United States v. United Continental Tuna Corporation – Oral Argument – November 03, 1975

Media for United States v. United Continental Tuna Corporation

Audio Transcription for Opinion Announcement – March 30, 1976 in United States v. United Continental Tuna Corporation

del

Warren E. Burger:

We will hear arguments first this morning in number 74-869, United States against United Continental Tuna Corporation.

Mr. Kopp, you may proceed whenever you are ready.

Robert E. Kopp:

Mr. Chief Justice and may it please the Court.

This case presents the question of whether Congress in 1960, when it amended the suits in Admiralty Act, repealed by implication the Public Vessels Act of 1925.

These suits in Admiralty Act, in general expresses the consent of the United States to be sued in Admiralty.

The Public Vessels Act however contains specific requirements, which pertain only to suits involving public vessels.

It is the position of the respondent and of the Court of Appeals below that when you have a public vessel that is in involved, the conditions of the suits in Admiralty Act only have to be satisfied.

Harry A. Blackmun:

Is there a statutory definition of a public vessel?

Robert E. Kopp:

No, Your Honor, there is no statutory definition.

One of the problems in the litigation is what is the effect of the absence of no-definition and the question of drawing the line as to what is a public vessel or what is not a public vessel.

Harry A. Blackmun:

In any event, I suppose it is conceded that a United Sates Navy Destroyer is a public vessel.

Robert E. Kopp:

That is right, in this case, it is absolutely clear that we a public vessel that is involved.

This particular case arouse as the result of a collision which occurred off the Coast of California, between the Navy Destroyer and a fishing vessel owned by the respondent, a Philippine Corporation.

Although I might add, that this Philippine Corporation, in turn was owned by American stockholders.

The collision occurred and the fishing vessel, according to the compliant, was sunk, the respondent then brought suit in the District Court alleging jurisdiction under both the suits and Admiralty Act and the Public Vessels Act.

The Government moved for summary judgment, in our motion we argued that this was a case arising under the Public Vessels Act.

It involved a pubic vessel, therefore the suit had to satisfy the conditions of the Public Vessels Act, which included a requirement of a showing of reciprocity in suits by for national.

The reciprocity have not been met here and therefore we argued that the suit should be dismissed.

The District Court agreed and entered summary judgment for the United States, the Court of Appeals however reversed.

According to the Court of Appeals the suits in Admiralty Act as it currently stands, as a result of 1960 Amendment, expresses generally the consent of the United States to be sued in Admiralty.

No longer when you have a public vessel that is involved although prior to 1960 you had to do so, you have to meet the specific requirements of the Public Vessels Act.

Accordingly, the Court found that since the general conditions of the suits in Admiralty Act had been satisfied, that the suit could proceed and the Court of Appeals reversed and remanded.

William H. Rehnquist:

Prior to 1960, Mr. Kopp, as I understand it an action could be brought against a Government owned merchant vessel under the suits in Admiralty Act, would that have been a public vessel?

Robert E. Kopp:

No, prior to 1960, you had suits involving merchant vessels, which could be brought only under these suits in Admiralty Act.

Suits involving public vessels, which could be brought only under the Public Vessels Act, and one of the problems in this particular area, which I will get to in discussing the legislative history, is that you had cases that did not fit into either category.

Where there was not a public vessel involved, there was not a merchant vessel involved, and it was very difficult if you had a contract suit because this means you had to sue in the Court of Claims.

William H. Rehnquist:

Why could you not sue under the suits of an Admiralty Act, if you were suing the United States owned merchant vessel?

Robert E. Kopp:

It you were suing–

William H. Rehnquist:

Under the Public Vessels Act.

Robert E. Kopp:

Because the Public Vessels Act, there was a distinction setup between a Public Vessel Act — between public vessel and a merchant vessel, there was basic — there was a basic distinction and that a merchant vessel was to be distinguished from a public vessel.

Robert E. Kopp:

You could have one or the other, this was a rigid dichotomy that was set out and you could not in fact have a situation where you had a suit that involved, what you would call a public vessel that would also fall into the merchant vessel category, the law due to a rigid dichotomy.

[Inaudible]

Robert E. Kopp:

That is right, that was the construction of the statute, but that was done explicitly by the Congress.

The Congress, when it passed the suits in Admiralty Act in fact, intended to draw a rigid dichotomy, it intended in the suits in Admiralty Act to deal only with merchant vessel suits.

The Public Vessels Act was passed five-years later, and it contained additional requirements that Congress felt necessary for suits involving public vessels such as Government warships for instance.

