While a barge was being loaded at Memphis, it sank, with
resulting damage to both the barge and the cargo. The barge owner
sued the cargo owner in a Tennessee State Court for damages alleged
to have resulted from negligence in loading it, and that case was
removed to the Federal District Court at Memphis. The cargo owner
then brought this action in the Federal District Court at New
Orleans against the barge and its owner, claiming damages to the
cargo resulting from unseaworthiness. The barge owner then moved
under 28 U.S.C. § 1404(a) for transfer of this case to the Federal
District Court at Memphis, alleging that such transfer was
"necessary for the convenience of the parties and witnesses and in
the interest of justice." Finding these allegations to be true, the
District Court at New Orleans transferred the case to the District
Court at Memphis.
Held: it did not err in doing so. Pp.
364 U. S.
20-27.
(a) Insofar as this is a "civil action" against the barge owner,
it clearly was transferable to the District Court at Memphis, since
the plaintiff could have brought this action in that court.
Hoffman v. Blaski, 363 U. S. 335,
distinguished. P.
364 U. S.
22.
(b) Transfer of this action to the District Court at Memphis is
not barred by the fact that fictionally it is also an
in
rem proceeding against the barge itself, which was not within
the jurisdiction of the District Court at Memphis when this action
was brought. Pp.
364 U. S.
22-27.
268 F.2d 240, affirmed.
Page 364 U. S. 20
MR. JUSTICE BLACK delivered the opinion of the Court.
The single issue presented for decision in this case is whether
the United States District Court in New Orleans, acting under 28
U.S.C. § 1404(a), erred in ordering that this action for damages to
cargo from alleged unseaworthiness be transferred for trial, "in
the interest of justice," to the United States District Court at
Memphis, Tennessee, where the sinking of the barge occurred. The
Court of Appeals affirmed the District Court's transfer order. 268
F.2d 240. We granted certiorari to consider this important
question. 361 U.S. 811.
The facts and circumstances on which the District Court
transferred this case are these. Barge FBL-585, a respondent here
under an ancient admiralty fiction, is owned by Federal Barge
Lines, Inc., the other respondent. After the barge was partially
loaded by petitioner, Continental Grain Co., with its soybeans at
its wharf in Memphis, the barge sank, causing damage both to the
barge and to the soybeans. A dispute arose over what caused it to
sink. The barge owner, Federal Barge Lines, Inc., brought an action
for damages in a Tennessee state court charging that the barge sank
because the cargo owner, Continental Grain Co., had been negligent
in loading it. The cargo owner later brought this action in the
United States District Court in New Orleans against the barge and
its owner, in a single complaint, charging that the vessel had sunk
because of its defects and unseaworthiness, and claiming damages
for injury to the cargo. In the meantime, the damage case against
the grain company had been removed from the Tennessee state court
to the United States District Court at Memphis. While the
litigation arising out of this single occurrence was in this
posture in the New Orleans and Memphis courts, the barge owner
defendant at New Orleans filed a motion and accompanying affidavits
under
Page 364 U. S. 21
§ 1404(a) to transfer "this action" to the United States
District Court at Memphis, alleging that such transfer was
"necessary for the convenience of the parties and witnesses and in
the interest of justice. . . ." This followed the language of §
1404(a), which provides:
"For the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to any
other district or division where it might have been brought."
The New Orleans District Court found that the issue in the
Memphis case,
"that is, the cause of the casualty, is precisely the issue in
the case at bar. The convenience of the great majority of witnesses
in this case dictates that this case be tried in Memphis. The
efficient administration of justice requires that this claim for
cargo damage be tried by the same court which is trying the claim
for hull damage, both claims being between the same parties, and
relate to the same incident."
These findings were well supported by evidence, were approved by
the Court of Appeals, are not challenged here, and we accept them.
The case, therefore, if tried in New Orleans, will bring about
exactly the kind of mischievous consequences against "the interest
of justice" that § 1404(a) was designed to prevent -- that is,
unnecessary inconvenience and expense to parties, witnesses, and
the public.
