1. Where exceptions of form are taken on a libel in admiralty in
the district court, but are not found in the record of the appeals
from the district to the circuit court or from the circuit court to
this one, and do not appear to have been brought to the attention
of the circuit court or acted on in any manner by it, they must be
held in this Court to have been waived.
2. A bill of lading endorsed and sent to the consignees who
make, on the receipt of it, advances on the cargo gives the
consignees sufficient title to maintain a libel in admiralty
against a vessel by whose tortious collision with the vessel in
which the cargo consigned to them was coming, the cargo has been
wrecked and lost.
3. A cargo was shipped from Canada to New York October 7, 1864,
when gold was 101 percent above legal tender notes of the United
States. The cargo was wrecked soon after on the Hudson. On libel in
the admiralty at New York and on appeal from the district court,
the circuit court, on the 26th of March, 1870, when $100 gold was
only 12 percent above notes, gave the libellants a decree for the
value in gold of the cargo on the day and at the place of shipment,
converting that value, at the same time, into legal tender notes at
the rate at which such notes stood as compared with gold on the day
of shipment -- that is to say when gold was 101 percent above legal
tender notes, or in other words when it required $201 legal tender
notes to buy $100 of gold. On appeal to this Court (the difference
between gold and notes having now sunk to about 9 percent),
held that this decree was right.
On the 7th of October, 1864, O. & J. Lynch, of St. Timothy,
a place (near Montreal) in Canada East shipped a cargo of barley on
board a canal boat which was about to sail through different canals
and waters into the upper part of the Hudson and go thence to New
York. The Lynches were correspondents of Gordon, Bruce &
McAuliffe, commission merchants of New York, and this barley was in
fact consigned to them.
The cargo was worth on that day, at St. Timothy's, $2,436 in
gold, or at the then rate of depreciation, about $4,896.30 in legal
tender notes of the United States, at that time so much below the
value of gold as that it required $2.01 of them to buy $1 of gold.
The Lynches received a bill of lading
Page 81 U. S. 259
making the barley deliverable "on the order of O. & J.
Lynch, or to their assigns," which bills they thus endorsed:
"Deliver to the order of Gordon, Bruce & McAuliffe."
"O. & J. LYNCH"
Thus endorsed, the bills were forwarded to Gordon, Bruce &
McAuliffe, at New York, who on receipt of them advanced the premium
for insurance, the consignors being then indebted to G., B. &
McA. for some advances previously made.
The canal boat arrived safely at Troy, on the Hudson, where she
was taken in tow with other boats -- she on the port side -- by the
steamer
Mary Vaughan. The steamer went down the river with
her tow, and on the night of the 26th October, a clear, starlight
night, in calm weather, the tide near its change, and therefore
feeble -- when in that broad, straight, deep reach of the Hudson,
where Butter Hill announces the presence of the Highlands -- she
saw another steamer, the
Telegraph, coming up the river,
she also with a tow, and the lights of the two steamers being
visible to each other for more than a mile. No intervening objects
interfering with the safe and easy transit, nothing but the
grossest negligence, or, what would seem more probable, a
determination by each boat that the other should give way to her,
could have brought them together; nevertheless they did come
together, and with such force that the canal boat was wrecked, her
cargo sunk mid-river, the crew just escaping with their lives.
Hereupon Gordon, Bruce & McAuliffe, alleging themselves to
be the consignees of the barley, libeled in one libel both the
steamers in the district court at New York. The libel alleged that
the Mary Vaughan moving down the River Hudson with her tow
(describing it), the canal boat being securely fastened on the port
side of the steamer, and propelled, governed, and controlled in all
respects by her movements, on the morning of the 26th October,
1864, encountered in the
Highlands the
Telegraph,
moving up with her tow (also described); that a barge on the port
side of the
Telegraph, in all respects propelled,
governed, and controlled
Page 81 U. S. 260
by the
Telegraph,
"came in collision with and struck the canal boat near her bow
with great violence, parting the fasts that held her to the
Vaughan, staving in her bow, and causing so much damage
and injury to her that in about fifteen minutes she went down in
water from 100 to 200 feet deep, . . . and that the loss was caused
by the negligence, want of skill, and improper conduct of the
persons navigating the
Mary Vaughan, or by the negligence,
want of skill, and improper conduct of the persons navigating the
Telegraph, or by their joint negligence, fault, and
improper conduct, and not by the fault, negligence, or improper
conduct, of the persons on board the canal boat."
