Amell v. United States

PETITIONER:Amell
RESPONDENT:United States
LOCATION:South Carolina General Assembly

DOCKET NO.: 282
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 384 US 158 (1966)
ARGUED: Jan 24, 1966
DECIDED: May 16, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – January 24, 1966 in Amell v. United States

Earl Warren:

Number 282, Harry J. Amell et al., petitioners versus the United States.

Mr. Scribner.

David Scribner:

Mr. Chief Justice, and may it please the Court.

This case involves a number of government employees, albeit seamen on government vessels subject to civil service laws and subject to all the rules and regulations applicable to all government employees.

They made claims in the District Court for overtime pay which they alleged were due them, this is in three of the cases, pursuant to federal laws and regulations all pertaining to government employees.

In addition, they relied on the Classification Act, the Federal Employee Pay act, and as I said other regulations pertaining to the issues involved.

The Court of Claims on the motion of the government transferred each of the four cases to the District Courts, in this case the District Court of Florida, District Court in New York, southern district and to other appropriate courts, on the apparent ground, we have presumed this since the Court of Claims rendered no opinion made no statement except that it cited forming cases that it had transferred like without opinion like without in the same manner without any indication to us as to why they did it.

We must assume of course that that was done simply because it was the Court’s opinion consonant with the approach made by the government that the suits in Admiralty Act applied and that therefore the cases were properly in admiralty and within the exclusive jurisdiction of those courts.

Of course here we have a relatively simple situation.

It doesn’t raise many the complications that have been raised over the years and I frankly was surprised to learn of the difficulties that were involved in the general area of the application of the suits in Admiralty Act and the activity of this Court in connection with it, but this matter is a relatively simple matter in this sense.

The suits here are brought under legislation and under regulation which has literally no relationship to admiralty law.

The particular pieces of legislation, enactments relate wholly and exclusively to government employees albeit among those government employees necessarily as some who work on vessels.

It appears to be the position of the government that if any employee works on a vessel that’s afloat and if waters are involved that somehow principles of admiralty or admiralty law are also necessarily involved.

The fact is that the basis of the claims made by the petitioners has no relationship to admiralty law.

Now any principle of admiralty law that would be involved here would be encompassed essentially by Title 46 of the code.

There is not one section in Title 46, which also encompasses the suits in Admiralty Act as well as the Public Vessels Act, which would in any way be determinative or which could be considered even in respect to a decision to be made on the claims in these cases, literally not one.

Now a lawyer in an argument seldom challenges his adversary to produce something because he might and it’s too big a risk, but I’ll venture to say that the government in addressing themselves to this Court could not point to a single enactment or provision of law under Title 46 or under any aspect of admiralty law that would in any way affect the determination of a court as to whether the petitioners should or should not prevail as government employees in their wage claims against the United States in this case.

There is literally nothing, I am confident there is nothing.

Now the government first makes the statement, and categorically by the way in their brief, that admiralty law is involved.

There is no admiralty law involved and they can’t point to a piece of legislation which would affect it.

Then there is another approach to it and that is that principles of admiralty law apply.

Well, admiralty law would still have to be applied whether or not it embraces the principle or a — an ad hoc approach.

Then they recede apparently from that position as they develop their argument in the brief and they talk in terms of something called a claim of a maritime nature or a claim of a maritime character, and of course that’s meaningless because that could only relate to law.

It can only relate to principles of law which are expressed in law somewhere in Title 46, or in any other places they could find it if they can.

It is significant that in not in one place in their brief is there a citation to any law, admiralty law, which would apply in this case.

Now what I found rather curious, and I was rather disappointed in the office, that the government cites a series of some ten cases in two different places in the brief in support of a proposition that the courts have uniformly held that government employed seamen who sue for wages are relegated to the suits in Admiralty Act, or the Public Vessels Act as the case may be.

It’s sad to say that those cases and I say that professionally, that those cases do no support that contention and that anybody who read the cases would know what they say.

And what they referred to are the cases, all the theories of cases I could cite another hundreds of them, which relate to the situation where under the Clarification Act which embraced the war shipping board type of situation during war time or war time or related activities where the government through the war shipping administration and through agents, private companies hired seamen as government employees on a temporary basis in order to carry out certain government merchant type of activity.

Hugo L. Black:

Why does the government want to change it?

Why does the government want them tried in the other courts?

Hugo L. Black:

What is the real reason?

David Scribner:

Oh there is a simple reason is that in the other courts, the government saves money and the employees lose money.

There’s a six-year statute limitations from the Court of Claims and there’s a two-year statute limitation in the — under the suits in Admiralty Act.

And when that issue arose, for instance in the Johansen case and in the Patterson case which came before this Court in 1952 and I think in 1959 respectively, there the question was, there the government said that the employees there involved who were exactly in the same position that the employees here involved as regular government civil service employees that there they were not really seamen and they weren’t in their vessel, but there, they were truly government employees and the reason for that, and they hardly convinced the Court with, at least a sharply divided court, and the reason for that was that again, the seaman would stand to lose by the ultimate outcome of that because this Court said that since they were government employees, albeit seaman, they were governed exclusively by the comprehensive system of laws of regulation which the legislature set up through the Federal Employee Compensation Act where injuries were involved or alleged.

In other words, they are the government employees’ private suit in the — in the Court of Claims, the government said “You can’t sue in” — I’m sorry, in Suits in Admiralty Act, the government came in and said “You can’t sue in the Suits in Admiralty Act because you’re really not seamen, you’re government employees” and the affect of that was to throw them into the Federal Employee Compensation Act where they got the effective workman’s compensation rather than the opportunity to go before a jury and to get some adequate compensation for their injuries.

Hugo L. Black:

Is it your position that the only difference and result that could happen in this case bar the principles of law since that here that in one the government concedes the statute of limitation and the other one it could not?

David Scribner:

That’s a practical question.

Hugo L. Black:

But is there any other difference?

David Scribner:

I don’t know of any other substantial difference except that the general — at doing this is a citing this is an advocate for the position, I would say that is the practical outcome of it.

