Petition for A Writ of Certiorari — Papanikolaou v. Atlantic Freighters, Ltd.

a GOR RE

JUL 5 1956

ati

Supreme Court of the United States

OCTOBER TERM 1956

No. 140

EVANGELOS PAPANIKOLAOU,

Petitioner

VERSUS r

ATLANTIC FREIGHTERS, LTD., and S. LI- oe

VANOS SHIPBROKERS, LTD., both foreign es

corporations or associations, as owners and/or operators

of the Liberian Steamship “ATLANTIC COAST”,

Respondents

rate

if

SES

ON OPPOSITION TO PETITIONER'S APPLICA-

TION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF VIRGINIA

Harry E. McCoy

Charles R. Dalton, Jr.

Seawell, Johnston, McCoy & Winston = Counsel for Respondents

936 Wainwright Building,

Norfolk, Virginia Jane 25, 1956,

eS

IN THE

Supreme Court of the United States

OCTOBER TERM 1956

No. 1005

EVANGELOS PAPANIKOLAOU,

Petitioner

VERSUS

ATLANTIC FREIGHTERS, LTD., and S. LI-

VANOS SHIPBROKERS, LTD., both foreign

corporations or associations, as owners and/or operators

of the Liberian Steamship “ATLANTIC COAST”,

Respondents

ON OPPOSITION TO PETITIONER’S APPLICA-

TION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF VIRGINIA

Seawell, Johnston, McCoy & Winston

936 Wainwright Building,

Norfolk, Virginia June 25, 1956,

INDEX

Page

EXCEPTIONS TO JURISDICTION OF COURT... 1

THE SOLE QUESTION PRESENTED......WW------n--nmem = 3

Does a State Trial Court Have the Discretion and Author-

ity to Decline Jurisdiction of the Subject Matter in An

Attachment Proceeding Between An Alien Seaman and An

Alien Shipowner, Wherein the Alleged Causes of Action

Did Not Arise Within the Commonwealth of Virginia

steer or TT. «SS

ARGU MENT—

A. A State Trial Court Is Empowered with the Discre-

tionary Authority to Decline Jurisdiction of the Subject

Matter in An Attachment Proceeding Between An

Alien Seaman and An Alien Shipowner Wherein the

Alleged Causes of Action Did Not Arise Within the

Commonwealth of Virgimia...0.0.0cccccccncnnncenmnnmununne 9

B. The Constitutionality of the Virginia Attachment

Statute (8-524.1) Is a Moot Question and Cannot Be

ae TR i cssctreocegetionsinaeccdienieee 14

C. The State Trial Court Properly Declined Jurisdiction

ae cee | Oe

CONCLUSION

TABLE OF CASES

Page

Adkins v. City of Richmond (1900), 98 Va, 91, 34 S.E. 967... 15

The BELGENLAND (1885), 114 U.S. 355, 5 S.Ct. 860... 13

Elizabeth M. Brookhouse v. Cunard White Star, Ltd. et al,

I a oe a saat aac i anicearene 11

Canada Malting Co., Ltd. v. Pasian Suieedien. Ltd. (1932),

ZEUS GB 41S, SZ GE, FAB cscs 12

Charter Shipping Co. v. Bowring, Jones & Tidy, Ltd.,

281 U.S. 515, $0 Se. 400, 74 L.Ed. 1006... 15

The FLETERO (1953, 4th Cir.}, 206 F. (2d) 2670000000000... 13

Garrett v. Moore-McCormack Co., Inc. (1942), 317 U.S. 239,

os Gack 26, 87 LE 2. 14

Heros v. Cockinos (1949 4th Cir.), 177 F. (2d) 5700000000. 13

Hodges v. Richmond Cedar Works (1917), 120 Va, 492,

SE” ee ees EC lee SI eel A ee Ae et AOI A Ae 15

Saad Mohamed H. Aly v. The Alexandria Navigation Co, and

American Export Lines, Inc., 1943 A.M.C, 1134; 43 N.Y.

Supp. (2d) 1949, Appeal Dismissed 52 N.Y. Supp. (2d)

784 .. we 10

Randall v. yee of Cintaleieners oF Ti ippecanoe County, etc.

(1923), 261 U.S. 252, 43 $<. 252... 2

Rust Sand & Lumber Co. v. Jackson et al, 250 U. S. 71, 39 s. Ct.

