Appendix — Great American Insurance Co. v. Companhia de Navegacao Brasileiro
Supreme Court brief1940
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NOV 20 1940
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GUARLES ELwoRE
IN THE
Supreme Court of the 2g States
| sei TERM,
a 589
In the Matter
of the
Petition of Compannia pe Navecacao Lioyp Brastcermo,
for exemption from or limitation of liability, as owner
of the Steamship “Manpvu”,
ComMPanuia pe Navecacao Lioyp BrasiLeio,
Petitioner-Shipowner,
Tae Great AmeEntcan Insurance Company, ef al.,
Respondents-Cargo Claimants.
—————
PETITION OF es a DE NAYEGAQAO, LLOYD
THE UNITED STATES omnourr Nor
FRANK J. McCONNELL,
Proctor for Petitioner Companhia de
Navegacao Lloyd Brasileiro.
James D, Brown,
T. Catespy JONES,
Leonarp J. Matreson,
Of Counsel.
— 2S RAIN in NEP ste
INDEX.
PAGE
Shipowner’s Petition for Certiorari .......--...66.5 1
Miatememt 2... cee ccc cnet er cenvctonssncecneyes ]
I—Errors contained in the first decision of the Cireuit
Court of Appeals, which is reported under the :
stvle of The Mandu, W2 FP. (2d) 409 2.6... - +e. 10 :
:
11—Errors contained in the second opinion of the
Cireuit Court of Appeals which is reported under e
the style of The Maudu, 114 P. t00) GG ogo 11 t
‘
Reasons for Granting the Writ ..........-... 12 &
Brief for Petitioner Shipowner.............555-5.. 9 ‘
The Opinions Below ...........5..5+5++ reese 19
The Opinions of the District Court) ........... 19
The Opinions of the Cireuit Court of Appeals... 20
Jurisdiction of this Court ...........5505 eee ee. 21
a ciicta dbo ba thnats nae ts none ines =e 6) 21
Porsr 1—The decision of the Cireuit Court of Ap-
peals on the first appeal in this case which held
that a bare assignment without consideration and
which was not intended to transfer any beneficial
interest to the assignee, is sufficient to enable such
an assignee to maintain a suit in admiralty is in
direct conflict with the decision of this Court in
Fret: y. Bull and with the decisions in the Fifth
and Ninth Cireuits .........------ eee cece enees 2:
Porxr 1—The decision of the Cirenit Court of Ap-
peals upon the first appeal holding that the re-
fusal by the District Court to entertain jurisdic-
tion in a suit between foreigners arising out of a
collision occurring in the territorial waters of a
foreign country where jurisdiction was supported
only by a colorable assignment of claims, without
= A a aT i aa Oe kn)
PAGE
consideration, and without transfer of beneficial
ownership, Was an abuse of discretion, is in
square conflict with the decisions of this Court in
Canada Malting Co. v. Patterson, 985 U. S. 4138
aiid Other CAKES 2.2 eee cee reece tees er ter er eeens 27
Powwr I1L—The decision of the Cirenit Court of Ap-
peals holding the “Mandu” contributorily at fault
and your petitioner liable for one-fifth of the
damages because of “inferential faults” on the part
of the “Mandu” is in conflict with the decisions
of this Court in The City of New York, 147 U.S.
72, 85; The Victory and The Plymothian, 168
U. S. 410, 423, and other cases, and in conflict
with the decisions in all other OUPOMTER.. Coke ce see 34
Ci es iy Gn Na dene ASA Os UAE RE HEENS BESS Oe eS 38
TABLE OF Cases CIrep:
Armour v. Fort Morgan Steamship Co., 270 U. S. 253,
15, 30
Barney v. Baltimore City, 6 Wall. (78 U.S.) 280),
Beaverbrae. The (KE. D. N. Y., Campbell, D. J.),
OO Cy BUS ko vn ccs oe ce Fe re ates Cree ns 29
Belgeulaud, The, 114 U. S. Bd5...... cece renee 14,33
Bywell Castle, 1. Re 4 Prob. Div. 219.....0.s0e8: 37
Canada Malting Co. v. Patterson, 285 U.S. 413,
14, 24, 26, 27, 28
Carroll, The, 8 Wall. 302 .....-:seeeeeeeesereees 16, 37
Charter Shipping Co, Vv. Bowring, 281 U. S. 315... .14, 28
City of New York, The, 147 0. Be TBs 6. we ce ces 12, 15, 34, 35
Clara Matthen, The (D.C. Mass.), 29 F. (2d) 123. .16, 37
Kastfield S.S.Co., The, v. McKeon, et al. (S. D. Ala.),
S06 Sed, FOE ois os a ony hs Cea eed eh tas eee aes i
PAGE
Kastfield S.S,. Co. v. McKeon, et al. (S.D. Ala.)
((. C. A. 5), 201 Fed. 465.........6.-00 000 3, 26, 27
Kemdyjk, The, 286 Fed. 889 0.00.00. e eee eee 13, 25, 26
Elizabeth Jones, The, 112 U. S. olde... . ee eee eee 16, 37
Falco, The, 20 F. eas ft 362 "nO, Age. ap 5 Terran pare were 28
Fretz v. Bull, 53 U.S. (12 a. 465,
12, 13, 23, 24, 25, 26, 27
Goldman vy. Furness Withy & Co. (S. D. XN. Y.), 101
ee cg ede Vee VE DS HES TEES CE ERE YR 24
Goodrich Transit Co. v. City of Chicago (C. C. A. 0),
AW, LDN GO on on wcs Cac docu ei eeerater ences 16, 56
Great Republic, The, 23 Wall. 20.......60 00s ee ees 15,35
Katahdin, The, 293 Fed. 824 2.2... . 66 e eee eens 30
Lady Drake, The, 1 F.Supp. 810 oe eee eee . 25, 28
Lake Erie Transp. Co. v. Gilchrist Trausp. Co. (C. ©.
A. 6), 142 Bed. 80... 0. csecccncerveesvswesss 16, 56
Lambert Co. v. Baltimore & Ohio R. R. Co., 258 U.S
st Ie Oe Mane ee ray ET ee RENE Shee Oe 0
Le Flandre (C. C. A. 8), 9 FP. (2d) 881.......606- 16, 36
Lizzie M. Walker, The (C. C. A. 4), 3 F. (2d) 921. .16, 56
Maggie J. Smith, ey! is U. ere i 16, 36, 58
Mandu, The, 102 F. (2d) 409........ 0602+ e eee 10, 11, 24
Nacooche, The, 137 U. S. 880... 0.0... cee eee eee eee 16, 37
Norne, The (C. C. A. 5), 99 a) BN6 ei cai ecess 16,37
Northern Nav. Co. v. Minnesota Atlantic Trausp. Co.
