt of Claims. - . a

The repeal in Bruner related only to the jurisdictional

provision in the Tucker Act which-had conferred such con-

current jurisdiction.. There was no basis therefore for any

- contention that, with the saving of a substantive statutory

right, an intrinsic enforcement provision was also saved.

Accordingly, this Court had no choice but to apply the rule ©

that when a law merely conferring jurisdiction is repealed,

without reservation as to pending cases, ‘‘all cases fall with

the law’’.. The Court made it cleat, however, \that the

“general savings statute’’ (4109), was inapplicable. only

because’ ss Be EN : Ba Syrian

‘‘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 to hear and determine such rights and —

liabilities.’’ (117) :

Insurance eicea's v. Ritchie, 72 U.S. 541 also involved

an amendment relating only to jurisdiction. Moreover, it

was decided several years before the general savings | statute |

was enacted in 1871.

~ The _foregoing decisions relied on by the court below

could 1fot be deemed analogous unless the repealing Act

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

had repealed only Section 225 .(1128d), with the other | sec-

- tions of the Act of July 29, 1940 left unaffected. * Then—

- and only thén—could Bruner or Hallowell be i in point.**

| 4. The decigjon of the court below is in conflict with

Seren decisions of this Court. » ail

We are nok aware of any decision since the enactment

ef the general savings statute in 1871 holding that upon.

repeal of a statute creating a substantive liability and also _

conferring jurisdiction for enforcement of the same, the

savings statute. would operate to preservé only the sub-

stantive liability but not the statutory remedy to enforce it. .

This Court has definitely and consistently indicated that.

in such situation the statutory jurisdiction, as well as the

liability, survives the repeal. vie

07; 8. v. Obermeier, 186 F, 2d 243, 951 (2nd Cir, 1950) obvi-

ously has no application. There ‘‘the pertinent substantive section, ~

8 U. S. C. A. § 746(a) (1), under which defendant was. indicted,

was not repealed’’ (251). Only ‘*§ 746(¢)—the statute of limita-

tions §_ pertaining to offenses under § 746 (a) (1) —wai repealed”.

of Force -is given to our argument by. the fact that in several

instances the Joint Resolution of July 25, 1947 repealed-only a

particuldr ‘*section’’ of a statute, wheread it repealed the entire

insurance ‘‘ Act of June 29, 1940 as amended ”’.

+ This Court on writ of certiorari to the Second Circuit,

Standard Oit Company of New Jersey v. United States, 840 U..S..

54, affirmed on the merits 178 F. 2d 488 (1949), wherein liability

and jurisdiction ° depended solely on the same insurance statute,

previously repealed,—although the question of Jurisdiction was

not specifically raised by counsel. What justification could exist

for deferring the “‘question’’ te the ease here at bar, does not

appear.

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

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

commenced August 29, 1946 in the disfrict. court-to 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. S. C. App. (Supp. V 1946),. § 901 et seq.

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

ferred by § 205(c) [50 U.S. App. (Supp. V) $925(e)}.

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

306), terminated June 30; 1946.* The district court dis-

missed for want of jurisdiction. On appeal this Court

reversed per curiam, 330 U.S. 812, holding, as the authori- °

ties therein cited show, that distiiet court jurisdiction was

preserved by the general savings statute [R.'S. §.13, now

~ § 109] as well as by the corresponding savings clause [1(b).

as amended, 50 U.S. C. App. (Supp. V 4 $901 (B)} in

the repealed statute:

‘*The judgments are reversed. 56 Stat. 23, 24, §1(b).

as amended, 50 U. S..C. App. (Supp. Vv, 1946)

§ 901(b); R. S. § 13, as EbSTA hg 58 Stat. 118; Great |

Northern R. Co. v. United States, 208 U. 8. 452;.

United States v. Reisinger, 128 U. 8. 398.”? :

’ This decision was followed in United States. v. Wheel-

barger (No. 1334), 331 U.S. 791.

In similar proceedings under the Veterans Emergency

Housing Act of 1946 (60 Stat. 207, 211, 50 U. S. C. App.

§ 1821 et seq.) which had been repealed by §1(a)' ofthe

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

' App. (Supp. IV), §.1881(a)], this Court, affirming the court

below, indicated clearly that as to transactions occurring

~ before such repeal the general savings statute would pre-

serve both the liability and the district court. remedy pro-

vided by the repealed statute. United States v. Fortier, 342

e de month later the Act of July 25, 1946, ¢, 671, §1, 60 Stat.

