author: MR. Justice Stewart Mr. Justice Douglas,

text:
    MISSOURI PACIFIC RAILROAD CO. v. ELMORE & STAHL.
    No. 292.
    Argued March 3, 1964.
    Decided May 4, 1964.

      Thurman Arnold argued the cause for petitioner. With him on the briefs were Abe Fortas, Abe Krash and Dennis G. Lyons.

      John C. North, Jr. argued the cause and filed a brief for respondent.

      Gregory 8. Prince, William M. Moloney and J. Edgar McDonald filed a brief for the Association of American Railroads, as amicus curiae, urging reversal.

      Michael C. Bernstein and William Augello, Jr. filed a brief for the United Fresh Fruit & Vegetable Association et al., as amici curiae, urging affirmance.
   MR. Justice Stewart

delivered the opinion of the Court.

The question presented in this case is whether a common carrier which has exercised reasonable care and has complied with the instructions of the shipper, is nonetheless liable to the shipper for spoilage in transit of an interstate shipment of perishable commodities, when the carrier fails to prove that the cause of the spoilage was the natural tendency of the commodities to deteriorate. The petitioner is a common carrier and the respondent is a fruit shipper. The respondent sued the petitioner in a Texas court to recover for damage to a carload of honeydew melons shipped from Rio Grande City, Texas, to Chicago, Illinois.

In accordance with Texas practice, special issues were submitted to the jury at the close of the evidence. The jury affirmatively found that the melons were in good condition at the time they were turned over to the carrier in Rio Grande City, but that they arrived in damaged condition at their destination in Chicago. The jury also affirmatively found that the petitioner and its connecting carriers performed all required transportation services without negligence. The jury were instructed that “inherent vice” means “any existing defects, diseases, decay or the inherent nature of the commodity which will cause it to deteriorate with a lapse of time.” They answered “No” to a special issue asking whether they found from a preponderance of the evidence that the condition of the melons on arrival in Chicago was due solely to an inherent vice, as so defined, “at the time the melons were received by the carrier at Rio Grande City, Texas, for transportation.”

On the basis of these special findings, the trial judge entered judgment for damages against the carrier. The judgment was affirmed by the Texas Court of Civil Appeals, 360 S. W. 2d 839, and by the Texas Supreme Court, upon the ground that, as a matter of federal law, “the carrier may not exonerate itself by showing that all transportation services were performed without negligence but must go further and establish that the loss or damage was caused by one of the four excepted perils recognized at common law.” 368 S. W. 2d 99, 100. The court concluded, in view of the jury’s findings, that, although “[a] common carrier is not responsible for spoilage or decay which is shown to be due entirely to the inherent nature of the goods, . . . petitioner has not established that the damage in this case was caused solely by natural deterioration.” Id., at 103. We granted certiorari, 375 U. S. 811, because of a conflict with an almost contemporaneous decision of the United States Court of Appeals for the Ninth Circuit holding that “in the case of perishable goods the burden upon the carrier is not to prove that the damage resulted from the inherent vice of the goods, but to prove its own compliance with the rules of the tariff and the shipper’s instructions.” For the reasons which follow, we affirm the judgment before us.

The parties agree that the liability of a carrier for damage to an interstate shipment is a matter of federal law controlled by federal statutes and decisions. The Carmack Amendment of 1906, § 20 (11) of the Interstate Commerce Act, makes carriers liable “for the full actual loss, damage, or injury . . . caused by” them to property they transport, and declares unlawful and void any contract, regulation, tariff, or other attempted means of limiting this liability. It is settled that this statute has two undisputed effects crucial to the issue in this case: First, the statute codifies the common-law rule that a carrier, though not an absolute insurer, is liable for damage to goods transported by it unless it can show that the damage was caused by “(a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.” Bills of Lading, 52 I. C. C. 671, 679; Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U. S. 416, 421-423; Adams Express Co. v. Croninger, 226 U. S. 491, 509; Hall & Long v. Railroad Companies, 13 Wall. 367, 372. Second, the statute declares unlawful and void any “rule, regulation, or other limitation of any character whatsoever” purporting to limit this liability. See Cincinnati & Texas Pac. R. Co. v. Rankin, 241 U. S. 319, 326; Boston & M. R. Co. v. Piper, 246 U. S. 439, 445. Accordingly, under federal law, in an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon, the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability. Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481, 492; Chicago & E. I. R. Co. v. Collins Co., 249 U. S. 186, 191; Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U. S. 416, 420-423; Thompson v. James McCarrick Co., 205 F. 2d 897, 900.

The disposition of this case in the Texas courts was in accordance with these established principles. It is apparent that the jury were unable to determine the cause of the damage to the melons. “[T]he decay of a perishable cargo is not a cause; it is an effect. It may be the result of a number of causes, for some of which, such as the inherent defects of the cargo . . . the carrier is not liable.” But the jury refused to find that the carrier had borne its burden of establishing that the damaged condition of the melons was due solely to “inherent vice/’ as defined in the instruction of the trial judge — including “the inherent nature of the commodity which will cause it to deteriorate with a lapse of time.” The petitioner does not challenge the accuracy of the trial judge’s instruction or the jury’s finding. Its position is simply that if goods are perishable, and the nature of the damage is spoilage, and the jury affirmatively find that the carrier was free from negligence and performed the transportation services as required by the shipper, then the law presumes that the cause of the spoilage was the natural tendency of perishables to deteriorate even though the damage might, in fact, have resulted from other causes, such as the acts of third parties, for which no exception from carrier liability is provided. Consequently, it is argued, the question of “inherent vice” should not have been submitted to the jury, since the carrier in such a case does not bear the affirmative burden of establishing that the damage was caused by the inherent vice exception of the common law.

The petitioner appears to recognize that, except in the case of loss arising from injury to livestock in transit— a well-established exception to the general common-law rule based on the peculiar propensity of animals to injure themselves and each other — no distinction was made in the earlier federal cases between perishables and non-perishables. It is said, however, that the “large-scale development, in relatively recent years, of long distance transportation of fresh fruit and vegetables in interstate commerce has led to the evolution” of a new federal rule governing the carrier’s liability for spoilage and decay of perishables, similar to the “livestock rule,” which absolves the carrier from liability upon proof that the carrier has exercised reasonable care, and has complied with the shipper’s instructions.

We are aware of no such new rule of federal law. As recently as 1956, in Secretary of Agriculture v. United States, 350 U. S. 162, this Court gave no intimation that the general rule placing on the carrier the affirmative burden of bringing the cause of the damage within one of the specified exceptions no longer applied to cases involving perishable commodities.

Nor do Rules 130 and 135 of the Perishable Protective Tariff, relied upon by petitioner, reflect any such change in the federal law, when read in the light of the history underlying their adoption in 1920 by the Interstate Commerce Commission. Rule 130, declaring that a carrier does not “undertake to overcome the inherent tendency of perishable goods to deteriorate or decay,” merely restates the common-law rule that a carrier shall not be held liable in the absence of negligence for damage resulting solely from an inherent vice or defect in the goods. And Rule 135, declaring that the carrier shall not be “liable for any loss or damage that may occur because of the acts of the shipper or because the directions of the shipper were incomplete, inadequate or ill-conceived,” merely reiterates the common-law and bill-of-lading rule that the carrier shall not be liable, in the absence of negligence, for the “act or default of the shipper or owner.” Neither of these rules refers to the presumptions or burdens of proof imposed by the common law, and it is clear that it was not the intention of the Commission in approving these rules to modify or reduce the common-law liability of a carrier. Indeed, the Commission stated at the time these rules were adopted in 1920 that “such declarations can have no controlling effect, for the carrier’s liability for loss or damage is determined by the law. Nothing can be added to or subtracted from the law by limitations or definitions stated in tariffs .... There is the constant risk, therefore, if such declarations are included, of misstating the law and misleading the parties to no good purpose.” Perishable Freight Investigation, 56 I. C. C. 449, 482. Although the Commission concluded for this reason that this type of rule was generally objectionable, id., at 483, it recognized the desirability of giving “some warning to shippers” that a carrier was not liable for the inherent tendency of perishable goods to deteriorate or decay, or for the shipper’s failure to give proper transportation instructions. Ibid. The rules themselves reflect nothing more than this objective.

