British Transport Commission v. United States

PETITIONER:British Transport Commission
RESPONDENT:United States
LOCATION:The United States District Court for the Western District of Texas

DOCKET NO.: 247
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 354 US 129 (1957)
ARGUED: Apr 29, 1957
DECIDED: Jun 10, 1957

Facts of the case

Question

  • Oral Argument – April 29, 1957 (Part 1)
  • Audio Transcription for Oral Argument – April 29, 1957 (Part 1) in British Transport Commission v. United States

    Audio Transcription for Oral Argument – April 29, 1957 (Part 2) in British Transport Commission v. United States

    Earl Warren:

    Mr. Dow, you may proceed.

    Wilbur E. Dow, Jr.:

    Mr. Chief Justice and may it please the Court.

    I think it would help the Court a little to understand what this thing is all about, before we go any further.

    When the Haiti Victory cut through the bow of the Duke of York one night in the English Channel, as you might suppose a lot of people were killed, injured, and lost their property.

    Now, you have heard here that a 104 out of the 115 were from other parts of the world, even as far away as Australia, so to let them sue over there if they want to collect anything.

    But five out of the eight people that died were Americans and they constitute the bulk of these claims.

    Now, it would also help if we knew just what happens in Europe, when you have limitation of liability.

    You don’t have it as a label on the first proceeding as you often do here, it comes afterwards.

    The first thing you do, everyone’s who’s everybody else, just as we usually do here.

    And after there are suits, and cross-claims, and counterclaims, the Court decides the issue of liability and determines under their rules just who was liable and to what extent.

    After that is completed, the ship owner looks at the Bill that’s presented to him and then decide whether or not he’s going to limit, which is a sensible thing to do.

    I think in a sense, we have the cart before the horse here very often.

    But we overcome that by frequently using limitation of liability as a defense like under the Jahncke and that case stands for the proposition that you can use it either way and I submit that there isn’t a slightest doubt that British Transport can limit now if it wants to, because for the first time there are claims against it.

    There weren’t before.

    Now, the difficultly here originally arose because of the fact that there was a Government involved and a British vessel which our Government thought was likewise a British Government ship.

    So they thought it came under the Knock-for-Knock Agreement.

    Consequently, there were some confusion and the thing didn’t proceed exactly as an ordinary case of this kind would proceed.

    Ordinarily, they would have waited until the vessel got where she was going, the Brooklyn Navy Yard for repairs and then British Transport’s counsel whose office was there would’ve label it.

    The Government would’ve come back and answered limited, and claimed against the British for their damages.

    We would’ve come in.

    And I only represent the people that were injured, killed and, lost there baggage.

    Mr. Doub will speak for the Government’s aspect of the case.

    So we would’ve then come in and filed our claims.

    And under Rule 43, we’d file them against anybody.

    Now, we don’t have any admiralty, the equivalent of Rule 13 (g) of the civil rules.

    So, for one to have a better, we used Rule 56 or sometimes 54 and have for 75 years.

    It goes back, it used to be Rule 59.

    At first, as the petitioner pointed out, yes, it was designed for collision.

    But it was quickly spread to cargo and then to all sorts of things.

    Now, if we had the European and British system of determining liability before we determine whether or not we were going to limit, we wouldn’t require the equivalent of Rule 56 or — or its — its liberal use.

    Wilbur E. Dow, Jr.:

    Who wouldn’t need it?

    Because all that would be done under the — under perhaps a very clear rules permitting implead or in cross-libel.

    But just assume as we have, as I say, the cart before the horse, we have to use Rule 56 rather liberally in order to get all people before the Court, have a concourse of claims, determine liability all around and then apportion whatever is before the Court for apportionment.

    Felix Frankfurter:

    If you have the English system —

    Wilbur E. Dow, Jr.:

    Yes, sir.

    Felix Frankfurter:

    — of limitation, as you put it to us, how would you be able to proceed in this country against the British Commission?

    Wilbur E. Dow, Jr.:

    We would have to libel a British vessel in England.

    Felix Frankfurter:

    Well, you mean you’d have to go to England?

    Wilbur E. Dow, Jr.:

    Yes, sir.

    Felix Frankfurter:

    Well, that —

    Wilbur E. Dow, Jr.:

    We would.

    Felix Frankfurter:

    — that’s what the controversy is about, isn’t it?

    Whether you should go there or be able to do this here.

    Wilbur E. Dow, Jr.:

    Your Honor, they chose to come here.

    Felix Frankfurter:

    Well, I understand that —

    Wilbur E. Dow, Jr.:

    That’s no reason to prejudice these people.

    Felix Frankfurter:

    Well, I’m not meaning to decide the case but I can assure you, I’m just suggesting that if you invoke the English system, it carries with it the fact you couldn’t have done this under the English system because you wouldn’t have the Commission here.

    Wilbur E. Dow, Jr.:

    Under the English system, Your Honor, everybody would’ve had to go — if we went to England, everybody would of course had to go to England.

    Felix Frankfurter:

    Except the United States could limit its liability or idea in Norfolk as it is.

    Wilbur E. Dow, Jr.:

    That’s correct and the United States did limit its liability here in Norfolk and I think the reason was because Norfolk was up to date and at that time both southern and eastern were five years behind, and it was a prudent thing to do.

    Felix Frankfurter:

    And if the British Commission hadn’t come here, you would’ve been helpless.

    You’ll have to go over there.

    Wilbur E. Dow, Jr.:

    If — if the British didn’t come here, then it would be a res judicata over there.

    Now, and they would’ve had — not a leg to stand on —

    Felix Frankfurter:

    The determination —

    Wilbur E. Dow, Jr.:

    — but they came over here —

    Felix Frankfurter:

    — of fault — the determination of fault would’ve been (Voice Overlap) —

    Wilbur E. Dow, Jr.:

    To determine the fault, yes.

    And that’s what they came over here to do.

    And they said in their pleadings, the United States is — is not blamed (Voice Overlap) —

    Felix Frankfurter:

    But that isn’t challenged — but that isn’t challenged, Mr. Dow.

    Wilbur E. Dow, Jr.:

    Sir?

    Felix Frankfurter:

    That is not challenged that it would be a res judicata as to fault.

    As I understood the argument, that is not a challenged.

    Wilbur E. Dow, Jr.:

    Yes, sir.

    And when you read the fine print on the back of the tickets it’s res judicata just about everything else, too, only in reverse.

    These people have no claims in England for the most part.

    Felix Frankfurter:

    You mean you — they couldn’t recover because the limitations — the contract of limitations are respected by their courts?

    Wilbur E. Dow, Jr.:

    That’s right and they are.

    It’s against public policy over here, but it’s all right over there, and they respect it.

    The shipowner is still in the driver’s seat over there.

    Felix Frankfurter:

    Well, that’s their concern, not ours.

    Wilbur E. Dow, Jr.:

    All right, but it’s these people’s concern right here in this Court now, and if were going to have a complete adjudication of this whole controversy in one lawsuit as Chief Justice Taft and subsequently Chief Justice Hughes said in both the case against the Southern Pacific and the — the Just and Chambers, then it’s got to be done here and it’s got to be done in one litigation that if you can litigate this thing’s a piecemeal all over the world, then there’s — there’s nothing.

    The British had nothing to lose coming over here.

    They came over with fishhooks in their pockets in an asbestos suit.