664, purported’ to revive the Price Control Act until J une 30, 1947, .

but it is clear from the record and briefs in this Court t at the

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

cases being argued.and decided on that basis. |

16 |

U. S. 160, 16% (fn, 3), affirming 185 F. 2d 608, 611 (1st Cir.

1950).. See, United Sigtes v. See, 194 Fk. 2d 100 Be

+ * Cir. 1952). .

-In the Fortier case, supra, this Court i in effect held that

no ‘‘ ‘liability’ had been incurred under the 1946 Act which -

_ would survive repeal under the generat Savi ings clause, 1

Sao. (Supp. IV) § 109’ only because the sale of re-

spondents’ houses had not been made until after the repeal. |

Reference, by way of comparison, to United States v.

Carter, 171 F. 2d 530 (5th Cir. 1948) indicated clearly that —

if the liability had been incurred under the 1946 Act before .

its repeal, the district, court would have had jurisdiction

by virtue of the genéral savings statute. 3

‘It is noteworthy that in the Carter ‘ease, at 532, the

Fifth Cireuit Court of Appeals had characterized. § 109 as

‘‘the general law relating to the preservation of legal rights

and remedies under a preexisting statute’’ [emiphasis

supplied]. ‘The Fifth Cireuit accordingly had heid that a

1947 repeal (50 U. S. GC. App. § 1881 et seq.) of 45 of the |

Veterans Emergericy Housing Act of 1946 did not take

away, the district court remedy provided in the repealed

1946 Act whereby the United States could secure restitution

of overcharges made while said Act was in effect. “a

The suggestion is made in the Memorandum for the

United States on our petition (f.n.°3, p. 3) that the cases

above referred to (K romer, ete.) may not rest on the gen-

eral ‘savings statute but on 18-U. S.-C. 3231 and 28 U.S. C.

- 1345 (general jurisdictional statutes relating. to criminal

matters and civil cases.involving the United States as plam-

tiff). But this Court in‘Kromer, Palletz, efc., did not men-

tion 18 U. S. @. 3231 or 28 U. S. C. 1345, and there is no

reason to suppose that the decisions would have been any

different if the proceedings had been brought by private

persons (rather than by the United States) under applicable

sections of the statutes involved [Emergency Price Control

Act of 19 § 205(e) ; and Veterans Emergency Housing

. Act of 1946, § 7(d)]. 7

Indeed; in Woods v. Hills, 334 U. 8. 210, 214-217, involv-

ing a question as to the validity of a rent order which

the Emergency Court of Appeals had exclusive jurisdiction

to determine, this Court pointed out that as concerns an

offense occurring prior to the termination date of the stat-

“ute the jurisdiction of the Emergency Court of Appeals was

preserved by a savings clause in the repealed statute simi-

lar to $109. Referring to the savings clause in §1(b),

Emergency Price Control Act of 1942 a8 amended (56 Stat.

| 24). this Court, said: ae :

4 * * Since-the offense ‘complained of in the case

at bar-oceurred before ‘the termination date, 4 1(b)

~ would apply and the Kmergency Court of Appeals

would still have exclusive jurisdiction to pass on, the

validity of the second rent order, * * *. (214)

8 @ Men

“We may now consider what effect the 1947

amendment, thus viewed, has upon the ‘exclusive

jurisdiction’ provision in § 204(d), which was pre-

served by the savings clause of §1(b) 9. (216):

Since the exclusive jurisdiction of ‘the Emergency Court.

of Appeals as to the va. ‘ity of the rent ‘order was treated

solely by the terminatéd statute, obviously the statutes re-

lating to district court jurisdiction referred to above (18

U.S. C. 3231 and 28 U. S. C. 1345) can have no possible

bearing on this Court’s holding in Woods v. Hills, supra."

- As recognized by the court below, the Emergency Court

of Appeals in 150 East 47th Street Corp. v. Porter, 156 F.

2d 541 (1946) construed $1(d) of the. Emergency Price

* ‘See United States v. i RE 95 F. Supp. 363, 365 (S. D.