424, 63 L.Ed. 850... ae

Sanderlin v. Smyth (4th C Cir, 1943), 138 ae Se 15

Toledo Scale Co. v. Computing Scale Co, (1923), 261 U.S. 399

43 S.Ct. 458, 67 L.Ed, 719 2

Traux v. Raich (1915), 239 U.S. 33, 36 S.Ct. 7, 60 LEd, BI 13

United States v. Brady (4th Cir. 1943), 133 F. (2d) 476... 15

Waller v, Commonwealth, 178 Va. 294, 16 S.E. 2d 808.0000. 16

Western Union Telegraph Co. v. Hughes (1906), 203 U.S. 505,

a BA. 162, 3) Le 2X... 2

TEXT BOOKS

Ba PE 898 cnc 10

STATUTES

I + RN sacs dc ev cca een en eaciasanooncieememeces 2

Title 8, Sec, 524.1 (Va. Attachment Statute) 0000 = 4

IN THE

Supreme Court of the United States

OCTOBER TERM 1956

No. 1005

EVANGELOS PAPANIKOLAOU,

Petitioner

VERSUS

ATLANTIC FREIGHTERS, LTD., and S. LI-

VANOS SHIPBROKERS, LTD., both foreign

corporations or associations, as owners and/or operators

of the Liberian Steamship “ATLANTIC COAST”,

Respondents

ON OPPOSITION TO PETITIONER’S APPLICA-

TION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF VIRGINIA

I. EXCEPTIONS TO JURISDICTION

OF COURT

This petition for writ of certiorari seeks to review

a final order denying jurisdiction entered on October

18, 1955 in the Corporation Court of the City of New-

port News, Virginia.

(1)

The Supreme Court of Appeals of Virginia has

heretofore refused to review this case. By order entered

in the Virginia Appellate Court on March 6, 1956 a

Writ of Error was refused. The effect thereof is to

affirm the judgment of the Corporation Court of the

City of Newport News, Virginia.

The instant petition for writ of certiorari was filed

in the Supreme Court of the United States on June 7,

1956, a period of ninety-three (93) days after the entry

of the Virginia Appellate Court’s order of March 6,

1956. Under the provisions of 28 U.S.C.A. 2101 (c),

petitioner is barred by a limitations period of ninety

(90) days from secking certiorari in this case.

Toledo Scale Co. v. Computing Scale Co. (1923),

261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719; Rust Sand &

Lumber Co. v. Jackson, et al (1919), 250 U.S, 71, 39

S.Ct. 424, 63 L.Ed. 850.

With the exception of the sole issue of the pro-

priety of the Trial Court’s action in exercising its dis-

cretion to refuse jurisdiction of this case, petitioner is

further barred from raising the remaining questions in

that the latter queries are improperly directed to the

Supreme Court of Appeals of Virginia instead of the

Corporation Court of the City of Newport News.

Western Union Telegraph Co. v. Hughes (1906), 203

U.S. 505, 27 S.Ct. 162, 51 L.Ed. 294; Randall v. Board

of Commissioners of Tippecanoe County, etc. (1923),

261 U.S. 252, 43 S.Ct. 252.

(2)

Il. THE SOLE QUESTION PRESENTED

In view of the facts hereinafter set forth, we cannot

agree with the statement of errors assigned and issues

raised in the petition for certiorari found on page six of

petitioner’s brief. Manifestly, there is but one issue.

ISSUE

Does a State Trial Court Have the Discre-

tion and Authority to Decline Jurisdiction

of the Subject Matter in An Attachment

Proceeding Between An Alien Seaman and

An Alien Shipowner, Wherein the Alleged

Causes of Action Did Not Arise Within the

Commonwealth of Virginia?

I. STATEMENT OF THE CASE

(For convenience, simplicity and in order to conform

with the designations contained in petitioner's bricf,

references to the record, as indicated by prefix “R”,

are to the original record as indexed by the Clerk of

the Corporation Court of Newport News. It is noted

that the Trial Court's Statement of Facts and the

Supreme Court of Appeals’ Order are not numbered,

although forwarded as part of the record.)

In general the respondent concurs with the sum-

mary of the record found on pages three, four and five

of the petition for certiorari. However, we feel that

there are several important omissions which should be

added.

(3)

On July 23, 1954, petitioner, Evangelos Papaniko-

laou, filed a petition for attachment against Atlantic

Freighters, Ltd. and S. Livanos Shipbrokers, Ltd., in

the Corporation Court of the City of Newport News.

In his petition for attachment Panaikolaou, a Greck

National, sought damages for personal injuries, wages,

maintenance, wage penalties and failure to provide

medical care, while employed aboard the Liberian

Steamship ATLANTIC COAST, owned and operated

by the respondents, both of which were alleged to be

alien corporations (R. 1).

However, petitioner did not see fit to attack or

proceed under the Virginia attachment Statute, Title 8,

Sec. 524-1, which provides that no ship of more than

twenty tons shall be attached unless the plaintiff shall

have first established to the satisfaction of the Judge of

the Court in which the attachment is filed, that he (the

plaintiff) has a reasonable expectation of recovering at

least one-half of the amount demanded in the petition

for attachment. This step can be taken only after rea-

sonable notice to the owner, agent or master of the ship,

and, at the time of appearance before the Judge, the

Court sets the amount of bond necessary to release the

ship from the levy of the attachment. The actual terms

of the statute are, as follows:

“Title 8, Sec. 524-1: Attachment of ships

boats and other vessels of more than twenty tons

No attachment against any ship, boat, or on

vessel of more than twenty tons, shall tssuc

the plaintiff or someone in his behalt, shall '

(4)

a -)

establish, to the satisfaction of the judge of the

court in which he files his petition for attachment

that he has a reasonable expectation of recovering

an amount exclusive of all costs, equal to at least

one-half the damages demanded in the petition for

attachment. Reasonable notice of appearance be-

fore said judge shall be given the owner, agent or

master of said vessel, and at the time of said ap-

pearance the court shall determine the amount of

such reasonable expectation of recovery and the

amount of bond necessary to secure the release of

said vessel if and when a writ be levied in accord-

ance with this section.

