PURE OIL CO. v. SUAREZ
Legal provision: 28 U.S.C. 1391
Argument of Eberhard P. Deutsch
Chief Justice Earl Warren: Number 692 Pure Oil Company Petitioner, versus Pascual Suarez.
Mr. Eberhard P. Deutsch: Mr. Chief Justice may it please the Court.
This was an action instituted by a seaman who was a resident of the northern district of Florida against the petitioner here, the respondent below, Pure Oil Company instituted under the Jones Act in the southern district of Florida in which the petitioner, Pure Oil Company does business.
It is however an Ohio Corporation with its principal office in the northern district of Illinois.
At this point I should like briefly to trace a phase of the legislative history of the Jones Act which strangely has never been discussed in any of the decisions in this or any other cases involving anything in the nature of the issue here presented.
It has been stated frequently that the purpose of the Jones Act was to expand the rights of seamen and I think that is true except in the point here at issue on which the legislative history demonstrates that it was expressly and clearly intended to restrict the venue of seaman’s actions under the Jones Act.
That the statute in the course of its enactment was part of the Merchant Marine Act of 1920 and the Jones Act itself was the creature of Senator Wesley Jones of the State of Washington who proposed it to give seamen the right of action for negligent, the sort of common law right of action in federal and state courts to be governed, as it came out originally, by the provisions of a Federal Employers Liability Act.
The house objected to that latter provision insofar as venue was concerned because the Federal Employers Liability Act provides for venue in any jurisdiction in which the respondent is doing business.
After three or in the course of three-senate house conferences the position of the house of representatives was to accepted for the senate conferees and the statute was enacted to provide that only the Court of the residence or of the principal office of the respondent should have jurisdiction as it is called and now that has been held to mean venue.
I repeat that that restrictive provision in the statute, the legislative history regarding that, has never been mentioned by any court so far as I know in this or in any of the other cases and there have been several, three at least, involving the precise point at issue here.
It was discussed.
It was put in the briefs.
It was put in application for rehearing in the Court below in this case.
It was argued.
It was presented and the matter was not mentioned.
Now until 1948 with the revision, general revision of the judicial code, the word residence was taken to mean with regard to corporate entities the state of incorporation.
In the overall revision of the judicial code in that year which expounded the term it was given in effect meaning to apply to any jurisdiction to any district in which the respondent did business.
Justice William J. Brennan: Well that you referred, it applied to [Inaudible] that would put it on the same basis as FELA's, is that right?
Mr. Eberhard P. Deutsch: That's correct.
Justice William J. Brennan: As you mentioned?
Mr. Eberhard P. Deutsch: That's correct.
That's why I mentioned –
Justice William J. Brennan: The 1948 statute is more a general application, is that right?
Mr. Eberhard P. Deutsch: The 1948 statute is the general judicial code 1391 (c) which does provide without question and unequivocally that the term residence for venue purposes shall be taken to include any district in which the respondent corporation is licensed to do or is doing business.
Justice William J. Brennan: But your proposition is going to be not so as the Jones Act?
Mr. Eberhard P. Deutsch: Right.
That is my proposition.
Justice William J. Brennan: Yes.
Mr. Eberhard P. Deutsch: Now, this Court has had a case to consider that question with regard to a somewhat similar and somewhat different provision of the judicial code itself dealing with patent litigation which also provides a specific venue within which patent litigation may be instituted.
As it stood prior to 1948, it provided for immediate purposes in any district of which the defendant is an inhabitant.
Justice William J. Brennan: Is that code you're --
Mr. Eberhard P. Deutsch: Pardon?
Justice William J. Brennan: What code you're --
Mr. Eberhard P. Deutsch: 1400 (b)
Justice William J. Brennan: No, I mean the Fourco decision.
Mr. Eberhard P. Deutsch: Fourco, Fourco Glass.
Now in the overall revision of the judicial code they were inhabitant in the patent section which changed to residence that is the same statute which provided in 1391 (c) that the term residence for venue purposes should be taken as meaning let us say in an over simplification any district in which the corporation does business.
So that by the same statute the word inhabitant in the patent section was changed to residence and the term residence and another part of that same statute was said to mean such and such for venue purposes.
Now this Court nevertheless held in that Fourco case that the general statute did not change the special venue provision with regard to patent cases.
