12 F. 296 | U.S. Circuit Court for the District of Eastern Virginia | 1882
This is an action of trespass on the case, brought to recover $10,000 damages for a tort, alleged to have been com-xmitted by a steaui-boat.
The fust section of the Virginia attachment law is as follows:
‘‘When any suit is instituted for any debt, or for damages for breach of any contract, on aflidavit, stating tlie amount and justice of the claim; that there is present canse of action therefor; that the defendant, or one of the defendants, is not a resident of this state; and that the affiant believes he has estate or debts due Mm within the county or corporation in which the suit is; or that lie is sued with a defendant residing therein, — the plaintiff may forthwith sue out of the cleric’s office an attachment against the estate of the non-resident for the amount so stated.” Virginia Code 1873, c. 148, § 1.
The Virginia vessel lien law, as last amended on March 12, 1878, is as follows:
“ If any person lias any claim against the master or owner of any steamboat or other vessel, raft, or river craft, or against any steam-boat or other vessel, raft, or river craft, fouud within the jurisdiction of this state, for materials or supplies furnished or provided, or for work done for, in, or upon tlie same, or for wharfage, salvage, or pilotage, or for any contract for transportation of, or any injury done to any person or property by such si¡eam-boat or other vessel, raft, or river craft, or by any person having charge cf her, or ⅛ her employment, such person shall have a lien upon such steam-boat or other vessel, raft, or river craft for such materials or supplies furnished, work done, or services rendered, wharfage, salvage, pilotage, and for such contract or injury as aforesaid, and may, in a pending suit, sue out of the clerk’s office of the circuit court of the county, or of the corporation court, or of tlie circuit court of the corporation, in which such steam-boat or other vessel, raft, or river craft may be found, an attachment against such steam-boat or other vessel, raft, or river craft, with all her tackle, apparel, furniture, and appurtenances, or against the estate of such master or owners. Any attachment may be sued out under this section for a cause of action that may Lave arisen without the jurisdiction of this state, as wrell as within it, if the steamboat or other vessel, raft, or river craft be within tlie jurisdiction of this state at the time the attachment is sued out or executed.” Virginia Acts of ’77-8, p. 217.
The history of ibis act is of some interest. It has always been, in some form, part of the state attachment law. It originated in a police provision for attaching vessels engaged in harboring, for the purpose of carrying away, runaway slaves. Code of 1860, c. 171, § 5, p. 646. By various amendments it was gradually enlarged and changed until, in 1866, (see Acts of 1865-6, c. 57, p. 171,) it gavea right to proceed in a state court for nearly every subject of admiralty jurisdiction, and continued the right previously given to proceed directly against the vessel as the debtor or offender; the statute itself reciting
In this condition of the law the present suit was instituted in the circuit court of Westmoreland county, Virginia, on the thirtieth of September, 1880. The plaintiff had taken passage on the steamer Arrowsmith at the city of Washington, on the twenty-sixth of August, 1880, for Nomini, Virginia, and, while the vessel was still at the wharf at Washington, had been injured by the falling of a block of ice. The damages claimed are $10,000. There has been no service of process on the defendant, who is alleged in the declaration to be the owner of the steamer. On the same day on which the suit was begun, process of attachment was taken out against the steamer by name, the defendant being declared in the plaintiff’s affidavit to be a non-resident. Process of attachment was immediately served, and the vessel arrested and held. She was thereupon bonded in the sum of $20,000. The attachment was not taken out under the general attachment law of Virginia, section 1, c. 148, of the Code, before quoted, which gives the right of attaching the “estate” of defendant, but was taken out under the vessel lien law, also before quoted.
The affidavit on which the attachment issues sets out in terms that the injury complained of was done to plaintiff while a passenger
The defendant then filed here a demurrer, and alleges, as ground of demurrer, that the court has not jurisdiction of the cause in a proceeding at common .law; this being essentially an admiralty cause, exclusively cognizable in an admiralty court.