No attachment issued in violation of the pro-

visions of this section shall create a valid lien upon

the property sought to be attached, and no levy

made under authority thereof shall be of any

effect.”

Papanikolaou refused to procced pursuant to this

statute and by his attorneys obtained issuance of a levy

of attachment against all property of the defendants

except “ships, boats or other vessels of more than twenty

tons”. This levy was effected on July 23, 1954 by serving

a copy thereof on the local steamship agent for the

steamship ATLANTIC BREEZE (a different ship

from the steamship ATLANTIC COAST on which

Papanikolaou served) and also by serving a copy

thereof on the master of the steamship ATLANTIC

RREEZE (alleged to be owned and operated by the

‘endants) which was then in port. Neither the

mship agent nor the master of the steamship AT-

LN ETC RREEZE was named as co-defendant in the

‘or attachment and alleged to be in possession

sts belonging to the defendants, as required by the

+ Virginia, 1950, Title 8, Sec. 525. Nor did the

Sergeant's return reveal or disclose a levy upon

(5)

any specific items of property in the hands of the per-

sons served, a serquired by Title 8, Sec. 547 of the Code

of Virginia 1950. Timely pleas and motions to quash

the purported attachment were filed (ROVE, 13,35).

Subsequently on December 13, 1954 the timely

pleas and motions to quash were argued before the Hon.

Herbert G. Smith, Judge of the Court below, who

ruled that the purported attachment of July 23, 1954

was void as it did not comply with any of the afore-

mentioned sections of the Virginia Code and was but

an attempt to do indirectly what the attachment statute,

Title 8, 524.1 prohibits doing directly. An order to this

effect was entered on January 28, 1955 (R. 19).

In the interim and during the argument on the

motion to quash on December 13, 1954, Papanikolaou’s

attorneys decided to proceed pursuant to the attachment

statute and on that date Judge Smith entered an order

(after reasonable prior notice to defendants) fixing a

release from attachment bond in the amount of $10,-

000.00 (R. 18).

In view of the actions of petitioner’s counsel, the

several preliminary motions relating to attempted

service of process and purported attachments, became

and now remain irrelevant and moot as Papanikolaou

subsequently proceeded in accordance with the ship

attachment statute, Title 8, Sec. 524.1, and the respon-

dents posted the requisite release from attachment bond

as ordered by the Court.

(6)

Subsequently, on August 19, 1955, an attachment

was levied pursuant to statute on the steamship AT-

LANTIC COUNTESS (alleged to be owned and

operated by the same parties or defendants who own

and operate the steamship ATLANTIC COAST)

which was then in port.

The appropriate release from attachment bond in

the amount of $10,000 was posted by the master of the

steamship ATLANTIC COUNTESS on August 23,

1955, in accordance with the Court’s order.

Thereafter, respondent filed a Plea To The Juris-

diction and Motion to Dismiss (R. 24), which was sus-

tained and resulted in the final order of October 18,

1955, from which this appeal arises.

The Plea to the Jurisdiction and Motion to Dis-

miss alleged:

1. That Papanikolaou was and is a citizen of

Greece;

2. That Atlantic Freighters, Ltd., the owner of

the steamship ATLANTIC COAST, is a for-

eign corporation;

3. That the steamship ATLANTIC COAST is

registered under and flys the flag of the Re-

public of Liberia;

4. That Papanikolaou was employed aboard the

steamship at London, England, on August 8,

1953;

5. That Papanikolaou was injured aboard the

steamship while at Antwerp, Belgium, on

August 15, 1953;

VF)

6. That Papanikolaous signed off, or was dis-

charged from the steamship at London, Eng-

land, on May 5, 1954;

7. That the contract of employment between the

parties was not entered into in Virginia nor

even in the United States;

8. That Papanikolaous did not allege any causes

of action of any nature whatever, arising in

Virginia.

The foregoing factual allegations made by respon-

dents were freely admitted by attorneys for Papaniko-

lacu during argument on respondents Plea To The

Jurisdiction. The Statement of Facts as certified by the

Court below succinctly states this admission in the fol-

lowing language: .

“On October 18, 1955, respondents’ plea to the

jurisdiction came on for hearing and was argued

fully by respective counsel before the Honorable

Herbert G. Smith of the Corporation Court of the

City of Newport News, Virginia.

