1 F. Cas. 665 | S.D.N.Y. | 1827
There are three •objections raised upon matters of form to the libellants’ recovery, which it may be well to consider before proceeding to the merits ■of the case.
It is insisted, first, that the libellants show no joint interest or common cause of action which entitles them to unite in this action. Points of practice and forms of pleading have for ages formed the most perplexing and entangled subjects of litigation in the jurisprudence we have adopted in this country. Those courts which derive their rules of procedure from the civil law have been generally supposed to be most free from this difficulty. Yet, on the other hand, it is imputed to them that they are destitute of any •distinct principles in this behalf, which may serve to insure uniformity in their procedure, or to modify the mere discretion which courts •may be prone to apply in dictating for each case the law deemed most fit for it. It has been adjudged that in certain branches of the .practice of a court of admiralty, the technical niceties of the common law are not to be regarded. The Merino, 9 Wheat. [22 U. S.] 391; The Samuel, 1 Wheat [14 U. S.] 9; Locke v. U. S., 7 Crunch, [11 U. S.] 339. And there might probably be no incongruity in applying that doctrine to the whole extent •of the jurisdiction of the court. The supreme court has decided that in cases of information in a court of admiralty, it is enough to -set out the offense so as to bring it within ■the statute upon which the information is founded, and to give notice to the opposite •party of the charge he is called upon to an-swer. This is, unquestionably, the true spirit •of all pleadings; and it will not be denied that there is a higher philosophy in it than there is in determining the sufficiency of a pleading by merely ascertaining its conformity to some formula which was contrived for general application, and not framed with a view to the facts or circumstances to be actually brought before the court- Still it leaves much to discretion, and the justness with which the principle may be carried out in practice, will depend upon the competency ■of the magistrate who is called upon to administer it.
It does not belong to the functions of this court to enact a system for the correction •of such supposed defects. Its province is to inquire whether there are any determinate rules established which regulate the matter. If there are none, its duty is to bring the ■case within the analogy of such as are most consonant to the principles regulating the -course of courts of maritime jurisdiction. A research into the sources of the practice of this court affords very little light on the subject. Prom its earliest history, the business of the court seems to have proceeded in about one course. But when the authority for employing certain branches of practice is sought for, none other is discoverable than that the court at some early day began to employ them; and ever after, on a recurrence of like circumstances in a suit, it was probably found more convenient to apply the means before used than to establish methods by positive appointment. This may be sufficient to create or sanction those uses; yet it is not accompanied by what ordinarily attends the growth of a rule of pleading or practice in other courts — the adjudication of the court upon the point, declaring or confirming the reasons for its introduction or continuance.
The civil jurisdiction of the admiralty is generally held to be according to the forms of the civil law, by which is understood, in the United States and England, the positive law of the Romans, exhibited in the compilations of Justinian, and not, as on the continent of Europe, the modem private laws of the various nations which adopted the Roman law. Its course of proceeding in the United States was originally appointed to be conformable to the same law, (Act Sept. 20, 1789; 1 Stat. 93,) and is remarkable for comprehension, brevity, celerity and simplicity. 1 Kent, Comm. 380. In relation to the point now under consideration, the method of drawing out the written pleadings, the civil law would supply us no satisfactory assistance. At various periods of the Roman jurisprudence, formalities and ceremonies abounded in the institution of actions and in the methods of conducting them, and a scrupulous observance of verbal niceties in the frame of process was exacted. Quintil, de Oratore, 3, 8. So, also, each proceeding in the cause was taken with an accompaniment of symbols and fixed phrases. 4 Gibb. Decline & Fall, c. 44; Bever, Rom. Laws, b. 2, c. 4. Primarily, the manner of instituting a cause was of the most rude and abrupt character. The plaintiff himself took the defendant, without warrant or precept, before the Praetor, oblato eolio, (by the collar,) and the proceedings there seem to have been conducted ore tenus by the parties, in short assertions and replies, very like the ancient method of pleading reported in the Year Books. Adams’ Rom. Ant. 193. And, as a remnant of such usages, viva voce libels are yet admissible in summary causes in the ecclesiastical courts, the processes of the canon courts being derivatives from the civil law. Gierke, Prax. Adm. tit. 19; Cockb. Ecc. Prax. c. 5; 1 Hall, Law J. 83. In process of time, the allegations or demands of the actor were presented in writing, in what was termed “libellus,” or “libellus supplex.” Glib. Forum. Rom. 23; 2 Browne, Civil Law. (Ed. 1799,) 26; Adams’ Rom. Ant. 220; Cockb. Ecc. Prax. Append. 59; 1 Hall, Law J. 81; Consett, Ecc. Prax. pt. 3, c. 1, § 1. It does does not appear to have been a subject of specific regulation in the civil law, (or in the French practice, which is closely modelled upon it.) as to what interests might be prosecuted jointly, or how far relief was restricted to the special manner in which the case