The case coming on to be heard in the district court exception
was taken there by the Vaughan:
1st. That the statement of facts upon which the libellants
relied was not sufficiently full, by reason of the omission of
essential particulars, such as the courses of the respective
steamers one to that of the other, their speed, the direction of
the wind, the flow of the tide; and again, by the omission to state
in what manner the
Vaughan was in fault or improperly
managed; that it did not state any fault or negligence on the part
of the steamer, nor the acts of commission or omission, upon which
the imputation of fault might be founded; all which were required
by the practice in admiralty to be stated in plain allegations, to
apprise the claimant of the ground of fact upon which relief was
sought, that he might admit or take issue thereon, or allege
matters in avoidance thereof.
2d. That the libellants could not join in the same libel both
steamers, nor maintain a joint libel against them; this exception
being taken by both steamers.
Both these exceptions of form were overruled and a decree
entered against both steamers, charging each with the whole loss of
the cargo; fixed at $2,924, this value in gold, as already stated,
on the day and at the place of shipment. But though the value in
gold of the cargo was thus plainly made the basis of the decree in
the district court at New York, yet the decree was not by its terms
made payable in
Page 81 U. S. 261
gold, thus apparently leaving it payable in legal tender notes,
if they were constitutional. Appeals were taken to the circuit
court, nothing being contained in the appeals about the exceptions
of form taken in the district court, nor anything said in the
arguments there on those points. The cases were considered on their
merits, and on an objection that Gordon, Bruce & McAuliffe
showed no sufficient interest in the cargo to sue, and especially
on an objection to the entry of the judgment payable in legal
tender notes instead of gold or its value in legal tenders.
The circuit court, equally with the district court, held both
steamers liable, but reversed the decree because, as it held, the
same ought, in order to give full indemnity to the libellants, to
have been for the value in legal tender notes ($4,896.30), of the
$2,436
gold, which in gold the cargo was worth. The decree
of the circuit court was accordingly entered March 26, 1870, for
the $4,896.30, with interest added to the date of its entry, in all
$6,515.51, with costs. One dollar of gold was, at the date of this
decree, worth $1.12 in legal tenders. [
Footnote 1]
An appeal was now taken to this Court.
The case coming here, Mr. C. Van Santvoord, for the owners of
the
Vaughan, and Mr. F. J. Fithian, for the
Telegraph, pressed, the one or the other, the objections
of form which had been urged in the district court, though not put
before the circuit court. They contended then, in opposition to
each other, on the merits; the former that the fault had been with
the
Telegraph, the latter that it had been with the
Vaughan. The point was raised and argued in the interest
of both steamers, that Gordon, Bruce & McAuliffe had no
sufficient interest to sue; that in legal effect the advance of the
premium of insurance at the time of the delivery of the bill of
lading with the direction endorsed, to be forwarded, and not
Page 81 U. S. 262
as security for the advance, was an advance on advice of the
shipment, as in
Sargent v. Morris, [
Footnote 2] for which, as was held in that case,
the libellants would have had a lien if the goods had been received
by them, but which could have no effect to transfer the property;
that the libellants not having the legal title or any property or
right of possession at time of loss, and the suit being without the
scope of their authority as consignees or agents, for the purpose
of sale on arrival in New York, the case did not fall within the
rule which allows a consignee or agent for an absent owner to
institute a suit for a purpose within the scope of his
authority.
But the point most pressed perhaps was the mode in which the
circuit court had fixed the damages, in regard to which it was said
by these counsel, that the circuit court should have affirmed the
decree of the district court in its award of damages based upon the
value of the barley lost, at the time and place of shipment, St.