“At that time, respondent’s counsel reviewed

the separate allegations of Atlantic Freighters,

Ltd.’s plea to the jurisdiction which allegations

were corroborated substantially by the allegations

of libellant’s petition for attachment. Libellant’s

counsel did not deny a single allegation of respon-

dent’s jurisdictional exceptions, but took the pri-

mary position that an attachment of the rem im-

posed mandatory jurisdiction upon the Court.”

Disagreeing with the theory advocated by attorneys

for Papanikolaou, the Corporation Court of Newport

News exercised its discretion and authority to decline

jurisdiction of the subject matter in this attachment

(8)

proceding between an alien seaman and an alien ship-

owner Wherein the alleged causes of action did not

arise vithin Virginia. To this effect we refer to Para-

graph6 of the Statement of Facts, as follows:

“Upon consideration of libellant’s petition for

aitachment, respondent’s plea to the jurisdiction,

tke documentary exhibits, and argument of coun-

sd, this Court exercised its discretion to decline

jirisdiction of this suit involving a foreign seaman

aid a foreign ship, in which the petitioner’s injury

o:curred in a foreign port and the other secondary

ciuses of action arose out of the jurisdiction of this

Court.”

This appeal arises from a final order, dated Octo-

ber 13, 1955, of the Corporation Court of the City of

Newyort News dismissing the Papanikolaou suit upon

juriscictional grounds. In refusing to review this case,

the Sipreme Court of Appeals of Virginia has affirmed

the Trial Court’s discretionary act of declining juris-

dictian.

IV. ARGUMENT

‘n addressing our argument to the Court, we shall

first discuss the sole material issue and, thereafter,

answ2r briefly the secondary prints raised in the petition

for certiorari.

4. A State Trial Court Is Empowered with

the Discretionary Authority to Decline

Jurisdiction of the Subject Matter in An

Attachment Proceeding Between An

Alien Seaman and An Alien Shipowner,

Wherein the Alleged Causes of Action

Did Not Arise Within the Common-

wealth of Virginia.

(9)

Oe ae ee ich ali ,

STS petal alta aS arty ey IL

Avs

Bia

There is no provision in the Virginia attachment

statutes making it mandatory on a Trial Court to accept

jurisdiction of the subject matter of a controversy be-

tween non-resident aliens. This is particularly true

where the alleged causes of action did not arise in

Virginia.

On the contrary, in the absence of such a statutory

provision, jurisdiction of such actions between non-

resident aliens is clearly a matter for the sound discre-

tion of the Trial Court. This rule is clearly stated in

21 C.J.S., page 117, as follows:

“Court—Sec. 77 (b):

.... However, in the absence of a statute to

the contrary, whether a court will in a particular

instance exercise or refuse to exercise its jurisdic-

tion of actions by non-residents against foreign

corporations has been held to be a matter for the

sound discretion of the court, at least where the

cause of action arose outside of the State.”

There are ample rules and precedents for the

action taken by the Corporation Court of Newport

News both in the State and Federal Courts.

A case directly in point is Saad Mohamed H. Aly

v. The Alexandria Navigation Company, S.A.E., and

American Export Lines, Inc. (Supreme Court, Kings

County, New York, Aug. 19, 1943), 1943 A.M.C. 1134;

43 N.Y. Supp. (2d) 1949, Appeal Dismissed 52 N.Y.

Supp. (2d) 784. In that case the plaintiff, an alien,

(but resident of New York), employed on a foreign

flag vessel, owned by an alien corporation, was injured

while at sea and enroute to New York City. In declin-

(10)

4

ing jurisdiction of the subject matter, the Court said:

1943 A.M.C. 1135-1136:

“The Courts of this State are committed to the

view that it is within the discretion of the Supreme

Court to decline jurisdiction in a case like this and

that that discretion should be exercised unless it

appears that the action is being prosecuted for the

benefit of the citizens of this State (Gregonis v.

P&R Coal & Iron Co., 235 N.Y. (152, 160; Mur-

nan v. Wabash Ry. 246 N.Y. 244, 258; Douglas v.

N.Y.N.H. & H.R.R., 279 U.S. 377, 387, affirming

248 N.Y. 580.

“For the reasons stated above, defendant’s

motion for an order declining jurisdiction and dis-

missing the complaint is granted”... .

Another legal precedent similar to the case sub-

judice is Elizabeth M. Brickhouse v. Cunard White

Star, Ltd. and Furness, Withy & Co., Ltd. (City Court

of the City of New York, Mar. 31, 1948), 1948 A.M.C.

760. In the Brookhouse case, the plaintiff was a resident

assignee of a claim (originally held by an alien as-

signor) against an alien corporation whose steamships

called regularly at the port of New York. The cause

of action was for breach of a contract of carriage of

goods by sea. The contract was not entered into in New

York, nor did the shipment touch New York in any

manner. The Court held:

“.. The plaintiff, a resident assignee of the

claim, does not enjoy a more favorable position

than an original claimant who moves into a par-

ticular jurisdiction for the purpose of starting an

action (cases cited).”