The grain company argues that this frustration of the basic
purpose of Congress in passing § 1404(a) is compelled by the
language of the section that prevents the transfer of a "civil
action" by a District Court to any District Court other than one
"where it might have been brought." Two weeks ago, this Court
decided in
Hoffman
Page 364 U. S. 22
v. Blaski and
Sullivan v. Behimer,
363 U. S. 335,
that this language bars transfer of a "civil action" properly
pending in one District Court to another in which that "civil
action" could not have been brought because the defendant legally
could not have been subjected to suit there at the time when the
case was originally filed. Those cases involved transfers in which
the plaintiffs filing the suits would have had no right whatever to
proceed originally against the defendants on the "civil actions" in
the District Courts to which transfer was sought without the
defendants, consent. But, in this case, there was admittedly a
right on the part of the grain company to subject the owner of the
barge, with or without its consent, to a "civil action" in Memphis
at the time the New Orleans action was brought. Under these
circumstances, it would plainly violate the express command of §
1404(a), as construed in our two prior cases, to reverse the
District Court's judgment ordering this single civil action to be
transferred to Memphis, unless transfer is barred by the joinder of
the
in rem claim against the barge with the claim against
the owner itself. The grain company takes this view of the effect
of joinder, arguing that, since the barge was in New Orleans when
this "civil action" was brought, and the admiralty
in rem
claim therefore could not have been brought in Memphis at that
time, the entire civil action must remain in the inconvenient New
Orleans forum. This view is reached by labeling this single civil
action as two, one against the barge and one against the owner. It
asserts this view despite the fact that the grain company's suit
against the barge and its suit against the owner are in the same
complaint for the loss of the same cargo in the same sinking of the
same barge producing the same damages. The basis of this view that
there are two distinct civil actions for § 1404(a) purposes is a
longstanding admiralty fiction that a vessel
Page 364 U. S. 23
may be assumed to be a person for the purpose of filing a
lawsuit and enforcing a judgment. [
Footnote 1]
The fiction relied upon has not been without its critics even in
the field it was designed to serve. It has been referred to as
"archaic," "an animistic survival from remote times," "irrational"
and "atavistic." [
Footnote 2]
Perhaps this is going too far, since the fiction is one that
certainly had real cause for its existence in its context and in
the day and generation in which it was created. A purpose of the
fiction, among others, has been to allow actions against ships
where a person owning the ship could not be reached, and it can be
very useful for this purpose still. We are asked here, however, to
transplant this ancient saltwater admiralty fiction into the dry
land context of
forum non conveniens, where its usefulness
and possibilities for good are questionable, at best. In fact, the
fiction appears to have no relevance whatever in a District Court's
determination of where a case can most conveniently be tried. A
fiction born to provide convenient forums should not be transferred
into a weapon to defeat that very purpose.
This Court has not hesitated in the past to refuse to apply this
same admiralty fiction in a way that would cut
Page 364 U. S. 24
down, as it would here, the scope of congressional enactments.
In fact, Mr. Justice Bradley, speaking for the Court, said at one
time, in construing a statute which had limited a shipowner's
liability but had failed to refer to the "personal" liability of
the vessel:
"To say that an owner is not liable, but that his vessel is
liable, seems to us like talking in riddles. A man's liability for
a demand against him is measured by the amount of the property that
may be taken from him to satisfy that demand. In the matter of
liability, a man and his property cannot be separated. . . ."
The City of Norwich, 118 U. S. 468,
118 U. S. 503.
Fifty-seven years later, this Court was confronted with a similar
argument about another section of the same statute, and, after
referring to the analysis in
The City of Norwich,
concluded,
"The riddle after more than half a century repeated to us in
different context does not appear to us to have improved with age.
. . . Congress has said that the owner shall not 'answer for' this
loss in question. Claimant says this means in effect that he shall
answer only with his ship. But the owner would never answer for a
loss except with his property, since execution against the body was
not at any time in legislative contemplation. There could be no
practical exoneration of the owner that did not at the same time
exempt his property."
Consumers Import Co. v. Kabushiki Kaisha Kawasaki
Zosenjo, 320 U. S. 249,
320 U. S.
253-254.
We follow the common sense approach of these two cases in
interpreting § 1404(a). Failure to do so would practically scuttle
the
forum non conveniens statute so far as admiralty
actions are concerned. All a plaintiff would need to do to escape
from it entirely would be to
Page 364 U. S. 25
bring his action against both the owner and the ship, as was
done here. This would be all the more unfortunate, since courts
have long recognized "admiralty's approach to do justice with
slight regard to formal matters," [
Footnote 3] and, as this Court has recently observed,
"Admiralty practice, which has served as the origin of much of
our modern federal procedure, should not be tied to the mast of
legal technicalities it has been the forerunner in eliminating from
other federal practices."
British Transport Comm'n v. United States, 354 U.
S. 129,
354 U. S.
139.
It is relevant that the law of admiralty itself is unconcerned
about the technical distinctions between
in rem and
in
personam actions for purposes of transferring admiralty
actions from one court to a more convenient forum. This Court's
Admiralty Rule 54, which prescribes the procedures for owners'
limiting their liability after vessels have been libeled, provides
in language broader than § 1404(a): "The District Court may, in its
discretion, transfer the proceedings to any district for the
convenience of the parties." And it may be further observed that
courts have not felt themselves bound by this fiction when
confronted with the argument that, because
in rem and
in personam actions involve different parties, therefore
res judicata does not apply from an
in personam
action against an owner to an
in rem action against his
ship. [
Footnote 4] It is
interesting in this connection to take note of the fact that,
according to the Court of
Page 364 U. S. 26
Appeals opinion, the case at Memphis has already been tried.
