Continental Grain Company v. Barge FBL-585

PETITIONER: Continental Grain Company
RESPONDENT: Barge FBL-585
LOCATION: Federal Reformatory for Women in West Virginia

DOCKET NO.: 229
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 364 US 19 (1960)
ARGUED: Apr 20, 1960
DECIDED: Jun 27, 1960

Facts of the case

Question

Media for Continental Grain Company v. Barge FBL-585

Audio Transcription for Oral Argument - April 20, 1960 (Part 2) in Continental Grain Company v. Barge FBL-585

Audio Transcription for Oral Argument - April 20, 1960 (Part 1) in Continental Grain Company v. Barge FBL-585

Earl Warren:

Number 229, Continental Grain Company, Petitioner, versus Barge FBL-585 et al.

Mr. Deutsch.

Eberhard P. Deutsch:

May it please the Court.

At the very outset, permit me to state that this case involves no mandates.

This was an order entered by the District Court for the transfer of an action and in the same order, brought the case within the new Interlocutory Appeals Act so that the case came to the Court of Appeals on appeal and then here by certiorari.

There is no mandamus status involved.

The proceeding itself involves an action in rem in admiralty instituted on the Southern District of New York of -- in the Eastern District of Louisiana against a vessel present in that district.

The cause of action had arisen in the Western District of Tennessee where the libel in rem could not have been brought but where a companion action at law was pending.

The District Court held that the convenience of parties and witnesses in the interest of justice required it to be transferred to the Western District of Tennessee, rather the right to -- or made the statement that the question involved was one of importance and of doubtful solution and an appeal was accordingly allowed to the Court of Appeals.

That Court affirmed, holding expressly that an action in rem in admiralty maybe transferred to a district "to which the movement consents to an unlimited submission of the cause."

It had been my intention to suggest that very little could be added at this point to what has been said at this bar in the two preceding cases but I am tempted to depart from that original intention a step or two to answer perhaps one or two questions which I think were not answered directly at this bar.

In the first place, the question was asked what would happen, I think Mr. Justice Frankfurter, if the plaintiff had in his pocket a letter granting consent to the filing of an action in a district in which it could not otherwise have been filed, if he had that in his pocket prior to the filing of the action.

Now that, I don't think that question was answered here.

I don't know that I can answer it under the holdings of the Seventh Circuit that would still not be a district in which the action could be filed because they read that clause as stating where it might have been brought in the absence of any assent or waiver from the defendant.

But -- and -- and do they go that far?

Eberhard P. Deutsch:

Oh yes, sir.

In exact words, I will read just a -- a couple of lines.

We recognize of course that venue maybe waived under proper circumstances but we do not think it can be waived in a forum in which an action has not and could not have been properly brought.

The -- when Congress provided for the transfer of a case to a district where it might have been brought, it meant the district where plaintiff had a recognized right to bring his case under the Venue Act and that this right was unqualified and absolute not depending upon consent of the defendant, evidenced by waiver, entry of appearance or otherwise.

Thank you.

Eberhard P. Deutsch:

And the language in the other --

Felix Frankfurter:

Purely, when they tried -- they tried 1404 and as I understood the respondents here, tried 1404 to the statutory -- statutory venue provisions standing by themselves.

Eberhard P. Deutsch:

I think so, yes sir.

The other case, the other Seventh Circuit case which is up here contains similar language, not as strong as that.

Now, with reference to the matter of Josephson, in that case, Judge Magruder held in so many words that even the waiver wasn't necessary once you got the defendant and that as far as I can see with all due deference simply just reads where it might have been brought right out of the statute altogether because the argument which is made “where it might have been brought” by waiver or consent isn't even there anymore.

(Voice Overlap) --

Potter Stewart:

I didn't quite under -- I didn't' quite understand what you said, Judge Magruder said in In re Josephson.

Eberhard P. Deutsch:

In In re Josephson and perhaps to avoid any question, let me read two or three lines and then make my comment.

One service of process upon all the defendants has been effectuated in Massachusetts, a transfer order.

Yes, sir.