(C. C. A. 8), 49 BF. (2d) 208.0... eee eee eee 16,36
Oregon, The, 198 U.S. U6... 6. eee eee eee 16,55, 57
Pacific Spruce Corp. v. Sau Francisco (C. CG. AL 9),
> ae cae |) Ge f + ene re eee eS 16, 56
Paul L., The, 4 F. Supp. 087 0.6. 30
Paula, The (Peters ease) (CL ©. A. 2), 91 F. (2d)
NAA a ors eee, eee ee ke
iv
PAGE
Priscilla, The (C. C. A. 1), 55 F. (2d) 82......... 16, 36
Rideout v. Charles Nelson (C. C. A. 9), 55 F. (2d)
- | ORIEN REDE SE MER DZE Pre Pray eee Oe ee 16, 37
Rupert City, The, 213 Fed. 265.....-..0+0+ 050000: 15, 26
Sea Gull, The, 23 Wall. 165. ......-.0 cece eee eeee 16, 37
Shawmut, The (K. D. Pa.), 261 Fed. 616.......-. 16, 37
Thomassen ¥. Whitwell, 9 Ben. 113, Fed. Cas. No.
SN ee cy ek ke eee Rae r PADD KR OR PER Ed OR RSS 14, 33
Trader, The, 129 Fed. 462........00- eee cece ences 13, 25
Tricolor, The. 1 F. Supp. 934 (S. D. NX. Y.), affirmed
(CC. C. A. 2), G5 FP. (2d) 392.......-- ee eee eee 29
Umbria, The, 166 U. S. 404... 6 cece ee ee eee eens 15, 30
Victory, The, aud The Plymothian, 168 U.S. 419,
12, 15, 21, 34, 55
. (BA) ABB. on oc ec ce crew ceccccccccsenecees 25, 29
Wolsum, The (C. C. A. 5), 14 F. i: ree 16, 36
Orurn Avcruorities CIrep:
Benedict on Admiralty........-+005 eee eee: 13, 23, 24, 26
’
Judicial Code, as amended by the Act. of February
13, 1925, Section 240(a).....-- 6 eee reer eee ees 21
43 Stat. 938, 28 U.S. C. A., See. 1) eee 21
Ri SSRN ARCATA RNS LATE AY OL ERA ARLENE NOS IEE BN LO WHEL ALE DE AS Me
IN THE
Supreme Court of the United States
OCTOBER TERM, 1940.
Nos.
In the Matter
of the
Petition of Compannia pe Navecacao Lioyp Brastierro,
for exemption from or limitation of liability, as owner
of the Steamship “Manpv”,
Companuia bE Navecacao Lioyp BrastLeimo,
Petitioner-Shipowner,
Tire Great American Insurance Company, et al,
Respondents-Cargo Claimants.
Shipowner’s Petition for Certiorari.
The petition of Compania de Navegacao Lloyd Brasil-
eiro, owner of the S. S. “Mandu”, for a writ of certiorari
to the United States Cirenit Court of Appeals for the
Second Circuit, respectfully shows:
STATEMENT.
Since The Great American Insurance Company has filed
a petition praying for a writ of certiorari, this petitioner
desires that the questions which it sets forth below shall
be reviewed by this Court.
This proceeding originated because of a suit in ad-
miralty brought by The Great American Insurance Com-
pany, a corporation created by the laws of the State of
PR ———
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3
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PRONE LAL ILRI
“7
New York against the Brazilian 8. S. “Mandu” under two
libels filed in the United States District Court for the
Eastern District of New York to recover damages for
loss and damage to cargo laden on the German steam-
ship “Denderah”, which was sunk on July 31, 1929, as a
result of collision with the Brazilian steamship “Mandu”.
The collision occurred wholly within the territorial waters
of Brazil in the Harbor of the Port of Santos. The first
libel filed on June 30, 1930 alleged (a) that The Great
American Insurance Company had insured unspecified
quantities of cargo laden on the steamship “Denderah”,
had paid the owners thereof for losses, and had become
subrogated to the owners’ rights (Par. 6, R. 21); and (b)
that certain other shipments of cargo laden on the steam-
ship “Denderah” had been insured by other under-
writers who paid the losses to the owners, beeame subro-
eated to their rights, and assigned their rights “for a
‘aluable consideration” (R. 24) to the libellant, The Great
American Insurance Company. The libellant demanded
damages in the sum of $217,140 and caused the arrest
of the “Mandu”. Upon the filing of a stipulation for
value by petitioner, a corporation created by the laws
of Brazil, in the sum of $218,000 the “Mandu” was re-
leased from arrest and made a round trip to Brazil and
return. Upon her return in October, 1930, an amended
libel was filed on October 22, 1930 in which the amount
of the demand was increased to $225,872.31 (R. 19, 59).
In the amended libel it was again alleged that other
underwriters had assigned their subrogated claims to the
libellant “for a valuable consideration” (R. 39). In the
amended libel, it was specified that the only owners of
claims for goods on which the libellant had issued policies
of insurance were Orenstein & Koppel, A.G. and Siemens
Schuckert Werke, A.G. As to the shipments by these
ae
companies the libellant alleged that it had paid the amount
of its insurance to these assureds and
“thereby became subrogated to all rights of its said
assureds in said shipments to the extent of its said
payments and to all their claims against said steam-
ship ‘Mandw’ arising out of said collision and the said
consequent loss and damage to” said shipments”
(R. 33).
Three days later, on October 25, 1950, The Great Amer-
ican Insurance Company filed an entirely new libel in
which it alleged that it had acquired by assignment for
a valuable consideration additional claims amounting to
$137,695.83 and the “Mandu” was again arrested (RR. 41).
Thus the Brazilian owners of the “Mandu”, your petitioner,
were confronted with a demand for damages which had
increased to the very large sum of $363,568.14, a sum far
exceeding the value of the “Mandu”.
Petitioner had filed exceptions to the first libel, but
the only relief which it obtained from the District Court
as a result of those exceptions (R. 26) was an order re-
quiring the Great American Insurance Company to give
the names of the assignors (R. 29). Petitioner was thus
confronted with the necessity of securing some sort of
restraining order to prevent further periodic arrests,
since if such arrests continued it would be compelled to
| abandon its steamship service to the United States (R.