    And they said, we want every bit of that million and a half that we can get, and we deny any liability.

    And you America are 100% at fault and the Court says you’re mistaken there, you’re 100% at fault.

    And then, as my opponents said that the money is returned to the Government and the matter is finished.

    Well, within that, I find how do you do.

    It isn’t finished, there’s 115 people that hasn’t gotten a nickel, and this was the only they’re going to get it.

    Hugo L. Black:

    May I ask you a question?

    Wilbur E. Dow, Jr.:

    Yes, sir.

    Hugo L. Black:

    I was just about to ask you, do you ever think that question was asked about something you had said?

    Do I understand from you that the only way this could be justified is the use or under Rule 56?

    Wilbur E. Dow, Jr.:

    Your Honor, it’s — it’s —

    Hugo L. Black:

    Are those rules exhausted?

    Does that mean that —

    Wilbur E. Dow, Jr.:

    As —

    Hugo L. Black:

    — no — no power left in admiralty to sanction its rules as it goes along in connection with this sign?

    Wilbur E. Dow, Jr.:

    That’s a very good question.

    Wilbur E. Dow, Jr.:

    Mr. Leavenworth Colby of the Government’s Admiralty Office, which is one of the finest in the country, has often said that while our civil rules are suppose to be all inclusive and tell everybody exactly what they can and cannot do, the Admiralty Rules as — as annunciated by Mr. Justice Bradley when he said at the end of his opinion in Scotland, I believe it was, we will now — at the conclusion of this case, we will announce a few rules and that’s just what that they did.

    The Admiralty Rules were always a few loose general rules with the District Courts having a right to author those Rules within the framework of the general rules expressed by this Court.

    Consequently, we have never attempted in admiralty to delineate by rule every single thing that could or could not be done.

    Now, the — the foolishness of trying to do such a thing is apparent, no two admiralty collisions are alike, there’s no such thing.

    For — every collision has different people, different cargo interest, different types of injuries, they can be three, four, five, ten parties mixed up in it.

    There can be passengers or not.

    The — the — it can happen in the waters of different parts of the world and with the flags of any nation.

    Now, to attempt to have a body of rules that would specifically guide the Courts in every single step that they were to take in every proceeding would be something inexhaustible, it wouldn’t work and it couldn’t be done.

    Did I understand you to say that if you proceeded in England, but because of your ticket provisions, you would not be able to recover against the British Commission there.

    But if you sue the British Commission here, those contract provisions under our law will be disregarded and you can recover here whereas you couldn’t have done it over there?

    Wilbur E. Dow, Jr.:

    Yes, and that’s substantially —

    Well, that makes quite a difference, doesn’t it?

    Wilbur E. Dow, Jr.:

    It’s a tremendous difference.

    Well, if it makes quite a tremendous difference to your position as to what — what — to scope these limitation proceedings should be given.

    Wilbur E. Dow, Jr.:

    Well, if you are going to narrow the scope of these proceedings to the point where limitation of liability is limitation of liability and nothing more.

    And you are not going adjudge the question of fault, or if you do, it doesn’t do any good because there’s no money there to pay for it.

    Then we’ve got to — we’re in for tremendous overhaul.

    When the British came in here — when the British came in here, they expected to submit themselves to the jurisdiction of this Court which sits in equity for all purposes.

    Felix Frankfurter:

    Well, that’s —

    Well —

    Felix Frankfurter:

    — the whole question in this case.

    Is that — is that so?

    Wilbur E. Dow, Jr.:

    There is —

    Earl Warren:

    (Voice Overlap) —

    Wilbur E. Dow, Jr.:

    — no question about what they did, the British didn’t figure out Rule 56 or what —

    Earl Warren:

    But is there in the pleadings or in the record to indicate that they — they did so consider it?

    Wilbur E. Dow, Jr.:

    There is — there — Your Honor, I submit there is nothing in the record of any kind or description where the British still hold on to some — something which will elect them out.

    They didn’t appear especially for this purpose only.

    They did nothing of the sort.

    Felix Frankfurter:

    Well, could they — would that — would that — I asked Mr. Acheson then I ask you, do you think that would make a difference (Voice Overlap) —

    Wilbur E. Dow, Jr.:

    If they hadn’t?

    Felix Frankfurter:

    If they say, we appear here only for purpose of limitation and yet they followed always what say you it is.

    Would that make a difference?

    Wilbur E. Dow, Jr.:

    Your Honor —

    Felix Frankfurter:

    Do you think —

    Wilbur E. Dow, Jr.:

    — in that — in that case, I think the Court —

    Felix Frankfurter:

    We can have it both ways?

    Wilbur E. Dow, Jr.:

    — would be justified in striking their appearance from the record.

    Felix Frankfurter:

    That if a — if we’d say — the Court would say, we won’t allow you to appeal.

    Wilbur E. Dow, Jr.:

    That’s right because it serves no purpose.

    You get — there’s no — we can’t do complete justice.

    Felix Frankfurter:

    Well, but complete justice is a big fray from this world, isn’t it?

    Wilbur E. Dow, Jr.:

    That’s what —

    Felix Frankfurter:

    It does — it does —

    Wilbur E. Dow, Jr.:

    — this Court used in the — in the cases telling how this — this limitation of liability should be — should be handled.

    Felix Frankfurter:

    Well, it does do something.

    They are now bound by the finding that the — the American vessel was not at fault, there were at fault —

    Wilbur E. Dow, Jr.:

    Yes.

    Felix Frankfurter:

    — that’s something, isn’t it?

    Wilbur E. Dow, Jr.:

    Yes, sir.

    Felix Frankfurter:

    And it maybe a good deal.

    They can’t — they didn’t do anything.

    Wilbur E. Dow, Jr.:

    It maybe which?

    Felix Frankfurter:

    You cannot say that’s it’s — it’s an empty thing that to which they subject themselves.

    Wilbur E. Dow, Jr.:

    Of course not, I think it’s a very important thing that —

    Felix Frankfurter:

    All right.

    Wilbur E. Dow, Jr.:

    — they subjected themselves too.

    Felix Frankfurter:

    But I’m suggesting the — that that which is clearly adjudicated against them to the extent that — that this record held is something, isn’t it?

    Wilbur E. Dow, Jr.:

    Yes, sir.

    It is.

    Felix Frankfurter:

    Very well and you can’t say it’s nothing?

    William J. Brennan, Jr.:

    Mr. Dow?

    Wilbur E. Dow, Jr.:

    Oh, no, I never said it was nothing.

    I think it’s something that should be enforced.

    William J. Brennan, Jr.:

    Mr. Dow?

    Wilbur E. Dow, Jr.:

    If you don’t get money from a judgment, you — what’s the use to having it?

    Yes, sir?

    William J. Brennan, Jr.:

    Mr. Dow, did you say that if the British Company had not — the Commission had not appeared in this proceeding, that nevertheless the finding that it was at fault would have been conclusive, parted in the England?

    Wilbur E. Dow, Jr.:

    I don’t think there’s any question about it.

    William J. Brennan, Jr.:

    Well then did you also say that if we had the British procedure here of having liability first determined and then —

    Wilbur E. Dow, Jr.:

    Limitations —

    William J. Brennan, Jr.:

    — rather than the cart before the horse, as you described it.

