Where a vessel was run on shore by the captain in order to save
the lives of those on board and for the preservation of the cargo,
by which act the vessel was totally lost but the cargo saved and
delivered to the consignee, a libel
in personam, filed by
the owner of the vessel against the consignee of the cargo (and the
result would be the same if filed against the owner of the cargo)
for a contribution by way of general average, cannot be sustained
in the admiralty courts of the United states.
Those courts have jurisdiction wherever the vessel or cargo is
subject to an absolute lien, created by the maritime law; and will
follow property subject to such a lien into the hands of assignees.
The lien, in such cases, does not depend upon possession.
But in cases of general average, the lien is a qualified one,
depends upon the possession of the goods, and ceases when they are
delivered to the owner or consignee.
Whatever may be the liability of the owner after he has received
his cargo, it is founded upon an implied promise to contribute to
the reimbursement of the owner of the lost vessel, which promise is
implied by the common law, and not by the maritime law.
The case is therefore beyond the jurisdiction of courts of
admiralty, and the libel must be dismissed.
This was a libel filed in the district court, as a court of
admiralty
Page 48 U. S. 730
and maritime jurisdiction, by Rae, the owner of a vessel called
the
Zamora, against Cutler in a cause of contribution or
general average, civil and maritime.
The facts in the case are set forth by MR. CHIEF JUSTICE TANEY,
in delivering the opinion of the Court, to which the reader is
referred.
The district court decreed that Rae should recover $2,500 from
Cutler, which decree was affirmed in the circuit court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This is a proceeding in admiralty, and the point first to be
considered is the question of jurisdiction.
The appellee filed a libel
in personam against the
appellant, in the District Court of the United States for the
District of Massachusetts, setting forth that he was the owner of
the bark Zamora, which sailed from New Orleans for Boston, on 6
November, 1845, with an assorted cargo, a part of which consisted
of 154 bales of cotton, consigned to the appellant; that she was
overtaken by a storm in Massachusetts Bay, and was run on shore by
the captain, in order to save the lives of those on board, and for
the preservation of the cargo, which, together with the vessel,
were in imminent danger of being totally lost; that by this
voluntary stranding, the vessel was totally lost, but the cotton
was saved; and that the appellant had saved the value of it,
to-wit, $5,400; and that the appellee is entitled to contribution
from the owners of the cargo and the appellant, to indemnify him
for the loss of his vessel.
The appellant answered admitting the ownership of the vessel as
alleged in the libel; that she was wrecked in Massachusetts Bay,
and that the cotton had come to his hands in a damaged state, but
denies that the appellee is entitled to the general average he
claims and insists that he is not liable to contribute on account
of the cotton, to indemnify the owner for the loss of his bark.
Upon this libel and answer, the parties proceeded to take
testimony to show the circumstances under which the vessel had been
stranded, and upon the hearing, a decree was passed in the district
court in favor of the appellee for $2,500, which was affirmed in
the circuit court and from which last-mentioned decree the present
appeal to this Court was taken.
Page 48 U. S. 731
Upon the face of the proceedings, therefore, the question arises
whether the district court had jurisdiction as a court of admiralty
to try the matter in dispute. And it is unnecessary to state more
fully the pleadings and testimony until this question is disposed
of.
It is true the counsel for the appellant has waived all
objections on that score. But the consent of parties cannot give
jurisdiction to the courts of the United States in cases where it
has not been conferred by the Constitution and laws. And if the
proceedings show a case which the district court was not authorized
to try, it is the duty of this Court to take notice of the want of
jurisdiction without waiting for an objection from either
party.
The court of admiralty undoubtedly has jurisdiction in cases
where the vessel or cargo is subject to a lien created by the
maritime law. And where the lien is attached to the vessel or
cargo, it will, until it is discharged, adhere to the property in
the hands of third persons, and will follow the proceeds, in
certain cases, in the hands of assignees. And in such cases the
lien may be enforced in a court of admiralty by a proceeding
in
personam, against the party who holds the property or
proceeds. This doctrine was recognized in this Court in the case of
Sheppard v.
Taylor, 5 Pet. 675. In that case, the holders of
the proceeds of a ship which had been condemned in a Spanish
tribunal, and the value of the vessel afterwards paid to the owners
by the Spanish government, were held liable for seaman's wages in a
proceeding
in personam, although they held them as
assignees of the owners in payment of a
bona fide
preexisting debt. And in deciding that case, the Court said that,
in cases of prize, bottomry, and salvage, as well as seaman's
wages, the party entitled to the lien may proceed in admiralty
in personam against the party holding the proceeds of
property to which the lien had attached.
