Where the master of a vessel was also part owner, and made a
contract of affreightment with a lumber company, of which he was
also a member, and the cargo was consigned to the master, the case
is not within admiralty jurisdiction, but appropriate to that of a
court of chancery.
Flitner was one of the libellants, and, as he was also a member
of the Constellation Lumber Company, he was on both sides of the
case.
The circumstances under which the libel was filed are stated in
the opinion of the Court. The district court dismissed the libel,
and upon an appeal, this decree was affirmed by the circuit court.
The libellants then appealed to this Court.
Page 61 U. S. 167
MR. JUSTICE McLEAN delivered the opinion of the Court.
The libellants, Grant and others, are the sole owners of the
ship
Constellation, and they bring an action of
affreightment, civil and maritime, against the respondents, and
allege that William L. Flitner was master of the ship; that the
respondents were co-partners, under the name of the "Constellation
Lumber Company," and that, on or about the 12th November, 1849,
they agreed to ship on board the
Constellation, then lying
in the port of New York, 230,655 feet of lumber and 29,700 cypress
shingles, to be delivered at the port of Valparaiso, Sandwich
Islands, or San Francisco, unto the above-named Flitner, or his
assigns, he paying the freight upon the same. The ship proceeded on
her voyage, and delivered the lumber and shingles unto the said
William L. Flitner, at San Francisco, on or about the ___ day of
_____, in the year 1850. That there was due for the freight of the
lumber, with primage, the sum of $13,944.02, of which sum Flitner
paid $11,494.93, which were the net proceeds of the lumber, leaving
a balance of $2,449.09 due and unpaid, and it is averred that
Flitner, acting as consignee and in making sale of the lumber, was
the agent of the respondents, and a decree for the payment of this
balance by the respondents is prayed.
The respondents deny that they compose the company and that
Flitner acted as their agent &c., and they say that the lumber
was shipped on account of the said vessel and of said company, the
said vessel being interested in said company, and that the
transaction was a partnership one, and not a subject of
jurisdiction in this Court; that Flitner, named as a libellant, was
and is interested, and one of the parties in the "Constellation
Lumber Company," and is a proper party respondent herein; that the
subject matter of the suit is not within the admiralty or maritime
jurisdiction of this Court, and of which it has no cognizance.
It was agreed that ten persons named -- about the 22d of
September, 1849 -- of whom William L. Flitner was one, constituted
the lumber company, each individual taking one share, not to exceed
in value five hundred dollars, with the exception of Flitner, who
took two shares, and Hicks and Bailey also
Page 61 U. S. 168
took two. That Flitner was the agent of the company and the
consignee, a commission of five percent to be paid to him; that the
ship
Constellation belonged to the libellants, and that
Flitner was master and part owner; that the lumber company
purchased the cargo, and it was shipped the 12th November, 1849,
and a bill of lading was signed by Flitner.
The proof shows that the lumber was sold at San Francisco for
the prices stated, and that the proceeds of the sale, after
deducting commissions, fell short of paying the freight, the sum
named.
The principal question is whether the case made is within the
admiralty jurisdiction. That it would not be within the admiralty
jurisdiction in England is clear. In general, contracts upon land,
though to be executed on the sea, and contracts at sea, if to be
executed on the land, are not cognizable by the English admiralty.
There are some exceptions to this rule in that country, but none,
it is believed, which affect the question now before us. There are
conflicting decisions as to the admiralty jurisdiction in England
and also in this country. It may be difficult, if not
impracticable, to state with precision the line of this
jurisdiction, but we may approximate it by consulting the decisions
of our own courts.
In the case of
Willard v. Dorr, 3 Mason 91, it was
held, "no suit for services performed by the master, as a factor,
or in any other character than that of master, is cognizable in the
admiralty." And again, in
Plummer v. Will, 4 Mason C. 380,
it was said,
"a contract of a special nature is not cognizable in the
admiralty merely because the consideration of the contract is
maritime. The whole contract must, in its essence, be maritime or
for compensation for maritime service."
In
36 U. S. 11 Pet.
175,
Steamboat Orleans v. Phoebus, it was said the
admiralty has no jurisdiction in matters of account between part
owners. And further,
"the jurisdiction of courts of admiralty, in case of part owners
having unequal interests and shares, is not and never has been
applied to direct a sale upon any dispute between them as to the
trade and navigation of the ship engaged in maritime voyages,
properly so called."
Ib.
The jurisdiction of courts of admiralty is limited, in matters
of contract, to those and to those only which are maritime.
Ib.
An agreement by the master of a vessel to pay wages may be sued
upon in the admiralty, but a stipulation in the same contract to
pay a sum of money in case the voyage should be altered or
discontinued can be enforced only at common law.
L. Arira v.
Manwaring, Bee's Rep. 199. The admiralty jurisdiction of the
district courts of the United States, being exclusive,
Page 61 U. S. 169
cannot be extended to cases of law or equity, cognizable by the
circuit and state courts, under the 11th section of the Judiciary
Act. 1 Baldwin 554.
A contract between two persons, one of whom had chartered a
vessel, whereby he was to act as master, and the other as mate of
the vessel, and the two were to share equally in the profits of the
contemplated voyages, was held not to be within the admiralty
jurisdiction.
The Crusader, Ware's Rep. 437. A
distribution cannot be claimed in the admiralty, except by those
who have a lien. 1 Pet.Ad. 223
The lumber company was formed to engage in an enterprise of
shipping lumber to San Francisco. Twelve shares were taken by the
company, consisting of ten persons, each having one share of the
value of five hundred dollars, and two of them had two shares each,
one of them being the master of the vessel. He was also a part
owner of the vessel, the consignee of the cargo, and had a right of
primage. As part owner of the vessel, he was entitled to his share
of freight, and as being a member of the lumber company, having two
shares in it, he was proportionately liable for the freight. In his
capacity of master he was entitled to primage, and as consignee he
was also entitled to compensation. Now this individual, in
interest, is both plaintiff and respondent, and has claims in his
capacities of master, consignee, and agent. The proceeds of the
sale of the cargo, after paying commissions, left a balance due for
freight of $2,449.09.
Here is a complicated account to adjust, apportioning the loss
between the members of the lumber company, exacting from them what
may be necessary not only to pay the balance of freight due, but
whatever may be required to discharge what may be due to the master
as part owner of the ship, as master, consignee, or agent, at the
same time holding him liable, as having two shares in the lumber
company. And in an enterprise in which the whole of the capital has
been sunk, leaving a large sum due for freight, it would seem that
some inquiry might reasonably be made into the conduct of the
master in the various capacities in which he acted. And it is
probable that, to settle the controversy, a procedure against the
members of the lumber company may become necessary, to compel them
to contribute respectively and equally what may be necessary to
meet the exigency. It is clear that the exercise of the powers
indicated do not belong to a court of admiralty, but are
appropriate to a court of chancery.
The decree of the circuit court is affirmed, with
costs.