1.
Restitutio in integrum is the leading maxim as to
the measure of damages in cases of libel in admiralty, for injury
to vessels, for collision: in other words, where repairs are
practicable, the general rule is that the damages shall be
sufficient to restore the injured vessel to the condition in which
she was at the time the collision occurred. And this rule does not
allow deduction, as in insurance cases, for the new materials
furnished in the place of the old.
Page 75 U. S. 378
2. Although, if a vessel be sunk by collision in so deep water,
or otherwise so sunk, that she cannot be raised and repaired,
except at an expense equal to or greater than the sum which she
would be worth when repaired, the rule cannot apply, still the mere
fact that a vessel is sunk is not, of itself, sufficient to show
that the loss is total, nor to justify the master and owner in
abandoning her and her cargo.
3. Courts of admiralty cannot properly allow counsel fees to the
counsel of a gaining side in admiralty, as an incident to the
judgment, beyond the costs and fees allowed by statute. Under the
statute now regulating the fees of attorneys, solicitors, and
proctors (the statute, namely, of 26th February, 1853, 10 Stat. at
Large 161), a docket fee of twenty dollars may be taxed, on a final
hearing in admiralty, if the libellant recover fifty dollars, but
if he recovers less than fifty dollars, only ten.
The schooner
Woolston, with a cargo of coal, and the
steamer
Baltimore collided in the Potomac on the 16th of
December, 1863, and the schooner and her cargo sank. The owners of
the schooner accordingly libeled the steamer in the admiralty court
of the District. The libel averred that the collision had been
caused wholly by the steamer's fault, and that the schooner had
sunk in such deep water as to make both her and her cargo a total
loss, since the cost of raising either or both would be greater
than its or their value.
These allegations, both as to the fault and the total loss, the
answer explicitly denied. The testimony as to the question of fault
need not be stated, since it appeared that a part of it was given
below, was not in the record sent to this Court, and the court
therefore did not pass at all upon the merits. On the other matter,
the matter of total loss, it rather showed that the water in which
the schooner went down was not so deep but that her masts were
visible eighteen feet above the water, and that her position, as
she lay, was clearly discernible.
No proof was given of the fact of a total loss further than that
the vessel sunk.
The court, regarding the steamer as in fault, entered a decree
for the libellants and, upon the report of a commissioner, decreed
as damages, notwithstanding exceptions by the respondents, the full
value of the schooner and cargo at the time of the collision and
awarded to the libellant's
Page 75 U. S. 379
counsel $500 as a fee. This decree having been affirmed by the
Supreme Court in general term, the case was now here on appeal.
Page 75 U. S. 381
Mr. Justice CLIFFORD delivered the opinion of the Court.
Cases of admiralty and maritime jurisdiction, since the passage
of the act of the 3d of March, 1803, cannot be brought here for
reexamination in any other mode than by appeal, and the provision
is "that upon such appeal, a transcript of the libel, answer,
depositions, and all other proceedings, of what kind soever in the
cause, shall be transmitted to" this Court. Prior to that time, the
judgments and decrees of the circuit courts in civil actions and
suits in equity, whether brought there by original process or
transferred there from the courts of the several states, or from
the district courts, could only be removed into this Court for
revision by writ of error; and the further provision was that there
should be no reversal in this Court for any error in fact, which
still continues to be the rule of law in respect to all cases
brought here from the circuit courts by writs of error.
Page 75 U. S. 382
Power to reverse for error in fact any judgment or decree of a
circuit court brought here for revision being absolutely
prohibited, it became necessary to prescribe some mode by which the
facts in equity suits and in cases of admiralty and maritime
jurisdiction should be ascertained and embodied in the record, and
it was accordingly provided in the 19th section of the Judiciary
Act that it should be the duty of the circuit courts in such cases
to cause the facts on which they founded their sentence or decree
fully to appear upon the record in someone of the modes therein
described, and while that provision remained in force this Court
had no more right to reexamine the facts found in such a case than
the court possesses in a common law suit where the facts are found
by the verdict of a jury. [
Footnote
1]
Appeals, however, are now allowed to this Court by the
amendatory act in all such cases where the matter in dispute,
exclusive of costs, exceeds the sum or value of $2,000, and so much
of the 19th section of the Judiciary Act as provided for the
finding of the facts in the circuit court, and so much of the 20th
section of the same act as provided that such cases should be
removed into this Court by writs of error, are repealed.