But in the cases mentioned by the court, the maritime law
attaches an absolute and unconditional lien upon the property. The
possession is not necessary to its validity. Indeed, in cases of
seaman's wages and bottomry, the party entitled to the lien never
has possession, and the same is most commonly the case where
salvage services are rendered.
But it is otherwise in general average. The party entitled to
contribution has no absolute and unconditional lien upon the goods
liable to contribute. The captain has a right to retain them until
the general average with which they are charged has been paid or
secured. And as he may do this for the security of the party
entitled, he must be regarded as his agent in this respect, and
exercising his rights. This right
Page 48 U. S. 732
of retainer, therefore, is a qualified lien, to which the party
is entitled by the maritime law. But it depends on the possession
of the goods by the master or shipowner, and ceases when they are
delivered to the owner or consignee. It does not follow them into
their hands, nor adhere to the proceeds. This is the doctrine not
only in England, but on the Continent also. It is unnecessary to
refer to the various authorities on this point, as the principal
ones are collected in Abbott on Shipping 507 (margin), Perkins'
edition, and 3 Kent's Com. 244.
In the case before us, the goods, with the bill of lading, were
delivered to the consignee, and not to the owner. We do not,
however, propose to inquire whether, upon the facts stated in the
libel, the consignee would be liable for the contribution in any
form, but whether a court of admiralty can try the question. And
treating the case as if the consignee stood in the place of the
owner, and was liable to the same extent, we think it was not
within the jurisdiction of the court of admiralty. The owner is
liable because, at the time he receives the goods, they are bound
to share in the loss of other property by which they have been
saved, and he is not entitled to demand them until the contribution
had been paid. And as this lien upon his goods is discharged by the
delivery, the law implies a promise that he will pay it. But it is
not implied by the maritime law which gave the lien. It is implied
upon the principles of the common law courts, upon the ground that
in equity and good conscience he is bound to pay the money, and is
therefore presumed to have made the promise when he received the
goods. Indeed this case seems, in its principles, to be nothing
more than the common law action for money had and received, brought
in a court of admiralty.
It is very much to be regretted, that the jurisdiction of the
court of admiralty in this country is not more clearly defined. It
has been repeatedly decided in this Court that its jurisdiction is
not restricted to the subjects over which the English courts of
admiralty exercised jurisdiction at the time our Constitution was
adopted. But there is no case, nor any principle recognized by this
Court, that would justify us in extending it to a subject like the
one now before the court. Whether the court of admiralty might not
have proceeded
in rem to enforce the maritime law before
the goods were delivered is a question which does not arise in this
case, and upon which, therefore, we express no opinion. But the
case, as presented in the record, we think, is not within the
admiralty jurisdiction, and the judgment must therefore be
reversed, and the case remanded to the circuit court, with
directions to dismiss the libel.
Page 48 U. S. 733
MR. JUSTICE WAYNE.
I regret that this case has been sent to this Court upon the
printed arguments of the counsel in the court below, and still more
regret that this Court has decided an important constitutional
question of admiralty jurisdiction, without either oral or printed
argument.
It is the first time in this Court that such a result has
happened, and it was a sufficient reason, in my mind, to restrain
this Court from action, until after the point had been argued.
As I gather the facts of the case from the record, the question
of jurisdiction was not argued either in the district or circuit
court, though, in making up the record for this Court, the point
was suggested by the counsel for the respondents. It is a curious
incident in the history of our jurisprudence that a constitutional
point should have been ruled here which had neither been argued at
the bar in this Court nor elsewhere, and I think it will be thought
so much so that it will not occur again. Such a silent and
uncontested judicial disposition of a question arising under the
Constitution is at variance with the interest hitherto shown by our
courts and by the public in such matters, and does not partake of
that watchful and patient inquiry concerning constitutional powers
which has been so much the characteristic of the American mind when
either of the departments of our government has been called upon to
exercise them.
I think too that this decision should not have been made at this
time, for though a full Court was present in our consultation upon
this case, one of the judges, MR. JUSTICE CATRON, refused to
deliberate with us upon it, stating as his reason for not doing so
that important points, constitutional and otherwise, were involved,
and that the case was only before us upon printed arguments upon
the latter. I think he did so with great propriety, and I agree
with him that the rule of the Court permitting cases to be sent
here upon printed arguments was not meant to embrace cases
involving constitutional questions. That it was not meant to do so
I infer from this being the first case in which it has been done
with the practical acquiescence of this Court, and from our use in
having hitherto avoided the decision of such questions except upon
oral argument before a full Court.