Clerke and Browne consider the practice of the ecclesiastical courts in England to be the source from which that of the admiralty courts is drawn, and upon which it relies for authority. Clerke, Prax. Adm. tit. 19; 2 Browne, Civil Law, (Ed. 1799,) 149. This only removes the inquiry one step further, without affording a solution of the difficulty presented. For the ecclesiastical law of England was modeled from the canon law, and, in all defective or doubtful cases, recourse was had to the body of the pontifical canon law for authority and guidance. 4 Reeve, Eng. Law, cc. 24, 25. And then, again, proceedings in the courts of canon and civil law were considered identical. Bac. Abr. “Eecles. Courts, E.”
It accordingly still remains to determine what the original rule — that of the civil law —was. Baron Gilbert regards a libel under the civil law, and a bill in the court of chancery, to have been the same in their structure. Gilb. Forum Rom. 44. In early practice, the bill in chancery was merely a petition to the chancellor, narrating the petitioner’s case, and asking redress, without respect to form. Wyatt, Pract. Reg. 57; Wood, Inst. Civil Law, bk. 4, c. 3, § 3. Though subsequent practice has amplified and affected to give great formality to bills in chancery, yet they still retain the substance of the libel employed in the canon courts. Bart. Suit Eq. 19, 26. From the chancery court having been, for many ages, under the presidency of ecclesiastics, with whom the canon law was a rule both of conduct and of faith, it was natural that the proceedings of the one forum should be, as they proved in practice, common to both. We might, therefore, reason with tolerable directness, from the principles known to have been introduced into the court of chancery in respect to pleadings, as to what those principles were as then understood in the civil law. Yet we must be careful to discriminate between the practice and pleadings as known in the court of chancery during the early period of its history, and that which has grown up since the days of Lord Bacon and Lord Nottingham. The canon law only required in the libel a plain narrative of facts. 2 Browne, Civil Law, (Ed. 1799,) 79. Reeves says' it must contain the thing in question, with the quality of the action. 4 Reeves, Eng. Law, 14. The ecclesiastical courts in England require the libel to be clear and explicit. 1 Hall, Law J. SI; 2 Browne, Civil Law, (Ed. 1799,) 101, 102. Consett says, that in the plenary proceedings the plaintiff’s claim is set forth simply, in a continued speech or oration; or articulate, in which the merits of the cause are propounded by articles. Consett, Eccl. Prax. 402. The choice of these varieties seems to have been left wholly to the pleader. When the libel was obscure, uncertain, confused or preposterous, and exception was taken to it for sueh causes, the most liberal practice in respect to amendments prevailed. Id. pt. 3, c. 1, § 2. And they were commonly made instanter, at the suggestion of the excepting party. Cockb. Ecc. Prax. c. 5, § 4. And, though numerous provisions are made by the civil law for various defences against what are held to be, prima facie, efficacious actions, yet the defences relate in no case' to matters of form. No system of tules stems ever to have been designed in the civil law, like those established by the common law, to destroy the plaintiff’s action because he haa framed or managed it inaptly. Just. Inst, lib. 4, tit. 13; Pandects, lib. 44, tits. 1, 2. Such, also, seems to be the case in the French courts, whose practice has been conformed with great exactness to that of the civil law. 13 Poth. Works. So far, therefore, as the pleadings in a cause were subject to regulation under the civil law, it would appear that little more than simplicity and perspicuity' in their structure were required. It was sufficient if they plainly informed the court and the opposite party of the object sought, though they might be destitute of that technical fulness or unity of object which was exacted by the common law, and which has. in later times, grown into use in the court of chancery. None but substantial defects were regarded; and, if no exception was taken to the sufficiency
The objections raised upon the defectiveness of the libel in the present case, were offered at the hearing of the cause after the proofs were all taken. They are said, however, to be in time, because they arise out of the testimony, the allegations of the libel importing that the libellants have a joint interest in the whole subject, while the proof shows that their interests are entirely distinct. I do not think the libel bears the interpretation put upon it by the'respondent’s counsel. In the introductory part it does, indeed, assert “that the libelants, by twenty-eight several policies, became underwriters upon' the cargo of the brig Hercules.” This language might perhaps indifferently bear the construction that each libellant subscribed all the policies, or that, the policies being several, they were so both in respect to the portions of cargo insured and to the parties underwriting. But the libel is made sufficiently distinct in this respect by the subsequent allegation, that the i>arcels were broken open at Key West, and the marks so defaced and altered that the libellants “were unable to identify the several parts and parcels thereof by them respectively insured as aforesaid.” This denotes that the libellants were not joint insurers.
