author: Mr. Justice Black Mr. Justice Harlan, Mr. Justice Brennan,

text:
    ATLANTIC COAST LINE RAILROAD CO. v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al.
    No. 477.
    Argued March 2-3, 1970
    Decided June 8, 1970

      Dennis G. Lyons and Frank X. Friedmann, Jr., argued the cause for petitioner. With him on the briefs were David M. Foster, John W. Weldon, and John S. Cox.

      Allan Milledge argued the cause for respondents. With him on the brief was Richard L. Horn.

   Mr. Justice Black

delivered the opinion of the Court.

Congress in 1793, shortly after the American Colonies became one united Nation, provided that in federal courts “a writ of injunction [shall not] be granted to stay proceedings in any court of a state.” Act of March 2, 1793, § 5, 1 Stat. 335. Although certain exceptions to this general prohibition have been added, that statute, directing that state courts shall remain free from interference by federal courts, has remained in effect until this time. Today that amended statute provides:

“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U. S. C. § 2283.

Despite the existence of this longstanding prohibition, in this case a federal court did enjoin the petitioner, Atlantic Coast Line Railroad Co. (ACL), from invoking an injunction issued by a Florida state court which prohibited certain picketing by respondent Brotherhood of Locomotive Engineers (BLE). The case arose in the following way.

In 1967 BLE began picketing the Moncrief Yard, a switching yard located near Jacksonville, Florida, and wholly owned and operated by ACL. As soon as this picketing began ACL went into federal court seeking an injunction. When the federal judge denied the request, ACL immediately went into state court and there succeeded in obtaining an injunction. No further legal action was taken in this dispute until two years later in 1969, after this Court’s decision in Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369 (1969). In that case the Court considered the validity of a state injunction against picketing by the BLE and other unions at the Jacksonville Terminal, located immediately next to Moncrief Yard. The Court reviewed the factual situation surrounding the Jacksonville Terminal picketing and concluded that the unions had a federally protected right to picket under the Railway Labor Act, 44 Stat. 577, as amended, 45 U. S. C. § 151 et seq., and that that right could not be interfered with by state court injunctions. Immediately after a petition for rehearing was denied in that case, 394 U. S. 1024 (1969), the respondent BLE filed a motion in state court to dissolve the Moncrief Yard injunction, arguing that under the Jacksonville Terminal decision the injunction was improper. The state judge refused to dissolve the injunction, holding that this Court’s Jacksonville Terminal decision was not controlling. The union did not elect to appeal that decision directly, but instead went back into the federal court and requested an injunction against the enforcement of the state court injunction. The District Judge granted the injunction and upon application a stay of that injunction, pending the filing and disposition of a petition for certiorari, was granted. 396 U. S. 1201 (1969). The Court of Appeals summarily affirmed on the parties’ stipulation, and we granted a petition for certiorari to consider the validity of the federal court’s injunction against the state court. 396 U. S. 901 (1969).

In this Court the union contends that the federal injunction was proper either “to protect or effectuate” the District Court’s denial of an injunction in 1967, or as “necessary in aid of” the District Court’s jurisdiction. Although the questions are by no means simple and clear, and the decision is difficult, we conclude that the injunction against the state court was not justified under either of these two exceptions to the anti-injunction statute. We therefore hold that the federal injunction in this case was improper.

I

Before analyzing the specific legal arguments advanced in this case, we think it would be helpful to discuss the background and policy that led Congress to pass the anti-injunction statute in 1793. While all the reasons that led Congress to adopt this restriction on federal courts are not wholly clear, it is certainly likely that one reason stemmed from the essentially federal nature of our national government. When this Nation was established by the Constitution, each State surrendered only a part of its sovereign power to the national government. But those powers that were not surrendered were retained by the States and unless a State was restrained by “the supreme Law of the Land” as expressed in the Constitution, laws, or treaties of the United States, it was free to exercise those retained powers as it saw fit. One of the reserved powers was the maintenance of state judicial systems for the decision of legal controversies. Many of the Framers of the Constitution felt that separate federal courts were unnecessary and that the state courts could be entrusted to protect both state and federal rights. Others felt that a complete system of federal courts to take care of federal legal problems should be provided for in the Constitution itself. This dispute resulted in compromise. One “supreme Court” was created by the Constitution, and Congress was given the power to create other federal courts. In the first Congress this power was exercised and a system of federal trial and appellate courts with limited jurisdiction was created by the Judiciary Act of 1789, 1 Stat. 73.

While the lower federal courts were given certain powers in the 1789 Act, they were not given any power to review directly cases from state courts, and they have not been given such powers since that time. Only the Supreme Court was authorized to review on direct appeal the decisions of state courts. Thus from the beginning we have had in this country two essentially separate legal systems. Each system proceeds independently of the other with ultimate review in this Court of the federal questions raised in either system. Understandably this dual court system was bound to lead to conflicts and frictions. Litigants who foresaw the possibility of more favorable treatment in one or the other system would predictably hasten to invoke the powers of whichever court it was believed would present the best chance of success. Obviously this dual system could not function if state and federal courts were free to fight each other for control of a particular case. Thus, in order to make the dual system work and “to prevent needless friction between state and federal courts,” Oklahoma Packing Co. v. Cas Co., 309 U. S. 4, 9 (1940), it was necessary to work out lines of demarcation between the two systems. Some of these limits were spelled out in the 1789 Act. Others have been added by later statutes as well as judicial decisions. The 1793 anti-injunction Act was at least in part a response to these pressures.

On its face the present Act is an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions. The respondents here have intimated that the Act only establishes a “principle of comity,” not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by any of the three exceptions. We cannot accept any such contention. In 1955 when this Court interpreted this statute, it stated: “This is not a statute conveying a broad general policy for appropriate ad hoc application. Legislative policy is here expressed in a clear-cut prohibition qualified only by specifically defined exceptions.” Amalgamated Clothing Workers v. Richman Bros., 348 U. S. 511, 515-516 (1955). Since that time Congress has not seen fit to amend the statute and we therefore adhere to that position and hold that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to § 2283 if it is to be upheld. Moreover since the statutory prohibition against such injunctions in part rests on the fundamental constitutional independence of the States and their courts, the exceptions should not be enlarged by loose statutory construction. Proceedings in state courts should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately this Court'.

II

In this case the Florida Circuit Court enjoined the union’s intended picketing, and the United States District Court enjoined the railroad “from giving effect to or availing [itself] of the benefits of” that state court order. App. 196. Both sides agree that although this federal injunction is in terms directed only at the railroad it is an injunction “to stay proceedings in a State court.” It is settled that the prohibition of § 2283 cannot be evaded by addressing the order to the parties or prohibiting utilization of the results of a completed state proceeding. Oklahoma Packing Co. v. Cas Co., 309 U. S. 4, 9 (1940); Hill v. Martin, 296 U. S. 393, 403 (1935). Thus if the injunction against the Florida court proceedings is to be upheld, it must be “expressly authorized by Act of Congress,” “necessary in aid of [the District Court’s] jurisdiction,” or “to protect or effectuate [that court’s] judgments.”

Neither party argues that there is any express congressional authorization for injunctions in this situation and we agree with that conclusion. The respondent union does contend that the injunction was proper either as a means to protect or effectuate the District Court’s 1967 order, or in aid of that court’s jurisdiction. We do not think that either alleged basis can be supported.

A

The argument based on protecting the 1967 order is not clearly expressed, but in essence it appears to run as follows: In 1967 the railroad sought a temporary restraining order which the union opposed. In the course of deciding that request, the United States District Court determined that the union had a federally protected right to picket Moncrief Yard and that this right could not be interfered with by state courts. When the Florida Circuit Court enjoined the picketing, the United States District Court could, in order to protect and effectuate its prior determination, enjoin enforcement of the state court injunction. Although the record on this point is not unambiguously clear, we conclude that no such interpretation of the 1967 order can be supported.

