Waring v. Clarke
46 U.S. 441 (1847)

Annotate this Case

U.S. Supreme Court

Waring v. Clarke, 46 U.S. 5 How. 441 441 (1847)

Waring v. Clarke

46 U.S. (5 How.) 441

Syllabus

The grant in the Constitution extending the judicial power "to all cases of admiralty and maritime jurisdiction" is neither to be limited to nor to be interpreted by what were cases of admiralty jurisdiction in England when the Constitution was adopted by the states of the Union.

Admiralty jurisdiction in the courts of the United States is not taken away because the courts of common law may have concurrent jurisdiction in a case with the admiralty. Nor is a trial by jury any test of admiralty jurisdiction. The subject matter of a contract or service gives jurisdiction in admiralty. Locality gives it in tort or collision.

In cases of tort or collision happening upon the high seas or within the ebb and flow of the tide as far up a river as the tide ebbs and flows, though it may be infra corpus comitatus, courts of admiralty of the United States have jurisdiction.

The meaning of the clause in the ninth section of the Judiciary Act of 1789, saving to suitors in all cases a common law remedy when the common law is competent to give it, is that in cases of concurrent jurisdiction in admiralty and at common law, the jurisdiction in the latter is not taken away.

The Act of 7 July, 1838, 5 Stat. 304, for the better security of the lives of passengers on board of vessels propelled in whole or part by steam, is obligatory in all its provisions except as it has been altered by the Act of 1843, 5 Stat. 626, upon all owners and masters of steamers navigating the waters of the United States, whether navigating on waters within a state or between states, or waters running from one state into another state, or on the coast of the United States between the ports of the same state or different states.

By the law 7 July, 1838, masters and owners neglecting to comply with its conditions are liable to a penalty of two hundred dollars, to be recovered by suit or indictment. And if neglect or disobedience of the law shall be proved to exist when injury shall occur to persons or property, it throws upon the master and owner of a steamer the burden of proof to show that the injury done was not the consequence of it.

This was a suit in admiralty brought originally in the District Court for the Eastern District of Louisiana by Thomas Clarke, as late master of the steamboat Luda, and as agent for her owners, against the steamboat De Soto and her owners, Waring and Dalman, to obtain compensation for the destruction of the Luda by means of a collision between said boats.

A libel, answer, and supplemental libel and supplemental answer were filed, which were as follows:

"To the Honorable Theodore H. McCaleb, Judge of the United States District Court in and for the Eastern District of Louisiana."

"The libel and complaint of Thomas Clarke, late master of the steamboat Luda, of New Orleans (and agent of P. T. Marionoux, of the Parish of Iberville, in Louisiana), and of T. J. Abel, of the City of New Orleans, owners of the said steamboat Luda, her tackle,

Page 46 U. S. 442

apparel, furniture, and machinery, and who authorize libellant to institute this suit against the steamboat De Soto, her tackle, apparel, and furniture, whereof S. S. Selleck now is, or lately was, master, now in the River Mississippi in the port of New Orleans, where the tide ebbs and flows, and within the admiralty jurisdiction of this Court, and against Nathaniel S. Waring, Peter Dalman, and Parker, all residing within the jurisdiction of this Honorable Court, owners of said steamboat De Soto, and also against all persons lawfully intervening for their interest in said steamboat De Soto, in a cause of collision, civil and maritime, and thereupon the said Thomas Clarke, master and agent as aforesaid, alleges and articulately propounds as follows:"

"First. That the steamboat Luda, whereof libellant was then master, was, on the first day of November last past, at the port of New Orleans and destined on a voyage or trip from thence to Bayou Sarah, on the River Mississippi, about one hundred and sixty-five miles from the City of New Orleans, with lading of goods, wares, and merchandise, to the amount of _____ in value, or thereabouts, and several passengers, and was at that time a tight, stanch, and well built vessel, of the burden of two hundred and forty-five [tons], and was then completely rigged, and sufficiently provided with tackle, apparel, furniture, and machinery, and then had on board, and in her service, twenty-two mariners and fireman, which was a full complement of hands to navigate and run said steamboat Luda on the voyage above mentioned, and all the necessary officers to command said boat."