(11)

eo |

B esc SMUT eS Le oe MES

It is Ssmewhat unusual and irregular to find a suit

of this Sot in a State Court. Normally such a suit is

found in 4 Admiralty Court. In this case, Papaniko-

laou origially instituted a similar suit in Admiralty in

the Unite States District Court at Newport News

which wa dismissed on jurisdictional grounds and is

presently jy appeal. Nevertheless, it is in the Admiralty

Courts tht the abundance of the legal precedent lies

regardingthe Trial Court's authority to decline juris-

diction.

In th case of Canada Malting Co., Ltd. v. Pater-

son Steanships, Ltd. (1932), 285 U.S. 413, 52 S.Ct. 413,

which imolyed a collision between two Canadian ships

within th. territorial waters of the United States, this

Court sutained the District Court’s discretionary act

of refusilg jurisdiction in the following language:

“The libellants concede, as they must, that in

a Sut in Admiralty between foreigners it is ordi-

nariy within the discretion of the District Court

to T¢use to retain jurisdiction and that the exercise

of it discretion will not be disturbed unless abused.

“Obviously, the proposition that a Court hav-

ingjurisdiction must exercise it, is not universally

true else the admiralty court could never decline

juridiction on the ground that the litigation is

betyeen foreigners. Nor ts it true of courts admin-

ist¢ing other systems of our law. Courts of equity

and law, also, occasionally decline, in the interest

of ustice, to exercise jurisdiction where the suit is

between aliens or non-residents.”

(12)

For additional precedent, we cite the following

cases which recognize the discretionary authority of a

trial court in suits such as the case sub-judice:

Charter Shipping Co. v. Bowring, Jones & Tidy,

Ltd., 281 U.S. 515, 50 S.Ct. 400, 74 L. Ed.

1008

The Belgenland (1885), 114 U.S. 355, 5 St. Ct. 860

The Fletero (1953) (4th Cir.), 206 F. (2d) 267

Heros v. Cockinos (1949) (4th Cir.), 177 F. (2d)

570.

As the prevailing view, both in the State and

Federal Courts, is that a trial court has the discretionary

power to refuse jurisdiction of a case between foreigners

provided its discretion has not been abused and absent

a statute to the contrary, we submit that the sole question

herein concerns the propriety of the State Courts dis-

cretionary ruling. By refusing to review this case, the

Supreme Court of Appeals of Virginia has affirmed

the trial court’s discretionary act which is not a proper

subject of review by this Court.

The case of Traux v. Raich (1915), 239 U.S. 33,

36 S.Ct. 7, 60 L.Ed. 131, cited on page nine of peti-

tioner’s brief is not in point. It involves a suit brought

by a resident alien in the District Court of Arizona to

enjoin the enforcement of an Arizona anti-alien labor

law. In discussing the doctrine of the equal protection

of the laws under the 14th Amendment, this Court re-

marked:

“Being lawfully an inhabitant of Arizona the

complainant is entitled under the 14th Amendment

to the equal protection of its laws.”

As a non-resident alien seaman, Papanikolaou

would not be entitled to the benefit of the equal pro-

tection of the law in any event.

(13)

.

ox

nthe

ie

BAA

a

Likewise, Garrett v. Moore-McCormack Co., Inc.

(1942), 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239, is not

in point. That case concerns the right of a seaman to

the full scope of his federally created rights where he

has been allowed to proceed in a State Court. In the

instant suit, Papanikolaou was not allowed to proceed

in the State Court.

By way of summary, therefore, it appears that the

Virginia attachment statute (Title 8, Sec. 524.1) while

imposing jurisdiction over the person (owner) of prop-

erty validly attached, is not mandatory as to jurisdiction

of the subject matter in dispute. All legal precedent

clearly establishes a power, right and authority in a

Trial Court to exercise its sound judicial discretion in

accepting or declining jurisdiction of the subject matter

of disputes or suits between non-resident aliens, par-

ticularly where the alleged causes of action did not

arise in the State. There is ample legal precedent and

authority for the sound and valid action taken by the

Court below.

Therefore, the Corporation Court of the City of

Newport News was pre-eminently correct in exercising

its discretion in accordance with established rules and

precedent, to decline jurisdiction of the subject matter

of this controversy between a non-resident alien seaman

and a non-resident alien corporate shipowner, where

the alleged causes of action did not arise and were in

no way connected with the Commonwealth of Virginia.

B. The Constitutionality of the Virginia

Attachment Statute (8-524.1) Is a Moot

Question and Cannot Be Attacked Col-

laterally.

(14)

In his petition for certiorari, Papanikolaou secks

to attack the constitutionality of the Virginia Attach-

ment Statute (Title 8-524.1).

At no time in the Court below did petitioner attack

or raise directly the constitutionality of this statute. It

is elementary therefore that he cannot raise that issue

on appeal. Moreover, his attempt to do so is in effect a

collateral attack, and it is well settled that the consti-

tutionality of a statute cannot be attacked collaterally.

