John R. Brown
December 8, 1984
JOHN R. BROWN, Chief Judge:
This case, simple in setting but not so easy of determination, is before us as an interlocutory appeal, 28 U.S.C.A. 1292(b). The appeal presents the single issue of whether a partnership may be sued under the special venue provisions of the Jones Act in a district in which the partnership is doing business but in which neither the partnership's principal office is located nor any particular partner resides. It splices the main brace to state it in more realistic terms. The question is whether the cherished ward of the admiraltya seaman, whether salt water, pure and unadulterated or of a Sieracki-Ryan-Yaka variety who sustains an injury on navigable waters within or off shore of Louisiana, must, in making a Jones Act claim against the multimillion dollar shipowneremployer whose extensive operations are widely scattered over the nation, the high seas and perhaps the terrestrial globe, pursue this employer in Dallas, Texas, where the dream of oceangoing vessels up the Trinity is an enticing but unrealized community hope and where the admiralty Judge must dispense his justice not from any juridical quarterdeck but from a nonnautical bench high and dry above maritime waters. Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1218 (5th Cir., 1969).
With almost ironic coincidence this, as the earlier one of Gutierrez, is a beanworthy case. Burrage, a Sieracki-Ryan-Yaka pseudo seaman, was injured on a New Orleans wharf while working as a longshoreman in the employ of Stevedore during the discharge of Shipowner's SS Ciudad de Nieva when he slipped on a coffee bean...Burrage v. Flota Mercante Grancolombiana, S.A. 431 F.2d 122, 1231 (5th Cir. , 1970).
Productos Carnic, S.A. v. Central American Beef & Seafood Trading Co., 621 F.2d 683 (5th Cir., 1980)
Insurrection, armed conflict, battles in the streets, terrorist attacks, riots, war, revolution, and the overthrow of a dictator permeate this appeal.
Woolen v. Surtran Taxicabs, Inc., 684 F.2d 324, (5th Cir., 1982)
United States v. VenFuel, Inc. 602 F.2d 747, 749 (5th Cir., 1979)
This case presents a vicious duel,
Between the U.S. of A. and defendant
Seeking a license for oil importation,
VenFuel submitted its application.
It failed to attach a relevant letter,
And none can deny, it should have known
Yet the only issue this case is about,
Is whether a crime was committed be-
yond reasonable doubt.
VenFuel was convicted of fraudulent
By the Trial Court's finding of adequate
We think it likely that fraud took place,
But materiality was not shown in this case.
So while the Government will no doubt
We declare the conviction null and void.
The Procedural Background Is Easily Stated...
Operating on what I hope is not a dubious notion that a Judge should have at least the common sense although not encased in Seventh Amendment armor of a jury I cannot escape the conviction that these competing factors called for factfinder resolution, not a deliverance of law from our nonhorticulture hothouse. When one wants a Yellow Rose of Texas he is not satisfied with a Mrs Miniver, no matter how cheap, available or beautiful in some other beholder's eye. A camellia for a hair dress offset to olive skin and a black gown is not filled by a carnation, or for that matter, a chrysanthemum. Yoder Brothers, Inc. v. California-Florida Plant Corp., 537 F.2d 1347, 1386 (5th Cir., 1976)
Like the American space program, this case struggled through a long tortuous and frustrating history before getting off the ground. Hines v. Delta Air Lines, Inc. 461 F.2d 576,577 (5th Cir., 1972).
Indigenous to her name and the scriptural tradition that all things must come in pairs, the NOAH'S ARK is back again to provide the second of a pair of appeals from a pair of trials involving a pair of claims for salvage and for damage done by the salvors. Oil Screw Noah's Ark v. Bentley & Felton Corp. 322 F.2d 3, 5 (5th Cir., 1963).
...this case adds a new wrinkle. ...The problem is the imminent collision course between the Louisiana Direct Action Statute, and the Federal Limitation of Shipowner's Liability Act.... The Court avoided risk of collision by a sort of general prudential acceptance of the swing vote approach of Mr. Justice Clark that the issue be deferred until the limitation proceedings were finished. So prescient was this, that the evil day of decision has now been postponed for twelve years, and if we are right here, it may go on forever as the Great Undecided Problem. Guillot v. Cenac Towing Co., Inc., 366 F.2d 898,900 (5th Cir., 1966).
Though the path into this factual labyrinth is difficult, we, like Theseus, find that a narrow thread makes the return journey easy. Capital Bancshares, Inc. v. North American Guaranty Ins. Co., 433 F.2d 279, 282 (5th Cir., 1970).
The seizure on the open seas of marijuana being transferred from the freighter Labrador to the Catchalot II caught a lot more than an enormous amount of an illegal substance. Not the least of the catch are the difficult legal issues of statutory construction and double jeopardy which we consider on this rehearing en banc...
