33.

April 22, 1908, c. 149; 35 Stat. 65, as amended by the Act of April 5, 1910, c. 143; 36 Stat. 291, regulating actions for injuries or death of railroad employees gives concurrent jurisdiction to the courts of the States and of the United States and forbids the removal of cases arising under the act from state courts of competent jurisdiction to any court of the United States. It is argued that a stay of proceedings in the State Court and an adjudication in the District Court. would be a removal; which of course it would not be in a technical. sense. It is said with more force in El Mundo, 1923 A. M. C. 393, 294 Fed. 577, 579, that when Sec. 33 was passed a seaman at his election already had his action with trial by jury, or a libel in the admiralty, but in either case subject to injunction and a concourse under Rev. Stat., § 4285, and that if the new section left the seaman's election liable to be defeated by the election of the owner to surrender his ship, it was empty words. So the election' to 'maintain' an action at law given by Sec. 33 is thought not reconcilable with the possibility that he should be called into admiralty against his will, and his action at law stopped. The Mary Winkleman, In re Charles Nelson Co., 1924 A. M. C. 118, 294 Fed. 926; (reversed however, by 9CCA, October 27, 1924, 1924 A. M. C. 1488).

We are of opinion that these arguments cannot prevail. We shall not follow the discussions in the briefs as to the origin of the Admiralty rule, a question that cannot be answered with confidence from the historical material now at hand. The English Courts interpreting, we presume, the scope of their own decisions, rather than passing upon historical fact, refer the Admiralty liens to the commercial convenience of security and repudiate the reference of liability to the guilt of the ship. The Tervaete, (1922) P. 259, 270. In this Court the ship has been personified so far as to incur liability in cases where the owner could not be held. The China, 7 Wall. 53. See The Malek Adhel, 2 How. 210, 234; Liverpool, Brazil & River Plate Steam Navigation Co. vs. Brooklyn Eastern District Terminal, 251 U. S. 48, 53. It is laid down in The China that "originally, the primary liability was upon the vessel and that of the owner was not personal, but merely incidental to his ownership, from which he was discharged either by the loss of the vessel or by abandoning it to his creditors." If this be true it gives to our statute a distinguished family tree but hardly throws light upon the question now before the Court.

The starting point is that the later act determines the extent of the

1925 A. M. C.

seaman's substantive rights and the measure of damages, The Allianca, Panama R. R. Co. vs. Johnson, 1924 A. M. C. 551, 264 U. S. 375, 391; the earlier one, from what he shall collect those damages in certain exceptional cases, where those rights have been infringed. If there is no surrender of the ship, which we presume is made relatively rarely, the limited liability statutes play no part. Section 33 has no relation to means of collection but only to principles of liability and the ordinary course of trial. Naturally therefore the limited liability laws are not mentioned in the list of statutes repealed, in Sec. 2; yet there can be no doubt that those laws would apply unless repealed. No sufficient reason is offered for the extraordinary preference over. other claims that would be given to seamen were the decree of the District Court sustained. When a preference in respect of seamen's wages was intended it was expressed. Act of June 26, 1884, c. 121, § 18; 23 Stat. 57. On the other hand it has been laid down with reference to this same Sec. 33 that an intention to depart from a policy deliberately settled in a general statute is not lightly to be assumed. The Allianca, 1924 A. M. C. 551, 264 U. S. 375, 384. See also Butler vs. Boston & Savannah Steamship Co., 130 U. S. 527. The bankruptcy act might provide a bar to recovery-homestead and other exemptions might make collection of a judgment impossible— yet we do not suppose that it would be argued that such laws were overridden by Sec. 33. The wholesale adoption of the law for railroads above mentioned must be taken as an adoption of principles not as a basis for meticulous discovery of conflict with an established system in matters of detail. The choice of a jury trial is given when things take their ordinary course, not to break in upon the settled mode of adjustment when the ship is given up.

We answer these questions as they are asked and assume that the State Court had jurisdiction to try the case under the concluding words of the section: "Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located." For assuming that it had jurisdiction we have no doubt that the injunction may issue and that the statute regarding limitation of liability of ship owners has not been repealed so far as claims like the present are concerned. We answer Question (1): Yes; Question (2): No.

BARQUE THEKLA-F. J. LUCKENBACH.

LUCKENBACH STEAMSHIP CO., INC., AND UNITED STATES OF AMERICA,

vs.

NORWEGIAN BARQUE THEKLA.

Supreme Court of the United States, December 1, 1924.

District Court Opinion, 1923 A. M. C. 286; Questions certified by C. C. A., 1924 A. M. C. 673.

JURISDICTION-135. Sovereign States-UNITED STATES-131. As Party to Cause of Collision-COLLISION-111. Definition.

When the U. S. comes into court to assert a claim, it so far takes the position of a private suitor as to agree by implication that justice may be done with regard to the subject matter.

A collision involves two vessels, and the subject matter is rather the collision than the vessel first libelled.

Hence the trial court, in a collision case when the government joins in the first libel against a private ship, may entertain a cross-libel against the government's vessel, may consolidate the actions, and may, if it finds the government vessel at fault, render decree against the government. PRACTICE-2115. Security by Cross-Libellant-2122. Stipulation for Release of Property-34. Interest-UNITED STATES-1241. Emergency Fleet Corporation.