Potter Stewart:

There was not a statutory definition of the term, “Public Vessel,” why did Congress use such a phrase, it is not — there had been a development of definition in the case law, in the Admiralty Law?

Robert E. Kopp:

Well, in–

Potter Stewart:

Generally it does not say — it does not say Military Vessel or Naval Vessel or anything that would be more familiar, a public vessel does not certainly have very much of a common name, does it?

Robert E. Kopp:

Well, what happened was that shortly before these two statues were passed, Congress decided, or this Court decided a case the Lake Monroe, which involved a statute — the Shipping Act, whereby Congress had said that the merchant vessels owned by the United States were subject to all the ordinary rules of Admiralty.

So that you had a decision of this Court, dealing specifically with the concept of merchant vessels that said that merchant vessels of the United States could be sued and were in fact subject to all the usual admiralty procedures.

So in reaction to this decision, the Congress passed the suits in Admiralty Act, and the Congress had before it this specific situation of a merchant vessel and it dealt with that specific situation.

There was–

Excuse me, excuse me I do not want to interrupt you.

Robert E. Kopp:

There was in fact a movement in the Congress in 1920 to expand the scope of the suits in Admiralty Act to cover all vessels owned by the United States.

But that was initially defeated because the Congress felt that there were further problems, if you had suits involving warships that had to be dealt with, and there was a need for time to think about these particular problems.

Potter Stewart:

My question was, where did the phrase, “Public Vessel” come from?

Do you know?

Robert E. Kopp:

The phrase–

Potter Stewart:

Does it have any case law meaning, does it —

Robert E. Kopp:

No, the phrase that produced the case was really was not public vessel but was merchant vessel.

Potter Stewart:

Yes, exactly, quite a difference.

Robert E. Kopp:

That is right, that is right, and I think what happened was that back in 1920, everybody had in mind the idea that all vessels of the United States were in one sense public vessels.

But there was this fixed judicial construction of what was a merchant vessel, so the Congress drew the definition or drew the line–

Potter Stewart:

But did not draw a definition, did it?

Robert E. Kopp:

It did because it confined the suits in Admiralty Act only to merchant vessels.

And then–

Potter Stewart:

When was this?

By implication then, a public vessel is any vessel owned or operated by the United States is not a merchant vessel.

Robert E. Kopp:

That is right you had–

Potter Stewart:

Between you get into ambiguous situations, do you not?

Robert E. Kopp:

That is right, Mr. Justice.

Now the Government’s–

Potter Stewart:

Cruise ships or cargo ships chartered by the Navy or the Army and so on?

Robert E. Kopp:

Well, actually what happened was–

Potter Stewart:

Passenger ships, not cruise ships, passenger ships.

Merchant freighters?

Robert E. Kopp:

That is right you had some very difficult situations that arose as to what was a merchant vessel or what was a public vessel.

And this led to a very difficult problem for litigants because it was all right to them if they had a suit, if they could show that their suit involved a merchant or that involved a public vessel, because then they were guaranteed to be able to bring suit in the District Court.

But there were some very difficult problems in drawing the line, there was some cases where you had a situation where a Court might very well say this suit did not involve a public vessel, this suit did not involve a merchant vessel, therefore it does not fall under either the suits in Admiralty Act or the Public Vessels Act.

And if you had a contract–

Potter Stewart:

What kind of vessel would that be?

Robert E. Kopp:

Well, take for instance the situation of a privately owned vessel, which is chartered by the Government and used by the Government to carry war materials.

Now, this is a situation that would not involve a case to be brought under the Public Vessels Act because you had a privately owned vessel, so the Public Vessels Act was out.

Now, according to a decision of the Court of Appeals by Judge Vernon Hand (ph), this also involved the case where you did not have a merchant vessel because the ship was not being operated to carry merchant cargo, who is being operated to carry public cargo, war material.

So, according to the Court of Appeals for the Second Circuit in the Calmar Steamship case, this particular situation fell under neither the suits in Admiralty Act nor the Public Vessels Act.

Therefore the Court said since you had a contract claim that was involved and since your contract claim was for more than $10,000.00, this suit could be brought only in the Court of Claims.

Now that Second Circuit decision was in fact reversed by this Court, but the example of the Second Circuit decision was fresh on the minds of the drafters in Congress of the 1960 Amendment, and the Calmar Steamship case was in fact one of the situations that they attempted to deal with in the 1960 Amendment.

Now the 1960 Amendment was passed by Congress because of this very problem demonstrated by the Calmar case, where you had cases that did not fall into the category of Public Vessels or Merchant Vessels, and they could very well fall into the Court of Claims.