The ratio decidendi of the court below, the Fifth Circuit in this case, is expressed in its postulate and I quote, that there is a shocking inconsistency in a rule of law which permits a corporation to maintain the regular establishment – a regular established place of business in the district, but allows the corporation to insist on a trial of the factual issues in the district in which it is incorporated or in which its principal office is located.
The Fourth Circuit has reached the same conclusion as the Fifth in a recent case decided just two or three months ago.
In United Fruit case they reversed the District Court and they held much to the same of fact that there would be that that principle for which I stand here at the time at this moment would be obviously unfair.
Now, we submit that that is a matter for Congress to determine and not for this Court in light of the other factors involved.
But I do say that (a) the legislative history of that provision of the Jones Act has never been mentioned, that it has a specific restrictive effect, that in calling this shockingly unfair these courts forget that for 30 years that was an unchallenged rule laid down by the Congress as a result of this legislative history, it couldn't have been so shockingly unfair and that in the Fourco case this Court held that no changes in the policy were to be presumed, then they quoted Professor Morris stating that the – as I read him and this Court apparently read it the same way that the venue provisions were not intended special venue provisions as I read it were not intended to be changed by the overall general provision of the judicial code.
In the Third Circuit, the court has specifically followed the position which we have presented that is that the Fourco case compels a holding that the general venue provision of the 1948 code does not supersede the special venue provision of the Jones Act.
And we simply submit, and may it please the Court that this is a matter for the Congress to determine with regards to the questions of say forum shopping or others because in modern times briefly this does not apply simply to two or three court jurisdictions in which matters of this sort can come up.
The Pure Oil Company, the petitioner in this case so far as I know certainly for practical purposes could be sued in any state of the union and if the plaintiff in the Jones Act case saw fit under this broad construction he could go and cue them in Nebraska if he thought he could do better there than in Florida, New York or elsewhere.
This is not – and that is true I would say if all of – let's say of all of the oil companies of the tanker companies and so on.
And as Mr. Justice Fortas wrote in the Brumley and United Steel Workers case, the proper forum to which in our submission to submit a matter of this sort is the Congress and not this Court.
Chief Justice Earl Warren: Mr. Roth?
Argument of Arthur Roth
Mr. Arthur Roth: Mr. Chief Justice and members of the Court.
This is basically a situation where the defendant does not want to be sued in the most convenient form and is now coming into this Court to take a seamen away from his residence which is in Florida place where he was born, place where he was employed, the place where he basically did his work as this – he worked on this vessel for four years.
The vessel traveled – he would get on the vessel at either Tampa or Port Everglade which is slightly north of Miami.
Whenever he would come back from vacations or leave of things of that type, and the vessel would fly between Houston and supply pure oil gasoline in Tampa or in Miami or Jacksonville and sometimes up to Savannah and then circuit back and this is –
Justice William J. Brennan: I gather the fact is Mr. Roth that this at all happened before 1948 he could not have sued it in Florida, could he?
Mr. Arthur Roth: Well he could have in state courts but –
Justice William J. Brennan: No I mean he'd decide --
Mr. Arthur Roth: For a civil and jury trial in the federal courts I don't think --
Justice William J. Brennan: He would have to go either where Pure Oil was incorporated or where it has principal offices.
Mr. Arthur Roth: That's right, that's what he would have gone before 1940 --
Justice William J. Brennan: Well suppose the issue really is not based on how hard it may be if upon him to do it but whether indeed the 1948 statute did allow him to bring an action further doesn't it?
Is that the relation?
Mr. Arthur Roth: Yes, the question is whether or not the Congress had intended to make a – to facilitate the bringing of suits by plaintiffs against large corporations.
Justice Hugo L. Black: Where would the suit have to be tried?
Mr. Arthur Roth: Sir?
Justice Hugo L. Black: If the other side wins?
Mr. Arthur Roth: In Chicago.
Justice Hugo L. Black: Chicago?
Mr. Arthur Roth: Yes sir.
Justice Potter Stewart: He could bring it.
No question that he could bring it to the state court of Florida, isn't it?
Mr. Arthur Roth: There's no question about that but the problem in the state court is basically one of the discovery where we don't have the privilege of taking a subpoena and sending it out to a marshal in Texas or a marshal in Savannah where the man was treated for his injuries and having a subpoena issued and this is really the basic issue and the second basic issue is that the state judges have – do not have the same understanding concept of the Jones Act that seamen problems says to the federal judges --
Justice Hugo L. Black: Does the forum non conveniens statute have any relevance in your mind to this issue?