198) and this because of a collision which oceurred in
Brazilian waters, between vessels one of which was
German and the other Brazilian. If these allegations
that an American insurance company was in fact the
: beneficial owner of some of these claims by subrogation
; and of the remainder by assignment for a valuable con-
sideration had been true, it would have been useless for
.—
your petitioner to contest the jurisdiction, sinee in’ such
case theg@e could be no question of the jurisdiction. ven
in cases of diversity of citizenship, if an assignment is
valid and is for a valuable consideration, then the citizen-
ship of the assignee determines the fact of citizenship
for the purposes of the question of diversity of citizen-
ship. Barney v. Baltimore City, 6 Wall. (73 U. 5.) 280,
at page 288 There was no way by which the petitioner
could challenge the libel by excepting to the right of The
Great American Insurance Company since Judge Camp-
bell’s decision was not appealable. Ilence, unless peti-
tioner was willing to forego all earnings of its vessel while
it remained tied up at New York awaiting the decision of
the court, as a practical matter petitioner was forced to
obtain a restraining order by filing a petition to limit
its liability. Accordingly, petitioner filed its petition for
limitation of or exoneration from liability (R. 52) and
on December 10, 1930, gave bail in the limitation pro-
ceeding in the sum of $281,650 “to obtain release of the
‘Mandw’ and to prevent her further arrest and to prevent
any further disorganization of petitioner's business by
any further libels & 8 9” (8. 2tS).
Thereafter The Great American Insurance Company
filed a claim in the limitation proceeding, in which it again
alleged that it) was subrogated “to all [of Orenstein &
Koppel’s and Siemens Schuckert Werke’s| claims against
the steamship ‘Mandu’ arising out of said collision” (R.
90) and alleged that it held assignments acquired “for a
valuable consideration” (R. 99) from other claimants, all
of which were foreign and most of which were German.
In the answer to the petition filed by The Great American
Insurance Company it was alleged: “Thereafter, for 4
valuable consideration, said claims and causes of action,
the details of which are particularized in this claimant’s
Ba tl Ba oe
at as.
ae 7 PE
Roe aa nee Wee ENT Ow ASSES
——
aforesaid claim, were duly assigned to this claimant, and
this claimant is now the owner thereof” (R. 19). The
claim so filed by The Great American Insurance Company
amounted to $364,008.14 (R. 101, 117). The allegations
of the claim and of the answer, if true, were sufficient to
support The Great American Insurance Co.'s right to sue,
These allegations were that the original owners of the
claims had really transferred the claims to The Great
American Insurance Company. Barney v. Baltimore City,
6 Wall. (73 U.S.) 280, 288.
Nearly five years after the arrest of the “Mandu’, upon
the return of claimant's letters rogatory from Germany
(later suppressed on motion, R. 145, 153, 161), petitioner
obtained information indicating that The Great American
Insurance Company was not the real party in interest
and that claimant’s interest by way of subrogation repre-
sented a small fraction only of such claims, and that
no whole claim had been acquired by the claimant by
subrogation. In this situation petitioner moved to amend
iis petition for exoneration from and limitation of lia-
bility in two particulars (a) by inserting in the petition
new allegations (Article Fourteenth, R. 173) challenging
claimant’s right to sue and new allegations (Article Thir-
teenth, R. 172) pleading the Brussels Convention. In
addition similar allegations were added to the objection
to the claim (R. 174). Thereafter claimant filed exeep-
tions to petitioner’s amended petition and amended ob-
jection to claims (R. 208). These exceptions were over-
ruled by the District Court by order entered June 10, 1956
(R. 217). The case then came on for trial.
At the trial the claimant offered no testimony sup-
porting its right to sue except in respect of shipments
by (1) Siemens Schuckert Werke, A. G. and (2) A. Bor-
sig. With respect to the first, it appeared that the claim-
ant’s interest as insurer was merely a small fractional
Raa aceite a
part of that claim, that is, 24a0) or only $164.69 out of
a claim of $6,587.50 (R. 509). Therefore it appeared
that the allegation of the claim that the claimant had
become subrogated to the entire claim with respect to
this shipment (R. 90) was untrue, With respect to the
interest of A. Borsig, it appeared that the entire loss
had been paid by a German insurance company which
had assigned its interest to the Great American In-
surance Company without consideration and solely for
the purpose of permitting the Great American to collect
for the benefit of the German insurance company (R.
875, 506). When this evidence had been given, the
petitioner immediately moved to dismiss the libeis and
elaim filed by The Great American Insurance Company
and for permission to withdraw its petition for limitation
of liability (R. 379, 383). The District Court did not
consider the question of fault of the respective vessels
but held (by decision dated July 21, 1937, Opinion, R.
500) that since The Great American Insurance Company
was not the real party in interest (R. 505-6) and was
not subrogated to any full claim (R. 506) it had no
rieht to sue (R. 907). The Court thereupon indicated
that the claim should be disinissed, but in order not to
foreclose persons holding honest claims, it directed an
extension of time, for sixty days, to permit them to file
claims (R. 508). Decision was reserved on petitioner's
motion for leave to withdraw the petition (R. 509). An
order was entered in accordance with this decision (R.
510). The Court included in this order the following
provision: “that in the event no such valid claims be
filed within the said time, then the said motion to with-
draw the petition shall be allowed and the present claim
dismissed” (R. 912).
Thereafter a large number of new claims were filed
within the time limited by the Court. Petitioner filed
i
=
ae va
exceptive allegations and exceptions to these claims (CR.
598), and upon petitioner's motion, claimants were re-
quired to disclose the real owners of these claims (R.
620), As a result claimant filed a schedule (R. 622
on November 4, 1937, six years after the libel was filed,
from which it was ascertained for the first time that
the real parties in interest were sixty-four Germans, nine
Brazilians, four Belgians, four Argentinians, three
Frenchmen, three Hollanders, two Czecho-Slovakians, one
Austrian, one Pole, one Knglishman, one Swiss and one
Portuguese, No United States citizen was interested.
PAF EPEAT SE LONER NREL IY LA
The sole interest of The Great American Insurance Com
pany was 2! percent of a claim of $6,587.50, or the
insignificant sum of $164.59 out of claims aggregating
more than $350,000, That is to say The Great American
Insurance Company by reason of a small fractional inter-
Ri al ao
est in one comparatively minor claim had jeopardized
petitioner's business by arresting petitioner’s vessel and
holding her to bail for hundreds of thousands of dollars.
| Upon a hearing on petitioner's exceptions to the new
claims the Distriet Court found that: (1) There was “no
longer before the Court any claim by any United States
citizen” (R. 638); that “all of the Claims are those of
foreign underwriters” (R. 639); that the collision o¢
curred in the territorial waters of Brazil between a Ger-
man vessel and a Brazilian vessel (R. 636) ; and that the
Court should “no longer retain jurisdiction of this ne-
tion” (R. 64). (2) The new claims were barred by thie
two year limitation of the Brussels Convention (R. 640).
(3) The new claims were barred by the Statute of limita
tions of the State of New York (R. 640) and by laches
(R. 641). The Court also said:
“There is no doubt that the United States citizen
(The Great American Insurance Co.) was endeavor-
at Ons tch eaP Ab. aD tA TRE Aca tn A EOP EN Te Fe AE EIN AER
S
ing to represent foreign underwriters by allegations
which were either not proven or shown to be false
** (R. 638).
The Court thereupon entered an order dismissing the
claims and permitting the petitioner to withdraw its
petition (R. 676-679).