Cal. Cent. Div., 1951), holding that the remedy of restitution under a

the Housing and: Rent Act of 1947 after decontrol was

_ $6@ @ © preserved. by the general savings clause | in 1

U.S. C. A. § 109, Act of July 30; 1947, c. 388, See. 1, 61 Stat.

633, and the special savings clause in the Housing and Rent

Act of 1947 48 amended, Sec. 204(f)(4), Public Law 574,

81st Congress, c. 354, 2nd session, approved June 23, 1950.”’

18 ; : he ; 6.

. Control Act of 1942 as amended to haye the effect of

“

«@

' jnsurance,claims tinder the Act of June 29, 1940 as amended (46 |

saving*the jurisdiction -of the court to entertain after the

termitiation of the Act.a pending suit which Had been‘

brought under Section 204(e) of the Act ** "7? (R. 76).

The court below, however, attempted to distinguish ‘the

Portgy decision because of the “complex interrelated juris- -

|. dictional. set-up’? (R. 76), This is unrealistic. Although

the Emergency Court of: Appeals may have been ‘‘more

| persuaded’”’ by such set-up that its already determined .

construction of §1(b) was correct, the plain fact Was-that

jurisdiction was presérved because it was ““heyond doubt”’

that the situation. came within the literal terms of»

‘the savings clause in §1(b) [156 F. 2d at 544], as was |

_ upon the prin

later recognized by. this Court in Woods v.. Hills, supra.

As seamed ioe Price Control Act having been “drawn.

le that exclusive jurisdiction to pass upon —

questions of validity are centered in this Court [Emergency ©

Court of Appeals] and tlie Supreme Court’? (BR. 76), the .

insurancé statute (Act of June 29, 1940) was also drawn

upon; a similar principle that, exclude jurisdiction over

. Insurance claims was to center in the district courts.* That

-. there has been no Congressional deviation from this prin-

ciple is confirmed by Congress having again vested ex-

clusive jurisdiction in the district court in the subsequent

War Risk Inisuranée Act enacted September 7,- 1950 (64:

Stat. 773; 46 U.S.C. $§ 1281- 1294, 1292).*°

How can it be believed or- assumed that Congress in- |

| tended that suits sia ought in the-district court under the old.

* The Court of Claims had never -had jurisdiction of war risk

U. 8. C, §§ 1128-1128h), it having been held: in United States v..

Leahy, 148 F’.. 2d 462, 466 (3rd Cir. 1945), also in Levine v. United

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

that the district courts had exclusive jurisdiction of such claims

under § 1128d (compare Adams et.al v. U nited States, 101 F. Supp.

956, 959, D. C. Mass. 1952).

**°A similar provision Had been made in Section 5 of the War :

Risk Insurance Act of September 2 , 1914, 38 Stat. 711, 712.

oe we le:

7 insurance Act must be dismissed and the semarede relegated

. to.the Court of Claims; but that suits under the new in-'

surance Act must be brought in the’ district courts and

nowhere else? The mere absurdity of that distinction _

should. be adequate answer. , Ree :

Nor was the Porter case, supra, distinguishable on‘ the |

other ground suggested’ (R. 75-76) iie., that there was

no statutory authority for any other court to entertain

that suit. The meaning of the general savings statute ,

cannot depend on how it may work’ out in. different cases. «

The décision.. below . in applying §-109, if governing one

- case would perforce apply in every case, although such

-construction cf said section would in many instances render

‘the same nugatory—leaving a plaintiff with a substantive

right without a remedy to enforce | By

‘Consiteration of the Noresobis decisions emphasizes

our view tlt the harsh construction of the general savings:

statute by.the court below is at variance with that indi- |

eated bf this Court, and. that §.109 should be applied liber-

ally rather. than grudgingly; as required by its express

es lenguage | and remedial purpose. rial

: ae pp. 20, 21, infra.

* “tigation of the merits by’ the Government for. nearly-four

years. ufter the 1947 repeal of the i insurance statute, withéut. raising»

the question of _jurisdiction, and the-fact that the Government

did not raise the question in other similar cases (footnote, supra,

_p. 3) would seem to constitute Governmental administrative in-

terpretation in petitioner’s favor, of the application of § 109. .

