1. A claim for damages
exists against a vessel of the
United States guilty of a maritime tort as much as if the offending
vessel belonged to a private citizen. And although, for reasons of
public policy, the claim can not be enforced by direct proceedings
against the vessel, yet it will be enforced by the courts whenever
the property itself, upon which the claim exists, becomes, through
the affirmative action of the United States, subject to their
jurisdiction and control. The government in such a case stands,
with reference to the rights of the defendants or claimants, as do
private suitors, except that it is exempt from costs, and from
affirmative relief against it, beyond the demand or property in
controversy.
2. By the admiralty law, all maritime claims upon the vessel
extend equally to the proceeds arising from its sale, and are to be
satisfied out of them.
These principles were thus applied:
A prize ship, in charge of it prize master and crew, on her way
from the place of capture to the port of adjudication, committed a
maritime tort by running into and sinking another vessel. Upon the
libel of the government, the ship was condemned as lawful prize and
sold, and the proceeds paid into the registry. The owners of the
sunken vessel, and the owners of her cargo, thereupon intervened by
petition, asserting a claim upon the proceeds for the damages
sustained by the collision.
Held that they were entitled
to have their damages assessed and paid out of the proceeds before
distribution to the captors.
3. The district court of the United States, sitting as a prize
court, may hear and determine all questions respecting claims
arising
after the capture of the vessel.
The steamer
Siren was captured in the harbor of
Charleston in attempting to violate the blockade of that port in
February, 1865, by the steamer
Gladiolus, belonging to the
Navy of the United States. She was placed in charge of a prize
master and crew, and ordered to the port of Boston
Page 74 U. S. 153
for adjudication. On her way she was obliged to put into the
port of New York for coal, and, in proceeding thence through the
narrow passage which leads to Long Island Sound known as Hurlgate,
she ran into and sank the sloop
Harper, loaded with iron
and bound from New York to Providence, Rhode Island. The collision
was regarded by this Court, on the evidence, as the fault of the
Siren.
On the arrival of the steamer at Boston, a libel in prize was
filed against her, and no claim having been presented, she was, in
April following, condemned as lawful prize and sold. The proceeds
of the sale were deposited with the assistant treasurer of the
United States in compliance with the act of Congress, where they
now remain, subject to the order of the court.
In these proceedings the owners of the sloop
Harper and
the owners of her cargo intervened by petition, asserting a claim
upon the vessel and her proceeds for the damages sustained by the
collision and praying that their claim might be allowed and paid
out of the proceeds.
The district court held that the intervention could not be
allowed, and dismissed the petitions, and hence the present
appeals.
MR. JUSTICE FIELD delivered the opinion of the Court.
It is a familiar doctrine of the common law that the
Page 74 U. S. 154
sovereign cannot be sued in his own courts without his consent.
The doctrine rests upon reasons of public policy -- the
inconvenience and danger which would follow from any different
rule. It is obvious that the public service would be hindered and
the public safety endangered if the supreme authority could be
subjected to suit at the instance of every citizen and consequently
controlled in the use and disposition of the means required for the
proper administration of the government. The exemption from direct
suit is therefore without exception. This doctrine of the common
law is equally applicable to the supreme authority of the nation,
the United States. They cannot be subjected to legal proceedings at
law or in equity without their consent, and whoever institutes such
proceedings must bring his case within the authority of some act of
Congress. Such is the language of this Court in
United States
v. Clarke. [
Footnote
1]
The same exemption from judicial process extends to the property
of the United States, and for the same reasons. As justly observed
by the learned judge who tried this case, there is no distinction
between suits against the government directly and suits against its
property.
But although direct suits cannot be maintained against the
United States or against their property, yet, when the United
States institute a suit, they waive their exemption so far as to
allow a presentation by the defendant of setoffs, legal and
equitable, to the extent of the demand made or property claimed,
and when they proceed
in rem, they open to consideration
all claims and equities in regard to the property libeled. They
then stand in such proceedings, with reference to the rights of
defendants or claimants, precisely as private suitors, except that
they are exempt from costs and from affirmative relief against them
beyond the demand or property in controversy. In
United States
v. Ringgold, [
Footnote 2]
a claim of the defendant was allowed as a setoff to the demand of
the government. "No direct suit," said the Court,
"can be maintained against the United States.
