l. To bring a case of collision within the admiralty
jurisdiction of the federal courts, it is not necessary to show
that either of the vessels was engaged in foreign commerce or
commerce between the states.
2. The admiralty jurisdiction is not taken away by the fact that
the collision or other tort was committed within the body of a
county.
3. Locality is the test of jurisdiction. If the collision
occurred on those navigable waters which empty into the sea or into
the bays and gulfs which form a part of the sea, the maritime
courts have jurisdiction.
4. A suit
in rem for a marine tort may be prosecuted in
any district where the offending thing is found.
This was a libel filed in the district court by Henry Fitzhugh,
De Witt C. Little, John Peck, and James Peck, against the steam
propeller
Commerce, claimed by the Commercial
Transportation company as owners, averring a collision on the
Hudson River with the libellants' lake boat, the
Isabella,
by which the latter vessel was sunk, causing an injury to boat and
cargo of $17,000. The cargo, it seems, did not belong to the
libellants, but was in their custody as common carriers.
The allegations of the libel, the defense set up in the answer,
the facts of the case as they appeared in evidence, and the points
of law raised in the argument are stated in so much fullness by MR.
JUSTICE CLIFFORD that they need not be repeated here.
The libel was dismissed by the district court, but on appeal to
the circuit court a decree was passed in favor of the libellants
for $11,443 15, and thereupon the claimants appealed to this
Court.
Page 66 U. S. 575
MR. JUSTICE CLIFFORD.
This was a libel in admiralty in a cause of collision, civil and
maritime, and the case comes before the Court on appeal from the
decree of the Circuit Court of the United States for the Southern
District of New York.
Recurring to the transcript, it will be seen that the libel was
in rem against the steam propeller
Commerce, and
that the suit was instituted by the appellees, as the owners of the
lake boat
Isabella, but the record shows that after the
process was issued and the vessel was taken into custody, the
appellants, on motion, had leave to appear, and having waived
publication of notice and entered into stipulation with sureties
both for costs and value, the vessel was discharged by consent, the
stipulators agreeing that in case of default or contumacy of the
claimants, execution might issue for the amount of the stipulation
against their goods, chattels, and lands. No change, however, was
made in the form of the libel, and the whole proceedings in the
suit were as
in rem against the vessel. Reference will
only be made to such portions of the pleadings as seem to be
indispensable to a full understanding of the several questions
presented for decision. Among other things, the libellants alleged
that the
Isabella left the port of New York on the
nineteenth day of August, 1852, for the port of Albany, fully laden
with merchandise; that she, with certain other boats and barges,
was in tow of the steam tug
Indiana during the voyage and
at the time the collision occurred; that the steam tug was well
manned, tackled, appareled, and furnished and in all respects
competent for the business in which she was engaged; and that the
craft composing the tow had on board the proper complement of
officers and men for their protection and management. Two of the
barges were attached to the steam tug, one on the larboard and the
other on the starboard side, and to show that there was no fault in
the arrangement of the tow, they alleged that the
Isabella
was securely attached to the larboard side of another barge, and
that both were towed astern of the steam tug, at the usual and
proper distance, by means of a hawser, and, in respect to the
immediate circumstances of the collision,
Page 66 U. S. 576
they alleged that the
Isabella, in the evening of the
following day, while ascending the river in tow of the steam tug as
aforesaid, and when about ten or eleven miles below the port of her
destination, was met by the propeller, coming down the river and
bound on a voyage from the port of Albany to the port of
Philadelphia, and they aver that at the time of such meeting, the
steam tug, with all the boats and barges in tow of her, was on the
eastern side of the channel and in the usual and proper place for
such craft when so ascending the river, but that the propeller,
after she had passed the steam tug in perfect safety, suddenly and
improperly sheered to the eastward, and, through the negligence of
those in charge of her, ran against the larboard bow of the
Isabella, stove the bow from the stem, broke all the lines
by which she was attached to the barge, and so damaged her that in
a few minutes she sunk in the river with all her cargo on board. As
alleged in the libel, her cargo consisted of groceries and other
merchandise, together with a steam engine, and the libellants
alleged that the whole amount of the loss, including the damage to
the cargo, was seventeen thousand dollars. When the libel was
filed, the propeller was in the port of New York, and, as the
libellants alleged, within the jurisdiction of the district court.
Accordingly, they prayed process in due form of law, as in cases of
admiralty and maritime jurisdiction, and it was issued and duly
served upon the vessel. On the other hand, the claimants denied the
allegation that the steam tug was well manned and equipped, or that
the boats and barges in tow of her had a full complement of
officers and men for their protection and management, or that the
tow was properly made up, and especially that the
Isabella
was at no greater distance astern of the steam tug than was usual
and proper. They admitted, however, that the propeller passed the
steam tug in safety and met the
Isabella at the time
alleged, but denied that the steam tug or the boats and barges in
tow of her were on the eastern side of the channel or in a proper
place for such craft when ascending the river.
