65 F. 236 | 7th Cir. | 1894
(after stating the facts). This is a proceeding in admiralty, in rein, for the enforcement. of a lien for. freight against the cargo of lib el an Us vessel. The existence of the lien is Unquestioned, and it was operative in favor of the vessel
1. The fact is undisputed that the cargo was not discharged until September 171 h, and therefore was not placed upon the dock, and in condition for inspection and delivery, until two days after the libel was filed. In the absence of express provision otherwise in the contract of affreightment, it is the well-settled general rule that the cargo of a vessel must be unladen, and placed subject to inspection by the consignee, and in complete readiness for a delivery, before the shipowner becomes entitled to his freight, unless delivery is prevented by the act or fault of the shipper or consignee. Brittan v. Barnaby, 21 How. 527; The Eddy, 5 Wall. 481; 1,265 Vitrified Pipes, 14 Blatchf. 274, Fed. Cas. No. 10,536; 175 Tons Coal, 9 Ben. 400, Fed. Cas. No. 10,522; The Mary Riley v. 3,000 Railroad Ties, 38 Fed. 254; 3 Kent, Comm. 219; 1 Pars. Shipp. & Adm. § 5, c. 7; Macl. Shipp. (3d Ed.) 467. The vessel owner may retain his possession of the cargo until the entire freight is paid or adjusted, bat cannot claim a partial payment or ratable freight “except in special cases; and those cases are exceptions to the general mile, and called for by the principles of equity.” 3 Kent, Comm. 219. The consignee is entitled to delivery of the entire cargo as called for by the bill of lading, and to that end may inspect the whole before he is required to accept or pay the freight. Subject to that inspection, the vessel owner retains his possession and lien, when he so elects, either upon the dock or in the hold. Evidence appears in this record which seems designed to show a custom at the port of Chicago, or between these parties, for the advance of a portion of the freight: before a delivery; but it is not in any view sufficiently definite to disturb the general rule, and is immaterial in this case for the reason that the only demand made by the libelant was for the freight money as a whole. The general rule is therefore applicable, and a right of action for the freight had not matured when the libel was filed, unless it can be held that; the conduct of the consignee prevented or waived a delivery. The admission by its president that he “would not have paid freight to Clark after receiving telephone not to pay,” even if the cargo had been unloaded, taken in connection with the terms of refusal to pay, indicates that complete delivery would not have procured payment, and that there was not entire absence of ground for protection of the lien; but, there being no showing of tender of delivery as a condition precedent to the payment of the freight, we are inclined to assume, for the purposes of
2. With reference to the attachment proceedings in the circuit court for Cook county, which appear only as set up in the answer and supplemental answers of the claimant, it is clearly shown that they were both commenced, and the claimant, as consignee, was served with the garnishee summons therein, on September 16, 1892. This was before there, was an indebtedness of the consignee for the freight, and was open to the objection that it was premature equally with the libel. But it whs indisputably after the service of the monition out of the district court upon the libel, and the subject-matter, then being within the jurisdiction of the admiralty court, was beyond the reach of the process or jurisdiction of the other court. The rule is firmly established, in respect to different co-ordinate courts having the same subject-matter before them, that the court which first obtains possession of the res or of the controversy by priority in the service of its process acquires exclusive jurisdiction for all the purposes of a complete adjudication; and, where the right of a party to prosecute his suit in the United States court has attached, “that right cannot be arrested or taken away by any proceeding in another court.” Wallace v. McConnell, 13 Pet. 136; Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. 355; Heidritter v. Oilcloth Co., 112 U. S. 294, 5 Sup. Ct. 135; Sharon v. Terry, 36 Fed. 337. In Covell v. Heyman the doctrine is expressed which must govern here:
“The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between state.courts and those of the United States it is something more. It is' a principle of right and of law, and therefore of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to: the same system, so far as their jurisdiction is concurrent; and, although they coexist in the same space, they are independent, and have*241 no common superior. They exercise jurisdiction, it is true, within the same territory, hut not in the same plane; and, when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of tile other as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void. The regulation of process, and the decision of questions relating to it, are part of the jurisdiction of the court from which it issues.”
This doctrine is reciprocal, making priority of service or possession the test. It is essential to prevent collisions in jurisdiction which would seriously embarrass the administration of justice, and has fortunately obtained recognition by the courts, state as well as national. Under it the subsequent attachment proceedings in the state court, so far as concerned this libel in the district court, were “vain, nugatory, and void.” Heidritter v. Oilcloth Co., supra. They constituted no defense, and the exceptions to the answer of the respondent in that regard were well taken, and should have been sustained. Wallace v. McConnell, 13 Pet. 136.