And what Congress did to deal with this problem in 1960, it did two things; it eliminated the old distinction that you had between Merchant Vessels and Public Vessels, because this distinction could throw some cases out of either classification.

Secondly, Congress wanted to make it very clear that all miscellaneous type of cases, all cases that were hard to classify but were in Admiralty, would fall into the District Courts.

So this led to the 1960 Amendments and the specific language, which we now have before this Court.

The Congress amended the language of the suits in Admiralty Act in 742 to come to its present meaning, which is set forth on page three, in cases where if such vessel were privately owned or operated or if such cargo were privately owned or possessed, now here is what was added in 1960, “or if a private person or property were involved, a proceeding in Admiralty could be maintained.”

The 1960 Amendment added the language, “or if a private person or property were involved,” it also subtracted former language in that section which had included a proviso that, that section apply — only were merchant vessels were involved.

So you eliminated, the Congress eliminated the old distinction between Merchant Vessels and Public Vessels.

Further the Congress in this — or if a private person or property language added language to the Act that was in fact as broad as the scope of the entire Admiralty jurisdiction, and it did this to make it clear that all Admiralty cases against the United States would now come into the District Courts.

You could no longer have the problem of cases falling into the Court of Claims.

Now, the respondent argues that this change had the consequence of arising the Public Vessels Act.

The Public Vessels Act prior to this time clearly applied only to public vessels and the respondent now contends that because its situation, of situation involving the public vessel, is a situation where if a private person or property were involved, a proceeding could be maintained, that now it could maintain its action under the suits in Admiralty Act.

But Congress did not feel it necessary, when it was amending the suits in Admiralty Act in 1960 to mention the Public Vessels Act for a very particular reason.

And that was because the Public Vessels Act in Section 782 contains language, which in effect makes it clear that when there is any conflict between the Public Vessels Act and the suits in Admiralty Act, the Public Vessels Act must prevail.

Robert E. Kopp:

Now, this particular language is the language that set out at the bottom of page four of our brief, in Section 782 of the Public Vessels Act.

Section 782, in the very last sentence provides such suits, now those are suits set out in Section 781 above for damages caused by a public vessel of the United States.

Such suits shall be subject to and proceed in accordance with the provisions of Chapter 20 of this Title, the suits in Admiralty Act, or any amendment thereof insofar as the same are not inconsistent here with.

In other words, we have in Section 782 a specific provision that declares that in the event of any conflict between the two statutes, the terms of the Public Vessels Act must prevail.

Thus, in 1960 Congress felt no need to include any expressed guarantees, the Public Vessels Act was not being repealed because it could rest confidently upon this language in Section 782 to prevent this result.

Potter Stewart:

You would concede, I think you have in your brief, Mr. Kopp, that taking the language of the suits in Admiralty Act as amended in 1960, without reference to any other legislation, that the Court of Appeals was clearly correct here.

Robert E. Kopp:

If the language of the suits in Admiralty Act is read in isolation and by itself.

But we would submit that if that language is read in context, and in context with the Public Vessels Act —

Potter Stewart:

And also in context with its legislative history.

Robert E. Kopp:

And also in context with its legislative history, a totally different result is reached because we have this very provision that reconciles the two statutes.

And your emphasis is on the insofar as I seem are not inconsistently with?

Robert E. Kopp:

That is right, Mr. Justice.

Well what is the inconsistency?

Robert E. Kopp:

Okay, in this particular case, the Public Vessels Act contains a reciprocity requirement in Section 785, it provides no suits, and this is at the top of page five, no suit may be brought under Section 781 to 790 of this Title.

That actually means under this Act, that is the way it was in the original statutes, by a national –of any foreign Government unless it shall appear to the satisfaction of the Court.

That said Government under similar circumstances allows nationals of the United States to sue in its Court.

Now, one could in fact read that provision as not creating a conflict with the suits in Admiralty Act, but it’s plain meaning and intent is that obviously Congress felt that if you had a suit involving a public vessel of the United States, and a foreign national were involved, a foreign national could not bring that suit unless he could meet a showing of reciprocity.

And it certainly inconsistent with that interpretation of Section 785, to then turn around and say that the foreign national however could bring suit under the suits in Admiralty Act.

The Congress would in fact be giving foreign nationals a more favored status than they would be giving their own citizens, because American citizens in suits involving public vessels would have to sue under the Public Vessels Act.

So that is why we say there is a conflict, it is not a strictly — it is not a conflict that is inherent as a matter of linguistics, but I think in terms of the plain meaning of the statutes, the conflict is quite obvious.