When the railroad initiated the federal suit it filed a complaint with three counts, each based entirely on alleged violations of federal law. The first two counts alleged violations of the Railway Labor Act, 45 U. S. C. § 151 et seg., and the third alleged a violation of that Act and the Interstate Commerce Act as well. Each of the counts concluded with a prayer for an injunction against the picketing. Although the union had not been formally served with the complaint and had not filed an answer, it appeared at a hearing on a motion for a temporary restraining order and argued against the issuance of such an order. The union argued that it was a party to a labor dispute with the FEC, that it had exhausted the administrative remedies required by the Railway Labor Act, and that it was thus free to engage in “self-help,” or concerted economic activity. Then the union argued that such activity could not be enjoined by the federal court. In an attempt to clarify the basis of this argument the District Judge asked: “You are basing your case solely on the Norris-LaGuardia Act?” The union’s lawyer replied: “Right. I think at this point of the argument, since Norris-LaGuardia is clearly in point here.” App. 63. At no point during the entire argument did either side refer to state law, the effects of that law on the picketing, or the possible preclusion of state remedies as a result of overriding federal law. The next day the District Court entered an order denying the requested restraining order. In relevant part that order included these conclusions of law:

“3. The parties to the BLE-FEC ‘major dispute,’ having exhausted the procedures of the Railway Labor Act, 45 U. S. C. § 151, et seq., are now free to engage in self-help. . . .
“4. The conduct of the FEC pickets and that of the responding ACL employees are a part of the FEC-BLE major dispute. . . .
“7. The Norris-LaGuardia Act, 29 U. S. C. § 101, and the Clayton Act, 29 U. S. C. § 52, are applicable to the conduct of the defendants here involved.” App. 67.

In this Court the union asserts that the determination that it was “free to engage in self-help” was a determination that it had a federally protected right to picket and that state law could not be invoked to negate that right. The railroad, on the other hand, argues that the order merely determined that the federal court could not enjoin the picketing, in large part because of the general prohibition in. the Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C. § 101 et seq., against issuance by federal courts of injunctions in labor disputes. Based solely on the state of the record when the order was entered, we are inclined to believe that the District Court did not determine whether federal law precluded an injunction based on state law. Not only was that point never argued to the court, but there is no language in the order that necessarily implies any decision on that question. In short we feel that the District Court in 1967 determined that federal law could not be invoked to enjoin the picketing at Moncrief Yard, and that the union did have a right “to engage in self-help” as far as the federal courts were concerned. But that decision is entirely different from a decision that the Railway Labor Act precludes state regulation of the picketing as well, and this latter decision is an essential prerequisite for upholding the 1969 injunction as necessary “to protect or effectuate” the 1967 order. Finally we think it highly unlikely that the brief statements in the order conceal a determination of a disputed legal point that later was to divide this Court in a 4-to-3 vote in Jacksonville Terminal, supra, in opinions totaling 28 pages. While judicial writing may sometimes be thought cryptic and tightly packed, the union's contention here stretches the content of the words well beyond the limits of reasonableness.

Any lingering doubts we might have as to the proper interpretation of the 1967 order are settled by references to the positions adopted by the parties later in the litigation. In response to the railroad’s request for a temporary restraining order from the state court, the union referred to the prior federal litigation, noted that it was part of a “major dispute,” that it was covered by § 20 of the Clayton Act, 38 Stat. 738, 29 U., S. C. § 52 and that “[l]abor activity which is within the Clayton Act is 'immunized trade union activities.' United States v. Hutcheson, 312 U. S. 219, at pages 235-236.” 2 Record 105. At no point did the union appear to argue that the federal court had already determined that the railroad was precluded from obtaining an injunction under Florida law.

Similarly the union’s arguments in 1969 indicate that the 1967 federal order did not determine whether federal law precluded resort to the state courts. When the union tried to dissolve the state court injunction, the argument was based entirely on the controlling effect of the Jacksonville Terminal decision on the picketing at Moncrief Yard. The union argued that this Court’s “decision is squarely controlling upon [the Moncrief Yard] case which is identical in all material respects.” 2 Record 123; see also id., at 149-176. Although the union again mentioned that the federal District Judge had determined in 1967 that it was free to engage in self-help, it never argued that the 1967 order had in effect held with respect to Moncrief Yard what this Court later held was the law with respect to the Jacksonville Terminal situation. The railroad argued that Jacksonville Terminal was not controlling, and the Florida judge agreed.

Our reading of this record is not altered by the District Court’s 1969 opinion issued when the injunction was granted two years after the 1967 order was entered. In that opinion the court said:

“In its Order of April 26, 1967, this Court found that Plaintiff’s Moncrief Yard, the area in question, ‘is an integral and necessary part of [Florida East Coast Railway Company’s] operations.’. . . The Court concluded furthermore that Defendants herein ‘are now free to engage in self-help.’. . . The injunction of the state court, if allowed to continue in force, would effectively nullify this Court’s findings and delineation of rights of the parties. The categorization of Defendants’ activities as ‘secondary’ does not alter this state of affairs. See Brotherhood of R. R. Trainmen v. Jacksonville Terminal Co., - U. S. -, 22 L. Ed. 2d 344 (1969). The prohibition of 28 U. S. C. §2283, therefore, does not deprive this Court of jurisdiction to enter the injunction in this instance.” App. 195-196.

We think the proper interpretation of that somewhat ambiguous passage can be reached only when it is considered in light of the arguments presented to the District Court by the union. In arguing that an injunction was necessary to protect the 1967 order, the union’s lawyer said: “Now, the basic finding [of that order] is that we are free to engage in such self-help as is permitted under the Railway Labor Act. Now, Your Honor, at that point, did not get to the question of how broad is this right, because the Norris-LaGuardia Act prevented Your Honor from issuing an injunction. Now, how broad, then, is that right? We know, from the [Jacksonville Terminal] decision 1 Record 249. The lawyer then proceeded to argue that the Jacksonville Terminal case had clearly revealed that the right of self-help is beyond state court proscription in these circumstances. At no point during this hearing did the union try to argue, as it now appears to do, that the 1967 order itself had anticipated the Jacksonville Terminal decision. Rather the union appears to have argued that the decision of this Court in Jacksonville Terminal operated to define the scope of the right to self-help which the District Court had found the union entitled to" exercise, and that the state court injunction interfered with that right as so defined. Considered in this light we cannot agree with the dissenting view in this case that the District Court in 1967 “by necessary implication” decided that the union had a federally protected right to picket that “could not be subverted by resort to state proceedings.” Post, at 299. On the contrary, we read the quoted passage in the 1969 opinion as an indication that the District Court accepted the union’s argument and concluded that the Jacksonville Terminal decision had amplified its 1967 order, and it was this amplification, rather than the original order itself, that required protection. Such a modification of an earlier order through an opinion in another case is not a “judgment” that can properly be protected by an injunction against state court proceedings.

This record, we think, conclusively shows that neither the parties themselves nor the District Court construed the 1967 order as the union now contends it should be construed. Rather we are convinced that the union in effect tried to get the Federal District Court to decide that the state court judge was wrong in distinguishing the Jacksonville Terminal decision. Such an attempt to seek appellate review of a state decision in the Federal District Court cannot be justified as necessary “to protect or effectuate” the 1967 order. The record simply will not support the union’s contention on this point.

B

This brings us to the second prong of the union’s argument in which it is suggested that even if the 1967 order did not determine the union’s right to picket free from state interference, once the decision in Jacksonville Terminal was announced, the District Court was then free to enjoin the state court on the theory that such action was “necessary in aid of [the District Court’s] jurisdiction.” Again the argument is somewhat unclear, but it appears to go in this way: The District Court had acquired jurisdiction over the labor controversy in 1967 when the railroad filed its complaint, and it determined at that time that it did have jurisdiction. The dispute involved the legality of picketing by the union and the Jacksonville Terminal decision clearly indicated that such activity was not only legal, but was protected from state court interference. The state court had interfered with that right, and thus a federal injunction was “necessary in aid of its jurisdiction.” For several reasons we cannot accept the contention.

