1. A decree of the district court dismissing a suit for want of
admiralty jurisdiction was appealable to this Court under Jud.Code
§ 238. P. 274 U. S.
2. A suit in admiralty to enforce a shipowner's lien on
sub-freights of the ship may be brought in rem
such freights in the district where the debtor resides. P.
274 U. S.
3. The jurisdiction is not ousted by an answer denying that such
freights are due. P. 274 U. S.
4. Jurisdiction in rem
in admiralty is determined by
the allegations of the libel. It may be defeated upon the trial by
proof that the res
does not exist. P. 274 U. S.
291 F. 92 reversed.
Appeal from a decree of the district court dismissing a libel in
admiralty for want of jurisdiction.
Page 274 U. S. 469
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a libel in admiralty against sub-freight alleged to be
in the hands of the Palmer & Parker Company of Boston in the
District of Massachusetts. It was dismissed by the district court
for lack of jurisdiction, 291 F. 92, and the decree having been
entered on March 17, 1925, before the Act of February 13, 1925, c.
229, §§ 1, 14, 43 Stat. 936, 938, 942, went into effect, a direct
appeal was taken to this Court under § 238 of the Judicial Code.
The Ira M. Hedges, 218 U. S. 264
218 U. S.
The United States, owner of the Steamship Mount Shasta,
in May, 1920, made a bare boat charter of the vessel to the Mount
Shasta Steamship Company through Victor S. Fox and Company, Inc.,
an agent of that Company, stipulating for a lien upon all cargoes
and all sub-freights for any amounts due under the charter party.
Victor S. Fox & Company in July, 1920, made a subcharter to
Palmer & Parker Company for a voyage to bring a cargo of
mahogany logs from the Gold Coast, Africa, to Boston. The vessel
arrived in Boston with its cargo on February 19, 1921. There is due
to the libellant $289,680 for the hire of the steamship, and the
libel alleges that there is due and unpaid freight on the cargo of
logs, $100,000, more or less, in the hands of Palmer & Parker
Company, on which this libel seeks to establish a lien. It prays a
monition against Palmer & Parker Company and all persons
interested, commanding payment of the freight money into Court,
etc. Palmer &
Page 274 U. S. 470
Parker Company was served. That Company filed exceptions to the
libel, denied the jurisdiction of the court, and answered alleging
ignorance of the original charter party and of the relations of the
United States and the Mount Shasta S.S. Company to the vessel, and
setting up counterclaims more than sufficient to exhaust the
freight. The cargo had been delivered. The district court assumed
that a libel in rem
could be maintained against freight
money admitted to be due and payable, but was of opinion that the
fund must exist when the suit is begun, or that the jurisdiction
fails. The court held that, where, as here, the liability was
denied in good faith, it did not appear that there was any
to be proceeded against, and that the suit must be
dismissed. The counsel for Palmer & Parker Company pressed the
same considerations here in a somewhat more extreme form.
By the general logic of the law, a debt may be treated as a
as easily as a ship. It is true that it is not
tangible, but it is a right of the creditor's, capable of being
attached and appropriated by the law to the creditor's duties. The
ship is a res
not because it is tangible, but because it
is a focus of rights that in like manner may be dealt with by the
law. It is no more a res
than a copyright. How far in fact
the admiralty has carried its proceeding in rem
question of tradition. We are not disposed to disturb what we take
to have been the understanding of the circuit courts for a good
many years, and what the district court assumed. American Steel
Barge Co. v. Chesapeake & Ohio Coal Agency Co.,
669; Bank of British North America v. Freights of the
137 F. 534, 538; Larsen v. 150 Bales of Sisal
147 F. 783, 785; Freights of the Kate,
But if it be conceded that the Admiralty Court has jurisdiction
to enforce a lien on sub-freights by a proceeding in rem,
and a libel is filed alleging such sub-freights
Page 274 U. S. 471
to be outstanding, we do not perceive how the court can be
deprived of jurisdiction merely by an answer denying that such
freights are due. The jurisdiction is determined by the allegations
of the libel. Louisville & Nashville R. Co. v. Rice,
247 U. S. 201
247 U. S. 203
It may be defeated upon the trial by proof that the res
does not exist. But the allegation of facts that, if true, make out
a case entitles the party making them to have the acts tried. It is
said that the court derives its jurisdiction from its power, and no
doubt its jurisdiction ultimately depends on that. But the
jurisdiction begins before actual seizure, and authorizes a warrant
to arrest, which may or may not be successful. Here, the debtor is
within the power of the court, and therefore the debt, if there is
one, is also within it. The court has the same jurisdiction to try
the existence of the debt that it has to try the claim of the
libellant for the hire of the Mount Shasta.
If the proof
that there is freight due shall fail, it does not matter very much
whether it be called proof that the court had no jurisdiction or
proof that the plaintiff had no case. Either way, the libel will be
dismissed. See Ira M. Hedges, 218 U.
, 218 U. S. 270
Lamar v. United States, 240 U. S. 60
240 U. S.
The separate opinion of MR. JUSTICE McREYNOLDS.
I am unable to accept the view that an admiralty court may
entertain an action in rem
when there is nothing which the
marshal can take into custody. The technical term "in rem
is used to designate a proceeding against something. This Court and
text writers again and again have pointed out the essential nature
of such thing. The jurisdiction is founded upon physical power over
within the district upon the theory that it is "a
contracting or offending entity," a "debtor" or "offending
Page 274 U. S. 472
thing," something that can be arrested or taken into custody, or
which can be fairly designated as tangible property. The
Sabine, 101 U. S. 384
101 U. S. 388
The Robert W. Parsons, 191 U. S. 17
191 U. S. 37
Benedict on Admiralty, 5th ed., §§ 11, 297; Hughes on Admiralty, 2d
ed., 400, 401; Admiralty Rules 10, 22.
Here, the thing supposed to be within the district and proceeded
against was an unliquidated, uncertain, and disputed claim for
freight, which manifestly could not be arrested or taken into
custody. To base jurisdiction for an action in rem
this intangible claim would amount to a denial of the essential
nature of the proceeding.
Of course, jurisdiction of an admiralty court -- that is, power
to hear and adjudge the issues, not merely to send out a monition
-- is not finally to be determined by mere allegations of the
libel, any more than jurisdiction of a court of law ultimately
depends upon the plaintiff's allegation that the defendant is alive
and within the district. If it appear that the defendant has never
been there or was dead when the action began, certainly the court
can go no further.
An examination of Freights of the Kate,
63 F. 707,
American Steel Barge Co. v. Chesapeake & Ohio Coal Agency
115 F. 669, Bank of British North America v. Freights
of the Hutton,
137 F. 534, 538, and Larsen v. 150 Bales of
147 F. 783, 785, I think, will fail to disclose
any adequate support for the theory repudiated by the court below.
Some language of American Steel Barge Co. v. Chesapeake &
Ohio Coal Agency Co.,
taken alone, seems to favor that view,
but in fact the libel there was against "the cargo of coal" "and
the freight on said cargo of coal." The prayer asked for process
against "said cargo of coal and against said sub-freight thereon,"
and "that said cargo may be ordered by the court to be sold and the
proceeds thereof applied to said payment."
The decree below should be affirmed.