It is plain, as well from the affidavit on which the attachment was issued and the terms of the attachment as from the concessions of plaintiff's counsel, that this is a proceeding under what is called “The Yessel Lien Law,” (quoted in the foregoing statement of facts,) and not under the foreign attachment law of Virginia. Since the decision of the United States supreme court in Steamboat Co. v. Chase, 16 Wall. 522, common-law suits are maintainable against ships of commerce for causes of action arising at common law. A state has power to annex to suits for such causes of action auxiliary remedies, like foreign attachment, for the purpose of subjecting property of nonresidents to the payment of debts due her own citizens. Pennoyer v. Neff, 95 U. S. 714. A statute, therefore, which gives a right to attach any property of a non-resident to satisfy a judgment when obtained is valid; and, under such a law, creating a remedy by attachment against all the property of a non-resident, in an action for a common-law tort already pending, a ship may, as the law stands at present, under the rulings of the supreme court of the United States, be attached as part of the estate of the owner defendant. But can a state give a special lien upon a ship for a cause of action peculiarly of admiralty cognizance, and provide a remedy by attachment for its enforcement specifically and directly against the particular vessel as a debtor or offender ? That is the question on which this case turns.
The supreme court has decided, in the cases of The Moses Taylor, 4 Wall. 411; The Hine v. Trevor, Id. 565; and The Belfast, 7 Wall. 624, that states cannot give their courts the right to proceed against
The distinctive feature of an admiralty suit is that the privilegium, or right to pursue the particular ship, exists independently of possession, and exists only against the particular vessel on, or on account of, which the cause of action arose, which, in the eye of the admiralty law, is the real contracting debtor or offender, the real defendant.
It seems to me, therefore, that a statute which gives a lien on that Specific vessel for that admiralty cause of action, and attempts to •confer the right of enforcing it on a state court, comes within the reason of the cases above cited, even though the suit is, in form, against the owners nominally and the vessel really. The form cannot change the substance. In this case, for instance, the fact that the owners are named as defendants instead of the vessel, makes no real difference in the proceeding. They are not served personally with process. They can be brought into court only by an order of publication, precisely similar to that made in an admiralty cause, giving notice of seizure. The judgment, while in form against them personally, is yet enforced only by a sale of the vessel, or execution against the stipulators who stand for her. Can a suitor, then, be allowed to evade the decisions of the supreme court by merely altering the title of the ease ?
Where non-resident ship-owners are defendants, the right to proceed in the state courts against their vessels in admiralty causes of action, if it existed, would be a peculiar hardship. Unlike admiralty courts, which are always open for. business, most of the state circuit courts are held only twice a year, and last bub a short time. Being strangers, non-residents cannot often give the release bonds, with
There are still stronger reasons why admiralty causes should not be tried by common-law methods, and admiralty claims subjected to common-law rules of decision. I do not think the framers of the judiciary act of 1789, by the clause in the ninth section “saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it,”
The constitution of the United States entitles the owners, navigators, employes, and commercial creditors of ships to have their rights determined by the rules of decision, and adjudicated by tlie expeditious methods obtaining in the admiralty courts; and the peculiar character, equities, and priorities of those claims are such that it is necessary, not only for the purposes of justice between man and man, but to the interests of commerce, that they should be so determined and adjudicated.
A ship is a thing that must be kept going, in order to subserve the objects for which she is built and employed. To arrest and hold her idle is to destroy her life. She is essentially a voyager. Tlie interests of all connected with her voyages require that the priorities of the claimants and creditors should he the reverse of those which are recognized by common-law courts as applicable to tilings on land. The seaman is paid first. The material man, who supplies
Now it is plain that in cases in which the rights of suitors depend upon the admiralty law, the common law, whose rules of decision are in a great class of cases violently the reverse of those obtaining in the admiralty courts, is incompetent to afford the remedies contemplated by the ninth section of the law of ITS9.
In a large number of cases an admiralty suit is in the nature of a creditors’ bill in equity, in which the ship has to be sold and the claims of creditors marshalled and adjusted according to priorities observed and respected in all the admiralty courts of the world, in respect to ships. Can it be pretended that a suit at common law, commenced by attachment and order of publication against a nonresident owner, in a jurisdiction in which the ship is a stranger, and the rest of its creditors non-resident, is one in which the common-law practice and the common-law rules of decision are competent to the ends of complete justice? The proposition would seem to be little less than preposterous.
