An agreement of consortship between the masters of two vessels
engaged in the business known by the name of wrecking is a contract
capable of being enforced in an admiralty court against property or
proceeds in the custody of the court.
The case of
Ramsay v.
Allegre, 12 Wheat. 611, commented on, and
explained.
Such an agreement extends to the owners and crews, and is not
merely personal between the masters.
If made for an indefinite period, it does not expire with the
mere removal of one of the masters from his vessel, but continues
until dissolved upon due notice to the adverse party.
Where there is no other evidence than the answer of its having
been a part of the original agreement that such removal should
dissolve the contract, the evidence is not sufficient.
Whenever proceeds are rightfully in the possession and custody
of the admiralty, it is an inherent incident to the jurisdiction of
that court to entertain supplemental suits by the parties in
interest to ascertain to whom those proceeds rightfully belong and
to deliver them over to the parties who establish the lawful
ownership thereof.
This was an appeal from the Court of Appeals in Florida, and
grew out of the following circumstances:
There were two vessels, one called the
Globe and the
other the
George Washington, engaged in the business of
assisting vessels which were wrecked or in danger of becoming so on
the coast of Florida. Between these two there existed the agreement
of consortship which will be spoken of presently.
For assistance rendered by the
Globe to the ship
Mississippi and cargo, an amount of $5,522.49 was decreed
as salvage. Andrews, the appellant, was part owner of the
Globe, and Wall and Geiger, the defendants in error, were
part owners of the
George Washington.
Wall and Geiger filed a petition in the Superior Court for the
Southern District of Florida, being the same court which decreed
the salvage, as follows:
Page 44 U. S. 569
"To the Honorable WM. MARVIN, Judge of the United States
Superior court, southern Judicial District of Florida, in
admiralty."
"Your petitioners respectfully represent on oath to your honor
that they, with J. A. Thouron, are the only owners of the schooner
George Washington; that said schooner has for some time
past been consorted with the sloop
Globe, in the business
of wrecking upon this reef, and was so consorted with said sloop
when that vessel performed the services to the ship
Mississippi, which have resulted in the payment of salvage
to said sloop by your honor, in admiralty, on 31 May, 1841; that a
portion of said salvage is justly due and owing unto your
petitioners from said consortship, and that the master and agent of
said sloop
Globe, J. B. Andrews, positively refuses to pay
to them any portion of the same. They therefore respectfully
represent this matter, and pray the interference of your honor,
that you may order the clerk of your honor's court to retain such
portion of said salvage, now about to be paid to said sloop, as to
your honor may appear equitable under said consortship, due to said
petitioners as owners of schooner the
George Washington.
And they are ready to show to your honor the exact sum due to them
under said consortship. And will ever pray."
"W. H. WALL"
"JOHN H. GEIGER"
"S. R. MALLORY, Proctor"
In conformity with this petition the judge directed the sum of
$2,455.64 to be retained, which Wall and Geiger claimed by a
subsequent petition.
Andrews answered it as follows:
"The answer of James B. Andrews, part owner of the sloop
Globe, would respectfully represent, that a notice of a
petition filed by Wm. H. Wall and John H. Geiger, who claim as part
owners of the schooner
George Washington, claiming a part
of the salvage decreed to Thomas Greene master of the sloop
Globe, in the case of
Thomas Greene v. Ship
Mississippi and cargo, and has been served upon him. To which
he comes into court, and says that:"
"1. The petitioners have no right to come into your Honorable
Court in this summary way, and obtain a decree against the earnings
of the master and crew of the sloop
Globe, who were
libellants in the above case."
"2. That if there is anything due by the
Globe, her
crew and owners, it must be by some contract existing at the time
the services for which salvage has been decreed were rendered, and
that if such contract exists, it was not made with petitioners by
your respondent."
