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United States Court of Appeals Second Circuit.: Docket Nos. 23472, 23488
United States Court of Appeals Second Circuit.: Docket Nos. 23472, 23488
2d 319
Golenbock & Komoroff, New York City (Donald S. Sherwood, New York
City, of counsel), for petitioner Natalie Ortiz Torres.
Kirlin, Campbell & Keating, New York City (Roland C. Radice and
James B. Magnor, New York City, of counsel), for respondent Honorable
Lawrence E. Walsh.
Bleakley, Platt, Gilchrist & Walker, New York City (Robert L. Conkling,
New York City, of counsel), for petitioner The Pennsylvania Railroad
Company.
Bigham, Englar, Jones & Houston, New York City (James M. Hughes, Jr.,
New York City, of counsel), for respondent Hon. Archie O. Dawson.
Before FRANK and MEDINA, Circuit Judges, and BRENNAN, District
Judge.
These two companion cases, argued on February 14, 1955, serve as illustrations
of the law in this Circuit applicable to mandamus and prohibition applications
in transfer cases under Section 1404(a), 28 U.S.C.
United States District Court for the Southern District of New York, where
personal service of citation was made and a monition issued, pursuant to which
the vessel was seized and released upon the filing of the usual undertaking. The
claimant-respondent, perhaps also thinking the judges in Puerto Rico Might
award a less ample recovery, and relying on the obvious convenience of 'parties
and witnesses,' moved under Section 1404(a) to transfer the case to Puerto
Rico. This raised the question of whether an in rem proceeding in admiralty was
within the scope of Section 1404(a), a matter of statutory interpretation, and
also the question of whether the District Court in Puerto Rico would have
power to proceed in rem. While it did appear that the vessel had frequently
been in the territorial waters of Puerto Rico, it was equally clear that no attempt
had been made to seize her there, and the only jurisdiction in rem was that of
the District Court in New York.
4
The first question is whether the District Judge has exceeded his power under
Section 1404(a), by transferring the case to a district where it might not have
been commenced originally. Section 1404(a), it will be recalled, authorizes a
transfer only 'to any other district or division where it might have been brought.'
While in a sense it is true that an in rem proceeding might have been brought in
Puerto Rico, as the vessel had been there from time to time, it may not be
doubted that the Congress intended no transfer in any case where the transferee
court lacked competence to proceed. As a proceeding in admiralty has been
held to be included in the phrase 'any civil action',1 it is probable that we would
hold that the transfer of an in rem admiralty case to a court having no
jurisdiction or power over the res was unauthorized, although the question is
not entirely free from doubt. But we do not reach that question here as the
respondent-claimant has agreed voluntarily to appear in the action in the
District Court of Puerto Rico, there appears to be no difficulty on the score of
venue, and the Judge granting the transfer has provided in his order that the
transfer shall be effective only upon the filing of a bond or stipulation by the
claimant of the SS Rosario to pay any judgment or decree recovered against the
vessel. Accordingly, we conclude that there was no lack of power to make the
order, as the District Court of Puerto Rico will be in effect a court where the
action might have been brought.
The answer is similarly in the negative in the Pennsylvania Railroad Co. case,
where it is not disputed that the action might originally have been brought in
Pennsylvania.
Petitions denied.
Arrowhead Co., Inc., v. The Aimee Lykes, 2 Cir., 1951, 193 F.2d 83;
Internatio-Rotterdam, Inc., v. Thomsen, 4 Cir., 1955, 218 F.2d 514; Becker v.
Lykes Bros. S.S. Co., Inc., D.C.S.D.N.Y.1953, 119 F.Supp. 408; St. Paul Fire
and Marine Ins. Co. v. American Mail Line, D.C.S.D.N.Y.1950, 94 F.Supp. 28;
cf. Ex Parte Collett, 1949, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207; United
States v. National City Lines, 1949, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226
Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 32, 63 S.Ct. 938, 945, 87
L.Ed. 1185
See, e.g., Bankers Life and Cas. Co. v. Holland, 1953, 346 U.S. 379, 74 S.Ct.
145, 149, 98 L.Ed. 106; Ex Parte Fahey, 1947, 332 U.S. 258, 67 S.Ct. 1558, 91
L.Ed. 2041; Roche v. Evaporated Milk Association, 1943, 319 U.S. 21, 63 S.Ct.
938, 87 L.Ed. 1185; Ex parte Roe, 1914, 234 U.S. 70, 34 S.Ct. 722, 58 L.Ed.
1217; Ex parte Harding, 1911, 219 U.S. 363, 31 S.Ct. 324, 55 L.Ed. 252; see
also, Alcoa Steamship Co., Inc., v. Ryan and Knox, 2 Cir., 1954, 211 F.2d 576