First, a federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area preempted by federal law, even when the interference is unmistakably clear. This rule applies regardless of whether the federal court itself has jurisdiction over the controversy, or whether it is ousted from jurisdiction for the same reason that the state court is. Cf. Amalgamated Clothing Workers v. Richman Bros., supra, at 519-520. This conclusion is required because Congress itself set forth the only exceptions to the statute, and those exceptions do not include this situation. Second, if the District Court does have jurisdiction, it is not enough that the requested injunction is related to that jurisdiction, but it must be “necessary in aid of” that jurisdiction. While this language is admittedly broad, we conclude that it implies something similar to the concept of injunctions to “protect or effectuate” judgments. Both exceptions to the general prohibition of § 2283 imply that some federal injunctive relief may be necessary to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide that case. Third, no such situation is presented here. Although the federal court did have jurisdiction of the railroad’s complaint based on federal law, the state court also had jurisdiction over the complaint based on state law and the union’s asserted federal defense as well. Jacksonville Terminal, supra, at 375-377, 390. While the railroad could probably have based its federal case on the pendent state law claims as well, United Mine Workers v. Oibbs, 383 U. S. 715 (1966), it was free to refrain from doing so and leave the state law questions and the related issue concerning preclusion of state remedies by federal law to the state courts. Conversely, although it could have tendered its federal claims to the state court, it was also free to restrict the state complaint to state grounds alone. Cf. England v. Louisiana State Board of Medical Examiners, 375 U. S. 411 (1964). In short, the state and federal courts had concurrent jurisdiction in this case, and neither court was free to prevent either party from simultaneously pursuing claims in both courts. Kline v. Burke Constr. Co., 260 U. S. 226 (1922); cf. Donovan v. Dallas, 377 U. S. 408 (1964). Therefore the state court’s assumption, of jurisdiction over the state law claims and the federal preclusion issue did not hinder the federal court’s jurisdiction so as to make an injunction necessary to aid that jurisdiction. Nor was an injunction necessary because the state court may have taken action which the federal court was certain was improper under the Jacksonville Terminal decision. Again, lower federal courts possess no power whatever to sit in direct review of state court decisions. If the union was adversely affected by the state court’s decision, it was free to seek vindication of its federal right in the Florida appellate courts and ultimately, if necessary, in this Court. Similarly if, because of the Florida Circuit Court’s action, the union faced the threat of immediate irreparable injury sufficient to justify an injunction under usual equitable principles, it was undoubtedly free to seek such relief from the Florida appellate courts, and might possibly in certain emergency circumstances seek such relief from this Court as well. Cf. Natural Gas Co. v. Public Serv. Comm’n, 294 U. S. 698 (1935); United States v. Moscow Fire Ins. Co., 308 U. S. 542 (1939); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court § 441 (R. Wolfson & P, Kurland ed. 1951). Unlike the Federal District Court, this Court does have potential appellate jurisdiction over federal questions raised in state court proceedings, and that broader jurisdiction allows this Court correspondingly broader authority to issue injunctions “necessary in aid of its jurisdiction.”

Ill

This case is by no means an easy one. The arguments in support of the union’s contentions are not insubstantial. But whatever doubts we may have are strongly affected by the general prohibition of § 2283. Any doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy. The explicit wording of § 2283 itself implies as much, and the fundamental principle of a dual system of courts leads inevitably to that conclusion.

The injunction issued by the District Court must be vacated. Since that court has not yet proceeded to a final judgment in the case, the cause is remanded to it for further proceedings in conformity with this opinion.

It is so ordered.

Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Justice Harlan,

concurring.

I join the Court’s opinion on the understanding that its holding implies no retreat from Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369 (1969). Whether or not that case controls the underlying controversy here is a question that will arise only on review of any final judgment entered in the state court proceedings respecting that controversy.

Mr. Justice Brennan,

with whom Mr. Justice White joins,

dissenting.

My disagreement with the Court in this case is a relatively narrow one. I do not disagree with much that is said concerning the history and policies underlying 28 U. S. C. § 2283. Nor do I dispute the Court’s holding on the basis of Amalgamated Clothing Workers v. Richman Bros., 348 U. S. 511 (1955), that federal courts do not have authority to enjoin state proceedings merely because it is asserted that the state court is improperly asserting jurisdiction in an area pre-empted by federal law or federal procedures. Nevertheless, in my view the District Court had discretion to enjoin the state proceedings in the present case because it acted pursuant to an explicit exception to the prohibition of § 2283, that is, “to protect or effectuate [the District Court’s] judgments.”

The pertinent portions of the District Court’s 1967 order, denying ACL’s application for injunctive relief and defining BLE’s federally protected right to picket at the Moncrief Yard, are as follows:

“3. The parties to the BLE-FEC 'major dispute,’ having exhausted the procedures of the Railway Labor Act, 45 U. S. C. § 151, et seq., are now free to engage in self-help. Brotherhood of Locomotive Engineers v. Baltimore & O. B. R., 372 U. S. 284 (1963).
“4. The conduct of the FEC pickets and that of the responding ACL employees are a part of the FEC-BLE major dispute. Brotherhood of Locomotive Firemen and Enginemen v. Florida East Coast Ry., 346 F. 2d 673 (5th Cir. 1965).
“6. The 'economic self-interest’ of the picketing union in putting a stop to the interchange services daily performed within the premises of plaintiff’s yard facilities, and in the normal, day-to-day operation of FEC trains operating with strike replacement crews within these facilities is present here. The ‘economic self-interest’ of the responding employees in refusing to handle this interchange and in making common cause with the striking FEC engineers is similarly present. Brotherhood of R. R. Trainmen v. Atlantic Coast Line R. R., 362 F. 2d 649 (5th Cir.), aff’d, 385 U. S. 20 (1966).
“7. The Norris-LaGuardia Act, 29 U. S. C. § 101, and the Clayton Act, 29 U. S. C. § 52, are applicable to the conduct of the defendants here involved. See Brotherhood of Locomotive Firemen and Enginemen v. Florida East Coast Ry., 346 F. 2d 673 (5th Cir. 1965); Brotherhood of R. R. Trainmen v. Atlantic Coast Line Railroad, 362 F. 2d 649 (5th Cir.), aff’d, 385 U.. S. 20 (1966).” App. 67-68.

The thrust of the District Judge’s order is that the procedures prescribed by the Railway Labor Act had been exhausted in relation to the BLE-FEC dispute, that BLE was therefore free to engage in self-help tactics, and that it was properly exercising this federal right when it engaged in the picketing that ACL sought to enjoin. This interpretation of the order is supported by the fact that the District Judge relied upon Brotherhood of Locomotive Engineers v. Baltimore & Ohio R. Co., 372 U. S. 284 (1963), in which this Court held that the parties had exhausted all available procedures under the Railway Labor Act and thus were free to resort to self-help. Furthermore, the District Court invoked § 20 of the Clayton Act, 29 U. S. C. § 52, which provides that certain union activities, including striking and peaceful picketing, shall not “be considered or held to be violations of any law of the United States.” Thus, contrary to petitioner’s contention, the District Court obviously decided considerably more than the threshold question of whether the Norris-LaGuardia Act withdrew jurisdiction to grant federal injunctive relief in the circumstances of this case.

In my view, what the District Court decided in 1967 was that BLE had a federally protected right to picket at the Moncrief Yard and, by necessary implication, that this right could not be subverted by resort to state proceedings. I find it difficult indeed to ascribe to the District Judge the views that the Court now says he held, namely, that ACL, merely by marching across the street to the state court, could render wholly nugatory the District Judge's declaration that BLE had a federally protected right to strike at the Moncrief Yard.

Moreover, it is readily apparent from the District Court's 1969 order enjoining the state proceedings that the District Judge viewed his 1967 order as delineating the rights of the respective parties, and, more particularly, as establishing BLE’s right to conduct the picketing in question under paramount federal law. This interpretation should be accepted as controlling, for certainly the District Judge is in the best position to render an authoritative interpretation of his own order. In the 1969 injunction order, after distinguishing Richman Bros, and concluding that the District Court could grant injunctive relief “in aid of its jurisdiction,'' the court alternatively held that it had power to stay the state court proceedings so as to effectuate its 1967 order:

“In its Order of April 26, 1967, this Court found that Plaintiff's Moncrief Yard, the area in question, ‘is an integral and necessary part of [Florida East Coast Railway Company’s] operations.’. . . The Court concluded furthermore that Defendants herein ‘are now free to engage in self-help.’. . . The injunction of the state court, if allowed to continue in force, would effectively nullify this Court’s findings and delineation of rights of the parties. The categorization of Defendants' activities as ‘secondary’ does not alter this state of affairs. See Brotherhood of R. R. Trainmen v. Jacksonville Terminal Co., - U. S. -, 22 L. Ed. 2d 344 (1969). The prohibition of 28 U. S. C. §2283, therefore, does not deprive this Court of jurisdiction to enter the injunction in this instance. Capital Service, Inc. v. NLRB, 347 U. S. 501 (1954); [United Indus. Workers of the Seafarers Int’l Union] v. Board of Trustees of Galveston Wharves, 400 F. 2d 320 (5th Cir. 1968).” App. 195-196.

The District Judge’s reliance upon Capital Service, Inc. v. NLRB, 347 U. S. 501 (1954), and United Indus. Workers of the Seafarers Int’l Union v. Board of Trustees of Galveston Wharves, 400 F., 2d 320 (C. A. 5th Cir. 1968), a fact ignored by the Court, is particularly significant, for both of these cases sustained in-junctive relief against state court proceedings that threatened to impair the ability of the federal courts to make their judgments effective. Moreover, no matter how the arguments of counsel before the District Court are understood, it is apparent that the District Judge did not bottom the 1969 injunction upon our intervening decision in Jacksonville Terminal but merely cited that case to support the court’s 1967 conclusion that the picketing in question constituted federally protected activity whether or not it had “secondary” aspects.