The Great American Insuranee Company appealed to
the Cireuit Court of Appeals for the Second Cireuit (R.
G86), and assigned errors (R. 708) which may be sum-
marized as follows:
First: This Court erred in holding that a party libel-
lant in an Admiralty proceeding must be the real party
in interest and that an assigninent without consideration
and for the purpose of permitting an assignee to bring
suit is insufficient to permit a suit to be brought in the
Adiiralty.
Second: The grounds for dismissal of the new claims
in the final deeree were insufficient.
Third: The Court should not have permitted — the
Brussels Convention to be pleaded.
The Cireuit Court of Appeals held that the first of
these assignments was well taken, but that the second and
third were not well taken. The Court reversed the decree
of the Distriet Court and sent the case back for decision on
the merits between the petitioner and The Great American
Insurance Company (R. 738h). This petitioner then sought
a stay of the mandate to provide an opportunity for an
application to this court for a writ of certiorari. The
Great American Insurance Company opposed that stay
on the ground that the case should not be brought to
EE Br te Aiad TUR POPS H P S RPL BATT
this court piecemeal. The Cireuit Court of Appeals ruled
with The Great American Insurance Company and sent
the case back to the Distriet Court for prompt hearing
on the merits. After argument and consideration of the
evidence the District Court filed its opinion on the merits
(R. 2160) and made Findings of Fact and Conclusions
of Law (R. 2173). The District Court held that the col-
lision occurred as a result of the fault of both the S.S.
“Denderah” and the S. S. “Mandu™ and entered an inter-
locutory decree against the “Mandu” for half damages
(R. 2171-3). The opinion of the Distriet Court was not
reported in the Federal Reporter system but appears in
the Record (R. 2160-71) and may also be found in 1959
A. M. C, 1813.
This petitioner appealed from the decree holding the
“Mandu” at fault and the petitioner liable for half dam-
ages. The Cireuit Court of Appeals has now by its
opinion (R. 2204; 114 F. (2d) 361) modified the deeree
of the District Court and held that the “Mandu” was
not equally at fault with the “Denderah” for the collision ;
that the faults of the “Denderah” were “four times as
*; and that this
petitioner should not be held for half damages, but should
serious in degree as those of the *Mandw
respond for only one-fifth of the damages to cargo on the
“Denderah” (R. 2208).
The questions which are presented for consideration
Ly this Court arise out of the following errors of the
Circuit Court of Appeals for the Second Circuit:
Lis eae ae
Il.
Errors contained in the first decision of the Circuit
Court of Appeals, which is reported under the style
of The Mandu, 102 F. (2d) 459.
It is respectfully submitted that in its first decision
the Cirenit Court of Appeals erred in the following par-
ticulars:
(1) When it held that jurisdiction in Admiralty may
be based on a bare assignment without transfer of owner-
ship, given without any consideration whatsoever, not in-
tended to transfer any beneficial interest, but merely a
colorable assignment given solely for the purpose of per-
mitting suit to be brought (R. 738d)—The Mandu, 102
F. (2d) 459, at page 462.
(2) When it held that it is proper for a Court of the
United States to take jurisdiction of a controversy be-
tween foreigners (Germans and Brazilians) although no
American interest is involved in the controversy, on the
theory that the parties to the controversy “had no com-
mon home to which they might be sent to try their case”
(R. 738e)—102 F. (2d) 459, at page 462.
(3) When notwithstanding the District Court's finding
that the allegations in the libel that The Great American
Insurance Company acquired claims on which it sued as
owner thereof and for valuable considerations were false
and misleading, the Cireuit Court of Appeals neverthe-
less held that the petitioner was not misled “in any im-
portant particular” because petitioner must have known
all along “that the title of the Great American In claims
against Mandu, whether by subrogation or assignment,
ee ARTE AICL EDS (dhe ta SO WET ae z ite z . ee
came from foreign interests” (R. 738f). The Circuit
Court of Appeals disregarded the fact that it was the
allegations of ownership and valuable consideration which
misled the petitioner, not the fact as to the source of
the title to the claims.
(4) When it held that it was an abuse of discretion for
the District Court to refuse to retain jurisdiction because
of foreign interests at the stage which the ease had
reached (R. 738e, f), although the motion to dismiss the
claim was made immediately it appeared that the clain-
ants’ allegations as to the assignments and subrogation
were unirue.
Il.
Errors contained in the second opinion of the Cir-
cuit Court of Appeals which is reported under the
style of The Mandu, 114 F. (2d) 361, 363.
It is respectfully submitted that in its second decision
the Cirenit Court of Appeals also erred:
Notwithstanding “glaring faults” of the S. 5. “Denderah”
(the German ship), which it held were four times as
ereat as those of the S. 5. “Mandu” (the Brazilian ship),
the Cireuit Court of Appeals held that the S. 8. “Mandu”
was also at fault and that your petitioner, as owner of the
“Mandu”, is liable for one-fifth of the damages beeause of
“inferential faults” on the part of the “Mandu”, although
it said that “if the District Judge had seen fit to apply the
rule that where fault on the part of one vessel is clear and
of itself sufficient to account for the collision, doubts as to
the management of the other vessel should be resolved in
her favor” we should have hesitated to ov errule him (R.
2203). The Court overlooked the fact that the District
Court refused to apply the well-settled rule that when one
is
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12
vessel is guilty of glaring faults, the other vessel should
not be held guilty of contributing fault without clear and
convineing proof (The Victory and The Plymothian, 168
U.S. 410, 423; The City of New York, 147 U.S. 72, 85).
The District Judge found that the fault of the “Mandu”
consisted in proceeding at all after giving her third one
blast signal (Conclusions 17 and 18, R. 2184) when the
vessels were half a mile apart, although the “Denderah”
immediately replied with one blast (dg. 93, R. 2179).
The Cireuit Court of Appeals held that this was four
minutes before the collision (R. 2206) and that there was
no reason why “the ‘Mandu’ should have sensed danger
when she sounded her third one blast signal” (R. 2207).
When the Circuit Court of Appeals reversed the holding
of the District Court, there was no holding of the District
Court relating to fault of the “Mandu” to be affirmed.
Consequently, when the Circuit Court of Appeals resolved
the doubt as to fault of the “Mandu” against her, on the
theory that it was merely not disturbing a holding of the
District Court, it was in error. What the Court did was
to resolve a doubt as to the fault of the “Mandu” against
her. Its action in so doing was in square conflict with
the cases cited.
Reasons For Grantinc THE Writ.
(1) The first of the decisions of the Cireuit Court of
Appeals is in square conflict with Fretz v. Bull, 12 How.