MR. JUSTICE CATRON's withdrawal left eight of us to act upon the
case, and we were for some time equally divided upon this point of
jurisdiction. It was ultimately disposed of as it has been by a
majority of the Court, rather by our acquiescence in what was
thought to be English authorities against the jurisdiction, than
from a close and searching scrutiny into the practice
Page 48 U. S. 734
and jurisdiction of courts of admiralty, and how far they were
comprehended within our constitutional extension of judicial power
to all cases of admiralty and maritime jurisdiction.
Under such circumstances, with every inclination to carry out
without further inquiry the decisions of this Court, and with
unfeigned respect for all of the judges who have made this
decision, I hope I shall not be considered as doing anything at
variance with either, if I shall hear argument upon this point of
jurisdiction, should such a case occur before me upon the circuit,
or if I shall ask, should it ever arise here again, that we may
hear argument from counsel upon a point which we had not an
opportunity to hear when it was decided.
But my objection to the ruling of the point is greater than to
the circumstances under which it has been made.
I think that the case is within our constitutional admiralty and
maritime jurisdiction, and that it has been so decided by this
Court.
An attempt has been made to take it out of the case of
Sheppard v.
Taylor, 5 Pet. 675, by making a distinction between
cases of absolute and unconditional maritime lien, and such as are
now called qualified cases of lien, to which a party is
entitled by the maritime law. And it is said,
"in general average, that the party entitled to contribution has
no absolute and unconditional lien upon the goods liable to
contribute, but that the captain has a right to retain them until
the general average with which they are chargeable has been paid or
secured."
Besides, not having been able to find, in the books and cases
which I have read, any such distinction (now, I believe, for the
first time made), I have always thought that a lien given by the
maritime law, of whatever kind it may be, is one which can be
enforced in a maritime court, for the purpose of consummating, for
the benefit of all concerned, the equity which raised or created
it. For instance, that if a master of a vessel gets a lien upon the
saved cargo, in a case of jettison, or voluntary stranding of his
vessel, and he is in any way dispossessed of any part of it, either
by a freighter or other person, he may bring a possessory action in
a maritime court to regain it, or a petitory libel, if the goods
saved have got into the hands of a third person, who claims a right
of property in them against the freighter. And further, that if the
freighters, in a case of jettison or voluntary stranding of a
vessel, disagree as to what should be their respective
contributions, and there is no fixed rule for ascertaining it
without suit in the country where the said cargo may happen to be,
either the captain having the cargo in possession, or the
freighters, or either of them, may go into a maritime court, to
have it judicially
Page 48 U. S. 735
determined. And that a party interested in such a lien may file
his libel
in personam, in a maritime court against a
freighter for his contribution if he has got possession of his part
of the saved cargo, and has removed it beyond the sovereignty in
which the court is, so that it may not be sequestrated or put under
arrest, to answer the court's decree. And it matters not whether
the freighter's possession of the saved goods has been obtained by
the delivery of it to him by the master or otherwise. A lien or
right given to the master "to retain the goods, until the general
average with which they are chargeable has been paid or secured,"
as this Court says the master has, has nothing in it of the
character of a personal agency which the master may throw off at
his will, for neither in its beginning nor in its continuance has
it a voluntary appointment; but it is a trust, which the maritime
law casts upon him from the necessity of the case in virtue of his
official relation to the vessel and cargo and to those who are the
owners of them. It is a lien given to the captain by the maritime
law for the purposes of a high equity, produced by necessity, and
it cannot be taken from the jurisdiction of a maritime court by any
act of a party interested in it short of what that equity demands,
though the parties interested may themselves determine and receive
from each other what they may think that equity gives to each of
them.
And the foundation of this jurisdiction of a court of admiralty
in such cases, both
in rem and
in personam, is
not on account of the locality of the jettison or stranding, or
that it is a thing done at sea, but because, happening at sea, the
peril producing it makes new and involuntary relations between the
freighters, where there were none before, and for which the
interests of commerce require a tribunal into which, by the law of
its creation, all the parties interested may be brought together
for settlement. Of course in what I have said I have had no
reference to the admiralty jurisdiction in England since the time
of Charles II, but to that of the maritime courts upon the
Continent, and as the practice in them continues to be, and also to
what had been the ancient practice and jurisdiction in England on
admiralty until the reign of James I, notwithstanding the statutes
of 13 Richard II, ch. 5, and 15 Richard II, ch. 3, for we know
historically, that, until the time of James, the statutes of
Richard operated, rather to restrain the usurped jurisdiction of
the Court of Admiralty in England, than to limit it, in what
rightfully belonged to its cognizance.