Page 74 U. S. 155
But when an action is brought by the United States to recover
moneys in the hands of a party who has a legal claim against them,
it would be a very rigid principle to deny to him the right of
setting up such claim in a court of justice, and turn him round to
an application to Congress."
So in
United States v. Macdaniel, [
Footnote 3] to which reference is made in the case
cited, the defendant was allowed to set off against the demand of
the government a claim for services as agent for the payment of the
navy pension fund to which the court held he was equitably
entitled. The question, said the Court, was whether the defendant
should surrender the money which happened to be in his hands and
then petition Congress on the subject, and it was held that the
government had no right, legal or equitable, to the money.
For the damages occasioned by collision of vessels at sea a
claim is created against the vessel in fault in favor of the
injured party. This claim may be enforced in the admiralty by a
proceeding
in rem, except where the vessel is the property
of the United States. In such case, the claim exists equally as if
the vessel belonged to a private citizen, but for reasons of public
policy already stated cannot be enforced by direct proceedings
against the vessel. It stands in that respect like a claim against
the government, incapable of enforcement without its consent and
unavailable for any purpose.
In England, when the damage is inflicted by a vessel belonging
to the Crown, it was formerly held that the remedy must be sought
against the officer in command of the offending ship. But the
present practice is to file a libel
in rem, upon which the
court directs the registrar to write to the lords of the admiralty
requesting an appearance on behalf of the Crown -- which is
generally given -- when the subsequent proceedings to decree are
conducted as in other cases. [
Footnote 4] In the case of
The Athol, [
Footnote 5] the court refused to issue
a monition to the lords of the admiralty to appear in a suit for
damage by collision, occasioned to a vessel by a ship of
Page 74 U. S. 156
the Crown; but the lords having subsequently directed an
appearance to be entered, the court proceeded with the case, and
awarded damages. As no warrant issues in these cases for the arrest
of the vessels of the Crown, and no bail is given on the
appearance, it is insisted that they are brought simply to
ascertain the extent of the damages, and that the decrees are
little more than awards, so far as the government is concerned.
This may be the only result of the suits, but they are instituted
and conducted on the hypothesis that claims against the offending
vessels are created by the collision. [
Footnote 6] The vessels are not arrested and taken into
custody by the marshal, for the reasons of public policy already
stated, and for the further reason that it is to be presumed that
the government will at once satisfy a decree rendered by its own
tribunals in a case in which it has voluntarily appeared.
It is true, that in case of damage committed by a public vessel
a legal responsibility attaches to the actual wrongdoer, the
commanding officer of the offending ship, and the injured party may
seek redress against him; but this is not inconsistent with the
existence of a claim against the vessel itself. In the case of
The Athol, already referred to, where the liability of the
actual wrongdoer is asserted, damages against the vessel were
pronounced after an appearance on behalf of the Crown had been
given by the admiralty proctor. [
Footnote 7]
The inability to enforce the claim against the vessel is not
inconsistent with its existence.
Seamen's wages constitute preferred claims, under the maritime
law, upon all vessels; yet they cannot be enforced against a vessel
of the nation, or a vessel employed in its service. In a case
before the Admiralty Court of Pennsylvania, in 1781, it was
adjudged, on a plea to the jurisdiction, that mariners enlisting on
board a ship of war belonging to a sovereign independent state
could not libel the ship for their wages.
Page 74 U. S. 157
In a case in the English Admiralty Court, a libel having been
filed to enforce a claim for seamen's wages against a packet ship
employed in the service of the General Post Office, Sir William
Scott declined to take jurisdiction until notice was given to the
Post Office Department, and he was informed that no objection was
taken to the proceeding. [
Footnote
8] The fact that the court took jurisdiction when the
exemption, upon which the government could insist, was waived,
shows that a claim against the vessel existed, as only upon its
existence could the libel in any event be sustained.