[
Footnote 5] To permit a
situation in which two cases involving precisely the same issues
are simultaneously pending in different District Courts leads to
the wastefulness of time, energy and money that § 1404(a) was
designed to prevent. Moreover, such a situation is conductive to a
race of diligence among litigants for a trial in the District Court
each prefers. These are additional reasons why § 1404(a) should not
be made ambiguous by the importation of irrelevant fictions.
The idea behind § 1404(a) is that, where a "civil action" to
vindicate a wrong -- however brought in a court -- presents issues
and requires witnesses that make one District Court more convenient
than another, the trial judge can, after findings, transfer the
whole action to the more convenient court. That situation exists
here. Although the action in New Orleans was technically brought
against the barge itself, as well as its owner, the obvious fact is
that, whatever other advantages may result, this is an alternative
way of bringing the owner into court. And although any judgment for
the cargo owner will be technically enforceable against the barge
as an entity as well as its owner, the practical economic fact of
the matter is that the money paid in satisfaction of it will have
to come out of the barge owner's pocket -- including the
possibility of a levy upon the barge even had the cargo owner not
prayed for "personified" in rem relief. The crucial issues about
fault and damages suffered were identical, whether considered as a
claim against the ship or its owner. The witnesses were identical.
Thus, while two methods were invoked to bring the owner into court
and enforce any judgment against it, the substance of what had to
be done to adjudicate the rights of the parties was not different
at all.
Page 364 U. S. 27
Treating both methods for § 1404(a) purposes for what they are
in a case like this -- inseparable parts of one single "civil
action" -- merely permits or requires parties to try their issues
in a single "civil action" in a court where it "might have been
brought." To construe § 1404(a) this way merely carries out its
design to protect litigants, witnesses and the public against
unnecessary inconvenience and expense, not to provide a shelter for
in rem admiralty proceedings in costly and inconvenient
forums.
For the reasons stated here, the judgment is
Affirmed.
[
Footnote 1]
"A ship is the most living of inanimate things. Servants
sometimes say 'she' of a clock, but everyone gives a gender to
vessels. And we need not be surprised, therefore, to find a mode of
dealing which has shown such extraordinary vitality in the criminal
law applied with even more striking thoroughness in the Admiralty.
It is only by supposing the ship to have been treated as if endowed
with personality that the arbitrary seeming peculiarities of the
maritime law can be made intelligible, and, on that supposition,
they at once become consistent and logical."
Holmes, The Common Law (1881), 26-27.
[
Footnote 2]
The Carlotta, 1931, 48 F.2d 110, 112, 1931 Am.Mar.Cas.
742, 745, quoted in Gilmore and Black, The Law of Admiralty (1957),
508.
[
Footnote 3]
Point Landing, Inc. v. Alabama Dry Dock & Shipbuilding
Co., 261 F.2d 861, 866, 1959 Am.Mar.Cas. 148, 155 (C.A. 5th
Cir. 1958).
[
Footnote 4]
See Burns Bros. v. Central R. Co., 202 F.2d 910, 1953
Am.Mar.Cas. 718 (C.A.2d Cir. 1953);
Sullivan v. Nitrate
Producers' S.S. Co., 262 F. 371 (C.A.2d Cir. 1919);
Bailey
v. Sundberg, 49 F. 583 (C.A.2d Cir. 1892); Gilmore and Black,
The Law of Admiralty (1957), 507-509.
[
Footnote 5]
268 F.2d 240, 242, note 2, 1959 A.M.C. 2158, 2160, note 2.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins.
Although this case also involves some nice questions of
admiralty procedure, since the claimant barge owner has moved for
transfer and has agreed to "pay any final decree which may be
rendered against" the barge, the controlling considerations for me
are those set forth in my opinion in
Sullivan v. Behimer,
363 U. S. 351
(1960). Accordingly, I would affirm the judgment.
MR. JUSTICE WHITTAKER, with whom MR. JUSTICE DOUGLAS joins,
dissenting.