(53 U. S.) 465, 468, where this Court said:
“In admiralty, the party entitled to relief should
always be made libellant; and the practice of in-
stituting a suit in the name of one person for the
benefit of another, to whom the right has been trans-
ferred, only obtains in particular cases.”
a ss BN FOE - - EEL ————————«<«—_—
13
The language quoted is taken almost verbatim from
Benedict on Admiralty, Ist Ed. §380, the standard work
on Admiralty practice.
(2) It is also in conflict with decisions in the Fifth and
Ninth Cireuits. In The Trader, 129 Fed. 462, 471 (D.C.
W. D. W.) Judge Hanford said:
“The intervening libellant has no standing im a
court of admiralty, for the reason that the evidence
proves affirmatively that he has no interest in any of
the matters in controversy. He paid nothing to either
of the owners of merchandise or baggage alleged to
have been lost or damaged, and the several assign-
| ments of claims alleged in his libel were intended to
| vive only color of a right to sue for damages. Courts
of admiralty do not encourage litigation by mere
volunteers. The Prussia (D. C.) 100) Fed. 486;
Minturn vy. Alexandre (D. C.) 5 Fed. 119; Fretz v.
Bull, 12 How. 468, 13 L. Ed. 1068.”
The Cireuit Court of Appeals overlooked the foregoing
decision and cited in support of its views the decision in
the case of The Rupert City, 213 Fed. 263 (R. 738d), a de-
cision by Neterer, J., in which the prior decision of the
same court in the case of The Trader was overlooked. In
the subsequent decision in The Eemdyjk, 286 Fed. 585,
Judge Neterer recognized the authority of The Trader,
129 Fed. 462, in a case where the assignee had no bene-
ficial interest.
In the Fifth Cireuit in the case of The Eastfield SS.
Co. v. McKeon, et al. (S. D. Ala.) the District Court cited
Senedict on Admiralty, Ist Ed., See. 380, and Fretz v.
Bull, 12 How. (53 U. 8.) 465, as the law and stated the
rule as follows: “As a general rule, the libel should be in
the name of the real party in interest.” Eastfield S.S.
ee et et
——— TE
14
Co. v. McKeon, 186 Fed. 357, 358-9. On this principle, it
dismissed the libel. The Circuit Court of Appeals for the
Fifth Cirenit approved the Distriet Court's statement of
the law, Eastfield S. S. Co. v. Mckeon, 2O1 Fed. 465, 470,
but reversed the decision “upon the peculiar undisputed
facts shown by the evidence”.
(2) The decision below is in square conflict with the
decision of this Court in Canada Malling Co. v. Patterson,
285 U.S. 413, and in Charter Shippiig Co. Vv. Bowrimg, 231
U.S. 515. In Canada Malting Co. v. Patterson, 285 U.S.
413, this Court said:
“The rule recognizing an unqualified discretion to
decline jurisdiction in’ suits in admiralty between
foreigners appears to be supported by an unbroken
line of decisions in the lower Federal courts.”
This rule was approved and applied by this Court in that
case and again in Charter Shipping Co. Vv. Bowring, 23)
U.S. 515. The decision of the Circuit Court of Appeals
ix not supported by the cases which it cites, to wit: The
Belgeulaud, lit U.S. 355, and Thomassen v. Whitwell, 9
Ben. 113, Fed. Cas. #15928. Kach of those cases involves
collisions which oceurred on the high seas, whereas the
present case involves a collision which occurred within
the territorial waters of Brazil. The present decision,
which invites foreigners, who have suffered losses within
the territorial jurisdiction of one of them, to seek the
jurisdiction of the United States Courts, because there is
“no common forum”, is, we respectfully submit, not sup-
ported by any authority. It is further respectfully sub-
mitted, that any such doctrine is dangerous and sug-
vests that the Courts of a foreign country are unfit to deal
with cases arising within their territorial jurisdiction.
Although there is no question of the right of an Amer-
ienn citizen, who is the real party in interest, to have his
ada page Pe RICO AROSE T BIE ALTI AD Ae A EON ANT A RI EE LY ee
15
cause tried in an American Court, this fact is no basis
for granting such right to foreigners, who merely seek the
jurisdiction of our Courts because they wish to avoid the
Courts of the country where the tort occurred. These
German claimants, who by colorable assignments, con-
veyed bare legal title to their claims to an American
assignee, nevertheless retaining their actual ownership of
these claims, could not thereby acquire the right to
come into our courts under the cloak of such an assign
ment to an American bill collector. The decision below
by condoning false and misleading allegations in the libels
and claim made to support jurisdiction in the Courts of
the United States, is squarely in conflict with the decision
of this Court in Armour v. Ft. Morgan 8. S. Co., 270 U.S.
253, where this Court said at page 309;
“Jurisdiction in admiralty cannot be effectively
acquired by concealing for a_ time the facts which 4
establish that it does not exist.”
(4) The decision of the Circuit Court of Appeals on the
second appeal where it held the steamship “Mandu” guilty
of “inferential faults” (R. 2208), although the “gross ;
faults of the ‘Denderah’” were four times as great as
that of the “Mandu”, is in square conflict with a long line
of decisions of this Court which hold that where the
fault of one vessel is clear and gross, and of itself suf-
ficient to account for the collision, any fault of the other
must be established by clear and convincing proof,
The City of New York, 147 U.S. 72, 89;
The Umbria, 166 U.S. 404, 409;
The Victory and The Plymothian, 168 U.S. 410,
423;
The Great Republic, 23 Wall. 20, 25.
It is also in square conflict with decisions to the same
effect in the other Circuits.
The Priscilla (C. es A. 1), 55 F. (2d) 32,
Le Flandre (C. C. A. 3), 9 F. as ips 332;
The Lizzie M. W oe (C. C. ‘ 4), 3 F. (2
922;
The Wolsum (C. C. A. 5), 14 F. (2d) 371, 376;
Lake Erie Transp. Co. v. Gilchrist Transp, Co.
(C. C. A. 6), 142 Ped. 89, 95;
Goodrich Transit Co. v. City of Chicago (C. ¢
A. 7), 4 F. (2d) 636, 638;
Northern Nav. Co. v. Minnesota Atlantic Trausp.
Co. (C. C. A. 8), 49 F. (2d) 203, 207;
Pacific Spruce Corp, v. San Francisco (C. C. A.
9), 72 F. (2d) 712, 714
37 |
1) 921,
'
The decision below is also in conflict with the well-settled
rule established by the decisions of this Court and in
the other Cirevits that where a vessel has been placed
in extremis by glaring faults of the other, the vessel thus
placed in extremis should not be held at fault except upon
the clearest evidence.
