422 DOUGLAS, J., dissenting in part. tion or communication or their gross earnings, or levy an exaction on merchandise in the course of its interstate journey. Each imposes a burden which intrastate commerce does not bear, and merely because interstate commerce is being done places it at a disadvantage in comparison with intrastate business or property in circumstances such that if the asserted power to tax were sustained, the states would be left free to exert it to the detriment of the national commerce." Measured by that test, the present tax is not invalid. "Even interstate business must pay its way Postal Telegraph-Cable Co. v. Richmond, 249 U. S. 252, 259. A non-discriminatory gross receipts tax, apportioned to local activity in the taxing state, is to be judged by its practical effect. As we stated in Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444: "The Constitution is not a formulary. It does not demand of states strict observance of rigid categories nor precision of technical phrasing in their exercise of the most basic power of government, that of taxation. For constitutional purposes the decisive issue turns on the operating incidence of a challenged tax. A state is free to pursue its own fiscal policies, unembarrassed by the Constitution, if by the practical operation of a tax the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred by the fact of being an orderly, civilized society." All local taxes on interstate businesses affect to some degree the commerce and increase the cost of doing it. Matters of form should not be decisive if the tax threatens no harm to interstate commerce. Prior to McGoldrick v. Berwind-White Co., supra, it had long been said that "Interstate commerce cannot be taxed DOUGLAS, J., dissenting in part. 330 U.S. at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the state." Robbins v. Shelby County Taxing Dist., 120 U. S. 489, 497. That was the philosophy of the Philadelphia & Southern S. S. Co. case. And see Fargo v. Michigan, supra, pp. 246-247. But McGoldrick v. Berwind-White Co., supra, did not adhere to that formal doctrine. It followed Wiloil Corp. v. Pennsylvania, 294 U. S. 169, and upheld a "non-discriminatory tax on the sale to a buyer within the taxing state of a commodity shipped interstate in performance of the sales contract, not upon the ground that the delivery was not a part of interstate commerce .. but because the tax was not a prohibited regulation of, or burden on, that commerce." Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U. S. 498, 505. The test adopted was whether the tax on the local activity as a practical matter was being used to place interstate commerce at a competitive disadvantage or obstruct or impede it. That should be the approach here; "the logic of words should yield to the logic of realities." Mr. Justice Brandeis dissenting, Di Santo v. Pennsylvania, 273 U. S. 34, 43. The failure of the Court to adhere to the philosophy of our recent cases corroborates the impression which some of us had that Freeman v. Hewit, 329 U. S. 249, marked the end of one cycle under the Commerce Clause and the beginning of another. Second. I think the tax is unconstitutional insofar as it reaches the gross receipts from loading and unloading vessels engaged in foreign commerce. Such a tax is repugnant to Article I, § 10, Clause 2 of the Constitution, which provides that "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws. 422 DOUGLAS, J., dissenting in part. Loading and unloading are a part of "the exporting process" which the Import-Export Clause protects from state taxation. See Thames & Mersey Ins. Co. v. United States, 237 U. S. 19, 27. Activity which is a "step in exportation" has that immunity. Spalding & Bros. v. Edwards, 262 U. S. 66, 68. As the Court says, loading and unloading cargo are "a continuation of the transportation." Indeed, the commencement of exportation would occur no later. See Richfield Oil Corp. v. State Board, 329 U. S. 69. And the gross receipts tax is an impost on an export within the meaning of the Clause, since the incident "which gave rise to the accrual of the tax was a step in the export process." Richfield Oil Corp. v. State Board, suprà, p. 84. As we pointed out in that case, the Commerce Clause and the Import-Export Clause "though complementary, serve different ends." 329 U. S. p. 76. Since the Commerce Clause does not expressly forbid any tax, the Court has been free to balance local and national interests. Taxes designed to make interstate commerce bear a fair share of the cost of local government from which it receives benefits have been upheld; taxes which discriminate against interstate