all of New York City (Ellis P. Collins, of Utica, N. Y., and John M. Woolsey, of New York City, of counsel), for the United States, appearing specially for the purpose of objecting to the jurisdiction of this court and for no other purpose.

WINSLOW, District Judge. This libel, filed May 11, 1922, is against the United States in rem. The libelant is a Delaware corporation having its principal place of business in the borough of Manhattan, New York City, and alleges that the government is the owner, through the United States Shipping Board, of the steamship Coosa; that on May 1, 1920, the libelant chartered the Coosa, belonging to the respondent, by a charter party in writing with the agents for said vessel, by which charter party the vessel was to carry a cargo of sugar from Santiago to New York; that the ship was loaded on or about May 30, 1920, and thereafter arrived at New York and made a short delivery of the cargo, whereby the libelant was damaged, after crediting certain offsets, in the sum of $7,454.31. Recovery of the sum is sought, and libelant elects to have the suit proceed in accordance with the principles applicable to libels in rem pursuant to the Suits in Admiralty Act.

On August 16, 1922, exceptions were filed by the government, which appeared specially for the purpose of objecting to the jurisdiction of the court. These exceptions were not brought on for hearing, it being stated that libelant's reasons for not bringing such exceptions on was that it was awaiting a decision of the Supreme Court involving an interpretation of the act.

Nothing further was done until this motion was brought on, on an order to show cause, on May 11th. On this motion the respondent, appearing specially, moves for an order allowing the filing of an exception, special plea to the jurisdiction, and special plea in bar in this action, and providing for the framing of issues on the plea to jurisdiction and the plea in bar as so filed, and for a stay. No answer has been filed. On the return of the motion, the libelant moved to amend the libel, so as to change the form of the action from one in rem to one in personam, and that libelant be permitted to proceed upon such amended libel.

The respondent's exceptions are directed. to the alleged lack of jurisdiction, on the grounds (1) that the libel is defective for failure to allege that the steamship was found within the district at the time the li

bel was filed; (2) that it does not allege that the steamship was employed by the United States as a merchant vessel at the time of filing the libel.

The affidavit of the respondent indicates that these omissions in the libel are not mere matters of form, but that the Coosa, at the time of filing the libel, was one of the vessels composing the laid-up fleet of the Shipping Board and was lying at Philadelphia outside this district, and that the vessel, since the 5th day of June, 1921, has carried no crew nor cargo, and has not been and is not now in service, and will be for an indefinite period laid up and withdrawn from merchant or other service and out of use.

The respondent makes application for an order allowing the filing, not alone of such exceptions, but also of a special plea in bar and to the jurisdiction, setting up the facts as stated, and for framing issues on the jurisdictional facts, in accordance with the procedure followed by this court in a number of cases styled U. S. Grain Corporation v. United States (United States v. City of New York), 8 F.(2d) 270.

[1] It is apparent that this court has no jurisdiction over the respondent by a proceeding in rem under the Suits in Admiralty Act; the vessel not being found within the district. Cunard S. S. Co. v. U. S., The Isonomia (C. C. A. 2d Cir.; Nov. 24, 1923) 1923 A. M. C. 132, 285 F. 516, and other cases.

The questions to which the court's attention is particularly directed are the question of the right to amend and the question of separating the issues involved. It is urged by the libelant that certain unimportant changes in several of the allegations, substituting the word "respondent" in place of the word "vessel," and a change in the prayer for relief, should be permitted.

It would seem that section 2 of the Suits in Admiralty Act (Comp. St. Ann. Supp. 1923, § 12514a), relating to actions in personam against the United States, permits such a relief to be used only as and when the same might be asked against a private respondent as a part of or in conjunction with a suit in rem, of which the court has jurisdiction. In other words, the same principles of law and practice are intended to apply in authorized suits against the United States as against private owners.

The act substituted an action in personam where an action in rem would lie. Banque Russo-Asiatique-London v. U. S. Shipping Board (D. C.) 266 F. 897; The Cape Fear, W. R. Grace & Co. v. U. S. (D. C.) A. M.

may not be joined with another defendant, and that, if any liability rests upon the United States, it should be imposed pursuant to the provisions of the Suits in Admiralty Act of March 9, 1920 (Comp. St. Ann. Supp. 1923, §§ 12514-12511), and not under the Tucker Act.

[1] With respect to this last contention I am not in accord, having held to the contrary upon April 24, 1923, in W. R. Grace & Co. v. United States, 8 F. (2d) 80. In so far as the government takes the position that the suits under consideration were begun by the service of summons and complaint, instead of by petition, it is sufficient to say that I am in accord with the views expressed upon this subject by Judge Dickinson in Mill Creek & Minehill Co. v. United States (D. C.) 246 F. 1013.