Timothy, Canada East in specie or Canadian currency, on a specie
basis, in dollars and cents, equivalent to money of that
denomination in gold or in the coinage of the United States, with
interest from the date of the shipment, or at the most, that the
circuit court should have decreed the payment in gold, or in the
coinage of the United States, of the value at the time and place of
shipment, in the currency prevalent there, specie or paper, on a
specie basis, with interest. The damages decreed by the district
court, it was said, if short of full indemnity, were so only for
the reason that the claimants, under the Legal Tender Act, might
pay the decree in legal tender notes. But that a decree for the
payment in gold, or coin of the United States equivalent to the
specie value at the time of shipment in Canada, with interest from
the time of shipment, would be a full indemnity to the Canadian
shipper, whose consignees the libellants claim to be. The cases in
this Court recognizing the existence of two currencies, one specie
or gold, and the other paper, and adjudging payment in gold or not,
as the justice of the case demands,
Page 81 U. S. 263
were, it was said, authorities to the competency of the court to
make such assessment and decree, [
Footnote 3] the Legal Tender Acts not having been intended
to change the legal standard or measure of value, or rule of
damages in judicial proceedings.
Page 81 U. S. 264
MR. JUSTICE SWAYNE delivered the opinion of the Court.
On the 25th of October, 1864, the steam propeller
Mary
Vaughan left the City of Troy for a voyage on the Hudson River
to the City of New York. She had in tow two canal boats laden with
cargoes of barley under the deck and hoop poles upon the deck. The
boats were lashed, one on each side of the propeller. The canal
boat
R. M. Adams was fastened to the starboard side, and
the canal boat
Sherman Lewis upon the port side. They were
attached to the propeller by towing lines. The propeller was about
sixty tons burden, and ninety feet in length by seventeen wide.
The steamboat
Telegraph left her dock at the City of
New York about five o'clock in the afternoon of the same day on a
voyage up the river to Newburg, having in tow three large heavy
freight barges, to-wit, the
Minnesink lashed to her port
side, the
Dutchess to her starboard side, and the
Insurance lashed to the stern of the starboard barge,
Dutchess.
On the morning of the next day, between two and four o'clock
A.M., just below Butter Hill, the barge
Minnesink, on the
larboard side of the
Telegraph, and the canal boat
Sherman Lewis, on the port side of the
Vaughan,
came in collision, whereby the
Sherman Lewis was torn from
her fastenings to the propeller, swung round crosswise of the
river, and across the bow of the
Telegraph and her barges,
and was so much injured that shortly afterwards she filled and sunk
in water from one to two hundred feet deep, carrying down her
underdeck cargo with her.
The barley belonged to J. & O. Lynch, of Buharnois, Canada,
and was shipped by them from St. Timothy, Canada, in the boat in
which it was lost. The boat was bound to Albany or New York. The
bill of lading was given to the owners, and by them endorsed as
follows: "Deliver to the order of Gordon, Bruce & McAuliffe. O.
& J. Lynch."
Page 81 U. S. 265
Gordon, Bruce & McAuliffe were a firm of the City of New
York. The bill of lading was then placed in the hands of Gordon
& Co., and by them, at the request of the shippers, forwarded
to the consignees. Upon receiving it, Gordon & Co., as the
agents of the consignees, advanced upon it $29.50 for the premium
of insurance upon the barley; the entire arrangement with the
shippers was made by Gordon & Co. as such agents. They had
special authority to advance upon this particular barley by drafts
at thirty days upon the consignees, and so advised the shippers
before the bill of lading was forwarded.
This libel was filed by the consignees. It alleged that the
disaster was caused
"by the negligence, want of proper skill, and improper conduct
of the persons navigating the said propeller, or by the negligence,
want of proper skill, and improper conduct of the persons
navigating said steamboat, or by their joint negligence, fault, and
improper conduct."
In the district court, both the claimants excepted to the libel,
the claimant of the
Vaughan upon the grounds that the
particular facts upon which the imputation of fault was founded
were not set forth, and that the allegations were not sufficient to
entitle the libellants to a decree; the claimant of the
Telegraph upon the same grounds, and the further ground
that a libel against both vessels jointly could not be maintained.
The exceptions were overruled. The court decreed against both
vessels, and the claimants of both appealed to the circuit
court.
The appeals found in the record are wholly silent as to these
exceptions. It does not appear that they were brought to the
attention of the circuit court, or that it took any action whatever
upon the subject. The appeals from the circuit court to this Court
are confined to the merits of the case. Neither of them contains
any reference expressly, or by implication, to the exceptions.