Compare United States v. The.Thekla, 266 U.'S. a8, 339-341,

' where the Government in the position of a private surtor was‘ held |

to have waived’ the defense of lack of jurisdiction by é suing affirma-:

fait in respect ‘of the same subject -matter. Mr. Justice Holmes —

d (p. 341): . .

‘‘# * ®* the reasons are strong for not obstructing the appli-

cation of natural justice against the Government by technical

- formulas when Justice can be done without endangering any

publie interest.’ :

* court’s s jurisdiction was not held for naught. The. wel

20°

All the equities favor the literal—likewise. reasonable.

: —syfleation of § 109 advocated by a MBE

The afcision below would effect far Mmoresthan requiring”

‘petitioner to relitigate this case in t ourt of Claims.

_Here,, the Government’s liability could be substantially al-:

tered unless the entire i insurance statute was saved by 4\109.

‘Such a situation was noted as absent i in Bruner (348 U.S.

at 117).

For example, substantial. interest had already saireia

to petitioner as early as the repeal date.”. But if relegated

to the Court of Claims petitioner might lose all such accrued:

interest**, since the Court of Claims appears empowered

to award interest only from the date of entry of judgment

«(28 U. S...C. § 2516),—which would be years after the time ~*

to which interest had alrgady accrued, ‘All accrued interest —

would thus be wiped out. ‘f a

No such problem existed. in Bruner: (343 U.S. 112), since

under the Tucker Act, whether jurisdiction lay in the dis-

‘trict court or in the Court of Claims, interest was recoxer-

able only frorn the date of judgment [28 U.S.C. $2411(b

The decision below eould have even' more “detrimenta

‘consequences. Shipowners, even “though » they brought:

timely insurance suits in the district court, the only court

then havi ing full and élear jurisdiction,-might now find them-

' selves time barred in the Court of Claims. 28 U.S. C. § 1500

may have discouria ed protective efforts while the district.

understood purpose of Ahat section was to, require. electi

It would indeed be a nebulous sort of ‘‘liability’’ that

would be ee if the savings statute were interpreted:

* See National Bulk, Carriers v. United States (The Virginia),

(165 F. 2d 943, veh (3rd Cir. 1948) ; Levine'v. United States, 80 F.

Supp. 674, 679 (Ct. 1. 1948), cert. den. 336 U. S. 936.

** Unless the petitioner is entitled to interest from the date of

loss as an integral part of just compensation—this point having

‘been deeided adversely to petitioner in-the district court but rfot.

_ reached by the court below. Many of the pending insurance cases

referred to in Appendix II, infra, pp. 29-31, apparently relate to -

insurance claims: not. involving just or

and applied ix in away to result j in claimants having théereti-

cal substantive Tights without the means of enforcing them’

—‘ ghosts”, as Mr. Justice Holmes: called them -in the

Western Maid, 257 U. S. 419, 433.. :

No wonder that the court below reachéd its harsh con-

clusion only ‘‘most reluctantly’? (R. 77). .We submit that

_ this Court should not allew to be erystallized i in the law a -

narrow and strained construetion of a statute aimed to pre-

‘serve ne, not to ogeatrey them.

6. In any event {fe district court’ continued to have

faretieen under the Suits in Admiralty Act. 2 -

At the 4 time of her loss the Dona “Axianula was being oper- —

ated undér requisition time-charter for the United States

and employed as a’ merchant vessel (R. 41, 43).

Under the Suits in Admiralty Act Bs U. 8. ¢C. 88 741.

752) *

‘Tn cases where if. such vessel were privately

operated, * * *.a proceeding in admiralty could be

maintained at the time of the commencement. of the

action herein provided for, a libel in personam may

- be brought against the United States * ° pro-

- vided that. such vessel is employed as a merchant

yoosel: ©" aw 742).

! ijussticunbly; when the pre ent suit . andde” § 224

-(§ 1428d) was commenced in December, 1944 a sisciading in

admiralty could ‘be maintained by a shipowner, on a policy

of marine war risk insurance with respect to.a vessel pri- _

vately operated. Insurance Company Vv. Dunham, 11 Wall.

: 41, 21; North German Fire Insurance Co. v. Adams, 142

F. 439 (7th Cir. 1905); Jeffcott v. Aetna Ins. Co., 129

‘F. 2d 582 (2nd Cir. 1942). Accordingly it seems that; apart

- from the special grant of, district court jurisdiction under

§ 225, the district court. “also had: jurisdiction under the

broad provisions of the Suits in Admiralty Act which were

not affected’ by the. repeal. of the insurance statute.