When, then, we are referred to Abbott on Shipping and to Kent's
Commentaries and to the cases cited by them, in support of the
conclusion to which this Court has here come, concerning
Page 48 U. S. 736
the want of jurisdiction, in an American court of admiralty, of
a libel
in personam to enforce a right in a maritime lien
which cannot be enforced
in rem, in consequence of the
removal of the subject matter of the lien beyond the reach of the
court's monition and attachment, it will be found, by a perusal of
Abbott and Kent upon General Average and the cases cited by those
writers, that neither of them is discussing at all the jurisdiction
of a court of admiralty, even in England, but that each only states
-- and one from the other -- what are the remedies in England for
the recovery of the contributions of a general average. The
language in Abbott is:
"In case of dispute, the contribution may be recovered either by
a suit in equity only or by an action at law instituted by each
individual entitled to recover, against each party that ought to
pay for the amount of his share."
(ยง 14, 610.) And it is admitted that the English jurisdiction in
admiralty was not meant by the framers of the Constitution, when
the judicial power was extended "to all cases of admiralty and
maritime jurisdiction." The language of the court now is
"It has been repeatedly decided in this Court, that its
jurisdiction is not restricted to the subjects of which the English
courts of admiralty exercised jurisdiction at the time our
Constitution was adopted."
We must therefore in all cases, whether or not there has been an
occasion in our courts for the exercise of jurisdiction in a
particular case, look to the maritime courts on the Continent, and
to works on admiralty jurisdiction, to determine whether the case
in hand is embraced by our constitutional provision.
Nor can I partake of the regret just expressed, that the
jurisdiction of the court of admiralty in this country is not more
defined.
I know at one time it was thought so, but subsequent
investigations of it by our judges and jurists, I believe, have
given a very general impression to American lawyers, that the
constitutional clause, "all cases of admiralty and maritime
jurisdiction," is as well and as definitely expressed, for the
purpose meant, as it can be, and that it leaves nothing doubtful,
except as to some cases of which the admiralty court in England
took jurisdiction, which had been there exclusively within the
cognizance of the courts of common law, and also of other cases in
the Continental maritime courts, which did not relate to "things
done upon the sea, or to contracts, pleas, and quarrels which were
not maritime." Among the latter is certainly not a case of general
average, and, except in England, I believe, the jurisdiction of the
maritime courts has always embraced, both
in rem and
in personam, "all cases of
Page 48 U. S. 737
freight, charter parties, mariners' wages, debts due to
materialmen for the building and repairing of ships," and all
accidents upon the sea, affecting the rights of those having any
interest in the cargo of a vessel, or who are in any way connected
with her. I do not think that there is anything doubtful in the
terms used in the Constitution. "To all cases of admiralty and
maritime jurisdiction," means all cases arising or happening on the
sea, growing out of war or commerce, and all cases strictly of
maritime contracts -- admiralty jurisdiction meaning originally
those cases of which the admiral took cognizance in virtue of his
office upon the sea, and maritime, these also, with all others
arising out of the perils or accidents upon the sea; trespasses
upon it of all kinds; contracts relating to commerce in which a sea
service was to be rendered; contracts for building and repairing of
ships, and for money loaned upon bottomry. Now it having been
repeatedly ruled by this Court, that its admiralty jurisdiction was
not limited by what was the jurisdiction in England when the
Constitution was adopted, the principal difficulty in the way of
interpreting the words of the Constitution relating to it has been
overcome. And if we will but rid ourselves of those doubts in
respect to what are cases for a maritime court caused by the
limitation of them in England, I do not think we shall ever be at a
loss to determine what cases are within the admiralty jurisdiction
of the courts of the United States, and I believe the whole of them
will be found to make no trespass upon, or interference with, the
jurisdiction of the other courts of the United States, or with
those of the states, either as to the modes of proceeding in them,
or as to the suits of which they have cognizance.
MR. JUSTICE CATRON.
On the question of jurisdiction, for want of which this cause
has been dismissed, I am not satisfied either way, and therefore
give no opinion.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Massachusetts, and was argued by counsel. On consideration whereof
it is the opinion of this Court that neither the said circuit
court, nor the district court from which this case was removed to
the said circuit court, had jurisdiction of this cause, and that
consequently this Court has not jurisdiction but for the purpose of
reversing the decree of the said circuit court. Whereupon it is now
here ordered and decreed by this Court that the decree of the said
circuit court entertaining jurisdiction
Page 48 U. S. 738
in this cause be and the same is hereby reversed for the want of
jurisdiction in that court, and that this appeal be and the same is
hereby dismissed for the want of jurisdiction, and that this cause
be and the same is hereby remanded to the said circuit court with
directions to proceed therein in conformity to the opinion of this
Court.