    If in that instance there’d been a libel started after the Haiti Victory came back here, not by the British Commission but by American claimants, there could have been in that proceeding a defense by the United States of limitation?

    Wilbur E. Dow, Jr.:

    Yes, sir.

    William J. Brennan, Jr.:

    Would in that instance —

    Wilbur E. Dow, Jr.:

    You say a defensive limitation?

    William J. Brennan, Jr.:

    Well, whatever it is —

    Wilbur E. Dow, Jr.:

    (Voice Overlap) —

    William J. Brennan, Jr.:

    — I’m not familiar —

    Wilbur E. Dow, Jr.:

    — the exact term —

    William J. Brennan, Jr.:

    — with the — I’m not familiar with the chart and whatever it is in any event in that libel proceeding, the United States could have raised the issue of liability of course, could it not?

    Wilbur E. Dow, Jr.:

    He had in it’s — in it’s —

    William J. Brennan, Jr.:

    Oh no, I’m speaking now —

    Wilbur E. Dow, Jr.:

    — limitation of liability petition —

    William J. Brennan, Jr.:

    No, no —

    Wilbur E. Dow, Jr.:

    — it said you’re not liable they —

    William J. Brennan, Jr.:

    No, hear me out.

    Now, what I’m speaking about is if we had the British procedure rather than the one we do of the cart before the horse —

    Wilbur E. Dow, Jr.:

    Yes.

    William J. Brennan, Jr.:

    — I gather that the issue of liability would have been raised on the libel court by perhaps the American claimants against the United States, isn’t that right?

    William J. Brennan, Jr.:

    The issue is a liability of the United States.

    Wilbur E. Dow, Jr.:

    Would have been raised at that time?

    William J. Brennan, Jr.:

    Yes, would it not?

    Wilbur E. Dow, Jr.:

    Yes, sir.

    William J. Brennan, Jr.:

    And with the determination in that proceeding that the United States was not liable and even a determination that the British vessel was liable have been binding upon the British Commission that the British Commission did not appear in that libel proceeding?

    Wilbur E. Dow, Jr.:

    No, sir.

    I don’t think so.

    William J. Brennan, Jr.:

    Would not?

    Well then, wasn’t the British Commission in a position here where it had to come in to this procedure, allow under our law or else suffer as you told me they would suffer, a binding — binding upon them in England that they were at fault?

    Wilbur E. Dow, Jr.:

    I’m sorry.

    I’m — I’m afraid I misunderstood you.

    If our Court found that the British was 100% liable and we were blameless, even though the British didn’t come in, they would be bound by that.

    Yes, sir.

    William J. Brennan, Jr.:

    In this proceeding?

    Wilbur E. Dow, Jr.:

    Yes, sir.

    William J. Brennan, Jr.:

    But now, what about in a proceeding brought by American citizens against the United States after the Haiti Victory came into an American port —

    Wilbur E. Dow, Jr.:

    Yes.

    William J. Brennan, Jr.:

    — in which proceeding the British Commission did not appear.

    Wilbur E. Dow, Jr.:

    Yes.

    William J. Brennan, Jr.:

    What would be the effect in England of the finding exonerating the United States?

    Wilbur E. Dow, Jr.:

    I think — still think it would be res judicata if the Court — if the Court shall decide it.

    William J. Brennan, Jr.:

    Even though the British Commission didn’t go into that libel proceeding that litigate the issue of its own lability at all?

    Wilbur E. Dow, Jr.:

    Well, the — the people who were injured will make — would make their own allegations of liability on the part of someone.

    William J. Brennan, Jr.:

    Well, I would assume with — when they brought it against the United States, it would be on the part of the United States when they brought the libel proceeding against the United States after the Haiti Victory came into port, wouldn’t it?

    Wilbur E. Dow, Jr.:

    Yes.

    William J. Brennan, Jr.:

    Now, if the British Commission were not a party to that libel proceeding, are you telling me that nevertheless a finding of exonerating the United States and laying the fault to the Duke of York would have been binding in England upon the British Commission?

    Wilbur E. Dow, Jr.:

    Your Honor, we say over here, our courts have said that finding is res judicata.

    Ordinarily, the courts of — of the maritime courts of the world respect the findings of our courts.

    Now, and — and I’m sure that that would happen.

    What — the issue that — that the petitioner has raised here is even if you will get a judgement against us, a claim against us here and you go over to Europe to enforce it, you may not get anything anyway.

    Wilbur E. Dow, Jr.:

    Well, it’s a threat.

    It’s true, we might not.

    In many cases, we wouldn’t.

    But the British came into this with the idea, as stated in their pleadings that they were blameless and that the United States were solely at fault.

    William J. Brennan, Jr.:

    Yes, but they came in because, as I understand it, they had to come in or suffer the consequences of a determination against them which would be res judicata in England.

    Is that what you told me?

    Wilbur E. Dow, Jr.:

    Your Honor, they had to come in if they were to get any part of the fund.

    They wanted money.

    They couldn’t get it unless they did come in and they believe that they were entitled.

    The Court held, otherwise, they were firmly convinced that they were going to get a good part of that money.

    And when, to their complete astonishment and surprise, and mine as well, they were held solely at fault.

    Then they said, well under Rule 56, we pick up our marbles and go home, we’re through.

    We don’t owe anybody anything because we only came in to claim, as a claimant in this proceeding.

    We did not subject our self to the jurisdiction, although, the claimants, if they had claims against us.

    Well, that strikes if — if the root of everything that limitation of liability is supposed to be, which is a concourse of claims in the settlement to everything in one litigation.

    William J. Brennan, Jr.:

    Incidentally, on these cross-claims, was there any defense interposed by the British Commission at all?

    Wilbur E. Dow, Jr.:

    None whatsoever —

    William J. Brennan, Jr.:

    Or (Voice Overlap) —

    Wilbur E. Dow, Jr.:

    — except that that —

    William J. Brennan, Jr.:

    — that stage of what?

    Wilbur E. Dow, Jr.:

    — except the defense that —

    William J. Brennan, Jr.:

    Yes.

    Wilbur E. Dow, Jr.:

    — that you couldn’t implead them under Rule 56.

    William J. Brennan, Jr.:

    Well is it that we haven’t reached that stage if we decide — determine that it could be impleaded, do they still have an opportunity to impose — interpose defenses?

    Wilbur E. Dow, Jr.:

    Oh, yes, of course these people were slick —

    William J. Brennan, Jr.:

    Well, could they do (Voice Overlap) —

    Wilbur E. Dow, Jr.:

    (Voice Overlap) to this accident.

    William J. Brennan, Jr.:

    They do you say?

    Wilbur E. Dow, Jr.:

    If there is a defense.

    If these people in anyway contributed to their — to their own death (Voice Overlap) —

    William J. Brennan, Jr.:

    Well then what about — what about the contract stipulation on the ticket, may that be interposed as a defense?

    Wilbur E. Dow, Jr.:

    Can over there.

    William J. Brennan, Jr.:

    Well, can they here?

    Wilbur E. Dow, Jr.:

    Not here.

    No, sir, it’s against public policy here.

    Hugo L. Black:

    You mean it’s against public policy if we adjudicated claim against England on that English contract to recognize the law of England in finding as — is that before us here?

    Why do we have to decide that?

    Wilbur E. Dow, Jr.:

    We don’t.

    I say the —

    Hugo L. Black:

    Why don’t they investigate?