The Court seeks to bolster its own reading of the District Court’s 1967 and 1969 orders by finding them “somewhat ambiguous” and then by referring to the arguments of counsel before that court and the state court both in 1967 and 1969. In the first place, it should be noted that the argument of counsel is not always a sure guide to the interpretation of a subsequent judicial decree or opinion, because it not infrequently happens, in this Court as well as others, that a decision is based on premises not elaborated by counsel. Indeed, occasionally a decision is grounded on a theory not even suggested by counsel’s argument.

In any event, I believe that the Court has misinterpreted the argument of counsel in the lower courts. While I do not find the various proceedings below entirely free of confusion with respect to BLE’s legal theory, there appear to be at least two strands to its argument. To be sure, BLE did contend, particularly in the state proceedings, that our decision in Jacksonville Terminal was controlling on the merits. As I read the record, however, BLE also argued that the state injunction should either be dissolved or enjoined so that it would not interfere with the federal court’s 1967 decree. Thus, in moving for a preliminary injunction against the state court proceedings, BLE relied both upon Jacksonville Terminal and upon the power of the District Court to issue the injunction “to protect and effectuate the judgment of this Court dated April 26, 1967.” 1 Record 30-31.

Furthermore, both in support of the motion for a preliminary injunction and during oral argument in the District Court, BLE relied extensively upon Capital Service, Inc. v. NLRB, supra, and United Indus. Workers of the Seafarers Int’l Union v. Board of Trustees of Galveston Wharves, supra. See 1 Record 33-34, 243-245, 247, 253-257, 279-281. A consideration of the factual context of the latter case is instructive in understanding BLE’s position below. In Galveston Wharves the union fully complied with the pertinent provisions of the Railway Labor Act, but, because the employer had refused to bargain concerning a “major” dispute, the union was free to strike. Meanwhile the employer obtained from a state court an injunction against any picketing on or near its premises. The Federal District Court ordered the parties to bargain and enjoined the employer from giving effect to, or seeking enforcement of, the state court injunction. The Court of Appeals for the Fifth Circuit affirmed the granting of injunctive relief on the ground that this action was within the § 2283 exception relating to the effectuation of federal court judgments. The Court of Appeals held that the union had a right to strike under the Railway Labor Act and that that right could not be frustrated or interfered with by state court injunctions. Similarly, BLE argued below that resort to state equitable proceedings should not be permitted to undermine the District Court’s prior determination that BLE had a right to picket at the Móncrief Yard. As its injunction order indicates, the District Court was persuaded by BLE’s argument. After the federal injunction was issued, in proceedings brought by ACL to stay the effectiveness of the order, BLE adhered to its position that the state injunction, if not enjoined, would nullify the District Court’s 1967 order delineating the rights of the parties. 1 Record 499, 505, 508-509. Again BLE relied upon the intervening decision in Jacksonville Terminal, but it did so primarily in support of the contention that the 1967 order was proper insofar as it prohibited state court interference with the picketing at the Moncrief Yard. 1 Record 509-510. In essence, BLE argued that the 1967 order had correctly anticipated Jacksonville Terminal. See ibid.

In the state courts BLE adopted a position entirely consistent with the foregoing. For example, in opposing ACL’s application for a temporary injunction against the picketing, BLE contended that the District Court had previously held that under controlling federal law BLE’s right to picket had been established, that this declaration of rights was res judicata in the state proceedings, and consequently that state proscription of the picketing was improper. 2 Record 104-105.

In sum, to the extent that the argument of counsel is an interpretive guide to what the District Court actually decided in its 1967 and 1969 orders, the Court’s conclusion that the record “conclusively shows that neither the parties themselves nor the District Court construed the 1967 order” to preclude resort to state remedies to prohibit the Moncrief Yard picketing (ante, at 293) is wholly erroneous. And, quite apart from counsel’s argument, it is apparent that the District Judge viewed his own 1967 order as delineating a federally protected right for the BLE picketing in question. Whether the District Court’s anticipation of Jacksonville Terminal was correct in the circumstances of the present case is not now before us. But if the 1967 order is so understood, it is undeniably clear that the subsequent injunction against the state proceedings was both necessary and appropriate to preserve the integrity of the 1967 order.

In justifying its niggardly construction of the District Court’s orders, the Court takes the position that any doubts concerning the propriety of an injunction against state proceedings should be resolved against the granting of injunctive relief. Unquestionably § 2283 manifests a general design on the part of Congress that federal courts not precipitately interfere with the orderly determination of controversies in state proceedings. However, this policy of nonintervention is by no means absolute, as the explicit exceptions in § 2283 .make entirely clear. Thus, § 2283 itself evinces a congressional intent that resort to state proceedings not be permitted to undermine a prior judgment of a federal court. But that is exactly what has occurred in the present case. Indeed, the federal determination that BLE may picket at the Moncrief Yard has been rendered wholly ineffective by the state injunction. The crippling restrictions that the Court today places upon the power of the District Court to effectuate and protect its orders are totally inconsistent with both the plain language of § 2283 and the policies underlying that statutory provision.

Accordingly, I would affirm the judgment of the Court of Appeals sustaining the District Court’s grant of in-junctive relief against petitioner’s giving effect to, or availing itself of, the benefit of the state court injunction.

       After this suit was instituted ACL merged with the Seaboard Air Line Railroad Co. to form the present Seaboard Coast Line Railroad Co. We will continue, as have the parties, to refer to the petitioner as ACL.

       There is no present labor dispute between the ACL and the BLE or any other ACL employees. ACL became involved in this case as a result of a labor dispute between the Florida East Coast Railway Co. (FEC) and its employees. FEC cars are hauled into and out of Moncrief Yard and switched around to make up trains in that yard. The BLE picketed the yard, encouraging ACL employees not to handle any FEC cars.
      The initial development of the controversy is chronicled in Railway Clerks v. Florida E. C. R. Co., 384 U. S. 238 (1966). See also, Railroad Trainmen v. Atlantic C. L. R. Co., 362 F. 2d 649 (C. A. 5th Cir.), aff’d by an equally divided court, 385 U. S. 20 (1966); Florida E. C. R. Co. v. Railroad Trainmen, 336 F. 2d 172 (C. A. 5th Cir. 1964).

       See the historical discussion of the origin of the 1793 statute in Toucey v. N. Y. Life Ins. Co., 314 U. S. 118, 129-132 (1941).

       The Hutcheson case held that protected union activity would not be deemed violative of federal antitrust law.

       For purposes of this case only, we will assume, without deciding, that the Florida Circuit Court’s decision was wrong in light of our decision in Jacksonville Terminal.

       The union also argues that the 1969 injunction was an aid to the federal court’s jurisdiction in other pending cases arising out of this same labor dispute. This argument was not raised in the District Court and we need not consider it. In any event the reasons for rejecting the argument with respect to the 1967 order apply equally well to arguments relating to any other orders, cases, or judgments the union has advanced.

       In Capital Service the NLRB sought an injunction against certain picketing under § 10 (1) of the National Labor Relations Act, 29 U. S. C. § 160 (l). Previously a state court had restrained the very conduct that the District Court was asked to enjoin. This Court decided that the District Court had authority to enjoin the state proceedings so that it would have “unfettered power to decide for or against the union, and to write such decree as it deemed necessary in order to effectuate the policies of the Act.” 347 U. S., at 505-506.

       It is hardly surprising that BLE emphasized the Jacksonville Terminal decision in the state proceedings to dissolve the state injunction, and this reliance is hardly inconsistent with the position that the federal court in 1967 had authoritatively delineated BLE’s federally protected right to strike at the Moncrief Yard. BLE may well have thought that its contention that Jacksonville Terminal was controlling on the issue of pre-emption would carry more weight with the state court than the alternative position that the protected character of the BLE picketing had been previously determined by the Federal District Court.


source: Caselaw Access Project

author:
      Me. Justice Douglas
      Mr. Justice Harlan,

license: Public Domain

text:
    HELLENIC LINES LTD. et al. v. RHODITIS
    No. 661.
    Argued April 21, 1970
    Decided June 8, 1970

      James M. Estabrook argued the cause for petitioners. On the briefs was George F. Wood.

