The courts of admiralty of the United States have jurisdiction
of petitory as well as mere possessory actions.
The cases of The Tilton,
5 Mason 465, and Taylor v.
1 Wall.Jr. 322, confirmed.
The abandonment of a ship by her owners to the underwriters does
not operate to ratify the title of one who claims her under an
unauthorized sale by the master.
MR. JUSTICE GRIER delivered the opinion of the Court.
The pleadings in this case present but the single question of
the title or ownership of the bark Mopang.
Originally, the court of admiralty in England entertained
jurisdiction of petitory as well as mere possessory actions. Since
the Restoration, that court, through the jealous interference of
courts of law, had ceased to pronounce directly on questions of
ownership or property. Petitory suits were silently abandoned, and
if in a possessory action a question of mere property arose,
especially of a more complicated nature, it declined to
This "submission to authority, rather than reason." has
continued till the statute of 3 and 4 Vict. c. 65, § 4, restored to
the admiralty plenary jurisdiction of such questions. See Case
of The Aurora,
3 Rob. 133, 136, and The Warrior,
Dodson 288, 2 Brown Civ. & Ad. 430.
In this country, where the courts of admiralty have not been
subjected to such jealous restraints, the ancient jurisdiction over
petitory suits or causes of property has been retained. In the
Page 59 U. S. 268
case of The Tilton,
5 Mason 465, Mr. Justice Story has
examined this question with his usual learning and ability. The
authority of that case has never been questioned in our courts.
See Taylor v. Royal Saxon,
1 Wall.Jr. 322. In the case of
the New England Ins. Co. v. Brig
13 Pet. 387, in this Court, the only
question was the title or ownership of the brig, yet the cause was
entertained without any expression of doubt as to jurisdiction.
The following agreed statement of facts presents the merits of
"That the libellants are the owners of the said Bark
unless their title has been devested by the sale
made by the master under the following circumstances: the bark
sailed from New Orleans on or about the 29th November, 1846, for
Tampico and other Mexican ports. That, on or about the 6th of
December thereafter, she struck aground, was abandoned by her
officers and crew on the north breakers off the bar of Tampico;
that she floated over the bar, and was boarded by one Clifton, who
refused to deliver her to the master; that a claim for salvage was
made; that by agreement between the master and Clifton, the vessel
was sold to the claimant, Ward, on the _____. It is admitted that
the sale to Ward was unauthorized by the circumstances in which the
master was placed."
"The libellants had a valued policy upon the vessel taken out at
New Orleans. On the 9th day of January, 1847, they gave notice of
abandonment to the underwriters as for a total loss, who refused to
accept the same. They were sued for a total loss by libellants.
Judgment found for defendant."
This statement amounts to an admission of want of title in the
claimant. The abandonment by her owners to the underwriters could
not affect the title of the claimant, by way of ratification or
estoppel. The insurance is but a wager between the parties to it,
on the safety of the vessel. By the rule of the contract the ship
may be abandoned, and the whole insurance claimed, when the damages
exceed half the value.
Nothing but extreme necessity can justify the sale of the vessel
by the master. The abandonment was based on the damage done to the
vessel at the time of the accident. If accepted, the master became
the agent of the insurer; and whether accepted or not, his act,
without authority, can receive no ratification from allegations or
admissions made by any party in a dispute on the contract of
assurance, where the inquiry as to the act of the master was
irrelevant. The defendant, having obtained possession unlawfully,
was a trespasser, and can no more plead the abandonment as a
confirmation of his title than if he had obtained it by theft or
piracy; moreover, if the circumstances
Page 59 U. S. 269
would have justified a sale by the master, no abandonment was
necessary. It cannot, therefore, by any possible implication,
amount to a confirmation of such sale.
The judgment of the circuit court is affirmed.
MR. JUSTICE DANIEL dissenting.
I dissent from the decision just pronounced:
1. On the ground that this case is not one regularly
appertaining to a court of admiralty.
2. Because this decision professes to claim a power and
jurisdiction admitted by the decision itself never to have been
heretofore conceded to nor exerted by courts of admiralty in this
country, whose power and jurisdiction in future, are to be traced
for their origin to this cause alone.
With respect to the objection first stated, this cause presents
no example of a maritime contract or of a marine tort. It is simply
a contest as to the right of property in a subject situated within
the ordinary and settled jurisdiction of the courts of common law
and equity of the State of Louisiana, and could have been there as
effectively determined by an action of detinue or trover, or by a
bill in equity if there was danger of an eloignment of the subject
in controversy, as it could possibly be in admiralty, and this fact
alone should have been a reason sufficient against an abandonment
of the adequate and familiar modes of administering justice and an
unnecessary resort to a tribunal which in England, we are told by
Lord Hale, was never established either by common law or by
statute, but had grown up entirely by encroachment and
It is true that the subject in controversy here is a vessel, but
if that single fact could justify the interposition of the
admiralty, it would equally imply the same power in that
jurisdiction over any dispute concerning the right of property in a
vessel, although she might still be upon the stocks, and although
she had never reached the water or might by some casualty never
touch that element.
