New Jersey Steam Navigation Company v. MERCHANTS'BANK.New Jersey Steam Navigation Company v. MERCHANTS'BANK.
1. In' my judgment, the New Jersey Steam Navigation Company were entitled to all the benefits of Hamden’s contract with them, in regard to the property of others with which he (Hamden.) was intrusted, for the purpose of transporting it in his crate. And though the company can rely on all the defences which they could have relied upon if Hamden had sued them, still .1 think the libellants can maintain this suit.
Had a trover and conversion been made of the money sued for, or an open trespass been committed on it by throwing it overboard, by the servants or agents of the company, then either Hamden, the bailee of the bank, might have sued the company, or the bank might have sued. As to the right to sue, in the case put, by the bank, there can be no doubt; as such acts were never contemplated by the contract, nor covered by it.
The Navigation Company were responsible to Harnden (and to those who employed him), notwithstanding the contract, for acts of gross negligence in transporting the property destroyed; as, for instance, if the servants of the company, in navigating the vessel, omitted to observe even slight diligence, and failed in the lowest degree of prudence, to guard against fire, then they must be deemed in a court of justice to have been guilty of gross negligence; by which expression I mean, that they acted reckless of consequences as respected the safety of the vessel and the lives and property on board and in their charge, that such conduct was contrary to common honesty, and that the master and owners were liable for loss by reason of such recklessness, as they would have been in case of an affirmative and meditated fraud that had occasioned the same loss, and that this burning was a tort.
Whether it is evidence of fraud in fact, as Sir William Jones intimates, or whether it is not, as other writers on bailments declare, is not worthy of discussion. The question is this. Is the measure of liability the same where a ship is burned because the master and crew did not observe the lowest degree of prudence to prevent it, and in a case where she is wilfully burned ? This is the question for our consideration. In the civil.law, I apprehend no distinction in the cases put exists; nor do I believe any exists at common law. But by the laws of the United States, such gross and reckless negligence as that proved in the case before us was a fraud and a tort on the shippers, and the fire that occurred, and consequent loss of life, a crime on the part of the master.
By the twelfth section of the act of 1838, chap. 191, every person employed on any steamboat or vessel, by whose negli
One single .circumstance is decisive of the culpable negligence. By section ninth of the above' act, it is made “ the duty of the master and owner of every steam-vessel employed on the sea, to provide, as a part of the necessary furniture, a suction-hose and fire-engine and hose suitable to he worked on said boat in case of fire, and carry the same upon each and every voyage, in good order.” This vessel, had something of the kind; but it was in no order for use, and a mere delusion, and a sheer fraud on the law and the public. Had there been such an engine and hose, the fire-could have been extinguished in all probability, as Í apprehend.
2. There, was only a .single rigged bucket on board, and nothing else to reach the water with, and the money of libellants was thrown from the boxes, and they used to lift water.
3. The flue from the furnace ran through three decks, and was red-hot through the three decks, and the cotton was stowed within eighteen inches on all sides of this red-hot flue, and the bales pressed in, three tiers deep, from the boiler-deck to the next deck, so that it would have been with much difficulty that the cotton could have been removed should-afire occur; there the fire did occur, and.the cotton was not removed,— wherefore the vessel was burnt. And, from the mode of stowage a fire could hardly be avoided, and was to be expected and guarded against.
Then as. to the jurisdiction: The fire occurred on the high sea, It was a tort there. . The case depends not on any contract, but on mere tort standing beyond, the contract. The locality of the tort is the locus of jurisdiction. Locality is the strict limit. 2 Bro. Adm. Law, 110; 3 Bl. Comm. 106. The conflict between the Luda and De Soto, in Louisiana, 1847, 5 Howard. But especially 2 Bro. Adm. Law, 144, which lays down the true doctrine as follows: —
“ We
have now done with the effect of the master’s con
I think the libel in this case covers my view of it. It sets out the facts of how the money was shipped in general terms, but avers it was lost by fire, and by reason of an insufficient furnace,- insufficient machinery, furniture, rigging, and equipments, and' the careless, negligent, and improper management of said steamboat Lexington by the servants and agents of the-Navigation Company.
If this technical objection had been addressed to the court below, it could have been easily remedied, and cannot be favorably heard here, now, no doubt, made for the first time.
I .therefore, think there was jurisdiction in the Circuit Court to try the libel; and, secondly, that the decree was proper, and ought to be affirmed, without alteration.
The inquiries presented for consideration in this cause resolve themselves into two obvious or natural divisions; the one involving the rights of the parties as growing out of their alleged undertakings; the other the right. of the libellant to prosecute his claim in the mode adopted in the court below, and the power of the court to adjudicate it in1 that or in any other mode whatever. This latter -inquiry, embracing as it does the nature and. extent of the admiralty powers of the government of the United States, and by consequence the construction of that article of the Constitution by which alone those powers haVe been invested, challenges the most solemn, deliberate,- and careful investigation. I approach that investigation with the diffidence which -its wide-spread interest and importance, and a deep conviction of my own deficiences, cannot but awaken.
The foundation, nay, the whole extent and fabric, of the ad
The distribution of this admiralty power so created by the Constitution, with reference to the tribunals by which, and the - modes in which, it shall be executed, is contained in the act to establish the judicial courts of the United States of 1789, section ninth, which constitutes the District Courts of the United States courts of exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, and of certain seizures under the laws of imposts, concluding or quali- . fying this investment of power with these plain and significant terms: —.“ saving to' suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.”
Looking now to the provisions of the third article of the Constitution, and to those of thé ninth section of the Judiciary Act, we recur to the inquiry, What is this civil and maritime jurisdiction derived from the Constitution, and vested by the Judiciary Act in the District Courts, — what the standard by which its scope and.power, its “space'and verge,” are to be measured, —what the núes to be observed in the modes of its execution ? Although the Constitution and act of Congress do not precisely define nor'enumerate the former, nor prescribe in forms and precedents the latter, yet it will hardly be pretended, that either the substance or the forms of admiralty jurisdiction were designed by the founders of our jurisprudence to be left without limit, to be dependent on surmise merely, or controlled by fashion or caprice. They were both ordained in reference to some known standard in the knowledge and contemplation of the statesman and legislator, and the ascertainment of that standard by history, by legislative and judicial records, must furnish the just response to the inquiry here propounded.