Even where claims are made liens upon property by statute, they
cannot be enforced by direct suit, if the property subsequently
vest in the government. Thus, in Massachusetts, the statutes
provide, that any person to whom money is due for labor and
materials furnished in the construction of a vessel in that
commonwealth, shall have a lien upon her, which shall be preferred
to all other liens except mariners' wages, and shall continue until
the debt is paid, unless lost by a failure to comply with certain
specified conditions; yet in a recent case, where a vessel subject
to a lien of this character was transferred to the United States,
it was held that the lien could not be enforced in the courts of
that state. The decision was placed upon the general exemption of
the government and its property from legal process. [
Footnote 9]
So also express contract liens upon the property of the United
States are incapable of enforcement. A mortgage upon property, the
title to which had subsequently passed to the United States, would
be in the same position as a claim against a vessel of the
government, incapable of enforcement by legal proceedings. The
United States, possessing the fee, would be an indispensable party
to any suit to foreclose the equity of redemption, or to obtain a
sale of the premises. In
Lutwich v. Attorney General, a
case cited by Lord Hardwicke in deciding
Reeve v. Attorney
General, [
Footnote 10]
a bill was filed to foreclose a mortgage after the mortgagor
Page 74 U. S. 158
had been attainted for high treason, and the court refused a
foreclosure against the Crown, but directed that the mortgagee
should hold and enjoy the mortgaged premises until the Crown
thought proper to redeem the estate.
In
Hodge v. Attorney General, [
Footnote 11] the deeds of certain leasehold
estates had been deposited by one Bailey with the plaintiffs, who
were bankers, to secure a balance of a running account between him
and them. Bailey was afterwards convicted of felony, and the
leasehold estates vested in the Crown. At the time of his
conviction, he was indebted to the plaintiffs, who filed a bill
against the attorney general, claiming to be equitable mortgagees
of the leasehold estates, to subject the property to sale, and the
application of the proceeds to the payment of the amount due them.
But the court said that the only decree which could be made in the
case was to declare the plaintiffs to be equitable mortgagees of
the property, to direct an account to be taken, and that the
plaintiffs hold possession of the property until their lien was
satisfied. "I do not think," said Baron Alderson, in giving the
decision,
"that I have any jurisdiction in this case to order a sale. Here
the legal estate is vested in the Crown, and I do not know any
process by which this Court can compel the Crown to convey that
legal estate."
In this country, where, as a general rule, a mortgage is treated
only as a lien or encumbrance and the mortgagor retains possession
of the premises, the relief granted in the two cases cited would be
of no avail.
The authorities to which we have referred are sufficient to show
that the existence of a claim, and even of a lien upon property, is
not always dependent upon the ability of the holder to enforce it
by legal proceedings. A claim or lien existing and continuing will
be enforced by the courts whenever the property upon which it lies
becomes subject to their jurisdiction and control. Then the rights
and interests of all parties will be respected and maintained.
Thus, if the government, having the title to land subject to
the
Page 74 U. S. 159
mortgage of the previous owner, should transfer the property,
the jurisdiction of the court to enforce the lien would at once
attach, as it existed before the acquisition of the property by the
government.
So if property belonging to the government, upon which claims
exist, is sold upon judicial decree, and the proceeds are paid into
the registry, the court would have jurisdiction to direct the
claims to be satisfied out of them. Such decree of sale could only
be made upon application of the government, and by its appearance
in court, as we have already said, it waives its exemption and
submits to the application of the same principles by which justice
is administered between private suitors.
Now it is a settled principle of admiralty law, that all
maritime claims upon the vessel extend equally to the proceeds
arising from its sale, and are to be satisfied out of them.
Assuming, therefore, that the
Siren was in fault, and that
by the tort she committed a claim was created against her, we do
not perceive any just ground for refusing its satisfaction out of
the proceeds of her sale. The government is the actor in the suit
for her condemnation. It asks for her sale, and the proceeds coming
into the registry of the court, come affected with all the claims
which existed upon the vessel created subsequent to her capture.
