The Constitution of the United States of America: Analysis and Interpretation Part 102

PRIZE CASES, FORFEITURES, ETC.

From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of prize cases.[353] Also, in contrast to other phases of admiralty jurisdiction prize law as applied by the British courts continued to provide the basis of American law so far as practicable,[354] and so far as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction comprises the seizure and forfeiture of vessels engaged in activities in violation of the laws of nations or munic.i.p.al law, such as illicit trade,[355]

infraction of revenue laws,[356] and the like.[357]

PROCEEDINGS _IN REM_

Procedure in admiralty jurisdiction differs in few respects from procedure in actions at law, but the differences that do exist are significant. Suits in admiralty take the form of a proceeding _in rem_ against the vessel and, with exceptions to be noted, proceedings _in rem_ concerning navigable waters are confined exclusively to federal admiralty courts. However, if a common law remedy exists, a plaintiff may bring an action at law in either a State or federal court of competent jurisdiction,[358] but in this event the action is a proceeding _in personam_ against the owner of the vessel. On the other hand, although the Court has sometimes used language which would confine proceedings _in rem_ to admiralty courts,[359] yet it has sustained proceedings _in rem_ in the State courts in actions of forfeiture. Thus in the case of C.J. Hendry Co. _v._ Moore,[360] the Court held that a proceeding _in rem_ in a State court against fishing nets in the navigable waters of California was a common law proceeding within the meaning of -- 9 of the Judiciary Act of 1789, and therefore within the exception to the grant of admiralty jurisdiction to the federal courts.

At the same time, however, the Court was careful to confine such proceedings to forfeitures arising out of violations of State law.

ABSENCE OF A JURY

Another procedural difference between actions at law and in admiralty is the absence of jury trial in civil proceedings in admiralty courts unless Congress specifically provides for it. Otherwise the judge of an admiralty court tries issues of fact as well as of law.[361] Indeed, the absence of a jury in admiralty proceedings appears to have been one of the reasons why the English government vested a broad admiralty jurisdiction in the colonial vice-admiralty courts of America, since they provided a forum where the English authorities could enforce the Navigation Laws without what Chief Justice Stone called "the obstinate resistance of American juries."[362]

TERRITORIAL EXTENT OF ADMIRALTY AND MARITIME JURISDICTION

As early as 1821 a federal district court in Kentucky a.s.serted admiralty jurisdiction over inland waterways to the consternation of certain interests in Kentucky which succeeded in inducing the Senate to pa.s.s a bill confining admiralty jurisdiction to the ebb and flow of the tide, only to see it defeated in the House.[363] However, in 1825, in _The Thomas Jefferson_[364] the Court relieved these tensions by confining admiralty jurisdiction to the high seas and upon rivers as far as the ebb and flow of the tide extended in accordance with the English rule.

Twenty-two years later this rule was qualified in Waring _v._ Clarke,[365] when the Court ruled that the admiralty jurisdiction under the Const.i.tution was not to be limited or interpreted by English rules of admiralty and extended the jurisdiction of the federal courts to a collision on the Mississippi River ninety-five miles above New Orleans.

In this ruling the Court moved in the direction of accommodating the rising commerce on the inland waterways and prepared the way for the Genesee Chief,[366] which reversed The Thomas Jefferson and sustained the const.i.tutionality of an act of Congress pa.s.sed in 1845 giving the district courts jurisdiction over the Great Lakes and connecting waters, and so in effect extended the admiralty jurisdiction to all the navigable waters of the United States.[367] The Genesee Chief therefore vastly expanded federal power,[368] and marked a trend which was continued in Ex parte Boyer,[369] where admiralty jurisdiction was extended to ca.n.a.ls, and in The Daniel Ball,[370] where it was extended to waters wholly within a given State provided they form a connecting link in interstate commerce. This latter case is also significant for its definition of navigable waters of the United States as those that are navigable in fact, and as navigable in fact when so "used, or * * *

susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."[371] The doubts left by the Ball case in its distinction between navigable waters of the United States and navigable waters of the States were clarified by In re Garnett,[372] where it was held that the power of Congress to amend the maritime law was coextensive with that law and not confined "to the boundaries or cla.s.s of subjects which limit and characterize the power to regulate commerce," and that the admiralty jurisdiction extends "to all public navigable lakes and rivers." In United States _v._ Appalachian Electric Power Co.,[373] the concept of "navigable waters of the United States" was further expanded to include waterways which by reasonable improvement can be made navigable for use in interstate commerce provided there is a balance between cost and need at a time when the improvement would be useful. Nor is it necessary that the improvement shall have been undertaken or authorized. Conversely, a navigable waterway of the United States does not cease to be so because navigation has ceased, and it may be a navigable waterway for only part of its course. Although this doctrine was announced as an interpretation of the commerce clause, the Garnett case and the decision rendered in Southern S.S. Co. _v._ National Labor Relations Board,[374] to the effect that admiralty jurisdiction includes all navigable waters within the country, makes it applicable also to the admiralty and maritime clause.

ADMIRALTY JURISDICTION VERSUS STATE POWER

The extension of the admiralty and maritime jurisdiction to navigable waters within a State does not, however, of its own force include general or political powers of government. Thus in the absence of legislation by Congress, the States through their courts may punish offenses upon their navigable waters and upon the sea within one marine league of the sh.o.r.e. In United States _v._ Bevans[375] the Court denied the jurisdiction of a federal circuit court to try defendant for a murder committed in Boston Harbor in the absence of statutory authorization of trials in federal courts for offenses committed within the jurisdiction of a State. While admitting that Congress may pa.s.s all laws which are necessary and proper for giving complete effect to admiralty jurisdiction, Chief Justice Marshall at the same time declared that "the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Ma.s.sachusetts."[376]

Exclusiveness of the Jurisdiction

Determination of the bounds of admiralty jurisdiction is a judicial function, and "no State law can enlarge it, nor can an act of Congress or a rule of court make it broader than the judicial power may determine to be its true limits."[377] Nor is the jurisdiction self-executing. It can only be exercised under acts of Congress vesting it in the federal courts.[378] The admiralty jurisdiction of the federal courts was made exclusive of State court jurisdiction by the Judiciary Act of 1789 according to The "Moses Taylor,"[379] which also held that State laws conferring remedies _in rem_ could only be enforced in the federal courts. Consequently, the State courts were deprived of jurisdiction of a great number of cases arising out of maritime contracts and torts over which they had exercised jurisdiction prior to 1866. However, as before noted, the ninth section of the act of 1789 contained a provision, still in effect, which enables parties to avail themselves in State courts of such remedies as the common law is competent to give,[380] but in such cases the rights and obligations involved are still determined by the maritime law.[381]

Concessions to State Power

Nor does the exclusiveness of federal admiralty jurisdiction preclude the States from creating rights enforceable in admiralty courts. In The "Lottawanna,"[382] it was held that federal district courts sitting in admiralty could enforce liens given for security of a contract even when created by State laws. Likewise liabilities created by State statutes for injuries resulting in death have been enforced by proceedings _in rem_ in federal admiralty courts,[383] and, in the absence of Congressional legislation, a State may enact laws governing the rights and obligations of its citizens on the high seas. Under this general rule a law of Delaware providing for damages for wrongful death was enforced in an admiralty proceeding against a vessel arising out of a collision at sea of two vessels owned by Delaware corporations.[384] And in 1940, in Just _v._ Chambers,[385] the Supreme Court held specifically applicable in admiralty proceedings the law of Florida whereby a cause of action for personal injury due to another's negligence survives the death of the tort-feasor against his estate and against the vessel.