Talking generally about the administration of justice in this type of area, I would say that if what I recommend to the Court is consistent with the administration of laws.

Now you have laws affecting government employees.

I’d say it would be improper and discriminatory to have a body of law that relates to government employees and to have excise from that those relating to government employees who are seamen, because we do have a comprehensive system of laws that relates to government employees.

So that so far as the administration of justice is concerned in this particular area, it would be unfair and discriminatory in that sense.

I was just indicating that the practical effect of it would be to deprive government employees who are seamen of four years of claim in their claims for wages or the like.

Byron R. White:

Mr. Scribner, in one respect, the Congress has exempted somewhat or excluded seamen from the coverage of Acts otherwise applicable to government employees, hasn’t it?

David Scribner:

Well they’ve done that in the Clarification Act.

Byron R. White:

In the Classification Act.

David Scribner:

Well in the Classification Act, the Classification Act is one that embraces government employees and there are certain exclusions within the Classification Act, however —

Byron R. White:

Then they exclude seamen, why’d they exclude seamen?

David Scribner:

But they didn’t exclude sir.

What they did was to exclude them from certain provisions of the Classification Act and then the Classification Act itself provided what should apply to those particular seamen.

In other words, the Classification Act for instance refers to exempt seamen from certain general wage rates and then provide specifically how the wage rate of government employees who are seamen should be determined.

And that is in accordance with the prevailing practice in the maritime industry.

That’s the way that works out.

So that it doesn’t exempt them from the Act itself.

It exempts them —

Byron R. White:

Well it just says this chapter shall not apply to officers and members of the crew of the vessel.

David Scribner:

The chapter which relates specifically to the manner on which wage rate shall be determined.

On the other hand, that same provision indicates in fact how wage rates should be determined.

Byron R. White:

Well it says by the maritime, by practices in the maritime industry.

David Scribner:

It’s determined by the agency, by the governmental agencies involved, the guide that is given them of the prevailing practices of the maritime industry, and —

Byron R. White:

But nevertheless, nevertheless the rules that apply to other government employees as applied to the seamen?

David Scribner:

Well if you have them not applying to seamen, you have them not applying to other employees, like wage board employees.

Now the wage board employees who also not — were also exempted from certain provisions, and there are number of exemptions throughout where they have a different consideration for different governmental employees, but it’s all within a general comprehensive framework of law as it applies to government employees.

For instance, there was no exemption there which would have the effect of any admiralty law applying to the seamen, not in the slightest, because the use of the word prevailing practices is one, by the way that’s defined further by the regulations of the department of the army or department of the navy as the case may be, and they control it.

In other words, they apply it but there’s not a question of applying law.

There’s a question of applying a practice which that they determine, that is the government determines.

No other court, but the government determines that and the — and the — it does not have the affect of throwing over these government employees who happen to be seamen into a general category of seamen governed by Title 46, which includes the Suits in Admiralty Act and the Public Vessels Act.

Abe Fortas:

Mr. Scribner, is it entirely clear that apart from whether the — which Act applies that the District Court does not have concurrent jurisdiction of the Court of Claims here?

Let me be specific about my question.

Does the provision relating to concurrent jurisdiction of the District Court and the Court of Claims apply to the amount of the individual claim or the aggregate?

David Scribner:

I wish I could be more categorical in my answer on that, I’m puzzled about that.

I’ve concluded my own approach to it at least is, and this is what I suggest to the Court is that the claim this before the Court whether it’s a group or an individual, it’s a total claim that’s before the Court.

Now we — we have — we haven’t broken down for instance in our complaint in our petition to the Court in the Court of Claims the individual amount that they relate — as they would apply to each employee.

Now there’s only one case where the total amount for instance is less than $10,000.00.

Now taking —

Abe Fortas:

Well that’s not — but that’s not showing anything before us, is it?

David Scribner:

Well —

Abe Fortas:

As I look at the record here, your complaint merely has an aggregate figure —

David Scribner:

That’s right.

Abe Fortas:

— in excess of $100,000.00.

What bothers me too is the fact that — well let me see if I understand this.

The government’s motion to dismiss or any alternative to transfer this file on the Court of Claims.

David Scribner:

That’s right.

Abe Fortas:

And that motion was based on the proposition that admiralty jurisdiction applies, right?

David Scribner:

Right.

Abe Fortas:

Now the order entered by the Court of Claims as I understand it is merely a general order transferring the case to the United States District Court without any specification, right?

David Scribner:

Right.

Abe Fortas:

Now the question that occurs to me is, it bothers me, is a possibility that if the District Court has concurrent jurisdiction or rather — yes if the District Court has concurrent jurisdiction that order, now with the Court of claims, is it possible that that order as such was not erroneous?

David Scribner:

Well I’d like —

Abe Fortas:

And that’s what I’d — that’s what I’d like your help on because it’s obviously significant with respect to our action here.

David Scribner:

On the two phases of the questions that you raise, I would have the following approach.

First, the government takes the position, and I don’t think there’s any question about it in this case although the orders are ambiguous, I can understand that completely, the government takes the position or else we wouldn’t be here, the government takes the position that the — that the transfers were based on their suggestion for the court below that it should be in admiralty.

In other words, in transferring the cases to the District Court, we had a right to assume, and as a matter of fact the District Court in Florida assumed it enacted as such that they were to the admiralty side of the Court.

There’s no question about that and that’s the posture we’re in.

I thought we were in that posture and I’m certain that the government would take that position that they necessarily had to be transferred to the admiralty side of the court for the purposes of applying admiralty law and not because the District Court had concurrent jurisdiction in cases where the claim were less than $10,000.00.

In other words, that’s not the applicable feature in this case and I’m sure that’s the position or else we wouldn’t be arguing this case before as that we do.

There isn’t a word for the contrary in the position taken on it.