      Joseph B. Stahl argued the cause and filed a brief for respondent.
    Briefs of amici curiae urging reversal were filed by Mr. Estabrook and David P. H. Watson for the Royal Greek Government, and by John R. Sheneman and Edwin K. Reid for the Greek Chamber of Shipping et al.
    Briefs of amici curiae urging affirmance were filed by Arthur J. Mandell for the American Trial Lawyers Association, and by Abraham E. Freedman for the National Maritime Union of America.
   Me. Justice Douglas

delivered the opinion of the Court.

This is a suit under the Jones Act by a seaman who was injured aboard the ship Hellenic Hero in the Port of New Orleans. The District Court, sitting without a jury, rendered judgment for the seaman, 273 F. Supp. 248. The Court of Appeals affirmed, 412 P. 2d 919. The case is here on petition for a writ of certiorari which we granted, 396 U. S. 1000, in light of the conflict between the decision below and Tsakonites v. Transpacific Carriers Corp., 368 F. 2d 426, in the Second Circuit.

Petitioner Hellenic Lines Ltd. is a Greek corporation that has its largest office in New York and another office in New Orleans. More than 95% of its stock is owned by a United States domiciliary who is a Greek citizen — Pericles G. Callimanopoulos (whom we call Pericles). He lives in Connecticut and manages the corporation out of New York. He has lived in this country since 1945. The ship Hellenic Hero is engaged in regularly scheduled runs between various ports of the United States and the Middle East, Pakistan, and India. The District Court found that its entire income is from cargo either originating or terminating in the United States.

Respondent, the seaman, signed on in Greece, and he is a Greek citizen. His contract of employment provides that Greek law and a Greek collective-bargaining agreement apply between the employer and the seaman and that all claims arising out of the employment contract are to be adjudicated by a Greek court. And it seems to be conceded that respondent could obtain relief through Greek courts, if he desired.

The Jones Act speaks only of “the defendant employer” without any qualifications. In Lauritzen v. Larsen, 345 U. S. 571, however, we listed seven factors to be considered in determining whether a particular shipowner should be held to be an “employer” for Jones Act purposes:

(1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured seaman; (4) allegiance of the defendant shipowner; (5) the place where the contract of employment was made; (6) the inaccessibility of a foreign forum; and (7) the law of the forum.

Of these seven factors it is urged that four are in favor of the shipowner and against jurisdiction: the ship’s flag is Greek; the injured seaman is Greek; the employment contract is Greek; and there is a foreign forum available to the injured seaman.

The Lauritzen test, however, is not a mechanical one. 345 U. S., at 582. We indicated that the flag that a ship flies may, at times, alone be sufficient. Id., at 585-586. The significance of one or more factors must be considered in light of the national interest served by the assertion of Jones Act jurisdiction. Moreover, the list of seven factors in Lauritzen was not intended as exhaustive. As held in Pavlou v. Ocean Traders Marine Corp., 211 F. Supp. 320, 325, and approved by the Court of Appeals in the present case, 412 F. 2d, at 923 n. 7, the shipowner’s base of operations is another factor of importance in determining whether the Jones Act is applicable; and there well may be others.

In Lauritzen the injured seaman had been hired in and was returned to the United States, and the shipowner was served here. Those were the only contacts of that shipping operation with this country.

The present case is quite different.

Pericles became a lawful permanent resident alien in 1952. We extend to such an alien the same constitutional protections of due process that we accord citizens. Kwong Hai Chew v. Colding, 344 U. S. 590, 596. The injury occurred here. The forum is a United States court. Pericles’ base of operations is New York. The Hellenic Hero was not a casual visitor; rather, it and many of its sister ships were earning income from cargo originating or terminating here. We see no reason whatsoever to give the Jones Act a strained construction so that this alien owner, engaged in an extensive business operation in this country, may have an advantage over citizens engaged in the same business by allowing him to escape the obligations and responsibility of a Jones Act “employer.” The flag, the nationality of the seaman, the fact that his employment contract was Greek, and that he might be compensated there are in the totality of the circumstances of this case minor weights in the scales compared with the substantial and continuing contacts that this alien owner has with this country. If, as stated in Bartholomew v. Universe Tankships Inc., 263 F. 2d 437, the liberal purposes of the Jones Act are to be effectuated, the facade of the operation must be considered as minor, compared with the real nature of the operation and a cold objective look at the actual operational contacts that this ship and this owner have with the United States. By that test the Court of Appeals was clearly right in holding that petitioner Hellenic Lines was an “employer” under the Jones Act.

Affirmed.

Mr. Justice Harlan,

with whom The Chief Justice and Mr. Justice Stewart join,

dissenting.

I dissent from today’s decision holding that a Greek seaman who signs articles in Greece for employment on a Greek-owned, Greek-flag vessel may recover under the Jones Act for shipboard injuries sustained while the vessel was in American territorial waters. This result is supported neither by precedent, nor realistic policy, and in my opinion is far removed from any intention that can reasonably be ascribed to Congress.

A

Section 688 of Title 46, U. S. C., 41 Stat., 1007, the Jones Act, provides:

“Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.”

The language of § 688 is, as Mr. Justice Jackson noted in Lauritzen v. Larsen, 345 U. S. 571 (1953), all-embracing. By its terms it is not limited to American seamen nor to vessels bearing the American nag. Yet despite the sweeping language it can hardly be doubted that congressional concern stopped short of the lengths to which the literal terms of the statute carry the Jones Act. This was emphasized in Lauritzen which pointed out that Congress wrote against a backdrop of “usage as old as the Nation,” that “such statutes have been construed to apply only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law.” 345 U. S., at 577. This principle the Court reiterated in Romero v. International Terminal Co., 358 U. S. 354 (1959), where we reaffirmed the presumption that domestic legislation has been enacted with “respect for the relevant interests of foreign nations in the regulation of maritime commerce as part of the legitimate concern of the international community.” 358 U. S., at 383.

This Court only recently applied this principle in McCulloch v. Sociedad Nacional, 372 U. S. 10 (1963), where we were called upon to determine whether labor relations dealing with an alien crew on a foreign-flag vessel, beneficially owned by an American corporation, affected “commerce” within the meaning of the National Labor Relations Act. In holding that the Act was not “intended to have any application to foreign registered vessels employing alien seamen,” the Court declined to rely on the beneficial ownership of the vessel and other “substantial United States contacts,” including regular visits to the United States and the “integrated maritime operation” of the United Fruit Company, the beneficial owner of the vessel, to override the well-settled principle that the law of the country whose flag a ship flies governs shipboard transactions, absent some “clear expression” from Congress to the contrary. See Wildenhus’s Case, 120 U. S. 1 (1887); United States v. Flores, 289 U. S. 137, 155-159 (1933); Cunard Steamship Co. v. Mellon, 262 U. S. 100, 124 (1923); cf. Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804).

The McCulloch case followed a course marked early in our jurisprudence, and, in fact, built upon Lauritzen which had announced that the law of the flag, “the most venerable and universal rule of maritime law,” would in Jones Act cases “overbear most other connecting events in determining applicable law . . . unless some heavy counterweight appears.” 345 U. S., at 584, 585-586.

Such a counterweight would exist only in circumstances where the application of the American rule of law would further the purpose of Congress. While some legislation in its purpose obviously requires extension beyond our borders to achieve national policy, this is not so, in my opinion, with an Act concerned with prescribing particular remedies, rather than one regulating commerce or creating a standard for conduct.

The only justification that I can see for extending extraterritorially a remedial-type provision like § 688 is that the injured seaman is an individual whose well-being is a concern of this country. It was for this reason that Lauritzen recognized the residence of the plaintiff as a factor that should properly be considered in deciding who is a “seaman” as Congress employed that term in § 688. See D. Cavers, The Choice-of-Law Process 96-97 (1965). In so doing it reflected earlier decisions where recovery was had by resident alien seamen who were serving aboard foreign-flag vessels. See, e. g., Gambera v. Bergoty, 132 F. 2d 414 (C. A. 2d Cir. 1942); cf. Uravic v. F. Jarka Co., 282 U. S. 234 (1931).