The Jensen Case and Its Sequelae

In the face of these decisions, except the last, the Court, nevertheless, held in 1917 in Southern Pacific Co. _v._ Jensen[386] that a New York Workman's Compensation statute was unconst.i.tutional as applied to employees engaged in maritime work. Proceeding on the a.s.sumption that "Congress has paramount power to fix and determine the maritime law which shall prevail through the country," and that in the absence of a controlling statute the general maritime law as accepted by the federal courts is a part of American national law, Justice McReynolds proceeded to draw an a.n.a.logy between the power of the States to legislate on admiralty and maritime matters and their power to legislate on matters affecting interstate commerce. Just as the States may not regulate interstate commerce where the subject is national in character and requires uniform regulation, so, he argued, they may not legislate on maritime matters in such fashion as to destroy "the very uniformity in respect to maritime matters which the Const.i.tution was designed to establish" or to hamper and impede freedom of navigation between the States and with foreign countries. Nor could the act be covered by the saving clause of the act of 1789 governing common law remedies, since the remedy provided by the compensation statute was unknown to the common law.[387]

Following the Jensen decision Congress enacted a statute saving to claimants their rights and remedies under State workmen's compensation laws.[388] In Knickerbocker Ice Co. _v._ Stewart[389] the same majority of judges, with Justice McReynolds again their spokesman, invalidated this statute as an unconst.i.tutional delegation of legislative power to the States. The holding was based on the premise, stated as follows: "The Const.i.tution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the States all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate relations."[390] And a like fate overtook the attempt of Congress in 1922 to protect longsh.o.r.emen and other workers under State compensation laws by excluding masters and crew members of vessels from those who might claim compensation for maritime injuries.[391] Finally, in 1927 Congress pa.s.sed the Longsh.o.r.emen's and Harbor Workers' Act,[392] which provided accident compensation for those workers who could not validly be compensated under State statutes. This time it seems to have succeeded, the const.i.tutionality of the 1927 statute being apparently taken for granted.[393]

The net result of the Jensen Case and its progeny has been a series of cases which hold that in some circ.u.mstances the States can apply their compensation laws to maritime employees and in other circ.u.mstances cannot, if to do so "works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations."[394] But, as Justice Black pointed out in 1942 in Davis _v._ Department of Labor,[395] "when a State could, and when it could not, grant protection under a compensation act was left as a perplexing problem, for it was held 'difficult, if not impossible,' to define this boundary with exactness."[396] Nor, he continued, has the Court been able "to give any guiding, definite rule to determine the extent of state power in advance of litigation, and has held that the margins of state authority must 'be determined in view of surrounding circ.u.mstances as cases arise.'"[397] As to the specific claim involved in the Davis Case, Justice Black stated further that it was "fair to say that a number of cases can be cited both in behalf of and in opposition to recovery here."[398] Concurring in the Davis Case, Justice Frankfurter referred to the Jensen case as "that ill-starred decision," but agreed that reversal would not eliminate its resultant complexities and confusions until Congress attempted another comprehensive solution of the problem. Until then all the Court could do was "to bring order out of the remaining judicial chaos as marginal situations" were presented.[399]

POWER OF CONGRESS TO MODIFY THE MARITIME LAW; THE "LOTTAWANNA"

In view of the chaos created by the Jensen case and its apparent disharmony with earlier as well as some later decisions the question arises as to the scope of Congress's power to revise and codify the maritime law. In the "Lottawanna"[400] Justice Bradley as spokesman of the Court, while admitting the existence of a general body of maritime law, a.s.serted that it is operative as law only insofar "as it is adopted by the laws and usages of that country,"[401] subject to such modifications and qualifications as may be made. So adopted and qualified it becomes the law of a particular nation, but not until then.

"That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Const.i.tution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.'" Continuing, Justice Bradley stated that "the Const.i.tution must have referred to a system of law coextensive with and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Const.i.tution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states."[402] However, the framers of the Const.i.tution could not have contemplated that the law should remain ever the same, especially as Congress "has authority under the commercial power, if no other, to introduce such changes as are likely to be needed."[403] Sixteen years later in the Garnett case[404]

Justice Bradley, speaking for a unanimous court, a.s.serted that the power of Congress to amend the maritime law is coextensive with that law and not limited by the boundaries of the commerce clause, and that the maritime law is "subject to such amendments as Congress may see fit to adopt."[405] Likewise, Justice McReynolds in Southern Pacific Co. _v._ Jensen[406] emphasizes Congress' "paramount power to fix and determine the maritime law which shall prevail throughout the country," albeit in the absence of a controlling statute the general maritime law prevails; and the language of Knickerbocker Ice Co. _v._ Stewart[407] is to like effect, as is also that of Swanson _v._ Marra Bros.,[408] decided in 1946.