...We first decide that Congress intended for both statutes to apply separately and consecutively to such an agreement. That conclusion nets us a sharptoothed "double jeopardy" shark; but we find that double jeopardy has little bite where but one trial occurred and congressional intent is clear. United States v. Rodriguez 612 F.2d 906, 908 (5th Cir., 1980).
Things move too fast, too much happens in this sometimes mixed up world of ours for Judges to have some sort of perpetual claim on insight into business affairs for them to transport an ancient case from 1893 down to 1967 or 1969 as a kind of deliverance that advertising once held not to give rise to a lien could never do it now. Stern, Hays & Lang, Inc. v. M/V NILI 407 F.2d 549, 551 (5th Cir., 199).
Does the speed of the modern jet age and the restless, irrepressible, increased tempo of all who are in its vortex impose on a flight insurer the obligation toward prospective policy buyers of explaining the distinctive differences of the several available coverages? Does the insurer's attractive sales booth, neon signs heralding the need for and availability of "flight insurance," and other catchy advertising come-ons carry the inevitable message to scurrying people on the move the notion that the coverage is for the traveler's intended round trip rather than for a definitive period of time? Mutual of Omaha Ins. Co. v. Russell 402 F.2d 339, 34O (5th Cir., 1968).
Gordon v. Green 602 F.2d 743 (5th Cir., 1979)
As we see it, the only issue currently before the Court in these five consolidated cases is whether verbose, confusing, scandalous, and repetitious pleadings totaling into the thousands of pages comply with the requirement of "a short and plain statement" set forth in F.R. Civ.P.8. We think that the mere description of the issue provides the answer.
Time, tide, and the march of the law, now with heavy constitutional steps, have reduced the main poll tax question to almost another nothing. For the poll tax is dead, nationally and in Mississippi. Although the passage of time and its portentous events now brand the poll tax as organically invalid-a congenital defect traceable perhaps back to the great void. United States v. Holmes County, Mississippi 385 F.2d 145,148149 (5th Cir., 1967).
...But in determining the taxability of leather kits made for cub scouts, prison inmates, disabled veterans, and the like, I would doubt that in this sometimes weird contemporary tax world we are facing the tax tyrannies of George III...For a nation of hobbyists with the ubiquitous do-it-your-self kits in the hands of the young, the old, the strong, the infirm, the upright, and the wayward it is inconceivable that during all this time Congress has been oblivious to this national activity. What Congress has so long deliberately left untouched, the Judiciary at five minutes to twelve ought not to grasp. Tandy Leather Company v. United States 347 F.2d 693, 695 (5th Cir., 1965).
... The pudding's eating ought to be proof in tax cases too. Figures speak and when they do, Courts listen. Brooks v. Beto, 366 F.2d 1, 9 (5th Cir., 1966). United States v. Jackson Oldsmobile, Inc. 371 F.2d 808, 809 (5th Cir. , 1967).
When Gideon sounds his trumpet courts listen. This time the horn calls for Richard E. Byrd, convicted in 1962 of murder and sentenced to life imprisonment at age sixteen...Byrd v Smith 407 F,2d 363, 364 (5th Cir., 1969).
United Services Life Ins. Co. v. Delaney 328 F.2d 483 (5th Cir., 1964).
...Now that we have this remarkable facility of certification, we have not yet "guessed right" on a single case. 328, F.2d, at 486.
When nine Judges, five of whom heard extended arguments in each of the cases on submission to separate panels, followed by extended briefs on submission en banc, state they cannot agree on what the controlling law is, I do not think the case can any longer be described as "easy" or "simple" 328 F.2d, at 489
The Chancellor is no longer fixed to the woolsack. He may stride the quarterdeck of maritime jurisprudence and, in the role of admiralty judge, dispense, as would his landlocked brother, that which equity and good conscience impels. Compania Anonima Venezolana De Navigacion v. A. J. Perez Export Company 303 F.2d 692,699 (5th Cir., 1962).
This litigation bearing service stripes from it now second appearance here...as well as two trips to the 6th Circuit... and an oblique visit more recently to the 8th Circuit... Bros Inc. v. W. E. Grace Manufacturing Co. 320 F.2d 594, 597 (5th Cir., 1963).
Placid 0il Company v. Federal Power Commission, 483 F.2d 880 (5th Cir., 1973).
...This followed in the footsteps of our Austral Oil Co. v. FPC, 5 Cir., 1970, 428 F.2d 407, which we now denominate as SoLa I in the almost certain assurance that what we write today will be known far and wide as SoLa II, and with the hope - for which there is no such assurance - that there will be no SoLa III, or IV, or V. 483 F.2d at 885
....But we emphasize that we will not allow the kid glove to hold a rubber stamp... 483 F.2d at 890.
