THE JUDICIAL COUNCIL OF CALIFORNIA

(an administrative agency)

doing business as

THE NEVADA COUNTY SUPERIOR COURT

(a fictitious business)

THE STATE BAR OF CALIFORNIA	|	Memorandum of Points
AND DOE(S) PRESENTLY UNKNOWN	|	and Authorities concerning
	|	Admiralty in California.
versus	|
	|	Case number [?]
Thomas Murrell Thornhill III	|
(a natural born, adult man)	|	at: 201 Church Street
	|	Nevada City, California
_______________________________	/	Date: [?]

1.

The appearance of the parties ... and their proceeding to trial without objection at the time can make no difference. For consent cannot create a Court, or give jurisdiction to a tribunal otherwise possessing none. (Germond v. The People, 1 Hill, 343.) ..."it was absolutely essential to the validity of a judgment that it be rendered by a Court of competent jurisdiction, at the time and the place, and in the form prescribed by law." (Wicks v. Ludwig, 9 Cal. 175; Smith v. Chichester, 1 Cal. 409.) The tribunal before which the trial was had was, in no legal sense, a Court. It had no authority whatever in the premises. The whole proceeding is a nullity,... (emphasis added) Norwood v. Kenfield (1867), 34 Cal. 329, 333.

2.

Congress finally enacted the Admiralty Extension Act, 62 Stat. 496 (1948), 46 U.S.C.A. § 740, which provides in pertinent part:

"The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.
"In any such case suit may be brought in rem or in personam according to the principles of law and the rules of practice obtaining in cases where the injury or damage has been done and consummated on navagitable water * * *."

It will be noted from legislative history of the Act, specifically Sen.Rep. No. 1593 (June 11, 1948), 1948 U.S.Code Cong. Serv.1898, that the express intent of Congress was to "overrule" Martin v. West, 1911, 222 U.S. 191, 32 S.Ct. 42, 56 L.Ed. 159; Cleveland Terminal R. R. Co. v. Steamship Co., 1908, 208 U.S. 316, 28 S.Ct. 414, 52 L.Ed. 508; and The Troy, 1908, 208 U.S. 321, 28 S.Ct. 416, 52 L.Ed. 512....
The Senate Report did contain the following note:

"Adoption of the bill will not create new causes of action. It merely specifically directs the courts to exercise the admiralty and maritime jurisdiction of the United States already conferred by article III, section 2 of the Constitution and already authorized by the Judiciary acts. Moreover, there will still remain available the right to a common law remedy which the Judiciary Acts * * * have expressly saved to claimants."

...In the Matson case, supra [United States v. Matson Nav. Co. (9th Cir. 1953), 201 Fed. 610], the reasoning of Judge Stephens is analytical to be sure. The Constitutional grant of admiralty jurisdiction is to be measured by reference to the intent of the framers of the Constitution itself, to their conception of the admiralty and maritime law. An Act of Congress to be upheld must be "within the scope of admiralty and maritime jurisdiction, as known and understood in the United States when the Constitution was adopted." The Genese Chief, 1851, 12 How. 443, 453, 53 U.S. 443, 453, 13 L.Ed. 1058. The scope of jurisdiction is not merely that which was actually exercised by the Colonies and England herself.

"[T]he constitutional grant must be liberally construed to encompass all that can be included in the ancient laws, customs, and usages of the sea, not only in England before the restrictive statutes were passed, but also in the maritime courts of all other powers of Europe." 201 F.2d 615, summarizing the theory of Mr. Justice Story in De Lovio v. Boit, C.C.D.Mass.1815, 7 Fed.Cas. 418 (No. 3,776).

...The authority relied upon in the Matson case for English law is The Admiralty Court Jurisdiction Act, 1861, 24 & 25 Vict., c. 10,...
...The authority for Continental law is the Ordonnance de la Marine of Louis XIV, 1681, L.I. tit. 2,...
(information in brackets added) Fematt v. City of Los Angeles (1961), 196 F.Supp. 89, 91-92.