The Elizabeth Jones, 112 U. S. 514, 526;
The Maggie J. Smith, 123 U.S. 349, 355-6 ;
The Oregon, 158 U. S. 186, 204;
Rideout v. Charles Nelson Co, (C. C. A. 9), 99
F. (2d) 783, 785-6;
The Sea Gull, 23 Wall. 165, 181;
The Nacooche, 137 U.S. 330, 340;
The Carroll, 8 Wall. 302, 306;
The Norne (C. C. A. 5), 59 F. (2d) 145, 148;
The Clara Mattheu (D. C. Mass.), 25 F. (2d) 123,
124;
The Shawmut, (IK. D. Pa.), 261 Fed. 616, 622.
All of the foregoing questions are of the greatest im-
portance. If this Court is to grant a writ of certiorari
on the petition of The Great American Insurance Cour
pany, it is respectfully submitted that these questions
should also be reviewed by this Court.
Wuererore, petitioner prays that this Court issue a
writ of certiorari to the United States Cirenit Court of
Appeals for the Second Circuit, directing that it send to
this Court for review a full transcript of the record in
the said Cirenit Court of Appeals for the Second Cireuit
in the ease entitled In the Matter of the Petition of Com-
panhia de Navegacao Lloyd Brasileiro for exemption from
or limitation of its liability as owner of the steamship
“Mandu’, The Great American Insurance Company, et al.,
Claimants-Appellants, Companhia de Navegacao Lloyd
Brasileiro, Petitioner-Appellee, being No. 197 of the United
States Cirenit Court of Appeals for the Second Cireuit,
October Term 1938, reported as The Mandu, 102 F. (2d)
545, and further entitled In the Matter of the Petition of
Companhia de Navegacao Lloyd Brasileiro for exemption
from or limitation of its liability, as owner of the steam-
ship “Mandu”, Companhia de Navegacao Lloyd Brasileiro,
Petit ner-Appellant, The Great American Insurance Com-
pany, Claimant-Appellee, being No. 388, October Term,
1940, reported as The Mandu, 114 KF. (2d) 361, and
that the decision of the Cireuit Court of Appeals
for the Second Circuit, dated March 6, 1989, reported
102 F. (2d) 459, and the order entered thereon Mareh 27,
1939, and the decision of the Cireuit Court of Appeals for
the Second Circuit dated July 27, 1940 reported 114 F.
(2d) 361, and the order entered thereon Angust 21, 1940,
be reversed and that the final decree of the District Court
entered herein on the 9th day of February, 1958 (R. 1676)
be restored, that the claim of The Great American In-
RP RITE LEE MA A Sob ew 1S AN Ae IA
AF AMAONALANT WRU LON Aah AI ALIAN AANA Nie INE BON ENON INT .
surance Company be dismissed, and for such) further
relief in the premises as may be just.
Dated, New York, N. Y., November 19, 1940.
COMPANHIA pe NAVEGACAO LLOYD
BRASILEIRO,
By) Frank J. McConnens,
Proctor.
James D. Brown,
T. CaTessy JONES,
Leonarp J. MATTESON,
Counsel.
IN THE
Supreme Couwt of the United States
OCTOBER TERM, 1940.
Nos.
»™
>
In the Matter
of the
Petition of Companuia pe Navecacao Liuoyp Brasiterno,
for exemption from or limitation of liability, as owner
of the Steamship “Manpeu”,
Companuta bE Navecacao Liuoyp Brasiteto,
Petitioner-Shipowner,
Tie Great Amerntcax Ixsurnaxce Company, ef al.,
Respoudents-Cargo Claunauts.
=
—< >
BRIEF FOR PETITIONER SHIPOWNER.
The Opinions Below.
The Opinions of the District Court.
The opinion of Campbell, D. /., dated August 22, 1950,
on exceptions to the first libel is not officially reported
but is unofficially reported, 1980 A. M. C. 1672. It is
printed in the Record, R. 28.
The opinion of Campbell, D. J., dated September 4,
1935, on motion to suppress interrogatories ix ollicially
reported at 11 F. Supp. 845 and unofiicially reported,
1935 A. M. C. 1194.) It is printed in the Record, R. 155.
The opinion of Moscowitz, D. J.. dated June 3, 1956,
oOo
20
on claimants’ exceptions to the amended petition is offi-
cially reported at 15 BF. Supp. 627 and unoflicially re-
ported, 1936 A. M. C. 816. It ix printed in the Record,
R. 210.
The opinion of Inch, D. J., dated July 21, 1937, dis-
missing the claim of The Great American Insurance
Company but allowing time for the filing of additional
claims is officially reported at 20 F. Supp. 820 and un-
officially reported, 1937 A. M. ©. 1062. It is printed in
the Record, R. 500.
The opinion of Inch, D. J., dated December 6, 1957, on
petitioner’s exceptions to new claims directing the dis-
missal of the claims and allowing the withdrawal of the
petition is officially reported at 21 F. Supp. 372 and wn-
officially reported, 1938 A. M. ©. 45. It is printed in
the Record, R. 636,
The opinion of Inch, D. J., dated October 16, 1939, on
the merits is not. officially reported but is wnofficially
reported, 1939 A. M,C. 1313. It is printed in the Record,
R. 2173.
The Opinions of the Circuit Court of Appeals.
The opinion of the Cirenit Court of Appeals on the
first appeal dated Mareh 6, 19389, reversing the decree of
the District Court dismissing the claims, and sending
the ease back for decision on the merits is officially
reported at 102 F. (2d) 459 and is unofficially reported
at 1939 A. M. C. 287. It is printed in the Record, R. 738a.
The opinion of the Cireuit Court of Appeals on the
second appeal is officially reported at 114 IK. (2d) 361
and is unofficially reported in 1940 A, M. C. 1150. It is
printed in the Reeord, R. 2204.
91
Jurisdiction of This Court.
This is an admiralty proceeding instituted by Com-
panhia de Navegacao Lloyd Brasileiro for exemption
from or limitation of its liability as owner of the Brazil-
lian steamship “Mandu” by reason of a collision be-
tween that vessel and the German steamship “Denderah”
in the Harbor of the Port of Santos, Brazil, in the terri-
torial waters of the Republic of Brazil, on July 31, 1929,
as a result of which the “Denderah” sank. The juris-
diction of this Court is invoked under See. 240° of
the Judicial Code, as amended by the Act of February
13, 1925; 43 Stat. 938, 28 U. S. C. A., See. 347.
Facts.
The case has been stated in the petition. The follow-
ing summary of the findings of faet of the District Court
and of the Cireuit Court of Appeals which are coneur-
rent, may be helpful.
The collision occurred at 7:27 P.M. on July 31, 1929.
The “Mandu” was bound out of Santos Harbor and
Was approaching a final right angle turn in the channel
leading to sea when she sighted the “Denderah” well
to port beyond the turn in the channel, bound in. The
Cirenit Court of Appeals found concurrently with the
District Court that the vessels were then a mile apart,
and that, alihough the apparent course of the “Denderah”
was across the bow of the “Mandu”, the situation was
in fact one of two vessels meeting rather than crossing.