"Second. That on said first day of November, 1843, the said steamer Luda, provided and manned as aforesaid, departed from the said port of New Orleans, being propelled by steam, on her aforesaid voyage to Bayou Sarah, and in the prosecution of her voyage on the said River Mississippi arrived at what is called the Bayou Goula bar in said river, about ninety-five miles from the said port of New Orleans, on or about the hour of two o'clock A.M. of the morning of the second day of November, 1843, and was running as hear to, or closely 'hugging' said bar, being on her starboard, as she could safely; whilst the said steamer was running in that position, pursuing the usual track which steamboats ascending the said river take under the circumstances and going at her usual speed of about ten miles per hour, at the time aforesaid, within the ebb and flow of the tide and within the admiralty and maritime jurisdiction of this Honorable Court, Garrett Jourdan, the pilot of said steamer Luda, who was then at the wheel and controlled and directed said boat on said voyage, and Levi Babcock, also the pilot of said boat and who was then on the hurricane deck of said boat, observed the said steamboat De Soto, whereof the said S. S. Selleck was then master, of the burden of two hundred and fifty tons, or thereabouts, descending said river, being propelled by

Page 46 U. S. 443

steam, and controlled and directed at the time by one James Wingard, pilot of said boat, who then had the wheel steering said boat in a direction parallel with, and at a distance from, the course then pursued by the Luda sufficient to have passed the said Luda without touching and at a distance of about nine hundred feet or more, and in that position the said boats continued to run, the Luda ascending, the De Soto descending, the said river as aforesaid, until their bows were nearly opposite to each other, when, notwithstanding there was sufficient room for said boats to have passed each other without collision and notwithstanding the said Luda was then in her proper position, running as near said bar as she could safely, said James Wingard, the said pilot of the De Soto, suddenly turned the wheel, and threw the De Soto out of her proper position, and changed her course nearly at right angle to the one she [had] been running, in a direction towards the Luda, and notwithstanding the pilot of the said Luda rang her bell, and threw her fire doors open to apprize the De Soto of the situation of the Luda, the said pilot of the De Soto, either intentionally and willfully or most grossly, negligently, and culpably ran the bow of the De Soto, with great force and violence, foul of and against the Luda, about or near midship on the larboard side, and thereby so broke and damaged the hull and machinery of the Luda that the said Luda in a few minutes filled with water and sunk to the bottom of said river in ten or twelve feet water, where she now lies a total wreck, worthless, and an entire loss, and so sudden did she fill with water and sink, that two of the crew, a white man and negro, were drowned, or are missing and cannot be found; the balance of the crew, officers, and passengers barely escaped with their lives, and were not able to save anything of the freight on board or any part of said boat, her tackle, apparel, and furniture &c., or even their clothes, the whole being lost by reason of the said boat De Soto's having run foul of and against the said Luda as aforesaid and sinking said Luda as aforesaid."

"Third. That at the time the collision and damage mentioned in the next preceding article happened, it was impossible for the steamer Luda to get out of the way of the said steamer De Soto by reason that the former was in her proper position, running as near to, or closely 'hugging' said bar as she could prudently and safely; that there was room enough for the said steamboat De Soto to steer clear of, and pass by, the said Luda without doing any damage whatever or coming in collision with the Luda, and that if the said James Wingard, the pilot of the said De Soto, had not changed the direction of the said De Soto, but kept her in her proper position as aforesaid, and had not refused, or at least carelessly and culpably neglected, to endeavor to keep clear of said Luda, which it was his as well as the officers' duty to do, of said De Soto, and which they might with ease and safety have done, the

Page 46 U. S. 444

aforesaid collision, damage, and loss of life and property would not have happened, and libellant expressly alleges that the same did happen by reason of the culpable negligence, incompetency, or willful intention of the said pilot and officers of the said De Soto."