1 is well established that a vessel under time charter to .

the United States 48 to be regarded as operated ‘‘for’’ the —

ae: * ¢ ‘

_«

United ‘States, Matson Navigation Co. v: United States,

284 U. S. 352, 357; N. S. Byonnes &°Son, etc. v. United

States, 298.F. 123 (S. D. N. %; L. Hand, D. J. 1923); Ep-

stein v. United States, 86. F. . Supp. 740, 743 (S. D. N.Y.

- 1949). #7 See,

It was also ectite by Matson that where jurisdiction

éxists under the Suits in Admiralty, Act that jurisdiction

is exclusive. Hence, in this case the underlying jurisdiction

-- under the Suits in Admiralty Act necessarily kep¢ alive the

district court jurisdiction and precluded rele ey) of the .

petitioner to. the Court of Claims.

‘In M atson, supra, this Court held that the district court .

had exclusive jurisdiction under the Suits in Admiralty -

"Act of a/Cause of action by the shipowner against the United

States for feimbursement of crew wages'and bonuses pur-

guant/to a requisition time-che- ‘ter. This Court pointed out

(pau. S. at 357):

hes ‘‘The language of § 2 [Sec. 742] is general, em-

“+ racing suits on maritime causes of action. by owners,

|. as well as by third persens injured by the operation

for the Government f,.merchant vessels. See East-_

«, ern Transportation Co. v. United States, 272 » 8.

‘675, 689, etseq.**" ;

: ,

+ * *

| We think the cause of action is maritime, arising out

| of the express contract for the operation of, vessels

-\for the United States, and is not shown to ithin

‘the -jurtsdiction . of’: the court below - [:

Claims] -, eet

Here the insurance liability alnd- the formal binder were

based on the provisions of the equisition time-charter, as

amended,’ whereby. the Government undertook to: . provide

amount susanired by ‘‘just ‘eompensation”” (R. 41-44), -

Under the circumstances Matson appears to be sound au-

thority for the view that after the repeal of the insuranve

statute district court jurisdiction continued under the Suits

in Admiralty,, Act—quite without _ reference to ee .

seciescincne was pengerved by : 109.” .

i fe

23°

eee é — me Se ) Q re

Indeed, once a suit had been propérly brought, as here,

°under the.insurance. statute, that statute itself providd

(§ 225; §1128d) that the same should “proceed and shall

be heard and determined according to the prpvisighs of”’

* the Suits in Admiralty Act, in.so far ae 1 provisions

“were not ‘‘inapplicable’. and are note ntrary. to’or incon- —

sisten with’’ the provisions of the jnshrance statute. The

distxict court jurisdi@tion in admiralty was self-perpetuat-

ing, Hy least as regards the continuance of existing suits, —~

‘and it was therefore not = by the repeal.

- The same pfoposition is Strengthened by the fact that

in the sentence preceding that from which we have just

quoted, after providing that an insurance action may be

brought, the section sn se@ *°* ond maintained

against the United States’in the district court et the United 4

, States sitting in admiralty oe 874,

In view of this ‘Congressional pronouncement that suits

under the i insurance statute should be maintained, proceed, — -

and be heard and determined under the Suits in Admiralty

Act, very clear language—not found here—would be re-

quired to Fustify a court in disregarding the obvious intent

'. that the district coprt should deal with an insurance suit

from beginning to” ‘end—to final determination.

. In Reinold v. United States, 167 F. 2d 556 (2d Cir. 1948), {

* reversing on the merits 72 F. Supp. 92, cert. en: 335 U. &

824, a suit against the Government 'on a policy of war risk

‘insurange, jurisdiction was based: directly on the Suits in

:. Admiralty Act. aa ses

If a question be_ ‘asked—w" y was enactment of. § 225

(5 1128d) necessary ‘to give the district court jurisdiction ,

- as concerns insurance claims, if such jurisdiction already

was provided by the Suits in Admiralty Act—the simple.

answer, involving no inconsistency, is that the power of the |

United States to provide insurance under the insurance

statute. (§§ 222, etce., Merchant Marine Act of 1936° as

amended; 1128a, etc. .) extended far beyond the authority

to insure merchant vessels operated by or for the United

States. It included-power to iasure Philippine vessels and

ahha coitain foreign flag vessels, as “is as all Américay vessels

-(ineluding’ vessels under construction), whethér o®ned or

controlled by or made available to the United States or not,

i.e., nSurances as ito which in marty instances suits could»

not Ye maintained under the Suits in Admiralty Act. °

\.- Phe decision in United States Lines Co. v: U: nited States,

52 F. Supp. 758 (S. D. N. Y. 1943) is not contrary to our

position. The“court merely held that suit would not lie.