The law administered by the federal courts sitting in admiralty is therefore an amalgam of the general maritime law insofar as it is acceptable to the courts, modifications of that law by Congressional enactments, the common law of torts and contracts as modified by State or National legislation, and international prize law. This body of law, however, is subject at all times to the paramount authority of Congress to change it in pursuance of its powers under the commerce clause, the admiralty and maritime clause, and the necessary and proper clause. That portion of the Jensen opinion emphasizing Congressional power in this respect has never been in issue in either the opinions of the dissenters in that case or in subsequent opinions critical of it, which in effect invite Congress to exercise its power to modify the maritime law.[409]

Cases to Which the United States Is a Party: Right of the United States To Sue

As Justice Story pointed out in his Commentaries, "It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts."[410]

As early as 1818 the Supreme Court ruled that the United States could sue in its own name in all cases of contract without Congressional authorization of such suits.[411] Later this rule was extended to other types of actions. In the absence of statutory provisions to the contrary such suits are initiated by the Attorney General in the name of the United States.[412] As in other judicial proceedings, the United States, like any other party plaintiff, must have an interest in the subject matter and a legal right to the remedy sought.[413] By the Judiciary Act of 1789 and subsequent amendments Congress has vested jurisdiction in the federal district courts to hear all suits of a civil nature at law or in equity, brought by the United States as a party plaintiff.[414]

SUITS AGAINST STATES

Controversies to which the United States is a party include suits brought against States as party defendants. The first such suit occurred in United States _v._ North Carolina[415] which was an action by the United States to recover upon bonds issued by North Carolina. Although no question of jurisdiction was raised, in deciding the case on its merits in favor of the State, the Court tacitly a.s.sumed that it had jurisdiction of such cases. The issue of jurisdiction was directly raised by Texas a few years later in a bill in equity brought by the United States to determine the boundary between Texas and the Territory of Oklahoma, and the Court sustained its jurisdiction over strong arguments by Texas to the effect that it could not be sued by the United States without its consent and that the Supreme Court's original jurisdiction did not extend to cases to which the United States is a party.[416] Stressing the inclusion within the judicial power of cases to which the United States and a State are parties, Justice Harlan pointed out that the Const.i.tution made no exception of suits brought by the United States. In effect, therefore, consent to be sued by the United States "was given by Texas when admitted to the Union upon an equal footing in all respects with the other States."[417]

Suits brought by the United States against States have, however, been infrequent. All of them have arisen since 1889, and they have become somewhat more common since 1926. That year the Supreme Court decided a dispute between the United States and Minnesota over land patents issued to the State by the United States in breach of its trust obligations to the Indians.[418] In United States _v._ West Virginia,[419] the Court refused to take jurisdiction of a suit in equity brought by the United States to determine the navigability of the New and Kanawha Rivers on the ground that the jurisdiction in such suits is limited to cases and controversies and does not extend to the adjudication of mere differences of opinion between the officials of the two governments. A few years earlier, however, it had taken jurisdiction of a suit by the United States against Utah to quiet t.i.tle to land forming the beds of certain sections of the Colorado River and its tributaries within the States.[420] Similarly, it took jurisdiction of a suit brought by the United States against California to determine the ownership of and paramount rights over the submerged land and the oil and gas thereunder off the coast of California between the low-water mark and the three-mile limit.[421] Like suits were decided against Louisiana and Texas in 1950.[422]

IMMUNITY OF THE UNITED STATES FROM SUIT

In pursuance of the general rule that a sovereign cannot be sued in his own courts, it follows that the judicial power does not extend to suits against the United States unless Congress by general or special enactment consents to suits against the Government. This rule first emanated in embryo form in an _obiter dictum_ by Chief Justice Jay in Chisholm _v._ Georgia, where he indicated that a suit would not lie against the United States because "there is no power which the courts can call to their aid."[423] In Cohens _v._ Virginia,[424] also by way of dictum, Chief Justice Marshall a.s.serted, "the universally received opinion is, that no suit can be commenced or prosecuted against the United States." The issue was more directly in question in United States _v._ Clarke[425] where Chief Justice Marshall stated that as the United States is "not suable of common right, the party who inst.i.tutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it." He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination.[426] Indeed, it was not until United States _v._ Lee[427] that the Court examined the rule and the reasons for it, and limited its application accordingly.