"Fourth. That the said steamboat Luda, before and at the time of being run foul of, damaged, and sunk by the said steamer De Soto as hereinbefore mentioned, was a tight, strong, and stanch boat and was, together with her tackle, apparel, and furniture and machinery, worth the sum of fifteen thousand dollars, and that the books, papers &c., belonging to said boat, and the property belonging to the officers and crew of said boat (exclusive of goods, wares, and merchandises on board of said boat), belonging to various persons unknown to libellant, as well the value thereof, were reasonably worth the sum of one thousand dollars, all of which was lost as aforesaid, and that by reason of the said steamboat Luda's having been run foul of and sunk by the said steamer De Soto as hereinbefore mentioned. Libellant, as master and agent of the owners of said Luda, has sustained damages to the amount of sixteen thousand dollars, which sum greatly exceeds the value of the said steamer De Soto, and for the payment of which sum the said steamer De Soto and her owners the said Nathaniel S. Waring, Peter Dalman, and Parker, are liable in solido, and should be compelled to pay."

"Fifth. That all and singular the premises are true and within the admiralty and maritime jurisdiction of this Court, in verification whereof, if denied, the libellant craves leave to refer to the depositions and proofs to be by him exhibited in this cause, and libellant further alleges that he has reason to fear that the said steamer De Soto will depart in less than ten days beyond the jurisdiction of this Honorable Court."

"Wherefore libellant prays that process in due form of law, according to the course of courts of admiralty and of this Honorable Court in causes of admiralty and maritime jurisdiction, may issue against the said steamboat De Soto, her tackle, apparel, machinery, and furniture, and the said Nathaniel S. Waring, Peter Dalman, and Parker, who is the clerk of said boat, may be cited, as well as all other persons having or pretending to have any right, title, or interest therein, to appear and answer all and singular the matters so articulately propounded herein. That after monition and other due proceedings according to the laws and usages of admiralty, that this Honorable Court may pronounce for the damages aforesaid and condemn the said Nathaniel S. Waring, Peter Dalman, and Parker, and all other persons intervening for their interest in said boat, to pay in solido the sum of sixteen thousand dollars to libellant, and also to decree and condemn the said steamer De Soto, her tackle, apparel, and furniture, to be sold to satisfy by privilege and preference the claim of your libellant, with his costs in this behalf expended, and

Page 46 U. S. 445

for such other and further decree be rendered in the premises as to right and justice may appertain, and your libellant will ever pray &c."

"W. S. VASON, Proctor"

"Thomas Clarke, being duly sworn, deposeth, that the material allegations of the above libel are true."

"[Signed] THOMAS CLARKE"

Upon this libel, the judge ordered admiralty process in rem to issue against the steamboat De Soto, and also process in personam against the owners, citing them to appear and answer the libel. The answer was as follows:

"To the Honorable Theo. H. McCaleb, Judge of the District Court of the United States within and for the Eastern District of Louisiana."

"And now Peter Dalman, of the City of Lafayette, in the district aforesaid, and Nathaniel S. Waring, intervening for their interest in the said steamboat De Soto, and for answer to the libel and complaint of Thomas Clarke, as late master of the steamboat Luda, and agent of P. F. Marionoux and T. J. Abel, late owners of the steamboat Luda, against the steamboat De Soto, her tackle, apparel &c., and against Peter Dalman, and Nathaniel S. Waring, and Parker, as owners of the said steamboat De Soto, and also against all persons intervening for their interest in said steamboat De Soto, allege and articulately propound as follows:"

"First. That the respondents are the true and lawful owners of the said steamboat De Soto."

"Second. That it doth appear from the allegations of the said libel, and these respondents expressly propounded and allege the fact to be so, that the trespass, tort, or collision set forth and alleged in the said libel, if any such did take place in the manner and form set forth in said libel, which these respondents most respectfully deny, was on the River Mississippi, off and near the mouth of the Bayou Goula, about ninety-five miles above the City of New Orleans, within the State of Louisiana, within the body of a county or parish of said state, to-wit, the Parish of Iberville or County of Iberville in said state."

"Third. The tide does not ebb and flow at the place where the said collision, tort, or trespass is alleged to have taken place."

"Fourth. That it is not alleged in said libel, and these respondents aver and propound that the said collision did not take place on the high seas, or in sailing or navigating to or from the sea."

