Journal of Maritime Law & Commerce
Vol. 31, No. 4 (October 2000)BR>
Reprinted from "Admiralty Law in Popular Culture", a
special
issue published in 2000 by the Journal of Maritime
Law and
Commerce, a quarterly devoted to maritime law,
with the
permission of the Journal and the Jefferson Law
Book Company.
Poetry and the Silver Oar
EDWARD V. CATTELL, JR.*
I
INTRODUCTION
The theme of this issue of the Journal
is "Admiralty Law in Popular Culture." The topic of this piece is admiralty
law as expressed in poetry. Perhaps, one might think, admiralty law and
poetry are like the proverbial oil and water: they do not mix.1
Nothing, however, could be farther from the truth.
There is romance in the sea. There are romantics
on the sea. They sometimes venture ashore and into chambers and offices
with Big Brass Doors. Admiralty law is commercial law. The principal reason
for going to sea always has been, and remains, commercial. Whether the
ship carries one's own goods, or someone else's, or protects the sea lanes
so that commercial vessels may pass unmolested, commerce is the root cause
of shipping.
Commercial fishing vessels and passenger vessels,
which carry vacationers for hire, are engaged in commercial activity. Even
yachtsmen, those hardy souls who spend great sums of money to be cold and
wet, or hot and wet, depending on the latitude, are commercial in their
litigation--suing over insurance, charters, and mortgages. But this digression
grows too long. Our purpose is to survey the poetic soul of admiralty law.
[525]
II
THE RHYMING JUDGE
We begin our examination with Mackensworth
v. American Trading Transportation Co.,2
a decision by the Honorable Edward R. Becker, now a senior judge on the
United States Court of Appeals for the Third Circuit, written when he sat
on the United States District Court for the Eastern District of Pennsylvania.
In Mackensworth, the question arose
whether a single port call by a merchant vessel was sufficient for the
court to exercise in personam jurisdiction over the ship's owner. Poetry
was initially injected into the case when Harry Lore, the plaintiff's counsel,
included a limerick in his brief. When defense counsel E. Alfred Smith
responded in kind, Judge Becker, his muse in high gear, created a rhyming
masterpiece:3
The motion now before us
has stirred up a terrible fuss.
And what is considerably worse,
it has spawned some preposterous doggerel verse.
The plaintiff, a man of the sea,
after paying his lawyer a fee,
filed a complaint of several pages
to recover statutory wages.
The pleaded facts remind us of a tale that is endless.
A seaman whom for centuries the law has called "friendless"
is discharged from the ship before voyage's end
and sues for lost wages, his finances to mend.
The defendant shipping company's office is based in New
York City,
and to get right down to the nitty gritty,
it has been brought to this Court by long arm service,
which has made it extremely nervous.
Long arm service is a procedural tool
founded upon a "doing business" rule.
But defendant has no office here, and says it has no
mania
to do any business in Pennsylvania.
Plaintiff found defendant had a ship here in June '72,
[526]
but defendant says that ship's business is through.
Asserting that process is amiss,
it has filed a motion to dismiss.
Plaintiff's counsel, whose name is Harry Lore,
read defendant's brief and found it a bore.
Instead of a reply brief, he acted pretty quick
and responded with a clever limerick:
"Admiralty process is hoary
With pleadings that tell a sad story
Of Libels in Rem--
The bane of sea-faring men
The moral:
Better personally served than
be sorry."
Not to be outdone, the defense took the time
to reply with their own clever rhyme.
The defense counsel team of Mahoney, Roberts, & Smith
drafted a poem cutting right to the pith:
"Admiralty lawyers like Harry
Both current and those known from lore
Be they straight types, mixed or fairy
Must learn how to sidestep our bore.
For Smith, not known for his mirth
With his knife out for Mackensworth
With Writs, papers or Motions to Quash
Knows that dear Harry's position don't wash."
Overwhelmed by this outburst of pure creativity,
we determined to show an equal proclivity.
Hence this opinion in the form of verse,
even if not of the calibre of Saint-John Perse.