"3. Your respondent admits that there was a consortship or
agreement entered into previously to the services rendered to the
ship Mississippi, by him, as master of the sloop
Globe,
and _____ Russel, master of the schooner
George
Washington, by which they
Page 44 U. S. 570
agreed to divide their respective earnings or gain between each
other, their crews, and the owners of the respective vessels, in a
certain proportion,
viz., the
Globe was to be
rated at sixty-three tons, and the
George Washington at
fifty-three tons, and the number of men each vessel might have on
board at the time that any money might be earned. But he alleges
that such contract was made between him and Captain Russel for an
indefinite time, and considered that it only remained in force so
long as they both remained on board of their respective vessels and
earned salvage, and that at the time the money in dispute was
earned, that Thomas Greene the mate of the
Globe, was
master, and in that capacity rendered services to the ship
Mississippi, and filed a libel in his own name, as such,
and being recognized as master by this Court, salvage on the said
ship was decreed to him in his own name."
"Whereupon your respondent prays that your honor will dismiss
the said petition, and that the amount of the money retained from
the salvage decreed to Thomas Greene be paid over to him, together
with his costs in this behalf expended. And your respondent
&c."
"JAMES B. ANDREWS,"
"W. R. HACKLEY, Proct. for Resp."
After the cause had been argued, the court gave the following
order:
"Ordered, That the clerk ascertain the number of men on board
the sloops
Globe and
George Washington
respectively at the time of the earning of the salvage by the
Globe for services rendered the
Mississippi and
cargo, and that he divide the salvage in that case decreed the
Globe, between the
Globe and the
George
Washington, man for man, and ton for ton, taking the
Globe at sixty-three tons, and the
George
Washington at fifty-three tons, and that he pay to Wm. H. Wall
and John H. Geiger the
George Washington's portion for and
on behalf of all persons interested therein."
"Ordered, that each party pay his own costs in this suit."
The result of the order was an apportionment of the fund between
the two vessels as follows:
To the
Globe . . . . . . . . . $3,066.85
To the
George Washington . . . 2,455.64
---------
Total salvage. . . . . . . . . . $5,522.49
From this decree Andrews appealed to the court of Appeals of
Florida, which affirmed the sentence, and from this affirmance he
appealed to this Court.
Page 44 U. S. 571
MR. JUSTICE STORY delivered the opinion of the Court.
This is the case of an appeal in admiralty, from a decree of the
Court of Appeals of the Territory of Florida, affirming the decree
of the judge of the Superior Court of the Southern Judicial
District of Florida. It appears from the proceedings that upon a
libel filed in the superior court of the territory, in behalf of
the owners and crew of the sloop
Globe, salvage had been
awarded in their favor against the ship
Mississippi, that
a part of the salvage so decreed remained in the registry of the
court, and that the present petition was filed by Wall and Geiger,
on behalf of the owners of the schooner
George Washington,
for the share of the salvage due to them, as consorting with the
Globe in the business of salvage. It seems to be a not
uncommon course among the owners of a certain class of vessels,
commonly called wreckers, on the Florida coast, with a view to
prevent mischievous competitions and collisions in the performance
of salvage services on that coast, to enter into stipulations with
each other, that the vessels owned by them respectively shall act
as consorts with each other in salvage services, and share mutually
with each other in the moneys awarded as salvage, whether earned by
one vessel or by both. It is admitted in the answer of the
appellant, who was the master and part owner of the
Globe,
and the original respondent in the court below, that such an
agreement or stipulation was entered into, for an indefinite time,
between himself, as the master of the
Globe, and the
master of the
George Washington, before the salvage
service in question, but he insists that it was to remain in force
only so long as both remained masters of their respective
Page 44 U. S. 572
vessels, and earned salvage, and that at the time of the salvage
services in question, one Thomas Greene, mate of the
Globe, acted as master thereof. He also insists that the
libellants have no right to come into the court in a summary way to
obtain a share of the salvage, and lastly, he insists that the
agreement or stipulation was not made between him and the
libellants.