Viewed in the light of the repealing clause in that act, and the
requirement that the transcript shall embrace the depositions as
well as the pleadings and proceedings in the case, it is evident
that Congress intended that this Court shall hear and determine the
whole merits of the controversy. Provision in also made by that act
that new evidence may be received by this Court, in admiralty and
prize causes, which shows to a demonstration that the facts, as
well as the law of the case, are open to revision on the
appeal.
Where the appeal involves a question of fact, the burden is on
the appellant to show that the decree in the subordinate court is
erroneous, but it is a mistake to suppose that this Court will not
reexamine the whole testimony in the case, as the express
requirement of the act of Congress is that
Page 75 U. S. 383
the Supreme Court shall "hear and determine such appeals," and
it is as much the duty of the court to reverse the decree from
which the appeal is taken for error of fact, if clearly
established, as for error of law.
Appeal was taken in this case from the decree of the Supreme
Court of the District affirming the decree of the district court,
sitting as a court of admiralty in a cause of collision, civil and
maritime.
By the transcript, it appears that the owners of the schooner
J. W. Woolston filed a libel
in rem against the
steamer
Baltimore, her engine, machinery, boats, apparel,
tackle, and furniture, claiming damages as for a total loss of the
schooner and her cargo, consisting of two hundred tons of coal, and
also for the loss of the freight on the cargo, and for the loss of
the equipment of the schooner.
Bound on a voyage from Philadelphia to the port of Washington,
the schooner, when the collision occurred, was coming up the River
Potomac towards her port of destination. Though cloudy, the night
was not very dark, and the schooner had a light at her bow, under
the jib-boom, and she had two good lookouts properly stationed in
the forward part of the vessel. She was steering west-northwest
with all her sails set, and was proceeding safely on her voyage up
the river under a good breeze when the lookouts described the
steamer heading in a southeasterly direction and coming down the
river, and the charge in the libel is that the steamer, when she
was not more than three hundred yards from the schooner, suddenly
changed her course, came down on the schooner and struck her near
midships, and caused her to sink in the deepest part of the
channel. Due vigilance, it is alleged, was practiced by the
schooner to prevent the collision, and that it was occasioned
solely by the gross negligence and culpable mismanagement of the
steamer.
Pursuant to the warrant issued for the purpose, the steamer was
arrested and the claimants appeared and gave a bond for her value
in the sum of $8,350. In their answer, they admit that the state of
the wind and the weather at the time
Page 75 U. S. 384
of the collision is correctly described in the libel, but they
allege that the proper course of the schooner in coming up the
river was northwest by west half west; that instead of pursuing
that course, she was heading, when first seen by the steamer,
diagonally across the river; that the bell of the steamer was
immediately rung and her engine stopped, but that it was too late
to avoid the collision; that the collision was wholly occasioned by
the fault and carelessness of those in charge of the schooner in
attempting to cross the bows of the steamer instead of keeping
their course, as they were bound to do by the well known rules of
navigation.
I. Testimony was taken on both sides, but the Court is not
inclined to decide the merits of the controversy, as the clear
inference from the certificate of the clerk is that the whole
testimony taken in the district court is not contained in the copy
of the record transmitted to this Court. Although the record in
that behalf is apparently defective and incomplete, still the Court
deems it proper to determine some of the questions presented for
decision, as otherwise it may hereafter become necessary to send
the case back a second time.
Directions were given to the commissioner to whom the cause was
referred, in the decretal order, to take proof of the value of the
schooner, her cargo, furniture, and fixtures, at the time she
collided with the steamer, and also to inquire into the damage
which thereby accrued to the libellants, and the cost of the suit,
including an allowance for fees to the counsel of the libellants,
and to report the same to the court.
Agreeably to those directions the commissioner heard the parties
and reported that the libellants were entitled to recover $5,000
for the actual value of the schooner at the time she was sunk,
$1,521.96 for the value of the cargo, $200 for the value of the
furniture and fixtures, $450 for the loss of freight, and $100 for
profits on the cargo, together with costs of suit, including $500
as an allowance for fees to the counsel of the libellants.