    Wilbur E. Dow, Jr.:

    If these people had to take their tickets and their claims to England and sue the British Transport Commission there, most of them would be out of court.

    Hugo L. Black:

    And you say that’s because there’s a valid contract in England, so they recognized that the valid contract and you say that if it’s — we tried over here, we tried on to our law —

    Wilbur E. Dow, Jr.:

    I think so.

    Hugo L. Black:

    — the law of the United States, which is to permit the United States, would be against public policy?

    Wilbur E. Dow, Jr.:

    Yes, sir.

    I don’t think we will — we would enforce a —

    Hugo L. Black:

    Well, that have been —

    Wilbur E. Dow, Jr.:

    — a contract.

    Hugo L. Black:

    It haven’t yet been decided as that would have to be decided, wouldn’t it, it’s either there or here?

    Wilbur E. Dow, Jr.:

    Well, I had always —

    Hugo L. Black:

    (Voice Overlap) we have a right to setup as a defense that it was governed by the laws of England or wherever it’s tried.

    Wilbur E. Dow, Jr.:

    I — yes sir, but I had always thought that any — any contract provision of that contract that was against public policy in this country would not be given effect in this country if it were used as a defense.

    Hugo L. Black:

    Unless sometimes it will say yes or sometimes it’s not.

    Wilbur E. Dow, Jr.:

    Well, I had — I had thought it was quite —

    Hugo L. Black:

    (Voice Overlap) —

    Wilbur E. Dow, Jr.:

    — quite clear.

    Hugo L. Black:

    — always, isn’t it?

    Wilbur E. Dow, Jr.:

    You see this — this thing was never have occurred, none of these things would have happened if the British Transport Commission had libel this American ship.

    But believing that that was going to happen in New York and preferring to have it done in Norfolk, they limited Norfolk, then not — not having a claim against the British ship because believing it was knock-for-knock, they may have not.

    And as a consequence, it stood solely as a limitation proceeding, although, each party claims that the other was to blame.

    Hugo L. Black:

    Were these contracts made in England?

    Wilbur E. Dow, Jr.:

    Well, they were — most of them made in Holland.

    The ship was in route from Holland to England.

    It was a British —

    Hugo L. Black:

    And — and you made a rather — presented a rather strong point the other side of the — where they are arguing that they — they would lose valuable rights which they are entitled to under the laws of their country, they should be tried over here instead of over there.

    If — if what you say is correct, whether it would be decided in the case or not, it is certainly true that they can show a very substantial loss to them — themselves and that this country would refuse to recognize the obligation between them and the people who were there which would be binding over there.

    Wilbur E. Dow, Jr.:

    Correct.

    As a matter of fact, these people couldn’t afford to.

    They’re scattered all over the world.

    The — these people can very — you look forward to — they’re all here now represented by eight American firms of attorneys.

    If they all had to go to York and finance a case over there, the situation would be impossible for the most —

    Hugo L. Black:

    I — I understand that —

    Wilbur E. Dow, Jr.:

    — that they wouldn’t get a cent.

    Hugo L. Black:

    — that’s an argument — that’s an argument on your side.

    Wilbur E. Dow, Jr.:

    Well —

    Hugo L. Black:

    But it seems to me like if what you’re saying that it being definitely subtle that this country will not recognize the contract which is binding in the country where it was made, that you’re giving a pretty strong argument to the other side for the — for the equities of the situation.

    Wilbur E. Dow, Jr.:

    Well, it — it would seem so, Your Honor, I know.

    It would seem so.

    But actually, I don’t believe that — that that’s the case.

    I didn’t mean to be so — so firm that there’s no question about that at all.

    Felix Frankfurter:

    But don’t we have to consider the implications of the rule when we come to construe it, we can’t construe the rule, something existing up in air?

    Wilbur E. Dow, Jr.:

    I want you to construe the implications because the implications of Rule 56, running all through the cases for the last 75 years, make it clear beyond for adventure of the doubt that you cannot take little distinctions and the few little cases here, magnify them into differences that will destroy the effect.

    Felix Frankfurter:

    Well, I understand that argument.

    Wilbur E. Dow, Jr.:

    I —

    Do you — do you agree, Mr. Dow, that the rule as written doesn’t cover this kind of a claim?

    You can’t rely on the rule itself.

    In other words, can you —

    Wilbur E. Dow, Jr.:

    The rule —

    — directly rely on some inherent power of the court to fashion rules as they go along?

    Wilbur E. Dow, Jr.:

    Yes, sir.

    Do you agree with that?

    Wilbur E. Dow, Jr.:

    Absolutely.

    Felix Frankfurter:

    What s the rule for?

    Wilbur E. Dow, Jr.:

    The — the rule doesn’t forbid this, neither does it authorize.

    Felix Frankfurter:

    What’s the purpose of the rule, Mr. Dow?

    Why was it formulated?

    Wilbur E. Dow, Jr.:

    Well, in a general way, to bring in — to be — to enable the party to bring in all those who were directly concerned with the case itself.

    Bring them in and do complete justice in one — in one piece of litigation.

    Felix Frankfurter:

    But the rule doesn’t relate to limitations suits, does it?

    The rule wasn’t a rule enunciated with reference to limitation suits.

    And when it comes to limitation suit, there you haven’t got a general admiralty doctrine, you have a legislatively formulated doctrine with limitations and rights.

    And therefore, you have to go to legislation.(Voice Overlap) —

    Wilbur E. Dow, Jr.:

    Your Honor, that doesn’t apply to Rule 56.

    Judge (Voice Overlap) —

    Felix Frankfurter:

    Therefore, it becomes important to see whether Rule 56 applies to a — to a limitation proceeding, doesn’t it?

    Wilbur E. Dow, Jr.:

    Judge — I — I find it hard to answer that, expect in this way, Your Honor, Judge Brown permitted a cross-claim — cross-libels in a collision proceeding.

    Felix Frankfurter:

    Not a limitation proceeding, is that right?

    It wasn’t a limitation proceeding, that’s just — all one has to do is to go to Judge Brown’s opinion, it’s clearly not a limitation proceeding.

    Wilbur E. Dow, Jr.:

    Yes, and the rule was formulated to support that opinion, and subsequently extended to other things.

    And I say that you don’t have to extend it to this case, it’s also already there.

    It’s there in a dozen ways, not in — in exactly so that it affords, but almost so.

    The cases to which — there’s three or four, which would seem to give, and I regret I don’t have the time to do it.

    There’s three or four cases like the Algoma case, several others.

    They would appear to support the petitioner’s position here, but an examination of them shows that they do not — I’m — I’m sorry, my time is —

    Felix Frankfurter:

    Well, I understand, Mr. Dow —

    Wilbur E. Dow, Jr.:

    — so limited.

    Felix Frankfurter:

    I understand an argument that relied on the rule.

    And if so, then one must examine the rule.

    I understand an argument that says, we’re outside the rule, we don’t need the rule, we dispense with the rule, irrelevant to this controversy.

    If that is so, then you’re restricted to the limitation statute of 1851 and its amendments, and all the power of the court in enforcing that limitation statute.

    Wilbur E. Dow, Jr.:

    That’s correct.

    Felix Frankfurter:

    You’ve got to take one or the other position, as I see it.