That this was the limited purpose of Rules 130 and 135 is confirmed by the Commission’s action in rejecting an additional proposal made by the carriers at the time these Rules were approved in 1920. The carriers sought to include a provision to be known as Item 20 (d), reading:

“Nothing in this tariff shall be construed as relieving carriers from such liability as may rest upon them for loss or damage when same is the result of carriers’ negligence.” See 56 I. C. C., at 481.

The Commission emphatically rejected the provision on the express ground that

“a carrier may be liable under the common law for loss or damage which is not the result of its negligence, and this item implies that there may be something in the tariff which seeks to limit such liability.” Id., at 483. (Emphasis supplied.)

Finally, all else failing, it is argued that as a matter of public policy, the burden ought not to be placed upon the carrier to explain the cause of spoilage, because where perishables are involved, the shipper is peculiarly knowledgeable about the commodity’s condition at and prior to the time of shipment, and is therefore in the best position to explain the cause of the damage. Since this argument amounts to a suggestion that we now carve out an exception to an unquestioned rule of long standing upon which both shippers and carriers rely, and which is reflected in the freight rates set by the carrier, the petitioner must sustain a heavy burden of persuasion. The general rule of carrier liability is based upon the sound premise that the carrier has peculiarly within its knowledge “[a] 11 the facts and circumstances upon which [it] may rely to relieve [it] of [its] duty .... In consequence, the law casts upon [it] the burden of the loss which [it] cannot explain or, explaining, bring within the exceptional case in which [it] is relieved from liability.” Schnell v. The Vallescura, 293 U. S. 296, 304. We are not persuaded that the carrier lacks adequate means to inform itself of the condition of goods at the time it receives them from the shipper, and it cannot be doubted that while the carrier has possession, it is the only one in a position to acquire the knowledge of what actually damaged a shipment entrusted to its care.

Affirmed.

Mr. Justice Douglas,

with whom Mr. Justice Black concurs,

dissenting.

The shipping contract in this case limited the liability of the carrier for damages in the nature of spoilage or decay to liability for negligence only. The shipping contract consists of the bill of lading and the applicable tariffs lawfully published and filed (Southern R. Co. v. Prescott, 240 U. S. 632, 637), from which there may be no departure. Id., at 638. The bill of lading provides that the goods are received, “subject to the classifications and tariffs in effect” and that every service to be performed thereunder “shall be subject to all the conditions not prohibited by law . . . including the conditions on back hereof . . . .” Its form and terms are part of Uniform Freight Classification No. 4, one of the tariffs lawfully filed and published pursuant to § 1 (6) of the Act. Classification No. 4 provides for various rates for various types of service and limits liability according to the rate paid, such limitations being held lawful by the Interstate Commerce Commission. Bills of Lading, 52 I. C. C. 671, 684 et seq.; Domestic Bill of Lading, 64 I. C. C. 357, 360-361.

Under Classification No. 4 the shipper has the option of shipping his goods either under the uniform bill of lading, with a “limited liability,” or under “a common carrier’s liability.” If he chooses the latter he pays a rate 10% higher. Here the shipper chose “limited liability.” One type of limitation is a tariff that limits the amount of damages for the loss of a shipment. See, e. g., Pierce Co. v. Wells, Fargo Co., 236 U. S. 278. There the amount of recovery for negligence is allowed to be limited where the filed tariffs so provide, the shipper having the privilege of paying an increased rate and obtaining liability for the full value. Id., at 283. Here there is no question of a carrier’s being exempt from any liability caused by negligence. Rather it turns on Rule 130 and Rule 135 of the Perishable Protective Tariff No. 17, the tariff brought into play by the bill of lading.

Rule 130 states: “Carriers furnishing protective service as provided herein do not undertake to overcome the inherent tendency of perishable goods to deteriorate or decay, but merely to retard such deterioration or decay insofar as may be accomplished by reasonable protective service, of the kind and extent requested by the shipper, performed without negligence.” (Italics added.)

Rule 135 states: “Property accepted for shipment under the terms and conditions of this tariff will be received and transported subject to such directions, only, and to such election by the shipper respecting the character and incidents of the protective service as are provided for herein. The duty of the carrier is to furnish without negligence reasonable protective service of the kind and extent so directed or elected by the shipper and carriers are not liable for any loss or damage that may occur because of the acts of the shipper or because the directions of the shipper were incomplete, inadequate or ill-conceived.” (Italics added.)

These provisions were approved by the Commission (see Perishable Freight Investigation, 56 I. C. C. 449, 483), the declarations being predicated upon the special hazard resulting from the perishable nature of the freight, or from the exercise by the shipper of some measure of control over the form or degree of protective service accorded.” Id., at 481.

Rules 130 and 135 are not in derogation of common-law liability which, as we said in Secretary of Agriculture v. United States, 350 U. S. 162, 165, note 9, was codified in § 20 (11) of the Act. That liability exempts the carrier only for damage caused by the shipper, acts of God, the public enemy, public authority, or “the inherent vice or nature of the commodity.” Rules 130 and 135 merely operate within the ambit of the last category, supplying appropriate standards for its application.

Such a tariff has the force and effect of a federal statute. See Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U. S. 411. “Until changed, tariffs bind both carriers and shippers with the force of law.” Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U. S. 516, 520; Crancer v. Lowden, 315 U. S. 631, 635.

It is under Uniform Freight Classification No. 4, the bill of lading, and the Rules of the Perishable Protective Tariff that we must decide this case.

The jury found that petitioner “performed without negligence the transportation services as provided by the terms and conditions of the bill of lading and as instructed by the plaintiff and in a reasonably prudent manner as to matters not covered by the bill of lading or the plaintiff’s instructions.” The jury, however, refused to find that the damage was caused by “the inherent nature of the commodity which will cause it to deteriorate with a lapse of time.” Judgment was entered for the shipper and this Court now affirms the judgment of the Texas Supreme Court.

I would reverse. In my opinion the Court should hold that a carrier of perishables overcomes the shipper’s prima facie case when he demonstrates, as here, that the nature of the damage is spoilage and decay and that he performed the protective services ordered and paid for by the shipper and all other duties in a reasonably prudent manner. Any other rule nullifies the provisions of the tariff which permit the shipper to select from numerous protective services and pay the corresponding charge, and which provide that “[t]he duty of the carrier is to furnish without negligence reasonable protective service of the kind and extent so directed or elected by the shipper . . . .”

The protective service ordered by respondent when the melons were delivered to petitioner for shipment was “standard refrigeration to destination.” An expert witness explained that “ 'standard refrigeration to destination’ . . . means that the car will be reiced to capacity at all regular icing stations.” Generally, the services available for fresh fruits, vegetables, berries or melons include refrigeration with salt; standard refrigeration; initial icing only; initial icing with limited number of re-icings; half-stage refrigeration; top or body icing; cooling in car; fumigation; ventilation; and protection against cold (heater service). The “[cjharges published herein for protective service,” says the tariff, “will be in addition to and independent of all freight rates . . . .” A shipper, in other words, by paying one charge gets one service and by paying a lesser charge gets a lesser service.

In the instant case, the melons were inspected at destination by the United States Department of Agriculture. The report said:

“Condition: Generally hard to firm; white to cream color. In most samples 1 to 4 melons per crate, some none, average approximately 15% damaged by light to dark brown discoloration, some of which is sunken, occurring over y8 to y2 of surface. In most samples none, some 1 or 2 melons per crate, average approximately 3% decay, Bacterial Soft Rot, generally in advanced stages.
“Grade: Now fails to grade U. S. No. 1 only account discoloration and decay.”