Their theory was that the lower barge, with the boat of the
libellants attached, was on the western side of the channel,
Page 66 U. S. 577
and they accordingly alleged that the tow was out of the usual
and proper place; and they expressly denied that the propeller,
after passing the steam tug, sheered at all, or so moved towards
the eastern side of the channel as to cause the collision.
Witnesses were examined on both sides in the district court, and,
after a full hearing, a decree was entered dismissing the libel,
and the libellants appealed to the circuit court. Additional
testimony was taken on the appeal, and the circuit court reversed
the decree of the district court and entered a decree in favor of
the libellants. Whereupon the claimants appealed to this Court, and
now seek to reverse the last named decree.
It appears from the evidence that the steam tug, when she
started from New York, had seven boats and barges in tow, but the
number, although she left one at Kingston, was increased to ten in
the early part of the trip. On arriving at Athens, the master, as
he had been accustomed to do, rearranged the tow in order to make
it narrower for the residue of the voyage. Briefly stated, the
arrangement was as follows: two of the craft were lashed, as
before, to the sides of the steam tug, but they had two others at
their stern, which were connected with them by lines put out from
the stem of the boat in the rear and attached to the stern of the
boat ahead. Four of the residue, arranged abreast and lashed
together, were connected with the steam tug by a hawser about two
hundred feet long, and the barge to which the boat of the
libellants was attached was some three or four hundred feet astern
of the whole, and was also connected with the steam tug by a
hawser. With the tow arranged in the manner described, the steam
tug proceeded slowly up the river, and passed Mull Island in
perfect safety. Shortly after passing the island, the master of the
steam tug, who was standing in the wheelhouse, discovered two
steamers coming down the river, and as they were not far distant,
he went aft to see to the tow. They proved to be the propeller and
the steamer
Oregon, and the former, in a few minutes,
passed the steam tug some fifty or a hundred feet to the westward
-- so far to the west that a schooner under mainsail and foresail,
and with her main
Page 66 U. S. 578
boom out, was between the propeller and the steam tug at the
time the former passed the latter. Seeing the schooner coming up,
the
Oregon stopped until the schooner passed out of the
way, but the propeller proceeded on her course without any
abatement of her speed, and after passing the steam tug and the
four boats arranged abreast, sheered to the eastward and struck the
stem of the libellants' boat, and, as the witnesses state, drove it
into the cabin and parted all the lines which attached the boat to
the barge. Some conflict exists in the testimony as to the precise
locality where the collision occurred, but the clear inference from
the whole evidence is that it took place just after the barge, with
the boat of the libellants attached, passed the point of Mull
Island, and it is conceded that the island is within the Northern
District of New York and within the body of one of the counties of
that state. Want of jurisdiction was not suggested, either in the
district or circuit courts, but it is now insisted that the case
was not cognizable in the district court, for three reasons: first,
because it did not appear that the propeller or the boat of the
libellants was engaged in foreign commerce or in commerce between
the states, and therefore was not a case cognizable in the
admiralty; second, because the collision occurred within the body
of a county, and therefore was exclusively cognizable at common
law; thirdly, because, assuming it to be a case of admiralty and
maritime jurisdiction, still it was properly cognizable in the
Northern District of New York, and not in the southern, where the
decree was rendered.
1. But the first objection could not be sustained, even if it
were admitted, on the theory of fact assumed, that it was correct,
for the plain reason that it is alleged in the libel, and not
denied in the answer, that the propeller was bound on a voyage from
the port of Albany to the port of Philadelphia, and one of the
witnesses of the claimants testified that she was employed in her
second trip and that, notwithstanding the collision, she completed
her voyage.
Admiralty jurisdiction, however, was conferred upon the
government of the United States by the Constitution, and in cases
of tort it is wholly unaffected by the considerations suggested
Page 66 U. S. 579
in the proposition. Such certainly were the views expressed by
this Court in the case of the
Genesee
Chief, 12 How. 452, where the Court said:
"Nor can the jurisdiction of the courts of the United States be
made to depend on regulations of commerce. They are entirely
distinct things, having no necessary connection with one another,
and are conferred in the Constitution by separate and distinct
grants."
When the district courts were organized, they were authorized by
Congress to exercise exclusive original cognizance of all civil
causes of admiralty and maritime jurisdiction, including all
seizures under laws of impost, navigation, or trade of the United
States where the seizures are made on waters which are navigable
from the sea by vessels of ten or more tons burden within their
respective districts as well as upon the high seas. That provision
of the Judiciary Act remains in full force and unrestricted as
applied to the navigable waters of the Hudson and all the other
navigable waters of the Atlantic coast which empty into the sea or
into the bays and gulfs that form a part of the sea. All such
waters are in truth but arms of the sea, and are as much within the
admiralty and maritime jurisdiction of the United States as the sea
itself. It is not denied that the admiralty has jurisdiction of
torts committed on such navigable waters, nor is it denied that the
waters of the Hudson, where the collision in this case occurred,
are within the admiralty and maritime jurisdiction of the United
States; but it is insisted that something more is wanting in order
to bring the case within the cognizance of the admiralty. Our reply
to that suggestion is that locality, by all the authorities, is the
test, in cases of tort, by which to determine the question whether
the wrongful act is one of admiralty cognizance, and if it appears,
as in cases of collision, depredations upon property, illegal
disposition of ships, or seizures for breaches of revenue laws,
that it was committed on navigable waters within the admiralty and
maritime jurisdiction of the United States, then the case is one
properly cognizable in the admiralty. 1 Cur.Com. 33, sec. 37.