In the early decisions involving citizen and resident alien seamen serving on foreign vessels, some additional factor, such as the vessel’s presence in American waters or beneficial American ownership, was considered to be an element justifying recovery. See Uravic v. F. Jarka Co., supra; Gerradin v. United Fruit Co., 60 F. 2d 927 (C. A. 2d Cir. 1932); compare Gambera v. Bergoty, supra, with O’Neill v. Cunard White Star, 160 F. 2d 446 (C. A. 2d Cir. 1947). Lauritzen in enumerating these factors (“contacts”) as independent considerations, was attempting to focus analysis on those factors that are the necessary ingredients for a statutory cause of action: first, as a matter of statutory construction, is plaintiff within that class of seamen that Congress intended to cover by the statute? and, second, is there a sufficient nexus between the defendant and this country so as to justify the assertion of legislative jurisdiction? In other words the Court must define “seaman” and “employer” as those words are used in § 688. In this regard the situs of the accident or the vessel’s contacts with this country by virtue of its beneficial ownership or the frequency of calls at our ports simply serves as an adequate nexus between this country and defendant to assert jurisdiction in a case where congressional policy is otherwise furthered. But no matter how qualitatively substantial or numerous these kinds of contacts may be, they have no bearing in themselves on whether Jones Act recovery is appropriate in a given instance. For transactions occurring aboard foreign-flag vessels that question should be answered by reference to the plaintiff’s relationship to this country. See Note, Admiralty and the Choice of Law: Lauritzen v. Larsen Applied, 47 Va. L. Rev. 1400 (1961).

Viewed in this perspective, today’s decision and decisions of several lower courts that have taken the phenomenon of “convenient” foreign registry as a wedge for displacing the law of the flag, see, e. g., Southern Cross Steamship Co. v. Firipis, 285 F. 2d 651 (C. A. 4th Cir. 1960); Pavlou v. Ocean Traders Marine Corp., 211 F. Supp. 320 (D. C. S. D. N. Y. 1962); Voyiatzis v. National Shipping & Trading Corp., 199 F. Supp. 920 (D., C. S. D. N. Y. 1961), have, I believe, misconstrued these basic premises on which Lauritzen was founded.. This is underscored by the fact that the Lauritzen allusion to the practice of American owners of finding a “convenient” flag “to avoid stringent shipping laws by seeking foreign registration eagerly offered by some countries,” 345 U. S., at 587, was ■ prefaced by citation and discussion of Skiriotes v. Florida, 313 U. S. 69 (1941), and Steele v. Bulova Watch Co., 344 U. S. 280 (1952), both of which dealt with the question of when legislative jurisdiction existed to apply domestic law to American nationals abroad. In both cases the application of domestic law presupposed or construed legislative purpose to be furthered by reaching across the border.

The Lauritzen statement, lifted out of context, has acquired a dynamism and become the justification for recovery by foreign seamen simply on the ground that convenient “registry” somehow circumvents an obligation that Congress desired to impose on all owners within its jurisdiction.

This underlies today’s decision which relies on the fact that Hellenic Lines is an American-based operation and its vessels would be accorded a competitive advantage over American-flag vessels were we to permit petitioners to avoid responsibility under the Jones Act. Liability is only one factor that contributes to the higher cost of operating an American-flag vessel. Indeed, recognizing the insurance factor, it is doubtful that this factor is a significant contribution to the competitive advantage of foreign-flag ships, especially given the higher crew wages (see 46 U. S. C. § 1132 requiring American crews) and construction costs for American-flag ships, which must be built in American yards if they are to participate in the congressional programs specifically designed to offset the higher costs that the Court today takes as justification for displacing settled international principles of choice of law. See, e. g., 46 U. S. C. § 883 (coastwise trade); 46 U. S. C. § 1180 (subsidy). See generally S. Lawrence, United States Merchant Shipping Policies and Politics 61-67 (1966).

Even were Jones Act liability a significant uncompensated cost in the operation of an American ship, I could not regard this as a reason for extending Jones Act recovery to foreign seamen when the underlying concern of the legislation before us is the adjustment of the risk of loss between individuals and not the regulation of commerce or competition.

B

Today’s decision suggests that courts have become mesmerized by contacts, and notwithstanding the purported eschewal of a mechanical application of the Lauritzen test, they have lost sight of the primary purpose of Lauritzen which, as I conceive it, was to reconcile the all-embracing language of the Jones Act with those principles of comity embodied in international and maritime law that are designed to "foster amicable and workable commercial relations.” 345 U, S., at 582. Laurit-zen, properly understood, should, I submit, be taken to focus the judicial inquiry on the purpose of Congress and the presence or absence of an adequate basis for the assertion of American jurisdiction, when that purpose may be furthered by application of the statute in the circumstances presented.

Where, as in the case before us, the injured plaintiff has no American ties, the inquiry should be directed toward determining what jurisdiction is primarily concerned with plaintiff’s welfare and whether that jurisdiction’s rule may, consistent with those notions of due process that determine the presence of legislative jurisdiction, govern recovery. In the case before us, there is no reason to disregard either the law of the flag or plaintiff’s contractual undertaking to accept Greek law as controlling, thereby in effect assuming that he signed articles under conditions that would justify disregarding the contractual choice of law. Rhoditis is a Greek national who resides in Greece. Under these circumstances Greek law provides the appropriate rule.

I would reverse the judgment of the Court of Appeals, and hold that the Jones Act affords no redress to this seaman.

       Tbe Act provides:
      “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in ease of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.” 41 Stat. 1007, 46 U. S. C. § 688.

       The other petitioner, Universal Cargo Carriers Inc., is a Panamanian corporation which owns the Hellenic Hero; but Hellenic Hero is managed by petitioner Hellenic Lines Ltd., a Greek corporation.

       Pericles owns in excess of 95% of the stock of both petitioners.

       Judge Medina, speaking for the Court of Appeals for the Second Circuit, correctly stated the problem in the following words:
      “[T]he decisional process of arriving at a conclusion on the subject of the application of the Jones Act involves the ascertainment of the facts or groups of facts which constitute contacts between the transaction involved in the case and the United States, and then deciding whether or not they are substantial. Thus each factor is to be 'weighed’ and 'evaluated’ only to the end that, after each factor has been given consideration, a rational and satisfactory conclusion may be arrived at on the question of whether all the factors present add up to the necessary substantiality. Moreover, each factor, or contact, or group of facts must be tested in the light of tiie underlying objective, which is to effectuate the liberal purposes of the Jones Act.” Bartholomew v. Universe Tankships, Inc., 263 F. 2d 437, 441.

       “The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all 'persons’ and guard against any encroachment on those rights by federal or state authority.” Bridges v. Wixon, 326 U. S. 135, 161 (concurring opinion).

       The principle of deference to the law of the flag had its origins in the fiction that the vessel was an extension of the sovereign territory of the country whose ensign it flew. As Mr. Justice Jackson noted in Lauritzen, the principle draws strength from the practical necessity of providing predictable rules for shipboard conduct, rules that would, under conventional territorial principles, be changing as the vessel traveled over the high seas an,d through different territorial waters. “It is true that the criminal jurisdiction of the United States is in general based on the territorial principle, and criminal statutes of the United States are not by implication given an extra-territorial effect. [Citations omitted.] But that principle has never been, thought to be applicable to a merchant vessel which, for purposes of the jurisdiction of the courts of the sovereignty whose flag it flies to punish crimes committed upon it, is deemed to be a part of the territory of that sovereignty, and not to lose that character when in navigable waters within the territorial limits of another sovereignty. . . .” United States v. Flores, 289 U. S., at 155-156. See Restatement, Conflict of Laws §§ 405, 406 (1934).

       There must be at least some minimal contact between a State and the regulated subject before it can, consistently with the requirements of due process, exercise legislative jurisdiction. See, e. g., Home Ins. Co. v. Dick, 281 U. S. 397 (1930); Watson v. Employers Liability Assurance Corp., 348 U. S. 66 (1954).

       In Skiriotes the precise question was whether a State could prohibit by statute the use of diving equipment for the purpose of gathering deep sea sponges in waters within its territorial limits. This Court sustained the State’s legislative jurisdiction to regulate the conduct of its own citizens. Thus the Court said: “Even if it were' assumed that the locus of the offense was outside the territorial waters of Florida, it would not follow that the State could not prohibit its own citizens from the use of the . . . divers’ equipment at that place. No question as to the authority of the United States over these waters, or over the sponge fishery, is here involved. No right of a citizen of another State is here asserted. The question is solely between appellant and his own State. ... If the United States may control the conduct of its citizens upon the high seas, we see no reason why the State of Florida may not likewise govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest . . . .” 313 U. S., at 76-77.

        Steele involved the question of whether a district court “has jurisdiction to award relief to an American corporation against acts of trade-mark infringement and unfair competition consummated in a foreign country by a citizen and resident of the United States.” 344 U. S., at 281. There was no question that plaintiff had suffered the injury and American commerce had been adversely affected in the way that the Lanham Act sought to prevent. The court concluded that in such circumstances liability could not be avoided simply by performing the forbidden acts in a foreign territory. Cf. Continental Ore Co. v. Union Carbide, 370 U. S. 690, 704 (1962); United States v. Sisal Sales Corp., 274 U. S. 268 (1927).