With this decision we hopefully end, in all but a minor respect, an amphibious imbroglio and commercial law practitioner's nightmare involving three shiploads of enriched wheat flour. T. J. Stevenson & Co., Inc. v. 81,193 Bags of Flour, 629 F.2d 338, 341 (5th Cir., 1980).
Credited as the facts were, the picture was one of crude, at times obnoxious threats breaking every rule in the now compendious book of how-not-to-combat-a-union-campaign. N.L.R.B. v. Goodyear Tire & Rubber Co. Retread Plant, 394 F.2d 711, 712 (5th Cir., 1968).
Commercial Trading Co., Inc. v. Hartford Fire Insurance Co., 466 F.2d 1239 (5th Cir., 1972).
Both parties appealed. Commercial, of course, here contends that the Court was half wrong while Insurer advances the anchor-to-windward argument that the Court was only half right. Finding ourselves in at least partial agreement with both parties, and in total agreement with the Trial Court, we affirm. 466 F.2d, at 1241.
Here, Commercial attempts to refute this conclusion by arguing that since an ocean going vessel and ocean bills of lading were involved, the misdelivery of the subject cargoes literally "reeked with the smell of the sea". Except to concur in this odor test, we find it unnecessary to resolve this question since to be somewhat "like" criminal barratry at least requires a moral characteristic to take the omissions of the shipmasters out of the category of negligence,yea even seagoing ignorance or stupidity. 466 F.2d, at 1245.
Whether the beacon is a Feinburg light, or a Southport Fisheries light, or a Feinburg-Southport Fisheries light, or even a Southport Fisheries-Feinburg light, we reach the same conclusion. Commercial loses.466 F.2d, at 1246.
But Federal Judges -- at least in these days -- do not have the Keys to the Kingdom to determine for a sovereign state the internal domestic policies which it desires to follow. Dissent, W.S. Ranch Co. v. Kaiser Steel Corp., 388 F.2d 257, 263 (5th Cir., 1967).
A multi-party, multi-claim, multi-court Donnybrook in which all have at one time or another lashed out against each for all or any part they could get, this Tinker-to-Evers-to-Chance ended when our suitors were put out by an infield fly. Kessler v. Pennsylvania National Mutual Casualty Ins. Co., 531 F.2d 249 (5th Cir., 1976).
...As they hopefully tag end in this Kilkenney fair, the District Judge held against one of the insurers and its assured - who must have been joined to give the insurer a more attractive cloak - and in favor of the victorious other insurer for what, at most, was attorney fees in its successfully maintaining the defense that its policy did not cover the occurrence. id., a 249 250.
In The Beginning 531 F.2d at 250.
Litigation Sets In
With all of these potential defendants it was not surprising that litigation broke out on all fronts. 531 F.2d at 253.
Another Day Another Court
On April 9, 1973 Kesslers, but not Vollmers filed in the Federal District Court a declaratory suit against Penn to effectuate payment of the $100,000 settlement between Kesslers and Fargo (see note 23, supra) in the hopes of getting some blood out of the turnip.
...For some reason not yet disclosed no appeal was taken from this October 25 judgment so it became for the parties and for all time the law of the Medes and Persians which altereth not. 531 F.2d, at 254.
The Fog Lifts
The Erie Beacon Burns Brightly
Between the October 25, 1973 judgment in favor of Penn and the rulings of March 1974 on counterclaims of Penn-Kennelly-Reliance the word came down from on high - as high as a federal court frequently has to go. 531 F.2d, at 255.
Penn Must Lick Own Wounds
...The argument revealed that this may be much-a-do-about-nothing since Penn has not been required to pay out a dime to anyone.
Penn, therefore, loses this inning, but it comes out quite a winner, first, against the Kesslers, and finally as to Kennelly- Reliance's claim. 531 F.2d, at 257.
Erie cases produce eerie results, as this case so well demonstrates. Abilene Savings Assoc. v. Westchester Fire Ins. Co., 461 F.2d 557, 562 (5th Cir., 1972).
Blackstone said that the concept "that the king can do no wrong is a necessary and fundamental principle of the English constitution." Now in the 20th Century and in at least a part of the world long made safe for democracy the law persists in the view that seems to say that Blackstone is still right. And not even equity the King's conscience can help. Gardner v. Harris, 391 F.2d 885, 886 (5th Cir., 1968).
...With no purpose to prepare a polemic or tithe "mint, anise and cummin," I would speak-- "not as the scribes and Pharisees and the bureaucrats do," ...-but as a special concurring Judge should, a few brief words to indicate the views which lead me to decision.
But at issue here is something more fundamental than house paint, bargains, or the American habit of self-delusion on "free" articles.