I think that this case, if its true facts be recognized and
faced, is controlled by the Court's opinion in
Hoffman
v. Blaski and
Sullivan v. Behimer,
363 U. S. 335. I
also think that the Court's opinion fails to recognize and face the
crucial fact -- that one of the two claims in this "civil action"
was brought
in rem against the Barge, not as an attachment
or "device" to force appearance of the owner or to provide security
for the payment of any
in personam judgment which might be
recovered against the owner, but as a personified "debtor or
offending thing" as the settled law authorizes [
Footnote 2/1]
Page 364 U. S. 28
-- which gives rise to the principal question that produces my
disagreement. Indeed, I think the Court's opinion endeavors to
sweep that crucial fact "under the rug." I will now undertake to
make a plain and chronological statement of the simple facts.
On July 2, 1958, petitioner, Continental Grain Company,
[
Footnote 2/2] brought this libel
in personam against Federal Barge Lines, Inc., [
Footnote 2/3] and
in rem against
Barge FBL-585 ("Barge"), in and on the admiralty side of the United
States District Court for the Eastern District of Louisiana, New
Orleans Division -- where the Barge then was, and ever since has
been, located -- to recover damages in the sum of $90,000 to
petitioner's cargo, caused by the alleged unseaworthiness and
consequent partial sinking of the Barge while being loaded at
Memphis, Tennessee, on November 6, 1957. The libel prayed a decree
against both Federal Barge Lines, Inc., and Barge FBL-585, for the
cargo damage; that Federal Barge Lines, Inc., be cited to appear
and answer; that process issue against "Barge FBL-585 and that all
persons claiming any interest in said vessel be cited to appear and
answer this libel," and that "Barge FBL-585 be condemned and sold
to pay the amount due libelant herein."
After Federal Barge Lines, Inc., was served with process, and
after process had issued against the Barge but before actual arrest
of the Barge thereunder, Federal Barge
Page 364 U. S. 29
Lines, Inc., on July 23, 1958, delivered its letter addressed to
petitioner, which the latter accepted and has acted on, saying, in
pertinent part, that:
"In consideration of your not having seized [the barge], under
the
in rem process which has been issued . . . and in
further consideration of our not being required to post the usual
bond for the release of that vessel, [w]e agree that we shall . . .
file claim to Barge FBL 585 and [shall file] pleadings in the . . .
action, and that, [whether the] vessel [be] lost or not, we shall
pay any final decree which may be rendered against said vessel in
said proceeding."
The last paragraph of the letter said:
"It is the intent of this undertaking that the rights of the
libelant and claimant-respondent in this proceeding shall be, and
for all purposes shall be taken to be, precisely the same as they
would have been had the vessel, in fact, been taken into custody by
the United States Marshal under said
in rem process, and
released by the filing of claim and release bond, we, as claimant,
reserving in behalf of the vessel all other objections and defenses
otherwise available except those which might be predicated upon the
fact that the vessel was not actually so seized."
Accordingly, on July 29, 1958, Federal Barge Lines, Inc., filed
its claim to
"Barge FBL-585, proceeded against herein, and claim[ed] the said
barge as owner and pray[ed] that it be permitted to defend
according to law;"
and, on September 18, 1958, it filed its answer to the
libel.
On October 13, 1958, Federal Barge Lines, Inc., filed its motion
to transfer
"this action to the United States District Court for the Western
District of Tennessee, Western Division, on the ground that such
transfer is
Page 364 U. S. 30
necessary for the convenience of the parties and witnesses and
in the interest of justice as will appear from the affidavit
attached hereto and made a part hereof. [
Footnote 2/4]"
After hearing, the District Court granted the motion and ordered
the action transferred as requested by the movant, but the district
judge, acting under the Interlocutory Appeals Act, 28 U.S.C. §
1292(b),
"certified that this order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from this order may materially
advance the ultimate termination of this litigation. [
Footnote 2/5]"
Petitioner then sought and was allowed an appeal by the Court of
Appeals under 28 U.S.C. § 1292(b). [
Footnote 2/6] That
Page 364 U. S. 31
court, relying heavily on its opinion in
Ex parte
Blaski, 245 F.2d 737,
affirmed, 268 F.2d 240, and we
granted certiorari 361 U.S. 811.
Although the Court of Appeals found
"that fair application of the letter undertaking . . . requires
that we treat it as though, upon the libel's being filed, the
vessel had actually been seized, a Claim filed, a stipulation to
abide decree with sureties executed and filed by Claimant, and the
vessel formally released,"
it held that, inasmuch as the claimant-respondent had, by its
motion to transfer, consented "to an unlimited submission of the
cause [to the Tennessee District Court] even though it could not
have been filed there initially," transfer of the
in rem
action to that court "presents no real or conceptual difficulties,"
because
"[t]he Court does not undertake to transfer the
res,
nor does it even attempt to transfer the cause while the
res is still in custody of the Court;"
that when, as here, a "bond [stipulation]" is given and
substituted for the vessel "[t]raditional notions are not affected
if that security floats with the cause wherever the law navigates
it."