Now so far as the concurrent jurisdiction is concerned where there is concurrent jurisdiction in claims under $10,000.00 as there is under the statute, as under the Tucker Act, the fact is that it would be up to the plaintiff, the petitioner, to determine what court he wants to win.

We went into the Court of Claims.

Now it’s not suggested by the government that we’re in the wrong court in that level.

Abe Fortas:

No, but the — is the petitioner’s choice conclusive here?

Let’s suppose that the case is filed int the Court of Claims where there is concurrent jurisdiction.

Would it be an error for the Court of Claims to transfer that case to the District Court there being concurrent jurisdiction?

David Scribner:

Well I would say that if there is motion or if the court did it sua sponte on the ground of foreign inconvenience for instance or on some other issue, I would imagine that it could be done, but of course that was not what was confronting us.

That was not the motion made by the government and that was not the basis apparently on which the Court acted because it didn’t say anything.

The Court of Claims said nothing.

We assume the only basis for that was the — what it is the government told them.

And I think that’s been the posture of the case to date that it was transferred under the Suits in Admiralty Act that it is to be treated as a suit under the Suits in Admiralty Act on the admiralty side of the District Court, otherwise this is entire proceeding would make an offense.

And I think my —

Abe Fortas:

Well certain other things have concerns —

David Scribner:

— that happens to —

Abe Fortas:

— but it may be a fact of life.

David Scribner:

[Inaudible]

Earl Warren:

Mr. Scribner, is there anything in the legislative history of the Suits in Admiralty Act concerning the scope of that Act that would shed any light on our problem here?

David Scribner:

Not on this really.

The — I think the general legislative history would show that first they don’t intend it to be fairly exclusive, I have no question about that.

But what it does not show at any time that it’s exclusive as to seamen working on the private seamen working on government vessels or claims by private individuals or corporations whatever it is against the government.

And — but so far as government employees is concerned, that is taking a whole classification and covering them under admiralty, there isn’t a word in the legislative history that would assist us one way or the other.

My view is that in the absence of any direct approach for this government problem, government employee problem, which is not a small problem, in the absence of any direct approach by Congress, I would say it would be analogous to the situation of Federal Employees Claim Act that where the — where there is legislation which specifically affects government employees there has to be a specific intent or express intent, expressed in legislation, of Congress to deprive them or to take them out of that general classification and put them into classification of seamen rather than government employee.

David Scribner:

We have nothing like that.

Earl Warren:

Were there extensive hearings on this Suit in Admiralty Act?

David Scribner:

Well there were some hearings, there were no hearings in relation to one of the amendments, but by and large there was a tremendous amount of discussion in Congress on these things, but not a single word that relates to how you should treat this whole body of government employee or how each of us will handle that exactly in the opposite direction and for different reasons.

But I would say it’s a fair statement to make that if Congress had intended to take government employees out of their class as government employees, albeit if they were seamen, and put them into a different class seamen then they would’ve said so.

I just want to wind up by saying the following again, by just repeating one thing which I think is determinative at least in my mind and I hope will be in yours and that is that it will make sense or it does make sense to put government seamen, government civil service seamen, in a class with seamen and to put them under the Suits in Admiralty Act only if there were issues which could possibly be admiralty issues under admiralty laws.

There isn’t a single principle of admiralty law that could apply to the suits in question.

Earl Warren:

Mr. Eldridge.

John C. Eldridge:

Mr. Chief Justice, and may it please the Court.

Before beginning my argument, I would like to address myself to a question that Mr. Justice Fortas asked, and that is the ground of the Court of Claims order.

It is my understanding that prior to 1960, there could be no transfer between the Court of Claims and the District Court.

And when in 1960, Congress enacted what is now 28 U.S.C., 1506, providing for a transfer from the Court of Claims to the District Court.

It did so on the assumption that there, the legislative history clearly shows that prior to that time there couldn’t be such a transfer.

And that statute only provides for a transfer where the jurisdiction of the District Court is exclusive.

So and that of course would transfer provision we invoke that the jurisdiction of the District Court was exclusive in these cases.

So I don’t think that the Court of Claims would have had any power to transfer a case cognizable under the Tucker Act or under $10,000.00 where there’s concurrent jurisdiction.

I think the choice that the plaintiff — the choice is completely of the plaintiffs here.

The government has no right to deprive the plaintiff of that choice under the Tucker Act.

Abe Fortas:

Nor does the Court is that what you’re saying?

John C. Eldridge:

I — that’s my understanding, yes Your Honor.

Hugo L. Black:

What has happened to the cases filed in the Court of Claims prior to 1960 of this nature?

John C. Eldridge:

Well what happened, it would depend upon whether the seamen were employed upon merchant vessels or public vessels, Justice Black.

The Court of Claims had held prior to 1960 that the Public Vessels Act did not encompass contract actions generally, maritime contract actions and because of that, if the seaman were employed on public vessels prior to 1960, we did not move to suggest lack of jurisdiction to the Court of Claims.

Hugo L. Black:

Well I understood that —

John C. Eldridge:

Now what —

Hugo L. Black:

— I understood you couldn’t move to transfer them?

John C. Eldridge:

That’s right.

Now if they were employed upon a merchant vessel and there was no transfer, the Court of Claims would dismiss the suit and it would have to be filed anew in the District Court.

And of course sometimes, during that period of time limitations would expire and a new suit could not be filed.

And this is one of the reasons in 1960, Congress permitted transfers, one provision of the statute permitted a transfer from the Court of Claims to the District Court, another provision from the District Court to the Court of Claims.

For example, where Tucker Act suit was filed in the District Court or over $10,000.00 and exclusive jurisdiction would be in the Court of Claims.

John C. Eldridge:

Before 1960 the case had to be dismissed and then re-filed in the other court, but now it can be transferred and the statute of limitations is — the statute of limitations stops to run when it was filed originally in the wrong court.

Hugo L. Black:

Do I understand then from what you say, prior to 1960 there had been no cases of this kind like these people have filed for wages tried in the Court of Claims that all had been dismissed?

John C. Eldridge:

I say the distinction depend whether they were merchant vessel or public case.