' In tracing the origin, existence, and progress of the colonial institutions, or in seeking illustrations or analogies requisite for the comprehension of those institutions down to the period of separation from the mother country, it is to the laws and policy of the latter that we must chiefly look as guides to any thing like accurate results in pur investigations. For the necessity here intimated, various and obvious causes will at once be perceived. As instances of these may be exemplified, — 1st,- similarity of education and opinion, strengthened by intercourse and habit; 2d, national pride, and the partiality which naturally creates in the offspring admiration and • imitation of the parent; 3d, identity of civil and political rights in the
In this cursory view of" Lord Hale of the admiralty jurisdiction, there is one feature which cannot escape the most superficial observation; and that is, the extraordinary care of this learned judge to avoid every, implication from uncertainty or •obscurity of "terms, which might be wrested as a pretext for the assumption of power not clear, well founded, and legitimate. In the extract above given, it will be seen that the sea, as the .theatre of the admiralty power, is mentioned in eight different instances, in every one of which it is accompanied with the adjunct
high. Altwm mare
is given as the only legitimate province of the admiral’s authority; and then, as if to exclude the possibility of improper implication, are placed in immediate and striking contrast the transactions and the situations as to which, by the common law and the statutes of England, the interference óf the admiralty was utterly inhibited. “ But,”
Sir William Blackstone, treating of the cognizance of private wrongs, Book 3, chap. 7, p. 106, speaks of injuries cognizable by the maritime or admiralty courts. “These courts,” says this writer, “have jurisdiction and power to try and determine all maritime causes, or such injuries as, although they are in their, nature of common law cognizance, yet, being committed on the high seas, out of the reach of our ordinary courts of justice, aré therefore to be remedied in a peculiar court of . their own. All admiralty causes must, therefore, be- causes arising wholly upon the sea.” He then cites the statutes 13 and 15 Rich. II., Co. Litt. 260, Hob, 79, and 5 Reports, 106, for the positions thus asserted. I shall, in the progress of this opinion, have occasion further to remark-upon this language, “ courts maritime or admiralty courts,” here used by this learned commentator, when I come to speak of an interpretation placed upon the second section of the third article of the Constitution, as implying an enlargement of the powers conferred, from á connection of the terms
admiralty
and
maritime
in the section just mentioned. What I would principally advert to here is- the description of the causes denominated
maritime,
and as falling solely and peculiarly within the admiralty jurisdiction, and to the reason why they are thus denominated
maritime,
and as such assigned to the admiralty. They are, says this learned commentator, “maritime, or such injuries as, although they are in their nature of common law cognizance, yet, being committed on the high seas, out of .the reach of our ordinary courts of justice, are therefore to be\remedied in a pe- . culiar • court of 'their own. All admiralty causes must, therefore, be causes arising wholly upon the seaj and not within the precincts of any county.” Here, then, is the explicit declaration, that it is the theatre, the place of their origin and performance, exclusively, not their relation to maritime subjects, which . determines their forum; for they are causes, says he, which in their nature may be of common law1 cognizance. In this connection it seems not out- of place to advert to the discrimination made by the same author between the pretensions to power
Passing from the testimony of the writers already mentioned, let us call in a witness as to the admiralty powers and jurisdiction, as existing in England for a century past, at least, whom no one will suspect of disaifection to that jurisdiction. I allüde to Mr. Arthur Browne, Professor of'Civil Law in the University of Dublin, in whose learned book scarcely any assertion of power ever' made by the admiralty courts, however reprobated and denied' by the common law tribunals, is not commended, if not justified, and scarcely one retrenchment or denial of power to the former is not as zealously disapproved. Let us hear what this witness is compelled, though
multo cum gemitu,
to admit, with respect to the jurisdiction of the instance court in cases civil and maritime, — cases identical in their character with that now under consideration. After di-, lating .upon the resolutions of 1632, and upon what by him are designated as the irresistible arguments of Sir Leoline Jenkins in favor of the powers of his own court, Professor Browne is driven to the following concessions. Of the common law courts .he.says (Vol. II. p. 74), — “ Adhering on their part, to the strict letter of the rule, that the business of the admiralty was only with contracts made upon the sea, they here took locality as the only boundary, though in the instances before mentioned, of contracts fhade on sea, they refused this limit; and having insisted, as indeed Judge Blackstone has even of late done, that contracts upon land, though to be executed on the sea, and contracts at sea, if to be executed .on land, were not-cognizable by the admiralty, they left to it the idle power of trying contracts made upon the sea to be also executed upon the sea, of which one instance might not happen in ten years.” Again (p. 85), speaking of what he -characterizes as “the torrent'of prohibitions which poured forth from the common law courts,” he tells us, that “ little was left for the .authority of the admiral to operate upon, in the subject of contracts, amidst those curbs so eagerly and rapidly thrown upon him in the last ' century, save express hypothecations of ship or goods made at sea or in foreign ports, and suits for seamen’s wages.” At the close of this chapter on the jurisdiction of the instance courts, Mr. Browne preseilts his readers with the general .conclusion to which his investigations on this head had conducted him, in the following-Words : — “ The result of our inquiries in the present chapter, as to the'extent of the jurisdiction of the instance court of admiralty which is at present seemingly allowed by the common law courts, is, that it is confined in matters of
And here it seems proper to remark, that I cannot subscribe to the opinión, either from the bench or the- bar, that the decisions of inferior courts, which it is not merely the right, but