       The Second Circuit quite properly relied on the beneficial ownership of the ship to permit recovery in Bartholomew v. Universe Tankships, Inc., 263 F. 2d 437 (C. A. 2d Cir. 1959), where the injured plaintiff was an American domiciliary. Bartholomew, unfortunately, apprehended what I conceive to be unintended reverberations in Justice Jackson’s Lauritzen language which it all but echoed: “looking through the facade of foreign registration and incorporation to the American ownership ... is essential unless the purposes of the Jones Act are to be frustrated by American shipowners intent upon evading their obligations under the law by the simple expedient of incorporating in a foreign country and registering their vessels under a foreign flag.” 263 F. 2d 437, 442.


author: Per Curiam. Mr. Justice Douglas,

text:
    MOON v. MARYLAND
    No. 267.
    Argued April 22, 1970
    Decided June 8, 1970

      Robert Anthony Jacques argued the cause and filed a brief for petitioner.

      Edward F. Borgerding, Assistant Attorney General of Maryland, argued the cause for respondent. With him on the brief was Francis B. Burch, Attorney General.
   Per Curiam.

“When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial?” This was the question the Court dealt with last Term in North Carolina v. Pearce, 395 U. S. 711. We held in that case that there exists no absolute constitutional bar to the imposition of a harsher sentence upon retrial, but that due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Id., at 725. “In order to assure the absence of such a motivation,” we held that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id., at 726. The Pearce case was decided on June 23, 1969.

In the present case the petitioner was found guilty of armed robbery by a Maryland jury and sentenced by the trial judge to 12 years’ imprisonment. The conviction was set aside on appeal by the Maryland Court of Appeals. At a second trial for the same offense in 1966 the petitioner was again convicted, and this time the trial judge imposed a sentence of 20 years’ imprisonment, less full credit for time served under the original sentence. This second conviction was affirmed on appeal. 250 Md. 468, 243 A. 2d 564. We granted certiorari, 395 U. S. 975, requesting counsel to brief and argue the question of the retroactivity of North Carolina v. Pearce, supra.

The facts that have emerged since the grant of cer-tiorari impel us to dismiss the writ as improvidently granted. As an appendix to its brief, the respondent has filed an affidavit of the judge who presided at the second trial, setting out in detail the reasons he imposed the 20-year prison sentence. Those reasons clearly include “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” But the dispositive development is that counsel for the petitioner has now made clear that there is no claim in this case that the due process standard of Pearce was violated. As counsel forthrightly stated in the course of oral argument, “I have never contended that Judge Pugh was vindictive.”

Accordingly, the writ is dismissed as improvidently granted.

Mr. Justice Black concurs in the result.

Mr. Justice Harlan would reverse the judgment below based on his separate opinions in Desist v. United States, 394 U. S. 244, 256, and in North Carolina v. Pearce, 395 U. S. 711, 744.

Mr. Justice Marshall took no part in the decision of this case.

Mr. Justice Douglas,

dissenting.

Petitioner was first convicted of armed robbery in 1964 and received a 12-year sentence. On appeal the judgment was reversed. He was tried again in 1966 for armed robbery, again convicted, and this time received a sentence of 20 years. Under Md. Ann. Code, Art. 27, § 488 (1967 Repl. Yol..), the maximum punishment possible was 20 years. As I stated in my separate opinion in North Carolina v. Pearce, 395 U. S. 711, 726, 727: “He [the defendant] risks the maximum permissible punishment when first tried. That risk having been faced once need not be faced again.” That is the respect I think is due the constitutional guarantee against double jeopardy.

I would reverse the judgment below.


author: Per Curiam.

text:
    DEPARTMENT OF SOCIAL SERVICES OF IOWA et al. v. DIMERY et al.
    No. 1491.
    Decided June 8, 1970
   Per Curiam.

The motion of the appellees for leave to proceed in forma pauperis is granted. The judgment is vacated and the case is remanded to the District Court for reconsideration in light of Beets v. Bozanich, 397 U. S. 82.

Mr. Justice Douglas dissents from the remand of this case.

Mr. Justice Marshall took no part in the consideration or decision of this case.


author: Mr. Chief Justice Burger

text:
    PRICE v. GEORGIA
    No. 269.
    Argued April 27, 1970
    Decided June 15, 1970

      Allyn M. Wallace argued the cause and filed a brief for petitioner.

      Mathew Robins, Assistant Attorney General of Georgia, argued the cause for respondent. With him on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, and Marion 0. Gordon, Assistant Attorney General.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted the writ to consider the power of a State to retry an accused for murder after an earlier guilty verdict on the lesser included offense of voluntary manslaughter had been set aside because of a trial error.

Petitioner was charged with the killing of Johnnie Mae Dupree in an indictment for the offense of murder filed in the Superior Court of Effingham County, Georgia. He entered a plea of not guilty and was tried on October 17, 1962. The jury returned a verdict of guilty to the lesser included crime of voluntary manslaughter and fixed the sentence at 10 to 15 years in the state penitentiary. The jury’s verdict made no reference to the charge of murder.

The Court of Appeals of Georgia reversed the conviction because of an erroneous jury instruction and ordered a new trial. Price v. State, 108 Ga. App. 581, 133 S. E. 2d 946 (1963).

On October 20, 1967, petitioner was again placed on trial for murder under the original indictment. Before the commencement of the second trial petitioner entered a plea of autrefois acquit, claiming that to place him again on trial for the offense of murder would expose him to double jeopardy in view of the verdict of voluntary manslaughter at the initial trial. The trial judge rejected the plea and, at the close of the trial, included instructions on the offense of murder in his charge to the jury so that the jury could have rendered a verdict of guilty on that offense. That jury, like the first, found petitioner guilty of voluntary manslaughter, and then fixed the penalty at 10 years’ imprisonment.

Petitioner sought direct review of his second conviction in the Supreme Court of Georgia, but that court transferred the case to the Court of Appeals of Georgia, declaring that “[o]nly questions as to the application of plain and unambiguous provisions of the Constitution of the United States being involved, . . the case is one for the consideration of the Court of Appeals . . . Price v. State, 224 Ga. 306, 307, 161 S. E. 2d 825, 826 (1968).

The Georgia Court of Appeals then heard the appeal and affirmed the second conviction, rejecting petitioner’s argument, among others, that his retrial for murder constituted double jeopardy. Price v. State, 118 Ga. App. 207, 163 S. E. 2d 243 (1968). The Court of Appeals held that in Brantley v. State, 132 Ga. 573, 64 S. E. 676 (1909), aff’d, 217 U.. S. 284 (1910), the Georgia Supreme Court had decided this question adversely to petitioner. The Court of Appeals then quoted from the Brantley case’s syllabus:

“When a person has been indicted for murder and convicted of voluntary manslaughter, if he voluntarily seeks and obtains a new trial, he is subject to another trial generally for the offense charged in the indictment, and upon such trial he cannot successfully interpose a plea of former acquittal of the crime of murder, or former jeopardy in regard thereto.” 118 Ga. App., at 208, 163 S. E. 2d, at 244.

Petitioner sought a rehearing, contending, as he contends here, that Brantley was no longer controlling. He relied on Green v. United States, 355 U. S. 184 (1957), and United States ex rel. Hetenyi v. Wilkins, 348 F., 2d 844 (C. A. 2d Cir. 1965), cert. denied, 383 U. S. 913 (1966). His contention was rejected. In deciding that Brantley was still a binding precedent as to it, the Georgia Court of Appeals noted that the Georgia Supreme Court had transferred the case to it as involving the application of only “plain and unambiguous” constitutional provisions. The petitioner’s motion was then denied. Thereafter the Georgia Supreme Court denied certiorari, and petitioner sought review in this Court. We granted the writ, 395 U. S. 975 (1969), and now reverse.

(1)

In United States v. Ball, 163 U. S. 662, 669 (1896), this Court observed: “The Constitution of the United States, in the Fifth Amendment, declares, ‘nor shall any person be subject [for the same offense] to be twice put in jeopardy of life or limb.’ The prohibition is not against being twice punished, but against being twice put in jeopardy . . . .” (Emphasis added.) The “twice put in jeopardy” language of the Constitution thus relates to a potential, i. e., the risk that an accused for a second time will be convicted of the “same offense” for which he was initially tried.

The circumstances that give rise to such a forbidden potential have been the subject of much discussion in this Court. In the Ball case, for example, the Court expressly rejected the view that the double jeopardy provision prevented a second trial when a conviction had been set aside. In so doing, it effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course. See Green v. United States, 355 U. S. 184, 189 (1957).