[2] The suggestion that the government may not be made a codefendant with C. D. Mallory & Co., Inc., appeals to me as having substantial merit. It is true that, under section 213 of the Civil Practice Act of this state, a plaintiff, where he is in doubt as to the person from whom he is entitled to redress, "may join two or more defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between the parties."

Section 211 of the same act provides: "All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative; and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities."

Not to reject the state statute in this instance would, to say the least, be so productive of confusion as to unwisely incumber the administration of the law; for example, as to the claim made against the United States, the court, under the Tucker Act, would be required to be the trier, not only of the law, but of the facts as well. As to the claims of the plaintiff against C. D. Mallory & Co., Inc., a jury would be called upon to find the facts. If the proofs should indicate a joint liability of the United States and C. D. Mallory & Co., Inc., then the court upon the evidence might easily be in the position of reaching one conclusion as to the issues it should decide, while the jury, upon the same evidence, might reach a different and contradictory result as to the issues submitted to it. The impracticability of such a situation is obvious, and, as these suits are now framed, I see no way in which it can be overcome.

It follows that, if plaintiff wishes to collect from the government for its alleged breaches of contract, the effort so to do must be directed against it alone. I will dismiss the complaint against the United States, unless plaintiff within 20 days elects to voluntarily dismiss the same against C. D. Mallory & Co. and to reframe the pleadings, so as to allege causes of action only as against the sovereign.

AGROS CORPORATION v. UNITED
STATES.

(District Court, S. D. New York. October 11, 1922.)

26-Suits in Admiralty Act not

limited to suits in nature of in rem.

Suits in Admiralty Act, § 2 (Comp. St. Ann. Supp. 1923, § 12514a), considered with sections 3, 6 (Comp. St. Ann. Supp. 1923, §§ 12514b, 1251e), and in view of history of act in Congress, held to allow suits against the United States in the nature of in personam, as well as in the nature of in rem.

In Admiralty. Libel by the Agros CorpoExcepration against the United States. tions to interrogatories overruled.

Sur respondent's exceptions to a libel in the Admiralty. The case raises only one question: Whether under the Act of March 9, 1920 (Comp. St. Ann. Supp. 1923, §S 1251-12514), a libelant may sue the United States in personam upon a maritime claim which would be cognizable by an admiralty court between private persons, or whether that act is limited to suits in rem. The question arises upon exceptions to in

LEARNED HAND, District Judge. I think that it is impossible to read the Suits in Admiralty Act (March 9, 1920) without concluding that Congress intended to provide for suits which are in the nature of in personam as well as in rem. In the first place, although the statute is drawn by persons entirely familiar with the usages and terms of the admiralty, section 2 (Comp. St. Ann. Supp. 1923, § 12511⁄4a), which confers the right, speaks, not of a libel in rem, which was the natural phrase if the respondent be right, but of "a proceeding in admiralty." Whenever such a proceeding "could be maintained," if the "vessel were privately owned or operated," "a libel in personam may be brought." The statute appears, therefore, to speak sub specie generale.

The history of the act strongly corroborates this conclusion, as will appear in a moment. Furthermore, even if section 1 (Comp. St. Ann. Supp. 1923, § 12514), which enacts that the remedy in personam is to be a substitute for the right given by the Act of 1916 to arrest United States ships, raises a doubt upon this interpretation, the later sections lay it. Thus in section 3 (Comp. St. Ann. Supp. 1923, § 12514b) the libelant may elect to proceed with his libel as in rem, if there be a lien, though, of course, without arrest. What can such an election be, if he have only that right? This is not even left to implication, because his election is not to deprive him "from seeking relief in personam in the same suit." "In personam" does not refer to the form of the libel, since that must be "in personam" anyway, all arrests being forbidden. It seems hardly necessary to argue that it refers to relief which could be given in personam against a private person, and thus necessarily presupposes that such relief is open to any libelant in a proper case.

Finally, section 6 (Comp. St. Ann. Supp. 1923, § 12511⁄4e) grants the same "exemp

tions" and "limitations of liability" to the United States as to private owners. Allowing that "exemptions" is an indefinite word, "limitations of liability" can scarcely mean anything but the limitation which has been given to shipowners for 70 years. It applies necessarily to rights in personam, and, since the act is technically drafted, would have been quite meaningless, unless suits in personam had been understood to be included.

The respondent's argument is plausible, based upon the main purpose of the act, i. e., to create a substitute for the earlier right of arrest, and this is reinforced by the reports of the legislative committees. However, there appears to me a conclusive answer to any such argument in the history of the act in Congress. The original draft of section 2 read as follows: "The United States

may be sued in personam

in those cases where, if the United States were suable as a private party, a suit in personam could be maintained, or where, if a vessel or cargo were privately owned and possessed, a libel in rem could be maintained and the vessel or cargo could be arrested or attached at the commencement of the suit."