Hugo L. Black:

But I’m talking — what were these?

John C. Eldridge:

Well that’s not clear from the complaint but I would assume they are all public vessels involved.

Hugo L. Black:

What happened to cases the way it suits the wages?

John C. Eldridge:

The Court of Claims would entertain them prior to 1960.

Hugo L. Black:

And did they continue?

Had they entertained them without objection on the part of the government?

John C. Eldridge:

Yes Your Honor, because of their holding and on other line of cases that —

Hugo L. Black:

Well whatever it was —

John C. Eldridge:

Yes.

Hugo L. Black:

— how long have they been tried there that way?

John C. Eldridge:

Well prior to 1960, public seamen employed on public vessels, I don’t know how many cases or but just regularly filed their suits in the Court of Claims and the Court of Claims entertained such suits.

Hugo L. Black:

And do you claim that when they arranged for them to be transferred —

John C. Eldridge:

Well I —

Hugo L. Black:

— to the other court that also made it impossible for them to — Court of Claims to try them.

John C. Eldridge:

Yes that —

Hugo L. Black:

Does that act change the law?

John C. Eldridge:

Yes the change of the law — another change of the law was made in 1960 Justice Black.

Hugo L. Black:

Which deprived the Court of Claims of jurisdiction?

John C. Eldridge:

Well —

Hugo L. Black:

Where is that?

Is that in your brief?

John C. Eldridge:

Yes Justice Black.

Hugo L. Black:

Which one is that?

John C. Eldridge:

The same statute amended the suits in Admiralty Act so as to encompass public vessel actions and which I think we deal with.

In other words, Section 1 of that 1960 Act and Section 2 were the transfer provisions.

Section 3 of the 1960 Act deleted the limitation in the Suits in Admiralty Act so that the Act was confined to claims involving merchant vessels.

And therefore a seaman’s wage claim, a seaman employed on a public vessel, his suit after 1960 would be brought under the Suits in Admiralty Act rather than the Public Vessels Act.

Hugo L. Black:

I find Section 1 and 2 and 5, but I don’t find Section 3 on —

John C. Eldridge:

This is discussed on pages — beginning with page 18 of our brief Justice Black.

Hugo L. Black:

18.

John C. Eldridge:

Through 18 and 19.

Hugo L. Black:

On your brief?

John C. Eldridge:

Yes.

Hugo L. Black:

Not in the petition for certiorari?

John C. Eldridge:

No I do not think the 1960 statute was discussed.

Hugo L. Black:

Where is the Act — Section 3 quoted?

John C. Eldridge:

Well Section 3 of that Act —

Hugo L. Black:

That’s only what you rely.

John C. Eldridge:

— is that Section 2 of the Suits in Admiralty Act quoted on page 2 of our brief.

Hugo L. Black:

Oh!

Section 2.

John C. Eldridge:

No, Section 3 of the 1960 statute was an amendment for Section 2 of the Suits in Admiralty Act, and see the — before 1960, there’s been quite a conflict among the courts as to how to the scope of the Public Vessels Act.

In this Court’s opinion in Calmar Steamship Company in 346 U.S., the Court refers to that conflict as to whether the Public Vessels Act encompass maritime contract actions or whether it was just limited to tort actions and actions involving towage and salvage which are expressly mentioned.

The First Circuit and the Court of Claims and some of the other courts had held that the Public Vessels Act did not encompass maritime contract claims generally.

And therefore, they would not encompass the seaman’s wage action, the Public Vessels Act would not.

The Ninth Circuit had held to the contrary.

Now, in — so before 1960 if the Public Vessels Act was narrow, as the Court of Claims had held, then there would be no admiralty statute encompassing the seaman’s wage claims, and therefore they could sue under the Tucker Act because the Suits in Admiralty Act was confined to merchant vessel seaman.

Hugo L. Black:

But you say that the Congress changed this long rule, as I understood you, the long rule by Section 2 so that the — before Section 2 was adopted they could sue for wages in Court of Claims but after it they could not?

John C. Eldridge:

What they could if the Court of Claim’s construction of the Public Vessels Act was correct.

I think this Court had never decided the question.

Hugo L. Black:

Well then, are you claiming that the law was always wrong when they sued there that if had been properly raised —

John C. Eldridge:

No, no because the government’s position was always that the Public Vessels Act was quite narrow until we’ve lost several cases in this Court.

American Stevedoring and Parello and the Canadian Aviator.

We had used to take the position that although the Public Vessels Act encompassed with ship collision cases and this Court told us we were wrong.

So in light of the government’s old position if it was a Public Vessel Act seaman, we would not have asserted that there was any admiralty statute encompassing their claims, because the Suits in Admiralty Act was limited to merchant vessel seaman and the Public Vessels Act we view is quite narrowly.

But now prior —

Hugo L. Black:

I’m asking you these questions, I know nothing about it.

John C. Eldridge:

Now —

Hugo L. Black:

I have no view on it at all, but I’m wondering why if this had been the practice if they could sue for wages in that court before 1960.

John C. Eldridge:

Only public vessel seamen, yes.

Hugo L. Black:

Well, in this kind of case, in that was the case, why would they have done away with that jurisdiction of the Court of Claims without saying something about it and decide?

John C. Eldridge:

Well —

Hugo L. Black:

Why would they have done it by indirection?

John C. Eldridge:

What Congress has done away with that jurisdiction in the Suits in Admiralty Act, as this Court held —

Hugo L. Black:

Before 1960?

John C. Eldridge:

Yes, when —

Hugo L. Black:

In these particular cases?

John C. Eldridge:

Well, when it —

Hugo L. Black:

This type of case?

John C. Eldridge:

Well in this case it’s not clear whether these seamen are employed on public vessels or merchant vessels.

Hugo L. Black:

If not clear, we can assume that is a kind of case which this Court had always had jurisdiction without objection by the government.