The defects in the melons were described by an inspector for the Railroad Perishable Inspection Agency, an organization formed by an association of carriers:

“Well, light brown discoloration is actually a surface blemish of the melon. It-’s quite common to find that condition at destination markets, and we believe it’s associated with immaturity. That is, if a melon is harvested a little bit immature during the grading and packing operation, it will get very slight abrasions, and then the surface will darken.
“Bacterial Soft Rot is a decay of — it’s common decay found in many fruits and vegetables. It’s caused by an organism, bacterial organism, and it’s of field origin. The bacteria are commonly found on plant debris and that sort of thing, and it develops when the conditions of temperature and moisture are ripe for the development, bacteria-wise. You find it very commonly at destination on a great many fruits and vegetables.
“Well, the temperatures we have here would be favorable to retard that decay, because the lower the temperature you have, the more you are going to retard the development of Soft Rot.
“It’s my opinion that the decay originated at shipping point, either during the harvesting or the packing operation, and that the decay developed so that it was noticeable at destination.”

The inherent weakness of perishable products and the owner’s superior familiarity with them are reflected in Rules 130 and 135 of the Perishable Protective Tariff, which, as I have said, relate the charge to the protective service desired by the shipper. The necessary protective service varies greatly for conditions sueh as those enumerated in Perishable Freight Investigation, supra, at 468:

Character of the commodity; variety of the same commodity; local climate; season when shipped; weather variations from year to year and from day to day; length of haul; condition of the commodity ; use to which it is to be put; package in which it is shipped; schedule of freight-train operation; pre-cooling of shipments; method of loading; weight loaded; character of car furnished.

And see Providence Fruit & Produce Exchange v. New York Central & Hudson R. Co., 33 I. C. C. 294, 295, 296.

Respondent could have selected any one of a wide variety of protective services, paying a higher or lower charge as the case may be. It was testified that respondent, for example, could have ordered a specified percentage of salt to be added to the icings so as to speed up the refrigeration process. Instead, for whatever reason, respondent ordered the cheaper service.

Notwithstanding this, the Court ignores the obvious difference between perishables and nonperishables and formulates a rule contrary to a valid tariff and the weight of authority.

As the Court of Appeals for the Ninth Circuit said, speaking through Judge Merrill: “. . . in the case of perishable goods the burden upon the carrier is not to prove that the damage resulted from the inherent vice of the goods, but to prove its own compliance with the rules of the tariff and the shipper’s instructions.” Larry’s Sandwiches, Inc., v. Pacific Electric R. Co., 318 F. 2d 690, 692-693.

In my opinion, the Court should recognize Uniform Freight Classification No. 4 and the Rules of the Perishable Protective Tariff as having the force of a statute, limiting liability to the service asked, paid for, and rendered. What we do today allows a shipper, under the guise of buying transportation service, to sell a car of produce to the railroad.

       The complaint contained four independent counts, each stating a separate claim for damage to a different shipment of perishables. The shipment involved here is solely that covered by Count 1, which related to the shipment of 640 crates of honeydew melons in Car ART 35042 from Rio Grande City to Chicago.

       The jury also refused to find that the damage was caused by acts or omissions of the shipper in the shipping instructions:
      “Do you find from a preponderance of the evidence that the worsened condition . . . was caused solely by carrying out the instructions for handling this shipment given by the shipper to the carrier, although these instructions, together with the obligations of the defendant uhder the bill of lading and in the performance of all other matters not covered by the bill of lading and the instructions were carried out in a reasonably prudent manner, if you have so found?
      “Answer ‘yes’ or ‘no-’
      “We, the jury, answer: No.”

        Larry’s Sandwiches, Inc., v. Pacific Electric R. Co., 318 F. 2d 690, 692-693. Cf. Trautmann Bros. Co. v. Missouri Pac. R. Co., 312 F. 2d 102; United States v. Reading Co., 289 F. 2d 7; Atlantic Coast Line R. Co. v. Georgia Packing Co., 164 F. 2d 1.

       34 Stat. 595.

       See 24 Stat. 386, as amended; 49 U. S. C. §20 (11).

       The meaning of § 20 (11) was reaffirmed by the Cummins Amendment of 1915. 38 Stat. 1196. Clearly recognizing that the phrase “caused by” did not limit the carrier’s liability to cases of negligence, but covered liability without fault except where the specific common-law exceptions could be established, the Cummins Amendment permitted the carrier to require the shipper to file a timely notice of his claim prior to filing a lawsuit in cases where the carrier was without fault but forbade such a condition where the loss resulted from the carrier’s negligence. See Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U. S. 416, 422. The proviso forbidding the notice requirement in cases of negligence was repealed in 1930 (46 Stat. 251).

        Schnell v. The Vallescura, 293 U. S. 296, 305-306.

       The petitioner does appear to argue, however, that the rule applied by the Texas courts required it to show some specific peculiar defect in this particular shipment of perishables. We find no intimation of such a requirement either in the trial court’s instructions or in the Texas Supreme Court’s opinion. The Texas courts merely placed upon the petitioner the affirmative burden of satisfying the jury that the cause of the spoilage was the natural tendency of perishables to deteriorate over time.

       “[T]he carrier is responsible without regard to the exercise of due care, even though the damage or loss be occasioned by the independent act of third persons.” Commodity Credit Corp. v. Norton, 167 F. 2d 161, 164-165.

       See, e. g., North Pennsylvania R. Co. v. Commercial Bank, 123 U. S. 727, 734.

       With respect to wholly intrastate shipments, this is the rule in a number of States. See, e. g., Southern Pacific Co. v. Itule, 51 Ariz. 25, 74 P. 2d 38.

       The Court noted that it was “conceded” that §20 (11) of the Interstate Commerce Act codified “the common-law rule making a carrier liable, without proof of negligence, for all damage to the goods transported by it, unless it affirmatively shows that the damage was occasioned by the shipper, acts of God, the public enemy, public authority, or the inherent vice or nature of the commodity.” 350 U. S., at 165-166 n. 9.

       “RULE 130 — CONDITION OF PERISHABLE GOODS NOT GUARANTEED BY CARRIERS.—
      “Carriers furnishing protective service as provided herein do not undertake to overcome the inherent tendency of perishable goods to deteriorate or decay, but merely to retard such deterioration or decay insofar as may be accomplished by reasonable protective service, of the kind and extent requested by the shipper, performed without negligence.” General Rules and Regulations of the Interstate Commerce Commission, Perishable Protective Tariff No. 17, I. C. C. No. 34, W. T. Jamison, Agent.

       “RULE 135 — LIABILITY OF CARRIERS.—
      “Property accepted for shipment under the terms and conditions of this tariff will be received and transported subject to such directions, only, and to such election by the shipper respecting the character and incidents of the protective service as are provided for herein. The duty of the carrier is to furnish without negligence reasonable protective service of the kind and extent so directed or elected by the shipper and carriers are not liable for any loss or damage that may occur because of the acts of the shipper or because the directions of the shipper were incomplete, inadequate or ill-conceived.” Ibid.

       The suggestion is made that because the shipper elected to ship under the terms and conditions of the Uniform Domestic Straight Bill of Lading, the carrier’s liability is limited to negligence. But insofar as damage to merchandise in transit is concerned, the bill provides for full “common-law liability.” Section 1 (a) of the bill provides that “[t]he carrier or party in possession of any of the property herein described shall be liable as at common law for any. loss thereof or damage thereto, except as hereinafter provided.” Section 1 (b) provides, in pertinent part, that a carrier shall not be liable for damage “resulting from a defect or vice in the property.” Nothing in the language of this contract even remotely suggests that the carrier does not bear the affirmative burden of proving that the damage was caused by a defect or vice in the property. Indeed, we think it significant that the identical bill of lading is used for the shipment of both perishable and nonperishable commodities, while a quite different contract, the Uniform Live Stock Contract, is employed in the shipment of livestock. See Uniform Freight Classification No. 4, p. 204.
      Limitations on liability contained in other sections of the bill of lading apply to circumstances not covered by the Carmack Amendment. It could not lawfully be otherwise, for the Amendment codified the common-law liability for damage to goods in transit, and its legal' effect was “to bar the Interstate Commerce Commission from legalizing tariffs limiting the common-law liability of a carrier for such damage. The common law, in imposing liability, dispensed with proof by a shipper of a carrier’s negligence in causing the damage.” Secretary of Agriculture v. United States, 350 U. S. 162, 173 (Frankfurter, J., concurring).