Potter Stewart:

But at least one other limitation of importance is there?

Robert E. Kopp:

That is right, now the Public Vessels Act was enacted because there were certain requirements that Congress felt really were essential in suits involving public vessels, and there are only a handful of such requirements.

Perhaps the one that was most in the forefront of the Congress at the time that it was enacting the Public Vessels Act was a provision, which is now in Section 784 of the Public Vessels Act that is not in our brief.

Section 784, which provides that subpoenas may not be issued to the members of the crew of a public vessel without the consent of the captain or the secretary of the department concerned.

This was a condition that the Congress felt was unique to public vessels and it was very important to have that in there because if you had a suit involving a warship, it would be intolerable to permit the vessel to be tied up at a dock while its crew members were off testifying in court, so that is why we have Section 784.

Potter Stewart:

You have the other provision that at least in time of war, the Secretary of the Navy has the unreviewable power to stay all proceedings.

Robert E. Kopp:

That is right, in 1944 that provision was enacted and it gives the Secretary the automatic right to require a stay of all proceedings under the Public Vessels Act.

These provisions would as a practical matter be totally voided by the decision of the Court of Appeals which would permit anybody to bring a suit under the suits in Admiralty Act today instead of the Public Vessels Act.

I would like to get back to the, Mr. Kopp, to your colloquial with Mr. Justice Stewart.

What is your submission as to the limit of public vessel?

Robert E. Kopp:

A public vessel, we would submit means a vessel that is owned by the United States and operated solely for Governmental purpose.

As for example, a coastguard dredge, that dredge is a harbor.

Robert E. Kopp:

That is right.

That would be a public vessel.

Robert E. Kopp:

That would be.

This is to be distinguished from the situation for instance where you have the United States which charters a vessel but with a private crew, and that crew remains in control of the vessel throughout the voyage.

But even in cases I gathered chartered vessels, you may have a public vessel, is that it?

Robert E. Kopp:

If the United States in fact has a bareboat charter, a charter where it requires ownership for the purpose of the voyage.

Government ownership is a prerequisite–

But with ownership, but on a bareboat charter would it have to be–

Robert E. Kopp:

That is the equivalent of ownership.

And the United States would have to provide its own crew?

Robert E. Kopp:

That is right.

This–

Potter Stewart:

Your definition is self-defining, it is a bootstrap definition, any vessel owned and operated by the United States is presumptively owned and operated for the interest of the Government of the United States.

Robert E. Kopp:

That is right and it is a public vessel, but it is not a merchant vessel, a vessel has been operated for higher — the typical situation involving a merchant vessel is a situation that arises where the Government to develop the merchant marine has to build and own a freighter, for instance, because there is not simply enough capacity in the private industry to do so.

So the Government builds this freighter, it has title to the freighter and then it lets it out to Government contractors who use it in ordinary commercial intercourse, now that is the prime example of a merchant vessel.

But–

Potter Stewart:

But not the prime example of a merchant vessel, it may be an example owned by the United States, that is not a public vessel.

Robert E. Kopp:

It is not a public vessel, that is right.

Thurgood Marshall:

What about a ship like the old United States?

Robert E. Kopp:

I am sorry, Mr. Justice Marshall?

Thurgood Marshall:

Passenger vessel, the old United States is unlike it.

Robert E. Kopp:

If it was operated as a troop transport for instance —

Thurgood Marshall:

As long as a regular passenger run with passengers on it is owned by the United States and I assume it is in the interest of the United States.

Robert E. Kopp:

If it was in fact owned and operated by the United States, as opposed to a Government contract, I would say that would be a public vessel.

Thurgood Marshall:

Yet it could be a merchant vessel.

Robert E. Kopp:

No, because it would not be operated for private profit, it would be operated for the public interest.

Thurgood Marshall:

And now we have got another one in that whether it is public interest or private?

That is a merchant vessel, it has the labor unions and everything else that a merchant vessel had —

Robert E. Kopp:

I am not saying that drawing the line today between merchant vessel and public vessel is a totally automatic thing.

All I am saying is that the 1960 Amendment was not enacted because of the problem of drawing the distinction per se between public vessels and merchant vessels, rather it was drawn because you could have cases where you had neither a public vessel nor a merchant vessel.

See, the public vessel-merchant vessel distinction could throw some cases into the Court of Claims, and that was why the 1960 Amendment was enacted.