Mr. Arthur Roth: We were asked that below and I would put it this way Mr. Justice Black that the forum non conveniens statute would be, I think basically, available to a defendant rather than to a plaintiff because if we were to file a suit to say in Chicago and then come in and say to the judge in Chicago we want to go down to Tampa or Miami which is the real forum where this case should be trialed we would somewhat be I mean how can we ask the judge when he says you came here to stop well this was your election.
And so --
Justice Hugo L. Black: I assume he did sue in Miami in the federal courts that the defendant could have – if they could prove it and have it removed in Chicago under – be more convenient forum.
Mr. Arthur Roth: Yes because this was the very purpose of 1404 where they point that at the FELA was the real reason that 1404 and that is Federal Employees Liability Act which is incorporated in the Jones Act that 1404 revise's purpose clause that it was the FELA that made 1404 the forum non conveniens statute a necessity because the railroad workers were bringing their cases in the most profitable forum and the railroads couldn't change the forum and the 1948 revision amended the venue of -- and in fact amended the venue, the general venue provisions and permitted the transfer to a more convenient forum where the witness would be –
Justice Hugo L. Black: When was the forum non conveniens statute passed?
Mr. Arthur Roth: 1948.
Justice Hugo L. Black: 1948?
Mr. Arthur Roth: Yes it is –
Justice Hugo L. Black: When did this take place, this statute?
Mr. Arthur Roth: 1391 and 1948 they are both –
Justice Hugo L. Black: Both in 1948?
Mr. Arthur Roth: Yes sir.
Justice Hugo L. Black: Were they a part of the same procedure?
Mr. Arthur Roth: Yes of the same revision of the judicial code.
Justice Hugo L. Black: Same revision?
Mr. Arthur Roth: Yes sir.
They were both passed on June 25th, 1948 I believe was the effective date of the statute.
The purpose of the statute or the revision as I understood the attorney general's report to the Congress at that time was that it was to reconcile the old laws.
Now in the Jones Act it merely says residence and we can understand that in 1920 in the give and take when the ship owners didn't want more liberal provision for seamen when they didn't want seamen to have a better access to the courts that there had to be some give and take and I can understand this three conferences between the Senate and the House.
But 1948 when this Court and the other courts have implemented and said that this is remedial legislation that should be liberally construed so as to afford a remedy to the seamen that at that time when the judicial code was enacted this was a remedial legislation to liberalize the access of the courts to plaintiffs.
Justice Hugo L. Black: Have there been any cases that plaintiffs have filed in the jurisdiction 408 from the place where it happened and then plaintiff asked to have it moved to a place where it's more convenient?
Mr. Arthur Roth: I couldn't find a single case on point.
Now in the liberalization of the courts making it more accessible, readily available I believe is the term that the Congress or the revises of the judicial code used, that at that time I believe that I don't read that the Congress at that time meant to exclude seamen where as they might give the remedy to a – I'll put it this way.
They certainly meant to give the remedy to the victim of an automobile accident if a Pure Oil truck as we say in our brief were to have an accident with an automobile in Miami there's no question Pure Oil could be sued in Miami under the statute.
Now I don't think that the Congress and the Fifth Circuit below and the Fourth Circuit both agreed on this point that Congress intended that the seamen should have 1924 less rights than those victims.
Now as I understand that gist of the – thrust of the petitioner's argument is that since the Congress didn't mention the Jones Act as intended to be revised and consequently there should be no revision of the Jones Act venue intended by Congress or given by Congress.
Well Congress didn't mention any type of lawsuit in the revision of 1391, Section 1391.
So to what does the revision apply?
Certainly the statute was changed.
Congress certainly changed the common law when it said, “From now on the venue shall be wherever that corporation was doing business,” which every district is doing business in.
Certainly Congress didn't say that well we don't want to restrict it to the Jones Act we got to state the Jones Act well which that – which actions did Congress made, or was the whole revision just meaningless?
I don't think the revision was meaningless.
Justice William J. Brennan: But suppose it might have had some special reference to diversity cases?
Mr. Arthur Roth: No sir, I look through the revision and I couldn't find in the notes or the revises and there is no reference to anything specific.