The first question is whether, under the facts,
defendant has done business here to come under Pennsylvania's
long arm acts.
If we find that it has, we must reach question two,
whether that act so applied is constitutional under Washington
v. International Shoe.
Defendant runs a ship known as the SS Washington Trader,
whose travels plaintiff tracked as GM is said to have
followed Nader.
He found that in June '72 that ship rested its keel
and took on a load of cargo here which was quite a big
business deal.
In order for extraterritorial
jurisdiction to obtain,
it is enough that defendant do a single act in Pa. for
pecuniary gain.
And we hold that the recent visit of defendant's ship
to Philadelphia's port
is doing business enough to bring it before this Court.
[527]
We note, however, that the amended act's grammar
is enough to make any thoughtful lawyer stammer.
The particular problem which deserves mention
is whether a single act done for pecuniary gain also
requires a future intention.
As our holding suggests, we believe the answer is no,
and feel that is how the Pa. appellate cases will go.
Further, concerning § (a)(3)'s "shipping of
merchandise"
the future intention doctrine has already had its demise.
We do not yet rest our inquiry, for as is a judge's bent,
we must look to see if there is precedent.
And we found one written in '68 by three big wheels
on the Third Circuit Court of Appeals.
The case, a longshoreman's personal injury suit, is Kane
v. USSR,
and it controls the case at bar.
It's a case with which defendants had not reckoned,
and may be found at page 131 of 394 F.2d.
In Kane, a ship came but once to pick up stores
and hired as agents to do its chores a firm of local
stevedores.
Since the Court upheld service on the agents, the case
is nearly on all fours,
and to defendant's statutory argument Kane closes the
doors.
Despite defendant's claim that plaintiff's process is
silly,
there have been three other seamen's actions against
defendant, with service in Philly.
And although they might have tried to get the service
corrected,
the fact of the matter is they've never objected.
We turn then to the constitutional point,
and lest the issue come out of joint,
it is important that one thought be first appended:
the reason the long arm statute was amended.
The amendment's purpose was to eliminate guess
and to extend long arm service to the full reach of due
process.
And so we now must look to the facts
to see if due process is met by sufficient "minimum contacts."
The visit of defendant's ship is not yet very old,
and so we feel constrained to hold
that under traditional notions of substantial justice
and fair play,
defendant's constitutional argument does not carry the
day.
This Opinion has now reached its final border,
and the time has come to enter an Order,
which, in a sense, is its ultimate crux,
but alas, plaintiff claims under a thousand bucks.
So, while trial counsel are doubtless in fine fettle,
with many fine fish in their trial kettle,
we urge them not to test their mettle,
because, for the small sum involved, it makes more sense
to settle.
In view of the foregoing Opinion, at this time
we enter the following Order, also in rhyme.
[528]
ORDER
Finding that service of process is bona fide,
the motion to dismiss is hereby denied.
So that this case can now get about its ways,
defendant shall file an answer within 21 days.4
III
THE POETIC PROCTOR
In addition to the bench, the bar has been
poetic in dealing with admiralty law. Perhaps the most accomplished proctor-poet
was the late James A. Quinby of San Francisco, the author of The Street
and The Sea.5
Mr. Quinby's collection celebrates various topics near and dear to
admiralty lawyers. Among his finer works are these:
[529]
STARBOARD
In collisions at night it's the ship on the right
That is given the best of the deal,
And the left-handed lad is always in bad
With inspectors and courts of appeal.
So listen to me you chauffeurs of the sea,
If you want to get up and ahead,
Keep a stiff upper lip when about to be hit,
And always get smacked on the red.
For the rules of the road place a top-heavy load
On the sailor who sticks out his green,
When it's logically shown what he ought to have blown
And the things that he ought to have seen.
If your course isn't right with the rule of the light,
Just swing her, and swing her wide,
Then later you'll swear with your hand in the air,
You were struck on the south-paw side.6
WITNESS
When interviewed at home, he states
All relevant details.
On distances--on names and dates,
His memory never fails.
But under oath, before the court,
His confidence has flown.