Exceptions were duly taken by the claimants to the report
Page 75 U. S. 385
of the commissioner, setting forth thereto three objections: (1)
that the finding as to the value of the vessel is erroneous; (2)
that the allowance of counsel fees is unauthorized; (3) that the
allowance for profits on the cargo is incorrect. Both parties were
heard, and the court sustained the third exception, but overruled
the first and second, and confirmed the report, striking out the
$100 for profits on the cargo.
II. Suppose the libellants are entitled to recover, still the
claimants insist that the rule of damages adopted by the district
court is erroneous.
Owners of ships and vessels are not now liable for any loss,
damage, or injury by collision occasioned without their privity or
knowledge, beyond the amount of their interest in such ship or
vessel and her freight then pending. [
Footnote 2] Subject to that provision in the act of
Congress, the damages which the owner of the injured vessel is
entitled to recover are estimated in the same manner as in other
suits of like nature for injuries to personal property, and the
owner, as the suffering party, is not limited to compensation for
the immediate effects of the injury inflicted, but the claim for
compensation may extend to loss of freight, necessary expense
incurred in making repairs, and unavoidable detention. [
Footnote 3]
Restitutio in integrum is the leading maxim in such
cases, and where repairs are practicable the general rule followed
by the admiralty courts in such cases is that the damages assessed
against the respondent shall be sufficient to restore the injured
vessel to the condition in which she was at the time the collision
occurred; and in respect to the materials for the repairs the rule
is that there shall not, as in insurance cases, be any deduction
for the new materials furnished in the place of the old, because
the claim of the injured party arises by reason of the wrongful act
of the party by whom the damage was occasioned, and the measure of
the indemnification
Page 75 U. S. 386
is not limited by any contract, but is coextensive with the
amount of the damage. [
Footnote
4]
Such repairs, in consequence of a collision, may enhance the
value of the vessel and render her worth more than she was prior to
the accident, and in that state of the case the rule in insurance
cases is that one-third of the value of the new material is
deducted, because the new material is more valuable than the old,
but the rule is not so where the repairs are required in
consequence of a culpable collision. [
Footnote 5]
Restitution or compensation is the rule in all cases where
repairs are practicable; but if the vessel of the libellants is
totally lost, the rule of damage is the market value of the vessel
(if the vessel is of a class which has such value) at the time of
her destruction. [
Footnote
6]
Allowance for freight is made in such a case, reckoning the
gross freight less the charges which would necessarily have been
incurred in earning the same, and which were saved to the owner by
the accident, together with interest on the same from the date of
the probable termination of voyage. [
Footnote 7]
Evidence, however, that the injured vessel is sunk is not of
itself sufficient to show that the loss was total, nor is it
sufficient to justify the master and owner in abandoning the vessel
or the cargo unless it appears that the circumstances were such
that the vessel could not be raised and saved, or that the cost of
raising and repairing her would exceed or equal her value after the
repairs were made.
Experience shows that in many cases where the injured vessel is
sunk, especially when the disaster happens in rivers or harbors,
the vessel may be raised at moderate expense, and that the cargo,
if not perishable, may be saved and restored
Page 75 U. S. 387
to the shipper, or carried forward to the port of destination,
and the rule in such cases is to award such damages only as will
compensate the owners for the loss incurred, which is held to
include the expense of raising the vessel and putting her in
repair, with a proper allowance for the loss of freight and for the
damage to the cargo, and for the detention of the vessel during the
time necessary to make the repairs and fit the vessel to resume her
voyage. [
Footnote 8]
Justice as well as sound policy forbids that the owner of a
vessel sunk by collision should be allowed to recover the full
value of the vessel and cargo except in cases where the entire
property is lost by the disaster, which is not true in a case
where, by reasonable exertions, the vessel may be raised and the
cargo saved by the use of such nautical skill as the owners of
vessels usually employ in such emergencies. Owners of vessels
seeking redress in such cases must be prepared to show not only
that those in charge of the other vessel were in fault, but that no
negligence on their part has increased or aggravated the injury.