I do not contest the position, that the established, • well-defined, regular, and known civil jurisdiction of the admiralty ■ courts of England, or of the vice-admiralty. courts of the American colonies, was in the contemplation of the men who achieved' our independence, and was adopted-by those who framed the Constitution. I willingly concede this position. That which I do resist is what seems to me an effort to assert, through .the colonial vice-admiralty courts, powers which did not regularly inhere in their constitution; powers which, down to. the date of the quarrel with the mother country, were never bestowed on them by statutory authority; powers which to their superior — from whom they emanated, and to. whom they were inferior and. subordinate, the High Court of Admiralty— had long been conclusively denied, as has been already abundantly shown. With respect to the establishment and powers of these courts, we are informed by Browne, 2 Civ. and Adm. Law, 490, that “ all powers of the vice-admiralty courts within his Majesty’s dominion's are derived from the high admiral, or the. commissioners of' the admiralty of England, as inherent and incident to that office. Accordingly, by. virtue of their commission, .the lords of the admiralty are authorized to erect vice-admiralty courts in North America, the West Indies, and the. settlements of the East India Company ”; “ and in case any person be aggrieved by sentence or interlocutory decree having the force of a'sentence, he may appeal to the High Court of Admiralty.” Blackstone, also, says (Vol. III. p. 68), — “Appeals from the vice-admiralty courts in America, and our other plantations, and settlements, may be brought before the courts of admiralty in England, as being a branch Of the admiral’s jurisdiction.” Stokes, in his Yiew of
It has been urged in argument, that the restriction hére proposed is altogether unsuited to and unworthy the expanded territory and already great and increasing commerce of our country. To this may be replied the fact, that it was thought sufficiently broad for a nation admitted even at this day to be the most commercial on the globe. In the next place, I am by no means prepared to concede that the interests of commerce, and certainly other great, interests in society, axe to he bener fited by incursions upon the common law jurisprudence of the country. Recurring, as a test, to the institutions and to the condition of various nations, a very different and even opposite conclusion would be impressed by it. But even if it be admitted that a power in the admiralty such as would permit encroachments upon the venerable precincts of the common law would he ever so beneficial, the reality of such advantage, and the right or power to authorize it, axe essentially different concerns. An argument in favor of power founded upon calculations of advantage, in a government of strictly delegated powers, is scarcely legitimate when addressed to the legislature; addressed to the judiciary, it seems to be especially out of place. In my view, it is scarcely reconcilable with government in any form, so far as this term may signify regulated power, and ought to have influence nowhere. If a restricted admiralty jurisdiction, though ever so impotent for good or prolific of inconvenience, has been imposed by the Constitution, either or both those evils must be of far less magnitude than would he attempts to remedy them by means subversive of the Constitution itself, by unwarranted legislative assumption, or by violent judicial, constructions. The pressure of any great national necessity for amendments of that instrument will always insure their adoption.
To meet the objection urged in this case to the jurisdiction deduced from the character of the contract sued on, it has been insisted that the foundation of this suit may he treated as a marine tort, which, having beep committed on Long Island Sound, and therefore not within the body of any county, is exempt from objection on the score of locality. If the pleadings and proofs in this cause presented a case of simple or . substantial tort, occurring without the. body of a county, no just objection could he made to the jurisdiction. It is, therefore, proper to inquire whether a case of marine tort, in form or in substance, is presented upon this record. There is a class of cases known tor the common law, in which a plaintiff having
With respect to these cases
ex delicto quasi ex
contractu, as they have been called, it has been ruled, that if the plaintiff states the custom, and also relies on an undertaking general or special, the action is in reality founded on the contract, and will be treated as such„
Vide
Orange County Bank
v.
Brown,
■If the practice of the common law courts above considered he at all ‘applicable to suits in the admiralty, how would it operate upon the case before us? Ic this case, as presented on the face of the libel, or upon the proofs adduced in its support, either formally or substantially a case founded solely bn public duty, or upon contract between the parties ? It would séem to be difficult, in any form of words, to state a. contract more express than is set out in the libel in this ’cause. It is true that in the- first article there is a statement, that the respondents were common carriers of merchandise between the city of- New York and the town of Stonington in Connecticut, but it is nowhere alleged that the property of the complainants was délivered to the respondents as common carriers, or was received by them in that character, or under any custom or obligation binding them as carriers. So far from this, it is averred in the second article of the libel, that the complainants
contracted
on a particular day, and at a particular place, and
But after all, I would inquire for the authority under which the admiralty has been allowed to assume, under an artificial rule of common law pleading, jurisdiction of. matters not falling naturally, directly, and appropriately within its , cognizance. Indeed, its admirers and advocates, from Sir Leoline Jenkins to Professor Browne, have zealously defended it against every imputation of attempts at assumption, insisting that the subjects claimed for its cognizance, and its modes of claiming them, were such only as naturally and appropriately belonged to it. They have as zealously complained of abstractions by the common law courts, by means of uncandid and unreason.able fictions, of matters naturally and, familiarly belonging to the admiralty. If á single precedent exists showing that, by the artificial rules of, pleading practised in the common law courts, partaking in some degree of fiction, the admiralty has ever obtained jurisdiction over matters which otherwise would not have , fallen within its cognizance, , that precedent is . unknown to me; and it is equally certain that I am unwilling, to
Í am extremely diffident as to the wisdom and safety of enlarging a jurisdiction, (ánd especially by the force of implication,) which from the earliest trace's of its existence (whatever has been said in this, casé about the power of reform in this respect) has alwaj/s been exercised by rules and principles less congenial with our institutions thar are the principles and proceedings of the common law; which, by the mere force of-implication in the terms “ admiralty and maritime,” overrides the seventh amendment of the Constitution, and the important saving in the ninth section, of the Judiciary Act; which by á like, implication frees itself altogether from all restriction imposed, both'by the second section of the third article of the Constitution, and by the eleventh section of the Judiciary Act, with respect to controversies between citizens of the same State. A jurisdiction substituting, too, for the' invaluable safeguard to truth secured by confronting the witness with court and jury, a machinery by which the aspect and the force of testimony' are graduated rather by the address and skill of the agents employed to fabricate it', than by its own intrinsic worth, and transferring' the trial of facts resting upon credibility to a tribunal often rémote and inconvenient, and constrained to decide on statements that may be merely colorable, often entirely untrue.