‘under -the insurance statute (4225; §1128d) becausb the

Government had not issued any insurance policy or binder,

and its assumption of insurance risks was contained ‘only

in a bareboat charter of the tessel to the. United States.

J urisdiction could not be based on the Suits4n Admiralty

Act since the vessel was operated as a military transport,

1.@., asa public vessel, not a merchant vessel.*

Conclusion |

For the foregoing reasons it is respectfully submitted

that the as t of the court below should ‘be reversed.

en ©

ore H. Huprer

ee Patty: Counsel for Petitioner

2, / ae? 27 William Street

3 : New York 5, N. Y.

ee Hinks ‘M. Kuwwnoy M

Norman M/ Barron

Hervey C. ALLEN

3 of Counsel

| Dated: New York, Recember 24, 1952.

x Calnlar Steamship Corg. v. United States, yr F, 2d 795, 802

(2nd Cir.), certiorari granted October 20, 1952—- —Nrb, 262 this Term,

has no bearing on the question of jurisdiction presented here. That

suit was not to recoves Government insurance but was\for damages

against the Government under a voyage charter for failure to

insureyand the Court of Appeals held that.the Suits in A miralty |

_ Act did not provide jurisdiction, on the ground that the vessel was. -.

' not Operated. as a ‘‘merchant vessel’? because she carried ealy

military ies . tS ae .

N \

25 -

_ ‘Relevant Portions’ of the War Risk Insurance Act of

§§ 221-229, Merchant Marine Act of 4936, as amended) ;

-“§1128 [§ 222]

The Commission [see Note below] may insure -

against loss or damage by the sisks of war, persons,

property, or interests, as follows: i -

(a)}(1) American vessels (inbluding vessels

j under construction), (2) vessels registered under the

law of the Philippine Islands, * * *. |

{b)- Cargoes shipped or to be shipped on any

vessels specified in shbsection (a) * * *. | "

‘Masters and genera) average disbursements) and

freight and passage moneys of such vessels.

3 (d) The personal effects of the master, officers,

- — and crews of such vessels, * * *, |

(e) Masters, officers, and ‘crews of such ves-

_Sels * * * against ‘loss of life, personal injury, * * °.

"(f) Statutory or contractual obligations or other

liabilities of sych vessels or of the owner or charterer

of such vessels of the nature customarily covered by

| iu e ot

— $1128 [§ 225] erin

In the event of disagreement as to a'claim’ for

losses or the amount thereof, on account of insurance

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

the claim may be brought and maintained against

the Wnited States in/the district court of the United

States sitting in #dmiralty in the district in which

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

- suits shall proceed and shalt be heard andletermined

according to the provisions of sections 741-752 of: >

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

ees iN ee 26

insofar as such provisions are not inapplicable and

-are-not contrary to or inconsistent with the’ pro-

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

_ persons having or claiming td have an interest in .

such insurince, or who it is believed might assert

such an interest, may be-made parties to such suit,

either initially or. upon the motion of either party.

_ In any case where the Commissio acknowledges the

Indebtedness of the United States pn accoum of such

insurance, and there may be a dispute as to th

person or persons entitled to receive payment, t

' United 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 it is believed might assert such an interest,

in the District Court of the United States for the

- District of Columbia, or in the district eourt in and

for the district in which any such person resides. —

' In either of ‘such acti@s any person claiming to

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

lieved might assert such an. interest, if not an in-

habitant of or found within the district within which

either of such actions is brought, may be brought

in by order of the court to be served personally or

e - by publication or in such other reasonable manner

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

' gatisfaction of the court that persons unknown .

‘might assert a claim on account of such insurance,

* the court may direct service upon such persons un-—

_ known by publication in the Federal Register.