Hodges v. Richmond Cedar Works (1917), 120

Va. 492, 91 S.E. 644

Adkins v. City of Richmond (1900), 98 Va. 91,

34 S.E. 967

Sanderlin v. Smyth (4th Cir. 1943), 138 F. 2d 729

United States v. Brady (4th Cir. 1943), 133 F.

(2d) 476.

Furthermore, Papanikolaou has not been injured

by the alleged unconstitutionality. He obtained a fair

hearing in the Federal Court. He obtained the requisite

pre-attachment hearing in the Corporation Court of

Newport News when he decided to ask for it, and he

obtained the security of a $10,000 bond upon attachment

of the steamship ATLANTIC COUNTESS. He can-

not in good faith and conscience therefore complain

that he has been injured by the statute which he now

attempts to attack collaterally.

Unless and until a person is injured by the alleged

unconstitutionality of a statute, he will not b allowed

to attack that statute even by a direct and proper attack.

The Supreme Court of Virginia has made this clear on

numerous occasions. Chief Justice Campbell stated the

(15)

AST TS EI

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principle clearly in Waller v. Commonwealth, 178 Va.

294, 16 S.E. 2d 808, at page 810 wherein he said:

“In Grosso v. Commonwealth, 177 Va. 830,

13 S.E, 2d 285, 288, Mr. Justice Eggleston said:

‘It is well settled that one challenging the con-

stitutionality of a provision in a statute has the

burden of showing that he himself has been injured

thereby. It avails him nothing to point out that

some other person might conceivably be discrimi-

nated against.

‘As this court said in Carpel of Richmond,

Inc. v. City of Richmond, 162 Va. 833, 842, 175

S.E. 316, 319: “Before one can ask that a statute be

declared unconstitutional, he must show that he

has been injured. Until that has been done, it is,

so far as he is concerned, but a moot question.”’ ”.

Until Papanikolaou has shown that Title 8, Sec.

524.1 has caused him some injury or harm therefore,

the question of its constitutionality remains moot as to

him.

C. The State Trial Court Properly Declined

Jurisdiction Without Qualification.

In the present suit, Atlantic Freighters, Ltd. posted

a $10,000 release bond on August 20, 1955, with the

Corporation Court of the City of Newport News. Like-

wise, in the Papanikolaou suit pending in the Federal

Court, respondent furnished libellant with a letter of

guarantce in the sum of $15,000 which remains in effect

pending the outcome of the appeal in the latter case.

At no stage did Papanikolaou’s counsel suggest to the

Court that Atlantic Freighters, Ltd. be placed on terms

concerning the posting of security in any future suit in

anothcr jurisdiction.

(16)

The case of Canada Malting Co., Ltd. v. Paterson

Steamships, Ltd. (1932), 285 U.S. 413, 52 S.Ce. 413,

does not hold that a trial court must protect the libel-

lant’s security in properly denying jurisdiction of the

case; but merely notes that the District Court placed

the respondent upon terms as to security in that par-

ticular suit as an incident of the Proper exercise of its

discretion.

As an intricate part of the trial court’s discretion-

ary decision to refuse jurisdiction, we submit that the

final order of the Corporation Court of the City of

Newport News dismissing the Papanikalaou suit with-

out qualification was correct and not a Proper subject

of review.

V. CONCLUSION

Respondent submits that the decision of the Corpo-

ration Court of the City of Newport News is eminently

correct.

This view is shared by the Supreme Court of

Appeals of Virginia which, by refusing to review the

case, has affirmed the actions of the trial court.

There is no real conflict of authority as to basic

legal principals involved. There are no new or novel

questions needing further clarification. The validity of

any statute or Treaty of the United States or of any

States is not drawn in question. There is no question of

general interest warranting the granting of a writ of

certiorari in accordance with the Petitioner’s applica-

tion.

(17)

For these reasons, the decrees of the Supreme

Court of Appeals of Virginia and of the Corporation

Court of the City of Newport News, Virginia, should

not be disturbed and a writ of certiorari should be

denied.

Respectfully submitted,

Harry E. McCoy

CHARLES R. DALTON, JR.

Seawell, Johnston, McCoy & Winston,

Norfolk, Virginia

June 25, 1956

(18)

REED IOI MEF MEP H a

Fit

oO

JUL 7 1956 &

IN THE

T. FEY, Clerk

Supreme Court of the United

Ocroser Term 1956

No. 141.

W. HALE THOMPSON, Administrator of the

Estate of Miguel Caicedo, Deceased,

Petitioner,

v.

CESAR ENDARA, a non-resident, individually and as Mas-

ter of the M/V Ciudad de Bogota, FLOTA MERCANTE

GRANCOLOMBIANA, §. A., a foreign corporation or asso-

ciation, as owner and/or operator of the M/V Ciudad de

Bogota, G. VALDESPINO, a non-resident, individually and

as Master of the Cuban M/V Bahia de Matanzas, and EM-

PRESSA NAVIERA DE CUBA, §. A., a foreign corpora-

tion or association as owner and/or operator of the Cuban

M/V Bahia de Matanzas, and NAVIERA VACUBA, S. A.,

a foreign corporation or association, as charterer pro hac

vice of the Cuban M/V Bahia de Matanzas,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF VIRGINIA.