Justice William J. Brennan: Well it would be very significant though wouldn't it if diversity cases, suits against the corporations that they might be sued with any – might spread the work around instead of concentrating in some district?
Mr. Arthur Roth: Yes, this is what I'm going to come to Mr. Justice Brennan.
The fact is that in their petition the petitioner states that of some 3200 Jones Act cases which ought to be filed or were filed in 1965 over 1,000 of them or 1/3 of them were filed in the Fifth Circuit.
Now the corporations don't do business in the Fifth Circuit.
They do their business -- I mean they have their principal offices and their incorporating offices in Delaware and New York and Chicago.
They don't – a very few of the corporations, the big ship owners have their principal place of business in the Fifth circuit.
Now certainly is it their intention to deprive the seamen of their forum.
Now if we were to file a case in a forum as the petitioner suggests let's say in Nebraska certainly the 1404 (a) statute is available to transfer because the very purposes I stated before was the FELA -- to get at the FELA cases.
It revises notes indicate as to get at the FELA cases.
Justice William J. Brennan: Now get at them in what way?
Mr. Arthur Roth: Sir they wouldn't be filed in inconvenient forms.
And have them transfer -- so that it can be transferred to the more convenient forms where the witnesses are located.
Justice William J. Brennan: I don't follow that.
FELA actions always as I understand it could be brought wherever the corporation did business.
Mr. Arthur Roth: That's right.
Justice William J. Brennan: It was Jones Act cases that were limited to principal office or state of incorporation, is that right?
Mr. Arthur Roth: That's right.
Justice William J. Brennan: But now you say what revise would say about the FELA is?
Mr. Arthur Roth: When section 1404 was enacted in 1948 at the same time of the revision, the intent of the Congress was to get at this provision of the FELA where they could bring it in any district they wanted so that these railroads could transfer to the more convenient forum.
So that the argument that is made by the petitioner here that we could bring our case in Los Angeles or Nebraska doesn't bear weight because the Jones Act and FELA being in effect one, indicated, I mean the Congress indicated at that time that they were going to get at the FELA cases from – so that the plaintiffs the injured railway worker wouldn't be able to bring it at any forum he want, that he'd have to come into the more convenient forum at the it is at the petition of the railroad.
When they enacted the statute in 1404 at the very --
Justice William J. Brennan: Let me see if I follow this Mr. Roth.
Mr. Arthur Roth: Yes.
Justice William J. Brennan: You say FELA actions before 1948 to be brought at any district or the corporation business?
Mr. Arthur Roth: Yes sir.
Justice William J. Brennan: Where the railroad business, anyone.
And at the 1948 the revision contemplated, what, that these cases should be funneled into a more convenient forum?
I don't understand it.
Mr. Arthur Roth: Yes.
Now what section 1404 (a) the transfer, the venue transfer section was enacted the revises specifically stated that the purpose of the revision to allow a transfer from the forum as soon as it began to a more convenient forum –
Justice William J. Brennan: In other words a railroad could come in the District Court the suit was brought to say no, this is not the phase that should be tried, transfer it somewhere else.
Mr. Arthur Roth: No, they would have to come and make a showing under the section to say so we have all the witnesses here the man was injured in this district, he was treated in this district, most of our witnesses live in this district that means when the railroad made a proper showing --
Justice William J. Brennan: Now if you say had to make a showing, you say the reason for 1404 is that the number in the 1948 Act was in the railroad to have it transferred out of the District Court where it was brought to some other more convenient forum if there was one?
Mr. Arthur Roth: That's right and the same thing of course --
Justice William J. Brennan: Now what bearing does that have an issue before us?
Mr. Arthur Roth: Well it was to answer the argument of the petitioner that we could bring a case against Pure Oil Company in any district of the country practically because they are doing business in any district of the country and –
Justice William J. Brennan: Your point is if you prevail here what will happen is that the Pure Oil Company could do at any railroad can do as the FELA suit namely transfer it to a more convenient forum, doesn't it?
Mr. Arthur Roth: Yes, this is -- now I would say this that if they can do that with the Jones Act case, this is a change of venue in a Jones Act case.
This is in effect modifying the venue provisions on the Jones Act that is and it modifies the venue provisions of every statute, every venue statute because there was no transfer of forum for convenience at common law and by the enactment and application of the transfer statute this is in effect a modification of the common law venue.