Now there is absolutely nothing in the legislative history of–

Potter Stewart:

I think you suggested that if there was a chartered troop carrier here and that it had been involved in this accident, the suit would have had been under the suits in Admiralty, could have been.

Robert E. Kopp:

It would depend on how the government had chartered.

Potter Stewart:

Well it was not much a bearable charter.

Robert E. Kopp:

Okay then, it would be under the suits in Admiralty Act, and that is–

Potter Stewart:

And would need — no need to be no reciprocity?

Robert E. Kopp:

There would need to be no reciprocity, that is right.

Potter Stewart:

Yes, but if it is a destroyer that was escorting the ship and gets in the accident, there must be reciprocity.

Robert E. Kopp:

That is right, this is the holding go the Calmer Steamship case in this Court, where a Court was faced with this very similar problem.

A private vessel transporting troops and war material and manned by a private crew, and the Court there in effect said that the consequence of our holding that this case does not involve a merchant vessel would be to throw this suit into the Court of Claims.

Therefore, because we do not think the Court of Claims is properly an Admiralty Court, we are going to conclude essentially as a matter of policy that we have a merchant vessel involved in this situation, and therefore, the plaintiff could bring suit in the District Court under the suits in Admiralty Act.

And it was because of a problem as was presented by the Calmer case that the 1960 Amendment was enacted.

Now, there is absolutely nothing in the legislative history to indicate any way that Congress intended to repeal the Public Vessels Act.

Congress was concerned with this very specific problem of the jurisdiction of the Court of Claims, in relation to the District Courts, the Public Vessels Act was not amended in any way.

In the legislative history, there is absolutely no discussion at all that the terms of the Public Vessels Act are onerous or unjust.

When we think of Congress was going about repealing the Public Vessels Act, at the very least there would be some discussion along those lines.

There is no discussion of any of the differences between the suits in Admiralty Act and the Public Vessels Act.

Again, if Congress were rationally going to go about repealing the two statutes, it would expect at least the bare minimum of discussion for instance as to why it is unjust to have a reciprocity requirement.

Well, you say that you may read the statute different from what it says on its face just because of congressional silence and the existence of other statute.

Robert E. Kopp:

Well, our position is not just that because we say that on the face of the statutes, when they are read in context–

Well, that is what I have just said, I said on the face of the suits in Admiralty Act, you read them, you do not read the words the way they appear to read because of the existence of another statute and silence.

Robert E. Kopp:

Because of the existence of another statute, which indicates how, the suits in Admiralty Act should be read and silenced.

And of course, we have in this–

Well the legislative history you are referring to is silence.

Robert E. Kopp:

There is absolutely no intent at all reflected in that legislative history to repeal the Public Vessels Act.

We have here really a classic case of repeal by implication or under the Court of Appeals decision, Congress without thinking about the Public Vessels Act, just simply — and not amended in any way simply repealed it.

William H. Rehnquist:

Well, really, your argument at best is by analogy there, is it not.

William H. Rehnquist:

Because if the Court of Appeals is right, the Public Vessels Act remains as a source of authority for bringing suits, did just another statute has been expanded to overlap with it a great deal, maybe you have got argument by analogy but it is not a repealer.

Robert E. Kopp:

Well is it in fact a repealer, Mr. Justice Rehnquist, and the reason is because the Public Vessels Act consists of a series of extra conditions, more onerous conditions, that Congress has imposed upon the suits in Admiralty Act for suits involving public vessels so that no plaintiff today given his choice between the two statutes is going to sue under the Public Vessels Act.

He is always going to sue under the suits in Admiralty Act because the Public Vessels Act for him simply means more trouble, for instance the rules on interest are less favorable.

William H. Rehnquist:

But it is still there and it could apply to his case if he chose to have it.

Robert E. Kopp:

But no one– no litigant in the right mind will ever choose to apply the Public Vessels Act because they have available the suits in Admiralty Act which is a more favorable statute.

Now there is one situation where the Public Vessels Act is in fact more favorable to litigants and that is in the area of venue.

The Public Vessels Act and the suits in Admiralty Act both provide that when you have a suit that is brought in the district where the vessel could be found you have to bring suit in that district.

If the vessel cannot be found then you can bring the suit in the district where the plaintiff has his place of business or residence, the suits in Admiralty Act then stops there but the Public Vessels Act goes on to say, if the suit—if the vessel cannot be found or if the plaintiff does not have his place of residence then you can bring suit in any court.

And — so in a situation where the vessel cannot be found and the plaintiff has not place and residence, he might be able to get venue under the Public Vessels Act but not under the suits in Admiralty Act.