Now why would Congress have changed that indirectly without mentioning it so that we have to work it out to —

John C. Eldridge:

Well one of the reasons was because of this very doubt involved as to where jurisdiction existed —

Hugo L. Black:

That would have been all the more necessary of the whether they know what they’re talking about.

John C. Eldridge:

Well Congress in 1960 thought that it was ending the matter.

If I could treat it historically, Justice Black, I might be able to —

Hugo L. Black:

That’s alright, but I want to first treat it from the language of what we are supposed to construe —

John C. Eldridge:

Yes.

Hugo L. Black:

— to find out where we can find anything there that tells us that this long standing jurisdiction has been abolished.

John C. Eldridge:

Well, it’s there if you’d bear with me a moment.

In 1920 when the Suits in Admiralty Act was passed, it had a proviso in it, it was limited to actions involving merchant vessels of course.

Now this Court in about 1930 in Johnson v. Fleet Corporation held, and again in the case of Madison Navigation Company, held that where a case was cognizable under the Suits in Admiralty Act it could not be brought under the Tucker Act.

If the Suits in Admiralty Act had repealed the portion of the Tucker Act which had given — granted jurisdic — the Court of Claims jurisdiction over maritime contract claims involving merchant vessels.

So, from that time on, government employees employed on merchant vessels, their suits were regularly entertained in the District Courts sitting in admiralty under the Suits in Admiralty Act.

But, when in 1925 when Congress passed the Public Vessels Act the wording of the statute was much narrower, and the dispute grew up among the courts as to whether the Public Vessels Act encompassed these maritime contract claims and the Court of Claims held that it did not.

This Court never resolved it.

Therefore, there was no — and if that holding of the Court of Claims was correct, if you have a seaman employed on a public vessel, there was no basis for the assertion that exclusive jurisdiction would be in admiralty.

John C. Eldridge:

It was just as to the Suits in Admiralty Act involving merchant vessels that the Court of Claims had no jurisdiction and that was held by this Court in several cases and it’s in continually reaffirmed.

Byron R. White:

So you say that — do you say that by adding — by expanding the Suits in Admiralty Act, it comes to that very act contracted the Tucker Act under the principles of Johnson.

John C. Eldridge:

Yes Justice White.

In other words, once the only thing in the Suits in Admiralty Act that limited the operation of the statute to merchant vessels was a proviso in Section 2 as it existed before 1960 provided the vessel is employed as a merchant vessel and in 1960, Congress made several changes and that was one.

It eliminated that proviso.

It added the language of a private person or property was involved.

Instead of a liable in admiralty, it added — it added the language any appropriate non-jury proceeding can be brought against the United States to make it clear that under the Suits in Admiralty Act the District Court can sit on its law side.

And the reports, the committee reports which we refer to and quote from in our brief “Make it clear that Congress wanted to do a way with this doubt as to the scope of the Public Vessels Act.

And for purposes of suing the government wanted to do a way with the distinction between merchant vessels and public vessels and have all these claims against the government brought under the Suits in Admiralty Act.

And —

Earl Warren:

Well now Mr. Eldridge is there anything in the hearings before the legislative committees or anything said on the floor from which you can take comfort in this position that you’re taking today?

John C. Eldridge:

Yes.

Earl Warren:

But what is that?

John C. Eldridge:

Chief Justice —

Earl Warren:

Where do we find it?

John C. Eldridge:

Well I think in the committee reports which we do cite in our brief refer to the testimony before the committee.

Earl Warren:

What was that testimony?

John C. Eldridge:

The amendment to was not — was instigated by the maritime law association.

The admiralty lawyers were discouraged about this doubt that they — when they had a Public Vessel Act seamen, they were never sure whether jurisdiction was in the District Courts in admiralty or in the Court of Claims.

And if it was a merchant vessel rather than a public vessel involved, and if they had to, and if their suit was in the Court of Claims, the Court would dismiss their suit because the exclusive jurisdiction was in the District Courts and it was just a general problem of where to file these suits because it’s very difficult to determine whether a vessel is merchant or public and it was also where there was a conflict among the courts.

It was difficult to know what a particular court would say about the Public Vessels Act.

Earl Warren:

But was there any —

John C. Eldridge:

So this was the testimony which the committee refers to.

Earl Warren:

What did the committee say about that?

John C. Eldridge:

And the committee said and the committee pointed to all the various cases, and said that we were — that we want to rectify it, so the Bill in the House contain —

Earl Warren:

Did you quote that — did you quote that in you brief?

John C. Eldridge:

Yes that’s quoted in our brief, some of the language from the committee report.

I don’t —

William J. Brennan, Jr.:

Is that on page 19?

John C. Eldridge:

Yes we have one quote on page — middle page 19 from the committee reports.

John C. Eldridge:

I don’t think the brief goes into this background as much.

So the Bill —

Earl Warren:

I don’t think that be very quite important in as much as you are urging repeal by implication here.

John C. Eldridge:

Well —

Earl Warren:

If the statute itself doesn’t repeal the — that portion of the Tucker Act, I would think that you would have to have some rather positive language in the —

John C. Eldridge:

Well we think the Suits in Admiralty Act does repeal it and it was just by bringing these seamen into the Suits in Admiralty Act that you deprive them of any remedy under the Tucker Act.

Hugo L. Black:

Why would you’ve done that?

Why did you follow?

Why would you give a litigant arrest suit in another court in another place takes away as filed right pursuing the —

John C. Eldridge:

Well this was the holding of this Court in several cases that if a litigant could sue under the Suits in Admiralty Act, he could not sue under the Tucker Act and I think the whole framework of the Suits in Admiralty Act and the history of the Act shows that this Court’s decisions were correct to that effect.

In other words, in 19 —

Hugo L. Black:

Did the admiralty bar or whoever it was suggested this law suggest that they take the jurisdiction away from the Court of Claims?

John C. Eldridge:

Well the admiralty bar wanted to clarify.