Suppose there be claims of seamen, material men, salvors, ship’s husbands, and others existing against the vessel which has been arrested in the present suit, (and, for all we can know from this proceeding, there are such claims,) the claimants all having constitutional title to an adjudication of their rights in an admiralty proceeding, according to admiralty rules of decision; what would become of them in the present suit at common law, pending between no other possible parties than the plaintiff and the owner ? The claims of the persons having primary rights in the vessel are not before the court, and cannot, by any legal possibility, be brought here in the present suit. It is not sufficient to answer that judgment in this case would not reach this particular vessel, which is bonded; for that is only to assert that by fortuitous circumstances this particular vessel has had the narrow chance to escape the injurious and unjust consequences
The judicial history of the United States proves that the admiralty law and the admiralty practice are absolute necessities to the commerce of the country.
At one time, owing to a series of decisions rendered by the supreme court of the United States, all that very large portion of the Union not bordering upon or penetrated by tide-waters was deprived of this law and practice, and the deprivation was felt so keenly that very remarkable things occurred.
In a series of cases, among them The Thomas Jefferson, 10 Wheat. 428, and The Orleans, 11 Pet. 175, the supreme court held that the admiralty jurisdiction of the United States courts embraced only the tide-waters of the country, and, by so ruling, virtually excluded it from the regions watered by the great lakes of the north, and by the Mississippi river and its tributaries. The need of this jurisdiction was, in consequence, so severely felt by the commerce of those great regions that congress found if necessary to pass the act of .February 26, 1845, “extending the jurisdiction of the United States district courts to certain eases upon the lakes and the navigable waters connecting the same.” This law virtually erected the district courts of the United States, in districts bordering on the waters named, into quasi admiralty courts. It expressly provided that the practice and proceedings in rem obtaining in admiralty courts should be employed in the district courts in respect to vessels exceeding a certain ton-
This very cursory view of the course of legislation and adjudication on this subject shows that the admiralty law and practice — that is to say, the admiralty jurisprudence — is a necessity to the commerce of the country; that it cannot be dispensed with in regard to vessels employed upon the public navigable waters of the United States; that the courts of the Union and of the several states are bound to regard navigators of, and all persons interested in, ships, either in the character of owners, employes, or creditors, as entitled to the benefit of that jurisprudence; and that any state legislation designed directly, specifically, and particularly, to subject ships as such, and as debtors or offenders, to common-law procedure and common-law rules of decis
Indeed, the necessity of resort to admiralty rules of decision in respect to tilings requiring constant outlays of labor and money in order to be rendered useful for the purposes for which they exist, has not limited itself to ships. It has recently extended itself to embrace railroads. The supreme court of the United States, in the recent cases of Fosdick v. Schall, 99 U. S. 235; Hale v. Frost, Id. 389; and other decisions, have found it necessary to relax the common-law principles of priority among creditors, and to apply to railroads principles assimilated to those of the admiralty law. In the former case it said:
“ The business of all railroad companies is done to a greater or less extent oil credit. This credit is longer or shorter, as the necessities of the case require; and when companies become pecuniarily embarrassed it frequently happens that debts for labor, supplies, equipment, and improvements are permitted to accumulate in order that bonded interest may be paid, and disastrous foreclosure postponed, if not altogether avoided.
“ In this way the daily and monthly expenses are kept from those to whom in equity they belong, and used to pay the mortgage debt. * * * livery railroad mortgagee, in accepting his security, impliedly agrees that the current debts made in the ordinary course of business shall be paid from the current receipts, before he has any claim upon the income. * ⅜ ⅝ When a receiver is appointed, and it appears in the progress of the cause that bonded interest has been paid, additional equipments provided, or lasting and val cable improvements made, out of earnings which ought in equity to have been employed to keep down debts for labor, supplies, and the like, it is within the power of the court to use the income of the receivership to discharge obligations which, but for the diversion of the funds, would have been paid in the ordinary course of business.”