3. In the case of Averill v. The Steamer Hartford, 2 Cal. 308, we decided that the Act "providing for actions against steamers, vessels, and boats confers upon the District Courts Admiralty jurisdiction pro tanto, and the proceedings in such actions must be governed by the principles and forms of Admiralty courts, except when otherwise controlled or directed by the Act." ...
In the case of Gordon v. Johnson 4 Cal. 368, we had occasion to examine and settle the proper rule of construction as to the judicial powers relatively of the Federal and State Governments....
It results from the views we have taken, that the States are not deprived by the Constitution of the United States of the power to confer upon their own Courts all Admiralty and Maritime jurisdiction; that consequently Congress has no power to make this jurisdiction exclusive to the Federal courts; and that therefore the Act under review, of the California Legislature conferring Admiralty jurisdiction upon the District Courts of the State, is constitutional and valid. Taylor v. Steamship Columbia (1855) 5 Cal. 268, 273-275. 4. From Compiled Laws of California (1853), chapter CXXXIII, pp. 738, 740 , concerning the original district courts:

AN ACT concerning the Courts of Justice of this State and Judicial Officers.--[Passed May 10, 1853.]
...SECTION 1. The following shall be courts of justice for this state:
...2d. The district courts....
...SEC. 12. The existing division of the state into eleven judicial districts shall, continue, and the said districts shall be composed of the several counties, and numbered as follows:...

54. The State is divided into Seventeen Judicial Districts.
55. There must be a District Court held in each of the judicial districts.

...79. All records, books, papers, causes, actions, proceedings, and appeals lodged, deposited, or pending in the District Court or Courts, County Court, Probate Court, Municipal Court, or Municipal Court of Appeals, of, in, or for any county, or city and county, of the State, abolished by the Constitution [of 1879], are transferred to the Superior Court of such county, or city and county, which has the same power and jurisdiction over them as if they had been commenced therein, or, in cases of appeal, appealed thereto.

SECTION 1. In all cases in which, on the first day of January, one thousand eight hunderd and eighty, any authority or jurisdiction was by law vested in the County or Probate Court of any county, or in the Judge thereof, or in any District Court of such county, or in the Judge thereof, such jurisdiction and authority shall hereafter, while such law continues in force, be vested in and exercised by the Superior Court of such county, or by a Judge thereof.

SECTION 1. The following acts, together with all amendments thereof and all acts supplementary thereof, are repealed:
Year Chapter
...1880 ---------31

10.

An aggrieved party may, at his election, look to the law of the flag,[82] and it has been said that parties who have created an illusory flag cannot insist upon the application of the law of the country where the ultimate control and ownership rest.[83] 2 Corpus Juris Secundum (1995), ADMIRALTY, § 12.

In the leading case of Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, Mr. Justice Jackson said:

"Perhaps the most venerable and universal rule of maritime law relevant to our problem is that which gives cardinal importance to the law of the flag."

It seems clear that something more than "substantial contacts" must be shown before the law of the forum will disregard the law of the flag and thereby invoke the law of the nation where "substantial financial contacts" are maintained. This is not a case where the law of the forum (United States) is also the place of "substantial contacts"... Aivaliotis v. S.S. Atlantic Glory (1963) 214 F.Supp. 568, 571.

The doctrine invoking the flag of convenience was essentially for the benefit of an aggrieved party seeking relief in a forum maintaining substantial contacts with the vessel of a foreign flag. The fact that the flag may be illusory does not destroy the rights of an aggrieved party requesting the applicability of the law of that flag....
We conclude, therefore, that an aggrieved party may, at his election, look to the law of the flag, and that the parties creating the illusory flag cannot insist upon the application of the law of the country where the ultimate control and ownership rests. This is properly one of the burdens imposed upon those who, for reasons of their own, seek an illusory flag and a corporate entity which is wholly unrelated to the country of ultimate control and ownership. ... Perhaps there is no more appropriate field in which a seaman should be regarded as a ward of admiralty than the subject of maintenance and cure. Perdikouris v. The S/S Olympos (1961), 196 F.Supp. 849, 855.

13.

Over the years, the United States Supreme Court has developed two tests to determine whether a particular action is governed by admiralty law. Under the ... "locality" test, "[e]very species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance." (The Plymouth (1866) 70 U.S. (3 Wall.) 20, 36 [18 L.Ed. 125, 128].)
Dissatisfied with the all-encompassing approach of the locality test, the United States Supreme Court set forth an additional test which must be met in order to invoke admiralty jurisdiction. Under ... the "nexus" test, "the wrong [complained of must] bear a significant relationship to traditional maritime activity." (Executive Jet Aviation v. City of Cleveland (1972) 409 U.S. 249, 268 [34 L.Ed.2d 454, 467, 93 S.Ct. 493].) Lewinter v. Genmar Industries, Inc. (1994), 26 Cal.App.4th 1214, 1218, 32 Cal.Rptr.2d 305.

14. To the extent to which the instant court, of its own knowledge, purports to be sitting in Admiralty and the prosecution has failed to introduce any nexus which plainly falls within Admiralty or Maritime subject matter jurisdiction, I respectfully suggest that the court make all and every effort(s) available to it upon its own motion to terminate this proceeding in respect to me in a timely manner.

15. 18 U.S.C.A (2001) § 912 reads:

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

Dated: _______________________________

at: __________________________________

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