Hugo L. Black:

Did it suggest to take away to – bar the jurisdiction in the previous for the next side and the court of —

John C. Eldridge:

Well I think in the one area of the public vessel seamen where it was a maritime claim, the admiralty bar wanted this —

Hugo L. Black:

Now you say wanted, now can we see where they suggested it as the part of the history of this Act that the jurisdiction be taken away from the Court of Claims?

Is there any place to which you can cite us, any record of any kind?

John C. Eldridge:

Well I think the admiralty bar was more concerned about the confusion that existed but —

Byron R. White:

Well who proposed the Bill, was it —

John C. Eldridge:

The Maritime Law Association proposed the Bill and as I started to say before, it just contained the transfer provisions when it was in the House.

Byron R. White:

Did the government support this Bill or opposed it?

John C. Eldridge:

Yes, we had really nothing to do with drafting it.

Then after the —

Byron R. White:

You certainly wrote a letter to the committee about it.

John C. Eldridge:

Yes.

Byron R. White:

Did you support it?

John C. Eldridge:

Yes, the first two sections are just the transfer provisions in the House then we were asked to comment on the Bill.

And the Department of Justice and the Department of Commerce suggested that in addition to providing for the transfers, the jurisdictional question ought to be clarified so that you don’t have many misfiled suits in the future and then the Maritime Law Association agreed to this and the — and I think the department —

Byron R. White:

Was the origin of this specific thing you’re relying on was with the Department of Justice?

John C. Eldridge:

We suggested that it ought to be done.

John C. Eldridge:

The Department of Commerce then drafted Section 3 of the 60 statute, which is now Section 2 of the Suits in Admiralty Act, and they inserted the words or if a private person or property were involved.

And I think the words instead of an admiralty preceding any appropriate non-jury proceeding.

Then the committee — the senate committee outlines what happened.

It was sent to the Maritime Law Association and the Maritime Law Association then suggested that we delete the merchant vessel limitation and have the Suits in Admiralty Act encompass all government vessels.

The Department of Justice was then asked to comment upon that and we agreed to it.

Byron R. White:

This whole thing is primarily is the problem of waiving sovereign immunity, isn’t it?

That’s what it —

John C. Eldridge:

Yes Justice White, that’s I suppose what the Suits in Admiralty Act did and the whole object was to have all maritime claims embraced within the Suits in Admiralty Act.

Hugo L. Black:

Now where — where can we find that in the history of this Act that they intended to take away the jurisdiction of the Court of Claims invested all under the Suits in Admiralty Act?

John C. Eldridge:

Well I think that this quote on — the committee reports I think state that in this quote we have set forth on page 19 of our brief, Justice Black.

Section 2 restates in brief and simple language, the now existing exclusive jurisdiction conferred on the District Courts both on the admiralty and law sides over cases against the United States which could be sued on in admiralty if private vessels, persons or property were involved.

I think this states the portion we quote precisely — precisely what we’re arguing.

Hugo L. Black:

Are you talking about that part on page 19?

John C. Eldridge:

Yes, Justice Black.

William J. Brennan, Jr.:

Do I get it Mr. Eldridge that the last determent sequence now was the deletion of the proviso in the Public Vessels Act?

John C. Eldridge:

No, Suits in Admiralty Act.

William J. Brennan, Jr.:

Suits in Admiralty Act?

John C. Eldridge:

Yes Justice Brennan.

William J. Brennan, Jr.:

That was the last sequence of —

John C. Eldridge:

How that 1960 legislation evolved.

William J. Brennan, Jr.:

— now is executed.

John C. Eldridge:

Yes.

William J. Brennan, Jr.:

And that was a suggestion, you said, of the —

John C. Eldridge:

Maritime Law Association.

William J. Brennan, Jr.:

And that was accepted by the?

John C. Eldridge:

Department of Justice and the Department of Commerce, yes.

And the whole purpose was to clarify the confusion that had existed before.

William J. Brennan, Jr.:

You keep saying clarifies but you mean to settle the question.

John C. Eldridge:

To settle the question, yes.

That he didn’t have to worry about whether the Public Vessels Act encompassed contract claims.

John C. Eldridge:

You’d now suit under Section 2 of the Suits in Admiralty Act and it embraced all maritime claims.

Hugo L. Black:

I’ve been unable to find here, I’m sure it’s my fault, quotation where you said they stated that they wanted to confer exclusive jurisdiction to try these cases in this other court.

John C. Eldridge:

Well —

Hugo L. Black:

Exclusive jurisdiction.

John C. Eldridge:

— the word exclusive is right in the second sentence of this quote Justice Black.

Hugo L. Black:

But now exclusive jurisdiction conferred on the District Court but there was no exclusive jurisdiction —

John C. Eldridge:

Yes on this —

Hugo L. Black:

— because they have been trying them in the Court of Claims.

John C. Eldridge:

— only public — not when it came to the Suits in Admiralty Act.

If it was a merchant vessel seaman —

Hugo L. Black:

I’m talking about this kind of suit they have.

John C. Eldridge:

Well the kind of suit —

Hugo L. Black:

That’s all we understood in here.

John C. Eldridge:

— they have that it was a — we don’t know whether there are clients or merchant vessel or public vessel because after 1960 it doesn’t make any difference (Voice Overlap) and I suppose they did not feel any need to allege one or the other.

The reason that we haven’t detailed this more in our brief, I don’t think the petitioners have ever raised any question that the effect of the 1960 amendment was to do away with the merchant vessel — public vessel distinction in this area and to bring all these cases under the Suits in Admiralty Act.

They just argued it’s not embraced by the Suits in Admiralty Act.

William J. Brennan, Jr.:

No, but if you’re right, what else is left in this case?

What else is for us to do?

If you’re right and we agree with your view of this —

John C. Eldridge:

Well this is why the petitioner —

William J. Brennan, Jr.:

— and the effect is what’s left —

John C. Eldridge:

— the petitioners are conceding, if I understand their argument although the National Maritime Union isn’t here that the Suits in Admiralty Act is exclusive as the case comes under it.

And their whole argument is that government employed seaman’s wage claim is not embraced by the Suits in Admiralty Act.

