text:
The Belfast/Opinion of the Court

Persons furnishing materials or supplies for ships or vessels, within the State of Alabama, have a lien by the law of that State on the same for all debts contracted by the master, owner, or consignee therof for the work done, and for the materials and supplies furnished, in preference to other debts due and owing from the owners of such ships or vessels. By the code of that State it is also provided, under the title, 'proceedings in admiralty,' that whenever any steamboat or other water-craft shall receive on board, as a common carrier, any goods or merchandise as freight, to be delivered at any specified place, and shall fail to deliver the same as directed in the bill of lading or other contract of shipment, the owner or consignee of such goods or merchandise shall have a lien on such boat or other water-craft for his loss or damage, to be enforced in the same manner and subject to the rules and regulations prescribed in relation to similar liens for labor, materials, and supplies furnished to such steamboats or other water-craft, as described in the antecedent provision.

Pursuant to those statutory rules and regulations of the State, the libel in this case was filed in the City Court of Mobile, and the libellants alleged that they, on the twenty-third of January, 1866, shipped on board the steamboat Belfast, then lying at Vienna in that State, one hundred bales of cotton, to be transported to Mobile, in the same State, and there to be delivered to certain consignees, they paying freight therefor at the rate of five dollars per bale, the dangers of the river excepted; that on the way down the river, below Vienna, twenty-nine bales of the cotton were lost, not by the dangers of the river, and were never delivered to the consignees, whereby the libellants suffered loss to the amount of five thousand eight hundred dollars. Introductory allegations of the libel, also, are the same as in a libel in rem in the District Courts of the United States; and in conclusion, the 'libellants pray process in admiralty' against the steamer, 'her tackle, apparel, and furniture,' and that the same may be condemned to satisfy their damages and costs. Process was accordingly issued, commanding the sheriff to seize and take the steamer, &c., into his possession, and to hold the same until released by due course of law. Respondents appeared as claimants, and alleged that they were the owners of the steamer, and they admitted that the cotton was shipped on board at the time and place, and on the terms and for the purpose alleged in the libel; but they excepted to the jurisdiction of the court, and alleged that the steamer, at the time the cotton was shipped, was duly enrolled and licensed under the laws of the United States; that she was then and there regularly engaged in commerce and navigation between the city of Columbus, in the State of Mississippi, and the city of Mobile, in the State of Alabama, and that the cotton described in the libel was lost in her trip down the river from the former city to her port of destination. Defence of the respondents upon the merits was, that the steamer and cargo were captured by a band of robbers in the trip down the river, within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of the United States, and without any negligence or fault on the part of the officers and crew of the steamer. They also set up the defence, that it was agreed between the master and the shippers that the vessel should not be liable for the loss of the cotton, if it was captured by armed men during the voyage, without any negligence or fault on the part of the carrier. Libellants excepted to that part of the answer denying the jurisdiction of the cort, as insufficient and invalid; and they also excepted to the defence, as pleaded, that the steamer was robbed of the cotton, as no bar to a recovery in the case, and the court sustained the views of the libellants in both purticulars, and the respondents excepted to the respective rulings of the court.

Two other consignments of cotton were also on board the steamer at the time the alleged robbery occurred. Ninety bales were shipped by J. H. Steers & Company, at Columbus; and one hundred bales were shipped by John Watson & Company, at the same place. Both shipments were to be transported to the port of Mobile, and there to be delivered to certain consignees under a similar contract of affreightment as that alleged in the first case, except as to the price to be paid for the transportation. Steers & Company lost thirty-four bales of their shipment, and Watson & Company lost thirty bales, as alleged by the respective parties. Libels in the same form were also filed by those parties about the same time, in the same court, and the owners of the steamer appeared in each case as claimants, and pleaded the same defences in the three cases.

Evidence was introduced by the respective libellants, proving that the entire cotton lost, and not delivered, was of the value of four thousand dollars. They also introduced the several bills of lading, and the respondents admitted the shipments as alleged in the respective libels. On the other hand, the libellants admitted that the steamer was robbed. as alleged in the answer, and without any neglect or fault of the owners of the steamer, or those in charge of her navigation.