Again, to decide this case upon the ground of liability of. the owners for a tort committed by the master, would present this strange incongruity. Although, by the common law, owners of vessels were responsible for losses occasioned by the misconduct of masters as their.' agents, to the full amount of such losses, yet as long since as the statute of
7
George II., passed in 1734, nearly forty years before our independence, this responsibility was expressly limited in extent to the value of the vessel and the freight. The laws of Gleron and Wisby, Wé are told by Lord Tenterden
(vide
Treatise on Shipping, p. 395), contain no pfovision on this subject, though this writer Worms us, upon the authority of Yinnius, that such a provision was contained in the laws of Holland, and that by. the laws of Rotterdam, as early as 1721, the owners were exempted from liability for the acts of the master done without their
“ Au ch. 236 il est dit que si le navire périt, c’est assez que cette perte soit pour le compte des quirataires.”
From this view of the law as existing in- England and on the European continent, it is manifest, that, in the former country, the responsibility of the owners, prior to the statute of 7 Geo. II., was a common law liability, and was acknowledged and allowed to the full extent that the demand could be proyen, embracing both-the persons and all the property of the owners ; that since the statute of Geo. II., this liability is Limited to the value of the ship and freight, but still to be en
My conclusions, then, upon the question of jurisdiction, are these : — that the case presented by the libel is palpably a proceeding in personam upon an express contract, entered' into between the parties in the city of New York; that it is therefore a case properly cognizable at a common law .court, for any breach of that contract which may have beemcommitted, and: consequently is not a case over which the admiralty court can, under the Constitution and laws of. the United States, have jurisdiction, either in personam or in rem.
Having, felt myself bound to treat at some extent what seemed to me the decisive, and what may, too, be called the public or constitutional question involved in this cause, — the question of jurisdiction, — :as to what may be the merits of this controversy, the obligátions sustained by" the parties to each other, and the extent to which these have been fulfilled or Violated, I shall content myself with simply giving the conclusions to- which my blind has been conducted, without pre- ' tending to reason them, out fully upon the facts or- the "law of the case, because" those conclusions would not be the grounds of a formal dissent, though .disaffirmed, by a' majority of. my brethren.
Whilst I am; impressed with the strong necessity that exists
On most of the facts involved in this libel, little controversy exists. It is certain that the respondents took the property of the plaintiffs on board, their steamboat, the Lexington, to carry it, on her last calamitous voyage, the 13th of January, 1840, from New York to Stonington., It is equally certain that it was lost on that voyage, in Long Island Sound, at a place where' the tide ebbed and flowed strongly, and several miles from shore, and probably withoht the limits of any State or county. It is certain, likewise, that the property was lost in consequence of a fire, which broke out in the boat in . the night, and consumed it, with most of the other property on board. The value of it is also sufficiently certain, and that it was put. ' on board, not by an officer of the bank, but by Harnden, a forwarding agent for the community generally, and under a special contract between Harnden and the respondents,, that the
But some other facts are not so certain. One of that character is, whether the fire occurred by accident, without any neglect whatever by the respondents and their agents, or in consequence of some gross neglect by one or both. It‘would not be very material to decide this last fact, controverted as it is and in some degree doubtful, if I felt satisfied that the plaintiffs could-recover anywhere, and more especially in admiralty, on the contract made by Hamden with the respondents, for the breach of the contract to carry and deliver this property.
The first objection to such a recovery on the contract anywhere is, that it was made with Hamden, and not with the bank. Butler
v.
Basing, 2 Car. & Bayne, 613 ;
It is, however, doubted, whether, with such a stipulation, the respondents are- not, by public policy, to be still liable on a contract like this, in order to insure greater vigilance over all things intrusted to their-care (Gould
v.
Hill,
It is insisted, next, that, as the unusual nature of the prop-; erty carried, in this case, was not made known to the carriers, nor a proportionate price paid for it's transportation, the owner
But, giving no decisive opinion on the validity of any of these objections, as not necessary in the view hereafter taken, yet they are enumerated to show some of the difficulties in sustaining a recovery on-this contract, notwithstanding their existence.
Another important objection remains to be Considered. It is, that no jurisdiction exists over this contract in a court of admiralty where these proceedings originated. The contract was made on land, and of course within the body-of the county of New York.' It was also not a contract for a freight of goods abroad, or to a foreign country, the breach of which has been here sometimes prosecuted in courts of admiralty. Drinkwater et al.
v.
The Spartan, Ware, D. C. 149, by a proceeding
in rem
(155); De Lovio
v.
Boit,
But the law of England is understood to be, even in foreign charter-parties, against sustaining such suits,
ex contractu,
in admiralty. 3 D. & E. 323; 2 Lord Raym.
904;
1 Hag. Ad. 226, and cases cited in
. By agreement of the judges in A. D. 1632, admiralty was not to try such cases, if the charter-party was contested. Dunlap’s Adm. 14; 4 Instit. 135; Hobart, 268.
It seems, however, to be doubted by Browne (2 Browne’s Civ. and Adm. Law, 122, 535), whether the libellant may nof proceed in admiralty,- if he goes to. recover freight only, and not a penalty. It is also believed, that, in this country, contracts. to carry freight between different States, or within the same State, -if it be on tide-water, or at least on the high seas, have sometimes been made the subject-matter of libels in admiralty. Dunlap’s Adm. 487; 1 Sumner,
551; 3
Am. Jur. 26; 6 Am. Jur.
4;
King et al.
v.
Shepherd,
It is riot unusual for the place to which, the parties look for fulfilling their duties to be not only different from the place of making the contract, but for the parties to regard other laws and other courts, applying to the place of performance, as controlling and as having jurisdiction over it. Bank of the United States
v.
Donnally,
Hence, for a century before 1789, Lord Kenyon- says, admiralty 'courts had sustained jurisdiction on bottomry bonds, though executed upon the land; because, “ if the admiralty has jurisdiction over the‘subject-matter, to say that it is necessary for the parties to go upon the sea to execute the instrument borders on absurdity.” See Menetone
v.