If any advantage could legally be taken of this want of joint interest, the respondent should have interposed the proper exception. But I do not think the fact of any importance, however it is brought to the notice of the court. The canon law permitted several actions to be joined in the same libel. 2 Browne, Civil Law, (Ed. 1799,) 79. And our own courts sustain libels uniting the most dissimilar interests. In The Amiable Nancy, the libel was filed by the owners of the vessel, the master, the supercargo and a mariner, for trespass to the vessel, and for an assault and battery on some of the libellants. Damages were awarded by this court for each of those causes of action, and its decision was sustained, on appeal, by the circuit court and by the supreme court. [Case No. 331;] 3 Wheat. [16 U. S.] 546. The practice of the court of chancery permits suitors who have a like interest in the subject matter to unite in a bill, though they are not to participate with each other in the recovery. Lloyd v. Loaring, 6 Ves. 773; Adair v. New River Co., 11 Ves. 429; Good v. Blewitt, 13 Ves. 397; Mitf. Pl. (Amer. Ed. 1816) 135 et seq. There is a manifest fitness and convenience in allowing parties in admiralty suits to join as libellants, whose interests rest upon a cause of action common to all, though as between themselves their interests are separate and distinct, and I find no rule or principle of the civil law interdicting such junction. This libel, however, should be amended so as to state that the cause is prosecuted for the libellants and for all others interested who may come in and establish their rights in the subject matter. One action is enough to determine the right of the respondent in respect to the vessel and her cargo; and the judgment should be so far- final as to protect him from any further proceedings in relation thereto. This would be so if the suit were in rem; and actions in personam and actions in rem being coordinate, and resting upon like principles in a court of admiralty, ought to be attended with the same result in this respect.
The second objection taken by the respondent is, that the libel is only adapted to a case of force or fraud, and that as neither of these is proved, no remedy can be- had secundum allegata for a mere illegal privation of property. It is true that the libel admits of this exception. The brig was put in possession of the respondent by her master, both for the purpose of immediate relief from her peril,- and to be afterwards piloted out of the reefs and into port. She was at that time in great danger, and required immediate assistance. Nor was there any force or fraud in conveying her to Key West. The testimony of Seaman, her mastér, though much more clear and explicit as taken before the commissioner than as given in court, yet in both cases agrees in this, that he did not urge the respondent to take the vessel to Mobile until she had got under weigh. The respondent was under no obligation to take her to her port of destination, there being an intermediate American port to which she could go with but slight interruption of her voyage. Neither is the respondent made a trespasser from the beginning by reason of any misconduct of his in Key West, or by his invoking the authority of the local court there. The allegations of the libel, which charge the respondent with obtaining possession of the brig by force or fraud, cannot be supported. But I attach no importance to these allegations. They may be treated as surplusage or as matter of aggravation, and- the libellants are at liberty to strike them out, if they shall be so advised. The court proceeds upon the whole case as it is made out, without regard to what the libellants have denominated it, as in admiralty practice there is no discriminating appellation of actions. The remedy is upon the case made, and not in conformity to any nomenclature of the action.
