# Madruga v. Superior Court of California ex rel. San Diego County/Concurrence Reed

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Reed
United States Supreme Court
346 U.S. 556
Madruga v. Superior Court of California ex rel. San Diego County
Argued: Oct. 19, 20, 1953. --- Decided: Jan 18, 1954
Mr. Justice REED concurs in the judgment of the Court.
Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON joins, dissenting.
For one reason or another, eight co-owners having eighty-five percent interest in a vessel wished to terminate the enterprise but found the present petitioner, owner of the remaining fifteen percent, opposed to sale. Accordingly they asked a California State court for judicial sale of the vessel and appropriate distribution of the proceeds among all the owners. This is the only claim the plaintiffs made. There was no claim to enforce a personal right against the petitioner; no claim of any sort for which the levy on the ship as security was sought for some personal obligation owing from the petitioner. The jurisdiction of the State court was invoked exclusively for the sale of vessel.
If this is not an action against the thing, in the sense in which that has meaning in the law, then the concepts of a res and an in rem proceeding have an esoteric meaning which I do not understand. From the terms of the complaint for partition through the opinion of this Court authorizing the State court to grant it, there is not the remotest suggestion that we are dealing with a remedy to enforce a separate underlying personal claim. Here the ship's the thing-not a claim outside the ship for which an ancillary remedy against the ship is sought. Cf. Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638, 20 S.Ct. 824, 44 L.Ed. 921. Is it to be doubted that if California procedure required the proceeding to be brought by name against the Oil Screw Vessel Liberty, Official No. 256332, or if the action had in fact been so entitled, it would inescapably be deemed an action in rem? To make the existence of State power depend on such tenuous formalities is to make questions of jurisdiction in matters maritime, as between federal and State courts, turn on distinctions much too frail.
Of course State courts are free to give the relief here sought, if admiralty has not jurisdiction of a libel for partition. State law would then not be encroaching upon the admiralty jurisdiction of the federal courts. Whether admiralty has such jurisdiction, except when the contest over the use of the vessel is between owners whose interest is equally divided, has not been adjudicated by this Court and the learning on the subject is not compelling. The problem has received its fullest consideration in Fischer v. Carey, 1916, 173 Cal. 185, 159 P. 577, L.R.A.1917A, 1100, and substantially on the basis of arguments there elaborated, I conclude that admiralty does have jurisdiction in the circumstances of this case. The nub of the holding of that case is that 'the jurisdiction of the courts of the United States in admiralty is full and complete touching the matter of sale under the circumstances here indicated, that is to say, where dissentient owners are at strife over the use to be made of the ship, for it must, from the nature of admiralty jurisdiction, be a fundamental part of that jurisdiction to exercise control over the rem-the ship itself.' 173 Cal. at page 198, 159 P. at page 582.
The Supreme Court of California in sustaining the State's power which it had denied in Fischer v. Carey did not overrule that case. It reached the result it did, because it found that the 'saving clause,' descended from the First Judiciary Act, 1 Stat. 73, 77, had been drastically modified by the 1948 revision of the Judicial Code. 28 U.S.C. § 1333, 28 U.S.C.A. § 1333. The Reviser's notes completely refute this view. And since this Court does not adopt the construction given § 1333 by the California Supreme Court, the argument against it need not be elaborated.
Once it is established that the federal courts have jurisdiction and that the remedy here sought in a State court has 'all the essential features of an admiralty proceeding in rem,' The Hine v. Trevor, 4 Wall. 555, 571, 18 L.Ed. 451, the disposition of this case is clearly controlled by decisions of this Court. They were thus summarized in an opinion for the Court by Mr. Justice Brandeis, than whom no member of this Court gave wider scope to concurrent State jurisdiction in maritime matters: 'A state may not provide a remedy in rem for any cause of action within the admiralty jurisdiction.' Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S.Ct. 274, 277, 68 L.Ed. 582.
From the admiralty clause of the Constitution, this Court has drawn probably greater substantive law-making powers than it exercises in any other area of the law. See, e.g., The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760. Broad as are the implications of this clause, it does not authorize this Court to decide as a matter of policy, wholly untrammeled by the historic roots of admiralty, what relief may be sought exclusively in the federal admiralty courts and what may be concurrently given by the State courts. It is significant that the need for a body of maritime law, applicable throughout the nation and not left to the diversity of the several States, was the one basis for the creation of a system of inferior federal courts, authorized by the Constitution, which was recognized by every shade of opinion at the Philadelphia Convention.
Were Congress to authorize the States to exercise jurisdiction for the partition of vessels, we would of course have a very different question than the one now before us, the more so because one may assume that such a statute would differentiate between small craft plying within a limited area and ocean-going vessels. This Court cannot on its own initiative make such differentiations, regarding the power of State courts, as between small vessels and large. Whatever power may be exercised by Congress in ceding national maritime jurisdiction to the States, it is not for this Court to allow State courts to have concurrent jurisdiction in rem solely because the 'establishment of a national partition rule is not of major importance to the shipping world.'

## Notes

* ↑ Fischer v. Carey was recently followed in Cline v. Price, 1951, 39 Wash.2d 816, 239 P.2d 322.
* ↑ The original 'saving clause' read: 'saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it'. 28 U.S.C. § 1333, 28 U.S.C.A. § 1333, now reads: 'saving to suitors in all cases all other remedies to which they are otherwise entitled.'
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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