We state at the –
Justice William J. Brennan: I wonder if I understand this Mr. Roth that are you suggesting here that we should agree that Congress by the 1948 provision permitted Jones Act cases to be brought wherever the corporate defendant did business because the corporate defendant's interest could be protected by the transfer provisions under 1404, is that the same?
Mr. Arthur Roth: Exactly.
I think that was the intention of 1404.
Justice John M. Harlan: What bearing do you think the Fourco case has?
Mr. Arthur Roth: I think the Fourco case as all of the tax writers have stated and as the two decisions below that is the Fourth Circuit in the Fanning case that came out just a couple of months ago and below, that the Fourco case applies solely to the patent statute because of the very peculiar issues involved in patent violations and patent trials.
So I think Professor Moore pointed it out, I believe Barron & Holtzoff pointed out that that's what it implies to and the Michigan Law Review article which is cited by both the courts below the Fourth and the Fifth Circuits point out that even in that and at the Fourco case is severely criticized because it doesn't take into account the remedial purpose of the 1948 revision of the judicial code.
Although I believe that this Court in the Fourco case pointed out that the venue of provisions must be met only by residence coupled with the violation of the patent.
I believe that the reasons given by Judge Sobeloff below are most compelling.
The opinion is quoted extensively in our brief and one more point I would like to make I believe and we urge that the residence, now if the 1948 revision of the code had any purpose, it would be as the court below stated of course to define what is residence?
Now residence has a common law definition.
It means as to corporations.
It means as to corporation the state where the corporation is – where the corporation exists where it has been incorporated, but the Congress we state came along for venue of purposes Congress has now defined the term residence in all venue statutes.
The courts below have both stated the same thing that there is now a definition of residence for the purpose of venue that all common law definitions must give way to the congressional definition, statutory definition and we urge that this Court adapt that and a firm on that basis that there is now a definition of residence for venue purposes that the common law cannot supersede the statute, and if Congress once intended, if they had once intended, something else that that intention has been overridden by the statute.
I would further say that the argument that we must petition Congress for every little wrong, I don't think that that was the intention of the judicial code.
The judicial code revision was to take away from Congress all of these petty little matters and to leave it to the courts to apply speedy and accessible remedies to plaintiffs.
Chief Justice Earl Warren: Mr. Deutsch?
Rebuttal of Eberhard P. Deutsch
Mr. Eberhard P. Deutsch: If the Court remains in session a few minutes longer I would be particularly brief.
I daren't remain in my seat and hear that the Fifth Circuit is not important in the shipping business.
The port of New Orleans is in effect the greatest port in the United States, the largest steamship company in the world has its domicile as do a number of great many others and I don't want to be chastised by my chamber of commerce when I return home for not having met that particular challenge.
I do want to say Mr. Justice Black so that there will be no misunderstanding.
We did not move to dismiss this case.
We merely moved to transfer not to take any the statute permits a dismissal.
We did not even moved for dismiss, we merely suggested transfer.
Justice Hugo L. Black: Transfer it to where?
Mr. Eberhard P. Deutsch: To the principal place of business of the corporation.
Justice Hugo L. Black: Where is that?
Mr. Eberhard P. Deutsch: The northern district of Illinois.
Justice Hugo L. Black: Illinois?
Mr. Eberhard P. Deutsch: It's Palatine, Illinois I'm not sure.
Justice Hugo L. Black: Did you move to dismiss it on the ground that the witnesses are there and it would be more convenient to trial on the grounds of the statute?
Mr. Eberhard P. Deutsch: Strictly under the statute.
This would merely transfer under 1404 this is under the Jones Act.
Justice Hugo L. Black: Under the statute?
Mr. Eberhard P. Deutsch: Under the statute.
Justice Hugo L. Black: You didn't ask to move it on the ground of forum non conveniens?
Mr. Eberhard P. Deutsch: Not at all that question didn't arise.
Justice Hugo L. Black: I asked that question because it was rather my impression that the Congress took a new look at all of these thing on forum non conveniens and most of these other troublesome questions were ended by it, I'd hoped?
Mr. Eberhard P. Deutsch: As long as the Congress sits, not as this Court said, as long Congress sits there will be questions which will bother this Court and us, I'm sure at least that it has been my experience --
Justice Hugo L. Black: But I would – it bothered me in the respect that I had an idea that gave a new deal and all that legislation 1948 and they did not intend to have a forum non conveniens statute affect this ploy by keeping old interpretations that no longer fitted the term.