    You can’t tell — take a little bit of the rule and now take a little bit of general equity, and somehow or other see what’s equity in the particular case and that’s all.

    Wilbur E. Dow, Jr.:

    This rule, sir, doesn’t forbid it — it doesn’t forbid it.

    It doesn’t, in so many words, allow it.

    But it’s the only thing we’ve have in that in order to achieve this result for all these years and it’s done very well.

    Felix Frankfurter:

    Well, I understood to you say and I can understand the argument that you don’t need the — if the rule weren’t there at all, you would make — we make the same argument for the impleading?

    Is that right?

    Wilbur E. Dow, Jr.:

    No question about it.

    Absolutely.

    Felix Frankfurter:

    All right then you don’t look at the rule.

    Earl Warren:

    Mr. Dow —

    Felix Frankfurter:

    But if you look at rule, you got to look at the rules.

    Earl Warren:

    You say the rules work very well as you interpreted.

    I understood Mr. Acheson to say that never in the history of the — of the country has it ever been used in favor of funds, such whether does you —

    Wilbur E. Dow, Jr.:

    I’m so glad that we might —

    Earl Warren:

    (Voice Overlap) and that — that never had there been a dollar obtained by them.

    What is your position as to that?

    Wilbur E. Dow, Jr.:

    Those words were lifted out of context from a decision of Mr. — Judge Learned Hand in the Algoma case, which I wished I had more time to tell you about.

    In a case where a petitioner limited, his vessel was gone, he made no claim against anyone.

    A Canadian seeking to get away from the Canadian $15 a ton limitation, who likewise wanted to limit and limit in the Buffalo Court where he could limit to do and get out of his 15 ton — $15 a ton Canadian limitation said, “This man, by limiting is suing me.”

    And Judge Learned Hand said, “No, that is not a suit within the terms of this rule.

    That is not a suit within the terms of this rule and consequently you can’t get out of it.

    And you’ll have to limit in Canada where you’re supposed to limit.”

    And then he said — what he meant was this — this petitioner in this case cannot get a dollar out of limitation liability proceedings and he couldn’t because he wasn’t asking for any.

    You can’t get money you don’t claim before.

    That’s true of any limitation of liability proceedings that stands all alone and does not involve the Kilkenny cat fight that follows as on the question of liability.

    And without liberal cross rules back — cross-claims back and forth, we can’t get everybody into the picture and get the concourse of claims, but that’s where that expression came from.

    Earl Warren:

    Mr. Doub.

    George Cochran Doub:

    May it please — if the Court please.

    George Cochran Doub:

    The artificial scholastic character of the position of the Duke of York is indicative by a number of factors.

    First, the character of a limitation and exoneration proceeding in an American court.

    Now, this Court has said that it partakes of a bill for interpleader, a bill to restrain a multiplicity of suits, a creditors bill and I add, and this is never been included in any opinion, but I add a petition for a declaratory judgment of liability because under our system of admiralty limitation procedure, the petitioner is not only attempting to limit his liability, but he his attempting to obtain exoneration, a declaratory judgement that he and his vessel are not liable.

    Now, what has the — what is a theory and philosophy of — of this procedure which this Court has declared?

    What is the approach that it should take to this problem?

    Well, Chief Justice Taft said this, as long ago as 1927 in the Hartford Accident Company case he said, “This procedure defines a broad equitable purpose.

    It should be designed to facilitate a settlement of the whole controversy with all the ease with which rights can be adjusted in equity and that’s intended to be given.”

    He said, “It is the administration of equity in an admiralty court.”

    He said again, “It looks to a complete and just disposition of a many cornered controversy.

    To hold, otherwise, would be that unless the petitioner wins, the court does not have the power to administer justice.”

    There is nothing in the statute nor in the rules that require so futile a conclusion.

    Now here, the British Transport Commission as to obtunding that unless he had won in the limitation proceeding, the admiralty court was without power to grant any affirmative relief against it.

    Hugo L. Black:

    What was the case from which you read?

    George Cochran Doub:

    I was reading, Mr. Justice Black, in Hartford Accident Company in 1927.

    And Chief Justice Hughes adopted that language in 1941 in Just against Chambers and those were unanimous opinions.

    William O. Douglas:

    Mr. Doub, will you — would you care to say what defenses you think the British Commission could interpose if these courts claims do lie in this proceeding?

    George Cochran Doub:

    First, contrary to the brief of our distinguished adversary, they will be able to defend on the ground of limitation of liability.

    Under the Jahncke case, that’s six months limitation to make that defense has been deemed only applicable to an original limitation decision —

    William J. Brennan, Jr.:

    Well now, what —

    George Cochran Doub:

    — such as ours.

    William J. Brennan, Jr.:

    — what about the contract, the ticket contract of limitation?

    George Cochran Doub:

    Now, we know nothing about the ticket business —

    William J. Brennan, Jr.:

    Well, whatever it is —

    George Cochran Doub:

    I say this — I say this that my impression was that an American court would apply English law at a contracts made in England but that’s merely an impression.

    I have nothing to do with that corner of the — of this litigation.

    William J. Brennan, Jr.:

    But no — but I (Voice Overlap) —

    George Cochran Doub:

    But suppose (Voice Overlap) —

    William J. Brennan, Jr.:

    No defenses on the merits in these cross-claims have yet been setup in an answer to the cross-claims or otherwise, have they?

    George Cochran Doub:

    No, because the District Court denied any standing in the claimants to cross-claim against the British Transport Commission, and in that connection must — Mr. Justice Brennan, may I point the extent to which this Commission became a party to this proceeding.

    It didn’t merely file a claim.

    George Cochran Doub:

    It filed an answer as well as a claim for $1,500,000.

    It denied the principle allegations of the Government’s petition.

    It denied we were entitled of limitation.

    It denied we were entitled to exoneration.

    It asserted — it put in issue its own negligence.

    It asserted this collision was attributable solely for the negligence of the Haiti Victory.

    It denied that the Duke of York was at fault.

    It litigated that in the same way it would have done so if it had filed a libel against the Haiti Victory and we had cross-libel.

    The issues were identical and they had to be because in an admiralty collision case, you cannot determine the fault of one vessel without considering the fault of the other.

    The negligence of each vessel is inseparable.

    In other words, the subject matter was not merely the fault of the Haiti Victory.

    The subject matter was the collision, as Justice Learned Hand has said, was the collision.

    Now, as a matter of fact when the District Court set this case down for hearing in a pretrial order he said, “The issues will be limited to the liability of the Haiti Victory and the liability of the Duke of York.”

    May it took no exemption to that, as a matter of fact, in their answer when they came in they said, “We accept the jurisdiction of the Court.”

    One thing that puzzles me is how you’re up here?

    As I understand it, the Government had tried to assert a cross-claim or whatever you want to call it against the British, that was never appealed from the — the denial of that right was never appealed from, is that right?

    George Cochran Doub:

    Mr. Justice Harlan, we did not file a cross-libel or cross-claim explicitly against the Duke of York.

    And we didn’t do it because the United States had an executive agreement with Great Britain which provided that if there was a collision between two vessels, the Great Britain and the United States Government, claims would be waived.

    We were up — we believed and our State Department believed that a vessel owned by the British Transport Commission was a public vessel and within that executive agreement, which is known as the Knock for Knock Agreement of 1942.