Gibbons, 3 D. & E. 267 - 269; 2 Lord Raym. 982; 2 H. Bl. 164;
This is the principle, at the bottom,/or recovering seamen’s wages in admiralty. Howe v. Nappier, 4 Burr. 1944.
Not that the consideration merely was maritime, but that the contract must be to do something maritime as to place or subject. Plummer
v.
Webb, 4 Mason, C. C. 380; Berni
v.
The Janus et al., 1 Baldw. C. C. 549, 552 “A New Brig,” Gilp. D. C. 306. But we have already seen there are several direct precedents in England against sustaining these proceedings in . admiralty on the contract, such as a charter-party or bill. of lading, and strong doubts from some high authorities against it in this country. Chancellor Kent seems to think a proceeding in admiralty, on a charter-party like this, cannot be sustained, except by what he calls “ the unsettled- doctrine laid down in De Lovio
v.
Boit.” 3 Kent, Comm. 162. See like
Looking,' then, to the law as held in England in 1789, and not considering it to be entirely clear in favor of sustaining a suit in admiralty on a charter-party like this, and that it is very doubtful whether any more settled or enlarged rule on this .subject then prevailed in admiralty here, or has since been deliberately and generally adopted here, in respect to charter-parties or bills of lading, I do not feel satisfied in overruling the objection to our jurisdiction which has been made on this ground.
The further arguments and researches since Waring v. Clarke (5 How.) tend also, in my view, to repel still more strongly any idea that admiralty , jurisdiction had become extended here, at the Revolution, in cases either of contracts or torts, more broadly than in England.
But it is not necessary now to go into the new illustrations of this cited in the elaborate remarks of the counsel for the.' respondents, or discovered, by .myself;' in addition to those quoted in the opinion of the minority in Waring et al. v. Clarke, and in The United States v. The New Bedford Bridge, 1 Woodbury & Minot. Among mine is the declaration by Lord Mansfield himself, December 20th,- 1775, that the colonies wished “that the admiralty courts should never be made to extend there,” instead of wishing their powers enlarged (6 American Archives, 234;. Annual Register for 1776, pp. 99, 100)-; and there is likewise the protest of the friends of America, the same year, in the House of Lords, that the increase of .admiralty power by some special acts of Parliament was a measure favored at home rather than here, and was not acceptable here, but denounced by them as an inroad on the highly prized trial by jury. 6 American Archives, 226. Among those cited is the. conclusive evidence, that in some of the colonies here before the Revolution, the restraining .statutes of Richard II., as to the admiralty, were eo nomino and expressly adopted, instead of not being in force here. See in South Carolina, 2 Statutes at Large, 446, in 1712, and in Massachusetts, Dana’s Defence of New England Charters; 49 - 54; in Virginia, “the English Statutes” passed before James I., 9 Hening’s Statutes, 131, 203; Commonwealth v. Gaines, 2 Virg. Cases, 179, 185; in Maryland, 1 Maryland Statutes, Kilty’s Report, 223 ; and in Rhode Island, her records of a case in 1763, at Providence.
But I pass by all these, and much more, because, notwithstanding the course of practice here the last half-century in some districts,' and the inattention and indifference exhibited in many others as to the true line of discrimination between the juris
I havé turned my attention to ascertain whether the facts, in this case exhibit any wrong committed by the respondents, of such a character as a tort, and in such a locality as may render our jurisdiction in admiralty clear over it, looking to the principles of admiralty law in England, and also in this country, so far as can now be discovered to have existed at the time of our Revolution.
First, as to this, it is argued, that, in point of fact, gross negligence existed in the transportation of this property. If so, this conduct by the respondents' or their agents may be sufficient to justify, a proceeding ex delicto for the nonfeasance or misfeasance constituting that neglect, and causing the'loss of this property, entirely independent of the contract or its form, or the risks under it, or the want of notice of the great value of the property. Particularly might this be sufficient, if the injury was caused in a place, arid undér circumstances, to give a court of admiralty undoubted jurisdiction over it as a marine tort.
The question, of fact, then, as to neglect here, and the extent of it, may properly be investigated next, as in one view of the subject it may become highly important and decisive of the right to recover, and as it is our duty to settle facts in •an admiralty proceeding; when they are material to thei merits.
As before intimated, it is here'virtually conceded, that the property of the plaintiffs, while in charge of the respondents as common carriers on the sea, was entirely lost, by the burning of the boat in which it was transported.
The first inference from these naked facts would be, that the fire was produced by. some cause for which the owners were responsible, being generally negligence, and that
prima, fade
they were chargeable.
Indeed, the common carrier who receives property to transport, and does not deliver it, is always held
jprima, fade
liable. Abbott on Ship., ch. 3, § 3; 1 Ventris, 190;
If they would have this inference or presumption changed, so as to exonerate themselves, it must be done by themselves,
Independent of this presumption, when we proceed to examine the evidence on both sides as to the contested points' of fact connected with the loss, it is found to be decidedly against the conduct of the respondents and their agents; and, so far from weakening the presumption against them from the actual loss, it tends with much strength to confirm it; There had, to be sure, been recent repairs, and certificates not long before ob- . tained of the good condition of the boat. But on the proof, she does not seem to have been in a proper state to guard against accidents by fire' when this loss occurred. Her ipachinery.was designed'at first to burn wood, and had not long before been changed to consume anthracite coal, which created a higher heat. And yet there was a neglect fully to secure the wooden portions, of the boat, near and exposed to this higher heat, from the natural and dangerous consequences of it. So was there an omission to use fire-brick and new sheet-iron for guards, nigh the furnace. . On one or two' occasions, shortly before this accident, the pipe had become reddened by the intense heat so as to attract particular attention; and shortly before, the boat actually caught fire, it is probable, from some of those causes, and yet no new precautions had been adopted.
