43 F. 81 | S.D.N.Y. | 1890
On the evening of F ebruary 23, 1884, the libelants schooner John K. Shaw was sunk and wrecked off tho Jersey coast, and all on hoard lost. . On the 24th of April following tho owners of the Shaw filed in this court their libel in rem against the steamer Newport, alleging that the Shaw had been sunk through collision with the Newport, and claiming upwards of $20,000 damages. The case was prosecuted in this court with most elaborate caro, and a decree rendered that the Newport did not collide with the Shaw, and tho libel was accordingly dismissed. 28 Fed. Rep. 658. On appeal to the circuit court, the case was again elaborately considered, and upon additional evidence for the libelants, and the decree of this court was affirmed. 36 Fed. Rep. 910. A rehearing was afterwards had in tho circuit court, and further testimony offered, and the decision reaffirmed. Id. 913. On the 5th of February, 1890, the owners of the Shaw filed the present libel for the recovery of tho same damages against the defendant, John P. Sundberg, in personam, as master of the Newport, joining with them as co-libelants the insurers of the cargo, who claimed $3,000 more for the loss of coal on board. The defendant pleads res adjudicala. I am of the opinion that the plea of res adjudícala is good, and must prevail as against both libelants. In a suit in rem before a court of competent jurisdiction, fairly prosecuted, all persons having an interest in the subject-matter, and their privies, are
“I£ a sentence of condemnation be pronounced, it is conclusive that a forfeiture is "incurred; if a sentence of acquittal, it is equally conclusive against the forfeiture; and, in either case, the question cannot be litigated in another forum. This was the doctrine asserted by this court in the case of Slocum v. Mayberry, 2 Wheat. 1, after very deliberate consideration, and to that doctrine we unanimously adhere. The reasonableness of this doctrine results from the very nature of proceedings in rem. All persons having an interest in the subject-matter, whether as seizing officers or informers or claimants, are parties, or may be parties, to such suits, so far as their interest extends. The decree of the court acts upon the thing in controversy, and settles the title of the property itself, the right of seizure, and the question of forfeiture. If its decree were not binding upon all the world, upon the points which it professes to decide, the consequences would be most mischievous to the public. In case of condemnation, no good title to the property could be conveyed, and no justification of the seizure could be asserted under its protection.- In case of acquittal, a new seizure might be made by any other persons, toties quoties, for the same' offense, and the claimant be loaded With ruinous costs and expenses. * * * It cannot be pretended that a new seizure might, after an acquittal, be made for the same supposed offense; or, if made, that the former sentence would not, as evidence, be conclusive, and, as a bar, be peremptory against the second suit in rem.”
The same general doctrine was asserted in the case of The Apollon, 9 Wheat. 362, where a similar suit in trespass was brought by the master of a vessel previously seized against the collector; and the court again held that the acquittal in the suit was conclusive evidence in every inquiry before every other tribunal that there was no cause of seizure.
These principles seem to me applicable to the present case, as respects the adjudication that there was no collision with the Newport. The conclusiveness of a former adjudication may apply to the whole cause of action, or only to some question arising on the trial. In this case, the former adjudication, that there was no collision with the Newport, if binding upon the libelants, leaves them no possible cause of action. Cromwell v. County of Sac, 94 U. S. 351. If there •was any such collision by the Newport’s fault, all the libelants had a direct legal interest in the res, which was the subject of the former suit, because all had a lien upon the ship for their damages. That suit
The fact that the present suit is against the master in personam does not render the former adjudication any the less binding. As respects responsibility to third persons for collision, the relation of the master to 1he ship is not merely a relation of ordinary “privity,” but one of substantial identity. The owners might not be liable, though the ship were held; for the ship might have been sailed by charterers. But the liability of the ship and of the master is identical; they arc convertible terms. That is probably why both ship and master, under rule 15 of the supreme court, may be co-defendants in collision casos. By the practice of most maritime countries in admiralty causes, the naming of the ship alone as a defendant is unknown. The suit in proceeding against foreign ships is against the master also, in his character as master. Ord., etc., 1681, lib. 1, tit. 14, arts. 2, 3; Code, etc.. Commerce, §§ 200, 201; 1 Valin, Com. Sur. L’Ord. 343, 845. A judgment in such a suit binds the ship, whenever the ship is legally hold for the master’s acts. So when, under our practice, the ship is seized in rem, and taken from the master’s possession for alleged negligent navigation by the master, and the master had knowledge of the suit, and is a witness in the cause, as in this case, how can it he said that he is not in privity with the ship, or with the suit iu which the ship is sought to be held solely for bis acts as master ? He is at’liberty to defend equally with the owners. In a foreign port, he is bound to defend. He is treated by the maritime law, not as an agent only, hut, says Story, (Agency, § 116,) as “in some sort and to some extent clothed with the character of a special employer or owner of the ship, and as having a special property in it.” There is no reason, therefore, why the master should not he bound by such an adjudication in ram as respects his acts which involve the ship as much as the owner is bound. There is no question that the general owner in this case, who defended the former suit, would be protected by that adjudication against any such suit in personam as this. See The Jessie Williamson, Jr., 108 U. S. 305, 311, 2 Sup. Ct. Rep. 669. It is immaterial whether the defense to the suit in rem is made by the master, as- the special owner, or by the
The policy of the admiralty law and practice, sanctioned by the supreme court in its adoption of the 59th rule in admiralty, (see The Hudson, 15 Fed. Rep. 162,) furnishes an additional reason why this court should refuse to entertain what, in substance and effect, is but a new trial of an old adjudicated issue. If, after such full and .exhaustive hearings in a suit in rem as have been had in this case, any other person who may claim to have been damaged by the same collision, such as any part owner of the vessel injured, not an actual party to the record in the former case, or any one of a score of owners of different parts of the cargo, could bring a new suit, and try the whole question of the collision de novo, there would be no end to trials and retrials of the same issue short of the period of limitation, if there were any such definite period in admiralty. There is no such definite period of limitation in admiralty causes, but only that full and reasonable opportunity for the enforcement of demands that common justice and equity require. The Nestor, 1 Sum. 85; The Bristol, 11 Fed. Rep. 163, and cases there cited.
Upon the merits of the present case, there is no pretense that there has not been the fullest opportunity for the presentment of the insurers’ claim, as well as that of the owners of the Shaw, in the former litigation. The insurers doubtless voluntarily awaited its result; and in that case they are equitably, as well as legally, concluded by it.
So far as I apprehend the nature of the new evidence desired *to be offered, it does not differ in kind from what was previously produced. There is no peculiarity in the ease that can be taken to distinguish it from so many others in which the defeated party finds; after one or more hearings, that there is additional evidence on one or more points, which might be produced. No precedent in the admiralty is cited for such a suit as the present after such a previous adjudication. To entertain this suit would evidently involve, not merely a great change in the practice hitherto as to collision causes, but greatly extend the scope of litigation, which it has been the aim of the courts to diminish. Rule 15 of the supreme court in admiralty, which states against what parties suits for collision may be brought, permits libels against the ship and master,