Our complex society now demands administrative agencies. The variety of problems dealt with make absolute consistency, perfect symmetry, impossible. And the law reflects its good sense by not exacting it. Mary Carter Paint Co. v. Federal Trade Commission, 333 F.2d 654, 660 (5th Cir., 1964).
The Florida arm, short or long, is long enough to reach the one-third mile from the United States Courthouse, 300 N.E. First Avenue, Miami to nearby 100 Biscayne Boulevard, North. Hoffman v. Air India, 393 F.2d 507, 509 (5th Cir., 1968).
This case is back with us again. Roe v. United States, 619 F.2d 617, 619 (5th Cir., 1963).
JOHN R. BROWN, Chief Judge:
Another in that evergrowing line of multiparty 3, 4, 5, or 10-ringed amphibious Donneybrooks, this one has its share of complications. Grigsby v. Coastal Marine Service of Texas, Inc. 412 F.2d 1011, 1015 (5th Cir., 1969).
D/S Ove Skou v. Hebert, 365 F.2d 341 (5th Cir, 1966).
This is another of the growing number of multiparty Donnybrook Fairs in which like Kilkenny cats, ... all lash out against each other in the hope that someway from someone, somehow all or part of the Sieracki-Ryan-Yaka-Italia fallout can be visited on another. 365 F.2d, at 344.
But these are the stuff of which lawsuits are made. Accidents do happen that simply cannot occur. 365 F.2d, at 346.
JOHN R. BROWN, Chief Judge (concurring):
As soap, now displaced by latter day detergents is the grist of Madison Avenue, I add these few comments in the style of that street to indicate my full agreement with the opinion of the Court and to keep the legal waters clear and phosphate-free.
As PROCTOR of this dispute between the representative of many manufacturers of household detergents and the Board of Commissioners of Metropolitan Dade County, Florida, who have promulgated regulations which seek to control the labeling of such products sold within their jurisdiction (largely to discourage use which pollutes their waters), the Court holds that Congress has specifically preempted regulatory action by Dade County. Clearly, the decision represents a, GAMBLE since we risk a CASCADE of criticism from an increasing TIDE of ecologyminded citizens. Yet, a contrary decision would most likely have precipitated a NIAGARA of complaints from an industry which justifiably seeks uniformity in the laws with which it must comply. Inspired by the legendary valor of AJAX, who withstood Hector's lance, we have BOLDly chosen the course of uniformity in reversing the lower Court's decision upholding Dade County's local labeling laws. And, having done so, we are CHEERed by the thought that striking down the regulation by the local jurisdiction does not create a void which is detrimental to consumers, but rather merely acknowledges that federal legislation has preempted this field with adequate labeling rules.
Congress, of course, has the COLD POWER to preempt. Of the three situations discussed by the Court, the first (direct conflict) is easy, for it is CRYSTAL CLEAR that the state law must yield. The third, in which the ordinance may supplement the federal law and thereby extend or increase the degree of regulation, is more troublesome. For where Congress has chosen to fashion a regulatory scheme that is only the HEAD AND SHOULDERS, but has not opted to regulate every aspect of the area, the states have implied power to flesh out the body. It is where Congress fails to clearly signify, with an appropriate preemption clause, its intent to fully occupy the area regulated that the problem arises. With some JOY, the Court finds there is such a clause.
Concerning the precautionary labeling aspect, this is SOS to consumers. If we DASH to the heart of the question, it is apparent, as the Court points out, that the 1966 Amendments to FHSA (see note 4, supra) indicate an explicit congressional purpose to preempt state regulation of the labeling of these substances. Undoubtedly, this unequivocal congressional SALVO was directed at such already existing regulations as those of the Fire Department of New York City relating to pressurized containers. See Chemical Specialties Manufacturers Association V. Lowery, supra. Indeed, Congress intended to wield its ARM AND HAMMER to WISK away such local regulations and further, to preclude the growing TREND toward this proliferation of individual community supervision. Its purpose was at least twofold: (i) to put day-to-day responsibility in the hands of local government, but (ii) at the same time to impose detailed identical standards to eliminate confusion or overlapping.
With this clear expression of congressional intent to create some form of preemption, the only thing remaining was whether the meaning of the term "precautionary labeling" is sufficiently broad to embrace the words of the Dade County ordinance, VEL non. In making this determination, the Court is furnished with a LEVER by our BROTHERS of the Second Circuit. Chemical Specialties Manufacturers Association v. Lowery, supra. And so we hold. This is all that need be said. It is plain as MR. CLEAN the proper ACTION is that the Dade County Ordinance must be superseded, as ALL comes out in the wash.
Chemical Specialties Manufacturers Association, Inc. v.Clark, 482 F.2d 325, 328329 (5th Cir., 1973).