The opinion of the court was delivered by: Juergens, District Judge.
Big State Barging Company (hereinafter referred to as
respondent) moves to quash and set aside second attempted service
of process and to dismiss.
In support of its motion respondent alleges that the first
attempted service of process herein was set aside and quashed by
agreement of the parties; that thereafter on or about August 16,
1960, service of process was again attempted to be made on
respondent by a Deputy United States Marshal of the Southern
District of Texas delivering to an officer of respondent in
Houston, Harris County, Texas, a copy of what was designated as
"first alias monition," issued by the Clerk of the United States
District Court for the Eastern District of Illinois, together
with a copy of the libel. Respondent asserts that service of
process in an admiralty action may not validly be made outside
the district in which the suit is pending, much less outside the
state in which the suit is pending, and points out that since
this suit is pending in the Eastern District of Illinois, the
attempted service of process is wholly void and invalid and
should be quashed and set aside.
Respondent alleges that it has no officer or agent within the
Eastern District of Illinois or within the State of Illinois;
that it is not now and was not at the time of the institution of
this suit doing business in the State of Illinois and was not and
is not now present in the State of Illinois so as to be subject
to the jurisdiction of this Court.
The libelants aver, inter alia, that the respondent, Robert
Peddie, was the owner and operator of a barge landing service and
fleet located on the Ohio River at Cairo, Illinois, where he
furnished landing service to barge lines, barge owners and tow
boats operating on the Ohio and Mississippi Rivers; that the
respondent, Big State Barging Company, was the owner and operator
of a vessel named M/V Chemical State; that on January 26, 1959,
due to the negligence and carelessness of one or both of
respondents, individually and/or collectively, the M/V Chemical
State was caused or permitted to become loose from its moorings
to the Peddie Barge Landing and to become adrift in the current
of the Ohio River and negligently and carelessly permitted to
collide and come in contact with several fleets of barges which
were moored down river, causing said fleets, among which were the
barges of the libelants, to become loose from the moorings and
become adrift in the current and collide with one another or with
bridge piers or other objects, causing damage to certain
specified barges belonging to the respondents.
The assertions of respondent concerning the mode, method and
place of service establish that process was served on an officer
of the respondent by a Deputy United States Marshal in Texas and
that the process was issued out of the United States District
Court for the Eastern District of Illinois. There is no dispute
but that service was made on an officer of the respondent — the
impropriety of service being based rather on the service of
monition being made in the State of Texas, outside the State of
It cannot be successfully contended that the respondent was not
at the time of the occurrence out of which this action arises
present in the State of Illinois.
The authorities disclose that the State of Illinois and the
State of Kentucky have concurrent jurisdiction "on" the Ohio
River over so much of the Ohio River as flows between them.
"But jurisdiction, whatever else or more it may
mean, is jurisdicto, in its popular sense of
authority to apply the law to the acts of men.
(Citations omitted). What the Virginia compact most
certainly conferred on the states north of the Ohio
was the right to administer the law below low-water
mark on the river * * *." Wedding v. Meyler,
192 U.S. 573, 24 S.Ct. 322, 324, 48 L.Ed. 570.
"Concurrent jurisdiction" such as exists between these states
means "Jurisdiction, unqualified, being, as it is, the sovereign
authority to make, decide on, and execute laws, a concurrence of
jurisdiction * * *." Wedding v. Meyler, 192 U.S. 573, 24 S.Ct.
322. The State of Illinois has, at least, concurrent jurisdiction
over that part of the river upon which the alleged acts of
negligence were committed.
It is beyond dispute that the jurisdiction of the legitimate
protective policy of the State of Illinois extends to acts
committed on so much of the Ohio River as passes its border; and
the alleged act was committed within an area over which the State
of Illinois has jurisdiction. That the State of Illinois has
power to provide for the redress of wrong committed within its
jurisdictional area is not open to dispute.
Respondent does not assert that the service of process here
attempted would have been invalid if it had been made in a civil
action but strongly urges that the admiralty rules are not so
flexible as to provide the method of service which would be
authorized in a civil action. In this contention respondent is in
Jurisdiction in admiralty cases is not less extensive than in
civil cases. To the contrary, the courts have consistently ruled
that service of process in admiralty cases is far more liberal in
many instances than is service of process in civil cases.
The United States Supreme Court in In re Louisville
Underwriters, 134 U.S. 488, 10 S.Ct. 587, 589, 33 ...