This was simply a question of property arising out of the extent
of power in an agent to dispose of it -- a common and everyday
question of law.
2. It is admitted that the jurisdiction now asserted for the
first time in this Court -- namely the jurisdiction in petitory
suits -- did not belong to the admiralty in England, or was not
exercised by them for several hundred years at least, and that a
recent statute in the present reign had been enacted expressly to
confer that jurisdiction. It has also been said that the
jurisdiction thus recently authorized had, in the olden time,
existed in the admiralty and had been restrained or forbidden only
by the jealousy of the common lawyers. This appears to me to be
Page 59 U. S. 270
argument not founded upon the judicial history of the country,
and one which is neither logical nor tenable. A reference to others
of the highest and most venerable authorities, which might be added
to that of Lord Hale already cited, demolishes entirely the
foundation on which this argument is based. The argument is in
itself illogical and illusory, for had this jurisdiction been even
legitimate in the admiralty, it might doubtless have been
vindicated and maintained in despite of an illegal and unfounded
jealousy of the common lawyers. It never could have been forced to
yield to so baseless an opposition. No authority so potent as that
of an express statute could have been required, to create what not
only already had being, but which was established and venerable
from justice and from lapse of time.
If the inhibition had been the mere creature of jealousy or
prejudice, a returning sense of right and a conviction of public
advantage, would, in this as in other instances falling within the
power of the courts, have corrected previous errors. The very fact
of the enactment of a statute, such as that referred to, is strong
evidence to show that the jurisdiction it confers had no previous
or rather no rightful existence.
But it is said that no jealousy like that once felt in England
against the admiralty exists in this country, and therefore the
inveterate powers ascribed to it formerly in England, are free and
unfettered for its exercise in this country. This course of
argument naturally suggests with me the following inquiries: what
fetters or limitations are recognized as placed upon the admiralty
jurisdiction in the United States? Freed from the checks and
restraints imposed upon such a jurisdiction in that country, from
which the system was transferred to us, what are the checks imposed
upon it here? Are there any such checks? Does it, either in theory
or in practice, recognize any such -- how or where are they defined
or ascertained? Has it any system at all, or is it left to the
judgment or fancy of those who assume to exercise power under its
Too true does it seem to me the case, that the ambitious and
undefined pretensions of this branch of jurisprudence, have found
greater favor here than in my view, is compatible with civil
liberty, with public policy or private benefit; and hence I have
been the more inclined to watch and prevent its dangerous
encroachments, and in all sincerity can, in contemplating the favor
extended to those encroachments exclaim, "hinc illae
For the jurisdiction here claimed for the admiralty, we are
referred to the treatise of Mr. Arthur Brown, professor of civil
law in Ireland. I have no recollection of having before seen or
Page 59 U. S. 271
heard the doctrines of this professor recognized as authority,
and with respect to his theories, it may justly be remarked, that
if these are to be adopted as law, there is no excess of
extravagance to be found in the exploded notions of Sir Leoline
Jenkins, or anywhere else, which will not find an apology, nay, a
full justification, in the book of this civil law doctor. If the
theories of this professor are to be regarded as binding, his
disciples may look forward at no distant day to an announcement
from this bench, as there has been formerly from that of one of the
circuits, of the doctrine, that a policy of insurance a mere wager
laid upon the safety of a vessel is strictly and essentially a
maritime contract, because, forsooth, the vessel had to navigate
It seems somewhat singular, however, that Mr. Brown should be
appealed to in support of the authority now claimed for the
admiralty, when in truth his book again and again admits, that such
jurisdiction had been utterly repudiated in England as a sheer
usurpation, and may appropriately be styled a jeremiad over the
lost authority and splendor of a system which he would exalt to the
control of every other branch of jurisprudence.
I object, in all cases, to the decision of questions not
strictly in point, or which have not been regularly discussed, and
not only maturely but necessarily considered. If there is anyone
source of embarrassment more prolific than all others, it is this
very practice. I cannot perceive the necessity nor the propriety of
deciding matters in advance. The effect of such a practice is
either the difficulty of getting clear of irregular and inapposite
conclusions, or the sanction of them with the view of maintaining
consistency whether right or wrong.
A great portion of the admiralty jurisdiction now permitted in
this country, may be traced to a dictum
in argument in the
case of The General
4 Wheat. 444, in the assertion of a doctrine
which, if now for the first time discussed and examined, might not
command the sanction of this tribunal.
It is that tendency of error once countenanced or tolerated to
grow into precedent, which has ever enjoined it upon me as a sacred
duty to resist its approaches before they have been matured into
power; and even the conviction of an inability to accomplish this
result, is with me no dispensation from the duty of resistance.
* Mr. Justice CATRON was absent on the trial of this cause.