    So you’ll find references in our pleadings to the fact that this vessel, the Duke York was under that agreement, so we did not feel free to assert a cross-libel.

    As matter of fact, the State Department will not permit us to do so.

    The subject was then a matter of considerable representations by the British Government, the — and the British Embassy, and our State Department, and there were notes back and forth on the subject as to wether their vessel was or was not owned by the British Government.

    Now, the — as a result, the question resolved diplomatically until after this case was out of the District Court and on appeal.

    And then, our State Department acquiesced in the position of the British Government.

    And in March 1956, we filed a formal cross-claim against the Duke of York in this proceeding which has not been adjudicated.

    But, Mr. Justice Harlan, we believe that our position to cross-claim is in effect the same as the position of the third party claimants.

    We think they have more equity than we do.

    We initiated the proceedings —

    Your — your position as to the — as a cross-claimant has never been adjudicated?

    George Cochran Doub:

    Neither as theirs.

    George Cochran Doub:

    No — there’s been no prejudice to any parties.

    As a matter of fact, when the District Court ruled that this thirty — third party claimants could not cross-claim, he had a back rule that we couldn’t cross-claim.

    Because was their position — we were all parties in our position, that there’s no distinction to be made between the two.

    We’re not asking for any preferred position that we have the right to cross-claim, but the third party claimants did not have such a right, legalistically and technically on adopting the kind that —

    Now that —

    George Cochran Doub:

    — artificial scholastic reasoning of our distinguished adversary, we might make such a position —

    Now —

    George Cochran Doub:

    It would be —

    Could I ask you this question, here is what I’m trying to get straight, maybe I’m confused about it.

    So far as Mr. Acheson’s clients are concerned, they have — or the other side has been given a right to cross-claim against the British Commission in this proceeding, that’s what he’s complaining about.

    George Cochran Doub:

    Yes, by the Court of Appeals —

    So far as the — so far as the Government is concerned, you have not had any adjudication below as to your right to cross-claim against the British, right?

    George Cochran Doub:

    Yes, sir.

    Therefore, it seems to me that you’re up there, what sort of an amicus or what?

    George Cochran Doub:

    Well, if you are to consider as that, you can say we’re full of traveller, innocent by association but actually, we are a — one of the principal parties in the District Court and in the Court of Appeals on the merit.

    But — but if you feel that’s our position, I’d still point out that when you adjudicate the right of the third parties to recover in this proceeding judgements against the British Transport Commission, you will necessarily be adjudicating our right —

    It doesn’t — it doesn’t seem to —

    George Cochran Doub:

    I think they’re inseparable.

    It doesn’t seem to me to follow at all.

    George Cochran Doub:

    Well, not — I — I don’t mean you — you would do it deliberately, but I think your (Voice Overlap) —

    Or as a consequence —

    George Cochran Doub:

    — reasoning will inevitably disposed of our finding.

    Well, that’s what —

    George Cochran Doub:

    May I merely add this on this point.

    The United States, as one of largest owners and operators of vessels in the world, if you accept the decision of the Fourth Circuit and the Second Circuit on this question of admiralty procedure, you will be subjecting in the future the United States to the same cross-claim liability when it makes a claim of an admiralty proceed — limitation proceeding.

    And it may well be that the liability of the United States will far exceed any financial benefit that we may obtain as a proceeding if we’re successful but we are convinced that this is a sound, equitable, fair and just proceeding.

    And that’s our real interest in being here, Mr. Justice Harlan, regardless of any future liabilities on our part or any disadvantage that we may suffer in the future.

    Felix Frankfurter:

    I don’t suppose — I’ve heard arguments like that in connection with the Interstate Commerce Commission and then they found beyond the counter of stand when it came up late to had a reconsideration.

    I don’t suppose you could have stopped the Government by the remarks you just read.

    George Cochran Doub:

    The — [Laughs] as early as 1868, this Court have a siren, we say determine the underlying principle that’s involved here, at least the equitable principle.

    George Cochran Doub:

    You held in the siren that although the Government had an absolute sovereign immunity from suit in an admiralty collision case, both in the rem and in personam, where the Government came in and sought judicial relief, its immunity was waived, and the vessel and the proceeds became subject to all claims upon the vessel.

    And in 1922 in the Western Maid Justice Holmes interpreted your decision in the siren domain, that whenever the United States came into court to enforce a claim, “It would be assumed to submit to just claims of third parties in respect to the same subject matter.”

    And in the case of The Thekla, you took a position that the United States became a private suitor and agreed by implication that justice maybe done with regard to the subject matter.

    Felix Frankfurter:

    You think it makes no difference, the Court of United States or a foreign sovereign, as in the China Bank case, comes in and ask something as a moving plaintiff and where it is brought in — in a proceeding that has a limited purpose as a willing of the claimant.

    George Cochran Doub:

    Yes, I say, Mr. Justice Frankfurter —

    Felix Frankfurter:

    There’s no difference.

    It may be right — all I’m saying —

    George Cochran Doub:

    — that that — if that is a refined distinction.

    For example —

    Felix Frankfurter:

    Well, it isn’t very refined to say it makes a lot of difference whether you come in to the courts of the United States and say I’m a (Inaudible) I have a — a great deal.

    I mean, I believe in the China Bank case very much and where it took an effect —

    George Cochran Doub:

    May I remind you — may I remind you the language you used, Mr. Justice Frankfurter —

    Felix Frankfurter:

    I hope —

    George Cochran Doub:

    — you said the foreign Government wants our law like any other litigant, but it was their law free from the claims of justice, and that’s precisely what the British Transport Commission did here.

    William O. Douglas:

    I suppose if the British Transport had — had won here, below in the District Court, its claim appears on page 24, as I read the record, for a million and half?

    George Cochran Doub:

    Yes.

    William O. Douglas:

    I suppose if million and a half had been awarded then these intervening claimants could’ve — could have, without doubt, proceeded in this limitation proceeding against the British Transport, isn’t that right?

    George Cochran Doub:

    Oh, well no — no.

    Mr. Justice Douglas, if the British Transport Commission affected a recovery against the United States, it — it would be because it was not liable, not a fault —

    William O. Douglas:

    This was —

    George Cochran Doub:

    — not negligent and we were explicitly negligent.

    So then the third party claimants would recover against the United States just as the Duke of York did.

    William O. Douglas:

    Well, conceivably, they might have some recovery against the Transport Commission, perhaps not on negligence, but some other —

    George Cochran Doub:

    Well, I don’t think there’d be any — they would recover against the United States, unless the — the British Transport — unless both vessels were held at fault, and the — in that case the third party claimants would recover against both.

    I think that might be the situation you were thinking of, but I’m not sure that the contention that’s been made by its counsel would mean that it couldn’t be — couldn’t even be subjected to any liability here, entitled to all the benefits of our law procedure but not of its disadvantages.

    William O. Douglas:

    But I — I understood that the lower court decisions had gone that far, permit the intervening claimants to file against the — the party for the limitation proceeding that — that got the — its claim of statute with the admiralty.

    George Cochran Doub:

    Mr. Justice Douglas, we’re in complete disagreement as to the interpretation of the judicial decisions on this subject.

    William O. Douglas:

    Well, that’s the Steel Inventor case, isn’t it?