       Respondent has not seriously contended that such things as “Bacterial Soft Rot, generally in advanced stages” and “discoloration” are other than conditions of deterioration, spoilage and decay. The principal dispute at the trial centered around whether or not the shipper had in fact performed the requested services in a reasonably prudent manner, with respondent, more specifically, attempting to indicate that perhaps the refrigeration equipment was not functioning properly.

       The same expert witness discussed the various kinds of protective service available:
      “Q. . . . [W] ho-dictates or orders or determines what type of service shall be furnished on a refrigerator car on a particular shipment?
      “A. The shipper.
      “Q. And are there various kinds of services that he can select that he can direct the railroad to furnish?
      “A. Yes. The Perishable Tariff has — I wouldn’t know just how many, but perhaps a hundred different classes of service, starting with ventilation, which is no ice at all. He may ship with one icing only, initial icing, Rule 240. He may start with two icings, three and four. With standard icing- — which is icing at all regular icing stations — he, in addition to that, can specify salt, if he wants to, certain percentage of salt, which is supposed to step up the meltage and refrigeration. There are a hundred classes of service from which the shipper dictates what he thinks, in his opinion, will best protect his shipment.”
      Details on the numerous protective services available are contained in Perishable Protective Tariff 18, Local, Joint and Proportional Charges and Rules and Regulations Governing the Handling of Perishable Freight, National Perishable Freight Committee, I. C. C. 37 (1960).

       The only contradictory testimony came from respondent’s office manager who, after stating on cross-examination that he would not attempt any opinions about “decay and sunken areas and discoloration or things like that,” said on redirect examination:
      “Q. Have you developed in your experience in this business over seventeen years a general knowledge of what causes the decay in some instances ?
      “A. Yes. Improper refrigeration, I would say.”

       See Mirski v. Chesapeake & Ohio R. Co., 44 Ill. App. 2d 48, 194 N. E. 2d 361; Trautmann Bros. Co. v. Missouri Pac. R. Co., 312 F. 2d 102 (C. A. 5th Cir.); and Larry’s Sandwiches, Inc., v. Pacific Elec. R. Co., 318 F. 2d 690 (C. A. 9th Cir.).


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Harlan,

license: Public Domain

text:
    MERCER v. THERIOT.
    No. 336.
    Argued April 22, 1964.
    Decided May 4, 1964.

      H. Alva Brumfield argued the cause for petitioner. With him on the brief was Sylvia Roberts.

      Stanley E. Loeb argued the cause and filed a brief for respondent.
   Per Curiam.

Petitioner brought a wrongful death action against respondent in the United States District Court for the Eastern District of Louisiana. Jurisdiction was based on diversity of citizenship and amount in controversy. The jury returned a verdict for petitioner in the amount of $25,000, and the trial court denied respondent’s motions for a new trial and for judgment notwithstanding the verdict.

On appeal, a panel of the United States Court of Appeals for the Fifth Circuit reversed the judgment. The court held that the evidence was insufficient to sustain the verdict of the jury and remanded the case to the District Court "with directions to enter a judgment for the defendant unless plaintiff . . . makes a satisfactory showing that on another trial evidence of sufficient probative force to justify submission of the cause to the jury will be offered, in which event the judgment shall be for a new trial.” 262 F. 2d 754, 761. The court also held that there were prejudicial errors in the conduct of the trial which would have required a new trial even if there had been sufficient evidence. 262 F. 2d, at 758-759. At that stage in the litigation, this Court denied a petition for a writ of certiorari. 359 U. S. 983.

Petitioner then submitted to the District Court additional evidence in support of a motion for a new trial. The district judge, regarding himself bound by the ruling of the Court of Appeals that the evidence adduced at trial was insufficient, denied the motion on the ground that the additional “evidence, while persuasive, would be inadmissible in a new trial under the hearsay rule.” The Court of Appeals sitting en banc, over the dissent of four judges, affirmed the denial of a new trial. 316 F. 2d 635. Petitioner then sought, and we granted, a writ of certiorari. 375 U. S. 920.

We now “consider all of the substantial federal questions determined in the earlier stages of the litigation . . . ,” Reece v. Georgia, 350 U. S. 85, 87, for it is settled that we may consider questions raised on the first appeal, as well as “those that were before the Court of Appeals upon the second appeal.” Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U. S. 251, 257. Cf. Urie v. Thompson, 337 U. S. 163, 171-173; Messenger v. Anderson, 225 U. S. 436, 444.

We consider first the alleged errors in the conduct of the trial. The Court of Appeals deemed the trial court’s instruction regarding circumstantial evidence to be “highly prejudicial error” because it included a statement that “[tjhe testimony of all of the witnesses for the plaintiff has made out what we call in law a circumstantial case . . . .” 262 F. 2d, at 758. But as soon as this was called to the court’s attention, the following instruction was given:

“What I meant to say was that the witnesses for the Plaintiff . . . have sought to make out . . . through their evidence a circumstantial case. The question as to whether or not the case of the Plaintiff has been proved is for the Jury to determine.”

There was no objection to this re-instruction. We conclude that it properly stated the law and that it would have remedied any erroneous impression the jury may have received from the first instruction. The Court of Appeals also held that the trial judge committed a “grievous” error by permitting the introduction of certain hearsay evidence. Id., at 757. Counsel for the respondent did not object to this evidence but in fact elicited the same evidence in his examination of the witness. On this record, the admission of the evidence cannot be deemed a deprivation of “substantial justice.” Rule 61, Fed. Rules Civ. Proc. Finally, the Court of Appeals held that the inflammatory nature of the opening statement of petitioner’s counsel required a new trial. Counsel told the jury that he would establish that respondent “was a hit-and-run driver,” with “a complete disregard for . . . life.” Id., at 758. In the context of this case, however, those remarks do not seem significantly outside the bounds of permissible advocacy. If respondent knowingly struck the deceased, then he was a hit-and-run driver with little regard for human life, for it was undisputed that the driver of the automobile that hit the decedent did not stop to render aid or to report the accident.

Our examination of the trial record reveals not only that there were no errors affecting substantial justice, but also that the trial judge conducted the trial with scrupulous regard for the litigants’ rights.

We must consider next the sufficiency of the evidence adduced at trial. Our examination of the record indicates that the jury could reasonably have found the following facts: Decedent’s body was discovered on an island on the right side of a black top road; the body was two or three feet off the edge of the road; near the body tire marks ran off the road for some distance; death resulted from a violent blow; the time of death was fixed at about 7:30 p. m. ; the road was the only highway leading from the island to the respondent’s home; the respondent had spent that afternoon at a bar on the island and had consumed between 8 and 10 drinks of whiskey; he left the bar at about 7:30 p. m. and drove toward his home on the road on which decedent was killed; at the time of decedent’s death, few people were traveling that highway; on the day following the accident respondent’s automobile was without a right headlight rim and bore marks of a recent blow to the right headlight and to the right front of the hood; some blue coloring which “had an appearance that it could have been done by clothing ...” was on the hood; the decedent was wearing blue coveralls when he was struck; a towel with red stains which appeared to be blood was found concealed between the driver’s seat and seat cover; particles which looked like hair were found underneath the right side of the car; and the automobile was covered with a white substance which appeared to be a film of soap left after a washing.

We believe that the Court of Appeals erred in concluding that this evidence was insufficient to support the jury-verdict. The evidence was sufficient under any standard which might be appropriate — state or federal. See Dick v. New York Life Ins. Co., 359 U. S. 437, 444-445. The jury’s verdict, therefore, should not have been disturbed. Accordingly, the case is reversed and remanded to the District Court with instructions to enter judgment in accordance with the jury’s verdict.

It is so ordered.

Mr. Justice Harlan,

dissenting.