Id., 268 F.2d at 243, 244.
It is not disputed that the libel, insofar as it is
in
personam, might have been brought by petitioner against
respondent, Federal Barge Lines, Inc., in the United States
District Court for the Western District of Tennessee, as that court
had jurisdiction to entertain such an action and Federal Barge
Lines, Inc., was amenable to the service of monition there. Hence,
if this libel had been brought only
in personam against
Federal Barge Lines, Inc. --
i.e., had omitted the claim
in rem against the Barge -- it could have been transferred
to the Tennessee District, for such an action could have been
brought in that forum. But, as the parties agree, petitioner had a
legal right to join in one action, as it did here, a claim
in
personam against Federal Barge Lines, Inc., and one
Page 364 U. S. 32
in rem against the Barge. [
Footnote 2/7] The Court's opinion says that, because the
claim
in personam might have been brought in the Memphis
forum, it is a mistake to say that "the entire civil action must
remain in the inconvenient New Orleans forum." But respondent's
motion did not ask transfer of only the claim
in personam,
if indeed the court could have severed the two claims and have
transferred one and kept the other -- a matter not at all dealt
with in the Court's opinion. Instead, it asked transfer of the
whole action, and so we are presented with the question whether an
admiralty action
in rem, or partly
in rem, may be
transferred, upon application of the claimant of the
res,
to a district in which the
res is not located, and in
which the libellant did not have a legal right to bring it.
The Court treats this case as a "single" damage action against
only the barge owner. That treatment simply ignores the crucial
fact which gives rise to the question we have here. Of course, if
this were simply a "single" action for damages against only the
barge owner, we would not have the question that confronts us, for
we all agree that such an action "might have been brought" in the
Memphis forum, and, hence, if brought elsewhere, it could have been
transferred to that forum under § 1404(a). But those are not the
facts. The facts are that there were two claims in this "civil
action," one
in personam against the owner, and one
in
rem against the Barge. And we cannot decide the question
presented by denying its existence or by ignoring the facts that
created it. One of the two claims of
this "civil action"
was
in rem against the Barge. The Barge was in New Orleans
when this suit was brought. Therefore,
this "civil action"
could not
Page 364 U. S. 33
have been brought in Memphis, and, hence, cannot be transferred
to that forum if the limiting words of § 1404(a), "where it might
have been brought," are to have any meaning.
Petitioner, relying on the established principle that an action
in rem may be brought only in the district where the
res is located, [
Footnote
2/8] or possibly, under the accustomed practice in admiralty,
in the district where, as alleged in the libel, the
res
(vessel) will be "during the pendency of the process [issued on the
libel]," [
Footnote 2/9] contends
that, inasmuch as the Barge was located in the Eastern District of
Louisiana when the libel was filed,
this action could not
have been brought or prosecuted in any other district, and, hence,
the court was without power, under 28 U.S.C. § 1404(a) [
Footnote 2/10] to transfer it, upon
respondents' motion and even with their waiver of venue and
jurisdiction, to the Western District of Tennessee, where it could
not have been brought by the libellant. This contention accords
with our opinion in the
Blaski and
Behimer cases,
363 U. S. 363 U.S.
335.
Page 364 U. S. 34
But respondents contend that an admiralty court is not subject
to the provision of § 1404(a) limiting the transfer of an action to
a district "where it might have been brought," but is empowered by
Admiralty Rule 44 to transfer an action, on the motion of the
claimant-respondent and a mere showing of convenience, to any other
district. This contention is wholly without merit. Admiralty Rule
44, [
Footnote 2/11] which, in
effect, authorizes District Courts to formulate local rules of
practice, is expressly limited to "cases not provided for by these
rules or by statute. . . ." The matter of transferring "any civil
action" -- which phrase includes actions in admiralty [
Footnote 2/12] -- is expressly prescribed
by a statute. Section 1404(a) expressly limits a District Court's
power to transfer a civil action to a district or division "where
it might have been brought."
Hoffman v. Blaski, supra. The
power to transfer actions cannot derive from local practice, but
only from substantive law. Nor is there any showing here that the
District Court has ever even purported to promulgate any applicable
local rule of practice.