The foregoing propositions are not seriously contested in the argument upon either side in this appeal. The respondent invokes, in support of the decree, strict application of the letter of the law as contained in the first proposition, — that the premature filing of the libel justified its dismissal, — and, conceding that equitable rules must govern for such disposition, claims that all equity is with the respondent by reason of its alleged inforced payment of the amount of freight under the attachment proceedings, which are then entitled to equitable consideration, “as accomplished facts,” without regard to their legal effect. The appellant rests his argument for reversal upon the second proposition,— that the district court obtained and must uphold its exclusive jurisdiction. A question of practice is involved which is of general interest, and has an importance beyond the amount here in controversy. It is well settled that courts of admiralty “proceed upon equitable principles and according to the rules of natural justice” (Ben. Adin. §§ 329, 358); that the utmost liberality will be exercised in the interest of justice to save a libel from dismissal by disregarding technicalities which would operate for its defeat according to the practice at common law (The Adeline, 9 Oranch, 244). Referring to the liberality indulged in the former, as distinguished from the rigid rules which prevail in the law courts, it is remarked by Mr. Justice Story, in the opinion in The Adeline: “Ro proceedings can be more unlike than those in the courts of common law and in the admiralty.” In the case at bar, as we have before observed, the libelant was entitled to the lien for the freight, and was in rightful possession of the cargo for its security when he filed his libel to enforce his lien; but his action was deemed premature because he had not then made a complete delivery or tender of the cargo to the consignee. Thereupon his libel was dismissed by the district court, with costs, and in effect the cargo was left out of the hands of the libelant; and transferred to the possession of the consignee by force of the bond which had been given to take the place of the res. Although' that court
“The premature filing of a libel, if the right to libel accrues afterwards, and before the determination of the issue, affects the question of costs only. It is not necessary, nor is it the practice in admiralty, to dismiss such libel if, when the matter is presented to the court for final determination, it appears 'that the right to libel exists.”
When this libel was dismissed, the freight was unquestionably due, and by the dismissal the libelant was deprived of his possessory rights in the cargo, and of all remedy in the district court. The decree is a final disposition of the controversy, and it can only be upheld by a record showing just cause for the summary dismissal. In an appeal in admiralty from the district court, this court is not reviewing “a question of discretion, but is hearing an appeal which is a new trial,” and must deal with the questions involved “as though they were original questions.” Towboat Co. v. Pettie, 1 U. S. App. 57, 1 C. C. A. 314, 49 Fed. 464; The Philadelphian, 9 C. C. A. 54, 60 Fed. 423; The Beeche Dene, 5 C. C. A. 208, 55 Fed. 526; The Portland and The State of California, 7 U. S. App. 20, 1 C. C. A. 224, 49 Fed. 172. All support for the decree rests upon a recognition of the ulterior proceedings in the state court as “accomplished facts.” There is nothing in the conduct of the libelant which should give force to those proceedings beyond their prima facie value, or should prevent him from presecuting his suit in admiralty where he has rightfully
Upon this record we are constrained to hold (1) that the jurisdiction of the district court for enforcement of the lien for freight was not impaired by the fact that delivery had not been perfected when the libel was brought, nor was that fact ground for dismissal under the practice in admiralty; (2) that the allegation of the subsequent attachment and garnishee proceedings in the circuit court for Cook county, and the payment thereunder, should have been disregarded by the district court; (3) that no equities or grounds of estoppel are shown, running against the libelant, which should prevent his prosecution of the libel, and the alleged equities in favor of the respondent, if alone entitled to consideration, are not faultless ,or free from doubt; (4) that the libel should have been sustained. While efforts of the courts are to be commended which tend to avoid conflicts in jurisdiction and uphold comity, so far as may be with just regard to the rights of suitors, there can be no surrender of jurisdiction. In the •subject-matter of this libel there is special reason for upholding the jurisdiction, because the freight earnings of a vessel belong essentially to admiralty cognizance. Although the old maxim that “freight is the mother of wages” has been go far modified by statutes (Rev. St. § 4525), that the wages of seamen are no longer contingent upon the earnings of freight, the money which so accrues is regarded as a fund for security of the seamen, and they have a lien upon it as well as upon the vessel “which follows them into whose hands soever they may go.” 2 Pars. Shipp. & Adm. 60. This fund is deemed a part of the vessel, and applicable, to expenditures which are required for its navigation or care. There should be no encouragement ■of interference with it by jurisdictions foreign to the admiralty, and •certainly not when, the admiralty jurisdiction has obtained exclusive possession of the res. The decree of the district court is reversed, and the cause is remanded with instructions to decree in favor of the libelant for the amount due for freight, but without costs in the district court, and less the amount of costs allowed to the respondent there, and for further proceedings in conformity with this opinion; the respondent to pay the costs on appeal. So ordered.