Judgment in.any such action. shall discharge the

United States from further Hability to any parties to

“such action, and to all persons where service by pub-

lication upon persons unknown is directed by the

court. The’ procedure herein provided shall apply

to all actions now pending against tf& United States

under the prévisions of sedtions 1128-1128h, as

° amended.’’ aes ; Fizct§

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

' ‘the Administrator,éf War Shipping Administration was

given authority to insure ete., in conformity with Executive

Order No. 9054 of February 7, 1942.] :

Section 1 of the Joint Resolution of July 25, 1947 (61

Stat. 449, 450). |

‘‘Jornt Reso.uTion

To terminate certain emergency

and war powers

Resolved by the Senate and House of Representatives

of the United States of America in Congress assembled,

That the following statutory provisions are heréby re-

pealed: Vg ts :

° ° Re Re ie:

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

Ses ; Oo Pie ;

° ° ee e. : a ee

Approved July 25, 1947.”

“8109. 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 atiy penalty, forfeiture, or liability

incurred under such statute, unless. the temporary

»- Statute shall so expressly provide, and such statute

shall 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, .®

or liability.’’ ° : : ae

Relevant portions of the Suits in Admiralty Act (41

Stat. 525-528; 46 U. S.-C. 741-752): : oe

‘*$ 741. No vessel owned by the United States or

by any corporation in which the United States or its

representatives shall’ own the entire‘ outstanding _

capital stock or in the possession of the United States

- or of such corporation or operated by or for the

United States or such corporation; and no. cargo °

owned or. possessed by the United States or by such

corporation, shall, in view of the provision: herein

“made for a libel in personam, be subject to arrest or

seizure by judicial process in the United States or

its. possessions: Provided, That this chapter shall

-not apply to the Panama Railroad Company. Mar.

9, 1920, c. 95, § 1, 41 Stat. 525.’ :

__ **§ 742. In eases where if-such vessel were pri-

_. vately owned or operated, or if such cargo were

. privately owned and. possessed, a proceeding in ad-

miralty could be maintained at the time of the com-

mencement of the action herein provided for, a libel

_iIn personam may be brought against the United

_ States or against any corporation mentioned in

section 741 of this title, as the case may be, provided -

that such vessel is employed as*a merchant vessel

or is a tugboat operated by such corporation. Such

suits shall be brought in the district court of the

_ United States for the district in: which the parties

so suing, or any of them, reside wr have their prin-

cipal place of business in the United States, or in

which the vessel or cargo charged with liability is.

found. The libelant shall forthwith serve a copy of,

his Tibel on the United States attorney for such dis-

trict and mail a copy thgreof by registered mail to .

the Attorney General otf United States, and shall

file a sworn return of su@h service and mailing. Such

service and mailing shall constitute valid service on

- the United States and such corporation. In case the

+, United States or such corporation shall file a libel

in rem or in personam fn any district, a cross libel

in personam may be filed or a set-off claimed against =

the United States or such corporation with the same

force god effect as if the libel had been filed by a

private party. Upon application of either party the

canse. may, in the discretion of the court. be trans-

ferred to any other district court of the United, °

States. Mar. 9, 1920,c. 95, § 2, 41 Stat. 525."7 \~ ”

1 . ‘ . - . P

- . _ ae - of Nei tee Pah ape Biba ty A As 4 ES eee aL aan ~ ear ten $5 ste Pls wie "

USAT LEAN eG is eics Eso DAEGU As Rie! Peles a ube tO BELIEVE Cie a ahd Ee tee iae ak Clk SRR oe RS ST ier ay PREIS 1

° 2 ‘

“3

Other insurance cases now sendin in the Southern District of New Y ork, brought under the

AS War Risk Insurance Act of June 29, 1940, as amended:

“Docket Name of Nahas of

No. Case Casualty

Ad. 131-343 American Hawaiian Total loss by enemy action |

.” &. 8. Co. v. United 3 .

States ° |

(HoNoLULAN) |

“« "182-852 American Hawaiian Total loss by enemy action

: - 8. 8. Co. v. United :

\ . States :

oh (OREGONIAN) - 3 | |

“€ 133-112 American Hawaiian. Collision and subsequent

8. 8. Co. v. United 2 loss. by enemy acticn

States ea

(MonTANan) |G ;

@ts

135-237 Calmar 8.. 8. Corp. Total loss ty enemy action

s Vv. United States

- (Yorkmar) fr

See eee

e . v. United States

(Hoosier) —

| * Settlement understood to be pending in this case.