Respondents next contend that, even if § 1404(a) applies to the
transfer of admiralty actions, that section does not preclude
transfer of an admiralty action
in rem to a district where
the
res is not located if the claimant-respondent, after
having prevented the arrest or procured the release of the
res by giving bond or other acceptable security, so moves
and agrees to submit to the jurisdiction
Page 364 U. S. 35
of the transferee court. They argue that authority to proceed in
admiralty against the
res (vessel) is a mere security
device and, after the claimant-respondent has prevented the arrest
or procured the release of the
res by giving bond or other
acceptable security, the
in rem action is converted into
one
in personam, and may accordingly be transferred under
§ 1404(a), on motion of the claimant-respondent (but not of the
libellant) [
Footnote 2/13] and a
finding of convenience, to any other district in which the action
if originally
in personam "might have been brought." The
Court appears to agree with that argument. It criticizes the
settled doctrine of personification of the ship. It says that
"perhaps [it] is going too far [to refer to the fiction of
personification of the ship] as 'archaic,' 'an animistic survival
from remote times,' 'irrational' and 'atavistic'"
(citing
The Carlotta, 48 F.2d 110, 112), but it does
not suggest that the numerous cases of this Court which have
established and adhered to that "fiction" for more than 150 years
should be overruled -- something I could understand, even at this
late day. Instead, it seems merely to brush them aside or to fail
to recognize their application here.
But admiralty proceedings
in rem are not a mere
security device. From its earliest history to the present time,
Page 364 U. S. 36
this Court has consistently held that an admiralty proceeding
in rem is one essentially
against the vessel itself as
the debtor or offending thing; and, in such an action, the
vessel itself is impleaded as the defendant, seized, judged and
sentenced. [
Footnote 2/14] In
Rounds v. Cloverport Foundry & Machine Co.,
237 U. S. 303, Mr.
Justice Hughes, in distinguishing between
in rem actions
against a vessel, on the one hand, and attachments against a vessel
to force appearance of the respondent or to provide security in an
action
in personam, on the other hand, said:
"Actions
in personam with a concurrent attachment to
afford security for the payment of a personal judgment are in a
different category.
The Belfast, 7 Wall. 624;
Taylor
v. Carryl, 20 How. 583,
61 U. S.
598-599;
The Robert W. Parsons, supra. And this
is so not only in the case of an attachment against the property of
the defendant generally, but also where it runs specifically
against the vessel under a state statute providing for a lien, if
it be found that the attachment was auxiliary to the remedy
in
personam. Leon v. Galceran, 11 Wall.
185;
see also Johnson v. Chicago &c. Elevator Co.,
119 U. S.
388,
119 U. S. 398-399;
Knapp, Stout & Co. v. McCaffrey, 177 U. S.
638,
177 U. S. 646,
177 U. S.
648."
Id. at
237 U. S.
307.
Page 364 U. S. 37
Indeed, the absence of liability of the owner of a vessel does
not necessarily exonerate the vessel itself. [
Footnote 2/15] If, for example, a vessel under
bareboat charter damages another as the result of the negligence of
her crew, the vessel is liable
in rem even though an
action
in personam would not lie against her owner.
[
Footnote 2/16] Likewise, the
right of one damaged by the wrong of a vessel to proceed against
her follows her into the hands of an innocent purchaser, although
the latter is not liable
in personam. [
Footnote 2/17] Similarly, a vessel is liable
in rem for damages resulting from her negligent operation
by an independent pilot to whose control the law required her to be
confined, although her owner is not liable
in personam.
[
Footnote 2/18]
The cases cited by the Court, [
Footnote 2/19] holding that, in expressly exonerating
by statute shipowners from certain liabilities for casualty losses
of cargo at sea, Congress similarly intended to exonerate their
property,
i.e., their ships, from such liabilities, are
wholly inapposite. They involved only interpretation of particular
statutes, and did not at all deal with, and certainly were not
intended to destroy, for they expressly recognized, the historic
difference
Page 364 U. S. 38
and distinction between admiralty actions
in personam
and those
in rem. Nor does this Court's Admiralty Rule 54,
discussed by the Court, touch the question of transferability of
this case. This is not a limitation of liability proceeding,
specially covered by that Rule, and the parties make no such claim.
Rather, we have here only a simple motion to transfer a "civil
action" from one District to another, and such a motion is
exclusively governed by § 1404(a).
The Barge itself being the "offending thing," and here being
itself subject to suit, and having been sued,
in rem, we
think it may not be said that the giving by respondent, Federal
Barge Lines, Inc., and the acceptance by petitioner, of the "letter
undertaking" to prevent the physical arrest of the Barge converted
the
in rem action into one
in personam. That
letter expressly said that the rights of the parties would for all
purposes be
"precisely the same as they would have been had the vessel, in
fact, been taken into custody by the United States Marshal under
said
in rem process, and released by the filing of claim
and release bond. . . ."