Certiorari was granted in this case because it appeared that the question was presented whether a state or federal standard determines the sufficiency of the evidence to support a jury verdict in cases in the district courts where jurisdiction is based on diversity of citizenship. That question was left undecided in Dick v. New York Life Ins. Co., 359 U. S. 437, 444-445. The Court having now concluded that the question is not before it, I believe that the writ of certiorari should be dismissed as improvidently granted. Nothing remains in the case, as the Court decides it, except the question whether the evidence was sufficient to support the verdict and questions concerning rulings of the trial judge. As to none of these questions can the Court do more than second-guess, one step further removed from the actual events, the District Court and the Court of Appeals. Accordingly, the case, as it revealed itself at argument, was not appropriate for review by this Court. See my opinion in Ferguson v. Moore-McCormack Lines, Inc., 352 U. S. 521, 559, and the dissenting opinion of Mr. Justice Frankfurter in the same case, id., at 524. The views there expressed apply with particular force in a diversity case, where the cause of action is founded on state rather than federal law. See the opinion of Mr. Justice Frankfurter, dissenting in Gibson v. Phillips Petroleum Co., 352 U. S. 874.

On the merits, I think it is not appropriately part of the business of this Court to substitute its judgment for that of the Court of Appeals, either on the issue of sufficiency of the evidence or on the gravity of the trial errors which led the Court of Appeals to conclude that the respondent had been “deprived ... of his day in court” and had been convicted “on rumor and hearsay, not of negligent fault but of bribery and corruption.” 262 F. 2d 754, 759.

      Our disposition of the case makes it unnecessary for us to consider the correctness of the trial court’s disposition of the motion for a new trial.


author: Per Curiam. Mr. Justice Clark,

text:
    CLINTON v. VIRGINIA.
    No. 294.
    Argued April 27, 1964.
    Decided May 4, 1964.

      Calvin H. Childress argued the cause and filed a brief for petitioner.

      D. Gardiner Tyler, Assistant Attorney General of Virginia, argued the cause for respondent. With him on the briefs was Robert Y. Button, Attorney General of Virginia.
   Per Curiam.

The motion to strike the supplemental brief on behalf of the respondent is denied. The judgment is reversed. Silverman v. United States, 365 U. S. 505; Ker v. California, 374 U. S. 23.

Mr. Justice Clark,

concurring: Since the Court finds that the “spiked” mike used by the police officers penetrated petitioner’s premises sufficiently to be an actual trespass thereof, I join in the judgment.

Mr. Justice White dissents.


author: Per Curiam.

text:
    WILLIS SHAW FROZEN EXPRESS, INC., v. UNITED STATES et al.
    No. 201.
    Argued April 23, 27, 1964.
    Decided May 4, 1964.

      A. Alvis Layne argued the cause for appellant. With him on the brief was John H. Joyce.-

      Stephen J. Poliak argued the cause for the United States et al. With him on the brief were Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum, Robert W. Ginnane and Frits R. Kahn.

   Per Curiam.

Appellant applied to the Interstate Commerce Commission under the grandfather clause of the Transportation Act of 1958, § 7 (c), 72 Stat. 573, 49 U. S. C. § 303 (b)(6), to transport as a common carrier over irregular routes frozen fruits, berries, and vegetables, and frozen seafoods and poultry when transported with such frozen fruits, berries, and vegetables. The Commission granted a certificate which substantially curtailed appellant’s prior operations. 89 M. C. C. 377. The District Court affirmed without opinion.

We think United States v. Carolina Freight Carriers Corp., 315 U. S. 475, requires reversal of the judgment and a remand to the Commission for reconsideration in light of appellant’s status and performance as a common carrier, the transportation characteristics and marketing pattern of these seasonal agricultural products, and the demonstrated ability of appellant to perform the services. Id., at 482-489.

Reversed and remanded.

Mr. Justice Harlan, Mr. Justice Stewart and Mr. Justice White dissent, agreeing with the three-judge District Court that the Commission correctly employed the statutory standards prescribed by Congress. “The precise delineation of the area or the specification of localities which may be serviced has been entrusted by the Congress to the Commission.” United States v. Carolina Freight Carriers Corp., 315 U. S. 475, 480. See also Alton R. Co. v. United States, 315 U. S. 15, 22-23.


author: Per Curiam. Mr. Justice Harlan.

text:
    UNITED STATES v. CONTINENTAL OIL CO.
    No. 834.
    Decided May 4, 1964.

      Solicitor General Cox, Assistant Attorney General Orrick and Robert B. Hummel for the United States.

      David T. Searls and A. T. Seymour for appellee.
   Per Curiam.

The judgment is vacated and the case is remanded to the United States District Court for the District of New Mexico for a trial on the merits of the case. Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464.

Separate Memorandum of

Mr. Justice Harlan.

This is an appeal by the Government in an antitrust case wherein the District Court entered summary judgment in favor of the defendant-appellee without opinion, findings of fact, or conclusions of law of any kind. The case is here on a typewritten record of some 2,000 pages, consisting of pleadings, briefs, depositions, exhibits, and the transcript of a pretrial conference. The district judge is now deceased.

The Court vacates the judgment below and remands the case for trial. Short of its being the law that the summary judgment procedure is wholly unavailable in a government antitrust case — a holding not before nor, as I understand matters, now made — I am unable to say that summary judgment was improvidently granted in this instance without making an examination of the entire record; certainly this disposition should not be made simply on the basis of the Government’s statements that triable issues of fact exist. To examine this large record without any illumination by the court below would place an intolerable burden on this Court.

In these circumstances I believe that the proper course is to vacate the judgment below and remand the case to the District Court, with leave to the defendant to renew its motion for summary judgment before another district judge. The Court’s action, which deprives the defendant of that opportunity, seems to me unwarranted. If summary judgment were again granted, the District Court would be expected to furnish a statement of its reasons, including such findings of fact and conclusions of law as might be appropriate. Cf. United States v. El Paso Natural Gas Co., 376 U. S. 651, 662 (concurring-dissenting opinion of Harlan, J.).


text:
    BONTZ v. KANSAS.
    No. 758.
    Decided May 4, 1964.

      Verne M. Laing for appellant.

      William M. Ferguson, Attorney General of Kansas, and Keith Sanborn for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Harlan are of the opinion that probable jurisdiction should be noted.


author: Mr. Justice Douglas Mr. Justice Clark,

text:
    SCHNEIDER v. RUSK, SECRETARY OF STATE.
    No. 368.
    Argued April 2, 1964.
    Decided May 18, 1964.

      Milton V. Freeman argued the cause for appellant. With him on the briefs were Robert E. Herzstein, Horst Kurnik and Charles A. Reich.

      Bruce J. Terris argued the cause for appellee. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg.

      Jack Wasserman, David Carliner and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
   Mr. Justice Douglas

delivered the opinion of the Court.

The Immigration and Nationality Act of 1952, 66 Stat. 163, 269, 8 U. S. C. §§ 1101, 1484, provides by § 352:

“(a) A person who has become a national by naturalization shall lose his nationality by—
“(1) having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, except as provided in section 353 of this title, whether such residence commenced before or after the effective date of this Act . . . .” (Italics added.)

Appellant, a German national by birth, came to this country with her parents when a small child, acquired derivative American citizenship at the age of 16 through her mother, and, after graduating from Smith College, went abroad for postgraduate work. In 1956 while in France she became engaged to a German national, returned here briefly, and departed for Germany, where she married and where she has resided ever since. Since her marriage .she has returned to this country on two occasions for visits. Her husband is a lawyer in Cologne where appellant has been living. Two of her four sons, born in Germany, are dual nationals, having acquired American citizenship under § 301 (a) (7) of the 1952 Act. The American citizenship of the other two turns on this case. In 1959 the United States denied her a passport, the State Department certifying that she had lost her American citizenship under § 352 (a)(1), quoted above. Appellant sued for a declaratory judgment that she still is an American citizen. The District Court held against her, 218 F. Supp. 302, and the case is here on appeal. 375. U. S. 893.

The Solicitor General makes his case along the following lines.

Over a period of many years this Government has been seriously concerned by special problems engendered when naturalized citizens return for a long period to the countries of their former nationalities. It is upon this premise that the argument derives that Congress, through its power over foreign relations, has the power to deprive such citizens of their citizenship.