    George Cochran Doub:

    In the Steel Inventor case, you heard a great deal about what Judge Hough had decided and yet he was reversed by Learned Hand and Augustus Hand in that very case —

    William O. Douglas:

    But they — they allowed the intervening claimants there to proceed against the — the claim that was — or the funds so to speak in the hands of the — of the shipowner who was victorious.

    George Cochran Doub:

    Let — let me explain a little more —

    William O. Douglas:

    Is that right?

    George Cochran Doub:

    It’s more to it than that.

    There, a destroyer, the United States Destroyer and the Steel Inventor colliding, the owner of the Steel Inventor sue — filed a limitation proceeding, just as we did.

    The United States intervened just as the British Transport Commission did and may decline and look at loss.

    The United States won in the District Court, lost in the Court of Appeals, the United States was held liable as for the — its exclusive negligence in causing the act.

    And we were — we were a claimant, just as the British Transport Commission.

    We were held liable for all damages in the case.

    And yet — and yet it’s been suggested too, there’s no authority to hold the British Transport —

    William J. Brennan, Jr.:

    Well, under — in the Steel Inventor case, Mr. Doub, were there other claimants as well?

    George Cochran Doub:

    Oh, yes.

    William J. Brennan, Jr.:

    And they also recovered from the United States after (Voice Overlap) —

    George Cochran Doub:

    Everybody recovered from us.

    Now, let me say this too, why in The Adah you had a — a limitation petition filed by the owner of the scout and Judge Hough held that the accident was solely due to the negligent loading of the stevedore.

    William O. Douglas:

    But the United States —

    George Cochran Doub:

    It have held the stevedore liable of course —

    William O. Douglas:

    The United States —

    George Cochran Doub:

    — a claimant.

    William O. Douglas:

    The United States received an award in the Steel Inventor case.

    George Cochran Doub:

    Now —

    William O. Douglas:

    Well, don’t bother, I —

    George Cochran Doub:

    Well, look at 24 F.2d 657.

    William O. Douglas:

    I — I did — already did and I looked at page 24 of your brief, while you say the award to the United States was regarded in the substitute for the (Inaudible).

    George Cochran Doub:

    Well, I -– my doubt here, and I –- I have — I go into a very more detail in that brief.

    But there, my note say that the Court held a third party claimants were entitled to recover against the United States, the co-claimant in the Inventor’s limitation proceeding.

    The Court —

    William O. Douglas:

    That’s right.

    George Cochran Doub:

    — said the United States claim the limitation proceedings amounted to a right of suit and admiralty against the Steel Inventor, “In doing so, it took the position of a private suitor and as to justice be done regarding the subject matter which was a collision.”

    (Inaudible)

    George Cochran Doub:

    Well, that was the first appeal and on the second appeal, they held Mr. Rosker might think the United States was so here for.

    George Cochran Doub:

    Now, you’ll find in the City of Boston, the same principle was applied in The Adah in 1919.

    In Algoma, I’d like to point out what Learned Hand said, he said initially a limitation proceeding is a defensive proceeding but he theorized if there are cross-claims filed against claimants, it may become an offensive action.

    Now, actually, all we’re asking here is that you apply the same kind of efficient, flexible, fair, and equitable procedure that’s done every day in an equity reorganization or an equity receivership where there, claimants don’t come in, there’ll be a discharge —

    Well, but those —

    George Cochran Doub:

    — and they won’t be able to recover.

    Those situations are wholly different from what we’ve got here, except so far as this unadjudicated claim that the Government is concerned, perhaps that — they bear some analogy into that situation.

    But those equity receivership places had nothing to do with cross-claims between claimants is easy, nothing.

    George Cochran Doub:

    Well, I think that’s too extreme statement.

    Its true, Mr. Justice Harlan, that’s its different.

    It’s true that you have a raise that you are distributing among predators.

    It’s true that where the receiver sues a claimant in the proceeding in effects for recovery such as negligent directors and corporate officers, that he is recovering a — an asset of the State, that’s true and that’s different.

    But on the other hand, what I’m emphasizing is that those claimants would have been barred from any participation in the State if they hadn’t come in.

    So there was the same compulsion to come in and I say that in principal — in principal that the point of view of a court adjudicating all controversies and — and liquidating them, and disposing of them, and finalizing the situation as just as much equity and as just as much reason for admiralty to take hold here, and do justice and complete it as there is in the equity case.

    Let me point this out, what if — if you don’t — from that, this third party claimants to recover here, after — or the United States for that matter, although, that’s not as important frankly because we can always sue on a foreign country and we do it all the time.

    And it’s not — not the same hardship on us, but what is the punctual — functional utility of sending these people to England or Holland to litigate further?

    What’s to be served by it?

    Mr Acheson says “Liability is res judicata.”

    Well, if that’s res judicata, if they’re responsibility for the accidents then determine, why in the world shouldn’t an American court give these people relief when they came here from all over the world?

    Felix Frankfurter:

    I suppose you would agree, Mr. Doub, that a ship chandler can — couldn’t intervene in this suit and say now that the British Commission is here, we’ve got a claim against it.

    I suppose you —

    George Cochran Doub:

    No, those are unrelated claims.

    Felix Frankfurter:

    Those are unrelated claims?

    George Cochran Doub:

    That’s right.

    Felix Frankfurter:

    Well, I’m not sure that in the case of the China case, it would make any difference to me whether it’s unrelated or not.

    George Cochran Doub:

    No, you applied unrelated claim.

    Felix Frankfurter:

    Very well.

    Then what’s the — why — why don’t you — why do you shrink from — from carrying this to your position of saying they’re in Court, they’re here, they didn’t have to come to the United States but they’re here, so we’ll lift this claim.

    Is this admiralty?

    George Cochran Doub:

    That’s because admiralty has jurisdiction of this collision and the liabilities arising out of it, and all the (Voice Overlap) —

    Felix Frankfurter:

    Has a claim in the collision —

    George Cochran Doub:

    Or the claim —

    Felix Frankfurter:

    — and the shipowner can claim too.

    George Cochran Doub:

    No, I think there’d be a logic in that.

    Felix Frankfurter:

    All right.

    Earl Warren:

    Well, Mr. Doub, you — your associate — your associate said that the law of this country would be applied to the contracts of those claimants made with the — with the British vessel.

    Now, wouldn’t they be getting something different here than they would get — get over in Holland or over in — in England that they litigated their — their rights under their contracts?

    Would we have a different rule of –- of policy here?

    George Cochran Doub:

    Well, of course I don’t understand the principle that my colleague annunciated there —

    Earl Warren:

    (Voice Overlap) —

    George Cochran Doub:

    — frankly, I have always — I have always assumed that —

    Earl Warren:

    Yes.

    George Cochran Doub:

    — any court applies the law of the place where the contract was made —

    Earl Warren:

    I would think so.

    George Cochran Doub:

    — in determining its validity.

    Earl Warren:

    Yes.

    George Cochran Doub:

    Well then —

    Earl Warren:

    Well, they won’t hold you responsible if you don’t — if you don’t adhere to that position of course.

    Mr. Acheson.

    Dean G. Acheson:

    Mr. Chief Justice, am I correct that I have five minutes?

    Earl Warren:

    I think —

    Dean G. Acheson:

    Pardon, a white light there.

    Earl Warren:

    Six minutes you have, according to the clerk.

    Dean G. Acheson:

    That should be.

    If the Court please.

    First of all, may I straighten out a few matters.