I perceive nothing in the cases cited or in the argument urged, to support the third objection, namely, that this proceeding cannot be sustained in personam, but only in rem against the brig and her cargo to reclaim them in kind. There is no doubt of the power of the court to proceed with like authority in personam as in rem, where tne
But it is urged, that if the libel be sufficient in point of form, the matters charged therein do not make a case of admiralty and maritime jurisdiction, cognizable in this court, because the cause of action, if any, arose not out of the original taking possession of the vessel and her cargo upon the high seas, but from transactions subsequent thereto, on land, at Key West, within the body of a county, so that if any wrong was there committed, the libellants must seek redress in a court of law. It is not denied that if the original possession of the vessel had been wrongful, the act would have been a marine tort, and within the jurisdiction of this court. When the jurisdiction of a court of admiralty has attached, it is not divested by means of acts subsequently done on land and cognizable by the law tribunals. Jurisdiction in admiralty once acquired cannot be thus ousted. The after acts, when incidents of the first, are, in respect to jurisdiction, all regarded as one.
In this ease, the cause of action is the taking and holding possession of the goods by the respondent, in the character and with the authority of salvor, to which all that subsequently transpired was incident. Over that principal act the court has undoubted jurisdiction, and it also has cognizance of every accessory act done on land, although not of itself sufficient to confer jurisdiction. 1 Kent, Comm. 379; Rex. v. Broom, 12 Mod. 135; Dean v. Angus, [Case No. 3,702.] Moreover, if the cause of action arose at Key West, it was in respect to property waterborne, and a sea-going vessel; and the admiralty jurisdiction embraces ports and havens as a portion of the high seas. Nor is there evidence that the harbor of Key West is land-locked so as to be within the body of a county, and within the restriction of the English rule. Willets v. Newport, 1 Rolle, 250; Montgomery v. Henry, 1 Dall. [1 U. S.] 50. I am satisfied that, as a general rule, a party deprived of his property by any act on the high seas, whether that property be jetsam, flotsam or ligan, be abandoned by those who have charge of it, or be voluntarily delivered over by them to another without authority, has his remedy in this court, because the transaction is of a maritime character, without regard to any question of marine tort 'connected with the possession. De Lovio v. Boit, [Case No. 3,776.]
It is insisted for the respondent, that admitting the court at Key West had no jurisdiction, yet that objection had been waived by the assent of Seaman to the proceedings, and the subsequent composition and adjustment made by Earle with those claiming the cargo as purchasers under those proceedings. It is not necessary to inquire whether Seaman possessed authority to bind the li-bellants by the assent supposed, since the fact of the assent is not established. His appearance as a witness before the local court does not amount to a submission to the authority, which the court assumed,,to award salvage and condemn the vessel and her cargo to sale, to satisfy its decree. He had no reason to suppose the court would do more than fix a reasonable compensation for the particular services rendered, and such compensation he professed a willingness to pay. When the court ordered a sale of the vessel and her cargo, he remonstrated against and excepted to the whole proceeding, and thus plainly evinced that he never assented to or acquiesced in the authority which the court undertook to exercise. As to the composition-entered into by Earle, there is no question, that if one who is tortiously deprived of his property, freely and voluntarily compounds with the wrong-doer, the original tort is-thereby extinguished, and cannot afterwards be made a ground of action, unless there was duress or fraud practised in obtaining the compromise. The $72,500 were not paid to the respondent to discharge his lien upon the property as salvor, but was paid to parties who claimed the absolute title to the property as owners, and who are not now before the court Such payment, therefore, did not amount to a waiver of any rights whatever, as between the libellants and the respondent at least without an express stipulation at the. time to that effect. No contract or understanding of the kind is proved. It appears that Earle was unable to obtain the property in any other way. On the question of fact, therefore, whether the agent of the libellants acquiesced in the assumed’ ownership of the property, and paid the sum upon that footing, I am convinced, upon the-evidence, that he did not, and that he in
Since, therefore, the libel must be regarded as sufficient in matter of form and of substance, and the court has jurisdiction in the ease, and the libellants have established claims against the respondent not waived by them, it remains to determine the extent of the respondent’s liability.