Other nations, it is said, frequently attempt to treat such persons as their own citizens, thus embroiling the United States in conflicts when it attempts to afford them protection. It is argued that expatriation is an alternative to withdrawal of diplomatic protection. It is also argued that Congress reasonably can protect against the tendency of three years’ residence in a naturalized citizen’s former homeland to weaken his or her allegiance to this country. The argument continues that it is not invidious discrimination for Congress to treat such naturalized citizens differently from the manner in which it treats native-born citizens and that Congress has the right to legislate with respect to the general class without regard to each factual violation. It is finally argued that Congress here, unlike the situation in Kennedy v. Mendoza-Martinez, 372 U. S. 144, was aiming only to regulate and not .to punish, and that what Congress did had been deemed appropriate not only by this country but by many others and is in keeping with traditional American concepts of citizenship.

We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1.

While the rights of citizenship of the native born derive from § 1 of the Fourteenth Amendment and the rights of the naturalized citizen derive from satisfying, free of fraud, the requirements set by Congress, the latter, apart from the exception noted, “becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.” Osborn v. Bank of United States, 9 Wheat. 738, 827. And see Luria v. United States, 231 U. S. 9, 22; United States v. MacIntosh, 283 U. S. 605, 624; Knauer v. United States, 328 U. S. 654, 658.

Views of the Justices have varied when it comes to the problem of expatriation.

There is one view that the power of Congress to take away citizenship for activities of the citizen is nonexistent absent expatriation by the voluntary renunciation of nationality and allegiance. See Perez v. Brownell, 356 U. S. 44, 79 (dissenting opinion of Justices Black and Douglas) ; Trop v. Dulles, 356 U. S. 86 (opinion by Chief Justice Warren). That view has not yet commanded a majority of the entire Court. Hence we are faced with the issue presented and decided in Perez v. Brownell, supra, i. e., whether the present Act violates due process. That in turn comes to the question put in the following words in Perez:

“Is the means, withdrawal of citizenship, reasonably calculated to effect the end that is within the power of Congress to achieve, the avoidance of embarrassment in the conduct of our foreign relations . . . ?” 356 U. S., at 60.

In that case, where an American citizen voted in a foreign election, the answer was in the affirmative. In the present case the question is whether the same answer should be given merely because the naturalized citizen lived in her former homeland continuously for three years. We think not.

Speaking of the provision in the Nationality Act of 1940, which was the predecessor of § 352 (a)(1), Chairman Dickstein of the House said that the bill would “relieve this country of the responsibility of those who reside in foreign lands and only claim citizenship when it serves their purpose.” 86 Cong. Rec. 11944. And the Senate Report on the 1940 bill stated:

“These provisions for loss of nationality by residence abroad would greatly lessen the task of the United States in protecting through the Department of State nominal citizens of this country who are abroad but whose real interests, as shown by the conditions of their foreign stay, are not in this country.” S. Rep. No. 2150, 76th Cong., 3d Sess., p. 4.

As stated by Judge Fahy, dissenting below, such legislation, touching as it does on the “most precious right” of citizenship (Kennedy v. Mendoza-Martinez, 372 U. S., at 159), would have to be justified under the foreign relations power “by some more urgent public necessity than substituting administrative convenience for the individual right of which the citizen is deprived.” 218 F. Supp. 302, 320.

In Kennedy v. Mendoza-Martinez, supra, a divided Court held that it was beyond the power of Congress to deprive an American of his citizenship automatically and without any prior judicial or administrative proceedings because he left the United States in time of war to evade or avoid training or service in the Armed Forces. The Court held that it was an unconstitutional use of congressional power because it took away citizenship as punishment for the offense of remaining outside the country to avoid military service, without, at the same time, affording him the procedural safeguards granted by the Fifth and Sixth Amendments. Yet even the dissenters, who felt that flight or absence to evade the duty of helping to defend the country in time of war amounted to manifest nonallegiance, made a reservation. Justice Stewart stated:

“Previous decisions have suggested that congressional exercise of the power to expatriate may be subject to a further constitutional restriction — a limitation upon the kind of activity which may be made the basis of denationalization. Withdrawal of citizenship is a drastic measure. Moreover, the power to expatriate endows government with authority to define and to limit the society which it represents and to which it is responsible.
“This Court has never held that Congress’ power to expatriate may be used unsparingly in every area in which it has general power to act. Our previous decisions upholding involuntary denationalization all involved conduct inconsistent with undiluted allegiance to this country.” 372 U. S., at 214.

This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make. Moreover, while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is “so unjustifiable as to be violative of due process.” Bolling v. Sharpe, 347 U. S. 497, 499. A native-born citizen is free to reside abroad indefinitely without suffering loss of citizenship. The discrimination aimed at naturalized citizens drastically limits their rights to live and work abroad in a way that other citizens may. It creates indeed a second-class citizenship. Living abroad, whether the citizen be naturalized or native born, is no badge of lack of allegiance and in no way evidences a voluntary renunciation of nationality and allegiance. It may indeed be compelled by family, business, or other legitimate reasons.

Reversed.

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

Mr. Justice Clark,

whom Mr. Justice Harlan and Mr. Justice White join,

dissenting.

The appellant, a derivative citizen since 1950, has voluntarily absented herself from the United States for over a decade, living in her native Germany for the last eight years. In 1956 she married a German citizen there; she has since borne four (German national) sons there, and now says she has no intention to return to the United States.

I, too, sympathize with the appellant for the dilemma in which she has placed herself through her marriage to a foreign citizen. But the policy of our country is involved here, not just her personal consideration. I cannot say that Congress made her a second-class citizen by enacting § 352 (a)(1) of the Immigration and Nationality Act of 1952, 66 Stat. 269, 8 U. S. C. § 1484, placing a “badge of lack„of allegiance” upon her because she chose to live permanently abroad in her native land. If there is such a citizenship or badge, appellant, not the Congress, created it through her own actions. All that Congress did was face up to problems of the highest national importance by authorizing expatriation, the only adequate remedy. Appellant, with her eyes open to the result, chose by her action to renounce her derivative citizenship. Our cases have so interpreted such action for half a century. Mackenzie v. Hare, 239 U. S. 299 (1915). As applied to her I cannot say, as does the Court, that the command of Congress in §352 (a)(1) is discriminatory and, therefore, violative of due process. Mackenzie decided just the contrary, upholding a statute which provided that, although an American male did not suffer loss of citizenship during marriage to a foreign citizen, an American woman did. Here the appellant had statutory notice of the requirement; she voluntarily acted in disregard of it for eight years, intends to continue to do so, and in my view has therefore renounced her citizenship.

I.

There is nothing new about the practice of expatriating naturalized citizens who voluntarily return to their native lands to reside. It has a long-established and widely accepted history. Our concept of citizenship was inherited from England and, accordingly, was based on the principle that rights conferred by naturalization were subject to the conditions reserved in the grant. See Calvin’s Case, 7 Co. Rep. 1 a, 77 Eng. Rep. 377 (1608). It was with this in mind that the Founders incorporated Art. I, § 8, cl. 4, into our Constitution. This clause grants Congress the power “[t]o establish an uniform Rule of Naturalization . . . .” And,- as Madison himself said, these words meant that the “Natl. Legislre. is to have the right of regulating naturalization, and can by virtue thereof fix different periods of residence as conditions of enjoying different privileges of Citizenship . . . .” II Farrand, The Records of the Federal Convention of 1787, 235 (1911). This was confirmed during the debate in the First Congress on the first naturalization bill when Alexander White of Virginia suggested that if the residence requirement were stricken, “another clause ought to be added, depriving [naturalized] persons of the privilege of citizenship, who left the country and staid abroad for a given length of time.” 1 Annals of Congress 1110 (1790). James Madison answered:

“It may be a question of some nicety, how far we can make our law to admit an alien to the right of citizenship, step by step; but there is no doubt we may, and ought to require residence as an essential.” Id., at 1112.