BRIEF FOR RESPONDENTS IN OPPOSITION.

Raymonp T. GREENE,

Counsel for Respondents,

120 Broadway,

New York 5, N. Y.

IN THE

Supreme Court of the United States

OcroBer Term 1956.

No. 141.

W. Hate Tuompson, Administrator of the

Estate of Miguel Caicedo, Deceased,

Petitioner,

v.

Crsar Enpara, a non-resident, individually and as Master

of the M/V Ciudad de Bogota, Fuora Mercante Gran-

COLOMBIANA, S. A., a foreign corporation or association,

as owner and/or operator of the M/V Ciudad de Bogota,

G. VALpEsPINO, a non-resident, individually and as Mas-

ter of the Cuban M/V Bahia de Matanzas, and Empressa

Naviera pe Cusa, 8. A., a foreign corporation or associa-

tion as owner and/or operator of the Cuban M/V Bahia

de Matanzas, and Navrera Vacusa, 8. A., a foreign cor-

poration or association, as charterer pro hac vice of the

Cuban M/V Bahia de Matanzas,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF VIRGINIA.

BRIEF FOR RESPONDENTS IN OPPOSITION.

STATEMENT OF THE CASE.

On April 13, 1955 the M/V Ciudad de Bogota, a Colom-

bian flag vessel, and the M/V Bahia de Matanzas, a Cuban

flag vessel, came into collision on the high seas at a point

some fifteen miles off the coast of North Carolina. Peti-

2

tioner alleges that as a result of this collision the decedent,

Miguel Caicedo, a citizen of Colombia, South America, and

a member of the crew of the M/V Ciudad de Bogota, was

instantly killed. Following the collision the vessels pro-

ceeded to Newport News, Virginia for repairs. The body

of Miguel Caicedo was removed from the M/V Ciudad de

Bogota and at the expense of its owners promptly returned

to his home in Colombia, South America.

On October 28, 1955, pursuant to notice received from

counsel for petitioner, counsel for respondents appeared

specially at a hearing before the Judge of the Corporation

Court of the City of Newport News, Virginia for the pur-

pose of having the Court fix the amount of bond to be posted

pursuant to Section S-524.1 of the 1950 Code of Virginia.

Just prior to or during the hearing, counsel for petitioner

delivered to respondents’ counsel a copy of a petition for

attachment which had been filed with the Clerk of the Cor-

poration Court of the City of Newport News some time dur-

ing the course of that day. Upon motion of the respondents,

the hearing was continued until November 4, 1955.

When the hearing was reconvened on November 4th,

counsel for respondents again noted that they were appear-

ing specially. Petitioner attempted, without evidence, to

establish a reasonable expectation of recovery for the death

of Miguel Caicedo, an amount exclusive of costs, equal to

at least one-half of the sum of $100,000.00 as prayed for in

the petition. Upon the conclusion of the petitioner’s argu-

ment, and upon the argument of respondents that the Court

was without jurisdiction to entertain a cause of action for

death by wrongful act on the high seas, the Court dismissed

the petition for want of jurisdiction.

Neither of these two foreign vessels was within the

jurisdictional waters of the United States nor the State

of Virginia on October 28, 1955 the date on which the peti-

3

tion Dr attachment was filed, nor have they been within

such vaters during the pendency of this cause. The owners

of the two colliding vessels, both foreign alien corpora-

tious,do not have any assets or places of business within

the Sate of Virginia and neither of them is doing business

withi: the said state. Respondents have not been served

with srocess nor have they made a general appearance in

this «ise. Tlowever, on the same day that petitioner filed

a peition for attachment in the state court, or shortly

thereafter, the same petition was filed, in admiralty, in the

United States District Court for the Eastern District of

Virgnia, Newport News Division. Counsel for respond-

ents have filed a voluntary appearance in that action and

the quse is now pending in that court.

Tue Petition ror Writ or Certiorarnr Suoutp Be DENIED

For Tur Foutowine Reasons

1 The petition was filed late. The petition was filed

mor than ninety days after the entry of the judgment, the

period allotted by 28 U.S. C. 2101. The judgment of the

Supreme Court of Appeals of Virginia was entered on

Math 6, 1956 (see Appendix, infra, p. 7) and the peti-

tionfor writ of certiorari was filed on June 7, 1956. The

intervening period was then ninety-three days. Cf. Dept.

of Banking v. Pink, 317 U.S. 264.