Under these circumstances, they must be held to have been
conclusively waived by the respondents. To consider them here would
be to exercise the appellate power of this tribunal in reviewing
the
Page 81 U. S. 266
action, not of the circuit, but of the district court. This we
have no power to do. The exceptions must, therefore, be laid out of
view.
It was insisted in the argument here by the counsel for the
Vaughan that the consignees had no title to the barley,
and hence cannot maintain this libel for its loss. The converse of
this proposition is too clear to require discussion. The transfer
of the bill of lading carried the legal title with it. The
authority of Gordon & Co. to draw on the consignees for
advances upon receiving the bill of lading, and the actual payment
by them as such agents of the premium for insurance, show such to
have been the intention of the parties.
The presumption of title in the transferee of a bill of lading
which the law raises upon the transfer is, in this case, fully
sustained by the facts developed in the proofs. [
Footnote 4] But aside from the special
circumstances referred to, we have no doubt of the right of the
consignees as such to maintain this proceeding. The question is not
an open one in this Court. In
Houseman v. Schooner North
Carolina, [
Footnote 5]
Chief Justice Taney, delivering the opinion of the Court, said:
"We consider it well settled in admiralty proceedings that the
agent of absent owners may libel either in his own name as an
agent, or in the name of his principals, as he thinks best. . . .
And that the consignees had such an interest in the whole cargo
that they may lawfully proceed in this case, not only for what
belonged to them, and was shipped on their account, but for that
portion also which was shipped by Porter as his own and consigned
to them."
In
McKinlay v. Morrish, [
Footnote 6] it was said,
"Whatever may be the uncertainty concerning the consignee's
right to sue in a court of law, from the conflicting decisions to
be found on that right, there is none that he may sue in a court of
admiralty in the United States."
This brings us to the consideration of the merits of the
case.
Page 81 U. S. 267
The district court held that both vessels were in fault. The
circuit court came to the same conclusion, and affirmed this part
of the decree of the district court. These concurring judgments are
prima facie to be deemed correct. Our examination of the
evidence apart from this consideration has led our minds to the
same results. Where the collision occurred the channel was
straight, wide, and deep. The night was calm and clear. It was near
the end of the ebb tide. No disturbing element was present. The
circumstances were as favorable as possible for each vessel to pass
the other with its tows in safety. Without the grossest negligence
or mismanagement, there could be neither peril nor disaster. Yet
there was a disaster, and the colliding vessels came together with
such violence that the canal boat was wrecked and sunk. Neither
vessel had a lookout. The pilot and engineer of the
Vaughan were inexperienced and incompetent. There was at
the time no one on the deck of the
Telegraph but the
captain. The pilot had gone below. The engine was in charge of a
fireman. Other special faults in the conduct of each vessel are
imputed, and we think the evidence establishes them. The vessels
are antagonists, and one remarkable feature of the case is the zeal
and ability with which the counsel of each has attacked the other
and labored to defend his own. In the former, both have been
successful; in the latter, neither. The evidence is to a large
extent confused and contradictory. It could serve no useful purpose
to analyze and discuss it. It is sufficient to remark that we could
add nothing to the clear and able opinion of the judge of the
district court, by whom this part of the case was there disposed
of. We concur in the views which he expressed.
In the district court, it was held that the proper rule of
damages where a cargo is lost
in transitu by a collision,
or other tort, is the value of the goods at the time and place of
shipment. It was conceded that upon the breach of a contract for
the delivery of goods at a particular place the measure of damages
is the full value of the goods at such place. Both propositions are
correct and are well settled in
Page 81 U. S. 268
our jurisprudence. The place of shipment was a port in Canada,
and the value of the barley there when shipped was found to have
been 70 cents per bushel, amounting in the aggregate, with
interest, to $2,436. The estimate was made in the currency of
Canada, which was equivalent in value to the gold coin of the
United States. It was admitted that the decree was solvable in
legal tender notes, which were then largely depreciated, but it was
held that this was an incident of the suit in the forum where it
was brought, and that the result was unavoidable. In the circuit
court, the same rule of damages was applied, but the decree gave
the value of the Canada currency in legal tender notes. These notes
have since largely appreciated, so that while the libellants would,
under the decree of the district court, if it had been paid when
rendered, have received much less than the estimated value of the
barley, they will now, if the decree of the circuit court be
affirmed, receive much more.