There is no authority, that we are aware of, which would exempt
them under these circumstances, because of the exemption of the
government from a direct proceeding
in rem against the
vessel whilst in its custody.
This doctrine was applied by this Court in the case of the
St. Jago de Cuba, [
Footnote 12] where a libel was filed by the United States
to forfeit the vessel for violation of the laws prohibiting the
slave trade. Claims of seamen for wages, and of materialmen for
supplies, when the parties were ignorant of the illegal voyage of
the vessel, were allowed and paid out of the proceeds. These claims
arose subsequent to the illegal acts which created the forfeiture,
yet they were not
Page 74 U. S. 160
superseded by the claim of the government. "In case of wreck and
salvage," said the court,
"it is unquestionable that the forfeiture would be superseded,
and we see no ground on which to preclude any other maritime claim
fairly and honestly acquired."
This language, though used with reference to claims arising out
of contract, may be applied to claims arising out of torts
committed after the capture of the offending vessel.
In
United States v. Wilder [
Footnote 13] it was held that goods of the United
States were subject to contribution equally with goods of private
shippers, to meet the expenses incurred in saving them, which were
averaged, and that the owners of the vessel could retain the goods,
until their share of the contribution to the average was paid or
secured. The United States claimed the right to take the goods
without paying or securing this share; and this being denied, the
action was brought to recover their value. In delivering the
opinion, Mr. Justice Story stated that he was unable to distinguish
the case from one of salvage, and that it had never been doubted
that in cases of salvage of private ships and cargoes, the freight
on board belonging to the government was equally subject to the
admiralty process
in rem for its proportion due for
salvage with that of mere private shippers; but that it might be,
for aught he knew, different in cases of the salvage of public
ships. "The same reasoning, however," continued the learned
justice,
"which has been applied by the government against the lien for
general average applies with equal force against the lien for
salvage of government property under all circumstances. Besides, it
is by no means true that liens existing on particular things are
displaced by the government becoming, or succeeding to the
proprietary interest. The lien of seamen's wages and of bottomry
bonds exists in all cases as much against the government, becoming
proprietors by way of purchase or forfeiture or otherwise, as it
does against the particular things in the possession of a private
person. "
Page 74 U. S. 161
In the case of
The Schooner Davis and Cargo, recently
decided in the Circuit Court of the United States for the Southern
District of New York, cotton belonging to the United States was
held liable to contribution to meet the allowance made for salvage
services in saving vessel and cargo. "The mere fact," said the
court,
"of the ownership of the cotton by the government, in the act of
being carried to its port of destination for the purposes of a
market as merchandise, we think did not exempt it from the lien in
case of salvage service. We shall not enter into an argument in
support of the position, as the subject, or rather a kindred one --
the liability of property of the government for general average --
and the present question incidentally have been already most
elaborately examined by Mr. Justice Story. [
Footnote 14] We are inclined also to the opinion
that it is the doctrine of the admiralty in England [
Footnote 15] and of the most approved
modern elementary writers on the subject in this country. [
Footnote 16]"
There is no just foundation for the objection that claims for
maritime torts cannot be dealt with and adjusted by a prize court.
"It is a principle well settled and constantly conceded and
applied," said Chancellor Kent
"that prize courts have exclusive jurisdiction and an enlarged
discretion as to the allowance of freight, damages, expenses, and
costs in all cases of captures, and as to all torts, and personal
injuries, and ill-treatments, and abuse of power connected with
captures
jure belli, and the courts will frequently award
large and liberal damages in those cases. [
Footnote 17]"
The jurisdiction is not, therefore, limited to the determination
of the simple question of prize or no prize. But whatever may be
the limitation upon the jurisdiction of a prize court in England,
there is no such limitation upon the district court sitting as a
prize court in this country. Here, the district court, as was said
in
United States v. Weed, [
Footnote 18]
"holds both its
Page 74 U. S. 162
prize jurisdiction and its jurisdiction as an instance court of
admiralty from the Constitution and the acts of Congress, and is
but one court with these different branches of admiralty
jurisdiction, as well as cognizance of other and distinct
subjects."