In the next place, the act of Congress (5 Stat. at Large, pp. 304, 305) requires the owners of steamboats “ to provide, as a part of the necessary furniture, a suction-hose and fire-engine and hose suitable to be worked in said boat, in case of fire, and carry the same upon each and every voyage in good order.” (Sec..9.) • And it imposes also a penalty of $ 500 for not complying with any condition imposed by the act.. (Sec. 2.)
The spirit of this requisition is as much violated by not having the hose and engine so situated as to be used promptly and efficiently, as by not having them at all, or not having them “ in good order.”
The hose and engine were not kept together, and hence could not be used on that fatal night! One was stowed away in one part of the boat, and the other elsewhere, so as not to be in a situation to be brought promptly into beneficial use.
Again, it was an imperative provision in the act of Congress before referred to (sec. 9), — and the neglect of it was punished by a fine of $ 300, on the owner as well as master, — “ that iron rods or chains shall be employed and used in the navigating of all steamboats,.instead of wheel.or tiller ropes.”
Though, in fact, this accident may not have proved more fatal than otherwise from this neglect, the non-compliance with the provisipn was culpable, and. throws the burden of proof on the owners to show it did not contribute to the loss. Waring et al.
v.
Clarke,
Nor does there appear' to have been any drilling of the crew previously, how to use the engine in an emergency, or any discipline adopted, to operate as a watch to prevent fires from occurring, or, after breaking out, to extinguish- them quickly.- Indeed, ithe captain, on this occasion, checked the efforts of some to throw the ignited cotton overboard, so as to stop the flames from spreading, by peremptorily forbidding 'it to be done.
The respondents, to be sure, prove that, several buckets were on board. But the buckets, except in a single instánce, were not rigged with heaving-lines, so as to be able to draw up water, and help to check promptly any fire which might break out. And in consequence of their fewness or bad location, some of the very boxes containing' the specie' of the plaintiffs were broken open and emptied, in order to hold water. Lastly,when discovered, the officers and crew .do not appear generally to have made either prompt or active' exertions to extinguish the fire, or to turn the vessel nearer shore, where this property, and the passengers, would be much more likely to be preserved, eventually; than by remaining out in the deep parts of the Sound.
The extent and nature ' of the liability thus caused are well settled at law. The property of the plaintiffs was destroyed by fire, through great neglect by the defendants and their agents. Common carriers are liable for losses by fire, though guilty of no neglect, unless it happen by lightning. 1 D. & E. 27; 4 D. &. E. 581; 3 Kent, Comm. 217; 5 D. & E. 389; Gilmore
v.
Carman, 1 Smedes & Marsh. 279; King et al.
v.
Shepherd, 3 Story, Rep. 360; 2 Browne, Civ. and Adm. Law, 144;
They would, therefore, be liable in the present case without such neglect, if this view of it applied to a recovery on the ground of a tort as well as of a contract. But as it may not,'
It is well settled, that a captain is bound to exercise a careful supervision over fires and lights in his vessel, ordinarily. Malynes, 155; The Patapsco Ins. Co.
v.
Coulter,
He is required in all things to employ due diligence and skill (
His failure to exert himself properly to extinguish any fire amounts to barratry.
■ To be sure, in one case the owners of a steamboat were exonerated from paying for a loss by fire. But it was only under the special provision of the local laws, rendering them exempt, if the fire occured “by accidental or uncontrollable events.” See. Civil Code of Louisiana, 63d article; Hunt
v.
Morris,
So the written contract for freight, as well as that for insurance, sometimes does not cover fire, but specially exempts a loss by it; 3 Kent, Comm. 201-207.
In such case there may be no liability for it on the insurance, and doubtfully on the charter or bill of lading, unless it was caused by gross neglect,
crassa negligentia.
But in case of such neglect, liability exists even there. 3 Kent, Comm. 217;
From the above circumstance, the conclusion is almost irresistible, that what constitutes a gross neglect by the respondents and 'their agents, as to the condition of the. boat and its equipments, existed here, and by the deficiencies and imperfec
If any collateral circumstance can warrant the exaction of greater vigilance than usual, on occasions like these, or render neglects more culpable, it was, that the lives of so many par sengers were here exposed by them, and became their victims. This last consideration is imperative, in cases of vessels devoted both to freight and passengers, to hold the owners and their servants responsible for the exercise of every kind of diligence, watchfulness, and skill which the principles of law may warrant. Beside the great amount of .property on board on this occasion, they had in charge from one to two hundred passengers, including helpless children and females, confiding for safety entirely to their care-and fidelity.' All of these, except two or three, were launched into. eternity, during that frightful night, by deaths the most painful and heart-rending. Had proper attention been devoted to the guards ágainst .fire, such as prudence and duty demanded, or due vigilance and energy been exercised to extinguish it early, not only would large amounts of property probably have been saved, but the tragic sufferings and loss of so many human beings averted.
In view of all this, to relax the legal obligations and duties of those who are amply paid for them, or to encourage careless breaches of trusts the most sacred, or to favor technical niceties likely to exonerate the authors of such a calamity, would be of most evil example over our whole seaboard, and hundreds of navigable rivers and -vast lakes, where the safety of such immense property and life depends chiefly on the due attention of the owners and agents of steamboats, and is, unfortunately, so often sacrificed by the want of it. To relax, also, when Congress has made such neglect, when followed by death, a crime, and punishable at. least as manslaughter, would be unfaithfulness to the whole spirit of their legislation, and to the loudest demands of public,policy.
Their enactment on this subject is in these words (see statute before cited, sec. 12): — “ That every captain,” &c., “by whose misconduct, negligence, or inattention to his of. their respective duties, the life or lives of any person on board said vessel may be destroyed,, shall be deemed guilty of manslaughter,” &c.
Showing, then, as the facts seem to do here, wrongs and gross neglect by both the owners and officers of the boat, the next step in our inquiries is, whether any principles or precedents exist against their being prosecuted in admiralty as a
The recovery, in cases like this, on the tort, counting on the duty of the carrier and its breach by the negligent loss of the property, is common, both in this country and abroad, in. the courts of- common law.