Waiver of Immunity by Congress

Since suits against the United States can be maintained only by permission, it follows that they can be brought only in the manner prescribed by Congress and subject to the restrictions imposed.[428]

Only Congress can take the necessary steps to waive the immunity of the United States from liability for claims, and hence officers of the United States are powerless by their actions either to waive such immunity or to confer jurisdiction on a federal court.[429] Even when authorized, suits can be brought only in designated courts.[430] These rules apply equally to suits by States against the United States.[431]

Although an officer acting as a public instrumentality is liable for his own torts, Congress may grant or withhold immunity from suit on behalf of government corporations.[432]

United States _v._ Lee

United States _v._ Lee, a five-to-four decision, qualified earlier holdings to the effect that where a judgment affected the property of the United States the suit was in effect against the United States, by ruling that t.i.tle to the Arlington estate of the Lee family, then being used as a national cemetery, was not legally vested in the United States but was being held illegally by army officers under an unlawful order of the President. In its examination of the sources and application of the rule of sovereign immunity, the Court concluded that the rule "if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the rights of plaintiffs when the United States is not a defendant or a necessary party to the suit."[433] Except, nevertheless, for an occasional case like Kansas _v._ United States,[434] which held that a State cannot sue the United States, most of the cases involving sovereign immunity from suit since 1883 have been cases against officers, agencies, or corporations of the United States where the United States has not been named as a party defendant. Thus, it has been held that a suit against the Secretary of the Treasury to review his decision on the rate of duty to be exacted on imported sugar would disturb the whole revenue system of the Government and would in effect be a suit against the United States.[435] Even more significant is Stanley _v._ Schwalby,[436] which resembles without paralleling United States _v._ Lee, where it was held that an action of trespa.s.s against an army officer to try t.i.tle in a parcel of land occupied by the United States as a military reservation was a suit against the United States because a judgment in favor of the plaintiffs would have been a judgment against the United States.

Difficulties Created by the Lee Case

Subsequent cases repeat and reaffirm the rule of United States _v._ Lee that where the right to possession or enjoyment of property under general law is in issue, the fact that defendants claim the property as officers or agents of the United States, does not make the action one against the United States until it is determined that they were acting within the scope of their lawful authority.[437] Contrariwise, the rule that a suit in which the judgment would affect the United States or its property is a suit against the United States has also been repeatedly approved and reaffirmed.[438] But, as the Court has pointed out, it is not "an easy matter to reconcile all of the decisions of the court in this cla.s.s of cases,"[439] and, as Justice Frankfurter quite justifiably stated in a dissent, "the subject is not free from casuistry."[440]

Justice Douglas' characterization of Land _v._ Dollar, "this is the type of case where the question of _jurisdiction_ is dependent on decision of the _merits_,"[441] is frequently applicable.

Official Immunity Today

The recent case of Larson _v._ Domestic and Foreign Corp.,[442]

illuminates these obscurities somewhat. Here a private company sought to enjoin the Administrator of the War a.s.sets in his official capacity from selling surplus coal to others than the plaintiff who had originally bought the coal, only to have the sale cancelled by the Administrator because of the company's failure to make an advance payment. Chief Justice Vinson and a majority of the Court looked upon the suit as one brought against the Administrator in his official capacity, acting under a valid statute, and therefore a suit against the United States. It held that although an officer in such a situation is not immune from suits for his own torts, yet his official action, though tortious cannot be enjoined or diverted, since it is also the action of the sovereign.[443]

The Court then proceeded to repeat the rule that "the action of an officer of the sovereign (be it holding, taking, or otherwise legally affecting the plaintiff's property) can be regarded as so individual only if it is not within the officer's statutory powers, or, if within those powers, only if the powers or their exercise in the particular case, are const.i.tutionally void."[444] The Court rejected the contention that the doctrine of sovereign immunity should be relaxed as inapplicable to suits for specific relief as distinguished from damage suits, saying: "The Government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right."[445]