His memory for names is short--
He can't recall his own.7
NO DOUBT
I have studied all the clauses of my cargo policy
And there comes into my mind a growing doubt,
For the very things the underwriter ought
to guarantee
Seem to be the things I'm warranted without.
There is happy indecision as to whom I notify
When my goods are sunk or injured in a crash,
But one thing's set to catch the eye in glaring letters
plain and high,
The premium is payable in cash.
I can't quite get it clear about these perils of the sea,
Or exactly what is meant by F.P.A.,
Or why they have to mention "thieves" and later say to
me
[530]
That theft's a thing for which they
cannot pay.
But when I'm worn and troubled as to what these phrases
are
And I fear I'll never, never understand,
One item shines afar like a bright and guiding star--
The premium's due and owing on demand.8
IV
CONCLUSION
There are a number of other works of lyric
bliss on the subject of maritime law.9
However, the Journal's Editor has sharply limited the allotment of space
so as to allow you, the gentle reader, to learn of other artistic delights.
[531]
ENDNOTES
* Shareholder, Hollstein Keating Cattell Johnson &
Goldstein P.C. (Philadelphia). B.S., United States Merchant Marine Academy;
J.D., Rutgers University (Camden). The permission of Carter Quinby, Esq.,
to reprint the poems that appear in Part III of this article is gratefully
acknowledged.
1. Actually, oil and water do mix from time to time.
See, e.g., Matter of Oil Spill by Amoco Cadiz Off Coast of France on March
16, 1978, 954 F.2d 1279, 1992 AMC 913 (7th Cir. 1992). That, however, is
a topic for a different article.
2. 367 F. Supp. 373, 1974 AMC 237 (E.D. Pa. 1973).
3. American Maritime Cases and West Publishing Company
were infected as well, and put the syllabus and headnotes in rhyme. AMC,
for example, digested the case as follows:
In a ruling full of reason and of rhymes, the Pennsylvania
District Court opines that the local "long arm" law has no Constitutional
flaw. Since the ship came into port, there's jurisdiction in the Court.
Despite the undisputed fact that this single sole contact dated back to
'72, the "process" issued was quite "due."
1974 AMC at 237. Unfortunately, Shepard's Citations was not able to follow
suit.
4 367 F. Supp. at 374-77 (footnotes omitted). Subsequently,
the parties settled the dispute, which led to yet another rhyming order
by Judge Becker:
On the nineteenth day of last November,
The poetic genre we did dismember,
By denying a motion to dismiss with a rhymed Opinion,
That probably should never have gotten a "beginion."
We suggested in the Opinion's penultimate stanza,
That the trial of the case would be no bonanza.
In other words, we gave the lawyers a hint that
In pursuing the case they would not make a mint.
We urged the parties to compromise the claim,
Suggesting that was the right way to play the game.
And, showing how much our remarks had them nettled,
Counsel have proceeded to get the case settled.
Accordingly, upon Order of the Court,
Pursuant to the provisions of local civil rule 23b,
IT IS ORDERED that above action is dismissed
with prejudice, pursuant to agreement of
counsel without costs except as provided
by Local Rule 38d.
Having thus quenched our versifying desire,
(And for fear of sinking further into the mire,
Fulfilling many predictions dire,)
We announce that, from opinions in rhyme we hereby retire.
Henceforth, though it may cause our few readers to doze,
Our judicial writings will be in prose.
1974 AMC at 243.
5. J. Quniby, The Street and The Sea (1971).
6. Id. at 23.
7. Id. at 10.
8. Id. at 45.
9. See, e.g., Black, Skin Diving, 3 New Orleans Poetry
J. 11 (Jan. 1957), reprinted at 28 J. Mar. L. & Com. 540 n.145 (1998);
Butler, General Average: A South Street Eclogue, in J. Croke, Poems of
the Law (1885); Currie, Koistinen v. American Export Lines, in C. Harvey,
Legal Wit & Whimsy: An Anthology of Legal Humour(1988);
Field, Frankfurter, J., Concurring, 71 Harv. L. Rev. 77 (1957). |