But that is not a very real distinction because why would Congress have set up a statutory scheme that turns for instance on where you could find venue.

Further, virtually all public vessels at some point within a two-year period return to the United States and can be found within the United States, so that this little distinction really, is meaningless.

Warren E. Burger:

Your time has expired Mr. Kopp.

Mr. MacLaughlin.

Francis J. Maclaughlin:

Mr. Chief Justice and may it please the Court.

I would like to begin my discussion of this case by asking the Court to consider in practical terms, the significance of this decision in what the Government is asking as to hold.

Now, if the role of tortfeasor, an innocent victim in this collision were reversed, that is if the Philippine Vessel had been negligent and if were the Government’s vessel which were damaged or sunk, the Government’s remedies are quite clear.

And there is no question at all about what they could have that Philippine vessel arrested and sold interim if necessary in order to satisfy their damage claim.

Also they could commence an in personam action against the Philippine owner here in the Courts of our country, as the Government has done in the past, and it has standing to do it in the Courts of the Philippines or in any other civilized nation which follows the general maritime law.

Now, that would be the situation where the Government has been damaged, but in this case, it is the Philippine ship owner who has been damaged and it is the Government we allege which has been negligent.

What the Government in effect is saying in this lawsuit as I understand their position, is that liability or rising from ship collisions in these circumstances should be a one-way street.

If the Government has been damaged it has a right to recover, but if a Philippine ship owner has been unfortunate enough to have suffered damage as a result of a collision, he has no right to sue–

That was clearly true before 1960–

Warren E. Burger:

That was a different analogy Mr. MacLaughlin, I thought they were just opposing the position of an American national damaged by a Philippine ship and comparing his right to sue in Philippine Courts, is that not the way he argued?

Francis J. Maclaughlin:

Well Mr. Chief Justice, I am not sure I listened closely enough to answer your question, but–

Warren E. Burger:

–is it not that the heart of the reciprocity issue?

Francis J. Maclaughlin:

Well, that is the way the statue is worded, and that is what I am suggesting is unfair about it.

Because here is this portal Philippine ship owner and the United States can sue him, they can sell his vessel interim to pay their damage claim, but the Government says he has no claim against them.

Warren E. Burger:

Well the fact that our statute is unfair in some respect, does that make it totally vulnerable?

Francis J. Maclaughlin:

No, Your Honor.

I do want to discuss the statute itself by I started out by asking the Court to consider the case in terms of practical, equitable considerations.

Francis J. Maclaughlin:

And what I am suggesting is that a result, which deprives a Philippine ship owner of his right to recover his damages from the Government, is basically unfair.

William H. Rehnquist:

There is no doubt that would have been the result before the 1960 Amendment is it?

Francis J. Maclaughlin:

No question at all.

Byron R. White:

And that is the way sovereign immunity has operated forever.

Francis J. Maclaughlin:

That is the way it has operated forever–

Byron R. White:

And the rule around in our cases has been that you—do you not construe congressional waivers of sovereign immunity rather strictly?

Francis J. Maclaughlin:

It is exactly the opposite–

Byron R. White:

Oh, really?

Francis J. Maclaughlin:

Mr. Chief Justice White.

They are construed liberally, liberally in favor of the claimant.

The Court of Appeals said in this case, did they not?

Francis J. Maclaughlin:

That is correct and several Courts of Appeals have said that and this Court itself–

But you need expressed waivers by Congress, would you not?

Francis J. Maclaughlin:

Well that is correct but the waiver once made by Congress is liberally construed in favor of claimants.

The waiver here is, with respect to all kinds of Government vessels.

Francis J. Maclaughlin:

That is correct, Your Honor.

It is not a sovereign, is it a sovereign immunity?

Francis J. Maclaughlin:

Well these are really reverse sides of the same coin, the Government says we cannot be sued unless we have consented to be sued, and this consent is liberally construed under the cases as we read them.

Warren E. Burger:

Do you suggest that there is something inherently unfair about the statute, which provides that foreign nationals can sue in the American Courts under cover, if the nation of that foreign national extends the same right to American citizens?

Francis J. Maclaughlin:

Well, if the same right were extended to American citizens there, there would be nothing unfair about it.

Warren E. Burger:

That is the heart of a reciprocity statute always, is it not?

Francis J. Maclaughlin:

Well that is the way the statute is phrased, but what I am suggesting is unfair is how about the individual Philippine citizen who can be sued in his own country by the United States, or he can be sued here to satisfy their damage claim.

I am suggesting that it is unfair to deny equal rights to him as against the United States.