They concede that there’s no concurrent jurisdiction if I understand their argument.

Byron R. White:

Are there any non-governmental employees work on public vessel?

John C. Eldridge:

No, I — well that’s a good question Justice White, we have —

Byron R. White:

Because if there are, I don’t suppose anybody would —

John C. Eldridge:

We have our fleet of public vessels operated under operating agency agreements and there’s a dispute as to whose employees they are whether they’re ours or the operating agents right now.

Byron R. White:

If they weren’t the government employees there’s no question that their wage claims would be covered by the Suits in Admiralty Act, nor the plaintiff’s claim is that no matter what — no matter what this 1960 amendment did with regards to seaman’s wage claim, it didn’t reach — it didn’t take the government employees out from under the Tucker Act.

John C. Eldridge:

Yes, because —

Byron R. White:

But the only — the only — the only basis is the only jurisdictional ground he’s got is the Tucker Act.

John C. Eldridge:

Yes.

Byron R. White:

And generally applicable to the government contract claim.

John C. Eldridge:

Yes Justice White.

Byron R. White:

And he says that no matter what 1960 Act did it didn’t do this vis-à-vis government employee.

John C. Eldridge:

He’s arguing that his — these government employees are not encompassed by the Suits in Admiralty Act.

William J. Brennan, Jr.:

Well you see now, that’s based on what on some Federal Employees Compensation Act that there was —

John C. Eldridge:

Well, he’s relying on — on this — this Court’s decisions in Johansen and Patterson quoting that the suits that you couldn’t — a government employee couldn’t sue for personal injuries because though he shouldn’t have a dole remedy, it was covered by the Federal Employees Compensation Act and this Court held that we don’t think that —

William J. Brennan, Jr.:

So agreeing —

John C. Eldridge:

— there would be a dual remedy for personal injury.

William J. Brennan, Jr.:

Agreeing with you about the effect of the 1960 Act doesn’t answer this — doesn’t finally answer the —

John C. Eldridge:

No, that’s what I say —

William J. Brennan, Jr.:

And you’ve got about three minutes left to give the —

John C. Eldridge:

Well petitioner’s argument is that a government employee seaman’s wage claim is not encompassed by the Suits in Admiralty Act as I understand it.

And we think that first the clear language of the statute encompass it because it says if the government were private and if the proceeding would be — could be maintained in admiralty, and a proceeding can be brought against the government.

Certainly if the government were private ship operator or owner its employees’ claims, wage claims would be in admiralty.

This is well settled, it’s been settled since the earliest days in this country.

William J. Brennan, Jr.:

But even taking Johansen and Patterson applying the principles, you argue that that would come out on your side because you do have the specific statute dealing with a specific type of client.

John C. Eldridge:

Yes and here of course this Court in Johansen and Patterson held that as between the Compensation Act and the Suits in Admiralty Act both of which the language covers the claim, exclusive jurisdiction should be under the Compensation Act.

But when it comes to between the Suits in Admiralty Act and the Tucker Act, this Court held in several cases that exclusive jurisdiction is under the Suits in Admiralty Act.

And Congress has legislated with reference to that on several occasions as set forth in our brief, has accepted that holding — those holdings, and we do think that they have become part of the framework of the statute.

That on all maritime claims now jurisdiction is under the Suits in Admiralty Act.

So we do submit that these are seaman’s wage claims and if we make a final point, petitioner argues that in this type of case, a pure admiralty issue can not come up, I suggest it can.

Now, suppose one of Mr. Scribner’s clients was discharged before he had earned the month’s wages and was suing for his wages.

Under the decisions of the Court he would be entitled to his earned wages plus another, an extra month’s wages under 46 U.S.C. 594, which has been applied to the government repeatedly.

There could be other maritime issues and we do think that a complaint is made about watches on ships, one of the very cases here.

This is the matter which the District Court sitting in admiralty are experienced and not the Court of Claims.

They apply to seaman’s wage statutes.

Now, it may be that none of the seaman’s wage statutes are applicable to the particular facts of this case although that’s not clear either, because this Court reserved the question in McCrea versus United States in 294 U.S. while the government is subject to the double wage penalty and the seaman’s wage statute were not paying wages when it’s supposed to, and that’s an unsettled question.

If we are subject to that then his clients, I would assume, get double wages.

John C. Eldridge:

And that is purely a maritime issue that’s a part of the seaman’s wage statute.

And of course we think we point out that though under the Suits in Admiralty Act is a shorter period of limitations, there are nevertheless other advantages.

They get much greater interest.

They’re successful.

It’s the only statute where the kind of waiver of sovereign immunity to my knowledge in permitting you to maintain acts against the United States where you can get pre-judgment interest then get cost generally.

It’s the only statute I know of where you can sue the United States and can collect cost, the same cost a private person can invoke with Tucker Act, the Court of Claims Act, others have limitations on the cost.

If they would have a seaman’s wage claim over $10,000.00 which may be rare, they have greater venue.

So we do think that it’s not all a one sided thing and just the government here trying to deprive these people of the benefit of a longer period of limitations.

And as we also point out in our brief, it’s not clear that any of these claims would be time barred under the Suits in Admiralty Act.

Hugo L. Black:

Would be what?

John C. Eldridge:

Barred by the two-year period of limitation.

We point out that a majority of them clearly would not be because 67 of the petitioners are suing.

They filed suit in November of 1964 for a 3.5% wage increases which a private seaman got in June of 1962 and June of 1963.

So that’s a period covering two years five months.

So certainly two years of those which are the majority of those claims where the claims of 67 of the 90 some petitioners are timely.

And depending upon how the District Court’s role on these cases on the tolling issue whether the Suits in Admiralty Act limitation provisions is tolled during the pendency of administrative proceedings, they all could be timely.

But our concern is not to deprive these people of their claims because of a short period of limitation, but we, the government does think that in this type of suit admiralty issues can be involved that Congress contemplated, that maritime claims should be heard by District Courts including in admiralty, that’s what this Court has held and we respectfully submit that the transfer order should be affirmed.

