British Transport Commission v. United States/Dissent Brennan

Mr. Justice BRENNAN, dissenting, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, announced by Mr. Justice FRANKFURTER.

In terms, Admiralty Rule 56 authorizes cross-claim practice only in libel proceedings. The instant proceeding, however, is not a libel, but a limitation proceeding. I do not pause to examine the arguments marshalled by the Court in favor of cross-claim practice in limitation proceedings, for, in my opinion, if such practice is desirable, it should be introduced by amending the Admiralty Rules, and not by a decision in a particular litigation which was commenced by the original litigants without knowledge on their part or the Admiralty Bar that such a practice obtained in limitation proceedings.

It is inequitable, in the circumstances of this case, to apply to the British Commission a practice first announced today. The contracts of passage between the Commission and its co-claimants were not entered into under American law. The Duke of York was a passenger ferry operating on a fixed schedule between the Hook of Holland and Harwich, England. The 437 passengers aboard at the time of the collision held tickets for transportation across the North Sea from a railroad station in Holland to a railroad station in Harwich. Those tickets were contracts of passage containing provisions for exoneration from liability more favorable than are allowed by American law. There is no challenge to the statement in a footnote to the Commission's brief that

'Under English law the amount at which liability may be     limited is far lower than in the United States, generally 15      per ton of tonnage. Merchant Shipping Act 1894 (57 & 58 Vict.     c. 60) Sec. 503. Furthermore, the English rules of liability     are substantially different from those applied in our courts. A carrier under English law may by appropriate contract and     notice limit its liability for negligence, and periods of      limitation for the assertion of damage or loss are different. See Collision Claims-Difference Between British and U.S. Law,     Lloyds List and Shipping Gazette, July 14, 1953.' (Emphasis      added.)

And see Adler v. Dickson, (1954) 2 Lloyd's List L.R. 267 (C.A.). There is at least a substantial prospect that in the American courts these more favorable English rules of liability may not be fully recognized and applied. Congress has said that provisions or limitations exonerating a shipowner from liability for negligence or from liability beyond a stipulated amount are against the public policy of the United States, and shall be null and void and of no effect. See, e.g., R.S. § 4283, as amended, 49 Stat. 1480, 46 U.S.C. § 183c, 46 U.S.C.A. § 183c; Note, 65 Yale L.J. 553; Moore v. American Scantic Line, D.C., 30 F.Supp. 843.

The British Commission could not have been compelled to enter the limitation proceeding, but did so voluntarily. We may reasonably infer that its decision to participate was based upon its understanding of the issues it would be called upon to face. The notice of those issues gave not the slightest hint that the Commission would be required to answer to other claimants who might enter the proceedings. The notice was:

'Notice is given that the United States of America has filed     a petition pursuant to Title 46, U.S.Code, sections 183-189      and 789 (46 U.S.C.A. §§ 183-189, 789), claiming the right to      exoneration from or limitation of liability for all claims      arising on the voyage of the USNS HAITI VICTORY from New York      City to Bremerhaven, Germany, terminating on May 8, 1953, at      Bremerhaven. All persons having such claims must file them,     under oath, as provided in United States Supreme Court      Admiralty Rule 52, with the Clerk of this Court, at the      United States Court House at Granby Street, Post Office      Building, Norfolk, Virginia, and serve on or mail to the      petitioner's proctors *  *  * at *  *  * a copy on or before      October 15, 1953, or be defaulted. Personal attendance is not     required. Any claimant desiring to contest the claims of     petitioner must file an answer to said petition, as required      by Supreme Court Admiralty Rule 53, and serve on or mail to      petitioner's proctors a copy.' (Emphasis added.)

Plainly this notice told the Commission only that if it chose to enter this proceeding it must be prepared to contest the claims of the United States to exoneration from or limitation of liability for claims arising out of the collision. That issue did not in anywise draw in the Commission's defenses against claims of the Duke of York's passengers. The Commission therefore had no information to alert it that it might hazard its defenses under its contracts of passage if it entered the proceeding. The Commission thus had no fair opportunity to weigh that factor in reaching the very practical decision whether to enter the American proceeding or to stay out and meet all claimants on its home grounds. It is a fundamental of American justice that a litigant shall have fair notice of what he will be called upon to meet. In holding that, although the Commission was not given such notice, it must litigate the crossclaims here, the Court, in my view, denies equity in the name of equity.

I would reverse the judgment of the Court of Appeals and direct affirmance of the decree of the District Court.