The courts below overruled all these matters of defense, and
upon the present appeal the same are brought before us for
consideration and decision. In the first place, then, as to the
original agreement or stipulation for consortship, it must,
although made by the masters of the vessels, be deemed to be made
on behalf of the owners and crews, and to be obligatory on both
sides until formally dissolved by the owners. The mere change of
the masters would not dissolve it, since in its nature it is not a
contract for the personal benefit of themselves, or for any
peculiar personal services. It falls precisely within the same
rule, as to its obligatory force, as the contract of the master of
a ship for seamen's wages, or for a charter party for the voyage,
which, if within the scope of his authority, binds the owner, and
is not dissolved by the death or removal of the master. Besides, in
the present case, the agreement or stipulation for consortship was
for an indefinite period, and, consequently, could be broken up or
dissolved only upon due notice to the adverse party, and the mere
removal of the master of one of the vessels, by the owner thereof,
for his own benefit or at his own option, could in no manner
operate, without such notice, to the injury of the other. In the
next place, there is not a particle of evidence in the case that at
the time of the agreement or stipulation for consortship, it was
agreed between the parties that a change of the masters should be
treated as a dissolution thereof. The answer is not of itself
evidence to establish such a fact, but it must be made out by due
and suitable proofs, for in the admiralty, the same rule does not
prevail as in equity, that the answer to matters directly
responsive to the allegations of the bill is to be treated as
sufficient proof of the facts in favor of the respondent unless
overcome by the testimony of two witnesses or of one witness and
other circumstances of equivalent force. The answer may be
evidence, but it is not conclusive, and in the present case the
dissolution of the agreement or stipulation for consortship, by the
change of the master of the
Globe, seems to be relied on
as a mere matter of law, and not as a positive ingredient in the
original contract.
The material and important question, therefore, is whether the
agreement or stipulation of consortship is a contract capable of
being enforced in the admiralty against property or proceeds in the
custody of the court. We are of opinion that it is a case within
the jurisdiction of the court. It is a maritime contract for
services to be rendered on the sea, and an apportionment of the
salvage earned therein. Over maritime contracts the admiralty
possesses a clear and established
Page 44 U. S. 573
jurisdiction, capable of being enforced
in personam, as
well as
in rem, as is familiarly seen in cases of
mariners' wages, bottomry bonds, pilotage services, supplies by
materialmen to foreign ships, and other cases of a kindred nature
which it is not necessary here to enumerate. The case of
Ramsay v.
Allegre, 12 Wheat. 611, contains no doctrine
sanctioned by the Court to the contrary. It is within my own
personal knowledge, having been present at the decision thereof,
that all the judges of the Court except one at that time concurred
in the opinion that the case was one of a maritime nature within
the jurisdiction of the admiralty, but that the claim was
extinguished by a promissory note having been given for the amount,
which note was still outstanding and unsurrendered. It became,
therefore, unnecessary to decide the other point. The general
doctrine had been previously asserted in the case of
The General
Smith, 4 Wheat. 438, and it was subsequently fully
recognized and acted upon by this Court in
Peroux v.
Howard, 7 Pet. 324. Upon general principles,
therefore, there would be no difficulty in maintaining the present
suit as well founded in the jurisdiction of the admiralty.
There is another view of the matter which does not displace but
adds great weight to the preceding considerations. This is a case
of proceeds rightfully in the possession and custody of the
admiralty, and it would seem to be, and we are of opinion that it
is, an inherent incident to the jurisdiction of that court to
entertain supplemental suits by the parties in interest to
ascertain to whom those proceeds rightfully belong, and to deliver
them over to the parties who establish the lawful ownership
thereof. This is familiarly known and exercised in cases of the
sales of ships to satisfy claims for seamen's wages, for bottomry
bonds, for salvage services, and for supplies of materialmen where,
after satisfaction thereof, there remain what are technically
called "remnants and surpluses" in the registry of the admiralty.
But a more striking example is that of supplemental libels and
petitions by persons asserting themselves to be joint captors and
entitled to share in prize proceeds, and of custom house officers
for their distributive shares of the proceeds of property seized
and condemned for breaches of the revenue laws, where the
jurisdiction is habitually acted upon in all cases of difficulty or
controversy.
Upon the whole, without going more at large into the subject, we
are of opinion that the decree of the Court of Appeals of Florida
ought to be
Affirmed with costs.