Earl Warren:

Mr. Scribner.

David Scribner:

May I have a moment?

First, I’d like to call to your attention of what is an obvious fact and that is that the United States did waive sovereign immunity with respect to suits by government employees as early as 1887 through the Tucker Act.

And the fact is that that waiver of sovereign immunity continued from that period of time to date with amendments to the Tucker Act constantly and as late as August 30, 1964 where the Congress took under consideration again the entire question of waiver of sovereign immunity in respect to the claims of government employees for wages for compensation against the United States.

So that it isn’t as though in the Suits in Admiralty Act, we suddenly had a waiver of sovereign immunity under certain conditions which is spelled out in the Suits in Admiralty Act.

As a matter of fact, the immunity, the waiver of immunity for government employees long preceded the Suits in Admiralty Act and as continued up to date.

Now a state —

Hugo L. Black:

Do you claim — do you claim that the Court of Claims has exclusive jurisdiction or the District Court has exclusive jurisdiction of these claims for wages, either one of them?

David Scribner:

It is my position that the Court of Claims has exclusive jurisdiction.

Hugo L. Black:

Exclusive?

David Scribner:

That’s exactly right, sir.

I will not equivocate on that, that’s our position.

That’s our view of the situation that it cannot go any place else except where there’s a claim under $10,000.00 you would have concurrent jurisdiction with the District Court, and obviously on the civil side not on the admiralty side since the principles of the government activity — of the government enactments with respect to government employees would be involved.

Hugo L. Black:

Why do you claim it exclusive?

David Scribner:

Well, it appears to me, although I don’t think it’s necessary for the — for a determination in respect to this matter, it appears to me that it was the intention of the Congress to have where admiralty matters were involved, specific admiralty matters were involved that is admiralty law applies and where the vessel would be treated as though it were a private vessel, government vessel treated as though as private vessel.

Byron R. White:

Mr. Scribner, do you say that the Court of Claims couldn’t — let’s assume that there were some applicable admiralty principles or a rule, couldn’t the Court of Claims apply them —

David Scribner:

Well —

Byron R. White:

— as well as any other court.

David Scribner:

Well in the context of —

Byron R. White:

Well I mean it couldn’t apply them.

David Scribner:

I’m sorry.

Well the Suits in Admiralty Act applies to — in its provisions appears to indicate that the admiralty courts that the District Courts in admiralty would apply it.

It would be somewhat of a nullity, I suspect to have the Court of Claims apply admiralty principles and I think the history of this thing has fairly indicated that they would go to the District Court admiralty side.

I have never heard of that happening the other way around.

Now, where seamen had been involved, government seamen involved, the Court of Claims has always handled those matters up to 1960 and certainly up to our case.

I think our case was — our cases were the first few cases, a very simple reason for that.

There was no prin — no law of admiralty that was involved at any time.

There was a question of overtime provisions as required under the statutes.

There was the question of wages as required by the statutes affecting government employees.

There were no particular principles of admiralty law at any time of the —

Byron R. White:

But seamen, I suppose seamen had always been able to sue their employers in admiralty for wages.

David Scribner:

Of course they had certainly, certainly, but under admiralty law.

Now when we say that the generalization is not helpful to us.

The specific laws under which he could make his claim is significant.

The only way a seaman could make his claim for wages or for any other activity would be under Title 46 of the Code.

Title 46 of the Code spells out precisely in what areas he can prevail or not prevail.

Whereas a government employee who’s a seaman is not governed by that at all, and as a matter of fact I dispute categorically and I say there’s absolutely no support for the statement made by my friend here a moment ago that a government seaman could under Suits in Admiralty Act sue for unearned wages.

Why, it could be the most revolutionary concept I ever heard.

As a matter of fact I’d like to see it on writing from the Solicitor’s office I intend to ask — ask him for a letter to that effect after this case is over.

Abe Fortas:

Mr. Scribner, Mr. Eldridge referred to certain seaman’s wage statutes as possibly applicable in some of these cases brought by government employees for wage claims.

Do you agree that there are some seaman’s wage statutes that ordinarily administered by the District Courts in admiralty which might be important in a — an action by somebody like your plaintiffs?

David Scribner:

I think categorically there are absolutely none.

The only statutes that were involved and I know they’ll agree because they referred to Title 46, would be Title 46 of the Code which relates to that problem.

David Scribner:

Title 46 of the Code relates to unearned wages, maintenance and cure and the like.

A reference was made a little while ago to the question of unearned wages that it might conceivably involve a government seaman in a suit for wages might conceivably come within the comforts of 46.

It is absolutely inaccurate, he can not come, there are no articles, no government employee who acts as a seaman cites on co-shipping articles.

The shipping articles spell out the application of Title 46, it spells out specifically.

Another thing that was mentioned was that there was a question as to whether or not a government seaman would be entitled to a month’s pay because of the scope of his employment or the articles.

That’s under his articles.

Articles are required under Title 46, the interpretation of articles are requirement of Title 42.

Government seamen are not covered by those —

Abe Fortas:

Excuse me, but this is important to me.

What you are saying to us as I understand it is that the scheme of law applicable to seaman for a government employee is separate and isolated from the scheme of laws that are — is applicable to actions by seamen who are private employees.

David Scribner:

Yes indeed, there’s a same comprehensive plan that we see — that we suggest was considered by this Court in Johansen-Patterson cases.

Abe Fortas:

So that they’re totally separate.

David Scribner:

That’s right, and in fact they are.

Abe Fortas:

And if I understand Mr. Eldridge he contests that statement.

David Scribner:

Well I think that’s a fact.

The Title 46 is available to all of us.

It does not apply to government employees just as it doesn’t apply to someone, a typist in Kansas City who’s a government employee.

It would apply as little to a Kansas City typist who is a government employee as it would to seaman who is employed by the government in civil service in the civil service area on a government vessel.

Exactly there is not difference insofar as the application of admiralty law is concerned.