Damages are awarded in such cases for the injury done to the vessel
and cargo by a wrongful act, but if the party suffering the injury
to his property will not employ any reasonable measures to stop the
progress of the damage, but willfully and obstinately, or through
gross negligence, suffers the damage to augment, it is his own
folly, and the law will not afford him any redress for such part of
the damage as proceeded directly from his own culpable default.
Persons injured in their property by collision are entitled to
full indemnity for their loss, but the respondents are not liable
for such damages as might have been reasonably avoided by the
exercise of ordinary skill and diligence, after the collision, on
the part of those in charge of the injured ship. [
Footnote 9]
Responsive to these views, the suggestion is, that the libel
Page 75 U. S. 388
alleges that the schooner and cargo were sunk in such deep water
as to make both a total loss, but the insuperable difficulty in the
way of that suggestion is that the allegation of the libel is
expressly denied in the answer, and the libellants failed to
introduce any proof to support their allegation. Subsequent to the
disaster, several witnesses saw the schooner, and they concur that
her masts were some eighteen feet out of water and that she lay
with her stem to the west-northwest, in the exact course in which
she was steering when she was sunk by the steamer. Theory of the
libellants is that the vessel and cargo were of no value, but the
court cannot adopt that theory in the absence of any proof to
warrant the conclusion. [
Footnote 10]
Decided cases may be found where it is held that the owner of
the injured vessel is not bound to raise the vessel in a case where
she was sunk by a collision, but it is clear that the court cannot
award damages for a total loss where it appears probable that the
vessel and cargo may be raised without much expense and restored to
their owners. [
Footnote
11]
III. Due exception was also taken to that part of the report of
the commissioner in which he allowed to the libellants the sum of
five hundred dollars for counsel fees, but the district court
overruled the exception and confirmed the report.
Taxable costs are recognized by the Judiciary Act, in several of
its sections, as a part of a judgment or decree in a federal court,
but it contains no fee bill, nor does it furnish any express
authority for any such taxation. Costs have usually been allowed to
the prevailing party, as incident to the judgment, since the
statute 6 Edw. I, c. 1, ยง 2, and the same rule was acknowledged in
the courts of the states, at the time the judicial system of the
United States was organized. [
Footnote 12]
Page 75 U. S. 389
Circuit courts, under the Judiciary Act, have original
cognizance, concurrent with the courts of the several states, of
all suits of a civil nature, at common law or in equity, where the
matter in dispute exceeds, exclusive of costs, the sum or value of
five hundred dollars, in the cases described in the 11th section of
that act. [
Footnote 13]
Cases of federal cognizance commenced in a state court, where
the matter in dispute exceeds, exclusive of costs, the sum or value
of five hundred dollars, may be removed, under the conditions
specified in the 12th section of the act, into the circuit courts.
[
Footnote 14]
Such courts also may make and establish all necessary rules for
the orderly conducting of business in the said courts, provided
such rules are not repugnant to the laws of the United States.
[
Footnote 15]
Where the plaintiff or petitioner recovers less than five
hundred dollars or the libellant, upon his own appeal, recovers
less than three hundred dollars, he shall not be allowed, but, at
the discretion of the court, may be adjudged to pay costs. Appeals
from the decrees of the district court to the circuit court were
allowed by that act, where the matter in dispute exceeded,
exclusive of costs, the sum or value of three hundred dollars, and
the final judgments rendered in the district courts might be
reexamined in the circuit court on writ of error, where the matter
in dispute exceeded, exclusive of costs, the sum or value of fifty
dollars, and a similar provision is made for the reexamination by
this Court of the final judgments and decrees of the circuit courts
where the matter in dispute, exclusive of costs, exceeds the sum or
value of two thousand dollars.
Just damages for delay and single or double costs may be
adjudged to the respondent in error, at the discretion of the
court, in all cases where the judgment or decree is affirmed.