It may therefore hear and determine all questions respecting
claims arising after the capture of the vessel. Outstanding claims
upon the vessel, existing previous to the capture, cannot be
considered. This exclusion rests not on the ground of any supposed
inability of the court to pass upon these claims correctly, but
because they are superseded by the capture. [
Footnote 19]
As to the suggestion that a maritime tort, committed by a ship
in possession of a prize master and crew, ought not to create a
claim on the vessel against a neutral owner in case the vessel is
restored, it is sufficient to say, although the vessel having been
condemned the question is not of importance in this case, that the
claim in that event, if held to exist, would not be the subject of
consideration by the prize court. Here, however, the title was
divested from the previous owner by the capture, that being lawful,
and vested in the United States (in trust as to one-half for the
captors), although the legality of the capture was not established
until the sentence of condemnation.
It does not appear that the court below considered the evidence
as to the character and extent of the alleged tort. It appears to
have placed its decision entirely upon the legal proposition that
the captured vessel was exempt from legal process at the suit of
the intervenors and that consequently the proceeds of the vessel
could not be subjected to the satisfaction of their claims. We
have, however, looked into the evidence, and are satisfied that the
collision was the fault of the
Siren. It took place in the
daytime. The sloop was seen from the steamer in time to avoid her.
The steamer was out of the regular track for steamers passing
through Hurlgate. The passage is noted for its difficulties and
dangers,
Page 74 U. S. 163
and, under the laws of New York, pilots are specially
commissioned to take vessels through it. The prize master engaged a
pilot for the Sound to take the steamer from New York to Boston,
but refused to engage a Hurlgate pilot, his reason being to avoid
expense. With such a pilot she would have been taken in the regular
track of steamers northward of Blackwell's Island, and so close to
Flood Rock as to avoid the sloop, as might easily have been done.
We do not think it important to cite from the evidence in
vindication of our conclusion, especially as it was not seriously
contested on the argument that the
Siren was responsible
for the collision.
The decree must be reversed and the cause remanded to the
court below, with directions to assess the damages and pay them out
of the proceeds of the vessel before distribution to the captors.
Ordered accordingly.
[
Footnote 1]
33 U. S. 8 Pet.
444.
[
Footnote 2]
33 U. S. 8 Pet.
150.
[
Footnote 3]
32 U. S. 7 Pet.
16.
[
Footnote 4]
Coote's New Admiralty Practice 31.
[
Footnote 5]
1 W. Robinson 382.
[
Footnote 6]
The Clara, 1 Swabey 3; and
The Swallow, ib.,
30.
[
Footnote 7]
See also United States v. Brig
Malek Adhel, 2 How. 233.
[
Footnote 8]
The Lord Hobart, 2 Dodson 103.
[
Footnote 9]
Briggs v. Light Boats, 11 Allen 157.
[
Footnote 10]
2 Atkyns 223.
[
Footnote 11]
3 Younge & Collyer 342.
[
Footnote 12]
22 U. S. 9 Wheat.
409.
[
Footnote 13]
3 Sumner 308.
[
Footnote 14]
3 Sumner 308.
[
Footnote 15]
3 Haggard 246.
[
Footnote 16]
1 Parsons' Maritime Law, 324; 2
ib., 625; Marvin on
Wrecks and Salvage, ยง 122;
see also 20 U. S. 7 Wheat.
283.
[
Footnote 17]
1 Kent 354.
[
Footnote 18]
72 U. S. 5 Wall.
69.
[
Footnote 19]
The Battle, 6
Wall. 498;
The Hampton, 5
Wall. 372; and
The Frances, 8
Cranch 418.
MR. JUSTICE NELSON, dissenting.