The continuing jeopardy principle necessarily is applicable to this case. Petitioner sought and obtained the reversal of his initial conviction for voluntary manslaughter by taking an appeal. Accordingly, no aspect of the bar on double jeopardy prevented his retrial for that crime. However, the first verdict, limited as it was to the lesser included offense, required that the retrial be limited to that lesser offense. Such a result flows inescapably from the Constitution’s emphasis on a risk of conviction and the Constitution’s explication in prior decisions of this Court.

An early case to deal with restrictions on retrials was Kepner v. United States, 195 U. S. 100 (1904), where the Court held that the Fifth Amendment’s double jeopardy prohibition barred the Government from appealing an acquittal in a criminal prosecution, over a dissent by Mr. Justice Holmes that argued that there was only one continuing jeopardy until the proceedings against the accused had been finally resolved. He held to the view that even if an accused was retried after the Government had obtained reversal of an acquittal, the second trial was part of the original proceeding.

Similar double jeopardy issues did not fully claim the Court’s attention until the Court heard argument in Green v. United States, 355 U. S. 184 (1957). There the petitioner had been tried and convicted of first-degree murder after an earlier guilty verdict on the lesser included offense of second-degree murder had been set aside on appeal. A majority of the Court rejected the argument that by appealing the conviction of second-degree murder the petitioner had “waived” his plea of former jeopardy with regard to the charge of first-degree murder.

The Court in the Green case reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner’s jeopardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on two premises. First, the Court considered the first jury’s verdict of guilty on the second-degree murder charge to be an “implicit acquittal” on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner’s jeopardy on the greater charge had ended when the first jury “was given a full opportunity to return a verdict” on that charge and instead reached a verdict on the lesser charge. 355 U. S. at 191. Under either of these premises, the holding in the Kepner case — that there could be no appeal from an acquittal because such a verdict ended an accused’s jeopardy — was applicable.

The rationale of the Green holding applies here. The concept of continuing jeopardy implicit in the Ball case would allow petitioner’s retrial for voluntary manslaughter after his first conviction for that offense had been reversed. But, as the Kepner and Green cases illustrate, this Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge. There is no relevant factual distinction between this case and Green v. United States. Although the petitioner was not convicted of the greater charge on retrial, whereas Green was, the risk of conviction on the greater charge was the same in both cases, and the Double Jeopardy Clause of the Fifth Amendment is written in terms of potential or risk of trial and conviction, not punishment.

The Georgia courts nonetheless rejected Green as a persuasive authority in favor of reliance on Brantley v. State, 132 Ga. 573, 64 S. E. 676 (1909), aff’d, 217 U, S. 284 (1910). The Brantley case presented a situation where a defendant’s appeal from a conviction for a lesser included offense ultimately led to retrial and conviction on the greater offense. After the second conviction had been affirmed on appeal,, the defendant sued out a writ of error to the Supreme Court of Georgia from this Court, contending “that the exemption from second jeopardy is one of the privileges and immunities of citizens of the United States, which the Fourteenth Amendment forbids a state to abridge”, that he had “been tried and acquitted by a jury of his country of the crime of murder”, and that “[h]e should never [sic] have been tried a second time only for the offense on which he obtained a new trial . ...” This Court tersely rejected these contentions as:

“absolutely without merit. It was not a case of twice in jeopardy under any view of the Constitution of the United States.” 217 U. S., at 285.

The Brantley case was decided by this Court at a time when, although the Court was actively developing an explication of federal double jeopardy doctrines based on the Fifth Amendment, it took a very restricted approach in reviewing similar state court decisions. While the Brantley holding may have had some vitality at the time the Georgia courts rendered their decisions in this case, it is no longer a viable authority and must now be deemed to have been overruled by subsequent decisions of this Court.

(2)

One further consideration remains. Because the petitioner was convicted of the same crime at both the first and second trials, and because he suffered no greater punishment on the subsequent conviction, Georgia submits that the second jeopardy was harmless error when judged by the criteria of Chapman v. California, 386 U. S. 18 (1967), and Harrington v. California, 395 U. S. 250 (1969).

We must reject this contention. The Double Jeopardy Clause, as we have noted, is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence. See United States ex rel. Hetenyi v. Wilkins, 348 F. 2d 844 (C. A. 2d Cir. 1965), cert. denied, 383 U. S. 913 (1966).

(3)

We asked the parties to submit post-argument mem-oranda directed to the question of whether petitioner can now be re-indicted or retried for voluntary manslaughter under Georgia law. These memoranda have been filed and indicate that the answer to our question appears to depend upon the construction of several Georgia statutes and on the power of Georgia courts to fashion remedial orders. Accordingly, although we reverse petitioner’s conviction, we also remand the case to enable the Georgia courts to resolve the issues pertaining to petitioner’s retrial, if any such retrial is to be had.

Reversed and remanded.

MR. Justice Blackmun took no part in the consideration or decision of this case.

       Georgia’s Constitution provides for direct review in the Georgia Supreme Court of, among others, “all cases that involve the construction of the Constitution of the State of Georgia or of the United States ...” Ga. Const., Art. VI, § 2, ¶ 4.

        Keener rested upon a portion of the Ball case that dealt with a criminal action that had been finally resolved. In Ball the Court had held that the Government could not re-indict an accused for an offense where a judgment of acquittal had been entered by a trial court with jurisdiction over the accused and the cause. 163 U. S., at 669-670. The Court relied partially on United States v. Sanges, 144 U. S. 310 (1892), where the Court had interpreted the Judiciary Act of 1891 to hold that the United States could not obtain review by a writ of error in a criminal case.

       Shortly after Kepner the Court was faced with a factual situation somewhat akin to that presented by the instant ease. In Trono v. United States, 199 U. S. 521 (1905)„ the defendants had been charged in a Philippine court with murder, and had been found guilty of the lesser offense of assault. On their appeal of the conviction the Philippine Supreme Court set aside the trial court’s judgment, found them guilty of murder, and increased their sentences. This Court affirmed. Four Justices took the position that by appealing the assault conviction, the defendants had waived any double jeopardy claim respecting the murder charge. Mr. Justice Holmes concurred in the result without stating his rationale. Kepner had been decided in the previous year, however, and his concurrence could have indicated that, for him, a waiver theory was too narrow — instead he considered that even an appeal by the Government was a continuing jeopardy, not a second jeopardy. Of the four dissenters, two, Justices McKenna and White, would have found a violation of the Constitution’s double jeopardy provision.
      Acceptance of either Trono’s waiver theory or Mr. Justice Holmes’ broad continuing jeopardy approach would indicate that Price could not complain of his retrial for the greater offense. But Trono has not survived unscathed to the present day. The “waiver theory” of four of the majority Justices in Trono was distinguished in Green as resting on “a statutory provision against double jeopardy pertaining to the Philippine Islands — a territory just recently conquered with long-established legal procedures that were alien to the common law.” 355 U. S., at 197.

       After Kepner and Green, the continuing jeopardy principle appears to rest on an amalgam of interests — e. g., fairness to society, lack of finality, and limited waiver, among others.

       See People v. Jackson, 20 N. Y. 2d 440, 231 N. E. 2d 722 (1967).

       Brief for Plaintiff in Error, No. 692, O. T. 1909, p. 2.

        Id., 5.

        Ibid.

       In Palko v. Connecticut, 302 U. S. 319 (1937), this Court refused to overturn a first-degree murder conviction obtained after the State had successfully appealed from a conviction of second-degree murder which was the product of a trial on first-degree murder charges. The Court ruled that federal double jeopardy standards were not applicable to the States.

        Palko was overruled in Benton v. Maryland, 395 U. S. 784 (1969), where this Court determined that the double jeopardy prohibition of the Fifth Amendment should be applied to the States through the Fourteenth Amendment. Brantley and PcAko were of the same genre, and Brantley necessarily shared Palko’s fate in Benton.

      The last of the decisions of the Georgia courts affirming the petitioner’s conviction was rendered on September 24, 1968, well before Benton was decided, But Benton has fully retroactive application, see Waller v. Florida, 397 U. S. 387, 391 n. 2 (1970), and the Georgia courts’ reliance on the themes of Brantley, though understandable, now has no place.

       There is a significant difference to an accused whether he is being tried for murder or manslaughter. He has reason for concern as to the consequences in terms of stigma as well as penalty. He must be prepared to meet not only the evidence of the prosecution and the verdict of the jury but the verdict of the community as well.