Mr. Eberhard P. Deutsch: That forum non conveniens statute.
The 1404 statute is itself restricted to permit transfers to jurisdictions in which the action might have been brought for instance.
Justice Hugo L. Black: That's right.
Mr. Eberhard P. Deutsch: That wouldn't help him in this case.
Justice Tom C. Clark: So it wouldn't be available to him, wouldn't it?
Mr. Eberhard P. Deutsch: That's right.
Justice Hugo L. Black: So he couldn't move it.
He couldn't bring it up and lose?
Mr. Eberhard P. Deutsch: As plaintiff he could seek to move to any jurisdiction he saw fit, that is within the scope of that statute.
I don't know but if you all remember I do – I presented right here before you the series of three or four cases under the forum non conveniens statute one of them was one in which the plaintiff has sought transfer under the statute and had been successful.
Justice Hugo L. Black: But he couldn't move it back to Miami under your argument.
Mr. Eberhard P. Deutsch: That's correct.
Justice Tom C. Clark: But he couldn't transfer it of the 1404.
Mr. Eberhard P. Deutsch: I'm sorry.
Justice Tom C. Clark: I say he wouldn't be able to transfer it under 1404.
Mr. Eberhard P. Deutsch: He could not transfer them to 1404.
Justice Tom C. Clark: But you wouldn't – that's right.
Mr. Eberhard P. Deutsch: I want to mention very briefly as long as Barron & Holtzoff have been brought up as not, if I understand it, as making the distinction that only the patent cases should be involved.
This is a photocopy of the page from Barron & Holtzoff I read it in a slight amount of difference.
The Supreme Court after some vacillation has now rejected any such reading for the patent infringement cases at least and has held at the special granting statute is not modified about the general provisions of 1391 (c).
This result appears desirable for all such special venue statutes.
We fairly confine that to the patent statutes at all, and --
Justice Byron R. White: What did Mr. Moore say about that?
Mr. Eberhard P. Deutsch: Substantially not quite the same thing.
He says that it's apparently the rule.
Justice Byron R. White: Well don't waste your time, it's all right.
Mr. Eberhard P. Deutsch: I'm sorry I don't -- I did have it here on separate page.
What he says was this rule will undoubtedly be applied to all special venue statute.
I'm not --
Justice Byron R. White: Do you remember what his attitude was before Fourco?
Mr. Eberhard P. Deutsch: Well you will find it quoted in Fourco.
Justice Byron R. White: And it was to the contrary, wasn't it?
Mr. Eberhard P. Deutsch: It says that we did not intend the Congress did not intend the change at these special venue provisions by this general provision in 1391 (c) and this Court quoted into that effect as the consultant who certainly should be in authority on this point.
Now I think you start reading all the different editions, lose leafs of Moore, you can get almost any idea you want depending on what the phase of the matter he is attacking and I don't pretend to quote him as completely authorized and all among because I at least want to be consistent.
But he does do that and I want to mention this one further fact very briefly and that is we have many of the special venue statutes.
They're under the antitrust law.
They're not in the judicial code.
The Interstate Commerce Commission Act suits against the United States involving certain matters and so on and so on.
In each one of those cases now Fourco has been followed to the effect that the general statute 1391 (c) does not affect the special venue statute and each of those cases and all the lower court cases some certain point.
Justice Hugo L. Black: Is it your argument that they must all be together?
That there's just one general blanket holding that was intended to say that without regard to what purpose the statute was passed and I have interpreted it all, you look at this and you say whether you decide that Fourco under this special statute therefore you're going to decide it all maybe that's true, but is that your argument?
Mr. Eberhard P. Deutsch: I think that is the effect of it sir.
I'm -- I don't like to indulge in dicta.
I'd like to stick to my own case if I may.
Justice Hugo L. Black: Well I thought you were going outside of your case, was the reason I asked --
Mr. Eberhard P. Deutsch: I'm trying to avoid it frankly sir.
But insofar as it is necessary and I will be completely frank, I think that each of those special venue statute should be treated as on its own bottom without reference to the general statute which applies principally in diversity action.
Thank you Your Honor.
Chief Justice Earl Warren: Thank you.