Agreement of the parties, as stated in the bill of exceptions, was that the three cases should be tried together, and they were all submitted at the same time and upon the same issues. Finding of the court was that the whole loss in the three cases was four thousand dollars, and of that sum the decree of the court allowed one thousand dollars to the libellants in the first case, fourteen hundred dollars to the libellants in the second case, and sixteen hundred dollars to the libellants in the third case, with costs to the prevailing party.

Exceptions were seasonably tendered by the respondents to the rulings and decision of the court, and the exceptions were duly allowed by the court. Appeals were then taken by the respondents to the Supreme Court of the State, where the objections to the jurisdiction of the court were renewed in the formal assignment of errors. The parties were heard, but the court overruled the objections to the jurisdiction of the court, and affirmed the respective decrees rendered in the subordinate court. Writs of error were then sued out under the twenty-fifth section of the Judiciary Act, and the respective causes were removed into this court.

Jurisdiction of this court to re-examine the questions presented in the pleadings may be assumed as existing without discussion, as it is conceded that the questions are the same as were raised and decided in the State courts, and it is not controverted that the questions are such as may be re-examined here under the twenty-fifth section of the Judiciary Act.

Theory of the respondents is, that the respective libels were libels in rem to enforce a maritime lien in favor of the shippers of the cotton, under contracts of affreightment for the transportation of goods and merchandise from one port to another upon navigable waters, and that the State courts have no jurisdiction to employ such a process to enforce such a lien in any case; that the jurisdiction to enforce a maritime lien by a proceeding in rem is exclusively vested in the Federal courts by the Constitution of the United States and the laws of Congress. But the libellants controvert that proposition, and insist that the State courts have concurrent jurisdiction in these cases under that clause in the ninth section of the Judiciary Act, which saves 'to suitors in all cases the right of a common law renedy where the common law is competent to give it.'

2. They also contend, if their first proposition is not sustained, that inasmuch as the three cases were heard together, under an agreement that they should be tried upon the same issues, and that the libel filed by W. C. Boon & Company, as stated in the bill of exceptions, was selected as the case to be tried in the court where the suits were commenced, the rights of the parties in the other two cases must abide the decision of this court in that case.

Assuming that to be so, then they contend that the State court had jurisdiction in the first case, because the contract of affreightment was for the transportation of goods and merchandise between ports and places in the same State. Impliedly, the argument admits that the rule is otherwise where the contract is for the transportation of goods and merchandise between ports and places in different States; but the proposition is, that where the contract is between citizens of the same State, for the transportation of goods and merchandise from one port to another in the same State, the case is not one within the jurisdiction of the admiralty courts of the United States, unless it becomes necessary, in the course of the voyage, to carry the goods or merchandise into or through some other State or foreign domision.

Obviously the questions presented are questions of very great importance, as affecting the construction of the Federal Constitution, and the rights and remedies of the citizens engaged in an important and lucrative branch of commerce and navigation.

Judicial power to hear and determine controversies in admiralty, like other judicial power, was conferred upon the government of the United States by the Federal Constitution, and, by the express terms of the instrument, it extends to all cases of admiralty and maritime jurisdiction; which, doubtless, must be held to mean all such cases of a maritime character as were cognizable in the admiralty courts of the States at the time the Constitution was adopted.

Admiralty jurisdiction, as exercised in the Federal courts, is not restricted to the subjects cognizable in the English courts of admiralty at the date of the Revolution, nor is it as extensive as that exercised by the continental courts, organized under, and governed by, the principles of the civil law.

Best guides as to the extent of the admiralty jurisdiction of the Federal courts, are the Constitution of the United States, the laws of Congress, and the decisions of this court.

Two of the contracts of affreightment in these cases, were for the transportation of cotton between ports and places in different States; but as the contract alleged in the libel filed in the first case, was for the transportation of cotton from one port to another, in the same State, it becomes necessary to determine, irrespective of the questions presented in the other cases, whether such a contract is cognizable in the admiralty courts of the United States, because, if not, the libellants, in any view of the case, must prevail, as there would be, in that state of the case, no jurisdiction in this court to re-examine the decision of the State court in that case.