"Fifth. That neither the said steamboat Luda nor the said steamboat De Soto was, at the time the said collision took place or the tort or trespass aforesaid is alleged to have been committed, employed in sailing or navigating on any maritime voyage, but were wholly employed, and then were actually pursuing a voyage confined

Page 46 U. S. 446

to the River Mississippi, to-wit, the said steamboat Luda on a voyage from the City of New Orleans to Bayou Sarah, about one hundred and sixty miles above the said city, and the said steamboat De Soto on a voyage or trip from Bayou Sarah aforesaid to the City of New Orleans, where her said voyage or trip was to end."

"Sixth. That neither the said steamboat Luda nor the said steamboat De Soto was built, designed, or fitted, or ever intended to be employed or used in any manner for a maritime or sea voyage, nor have they, or either of them, ever been used, employed, or engaged in any such maritime or sea voyage, but were wholly built, designed, or intended for the navigation of the said River Mississippi or other rivers or streams entering therein and the transportation of goods and passengers from the said City of New Orleans up the said river or streams to the interior of the country and the transportation of passengers, goods, cotton, and other produce of the country from the landings and places and plantations of the inhabitants on the bank or banks of said rivers and streams to the said City of New Orleans, without proceeding any further down the said River Mississippi, nearer to its mouth or to the sea, and were both so employed at the time the said collision, trespass, or tort is alleged to have been committed."

"Seventh. That this Honorable Court, by reason of all the matters and things so above propounded and articulated, has not jurisdiction and ought not to proceed to enforce the claim alleged in the libel aforesaid against the said steamboat De Soto, or against them, these respondents, intervening for their interest, or against these respondents in their proper persons, as prayed for in and by said libel."

"Eighth. That all and singular the premises are true, in verification whereof, if desired, these respondents crave leave to refer to the depositions and other proof to be by them exhibited in this cause. And the said respondents, in case their said plea to the jurisdiction of the court so as above propounded, articulated, and pleaded, should be overruled, then they, for further defensive answer, articulately propound and say:"

"1st. That they admit that the said two steamboats did come into collision at the time stated in the said libel, but they do expressly deny that the said collision was caused or did happen by any fault, negligence, or intention of these respondents, or the master, officers, or crew of the said steamboat De Soto or any other person or persons for whom these respondents or the said steamboat De Soto can in any manner be liable or responsible."

"2d. That the said collision was caused by the fault or negligence or want of skill in the person or persons having charge or command of the said steamboat Luda or the pilots, officers, or crew of said steamboat, or that the same was by accident, for which these respondents are not liable. "

Page 46 U. S. 447

"3d. That the said sinking of the said steamboat Luda and her loss alleged in said libel were not caused by any damage she received in the collision aforesaid, but by the negligence, want of skill, and fault of the person or persons in charge of the said steamboat Luda."

"4th. That at the time the said collision did take place, the said steamboat Luda was not seaworthy and was not properly provided with a commander and other usual and necessary officers of competent skill to manage and conduct the said steamboat, by reason of which the collision aforesaid did take place and the said boat did afterwards sink."

"5th. That the said steamboat De Soto did suffer a great damage by the said collision, to the amount of five hundred dollars, and these respondents have and will suffer great damage by the seizure and detention of said steamboat De Soto under the process issued in this case, and to the amount of five thousand dollars."

"Wherefore, and by reason of all the matters and things herein propounded and pleaded, these respondents pray that this Honorable Court will pronounce against the said libel, that the same may be dismissed, and the said steamboat De Soto restored to your respondents, with all costs in this behalf expended."

"That your Honor may pronounce for the damages claimed by these respondents, as before stated, and condemn the libellants to pay the same in solido to these respondents, and that your respondents may have all such other and further order, decree, and relief in the premises as to law and justice may appertain and the nature of their case may require."

"[Signed] PETER DALMAN"

"N.S. WARING"

The supplemental libel was as follows:

"To the Honorable Theo. H. McCaleb, Judge of the United States District Court in and for the Eastern District of Louisiana."