Now there may well be god reasons, in fact I am persuaded that there are to deny the Philippine Government or any Government which refuses to submit to sue, to deny them the right to recover from the United States.

But it is basically unfair to deny an individual citizen, who is subject to the United States’ claim, equal and reciprocal rights under the law.

Now, we believe that Congress, if I may address myself to the suits in Admiralty Act, we believe that Congress by this Act as amended in 1960 has abolished the pre-existing distinction, which existed between public vessels and merchant vessels.

The legislative history of the Act recites according to the Senate report, that a substantial portion of a jurisdictional uncertainty in this area is attributable to the confusion in establishing whether a vessel is a merchant vessel or a public vessel.

And the Courts in the late 40’s and early 50’s had tremendous difficulty trying to decide what were public vessels and what were merchant vessels and was there a gap between them.

And the Senate and the House looked at this confusion and their report reflects that they were concerned about it.

And at the bottom or after reciting a number of these cases, the Senate report reflects what the Senate wanted to do about it, and it says that the decisive question in a lawsuit should as far as possible be its merits and not assert here technical problems of procedure.

Francis J. Maclaughlin:

So this was the Senate’s attitude and this was a House’s attitude when it considered the 1960 Amendment.

We know that they were upset about the confusion, we know that they were upset about the technical disposition of cases and that they desire these cases to be heard against Government on their merits.

Now the statute, which they adopted, is perfectly plain, it eliminated the old restriction concerning merchant vessels so that the statute as now worded applies generally to all types of vessels.

And so the statute on its face is plain.

The Government says that if we look at the legislative intent we will see that Congress really intended after all to preserve the public vessels distinction and to separate out from the suits in Admiralty Act, damage caused by public vessels.

But the legislative history is completely silent on that.

The Government has been unable to show or to invite our attention to any portion of the legislative history, which would show that.

Indeed, if I may say so, or invite the Court’s attention to this Court’s earlier decision in Amell versus United States, which was decided in 1966, shortly after this Act was amended.

The Court stated in that case that the old distinction was abolished, and the Government’s brief in that case which is a part of the records of this Court is here before me, and if I may quote from page 19, the Government at that time reviewed these jurisdictional problems and then said, the same problem that Congress in the 1960 Act to abolish the distinction between public and merchant government vessels which had caused uncertainty and led to frequent misfilings.

So this was a position of the Government in 1965 when this issue was last presented to the Court.

Warren E. Burger:

But that does not address itself to the reciprocity issue, does it?

Francis J. Maclaughlin:

No, it does not.

It addresses itself to the meaning and interpretation and purpose of the suits in Admiralty Act.

I am suggesting that the suits in Admiralty Act is amended in 1960 abolished the merchant-public vessel distinction and now encompasses claims caused by any type of vessel.

I am suggesting, in fact I am inviting the Court’s attention to the fact that this was precisely the Government’s position when it presented its brief to the Court in connection with the Amell case.

Now, the Government council has made an argument here this morning which I did not see in his brief, although it may well be there, and he has invited our attention to this sentence which appears in Section 782 of the Public Vessels Act.

Warren E. Burger:

Where are you reading from now?

Francis J. Maclaughlin:

I am on page four of the petitioner’s brief, Your Honor.

Warren E. Burger:

The main brief.

Francis J. Maclaughlin:

Yes, Mr. Chief Justice, at the bottom of the page.

The sentence to which council invited our attention reads, such suit shall be subject to and proceed in accordance with the provisions of Section 20 of this Title, the suits in Admiralty Act or any amendment thereof, insofar as the same are not consistent here with.

I think what council has suggested, or what he means to suggest, is that this sentence means that when there is an overlap of between the Acts that the claimant must proceed under the Public Vessels Act.

Now, I do not read it that way, I think what this says is that when the claimant is proceeding under the Public Vessels Act, the procedure then will be as specified in the suits in Admiralty Act except where the Public Vessels Act otherwise provides.

It does not say that a claimant must proceed in the event of an overlap of jurisdiction.

It does not say that a claimant must proceed under the Public Vessels Act or that in that event the Public Vessels Act supersedes the provisions of the suits in Admiralty Act.

Well the fact was provocative and the emphasis to the first few words, such suits shall be subject to–.

Francis J. Maclaughlin:

I think such suits refer to suits, which are brought under the Public Vessels Act.

And in this saying, that when a claimant sues under the Public Vessels Act, that claim will be heard in accordance with the Public Vessels Act and in accordance with the provisions of the suits in Admiralty Act, except when these provisions of the suits in Admiralty Act are inconsistent.