(See this Court’s decision in The Victory and The Ply-
mothian, 168 U.S. 410.) The “Mandu” twice sounded
a one-blast signal to the “Denderah” and each time
directed her course slightly to her starboard. Never-
theless, the “Denderah” did not answer either of these
SST US HOMER SESS eT PE ae,
SEPA A R e
er
BAe Ye
»-
signals (R. 2205). The steamship “West Calumb”, which
was following the “Mandu” out, turned to her port side of
the channel and sounded a two blast signal to the “Den-
derah”. The “Denderah” answered with two blasts. Be-
cause of poor lookout and inattention, those on the “Den-
derah” believed that the two blast signal which they an-
ewered had been blown by the “Mandu”. The “Mandu”
then blew a third one blast signal and again turned slightly
to her starboard. The “Denderah” immediately answered
with a one blast signal. The “Mandu” and the “Denderah”
were then about one-half mile apart. The “Mandu” had
reduced her speed and continued somewhat to starboard of
her original course. Four minutes elapsed between the ex-
change of the third one blast signals and the collision.
During part of this time, the Courts below found that both
vessels were reversing at full speed. Both Courts found
that the “Denderah”, if properly navigated, could have
passed port to port with the “Mandu” and starboard
to starboard with the “West Calumb”. The collision
oceurred at the turn in the channel within the “Mandu’s”
water, i. ¢., on the “Mandu’s” side of the channel (RK.
2?06).
The “Denderah’s” faults were numerous and glaring.
Although disputed in the District Court, they were con-
ceded in the Circuit Court of Appeals (R. 2206). She
entered a harbor of known danger, without a_ pilot, in
charge of a captain unfamiliar with the waters. She
had no lookout and her navigators were inattentive.
She violated the Narrow Channel Rule and for some un-
explained reason brought herself broadside across the
course of the “Mandu’, which had continually maintained
her course on her own starboard side of the channel
and had indicated by whistle signal that she intended to
do so. It is signifieant that the “Denderah’s” captain did
not testify and that the owners of the “Denderah” never
or
-~)
.
made any claim against the “Mandu™ (R. 2206). 0 The
only claims made against the “Mandu™ were by the claim
ant, The Great American Insurance Company, on behalf
of foreign interests, chiefly German (R. 2206).
POINT I.
The decision of the Circuit Court of Appeals on
the first appeal in this case which held that a bare
assignment without consideration and which was not
intended to transfer any beneficial interest to the as-
signee, is sufficient to enable such an assignee to
maintain a suit in admiralty is in direct conflict with
the decision of this Court in Fretz v. Bull and with
the decisions in the Fifth and Ninth Circuits.
In Fret: v. Bull, 12 How. (53 U.S.) 465, 468, this
Court said:
“In admiralty, the party entitled to relief should
always be made libellant; and the practice of insti
tuting a suit in the name of one person for the
benefit of another, to whom the right has been trans-
ferred only obtains in particular cases.”
This decision by this Court in 1851 adopted almost ver
batim the statement of this well-recognized principle of
Admiralty Jaw as set forth in’ Benedict on Admiralty,
Ist Kd, See. 880, whieh was cited by the Court.
In Benedict on Admiralty, Ist) Hd. (1850), See. 38d,
written by Erasmus C. Benedict, it was said:
“The party really entitled to the relief should
always be made libellant. The practice of instituting
suit in the name of one person for the benefit of
PEE AS hots tire Pear, Siw RA
another, to whom the right has been transferred,
and of making one person libellant as the representa-
tive of many others, does not obtain in admiralty,
though in cases of salvage and some other cases,
something analogous to it occurs as will be shown.”
This exact language was used in the Second Edition of
Benediet (1870) by the same authority and again in the
Third Edition edited by Robert D. Benedict (1894), See.
90), In the Fourth Kdition of Benedict (Edward @.
Benedict, 1910) See. 309, the language is slightly changed
but Fretz v. Bull, 12 Howard (53 U. 8.) 46, is cited
as the leading authority. The language Was again modi-
fied in the Fifth Edition of Benedict on Admiralty
(George V. A. McCloskey, 1925), See. 244. and again
Fretz v. Bull is referred to as the leading authority. In
the Sixth Edition of Benedict on Admiralty just pub-
lished (Arnold W. Knauth, 1940) the subject is further
diseussed, Sec. 245. This edition, published since the
first decision of the Cireuit Court of Appeals below in
the instant case, cites that case, The Mandu, 102 F. (2d)
459, for the proposition that causes of action for tort
are freely assignable except in eases of bodily injury
or wrongful death and may be prosecuted in Admiralty
in the name of the assignor or assignee. The author,
however, because of the present conflict finds it necessary
to say that merely colorable assignment of a foreign
claim to a citizen for the purpose of influencing the
Court to take jurisdiction of a wholly foreign cause of
netion has been disregarded”, citing this Court’s decision
in Canada Malting Co. v. Patterson, 285 UL S. 413, and
Goldman v. Furness Withy & Co. (S. PD. N. Y.) 101 Fed.
467.
It appears, therefore, that if the decision below is eood
law the established rule im Admiralty recognized and
-)
DOSE TOA OREO WN AEE TLAY Bae Ot EAE AERO tI tN BE oS ST er ee ee RU Se GEES
he
stated by this Court as long ago as Fretz v. Bull, 12 om
How. (53 U.S.) 465, may be disregarded, because in the ;
view of the first decision of the Cireuit Court of Appeals
in this case that rule is no longer law.
The Cireuit Court of Appeals bases its disregard of all
previous decisions and the rule as stated by the classic
work on practice in’ the Admiralty upon a decision by
Judge Neterer, in which he cites common law cases only
to sustain his decision, In the subsequent case of The
Eemdyjk, 286 Fed. 385, Judge Neterer, when he later
considered the same question did not even mention The
Rupert City, but referred to The Trader, 129 Fed, 462,
as the authority on the subject.
The decision of the Circuit Court of Appeals is in |
conflict with The Trader (W. D. Wash.), 129 Fed. 462, |
at pages 471, 472. In that case the Court dismissed the
claim of an intervening libellant based on an assignment
solely for the purpose of bringing suit, saying.
“The intervening libellant has no standing ina
court of admiralty, for the reason that the evidence
proves affirmatively that he has no interest Ino any
of the matters in controversy. He paid nothing to
either of the owners of merchandise or baggage
alleged to have been lost or damaged, and the several
assignments of claims alleged in his libel were in
l tended to give only color of a right to sue for dam.