[
Footnote 16]
Provision is also made that the district attorney shall receive,
as compensation for his services, such fees as shall be
Page 75 U. S. 390
taxed therefor in the respective courts, before which the suits
or prosecutions shall be, and the act makes no other provision for
his compensation. [
Footnote
17]
Weighed in the light of these several provisions in the
Judiciary Act, the conclusion appears to be clear that Congress
intended to allow costs to the prevailing party as incident to the
judgment, as most of the regulations referred to would be
meaningless upon any other theory. Concede that to be so, still the
inquiry arises by what rules was the taxation to be regulated, and
what were the rates of fees to be allowed; to which inquiries there
can be but one answer unless it be assumed that Congress intended
to leave the whole matter to the discretion of the court trying the
case, which cannot be admitted. Reject that construction and the
only reasonable one which can be adopted is that the federal courts
were referred to the regulations upon the subject in the courts of
the state, and no doubt is entertained that such was the intention
of Congress, as conclusively appears by the terms of the Process
Act, which was passed five days after the approval of the Judiciary
Act. By that act, the modes of process and the rates of fees
allowed in the supreme courts of the states were expressly adopted
as regulations in that behalf, in common law suits in the district
and circuit courts established by the prior act. Rates of fees in
causes of equity and of admiralty and maritime jurisdiction were
also prescribed by that act, and they were therein declared to be
the same as are and were last allowed by the states, respectively,
in the court exercising supreme jurisdiction in such causes. State
forms of writs and executions were also adopted by the same act,
and the rates of fees and the forms and modes of process ever after
remained the same, except so far as they have been changed by
subsequent legislation or by the rules ordained by the supreme
court. Temporary though the act was, still it was of sufficient
duration to put the new system in complete operation. [
Footnote 18]
Subsequent to the passage of that act, the costs taxed in
Page 75 U. S. 391
the circuit and district courts were the same as were allowed at
that time in the courts of the state, including such matters as the
travel and attendance of the parties, fees for copies of the case,
and abstracts for the hearing, compensation for the services of
referees, auditors, masters, and assessors, and many other matters
not embraced in the fee bills, since passed by Congress. [
Footnote 19]
Most of the provisions of that act were incorporated into the
second section of the Act of the 8th of May, 1792, but the
particular regulation, adopting the state fee bill as the rate of
fees in the circuit and district courts, was not reproduced in that
section, as that fee bill had already been adopted by the federal
courts. [
Footnote 20]
Since that time, costs in the circuit and district courts, held
in the old states, have been taxed under that regulation as adopted
by that act, except so far as the rates of fees have been changed
by subsequent legislation. [
Footnote 21]
Congress, by the act of the 1st of March, 1793, regulated more
specifically the taxation of costs in admiralty proceedings in the
district courts. [
Footnote
22]
Fees of the attorney and counselor were prescribed by the 1st
section of the act. They were a stated fee of three dollars for
drawing and exhibiting the libel, claim, or answer in each cause;
three dollars for drawing interrogatories, and three dollars for
all other services in anyone cause. Nine dollars only could be
taxed for the services of an attorney or counselor, but the 4th
section of the act provided that there be allowed and taxed in the
federal courts in favor of the parties obtaining judgments therein
such compensation for their travel and attendance and for attorney
and counselor's fees, except in the district courts, in causes of
admiralty and maritime jurisdiction, as are allowed in the supreme
or
Page 75 U. S. 392
superior courts of the respective states. Passed to continue in
force only for one year, and, from thence, until the end of the
next session of Congress thereafter, it was suffered to expire, but
it was renewed by the act of the 31st of March, 1796, and was
continued in force two years longer, and to the end of the next
session of Congress. [
Footnote
23]
Detailed provision was made by the subsequent Act of the 28th of
February, 1799, for compensation to marshals, clerks, district
attorneys, jurors, witnesses, and criers, but the special provision
allowing counsel fees was dropped. [
Footnote 24]
Even while it remained in force, it did not authorize such an
allowance in a case like the present, as cases of admiralty and
maritime jurisdiction in the district courts were expressly
excepted from the operation of the provision. Ordinary costs in
admiralty suits were doubtless taxed under that act as if it was in
force long after it had expired, but it never furnished any
authority to charge counsel fees in the district courts; but if it
did, and if it had not expired, it would be repealed by the present
law.
