55 F. 540 | E.D.S.C. | 1893
The libel in this case was filed in rem for injuries to the bridge of libelant, caused by the schooner running into it. It was tried with a libel in personam by the master of the schooner for injuries to her, received at the same time, and growing out of the same collision. 55 Fed. Rep. 536. The libels were in tort. A full hearing was had, with testimony and argument. After consideration, the libel in rem was sustained, and the libel in personam was dismissed. After opinion filed, but at the same term, respondent in the libel in rein moves to dismiss that libel for want of jurisdiction.
The first question is, can this motion be now entertained? The quest ion of jurisdiction of the court can be made at any time, (Railway Co. v. Swan, 111 U. S. 382, 4 Sup. Ct. Rep. 510;) indeed, can be made after decree below and writ of error, for the first time in the supreme court, (Capron v. Van Noorden, 2 Cranch, 126; King Bridge Co. v. Otoe Co., 120 U. S. 226, 7 Sup. Ct. Rep. 552.) In Mail Co. v. Flanders, 12 Wall. 130, the circuit court had granted an injunction and had issued a writ of sequestration, on which latter writ the marshal had taken possession of a steamer, and held it subject to the order of the court. No question of jurisdiction had been made until after this was done. The supreme court sustained the action of the circuit court in setting aside the injunction and the order of sequestration and restoring the property, when want of jurisdiction was made to appear. Where the record discloses a controversy of which the court cannot take cognizance, its duty is to proceed no further; and this it can do on its own motion, if need be. Morris v. Gilmer, 129 U. S. 325, 9 Sup. Ct. Rep. 289. This case distinguishes Hartog v. Memory, 116 U. S. 591, 6 Sup. Ct. Rep. 521, which at first blush would seem to limit this doctrine. It must be noted also that the decretal order in this case has not yet been filed. The present motion is analogous to a motion in arrest of judgment. The motion is to dismiss the libel in rem because on its face it shows that the injury complained of is not within the jurisdiction of a court of admiralty. The libel sets out that libelant is the owner of a bridge constructed and located and extending from a point near the extreme west end of Bpring street, in the city of Charleston, across Ashley river, in the said state, to the opposite shore; that the schooner collided with said bridge, striking first the eastern fender at or near the southernmost part of the draw opening, and then lurching over and striking against the center or draw pier, thereby causing great damag’e or injury to the bridge. The bridge is built on piers. The draw swings on a center pier, resting on the bottom of the river.
“These privileged liens, constituting a jus in re, which accompany the property in the hands of hona fide purchasers, and operate to the prejudice of general creditors, are matters stricti juris, which cannot be extended from one case to another argumentatively or by analogy or inference. They must be given by the law itself, and the case must he found described by the law. ‘Privilegia cum sunt stricti juris nec extendi possunt de re ad rem, nee de persona ad personam.’ Even when the court may he of the opinion that the law might be beneficially extended to include cases not described in its terms, it must be left to the legislative power so to extend it.”
It is true that the supreme court has at times reversed what seemed to be established principles, and has extended the jurisdiction of admiralty, both as to locality and as to contracts. Notably was this done with the applause of the profession in The Genessee Chief, 12 How. 443, and in Dunham v. Insurance Co., 11 Wall. 1. But in The Genessee Chief the extension of jurisdiction had the sanction of an act of congress, and, indeed, amounted simply to a change in the definition of the term "navigable waters,” — a change rendered imperative by the logic of events. And in Dunham v. Insurance Co. marine policies were declared maritime contracts, the risk against which they gave indemnity necessarily occurring on navigable waters. The other objection is tbe same suggestion, presented with similar earnestness, and the same force of argument which was pressed on the supreme court in The Plymouth. It did not prevail. Eeplying to the admission of the appellant’s counsel that the case was one of first impression, the court say:
“The reason is apparent, for it is outside of the acknowledged limit of admiralty cognizance over marine torts, among which it is sought to class this. The remedy for the injury belongs to the courts of common law.”
With this action of the supreme court, taken after an exhaustive argument, it would be presumptuous to differ. I have come to my conclusion with great reluctance. The case consumed many days on the trial of the merits, and hours were given for argument on the law and the facts. The result of this motion will make this consumption of time useless.
The motion is granted; bnt, as the motion is made at this stage of the case, the respondent must pay all .the costs which accrued anterior to his motion.