The records show not only that it was the consensus of the members of the House that step-by-step naturalization was permissible but also that not a word was spoken against the Madison statement that required residence was constitutionally allowed. This debate points up the fact that distinctions between naturalized and native-born citizens were uppermost in the minds of the Framers of the Constitution.

' The right to renounce citizenship acquired at birth was a serious question during the War of 1812. In 1814 the Government, through Secretary of State Monroe, circulated an anonymous pamphlet, A Treatise on Expatriation, which declared that “[expatriation . . . is nothing more than emigration, with an intention to settle permanently abroad.” At 21. Since that time it has traditionally been our policy to withdraw diplomatic protection from naturalized citizens domiciled in their native states. See, e. g., letter from Secretary of State Adams to Shaler (1818), III Moore, Digest of International Law 735-736 (1906); letter from United States Minister to Prussia Wheaton to Knoche (1840), S. Exec. Doc. No. 38, 36th Cong., 1st Sess., 6-7; letter from Secretary of State Fish to Wing (1871), II Wharton, Digest of International Law of the United States 361-362 (2d ed. 1887) ; communication from Secretary of State Hay to American diplomats (1899), III Moore, supra, at 950. During all this period the United States protected all citizens abroad except naturalized ones residing in their native lands. In 1868 the Bancroft treaty was negotiated with the North German Confederation. It provided that each country would recognize naturalization of its native-born citizens by the other country. It further provided that “[i]f a German naturalized in America renews his residence in North Germany, without the intent to return to America, he shall be held to have renounced his naturalization . . . [and] [t]he intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country.” ' 15 Stat. 615, 616-617. The United States has similar rights under existing treaties with 20 countries. All of these rights will be stricken by the decision today.

In the late nineteenth century the Government adopted a practice of informing naturalized citizens residing in their native lands without intent to return that they had expatriated themselves. The doctrine underlying this procedure has since been followed on several occasions by commissions arbitrating the claims of American citizens against foreign governments. See III Moore, History and Digest of International Arbitrations 2562-2572, 2579-2581 (1898).

As early as 1863 President Lincoln had suggested to Congress that it “might be advisable to fix a limit beyond which no citizen of the United States residing abroad may claim the interposition of his Government.” 7 Messages and Papers of the Presidents 3382 (Richardson ed. 1897). However, no legislation was enacted in the nineteenth century. In 1906, at the request of Congress, Secretary of State Elihu Root appointed a “citizenship board” to consider this and other related matters. The Board’s report stated:

“Expressed renunciation of American citizenship is, however, extremely rare; but the class of Americans who separate themselves from the United States and live within the jurisdiction of foreign countries is becoming larger every year, and the question of their protection causes increasing embarrassment to this Government in its relations with foreign powers.” H. Doc. No. 326, 59th Cong., 2d Sess., 25.

The Board’s recommendations led to the enactment of the Nationality Act of 1907, 34 Stat. 1228. That Act included a rebuttable presumption that residence for two years in the foreign state from which a naturalized American citizen came constituted a forfeiture of American citizenship. This provision proved difficult to administer and in 1933 President Roosevelt appointed a cabinet committee (the Secretary of State, the Attorney General and the Secretary of Labor) to review the nationality laws. The committee issued an extensive report and draft statute which provided for expatriation of naturalized citizens who resided continuously in their country of origin for three years. This provision was incorporated into the Nationality Act of 1940, 54 Stat. 1137,1170, and was carried over into the Immigration and Nationality Act of 1952, modified so as not to require “uninterrupted physical presence in a foreign state 66 Stat. 163, 170, 269.

II.

This historical background points up the international difficulties which led to the adoption of the policy announced in § 352 (a)(1). Residence of United States nationals abroad has always been the source of much international friction and the ruling today will expand these difficulties tremendously. In 1962 alone 919 persons were expatriated on the basis of residence in countries of former nationality. The action of the Court in voiding these expatriations will cause no end of difficulties because thousands of persons living throughout the world will come under the broad sweep of the Court’s decision. It is estimated that several thousand of these American expatriates reside in iron curtain countries alone. Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary on S. Res. 49, 85th Cong., 1st Sess., 133. The protection of American citizens abroad has always been a most sensitive matter and continues to be so today. This is especially true in Belgium, Greece, France, Iran, Israel, Switzerland and Turkey, because of their refusal to recognize the expatriation of their nationals who acquire American citizenship. The dissension that springs up in some of these areas adds immeasurably to the difficulty.

Nor is the United States alone in making residence abroad cause for expatriation. Although the number of years of foreign residence varies from 2 to 10 years, 29 countries, including the United Kingdom and 7 Commonwealth countries, expatriate naturalized citizens residing abroad. Only four — Czechoslovakia, Poland, Afghanistan, and Yugoslavia — apply expatriation to both native-born and naturalized citizens. Even the United Nations sanctions different treatment for naturalized and native-born citizens; Article 7 of the United Nations Convention on the Reduction of Statelessness provides that naturalized citizens who reside abroad for seven years may be expatriated unless they declare their intent to retain citizenship.

III.

The decisions of this Court have consistently approved the power of Congress to enact statutes similar to the one here stricken down. Beginning with Mackenzie v. Hare, supra, where the Court sustained a statute suspending during coverture the citizenship of a native-born American woman who married a foreigner, the Court has invariably upheld expatriation when there is a concurrence on the part of the citizen. In Mackenzie exactly the same argument was made that appellant urges here. Indeed, the Court uses the same opinion in this case to strike down § 352 (a)(1) as was urged in Mackenzie, namely, Osborn v. Bank of the United States, 9 Wheat. 738 (1824), where Chief Justice Marshall remarked: “The constitution does not authorize Congress to enlarge or abridge . . . [the] rights” of citizens. At 827. But the Court in Mackenzie, without dissent on the merits, held:

“It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into [marriage], with notice of the consequences. We concur with counsel that citizenship is of tangible worth, and we sympathize with plaintiff in her desire to retain it and in her earnest assertion of it. But there is involved more than personal considerations. As we have seen, the legislation was urged by conditions of national moment. . . . This is no arbitrary exercise of government. It is one which, regarding the international aspects, judicial opinion has taken for granted would not only be valid but demanded.” At 311-312.

And later in Savorgnan v. United States, 338 U. S. 491 (1950), we approved the doctrine of Mackenzie, supra. Six years ago in Perez v. Brownell, 356 U. S. 44 (1958), we held that an American citizen voting in a foreign election expatriated himself under § 401 of the Nationality Act of 1940, 54 Stat. 1137. We again cited Mackenzie, supra, with approval, describing the central issue in expatriation cases

“as importing not only something less than complete and unswerving allegiance to the United States but also elements of an allegiance to another country in some measure, at least, inconsistent with American citizenship.” At 61.

The present case certainly meets this test. Appellant’s prolonged residence in her former homeland, the allegiance her husband and children owe to it, and her intention not to return to the United States all show some measure of allegiance to Germany. At the very least, these factors show much less than “unswerving allegiance to the United States” and are “inconsistent with American citizenship.” Indeed, in this respect the instant case is much stronger than Mackenzie, supra.