Whether it be redressed there in trespass or case, when suing
ex
delicto,, is immaterial, if, when case is brought, the facts, as here, show neglect or consequential damage, rather than those Which are direct and with force. And if case lies at common law on such a state of facts, there seems to be no reason why a libel in admiralty may not lie for the wrong, whenever, as here, it was committed on the sea, and clearly within admiralty jurisdiction over torts. For the admiralty is governed by like principles and facts, as to what constitutes á tort, as prevail in an action at law for damages,-and its ingredients'are the same, whether happening on land or water. But case will lie át law, on facts like those here, for reasons obvious and important in the present inquiry. Indeed, on such facts the ancient action was generally in case, and counted on the duty of the carrier to. transport safely the property received, and charged him with tortious negligence in not doing it. 1 Price, 27; 2 Kent, Comm. 599;
'Forward v. Pittard, 1 D. & E. 27; 1 Esp. Ca. 36; 2 Chit. R. ■Í; Ashmole v. Wainwright, 2 Adol. & Ell., N. S. 663.
So' it is well settled that these rules of law, and all others as to cominon carriers by land, apply to those by water, and to those boats carrying freight, as this one did;
What, then, in principle, operates against a recovery ? .
Somte would seem to argue, that a.proceeding ex delicto must be trespass, and that case is not one. But when it proceeds, as here, for consequential damages, and those caused by gross neglect, and not a mere breach of . contract, it sounds ex delicto as much as trespass itself. 1 Chit. Pl. 142.; 3 East, 593; 2 Saund. 47 b.
It is altogether a mistake., as some seem to argue, that' force and a direct injury are necessary to sustain proceedings in tort, either at law or in admiralty, for damages by common carriers. So little does the law regard, in some cases, the .distinction between nonfeasance and misfeasance, in creating á tort and giving any peculiar form of action for it, that in some.instances a nonfeasance is considered as becoming misfeasance ; such as a master, of a vessel leaving his register behind, or his compass, or anchor. . 3 Peters; 235. And “ torts of this nature,” as in the present case, may be committed either by “nonfeasance, misfeasance, or malfeasance,” and often without force. 4 D. & E. 484; 1 Chit. Pl. 151; Bouvier’s Dict.,
Tort.
And even where
mala fdes
is necessary to sustain the proceeding, gross negligence is evidence, of- it. 4 Adol. & Ell. 876;
Again, it has been argued, that if direct force be not a necessary ingredient to recover in this form of action, it must in some degree rest on the contract which existed here with Harnden, and be restrained by its limitations. But the books are full of actions on' the case where contracts existed, which were brought and which count • entirely independent of any contract, they being founded on - some public duty neglected, to the injury of another, or on some private wrong or
Nor is intent to do damage a necessary ingredient to sustain either case or trespass. 2 New R. 448. Though the wrong done is not committed by force or design, it is. still treated as
ex delicto
and a tort, if it was done either by a clear neglect of duty, by an omission to provide safe and well-furnished carriages or vessels, by carelessness in guarding against fires and other accidents, by omitting preparations and precautions enjoined expressly by law, or by damage s consequent on the negligent upsetting of carriages, or unsafe and unskilful navigation of vessels. See cases of negligent defects in carriages and vessels themselves, 2 Kent, Comm. 597, 607; 6 Jurist, 4; The Rebecca, Ware, D. C. 188; 10 East, 555;
There is another important consideration connected with this view of the subject, and relieving it entirely from several objections which exist to a proceeding founded wholly on a contract rather than a tort. It is this. Where the injury is caused by a tort or fraud, no question arises as to any special agreement or notice, as with Harnden here, not to assume any risk. ,In short, the agreement, of that kind here, does not exonerate, if “ malfeasance, misfeasance, or gross negligence ” happens by owners or their servants.
Some think the neglect in such case, so as to be liable for valuables, must amount to misfeasance. 2 Adol. & Ell. 659; 2 Myl. & Craig, 358. It must be “misfeasancé or gross negligence.” 2 Kent, Comm. 607, note; 13 Price, 329; 12 B. Moore, 447 ; 5 Bingh. 223 - 225; 8 Mees. & Wels. 443. By a recent .statute in England, under William- IT., though thé carrier has been exonerated from the liability and care of valuables, without notice, yet he cannot be if gross neglect happens. 2 Adol. & Ell. 646.
All this being established at law, what is there to prevent this wrong from being deemed, a tort, in connection with maritime matters, — Or, in other words, “a marine tort,” — and subject to be prosecuted in admiralty ? I am not aware that a marine tort differs from any other tort in its nature or incidents, except that it must be committed, as this was, on the high seas. See cases cited in Waring et al. v. Clarke, 5 Howard. There it was held sufficient to constitute a marine tort,-and one actionable in admiralty, if the wrong was committed only on tide-water.
• We have already suggested, also, as to the gist of the wrong, that gross neglect, the elements and" definition of it, are the same on the water as on land, and consequential or direct dam
Force, too; is no more necessary to constitute this kind of tort át sea than on land, or in admiralty than in a common law court.
Finally, the principles applicable to the definition of thé wrong or tort being here in favor o'f a recovery in admiralty, and there being no precedents in opposition, but some in support of it, the inference is strong, that this destruction of the property of the plaintiffs may well be regarded and prosecuted in admiralty as a marine tort.
■Though I admit there are no more cases in point abroad, in 1789, for - sustaining a suit for a consequential irijury by a carrier as a tort, than on the contract, in admiralty, yet thé principles are most strongly in favor of relying on the tort, without any opposing decision, as there is to a libel on the contract. Beside this, other difficulties are avoided, and more ample justice attained, by the libel here for the tort, than by one for the contract,
A moment to. another objection, — that the libel in this case does not contain allegations in proper form to recover damages in admiralty, as if for a maritime tort.