In other words, it is prescribing a procedure to be followed when a claim is made under the Public Vessels Act, but it does not say, I respectfully submit, it does not say that a claimant must proceed under this Act.

And it does not say, that in the event of dual coverage under the Acts, that the Public Vessels Act supersedes the suits in Admiralty Act.

Potter Stewart:

Mr. Kopp, if you are correct and if the Court of Appeals is correct, why would any plaintiff ever proceed under the Public Vessels Act rather than the suits in Admiralty Act.

Francis J. Maclaughlin:

Well Mr. Justice Stewart, the only reason I can think of is the one, which the Court of Appeals suggested, and that is that the venue provisions are slightly different in a particular case, it might well be that a claimant could not secure venue under the suits in Admiralty Act but could do so under the Public Vessels Act.

Potter Stewart:

Excuse me, Mr. MacLaughlin, I have called you by your—and that is the, that is the same kind of situation mentioned by Mr. Kopp, you cannot think of anything else, any other possible reason.

Francis J. Maclaughlin:

No, I cannot and that is the only situation that I can think of.

We have an alternative theory of recovery, which we have presented to the District Court and to the Court of Appeal, and if for some reason this Court decides to reverse the Court of Appeal on the suits in Admiralty issue, we would respectfully request that it consider our claim under the Public Vessels Act.

And in particular, we invite the Court’s attention to the Admiralty Doctrine, under which a ship owner’s nationality is determined according to the nationality of the real or beneficial owner of the company.

We look through the technical state of incorporation and it is only right in this day and age that we do so because many ship owners in the United States and elsewhere incorporate and register vessels under flags of convenience and you cannot tell anything about their nationality.

And they ought not to be permitted to escape from liabilities, which are rightfully imposed or would be imposed against them in their own country.

Thurgood Marshall:

The Court of Appeals did not consider this.

Francis J. Maclaughlin:

That is right, that is right.

The Court of Appeals decided the case on a basis of the suits in Admiralty Act and did not rule upon our alternative theory.

Potter Stewart:

Before these amendments, there were certain kinds of cases that did not fall under the suits in Admiralty Act or the Public Vessels Act, I gather.

Francis J. Maclaughlin:

There was real question as to whether or not–

Potter Stewart:

Assuming there were, and that the Congress was aiming at curing that–

Francis J. Maclaughlin:

I take it.

Potter Stewart:

But those cases were — cases before 1960 that did not fall under either one of those Acts could still be brought under some, in some other Court, could be brought in under a Federal Tort claim or in the Court of Claims?

Francis J. Maclaughlin:

Well, the Courts were in conflict on that issue because there was a real question as to whether or not a vessel caused claim would lie under the Federal Tort Claims Act or under any other Act.

Potter Stewart:

But some Courts held that they could?

Francis J. Maclaughlin:

I think most of them held that they could not, so that if a claimant–

Potter Stewart:

Or a contract can–

Francis J. Maclaughlin:

That is right.

So that if a claimant unfortunately could not bring himself within the definition of a public vessel nor within the definition of a merchant vessel he had no remedy.

Potter Stewart:

Was that because of some lack of authorization to bring suit or what is because there was not any waiver of sovereign immunity?

Francis J. Maclaughlin:

I think the Courts construed it as a lack of waiver of sovereign immunity, the Government just–

Potter Stewart:

Now, is there is something in these amendments that would indicate that a suit that fell outside those Acts before the amendment, but now falls within one of the other or both of them, could not be brought in Court of Claims or in the under the Federal Tort Claims Act?

Francis J. Maclaughlin:

No.

Potter Stewart:

Is that the same possibilities there was before–

Francis J. Maclaughlin:

No, I take not, because the language adopted in 1960 is far broader, it says that if where if a vessel were privately owned, a proceeding–

Potter Stewart:

I understand that, let as assume that that is perfectly clear, but what if you—what if this case had been brought in the, under the Federal Tort Claims Act?

Francis J. Maclaughlin:

It could not, because the Federal Tort Claims Act contains a provision, which says that if there is jurisdiction under the suits in Admiralty Act, then it will not lie under the Federal Tort Claims Act.

Potter Stewart:

Is that true that you could not bring it in the Court of Claims?

Francis J. Maclaughlin:

I am not aware of the rule with respect to that Court.

I have nothing further to add Mr. Chief Justice, I would be happy to try to answer any further questions of the Court but if there are none I have nothing further.

Warren E. Burger:

Thank you Mr. MacLaughlin, thank you Mr. Kopp.

The case is submitted.