Thus it appears that the final form of section 2-i. e., "a proceeding in admiralty" was a substitute for an express grant of jurisdiction as well over suits in personam as over suits in rem. Now it seems to me flatly impossible to suppose that, when Congress made the change from the enumeration of these two kinds of suits to a general phrase fitted to include both, it intended to cover only one of the two enumerated. Having shown its prior purpose specifically to include both, and having finally selected less cumbersome language naturally including both, how can it be argued that it meant to cover only one which it had shown that it knew how to express accurately when it chose?

While the case is of first impression, so far as any judicial intimations have gone, they are in accord. Middleton & Co. v. U. S. (1921; D. C.) 273 F. 199, 200, 201; Blamberg Bros. v. U. S. (1921; D. C.) 272 F. 988, 979, affirmed by Supreme Court 1923 A. M. C. 50, 260 U. S. 452, 43 S. Ct. 179, 67 L. Ed. 346.

The exceptions to the interrogatories are overruled; the other exceptions were disposed of at the argument.

CROSS et al. v. UNITED STATES.

in rem could be maintained against it. The

1923.)

1. Admiralty 27-Libel in personam against government independent of lien.

Libel in personam for salvage lies against the government, independent of any lien on the goods salvaged.

2. Salvage 43-Libel in personam for salvage against person for whose benefit services performed.

Present admiralty rule 18, allowing suit for salvage in personam against any party liable for salvage service, does not change former admiralty rule 19, allowing such suit against the person at whose request or for whose benefit the salvage services were performed.

3. Admiralty 26-Election in libel whether or not to proceed in accordance with principles of libel in rem unnecessary.

If libel is good in any aspect, it should not be dismissed, though libelant has not chosen to elect therein whether suit was "to proceed in accordance with the principles of a libel in rem" or not, under Suits in Admiralty Act, § 3 (Comp. St. Ann. Supp. 1923, § 1251b).

4. Admiralty 26-In case of right in personam against United States, libel in per

sonam authorized.

5. Admiralty 40-Ship need not be in United States, in case of libel in personam against United States on right in personam.

For a libel in personam, under Suits in Admiralty Act, § 2 (Comp. St. Ann. Supp. 1923, § 12514a), against the United States, where there is right in personam against it, the vessel need not be in the waters of the district or of the United States.

In Admiralty. Libel by Frank Cross and others against the United States. On exceptions to libel. Exceptions overruled.

The libel alleges that the steamship Faraby was owned by the United States and was and still is employed as a merchant vessel; that she is now within or about to come within the admiralty jurisdiction of this court. It then sets up facts showing the performance of alleged salvage services by the libelants, the crew of the steamer Hickman, in towing the Faraby from the Azores to the port of New York. The question raised by the exceptions is whether this is a case within section 2 of the Act of March 9, 1920, known as the Suits in Admiralty Act (Comp. St. Ann. Supp. 1923, § 12514a). The respondent claims that, as there is no allegation that the ship is within the District Court, no libel

admiralty rule the libel for salvage lies in personam against the person liable.

Silas B. Axtell, of New York City, for libelant.

William Hayward, of New York City, (Walter Schaffner, Sp. Asst. U. S. Atty., of New York City, in Admiralty, of counsel), for the United States.

GODDARD, District Judge. [1,2] A libel in personam lies against the government for salvage, quite independent of any lien upon the goods salvaged. U. S. v. Cornell S. S. Co., 202 U. S. 184, 26 S. Ct. 648, 50 L. Ed. 987. The present rule 18 is not to be understood as changing the former rule 19, which enacted that a libel in personam would lie "against the person at whose request or for whose benefit salvage services were performed." These services were performed for the benefit of the United States, Therefore even though not at its request. the absence in the libel of any statement that the United States was operating the vessel is of no consequence.

Whether a libel in personam lies against the [3-5] The question then comes to this: United States, although the vessel is not alleged to be within its borders. It is now settled by the Supreme Court in the case of Blamberg v. U. S., 260 U. S. 452, 43 S. Ct. 179, 67 L. Ed. 346, decided January 2, 1923, that no libel in rem lies against such a vessel. In The Isonomia, 285 F. 518, the Circuit Court of Appeals for this circuit held that a libel in rem would not even lie against a vessel which was not within the jurisdictional waters of the district in which the libel was filed at the time of filing. If this were a libel in rem for salvage, it would not therefore lie. The libelant has not chosen to elect in his libel whether the suit was "to proceed in accordance with the principles of a libel in rem" or not, under section 3 of the Suits in Admiralty Act (Comp. St. Ann. Supp. 1923, § 1251b), but I do not think that necessary. If his libel is good in any aspect, it ought not to be dismissed. In The Isonomia, supra, it was distinctly said that a libel in personam was authorized by the Suits in Admiralty Act, and that it could be brought in any district where the libelant resided, and this libel alleges that the libelants reside in the district. It is open to some doubt whether the language of Mr. Chief Justice Taft in Blamburg v. U. S. did not mean to confine all