», The Corporation Court of the City of Newport News,

Viryinia, had no jurisdiction under The Death on the High

Sess Act. 46 U.S. C. 761, provides in part that ‘*‘ Whenever

the death of a person shall be caused by wrongful act...

ocaarring on the high seas ... the personal representative

of ‘he decedent may maintain a suit for damages in the dis-

trit courts of the United States, in admiralty ...’’ This

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section creates a right of action which did not exist at com-

mon law and clearly sets forth that the right is to be

enforced by the personal representative of the decedent

who may bring a cause of action for damages in the district

courts of the United States, in admiralty. Petitioner has

complied with this section by filing the same suit in the

United States District Court for the Eastern District of

Virginia, Newport News Division, bearing admiralty docket

No. 243. It has become so well established as to be con-

sidered a maxim of the law that where a statute creating a

right also provides a remedy, the right may be enforced

only according to the terms of the statute. This principle

was stated in Galveston H. & S.A. Ry. Co. v. Wallace, 22:

U.S. 481, where, at page 490, the court stated:

‘“* * * Where the statute creating the right pro-

vides an exclusive remedy, to be enforeed in a par-

ticular way, or before a_ special tribunal, the

aggrieved party will be left to the remedy given by

the statute which created the right. * * *’’

A comprehensive analysis of The Death on the High

Seas Act is found in Wilson v. Transocean Airlines, 121 F.

Supp. 85, (N. D. Cal.). A cause of action was brought in

a state court to recover damages under the California

Wrongtul Death Statute for death of an airline passenger

as a result of a crash on the high seas. After the case was

removed to the civil side of the United States District

Court, defendant moved to dismiss the suit on the grounds

that plaintiff’s only remedy was in admiralty under 46

U.S. C. 761. The court granted defendant’s motion and

held that the state court had no jurisdiction to entertain

the suit under the The Death on the High Seas Act, at law.

3. The Corporation Court of the City of Newport News,

Virginia, did not abuse its discretion in denying jurisdic-

5

tion of a cause of action between aliens arising outside of

the jurisdiction of the United States. The trial court in

the exercise of its discretion can refuse to accept jurisdic-

tion of a cause of action between non-resident aliens aris-

ing outside of the State of Virginia. If such were the case,

the issue would be whether there was an abuse of discretion

by the Corporation Court of the City of Newport News,

Virginia.

When we consider the facts of this case with reference

to the applicable principles of law it becomes apparent that

there was no abuse of discretion by the Corporation Court

of the City of Newport News, Virginia, but to the contrary,

it was justified in refusing to accept jurisdiction. None of

the authorities cited by petitioner support the proposition

that a state court is obliged to assume jurisdiction over a

controversy involving a Colombian seaman and a Colom-

bian vessel and a Cuban vessel and their owners in a cause

of action arising on the high seas. The general rule is

stated in 21 C. J. S. Courts, Sect. 77 (b):

““* * * Tlowever, in the absence of a statute to the

contrary, whether a court will in a particular instance

exercise or refuse to exercise its jurisdiction of

actions by nonresidents against foreign corporations

has been held to be a matter for the sound discretion

of the court (citing authorities), at least where the

cause of action arose outside the state.’’ (Citing

authorities).

On appeal petitioner was obliged to show that the deci-

sion of the trial court was based upon wrong principle or

that it has aeted contrary to preeedent. The Belgenland,

114 U.S. 355, 368. Petitioner has had an opportunity

to convince the Supreme Court of Appeals of Virginia that

there was error, an abuse of discretion, that claimant suf-

fered some injustice, or that claimant has been prejudiced

ER ee eee

i coe

Gd Meat a eRe Cas

OT as

6

by the decision. After a mature consideration of the case

the Supreme Court of Appeals of Virginia affirmed the

decree cf the trial court ‘‘* * * being of the opinion that the

said deree is plainly right * * *’’. This determination

relates to the inherent authority of a tribunal of the state

existing under the constitutional power of the legislature

of the state. Such determination is plainly not reviewable

by this court. In any event, the same complaint is now

pending in the United States District Court for the Eastern

Distric: of Virginia, Newport News Division.

For the foregoing reasons it is respectfully submitted

that th? petition for a writ of certiorari shouid be denied.

Respectfully submitted,

Raymonp T. GREENE,

Counsel for Respondents.

Grorcr L. VARIAN,

Srepm’ J. Buck.ey,

GuirveD D. Ware,

Hvucn >: Merepira,

of Counsel.

July 6 1956

APPENDIX.

VIRGINIA:

In the Supreme Court of Appeals held at the Supreme

Court of Appeals Building in the City of Richmond on

Tuesday the 6th day of March, 1956.

The petition of W. Hale Thompson, Administrator of the

Estate of Miguel Caicedo, deceased, for an appeal from a

decree entered by the Corporation Court of the City of

Newport News on the 7th day of November, 1955, in a

certain proceeding then therein depending, wherein the

said petitioner was plaintiff and Cesar Endara, ete., et al.,

were defendants, having been maturely considered and a

transcript of the record of the decree aforesaid seen and

inspected, the Court being of opinion that the said decree

is plainly right, doth reject said petition, and refuse said

appeal, the effect of which is to affirm the decree of the

said Corporation Court.

A copy, Teste:

H. G. Turner,

Clerk.