It is clear that if the decree of the circuit court had been
paid when it was rendered, the result to the respondents would have
been the same as if the decree of the district court had been then
affirmed and paid in specie. Upon the rule of damages applied by
both courts as respects the kind of currency in which the value of
the barley was estimated, the libellants were entitled, upon the
plainest principles of justice, to be paid in specie or its
equivalent. The hardship arising from the decree before us is due
entirely to the delay in its payment which has since occurred, and
the change which time and circumstances have wrought in the value
of the legal tender currency. The decree was right when rendered,
and, being so, cannot now be disturbed. It is unnecessary to pursue
the subject further. The decree, in the particular under
consideration, presents the same question which was decided by this
Court in the case of
Knox v. Lee. [
Footnote 7] There the court instructed the jury that in
assessing the plaintiff's damages, they might take into account the
fact that the judgment could be paid in legal tender notes.
This
Page 81 U. S. 269
Court, upon error affirmed the correctness of that instruction.
The authority of that case is conclusive of the question here under
consideration.
Decree affirmed.
[
Footnote 1]
At the time this case was argued in this Court, January 24, 1872
the difference between gold and legal tender notes had sunk to
about 9 p.c., and on the day when the judgment was given, March 4,
1872, the difference was about 10 p.c.
[
Footnote 2]
3 Barnewall & Alderson 277.
[
Footnote 3]
Bronson v.
Rodes, 7 Wall. 229;
Butler v.
Horwitz, 7 Wall. 258.
[
Footnote 4]
Grove v.
Brien, 8 How. 439;
Lawrence v.
Minturn, 17 How. 107.
[
Footnote 5]
40 U. S. 15 Pet.
49.
[
Footnote 6]
62 U. S. 21
How. 355.
[
Footnote 7]
79 U. S. 12 Wall.
457.
THE CHIEF JUSTICE, dissenting.
I dissent, and am authorized to say that my brothers CLIFFORD
and FIELD also dissent from so much of the opinion just read as
relates to the measure of indemnity for the loss of the barley.
We agree that the loss was through the fault of both boats, and
that the libellants were entitled to indemnity, and we agree
further that the measure of this indemnity was the value of the
barley at the time and place of shipment; and that this value was
$2,436 in gold. The decree of the district court, rendered on the
21st day of February, 1868, was for this sum, with interest, making
the whole amount of the decree $2,924.20.
On appeal, the circuit court held that in order to give full
indemnity to the libellants, the value in gold must be converted
into its equivalent in legal tender notes on the day of shipment.
At that time, this currency was so much depreciated that $100 in
gold were worth $201 in notes. The $2,436 in gold, were therefore
converted into their equivalent in note dollars, making the sum of
$4,896.36. The decree of the district court was accordingly
reversed, and a decree was entered on the 26th of March, 1870, for
the last-named sum and interest, in all $6,515, with costs.
This was much more than indemnity at the date of the decree, and
the injustice is still more apparent at this time, when the value
of the notes has so much appreciated that the affirmance of the
decree of the circuit court gives the libellants almost double
indemnity.
This case strikingly illustrates the evil consequences of
rendering judgments payable in legal tender currency. Hardly
anything fluctuates in value more than such judgments. Every day
witnesses a change. The judgment debtor gains by depreciation and
loses by appreciation.
Doubtless, if the legal tender clauses of the Currency Acts
Page 81 U. S. 270
are constitutional, such judgments may be rendered; but there is
nothing in those acts which requires that judgments for damages
estimated in coin shall be entered otherwise than for coin. On the
contrary, we have decided in several cases
* that judgments
for coin debts may be rendered payable in coin. In the present case
the amount of indemnity was ascertained in gold, and, in our
judgment, the decree should have been for that amount payable in
coin. This would have done exact justice between the parties and
would have been in harmony with the principles of the cases
referred to. It would have given indemnity, and not double
indemnity.
*
Cheang-kee v. United
States, 3 Wall. 320;
Bronson v.
Rodes, 7 Wall. 245;
Butler
v. Horwitz, 7 Wall. 259;
Trebilcock
v. Wilson, 12 Wall. 687.
