The opinion of the court was delivered by: KAUFMAN
The libel in this action was filed on February 6, 1951 and service of citation was made upon the respondent Isbrandtsen Company, Inc. on February 7, 1951. On March 20, 1951 respondents' proctor filed a document described as a 'Suggestion of Want of Jurisdiction and Exceptive Allegations in Support Thereof'. On April 11, 1951 respondent Isbrandtsen filed 'Exceptions' to the libel; on April 13, 1951 respondent filed 'Additional Exceptions' and on April 18, 1951 served 'Supplemental Exceptions'.
Libellant has moved to bring the first 'document' on for hearing and has also moved to dismiss the exceptions to the libel in the various forms presented as being filed too late. Rule 13 of the Admiralty Rules of this Court requires that '* * * exceptions to the libel * * * shall be filed within three weeks after the return day, or within such further time as may be allowed.'
No further extension of time was granted here.
The motion to dismiss the 'Exceptions', 'Additional Exceptions' and 'Supplemental Exceptions' filed on April 11, 1951 and subsequent thereto is hereby granted.
However, proctor for the respondents upon the argument of the motions stated that his 'exceptions' are substantially the same as his 'Suggestion of Want of Jurisdiction and Exceptive Allegations' and merely questions the jurisdiction of the Court to adjudicate this action. Since the question of jurisdiction can be raised at any time, and since the objections of respondent Isbrandtsen are limited substantially to this point, a determination of the question of jurisdiction will be made.
Briefly the facts in this action are as follows: The libel alleges that on January, 9, 1950 the vessel Flying Arrow, owned by respondent Isbrandtsen Company, Inc. was shelled by the Chinese Nationalist warship Yung Feng in Chinese waters; that the Flying Arrow was damaged and on fire; that the Black Swan rendered assistance to the Flying Arrow in putting out the fire and saving the ship; and therefore the British Government as owner of the Black Swan brings suit for salvage.
The respondent alleges that the libel is a British tax on American vessels; that since the United States Government has never asked salvage for rescuing British merchant vessels, that 'comity' prevents the British Government from bringing this libel; and that salvage suits cannot be brought by a warship or on behalf of services rendered by a warship.
The first two points mentioned above and others alleged by proctor for the respondents are without merit. For example, 'comity' has been grossly misused by the proctor for respondents. Comity refers to courtesies extended to foreign governments in our courts and is usually extended to those countries granting our nation reciprocal courtesies in their courts. Merely because our Government has not seen fit to bring salvage actions in the British courts does not require that we forbid our courts to such suits by the British Government. If the British refused to permit the United States to bring such suits in their courts, then possibly we would deny them access to our courts for such suits on 'comity' grounds (or lack of comity). Perhaps an outgrowth of suits like the instant one might be the bringing of salvage suits by the United States Government or its warships for service to British merchantmen, but be that as it may, as yet 'comity' does not enter the picture.
As to the third point raised by the respondent- that warships (or their governments) cannot sue for salvage services, the legal authority is completely contrary to respondent's view.
As it is stated in Volume 1, Benedict on Admiralty:
'The right to salvage depends solely upon the consideration that property has been saved to the owner from maritime peril by one who has no such relation to it as contractually obligates him so to save it.' (p. 334.)
'Salvage does not depend upon the character of the parties rendering the service nor upon the character of the assistance rendered, nor upon the kind of peril or cause of loss, nor upon the national character or ownership of the property saved or of the owners.' (p. 335.)
'Salvors may be persons in the employ of the nation as officers and seamen of vessels of war. * * *' (p. 336.)
'The government does not ordinarily ask for salvage when services are rendered by its public vessels, whether of the military establishments- the Navy and the Army- or by the Coast Guard, the Lighthouse Service, and the like, and the personnel have no right to ...