The libellants demanded remuneration for all they have lost in consequence of the proceedings at Key West, on the ground that the act of the respondent in taking the brig into Key West was intentionally tortious, and that he is therefore liable for all the consequences of that wrong. But the evidence fails to establish any such wrongful intent. It has been already shown that he did not acquire possession of the brig by force or fraud, and did not retain her, by right of possession, against the demand of her owners, but handed her over to what was claimed to be the custody of the law. The decree of the territorial court having been unauthorized, he is liable to the extent of the property acquired by him under it, but he is not necessarily answerable for all the property the libellants have lost, into whose-soever hands it may have gone. It is evident that the respondent desired to go to Key West, yet there is not enough to charge him with bad faith in the proceeding. There is, indeed,' ground for suspicion that he intended or hoped to secure a more favorable award of salvage at Key West than he could expect at any other of the places proposed. But there are not enough circumstances to warrant the conclusion that he resorted to Key West for the purpose of perpetrating a fraud upon the parties interested in the brig or her cargo. The utmost sum for which he can be held liable is the sum received by him as salvage, which is asserted by the libellants to have been $25,006 27; and it is not denied by the respondent that he obtained that amount.
On the other hand, the respondent rendered important services at a time when the brig was in a perilous situation on the reefs; and there is some reason for supposing that but for his timely appearance she would before long have been abandoned by her crew. He is, then, entitled to compensation therefor, unless he has, by his own misconduct, forfeited the right, not only to salvage, but to every other reward. If the charges made in the libel are sustained by the evidence, he has no claim to salvage. This court, having a broad discretion in cases of this character, takes into consideration the merits and motives of the salvor, in regulating the amount of salvage to be awarded him, in some cases giving a large proportion of the property saved, and in others diminishing it to a compensation for pilotage or mere labor, or denying it altogether. The Vrouw Margaretha, 4 C. Bob. [Adm.] 104; Mason v. The Blaireau, 2 Cranch, [6 U. S.] 240. It is charged upon the respondent that he neglected to inform the brig of her danger, though well aware of it, and fully able to warn her; that he predicted her grounding when he first fell in with her, and placed himself near the spot where it actually occurred, with a view to make a profit from the calamity which he was aware must befal her. The obligation which a vessel is under to warn another of a danger clearly discerned by her, but of which the other is ignorant, is so far an imperfect one that it may not supply a right of action by the party injured against the other for a neglect to comply with it. But if -the party in fault comes into a court of justice seeking salvage for rescuing the other from a danger which he might have prevented, it is clear that all right to a salvage reward is destroyed. That is a recompense resting essentially upon equitable considerations. The respondent, if he claims as salvor, must present his claims with clean hands. The evidence to show that the respondent was aware of the danger to which the brig was exposed, consists of his declarations on board his vessel, his answer to the libel, and his conduct at the time the brig was in view before her disaster. His declarations are sworn to by the master and seamen of the Hercules; but their evidence is open to obvious objections, and their- depositions, like all ex parte examinations, are to be received with the greatest caution, particularly as, in this case, their testimony before the commissioner was much more full and compromising to the respondent than their evidence as given in court. His own answer to the libel is not so explicit as could be wished. The navigation of those seas and the situation and employment of the respondent are to be considered in estimating the character of this answer. The Gulf-Stream at that place runs northerly at the rate of at least three miles an hour. A northeast wind raises the stream upon the Florida shore, and gives it a direction towards the land. From a minute chart of that section of the coast, previously made by the respondent, it appears that the current tends towards the spot where the Hercules grounded. No- observation had been
At the same time, the respondent rendered valuable assistance to the brig. He did not bring her on the reef, and was under no legal obligation to get her off; and he might have left her there without incurring any personal responsibility. It is evident that the brig was in danger, and the aid he offered was accepted by the master. Nineteen men and two vessels were engaged six days in lightering the cargo and transporting it to Key West, and in piloting the vessel there, a distance of from ninety to one hundred miles. Without pretending to estimate with great exactness the value of the services rendered, I shall allow the respondent therefor the sum of $3,000.
The respondent must, therefore, pay into court the balance of the money received by him from the proceeds of the brig and cargo, with interest, after deducting $3,000. No costs will be allowed to the libellants, since the respondent, in retaining the money awarded to him at Key West, cannot be considered as wrongfully withholding it, as long as the right to it was not settled by a court of adequate authority. The clerk must ascertain the proportion that the respective interests of the libellants in the brig and such of her cargo as was stowed below decks bore to the sum received by the respondent. The deck-load was thrown over-board before the respondent came on board. The clerk will then ascertain and report the proportion due to each of the libellants according to their several interests. Decree accordingly.