"The amended and supplemental libel of Thomas Clarke, late master of the steamboat Luda and agent of the owners thereof &c., against the steamboat De Soto, her tackle, apparel, and furniture, and against Nathaniel S. Waring, Peter Dalman, and Parker, owners thereof &c., and against all persons intervening for their interest in the steamer De Soto &c., in a cause of collision, civil and maritime &c., filed herein by leave of this Honorable Court, first granted and obtained, to amend his original libel herein filed and pending in said court."

"And thereupon the said Thomas Clarke, as master and agent as aforesaid, doth allege and articulately propound, as amendatory and supplemental to the allegations articulately propounded in his said original libel, as follows: "

Page 46 U. S. 448

"First. That at the time of the collision between the said steamboats, the said De Soto and the said Luda, set forth and described in the second article of his original libel, to-wit, on the first day of November, 1843, and for a considerable time previous thereto, both of said boats were employed as regular packets, running between the port of New Orleans and the Town of Bayou Sarah, situate on the bank of the Mississippi River about one hundred and sixty miles from the City of New Orleans, carrying freight and passengers for hire between said places, and the said steamboat De Soto was, at the time the said collision took place, returning from the said Town of Bayou Sarah on a voyage or trip to the City of New Orleans, and the steamboat Luda was at the said time going on a voyage or trip from the City of New Orleans to the said Town of Bayou Sarah, and libellant expressly alleges that both of said boats were contracted for, intended and adapted to, and were actually engaged in navigating tidewaters at the time of said collision, running and making trips between the City of New Orleans and the said Town of Bayou Sarah in the River Mississippi, between which places the tide ebbs and flows the entire distance, and that the place where the said collision happened, to-wit, the Bayou Goula bar in the River Mississippi and also the said Town of Bayou Sarah and the entire distance between the said town and the City of New Orleans, are within the admiralty and maritime jurisdiction of this Honorable Court."

"Second. That on the night the collision took place between the said boats, to-wit, on the night of the first day of November, 1843, there were not two lights hoisted out on the hurricane deck of the said boat De Soto, one forward, the other at the stern of said boat, nor did the master and pilot of the said boat De Soto, or either of them, when the said boat, then descending the said River Mississippi, was within one mile of the boat Luda, then ascending said river, shut off the steam of the said boat De Soto nor permit the said boat to float down upon the current of said river until the said boat Luda passed the said boat De Soto, as the laws of this state require boats descending said river to do when meeting boats ascending said river, and libellant expressly alleges that said master and pilot of the De Soto did neglect or refuse to comply with the requirements of said law of this state as well with the usage and customs observed by all boats navigating said river, and that had the said master and pilot not neglected or refused to comply with the requirements of said law, but conformed thereto and observed the said usage and customs established by boats navigating said river by shutting off the steam of the De Soto as soon as they discovered the Luda or had approached within one mile of her, and permitted the De Soto to float upon the current of said river until the Luda had passed the De Soto, the said collision would not have occurred between the said boats, nor would the said De

Page 46 U. S. 449

Soto have run foul of and against the said Luda, as set forth in the second article of his original libel."

"Third. That at the time of said collision, the said steamer Luda was earning freight, being employed by libellant in fulfilling certain verbal contracts of affreightment entered into by and between him and the Port Hudson, & Clinton & West Feliciana Railroad Companies and various planters in the month of October, 1843, to transport all the cotton, and sugar, and produce of the country which said railroad companies and planters might deliver on the banks of the River Mississippi within the ebb and flow of the tide on said river to the City of New Orleans during the business season, to-wit, from 1 October, 1843, to 1 May, 1844; that the said boat Luda would have earned during said period, by carrying freight in pursuance of said contracts of affreightment and in the fulfillment and discharge thereof, over and above all expenses, the sum of eight thousand dollars profit for libellant; that by reason of the sinking and destruction of the said steamer Luda by being run foul of by the said De Soto as herein and in his original libel is particularly set forth and alleged, libellant has been compelled to forfeit said contracts of affreightment, and to lose the amount of the freight which the said Luda would have earned by fulfilling said contracts, which he would have done had he not been prevented by the sinking and destruction of said Luda by the said De Soto, to-wit, the sum of eight thousand dollars, which sum libellant claims as damages sustained by him resulting from said collision, in addition to the value of said boat Luda, claimed in his original libel, to-wit, the sum of sixteen thousand dollars, which two sums make the sum of twenty-four thousand dollars, and libellant expressly alleges that he has sustained damages to the amount of twenty-four thousand dollars, by reason of the sinking and destruction of the said steamboat Luda by the said boat De Soto, and that the said boat De Soto and owners are liable, and ought to be compelled to pay said sum."