A stipulation given by the Fleet Corporation to vacate the stay of a cause of collision between a government and a private vessel is valid, and interest and costs can be recovered from the Fleet Corporation.

HARLAN F. STONE, Attorney-General, and JAMES M. BECK, Solicitor-General (FRANK J. STALEY on the brief), for the U. S.

CHARLES S. HAIGHT (JOHN W. GRIFFIN, WHARTON POOR, and HAIGHT, SMITH, GRIFFIN & DEMING, on the brief), for the Thekla.

Mr. Justice HOLMES delivered the opinion of the Court.

This case comes here upon a certificate from the Circuit Court of Appeals for the Second Circuit, stating more at length the following facts. The Luckenbach Steamship Company on behalf of itself and the other owners libelled the barque Thelka in admiralty for a collision with the steamship F. J. Luckenbach. The owners of the Thelka moved under the old fifty-third admiralty rule for a stay until the libellant should give security to respond in damages as claimed in the cross libel, and filed a claim, stipulation for value, an answer and a cross libel against the steamer. On October 7, 1918, the motion was granted and the libel and cross libel were consolidated and pro

1925 A. M. C.

ceeded as one cause. On June 4, 1919, the United States was made a party libellant upon its motion and stood on the Steamship Company's libel. It filed a claim without submitting itself to the jurisdiction' of the Court, alleging possession and ownership at the time when the libel was filed. Thereupon a stipulation executed by the United States Shipping Board Emergency Fleet Corporation was filed, which recited that the F. J. Luckenbach was under requisition charter to, and in the possession of the United States, claimant, at the time of the collision; that the liability, if any, was that of the United States, acting through the Corporation, the operator of it; and that the Corporation agreed in case of default on the part of the claimant that execution should issue against its chattels and lands in the sum of $130,000. The condition was that the claimant and Corporation should abide by all orders of the Court and pay the amount awarded by the final decree. On October 3, 1919, the Steamship Company on behalf of itself and other owners, excepted to the cross libel on the ground that the steamship being under charter to the United States the matters alleged in the cross libel were not within the jurisdiction of the Court. At the trial it appeared that the United States was owner pro hac vice, as alleged, using the vessel for war service, and that the Luckenbach alone was in fault, a finding affirmed by the Circuit Court of Appeals. A decree was entered against the claimant and stipulator for the damages, $120,619.71, with interest and costs.

The first question certified is: Was the District Court empowered by law to render the decree entered? In answer the Government relies upon the proposition established by The Western Maid, 257 U. S. 419, that the collision inflicted no legal wrong upon the Thekla, and the further proposition that generally speaking a claim that would not constitute a cause of action against the sovereign cannot be asserted as a counterclaim; Illinois Central R. R. Co. vs. State Public Utilities Commission of Illinois, 245 U. S. 493, 504, 505; see also Nassau Smelting & Refining Works vs. United States, November 17, 1924; and that a cross libel is governed by the same rule. Washington-Southern Navigation Co. vs. Baltimore & Philadelphia Steamboat Co., 263 U. S. 629.

We do not qualify the foregoing decisions in any way, but nevertheless are of opinion that the District Court had power to enter a decree for damages. When the United States comes into Court

37.

to assert a claim it so far takes the position of a private suitor as to agree by implication that justice may be done with regard to the subject matter. The absence of legal liability in a case where but for its sovereignty it would be liable does not destroy the justice of the claim against it. When the question concerns what would be paramount claims against a vessel libelled by the United States were the vessel in other hands, the moral right of the claimant is recognized. The Western Maid, 257 U. S. 419, 433, 434; The Siren, 7 Wall. 152; The Athol, 1 Wm. Rob. 374, 382. The doubt in this case arises not from the absence of a maritime lien, but from the fact that the counterclaim is not against the Thekla libelled by the United States but for affirmative relief against a different vessel, the F. J. Luckenbach. There certainly is a strong argument for regarding this claim as standing no better than those dealt with in the cases cited by the Government. But we are of opinion that this is to construe the submission of the United States too narrowly. A collision involves two vessels. The trial of such cases in the ordinary course

is

upon libel and cross libel, consolidated under authority of statute. R. S., § 921. The North Star, 106 U. S. 17. If both parties were in fault the entire damage would be divided equally between them, and it could not be argued that the United States could avoid the consequences of the rule although the damage to the other vessel might bar its recovering anything. This shows that the subject matter is the collision, rather than the vessel first libelled. Bowker vs. United States, 186 U. S. 135, 139. The libel in such a case is like a bill for an account, which imports an offer to pay the balance if it should turn out against the party bringing the bill. Colombian Government vs. Rothschild, 1 Sim. 94, 103; Goldthwait vs. Day, 149 Mass. 185, 187.

The reasons that have prevailed against creating a government liability in tort do not apply to a case like this, and on the other hand the reasons are strong for not obstructing the application of natural justice against the Government by technical formulas when justice can be done without endangering any public interest. As has been said in other cases the question of damages to the colliding vessel necessarily arose and it is reasonable for the Court to proceed to the determination of all the questions legitimately involved, even when it results in a judgment for damages against the United States. The Nuestra Señora de Regla, 108 U. S. 92; The Paquete Habana, 189