That this letter was legally effective in accordance with its
terms is not disputed. This Court has from an early day
consistently held that a bond, given to prevent the arrest or to
procure the release of a vessel, is substituted for and stands as
the vessel in the custody of the court. [
Footnote 2/20] Inasmuch as
Page 364 U. S. 39
the parties agreed that the letter involved here was to have
precisely the same effect as a bond, it follows that the letter is,
just as a bond would have been, a substitute for the vessel in the
custody of the court, and that the giving and accepting of the
letter did not convert the
in rem action into one
in
personam.
Respondents finally argue that, even though the Barge itself
could be and was sued as the "offending thing" and, being located
in the district of suit, this action
in rem against it
could not have been brought elsewhere without respondent's consent,
it was as possible for the Barge voluntarily to enter appearance in
and submit to the venue and jurisdiction of the transferee court as
it would have been for one sued
in personam to do so,
[
Footnote 2/21] and that their
motion to transfer had that effect. Whether jurisdiction over a
res in an action
in rem may be conferred by
consent of its owner, given either before or after the action has
been brought, upon a court that does not have territorial
jurisdiction or custody of the
res we need not decide, for
the question here is not such, but, rather, it is simply whether a
District Court is empowered by § 1404(a) to transfer such an action
to a district in which the libellant did not have the right to
bring it, independently of the will or wishes of the
claimant-respondent. That question was ruled in the negative by
Hoffman v. Blaski, 363 U. S. 335, and
I think it follows that the judgment in this case should be
reversed.
[
Footnote 2/1]
See 364 U.S.
19fn2/15|>note 15,
infra.
[
Footnote 2/2]
Petitioner, Continental Grain Company, is a Delaware corporation
maintaining its principal office in New York, New York, but is also
authorized to do and is doing business in the City of Memphis in
the Western District of Tennessee.
[
Footnote 2/3]
Federal Barge Lines, Inc., a Delaware corporation, is a common
carrier by water, operating on the Mississippi River and its
principal tributaries, and has offices and does business in, among
other places, Memphis, Tennessee, and New Orleans, Louisiana.
[
Footnote 2/4]
The principal averments of the affidavit referred to were (1)
that on June 27, 1958, Federal Barge Lines, Inc., filed an action
at law against petitioner, Continental Grain Company, in the
Circuit Court of Shelby County, Tennessee, for damages to its Barge
FBL-585, caused by the alleged negligence of the grain company in
loading it at Memphis on November 6, 1957, which action was removed
by the grain company to the United States District Court for the
Western District of Tennessee on July 15, 1958, and (2) that the
necessary witnesses reside in or nearer to Memphis than to New
Orleans.
[
Footnote 2/5]
In his unpublished per curiam, the district judge said,
inter alia,
"The libel is
in rem as to the Barge FBL-585. While
this libel could have been originally brought in the Western
District of Tennessee against the respondent, Federal Barge Lines,
the owner of the barge, the libel as to the barge itself would
ordinarily be restricted to the place where the barge is located at
the time the libel is filed. At that time, and now, the barge is
located in this district. However, since the barge was neither
seized by the Marshal nor bonded by respondent, libellant having
accepted respondent's letter undertaking to respond to any decree
entered herein, and since the owner thereof, Federal Barge Lines,
apparently is financially able to respond to any decree rendered
against it, the interest of justice would best be served by . . .
transferring this case to the Western District of Tennessee."
[
Footnote 2/6]
The District Court stayed its order of transfer pending
determination of the appeal.
[
Footnote 2/7]
Newell v.
Norton, 3 Wall. 257;
In re Fassett,
142 U. S. 479,
142 U. S. 484
("The District Court has jurisdiction to determine the question,
because it has jurisdiction of the vessel by attachment, and of
Fassett by monition. . . .");
The Resolute, 168 U.
S. 437,
168 U. S. 442;
Turner v. United States, 27 F.2d 134, 136.
[
Footnote 2/8]
The Ann, 9
Cranch 289,
13 U. S. 291;
Miller v. United
States, 11 Wall. 268,
78 U. S. 294;
United States v. Mack, 295 U. S. 480,
295 U. S. 484;
Clinton Foods v. United States, 188 F.2d 289, 292;
Fettig Canning Co. v. Steckler, 188 F.2d 715, 717-718.
Cf. Torres v. Walsh, 221 F.2d 319, 321;
Broussard v.
The Jersbek, 140 F.
Supp. 851, 852-853.
[
Footnote 2/9]
Notwithstanding the provision of Admiralty Rule 22 (28 U.S.C. p.
5226) that, if the libel be
in rem, it shall state "that
the property is within the district," we are told that, in
practice, the common, if not universal, jurisdictional statement in
libels
in rem recites "That the vessel now is, or, during
the pendency of process herein, will be, within the District and
the jurisdiction of the Court."