"Fourth. That all and singular the premises are true, in verification whereof, if denied, libellant craves leave to refer to depositions and other proof, to be by him exhibited on the trial of this case"

"Wherefore, in consideration of the premises, libellant reiterates his prayer in his original libel, unto the citations of the owners of the said boat De Soto, and condemnation of said boat, and prays that the said owners may be condemned to pay, in solido, the sum of twenty-four thousand dollars, with all costs in this behalf expended to libellants, and for such other and further relief in the premises as to justice and equity may appertain &c."

"[Signed] THOMAS CLARKE"

The supplemental answer was as follows:

Page 46 U. S. 450

"To the Honorable Theo. H. McCaleb, Judge of the United States District Court in and for the Eastern District of Louisiana."

"The amended and supplemental answer of Peter Dalman and Nathaniel S. Waring, claimants and respondents in the case now pending in this Honorable Court, of Thomas Clarke, late master of Steamer Luda, for himself and others, owners of said Steamer v. Steamer De Soto and these respondents with leave of the court first granted and obtained to amend their answer; and thereupon the said respondents and claimants do allege and articulately propound as follows:"

"First. They admit that the steamers Luda and De Soto, at the time of the collision, were actually engaged in the Bayou Sarah trade, and had been so engaged for a short time previous thereto, but they deny that said boats were contracted for or used in navigating tidewaters, and allege that the steamer De Soto was contracted and used for the Red River trade, where the tide neither ebbs nor flows, and for the reasons given and for facts stated in their original answer that this Honorable Court has not jurisdiction."

"Second. They deny all the allegations in the second article of said amended libel and allege that the steamer De Soto was lightened, managed, and guided in a proper, careful, and lawful manner at the before the time of collision, and subsequently thereto."

"Third. They deny all the allegations of libellant in the third article of said amended libel, and they further say that even if the libellant should show, on the trial of this cause or be permitted to do so, which should not be allowed, that they have suffered or sustained consequential damages from said collision, that said libellant has no right to recover such damages from the respondents; they therefore pray that no such claim be allowed the libellants, and that these respondents and claimants may have judgment, as prayed for in the original answer and claim."

"[Signed] JNO. R. GRYMES"

"WM. DUNBAR"

"Proctors for Defendants"

Upon the two questions of fact raised in these libels and answers -- viz., 1st, the extent to which the tide ebbs and flows up the Mississippi River, and, 2d, to whose fault the collision was to be attributed -- a great body of evidence was taken which it is not thought necessary to insert.

On 24 January, 1844, the following judgment was entered by the district Judge:

"The court, having duly considered the law and evidence in this cause and for reasons that hereinafter will be given in length and filed in court, doth now order, and adjudge, and decree that the plea to the jurisdiction be overruled and that the libellants do recover from the steamboat De Soto and owners, Peter Dalman and

Page 46 U. S. 451

Nathaniel S. Waring, the sum of twelve thousand dollars, and the costs of suit, and it is further ordered, that the steamboat De Soto be sold, after the usual and legal advertisements, and that the proceeds thereof be deposited in the registry of the court, subject to its further order."

From this judgment an appeal was filed to the circuit court.

In April, 1844, the appeal came on to be heard in the circuit court, when much additional testimony was produced, and on 29 April the court ordered that the exception to the jurisdiction of the court should be dismissed, and the cause proceed on its merits.

On 6 May, 1844, the circuit court affirmed the decree of the district court, with costs, from which an appeal was taken to this Court.

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