commerce, which impose a levy for the privilege of doing it, or which place an undue burden on it have been invalidated. But the ImportExport Clause is written in terms which admit of no exception but the single one it contains. Accordingly a state tax might survive the tests of validity under the Commerce Clause and fail to survive the Import-Export Clause. For me the present tax is a good example. MR. JUSTICE MURPHY joins in this dissent except as to the second part, as to which he is of the opinion that the tax in relation to the gross receipts from loading and unloading vessels engaged in foreign commerce is constitutional. Statement of the Case. 330 U.S. AMERICAN STEVEDORES, INC. v. PORELLO ET AL. NO. 69. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.* Argued December 11, 12, 1946. Decided March 10, 1947. 1. The Public Vessels Act, 43 Stat. 1112, which provides that a “libel in personam in admiralty may be brought against the United States... for damages caused by a public vessel of the United States," authorizes a libel against the United States to recover damages for death or personal injuries caused by a public vessel of the United States. Pp. 450-454, 458–460. 2. Mere acceptance by an injured longshoreman of compensation from his employer pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U. S. C. §§ 901-950, without an award by a deputy commissioner under § 19, does not preclude the longshoreman from thereafter electing to sue a third-party tortfeasor for injuries suffered while working on a vessel. Pp. 454 456. 3. A stevedoring contract being a maritime contract, an admiralty court has jurisdiction to grant indemnity under an indemnity provision thereof. P. 456. 4. A district court awarded indemnity to the extent of half of the damages under an ambiguous indemnity provision of a stevedoring contract without admitting evidence as to the intention of the parties or making any clear finding as to the meaning of the contract. On appeal, the circuit court of appeals held that the stevedoring contractor should indemnify the owner completely. On review in this Court, the case is remanded to the district court for determination of the meaning of the contract, since the district court may have the benefit of such evidence as there is upon the intention of the parties. Pp. 457-458. 153 F.2d 605, affirmed in part and reversed in part. No. 69. A longshoreman injured while working on a public vessel of the United States as an employee of a corporation engaged in loading the vessel under a stevedoring contract with the United States filed a libel to recover damages from the United States under the Public *Together with No. 514, United States v. Lauro, Administratrix, on certificate from the same Court. 446 Statement of the Case. Vessels Act, 46 U. S. C. § 781 et seq. The District Court overruled the Government's exceptions to the libel. 53 F. Supp. 569. The Government then impleaded the stevedoring contractor charging it with fault and setting forth an indemnity provision of the contract. The contractor answered the libel, denying fault and asserting as an affirmative defense that, by accepting compensation payments under the Longshoremen's and Harbor Workers' Act, 33 U. S. C. §§ 901-950, the longshoreman had lost his right to sue a third-party tortfeasor. The District Court held that the longshoreman was not barred from maintaining the action, and that both the United States and the contractor were negligent, awarded damages from the United States, and awarded the United States contribution from the contractor as a joint tortfeasor to the extent of half the damages less the compensation payments received by the longshoreman. On cross appeals by the United States and the contractor, the Circuit Court of Appeals held that the contractor was bound by the indemnity provision of the stevedoring contract to make the United States completely whole and affirmed the decree with that modification. 153 F. 2d 605. This Court granted certiorari. 328 U. S. 827. Affirmed in part, reversed in part, and remanded, p. 458. No. 514. A District Court awarded damages against the United States under the Public Vessels Act, 46 U. S. C. § 781 et seq., for the death of a longshoreman resulting from injuries sustained while working aboard a vessel owned by the United States. 63 F. Supp. 538. On appeal, the Circuit Court of Appeals, 157 F. 2d 416, certified to this Court a question which is answered as follows: "The word 'damages' as used in 46 U. S. C. § 781 includes damages under §§ 130-134 of the Decedent Estate Law of the State of New York recoverable by a personal representative because of the death of a human being." P. 460. |