I am unable to concur in the opinion just delivered. The steamer
Siren, having been captured by the United States steamship
Gladiolus, a government vessel of war,
jure
belli, became the property of the United States, subject only
to the right of the claimant to have the question of the legality
of the capture determined by the prize court to which it was sent
for condemnation. Captures made by government vessels belong to the
government, and no title exists in the captors, except to their
distributive shares of the proceeds after condemnation.
*
I agree that the
Siren, while on her way, after
capture, under the charge of the prize master, was in fault in the
collision with the sloop
Harper, on her passage from the
East River into the Sound, and that, if she had belonged to a
private owner, she would have been liable, in the admiralty, for
all the damages consequent upon this fault. Nor do I make any
question as to a lien for the damages against the
Page 74 U. S. 164
vessel in such a case, and which may be enforced by a proceeding
in rem, or may be by a petition to the court against the
proceeds, in the registry, if, for any cause, the offending vessel
has been sold, and no prior lien exists against these proceeds. But
if the owner of the offending vessel is not liable at all for the
collision, it follows, as a necessary legal consequence, that there
can be no lien, otherwise the nonliability would amount to nothing.
It would be idle to say that the owner was not liable for the
wrong, and at the same time subject his vessel for the damages
occasioned. In this case, therefore, before a lien can be
established or enforced against the
Siren by a proceeding
in rem, for the fault in question, or, which is the same
thing, before it can be applied to the proceeds of the vessel in
the registry, it must first be shown that the United States, the
owner, is legally liable for the collision. In saying legally
liable, I do not mean thereby legally liable to a suit, but legally
liable upon common law principles in case a suit might have been
maintained against the government; in other words, legally liable
for the wrongful acts of her officers or public agents. That, in my
judgment, is the turning point in this case, and the principle is
as applicable to the proceeds of the
Siren in the registry
as to the vessel itself. If the government is not responsible, upon
the principles of the common law, for wrongs committed by her
officers or agents, then, whether the proceedings in the admiralty
are against the vessel, or its proceeds, the court is bound to
dismiss them.
Now no principle at common law is better settled than that the
government is not liable for the wrongful acts of her public
agents. Judge Story in his work on Agency, states it as follows:
"It is plain," he observes,
"that the government itself is not responsible for the
misfeasances, or wrongs, or negligences, or omissions of duty of
the subordinate officers or agents employed in the public service,
for it does not undertake to guarantee to any persons the fidelity
of any of the officers or agents whom it employs, since that would
involve it in all its operations in endless embarrassments and
difficulties and losses, which would be subversive
Page 74 U. S. 165
of the public interests."
When we take into view the multitude of public officers and
agents which the government is obliged to employ in conducting its
affairs, the soundness, propriety, and even necessity of this
principle become at once apparent. In our judgment the present case
falls directly within it. In all these cases of wrongs committed by
public officers or agents, the legal responsibility attaches to the
actual wrongdoer.
It is supposed that the liability of government property for
salvage or general average contribution, for services or
sacrifices, in cases of impending danger to the property, afford
some authority for the judgment in the present case. We are unable
to perceive any analogy to the principle we have been discussing.
There, a portion of the property is taken or appropriated as a
compensation for saving it from a peril that threatened the loss of
the whole. The cases involve no principle concerning the liability
of the government for the tortious acts of its public officers.
Great stress is laid also upon the circumstance that the United
States is the libellant, and has brought the offending vessel or
its proceeds into court, and that the proceeding against the fund
in the registry is not a suit against the government. But the
answer to this is not that the proceeding may not be taken against
the fund in the registry, although there is certainly some
difficulty in distinguishing between that and a proceeding against
the vessel itself, but that the fund which belongs to the
government is not liable at all for the wrongful acts of its
officers, which wrongful acts lie at the foundation of the judgment
rendered in the case. It is for this principle I contend, and for
which I am compelled to dissent from the judgment.
*
Dos Hermanos,
10 Wheat. 306;
The Aigburth, Blatchford's Prize Cases 635;
The
Adventure, 8 Cranch 226.