\ a

‘June 3,

Hoosier Marine Corp. Total loss by enemy action

Date of

Loss ©

July 22, 1942.

Sept. 13,

Oct. 9

Oct. 9, 1943

July «10,

July 7, 1944

41,618.92

2 ets: mba |

° Tyee ea eee

tenes Se ET cere iF

Date of Amount

- Lhbel | Involved

- Sept.12, 1944 344,921.57

se) £

Oct. 9, 1944 ° 25,009.00

ugh ace 489,080.21

Mar. 13, 1945. 65,000.00 - -

Docket

' No.

Name of -

Case

a a. Panama Transport

Co. v. United States -

“66

138-11

6 ,

181-311

_ 145-162

: 181-117

184-169

(Esso -BELGIUM) |

Panama - Transport

Co. v. United’ States

(J: H. Senior)

Panama Transport |

Co. v. United States ~

( STANDARD) —

Panama Trensport

Co. v. United States

(Esso. BatBoa) |

Petroleum Shipping

Company Ltd. v.

United States

(Stanvac Cancvrta)

. Nature of

Casualty

Corivoy collision |

Convoy collision

Collision —

Collision

Total loss by enemy action

Standard Oil Co. of, Collision.

N.J.v. United States

' (Esso. CHar.Eston)

Aug. 18,1943 Aug. 17, 1945

Dateof- ——dDateof

Loss 7 Libel

Oct. 25, 1942 Mar. 28, 1945

July 4,.1942 July 1, 1944 -

Sept. 19, 1944 Sept. 18, 1946

fee |

June 6, 1942 May 29, 1944

Me Nt | e %s 7 ;

Dee. 31, 1942 Dec. 26,.1944

_ Amount

I nvolved

$ 1,500.00 °

4,365,100.00

‘(Damage to

J: H. Senior

and crew)

19,452,562.00 <

(Claims

against

J. H, SEn1on

by colliding

vessels)

50,000.00

622,308.85

80,354.14

64,478.74

SS ee BAe Seh nad Ct ah sia Palatal a aenteeereaaanenes SAA abiaiip ninco 0th ACA ob Laset AP hate Ne hh a

Docket Name of - Nature of ° Date of — Date of. Amount

No. Case eS . Casualty Loss Libel. Involved. ®

_ Ad. 131-124. Standard Oil-Co. of Damage by enemy action May 31, 1942 May 31, 1944 — $ 30,000.00 ;

: ‘N.J.v. United States eae : is

(E. T. BEpForp) 3 i ae :

“135.298 Standard Oil Co. of Convoy collision Oct. 25, 1942 Mar. 23, 1945 5,500.00

NJ. v. United States | 3

(F. Q. Barstow) ; : ae

137-337 N.dJ.v. United States Renee and Oct. 11, (443,567.96 |

¢ 158-143. (Esso Mannartan) ’ - 1948 (Consoli- _ cross-claim.

_and eross suit - dated suit) | of U.S. A.)

“187-6 Standard Oil Co. of Convoy collision _- June 15, 1943 June 14, 1945 42,000.00

N.J.v. United States. | ‘ears P & -

(Bracon) 7 cent

~ ** 139-313. Standard Oil Co. of Convoy collision -. Nov. 26, 1948 Nov. By 1945 15,000.00

: N.J.v. United States o |

ee, (Watwace E. Pratt) ? :

** 139-326 Standard Oil Co. of Collision vov. 26, 1948 Nov. 26, 1945 15,000.00

N.J.¥. United States ee :

(Watuace E. Prarr)y. wes go: ;

‘*. 131-393 States Marine Corp. Total loss by enemy action ) Mar. 13, 1943 J uly 6, 1944 245,129.64

v. United States . . ‘ : |

(KEyYstone) ; :

* 184-233 Robert T. Welsh v. Total loss by enemy action . Feb. .1, 1943 Jan.. 5, 1945 + 7,500.00

United States’ cents ; ; wie

mene ( AIGRETTEE) in

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.