The Court bases its decision on the fact that § 352 (a)(1) applies only to naturalized, not native-born, citizens. It says this results in a discrimination in violation of the Due Process Clause of the Fifth Amendment. I think that in so doing the Court overspeaks itself. If Congress has the power to expatriate all citizens, as the Court’s position implies, it would certainly have like power to enact a more narrowly confined statute aimed only at those citizens whose presence in their native homelands can embroil the United States in conflict with such countries. As the history shows, the naturalized citizen who returns to his homeland is often the cause of the difficulties. This fact is recognized by the policy of this country and of 25 others and by a United Nations Convention as well. Through § 352 (a)(1), Congress has restricted its remedy to correction of the precise situations which have caused the problem. In adopting the classification “naturalized citizen” has the Congress acted with reason? Many times this Court has upheld classifications of more significance. Hirabayashi v. United States, 320 U. S. 81 (1943) (curfew imposed on persons of Japanese ancestry, regardless of citizenship, in military areas during war); Heim v. McCall, 239 U. S. 175 (1915) (aliens not employable on public works projects); Ter race v. Thompson, 263 U. S. 197 (1923) and Porterfield v. Webb, 263 U. S. 225 (1923) (aliens who were ineligible for citizenship not permitted to hold land for farming or other purposes); Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392 (1927) (aliens not permitted to conduct pool and'billiard rooms). As in Mackenzie v. Hare, supra, these cases were sustained on the basis that the classification was reasonably devised to meet a demonstrated need. Distinctions between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President, Art. II, § 1. A naturalized citizen must wait seven years after he obtains his citizenship before he is eligible to sit in the House, Art. I, § 2. For the Senate, the waiting period is nine years, Art. I, § 3. Do these provisions create a second-class citizenship or place a “badge of lack of allegiance” on those citizens? It has never been thought so until today. As I have shown, in the debate in the First Congress on the first naturalization bill, it was proposed to expatriate naturalized citizens who resided abroad. During the entire nineteenth century only naturalized citizens were, as a general rule, expatriated on the grounds of foreign residence, and for nearly 100 years our naturalization treaties have contained provisions authorizing the expatriation of naturalized citizens residing in their native lands. Indeed, during the consideration of the 1952 Act, not a single witness specifically objected to § 352 (a)(1). Even the Americans for Democratic Action suggested that it was a reasonable regulation. It is a little late for the Court to decide in the face of this mountain of evidence that the section has suddenly become so invidious that it must be stricken as arbitrary under the Due Process Clause.

Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), is not apposite. There expatriation for the offense of remaining outside the country to avoid military service was held to constitute punishment without a criminal trial. The majority here indicates that a reservation made by MR. Justice Stewart in his dissent in that case supports its present view. I think not. Indeed, my Brother Stewart’s conclusion that our cases “upholding involuntary denationalization all involved conduct inconsistent with undiluted allegiance to this country,” at 214, fits this case like a glove. Here appellant has been away from the country for 10 years, has married a foreign citizen, has continuously lived with him in her native land for eight years, has borne four sons who are German nationals, and admits that she has no intention to return to this country. She wishes to retain her citizenship on a standby basis for her own benefit in the event of trouble. There is no constitutional necessity for Congress to accede to her wish.

I dissent.

      The exceptions relate, inter alia, to residence abroad in the employment of the United States and are not relevant here.

       For other aspects of the ease see 372 U. S. 224.


author: Mr. Justice Douglas

text:
    CLAY v. SUN INSURANCE OFFICE, LTD.
    No. 470.
    Argued April 28, 1964.
    Decided May 18, 1964.

      Paschal C. Reese argued the cause and filed briefs for petitioner.

      Bert Cotton argued the cause for respondent. With him on the brief were Maurice Mound and Hortense Mound.

      James' T. Carlisle, Assistant Attorney General of Florida, pro hac vice, by special leave of Court, argued the cause for the State of Florida, as amicus curiae, urging reversal. With him on the brief were James W. Kynes, Attorney General of Florida, and Robert J. Kelly, First Assistant Attorney General.
   Mr. Justice Douglas

delivered the opinion of the Court.

This case, which invoked the diversity jurisdiction of the Federal District Court in a suit to recover damages under an insurance policy, was here before. 363 U. S. 207. The-initial question then as now is whether the 12-month-suit clause in the policy governs, in which event the claim is barred, or whether Florida’s statutes nullifying such clauses if they require suit to be filed in less than five years are applicable and valid, in which event the suit is timely. The policy was purchased by petitioner in Illinois while he was a citizen and resident-of that State. Respondent, a British company, is licensed to do business in Illinois, Florida, and several other States.

A few months after purchasing the policy, petitioner moved to Florida and became a citizen and resident of that State; and it was in Florida that the loss occurred two years later. When the case reached here, the majority view was that the underlying constitutional question— whether consistently with due process, Florida could apply its five-year statute to this Illinois contract — should not be reached until the Florida Supreme Court, through its certificate procedure, had construed that statute and resolved another local law question. On remand the Court of Appeals certified the two questions to the Florida Supreme Court, which answered both questions in petitioner’s favor. 133 So. 2d 735. Thereafter the Court of Appeals held that it was not compatible with due process for Florida to apply its five-year statute to this contract and that judgment should be entered for respondent. 319 F. 2d 505. We again granted-certiorari. 375 U. S. 929.

While there are Illinois cases indicating that parties may contract — as here — for a shorter period of limitations than is provided by the Illinois statute, we are referred to no Illinois decision extending that rule into other States whenever claims on Illinois contracts are sought to be enforced there. We see no difficulty whatever under either the Full Faith and Credit Clause or the Due Process Clause. We deal with an ambulatory contract on which suit might be brought in any one of several States. Normally, as the Court held in Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493, 502, a State having jurisdiction over a claim deriving from an out-of-state employment contract need not substitute the conflicting statute of the other State (workmen’s compensation) for its own statute (workmen’s compensation) — where the employee was injured in the course of his employment while temporarily in the latter State. We followed the same route in Watson v. Employers Liability Assurance Corp., 348 U. S. 66, where we upheld a state statute allowing direct actions against liability insurance companies in the State of the forum, even though a clause in the contract, binding in the State where it was made, prohibited direct action against the insurer until final determination of the obligation of the insured.

The Court of Appeals relied in the main on Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U. S. 143, and Home Ins. Co. v. Dick, 281 U. S. 397. Those were cases where the activities in the State of the forum were thought to be too slight and too casual, as in the Delta & Pine Land Co. case (292 U. S., at 150), to make the application of local law consistent with due process, or wholly lacking, as in the Dick case. No deficiency of that order is present here. As Mr. Justice Black, dissenting, said when this case was here before:

“Insurance companies, like other contractors, do not confine their contractual activities and obligations within state boundaries. They sell to customers who are promised protection in States far away from the place where the contract is made. In this very case the policy was sold to Clay with knowledge that he could take his property anywhere in the world he saw fit without losing the protection of his insurance. In fact, his contract was described on its face as a ‘Personal Property Floater Policy (World Wide).’ The contract did not even attempt to provide that the law of Illinois would govern when suits were filed anywhere else in the country. Shortly after the contract was made, Clay moved to Florida and there he lived for several years. His insured property was there all that time. The company knew this fact. Particularly since the company was licensed to do business in Florida, it must have known it might be sued there . . . .” 363 U. S., at 221.

Order of United Commercial Travelers v. Wolfe, 331 U. S. 586, involved a six-month-suit clause; but it is a highly specialized decision dealing with unique facts — a suit on an insurance policy issued by an Ohio fraternal society, incorporating its constitution and by-laws, and involving what the Court called the “indivisible unity” of the fraternal society. Id., at 606. In that case the additional time afforded by the statute of limitations of South Dakota, where the case was tried, was not allowed to be applied to the contract. We do not extend that rule nor apply it here, for Florida has ample contacts with the present transaction and the parties to satisfy any conceivable requirement of full faith and credit or of due process.

Reversed.

       Fla. Stat. Ann. (1960) §§ 95.03, 95.11 (3).

       Fla. Stat. Ann. (1957) §25.031; Fla. App. Rule 4.61. See Sun Ins. Office, Ltd., v. Clay, 133 So. 2d 735. For other instances of our use of that certificate procedure see Dresner v. Tallahassee, 375 U. S. 136, and Aldrich v. Aldrich, 375 U. S. 75, 249.

       The meaning of an “all risks” clause.

       See cases cited in 363 U. S., at 217, note 12.

       “. . . [N]othing in any way relating to the policy sued on, or to the contracts of reinsurance, was ever done or required to be done in Texas. All acts relating to the making of the policy were done in Mexico. All in relation to the making of the contracts of re-insurance were done there or in New York. And, likewise, all things in regard to'performance were to be done outside of Texas. Neither the Texas laws nor the Texas courts were invoked for any purpose, except by Dick in the bringing of this suit. The fact that Dick's permanent residence was in Texas is without significance. At all times here material, he was physically present and acting in Mexico.” 281 U. S., at 408.

       A motion to strike a brief amicus filed by Florida is denied.