, aves. Courts of admiralty do not encourage litiea
‘ tion by mere volunteers. The Prussia (D. ©.), 100
i Fed. 486; Minturn v. Alexandre (D. C.), 5 Fed. 119;
i Fret: v. Bull, 12 How. 468, 15 1. Id. 1068."
: To the same effect see:
i Wittig v. Canada Steamship Lines, Lid., 3 F.
l (2d) 428, 429:
The Lady Drake, 1. Supp. 31t, 31s.
|
" ——
The Cirenit Court of Appeals did not mention any of
“6
these decisions in its opinion when it said that the prac-
tice In admiralty was the same as that in the New York
courts. Its reliance was upon The Rupert City, 213 Fed.
963 (R. 738b), a case which we have shown is out of
line with all the authorities, and was disregarded by the
judge who decided ‘tin the later case of The Hemdyyk,
Y8G Fed. 385, 386. This Court cited The Bemduyk, 286
Fed. BSD, in Canada Malting Co. V. Patterson, 285 U.S.
413, 423. This Court ignored The Rupert City, 218° F.
63. The Eemdyjk was also commented upon in Wittig
v. Canada Steamship Lines, 99 F. (2d) 428, 450, wliere
it was said:
“In The Eemdyjk there is nothing to show that its
transfer was made simply to obtain jurisdiction.”
The decision of the Cireuit Court of Appeals is) in
confliet with the decisions in the Fitth Circuit. In the
ease of Kast field S. S. Co. v. McKeon, et al. (S. D. Ala.),
186 Fed. 357 the Distriet Court applied the law as stated
in Fretz v. Bull, 12) How. (93 U.S.) 465, 468, and in
Benedict on Admiralty, Ist. Eid., See. 380. The Court said:
“The party really entitled to the relief should
always be made libellant. The practice of instituting
a suit in the name of one person for the benefit of
another, to whom the right has been transferred, and
of making one person libellant as the representative
of another, does not obtain in admiralty, except in
certain cases, as of salvage and other cases some-
what analogous * * *" (p. 397).
Having found that the libellant had no interest in the
suit, the Court denied a motion to allow the libellant to
amend and to sue in a representative capacity. On ap:
peal, the Cireuit Court of Appeals for the Fifth Circuit
in Kastfield S. S. Co. v. McKeon (C. C. A. 5), 201 Fed.
a _
7
=~
465, approved the statement of the law by the District
Court but reversed its decision “upon the peculiar undis
puted facts shown by the evidence”, The Court said:
“We do not think it necessary to review and at-
tempt to harmonize the many authorities cited by
the learned proctors in their elaborate briefs, nor
those recited and relied upon by the District Judge
with whose main proposition that suits in admiralty
should be prosecuted in the name of areal party tu
interest, we agree, for we decide this case upon the
peculiar undisputed facts shown by the evidence”
(p. 470). (Italics ours.)
The decision of the Circuit Court of Appeals on the
first appeal is in conflict with the long established) prin-
ciples of Admiralty practice, as stated by this Court in
Fret: v. Bull, supra, and applied by the Courts in other
Cirenits and for that reason should be reviewed by this
Court.
POINT II.
The decision of the Circuit Court of Appeals upon
the first appeal holding that the refusal by the Dis-
trict Court to entertain jurisdiction in a suit between
foreigners arising out of a collision occurring in the
territorial waters of a foreign country where jurisdic-
tion was supported only by a colorable assignment of
claims, without consideration and without transfer of
beneficial ownership, was an abuse of discretion, is in
square conflict with the decisions of this Court in
Canada Malting Co. v. Patterson, 285 U. S. 413 and
other cases.
In Canada Malting Co. v. Patterson, 285 U.S. 418, 421,
this Court said:
“The rie recognizing an unqualified discretion to
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decline jurisdiction in) suits in admiralty between
foreigners appears to be supported by an unbroken
line of decisions in the lower Federal.Courts.”
This Court approved and applied this rule and in that
‘ase, Which was an action for cargo damage which occurred
on a Canadian vessel plying the Great Lakes between
Canadian ports, resulting from a collision which occurred
ay American waters, this Court) affirmed the dismissal
of the libel, saying:
“It is difficult to conceive of a state of facts more
clearly justifying the refusal of a District Court to
retain jurisdiction ino a cause between foreigners”
(p. 424).
In this case, it now appears, without question, that
the libellants and claimants are all foreigners; that their
claims arise out of damage to cargo almost entirely
German owned, laden on a German vessel damaged or lost
as the result of a collision which occurred in the terri-
torial waters of Brazil in the Harbor of Santos, more
than 5.000 miles from the jurisdiction of the Court where
action was brought. Your petitioner is a Brazilian cor-
poration and the steamship “Mandu” was a Brazilian
vessel. We submit that it is difficult to conceive of a state
of facts more clearly justifying the refusal of the Dis-
trict Court to retain jurisdiction of this cause between
foreigners.
The statement of this Court in Canada Malting Co. Y.
Patterson. 285 U.S. 413, 421, quoted supra, was but a
restatement of the position which it had taken in Charter
Shipping Co. vy. Bowring, 281 U. S. 515. Among: the
decisions of the lower Federal Courts referred to in the
passage quoted are the following:
The Faleo, 20 F. (2d) 362 (C. C. A. 2);
The Lady Drake, 1 F. Supp. 317, at page 318;
, ‘
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“M) ;
~~
Wittig v. Canada S. S. Lines, Lid. (WL DLN. ah
a9 F. (2d) 428;
The Beaverbrae (Ke. DLN. Y.. Campbell, Do /.),
6O FL (2d) 363;
The Paula (Peters ease) (CLC. AL 2), 91 BR. (2d)
1001;
The Tricolor, 1 F.Supp. 934 0S. DLN. YL), af-
firmed (C. C. A. 2), 6 F. (2d) 392.
he
PRAT WA GH STL FE EERO N HIRE IEE
SAA AIMEE PROMS MER MLO eR
The District Court, observed in this case that:
“There is no doubt but that the United States
citizen was endeavoring to represent foreign under-
writers by allegations which were either not proved
or shown to be false, but in no instance could this
claim of the United States citizen be held a) elaim
filed in a representative capacity. On the contrary,
it was one filed in its own alleged right. This elain
was held to be invalid and not capable of amend
ment” (R. 658).
The allegations of the libels and the claim were that
The Great American Insurance Company, as assignee of
the claims “for a valuable consideration” was “now the
owner and holder thereof” (R. 24, Ro. 39, Re 50, RL 95).
These allegations were not sustained because the District
Court found “all the claims now sought to be enforced are
those of foreign underwriters of cargo on a German ship
damaged in a collision with another foreign ship in foreign
waters” (R. 638), and that the efforts to prove areal
transfer failed for want of proof or for false proof,
It is elementary that jurisdiction cannot be obtained
in Admiralty by concealment or by pleading misleading
facts.
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.