2. It is assumed in the second place that the jurisdiction must
be denied because it appears that the collision occurred
Page 66 U. S. 580
on the Hudson River within the body of a county; but the
objection presents a question that has long since been settled by
this Court. It was first presented in the case of
Waring v.
Clark, 5 How. 441,
46 U. S. 452,
where this Court held that the question of jurisdiction was
unaffected by the fact that the locality of the collision was
infra corpus comitatus, provided it occurred in waters
where the tide ebbed and flowed, which is a rule sufficiently
comprehensive to control this case. That decision, however,
preceded the case of the
Genesee Chief,
12 How. 443, where the same rule was declared to be applicable to
the lakes and the navigable waters connecting the same, although
not affected by the ebb and flow of the tide. Similar views were
also expressed by this Court in the case of
The
Magnolia, 20 How. 298, and in the case of
Philadelphia, Wilmington
& Baltimore Co. v. Philadelphia & Havre de Grace
Co., 23 How. 215, it was emphatically said that
since the case of
Waring v.
Clark, 5 How. 441,
46 U. S. 464,
the exception of
infra corpus comitatus is not allowed to
prevail. Taken together, these three decisions, we think, ought to
be regarded as decisive of the point under consideration, and may
well excuse us from any extended argument upon the subject.
3. But it is insisted that the case was not cognizable in the
District Court for the Southern District of New York. Judging from
the course of the argument, it would seem that the error on this
point arises from a misapplication of the established rule that
jurisdiction in the admiralty in cases of tort depends upon
locality. Whether a wrongful act committed upon the person or
property of another was of a character to be denominated a marine
tort and consequently to be regarded as the proper foundation of a
suit cognizable in the admiralty undoubtedly depends upon the
locality where the wrongful act was committed, as already
explained. But marine torts are in the nature of trespasses upon
the person or upon personal property, and they may be prosecuted
in personam in any district where the offending party
resides or
in rem wherever the offending thing is found to
be within the jurisdiction of the court issuing the process.
Process
in rem is founded on a right in the thing, and
the
Page 66 U. S. 581
object of the process is to obtain the thing itself, or a
satisfaction out of it, for some claim resting on a real or
quasi-proprietary right in it. Consequently the court,
through its process, arrests the thing and holds possession of it
by its officers as the means of affording such satisfaction, and in
contemplation of law it is in the possession of the court itself.
Benedict's Adm. 241, sec. 439. Unless, therefore, the suit
in
rem can be prosecuted in the district where the property is
found, it cannot be prosecuted at all, which would defeat the right
of the injured party to a very beneficial remedy. Libels
in
rem, in instance causes, civil or maritime, says Mr.
Greenleaf, shall state the nature of the cause -- as for example
that it is a cause civil and maritime, of contract, of tort or
damage, of salvage, or possession, or otherwise, as the case may
be, and if the libel is
in rem, that the property is
within the district, and if
in personam, the names and
place of residence of the parties. 3 Greenl.Ev., 401. It is plain
that the suit
in rem cannot be maintained without service
of process upon the property, and we hold it may be prosecuted in
any district where the property is found, and such undoubtedly must
have been the opinion of this Court in
Nelson v.
Leland, 22 How. 48, which, indeed, is decisive of
the point under consideration.
See also
Monro v.
Almeida, 10 Wheat. 473
It is clear, therefore, on authority that the third objection to
the jurisdiction cannot be sustained, and after a careful
consideration of the evidence, we think the decision of the circuit
court was correct upon the merits. Considerable conflict exists in
the evidence on the point whether the lower barge, with the boat of
the libellants attached, was or was not on the eastern side of the
channel when the collision occurred, but we think the weight of the
evidence shows that the tow as well as the steam tug was east of
the center of the channel. Full proof was exhibited that the steam
tug was as near the eastern side as it was safe for her to go, and
the proof of that fact goes very far to sustain the entire theory
of the libellants, especially as all or nearly all the witnesses
who were on the several craft composing the tow concur in the
statement that
Page 66 U. S. 582
the propeller made a sheer to the eastward after she passed the
steam tug, and the four boats arranged abreast.
Objections were also made to the computation of the damages, but
none of them can be sustained.
One of the objections was that the court erred in allowing
damages for the injury to the cargo as well as to the boat, but the
point has been so often ruled that the carrier, who is responsible
for the safe custody and due transportation of the goods, may
recover in cases of this description that we do not think it
necessary to do more than to express our concurrence in the rule
adopted by the circuit court.
The decree of the circuit court is therefore affirmed, with
costs.