    In regard to the discussion that we had a moment ago about my statement that in a 106 years, no dollar had been collected.

    One of my distinguished opponents thought that I lifted that from Judge Hand.

    There isn’t — find a man to lift something from that one was lifting.

    But I was making his statement on my own authority and I was saying that having looked — I think in every case that’s been decided, there is not one where a dollar has been collected.

    And if we just take this reason or one that Mr. Doub was talking about, you’ll see why he said that.

    Dean G. Acheson:

    These — these ideas and decision that he’s talking about are interlocutory orders and in this case that the Woolsey, it is quite true, there was an interlocutory order that some claimants might come in and file a claim against any proceeds which remained in the hands in the Court.

    But the fact of the matter is that there were no proceeds in the hands of the Court because the Steel Inventor was declared innocent, there was no fault there.

    Therefore, in its proceeding the — there was no fund to distribute.

    The United States Destroyer, Woolsey, was at the bottom of the Pacific Ocean and since it did not carry freight, the fund that could have been distributed on account of the Woolsey was zero.

    And therefore, although, United States was found at fault and although people could have claimed, if there had been anything to claim, nobody did.

    Now, the same thing is true of these other cases.

    Now, one other matter to straighten up, which at least confused me and the responses to some questions asked by Mr. Justice Brennan.

    I got the idea that the response was made that if the British Transport Commission had not come to the United States, but it remained in England when this indication proceeding was started, the results of the Courts decision would have been res judicata against it.

    Now, that of course cannot be settled, the — no one can be bound by the judgment of the Court, it was not in Court in present.

    And if this, Your Honors, raises the whole basis of — of this argument that the purpose of limitation procedures is to bring in to court everybody who has a claim against a limited fund.

    Now, so far as the American citizens are concerned, our courts can enjoin them.

    They can say, “You must come in here or be defaulted, and you cannot go into any other court.”

    But our courts can’t control people who are not in the United States, you can’t default somebody who isn’t in your court.

    You can’t enjoin somebody who is in England.

    And therefore, these foreign claimants, after they induced to come into these proceedings, and it’s highly important that the proceedings should be of such a nature that they will come in.

    Now, in considering whether to come in, if a claimant is going to find himself, defending himself against all other claimants in the suit he will say, “No, I think I’ll just wait.”

    But as there will be another ship that will come to England before long and I will file a suit against that ship and attach it again a fund in Court, and then — and have another proceeding in England.

    And therefore, the whole purpose of the limitation of liability statutes would be defeated that you would not have succeeded in bringing into one proceeding all the claims against one shipowner.

    And that’s why it is so important to do one thing at a time and not try to solve all the issues which possibly could arise.

    Earl Warren:

    Mr. Acheson, may I ask this question please.

    Would it make any difference in your position if both of these ships were American ships?

    Dean G. Acheson:

    It wouldn’t — it wouldn’t make any difference in the argument on this narrow situation.

    Earl Warren:

    But this is what I mean —

    Dean G. Acheson:

    The difference would be, Your Honor, that if both ships were American ships or if the British were present in the United States, then an independent suit could be filed against that shipowner.

    Once that libel had been filed, the court had taken jurisdiction, the proceedings could be transferred to the same court and consolidate that the whole question here is can you get hold of the person who is sought to be impleaded?

    And we say that if that person is in the United States, two American ship companies in New York, one starts a limitation proceeding.

    If the other one is at fault, he will start an independent suit against the other one and then consolidate the proceedings.

    But you cannot serve them merely because he is in the limitation proceeding.

    Now, this becomes important in regard to foreigners, because they are not in the United States except as they come in for the limited purpose of the limited liability proceeding.

    Hugo L. Black:

    Do I understand you to say that —

    Dean G. Acheson:

    I beg your pardon?

    Hugo L. Black:

    Do I understand that while they could sue him, bring a separate suit, go to that trouble and then somebody move, and it’s moved and have it consolidate it, they couldn’t do it directly?

    Dean G. Acheson:

    Have it consolidate or have it not consolidate?

    Hugo L. Black:

    Well, does it mean that although they can do it by the secured dismiss and to file a different suit, they cannot do it unless in the main suit itself expose of all limit?

    Dean G. Acheson:

    It does not mean that so far as the foreign shipowner is concerned, Mr. Justice Black.

    Hugo L. Black:

    I’m talking about permit to Americans.

    Dean G. Acheson:

    So far as an American shipowner is concerned, yes.

    Hugo L. Black:

    You’ve got to go — that circuit before he can get in to the —

    Dean G. Acheson:

    You — you have acquired jurisdiction by the service of process.

    Now, having acquired jurisdiction, you can do in that proceeding what you do in any proceeding, transferred, or consolidated, or not.

    If you cannot acquire jurisdiction, you cannot do it by serving his lawyer in the limitation proceeding.

    One other thing that I would like to mention, I — I misstated the result of the decision in the Moore-McCormack case.

    I said to the Court that was a proceeding in which a co-claimant had allowed — allowed to implead in an interlocutory way another co-claimant.

    That is not correct.

    I was in error there.

    It is a case where a cross-libel was filed.

    Therefore, that case is like the one which is pending in the District Court and not like the case which is now before Your Honor.

    William J. Brennan, Jr.:

    Mr. Acheson, before you sit down, now that your client is here and came in to this proceeding, if these cross-claims were sustained, is the British Commission in any way prejudiced in the associate of any defenses inclusive for those arising under the ticket contracts or otherwise?

    Dean G. Acheson:

    Yes, Your Honor, it’s prejudiced.

    First of all, in that if — if it has any limitation of liability rights, they are those under the American statute and not under the British statute.

    Secondly, all its defenses, the ticket and other defenses or would not be available to win under the Harter Act.

    William J. Brennan, Jr.:

    Would not be?

    Dean G. Acheson:

    Would not be, yes, sir.

    That’s why Mr. Dow is very careful to tell you that he does not agree that those — that American law would not be imposed.

    American law wouldn’t be opposed and that’s of course why they wish to sue here.

    William J. Brennan, Jr.:

    Well, that’s then to say that in an action in England between you required in any of these cross-claimants, you might hope for a more favorable result and you can under American law?

    Dean G. Acheson:

    That is quite right.

    Yes, Your Honor.

    The English law is drawn among in favor of the shipowner than the American law.

    And therefore, that’s their business.

    Dean G. Acheson:

    It’s conducted under that law.

    Hugo L. Black:

    Do you mean they couldn’t set that up at the — defense in their own courts than how much they would pay (Voice Overlap) —

    Dean G. Acheson:

    They setup their —

    Hugo L. Black:

    — argument that they could.

    Dean G. Acheson:

    They setup their contracts as defenses, Mr. Justice Black.

    Hugo L. Black:

    I suppose the judgment has been obtained over here fixing the amount and goes to England.

    Do you mean that they would not have power in their courts to say that while that — this is the amount would have been due or under their judgment, we can fix this amount?

    Dean G. Acheson:

    No, I — I mean that — in the first place, Mr. Justice Black, those judgments would not be res judicata.

    And therefore, the whole matter would be tried de novo.

    Hugo L. Black:

    Well then they — they would have arrived under their law still to setup their limitations?

    Dean G. Acheson:

    That — that is true, sir.

    Hugo L. Black:

    And the contract to a right?

    Dean G. Acheson:

    That — that is true.