See Internatio-Rotterdam, Inc.
v. Thomsen, 218 F.2d 514, 515-516 -- in some other aspects an
anomalous opinion.
[
Footnote 2/10]
"§ 1404. Change of venue."
"(a) For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action
to any other district or division where it might have been
brought."
[
Footnote 2/11]
"Rule 44. Right of Trial Courts To Make Rules of Practice"
"In suits in admiralty in all cases not provided for by these
rules or by statute, the District Courts are to regulate their
practice in such a manner as they deem most expedient for the due
administration of justice, provided the same are not inconsistent
with these rules."
[
Footnote 2/12]
Torres v. Walsh, 221 F.2d 319, 321;
Internatio-Rotterdam, Inc. v. Thomsen, 218 F.2d 514, 515,
and see Ex parte Collett, 337 U. S.
55,
337 U. S. 58;
United States v. National City Lines, Inc., 337 U. S.
78.
[
Footnote 2/13]
Respondents say in their brief:
"A transfer on motion of a claimant and a transfer on motion of
a libellant are two different things. We do not here contend, and
it is our submission that it would be error for a Court to hold,
that a coercive transfer of a claimant to a different jurisdiction
than that in which the suit was filed is proper. The concept of
transferee jurisdiction is that there must be two available forums,
and, unless the moving party is the claimant, there is no secondary
or transferee forum to which the case could be transferred."
Nothing in § 1404(a), or in its legislative history, suggests
such a unilateral objective, and we should not, under the guise of
interpretation, ascribe to Congress any such discriminatory
purpose.
See Hoffman v. Blaski, 363 U.
S. 335,
363 U. S.
344.
[
Footnote 2/14]
The Mary, 9
Cranch 126,
13 U. S. 144;
The Moses
Taylor, 4 Wall. 411;
The
Belfast, 7 Wall. 624;
The Glide,
167 U. S. 606;
Rounds v. Cloverport Foundry & Machine Co.,
237 U. S. 303,
237 U. S.
306-307.
"A ship is the most living of inanimate things. Servants
sometimes say 'she' of a clock, but everyone gives a gender to
vessels. And we need not be surprised, therefore, to find a mode of
dealing which has shown such extraordinary vitality in the criminal
law applied with even more striking thoroughness in the Admiralty.
It is only by supposing the ship to have been treated as if endowed
with personality that the arbitrary seeming peculiarities of the
maritime law can be made intelligible, and, on that supposition,
they at once become consistent and logical."
Holmes, The Common Law (1881), 26-27.
[
Footnote 2/15]
"Such personification of the vessel, treating it as a juristic
person whose acts and omissions, although brought about by her
personnel, are personal acts of the ship for which, as a juristic
person, she is legally responsible, has long been recognized by
this Court."
Canadian Aviator, Ltd. v. United States, 324 U.
S. 215,
324 U. S.
224.
[
Footnote 2/16]
The Barnstable, 181 U. S. 464.
The
"settled rule is that, where the ship owner provides the vessel
only, and the master and crew are selected by the charterer, the
latter and not the ship owner is responsible for their acts."
The China, 7
Wall. 53,
74 U. S. 70.
[
Footnote 2/17]
"The maritime
privilege' or lien . . . accompanies the
property into the hands of a bona fide purchaser."
Vandewater v.
Mills, 19 How. 82, 60 U. S. 89.
See also The China, 7
Wall. 53, 74 U. S. 68;
The John G. Stevens, 170 U. S.
113.
[
Footnote 2/18]
The China, 7
Wall. 53;
Homer Ramsdell Transp. Co. v. La Compagnie Generale
Transatlantique, 182 U. S. 406.
[
Footnote 2/19]
The City of Norwich, 118 U. S. 468,
118 U. S. 503;
Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo,
320 U. S. 249,
320 U. S.
253-254.
[
Footnote 2/20]
The Palmyra, 12
Wheat. 1,
25 U. S. 10;
The Webb, 14
Wall. 406,
81 U. S. 418;
The Wanata, 95 U. S. 600,
95 U. S. 611;
United States v. Ames, 99 U. S. 35. In
Judge Woolsey's very perceptive opinion in
J. K. Welding Co. v.
Gotham Marine Corp., 47 F.2d
332, 335 (D.C.S.D.N.Y.), the rule was summarized as
follows:
"The stipulation for value is a complete substitute for the
res, and the stipulation for value alone is sufficient to
give jurisdiction to a court, because its legal effect is the same
as the presence of the
res in the court's custody."
See also Gilmore and Black, The Law of Admiralty at
650-651.
[
Footnote 2/21]
See J. K. Welding Co. v. Gotham Marine
Corp., 47 F.2d
332, 335 ( D.C.S.D.N.Y.).