This libel is in several separate articles, rather than in A single count. In none of them is any contract specifically set out, though in one of them something is referred to ás “ contracted.” The libel avers, that the respondents were common carriers ; that a public duty thus devolved on them; that they received the property on board to transport it, and so negligently I conducted, it was lost. The breach is described throughout, not of. what had been “ contracted ” or promised), but as a wrong done, or tort, and specifies several misdoings.. It is in these words: —
“ Yet the respondents, their officers, servants, and agents, so carelessly and improperly stowed the said gold coin and silver coin, and the engine, furnace, machinery, furniture, rigging, and equipments of the said steamboat were so imperfect and insufficient,, and the said respondents, their officers* servants, and agents, so carelessly, improperly, and negligently managed and conducted the said steamboat Lexington, during her said voyage, that by reason of such improper- stowage, imperfect and insufficient engine, furnace, machinery, furniture, rigging* and equipments, and of such careléss, improper, and negligent conduct, the said steamboat, together with the gold coin and silver coin to the libellants, belonging, were destroyed by fire on the.high seas, and wholly lost.”
Where contract .and tort, in the forms of declaration at. common- law in actions of - the cáse, are with difficulty discriminated, the general test adopted is, if specific breaches are as
The same technical minuteness is not necessary in a libel as in a declaration at common law. 5 Rob. Adm. 322; Dunlap, Adm. 438, 439; Ware, D. C. 51. Only the essential facts, need be alleged, without regard to particular forms, either in contract or tort. Hall’s Prac. 207, 138; Dunlap, Adm. 427.
And in the same libel between the same parties, unlike the rule at common law, it is held by some that both contract and tort may be joined, though it is proper to state them in separate articles in the libel, like separate counts. Semble in 3 Story, R. 349; Dunlap, Adm. 89. And in some cases it is clearly better not to unite them. Ware, D. C. 427. Here, if the libel is considered as but separate paragraphs of one article, it is a good one ‘in tort. Dunlap, Adm. 114, 115; 4 Mason, C. C. 541. And if as separate articles, one of them is valid in tort.
The forms of libels for maritime torts include those which caused only consequential damages, as well as those which caused- direct damages. Dunlap, Adm. 49; 3 Story, R. 349, one count seems to be for the wrong. .
There aré cases of this kind merely for improper usage to passengers, by bad words, and neglect; but no force existed, or was alleged. 3 Mason, C. C. 242.
Others are libels for seducing or carrying away a minor son of the plaintiff to his damage, like the actions on the case at ' common law. Plummer v. Webb, 4 Mason, C. C. 380. Yet they are called, as they are in law, “ tortious abductions.”
So a libel lies for loss of goods “ carelessly and improperly stowed.” Ware, D. C. 189.
But if the libel here was less formal in tort, the liberality practised in admiralty pleadings, regarding the substance chiefly, as in the civil law, would allow here any necessary amendments. Dunlap, Adm. 283; 4 Mason, C. C. 543;
The amount of damages which can be awarded in admiralty, in a case like this, has been agitated by some of the court, but was not argued at the bar. It is- not without difficulty, but can in a minute or two be set right. By the ancient practice in admiralty, in case of contracts of freight made by the master, it is true that the owners were liable, whether
ex contractu
or
ex delicto,
and whether
in personam
or
in rem,
for only the value of the vessel or the capital used in that busi
This is modified by some State laws, under certain .circumstances. See The Rebecca and Phebe, Ware, D. C. And England, by 53 Geo. III. ch. 99.
But even there the owner is still liable beyond the value of the vessel and freight, if the, damage or neglect was “ committed or occasioned” with “the fault or privity of such owner.” See Statutes at Large of that year; Phebe, Ware, D. C. 269. See for this and other statutes, 2 Bro. Civ. and Adm. Law, 45, excusing owners if the pilot alone is in fault. See 6 Geo. IV. ch. 125,
§55;
1 Wm.
On principle, also, this is the right rule in admiralty, , clearly, where the owners themselves at home, and not the master abroad, made the contract, or where' they were guilty of any neglect in properly furnishing the vessel, and not he. Phebe, Ware, D. C. 269, 203-206.
The principle of his binding them only to the extent of the property confided to him to act with, or administer on, does not apply to that state of facts (Abbott on Ship. 93), but only to his doings abroad.
The contracts made abroad are usually in his name, as well as by him, and not by the owners, and he only to sue or be sued. Abbott on Shipp., pt. 2, ch. 2, § 5.
In Waring et al.
v.
Clarke, which was a tort by the master at home, in a collision of two boats, the whole amount of the injury was awarded. See. also
It is a mistake, likewise, to suppose, as some have, that the rule of damage is thus higher in admiralty than at common .law, or when counting on the tort rather than, contract, The only difference is, that in admiralty, if counting on the contract, doubts exist whether a recovery can be had on the precedents, while, if counting on the tort, no doubt exists, the place of the tort being clearly on the sea, and within admiralty jurisdiction. Nor do I see any sound reason for not sustaining this case in admiralty, when jurisdiction exists there over the subject, because this proceeding is
in personam
and not
in rem.
The jurisdiction is one thing, the form of proceeding another ; and it is only when the vessel itself is pledged, and no personal liability created, so as to lay a foundation for an. action at law, that the form of proceeding seems to help to give jurisdiction in admiralty, where alone the libel in rem in such case can be followed. 3 D. & E. 269.
But even then, I apprehend, the subject-matter must .be proper for admiralty, or it could not be prosecuted there in rem, because, if the subject-matter is a carriage or horse, rather than a ship or its voyage, or something maritime, admiralty would get no jurisdiction by the' thing itself being pledged, or to be proceeded” against. The Fair American, 1 Peters, Adm. 87; Duponceau on Jurisdiction, 22, 23.
Indeed, the rule in England to this day seems to be adverse to proceeding in admiralty at all, even
in rem,
to recover freight. Abbott on Shipp. 170. King et al.
v.
Shepherd et al.,
So it has been adjudged by this court to be proper to prosecute in admiralty for marine torts,
in personam
as well as
-in
rem.. Manro
v.
Almeida,
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Rhode Island, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this cotut, that the decree of the said Circuit Court in this cause be and the same is hereby affirmed, with costs, and damages at the rate of six per centum per annum.