Thus the tendency of modern jurisprudence is very ¡strongly towards a departure from the rigid and inelastic tenets and methods of the common law, in respect, at least, to the instruments and instrumen-talities of trade and commerce; and I think the time is not far distant when tho supreme court of the United States will find it necessary to hold that the attachment laws of states, allowing attachments in rem to be served on the general estates of defendants in pending suits, shall not be construed to embrace, in suits brought for causes of action clearly maritime, steam-boats, ships, and other vessels act
It only remains for me to notice a few of the cases cited by plaintiffs’ counsel in their brief, touching, apparently, this very point. In the case of the Steamboat Co. v. Chase, 16 Wall. 522, there were two questions: (1) Whether a personal representative of an intestate (who had been run over and drowned by a large steam-boat) could bring suit in admiralty for the tort; the general rule being that claims for tort die with the claimant, and there being a state statute in Ehode Island, where the accident occurred, giving the right of action in a common-law proceeding to the representative of such an intestate. (2) If there were no right of action in admiralty, then the second question was: Whether, admiralty having no jurisdiction of the cause of action, a proceeding at common law in the state court, as this suit was, under the state statute, and an attachment of the steani-boat under the general attachment law of the state, was an interference with the exclusive jurisdiction of the admiralty courts in maritime causes of action. The supreme court held that this suit could be maintained in the state court, and that the attachment of the vessel was valid. That case, it is obvious, differs essentially from the one at bar. In.that case both parties were residents of Ehode Island.
In the case of Leon v. Galceran, 11 Wall. 187, a state statute of Louisiana gave a right of attachment, called, in the local nomenclature, “a writ of sequestration,” in certain cases, against the estate and property of a defendant, irrespectively of whether the plaintiff’s claim was maritime or not. It was a statute similar in character to the general attachment law of Virginia, (chapter 148, § 1, of the Code,) which was quoted in the statement of facts prefixed to this opinion. The plaintiffs were seamen, who sued for wages earned on board of a schooner of the defendant employed on the Mississippi river in Louisiana, all being residents of the state, and probably of the city of New Orleans, where the suit was brought. The action was in personam against a defendant who also was a resident of Louisiana, and the schooner was attached, on mesne process, under the general attachment law which has been described. It was stated by plaintiffs’ counsel in his brief in the supreme court of the United States, to which the case was carried from the state courts, that “the writ of sequestration [used in Louisiana] has no analogy whatever with the admiralty process, as understood and defined by writers on admiralty law;” and he cites article 269 et seq. of the Louisiana Code
We are considering here a law of Virginia which, in its original form, gave a p?'ivilegium in admiralty, and a proceeding in rem against a ship as such, for all maritime claims, although no suit in personam had been instituted, and irrespective of ownership. This law having been pronounced, in the respects indicated, unconstitutional, was then changed, but changed only to the extent of providing that the proceeding in rem, though still taken out against the ship as debtor or tort-feasor, should be “in a pending suit.”
I do not think so slight an amendment has rectified the inherent illegality of the statute. I do not think a state statute, giving for a maritime cause of action a proceeding in rem specifically against a ship as the debtor or offender, is valid, in view of the third classification of causes in section 711 of the Eevised Statutes of the United States, giving cognizance to the admiralty courts, exclusive of the state courts, “of all civil causes of maritime and admiralty jurisdiction.” I think the suit must be dismissed for want of jurisdiction.
As to the proposition of plaintiff’s counsel that the defendant cannot raise the question of jurisdiction by demurrer, I have to say that however that might be in respect to other defects of jurisdiction, yet when the nature of the action is such that the court is incompetent to try it, then no formal plea to the jurisdiction is necessary; and whenever on any pleading the court is brought to the knowledge of the absence of its jurisdiction of the case, tire court may ex mero motu, or on simple motion of either party, dismiss the proceeding. Moreover, it is elementary law that a demurrer brings the whole record before the court antecedent to the demurrer, and so the demurrer in this case is equivalent to a motion to dismiss. The suit must be dismissed.
ifow third clause of section 711 of the Revised Statutes.