# Continental Grain Company v. Barge/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Whittaker
United States Supreme Court
364 U.S. 19
Continental Grain Company v. Barge
Argued: April 20, 1960. --- Decided: June 27, 1960
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), 28 U.S.C.A. § 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, 80 S.Ct. 79, 4 L.Ed.2d 59.
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 s 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 v. Blaski and Sullivan v. Behimer, 363 U.S. 335, 80 S.Ct. 1084, 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 long-standing admiralty fiction that a vessel may be assumed to be a person for the purpose of filing a lawsuit and enforcing a judgment.
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.' 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 salt-water 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 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, 503, 6 S.Ct. 1150, 1162, 30 L.Ed. 134.
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, 253-254, 64 S.Ct. 15, 17, 88 L.Ed. 30.
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 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,' 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. v. United States, 354 U.S. 129, 139, 77 S.Ct. 1103, 1108, 1 L.Ed.2d 1234.
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, 28 U.S.C.A., 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. It is interesting in this connection to take note of the fact that, according to the Court of Appeals opinion, the case at Memphis has already been tried. 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. 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.
Affirmed.
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, 1960, 363 U.S. 351, 80 S.Ct. 1084. Accordingly, I would affirm the judgment.
Mr. Justice WHITTAKER, with whom Mr. Justice DOUGLAS joins, dissenting.

## Notes

* ↑ 'A ship is the most living of inanimate things. Servants sometimes say 'she' of a clock, but every one 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.
* ↑ The Carlotta, 2 Cir., 1931, 48 F.2d 110, 112, 1931 Am.Mar.Cas. 742, 745, quoted in Gilmore and Black, The Law of Admiralty (1957), 508.
* ↑ Point Landing, Inc., v. Alabama Dry Dock & Shipbuilding Co., 5 Cir., 1958, 261 F.2d 861, 866, 1959 Am.Mar.Cas. 148, 155.
* ↑ See Burns Bros. v. Central R. Co., 2 Cir., 1953, 202 F.2d 910, 1953 Am.Mar.Cas. 718; Sullivan v. Nitrate Producers' S.S.C.o., 2 Cir., 1919, 262 F. 371; Bailey v. Sundberg, 2 Cir., 1892, 49 F. 583; Gilmore and Black, The Law of Admiralty (1957), 507 509.
* ↑ 268 F.2d 240, 242, note 2, 1959 A.M.C. 2158, 2160, note 2.
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).
Public domainPublic domainfalsefalse