Fees and costs, allowed to the officers therein named, are now
regulated by the Act of the 26th of February, 1853, which provides
in its 1st section that in lieu of the compensation now allowed by
law to attorneys, solicitors, proctors, district attorneys, clerks,
marshals, witnesses, jurors, commissioners, and printers, the
following and no other compensation shall be allowed.
"Attorneys, solicitors, and proctors may charge their clients
reasonably for their services, in addition to the taxable costs,
but nothing can be taxed as cost against the opposite party, as an
incident to the judgment, for their services except the costs and
fees therein described and enumerated. [
Footnote 25] They may tax a docket fee of twenty
dollars on a final hearing in admiralty, if the libellant recovers
fifty dollars, but if he recovers less than fifty dollars, the
docket fee of the proctor shall be but ten dollars. [
Footnote 26] "
Page 75 U. S. 393
Reference is made to two cases where counsel fees were allowed,
but it is a sufficient answer to those cases to say that they were
decided before the act of Congress under consideration was passed.
They do not, therefore, furnish the rule of decision in the case
before the Court.
Decree reversed.
[
Footnote 1]
1 Stat. at Large 84; 2
id. 244.
[
Footnote 2]
9 Stat. at Large 635;
The Niagara,
21 How. 26.
[
Footnote 3]
1 Parsons on Shipping 538; Maude & Pollock on Shipping, 411;
The Ann
Caroline, 2 Wall. 538;
Tindall v. Bell, 11
Meeson & Welsby 232.
[
Footnote 4]
Williamson v.
Barrett, 13 How. 110;
The Gazelle, 2 W.
Robinson 281; Sedgwick on Damages (4th ed) 541; MacLachlan on
Shipping, 285.
[
Footnote 5]
The Clyde, Swabey 24;
The Pactolus, ib., 174;
The Catharine,
17 How. 170.
[
Footnote 6]
The Clyde, Swabey 23; 1 Parsons on Shipping 542;
The Granite
State, 3 Wall. 310;
The Ann
Caroline, 2 Wall. 538;
The Rebecca, Bl.
& H. 847;
The New Jersey, Olcott 444.
[
Footnote 7]
The Canada, Lushington 586.
[
Footnote 8]
Williamson v.
Barrett, 13 How. 110;
Sturgis v.
Clough, 1 Wall. 272.
[
Footnote 9]
The Flying-Fish, B. & Lush. 443;
S.C., 3
Moore Privy Council (N.S.) 86;
The Lotus, Holt, R. 183;
The Lena, ib., 213.
[
Footnote 10]
Miller v. Mariner's Church, 7 Me. 51;
Loker v.
Damon, 17 Pickering 284;
Thompson v. Shattuck, 2
Metcalf 615; Sedgwick on Damages (4th ed) 105.
[
Footnote 11]
The Columbus, 3 W. Robinson 158;
The Eugenie,
1 Lushington 139; Lowndes on Collision 148.
[
Footnote 12]
Hathaway v. Roach, 2 Woodbury & Minott 63; 2 Tidd's
Practice 945,
The Christina, 8 Jurist 321; Conklin's
Treatise 426; Laws of the United States Courts 255.
[
Footnote 13]
1 Stat. at Large 78.
[
Footnote 14]
Ib., 80.
[
Footnote 15]
Ib., 83.
[
Footnote 16]
Ib., 85.
[
Footnote 17]
1 Stat. at Large 93.
[
Footnote 18]
Ib., 123;
ib., 191.
[
Footnote 19]
Crosby v. Folger, 1 Sumner 514;
Brown v.
Stearns, 13 Mass. 536.
[
Footnote 20]
Ibid., 276;
Hathaway v. Roach, 2 Woodbury
& Minott 68;
Hovey v. Stevens, 3
id. 17.
[
Footnote 21]
Whipple v. Cotton, 3 Story 84.
[
Footnote 22]
1 Stat. at Large 332.
[
Footnote 23]
1 Stat. at Large 453.
[
Footnote 24]
Ib., 624.
[
Footnote 25]
10 Stat. at Large 161.
[
Footnote 26]
The Sloop Canton, 21 Law Reporter 473;
The
Liverpool Packet, 2 Sprague 37;
The Conestoga, 2
Wall. Jr. 116.