Much controversy has existed as to the true extent of the admiralty and maritime jurisdiction of the Federal courts, but great aid will be derived in the solution of this question by an examination of the decisions of this court at different periods since the judicial system of the United States was organized.

Principal subjects of admiralty jurisdiction are maritime contracts and maritime torts, including captures jure belli, and seizures on water for municipal and revenue forfeitures.

(1.) Contracts, claims, or service, purely maritime, and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty.

(2.) Torts or injuries committed on navigable waters, of a civil nature, are also cognizable in the admiralty courts.

Jurisdiction in the former case depends upon the nature of the contract, but in the latter it depends entirely upon locality. Mistakes need not be made if these rules are observed; but contracts to be performed on waters not navigable, are not maritime any more than those made to be performed on land. Nor are torts cognizable in the admiralty unless committed on waters within the admiralty and maritime jurisdiction, as defined by law.

Such jurisdiction, whether of torts or of contracts, was, and still is, restricted in the parent country to tide-waters, as they have no large fresh-water lakes or fresh-water rivers which are navigable. Waters where the tide did not ebb and flow, were regarded in that country as not within the admiralty and maritime jurisdiction; and such was the decision of this court in the case of The Jefferson, and the rule established in that case was followed for more than a quarter of a century.

Attempt was subsequently made to restrict the jurisdiction of the admiralty courts in torts to cases arising on the high seas, but this court held that it extended to all waters within the ebb and flow of the tide, though infra corpus comitatus, and as far up the rivers emptying into the sea or bays and arms of the sea, as the tide ebbed and flowed. And that rule, ever after it was promulgated, prevailed, and was universally applied by the District Courts in cases of collision.

Application of that rule was made by the Federal courts in collision cases arising upon the Hudson, the Penobscot, the Kennebec, the Merrimac, the Alabama, and many other rivers navigable only between ports and places in one State.

Exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, was conferred upon the District Courts by the ninth section of the Judiciary Act, including all seizures under the laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts as well as upon the high seas.

Remedies for marine torts, it is conceded, may be sought in the admiralty courts under that provision, although committed within the body of a county, but it is denied that redress can be obtained in the admiralty for the breach of a contract of affreightment in a case where the port of shipment and the port of destination are in the same State.

Repeated attempts were made at an early day to induce the court to hold that seizures on water were not cases of admiralty cognizance, and that contracts of affreightment were exclusively cognizable in the courts of common law; but this court refused to adopt either proposition, and held that the entire admiralty power of the Constitution was lodged in the Federal courts, and that Congress intended by the ninth section of the Judiciary Act to invest the District Courts with that power as courts of original jurisdiction; that the phrase, 'exclusive original cognizance,' was used for that purpose, and was intended to be exclusive of the State courts as well as the other Federal courts.

When the case of The Lexington was decided, it was still supposed that the admiralty jurisdiction was limited to waters affected by the ebb and flow of the tide, but the case is a decisive authority to show that the jurisdiction of the admiralty, in matters of contract, was understood to be coextensive with the jurisdiction in cases of marine torts.

Subject-matter of the suit in the case of Waring et al. v. Clarke, was that of a collision, and the subject-matter in the case of The Lexington was a loss of specie in transitu, under a contract of affreightment. Viewed in any light, those two cases settle the question that where the voyage and transportation are over tide-waters, the jurisdiction of the admiralty is the same in matters in maritime contracts as in marine torts.

Such was the state of the law upon the subject, as decided by this court, when the case of The Genesee Chief was brought here for re-examination; and in that case this court held that the jurisdiction in admiralty depended, not upon the ebb and flow of the tide, but upon the navigable character of the water; that if the water was navigable, it was deemed to be public, and if public, that it was regarded as within the legitimate scope of the admiralty jurisdiction conferred by the Constitution.

Prior to that decision, the Western lakes and navigable rivers of the United States, above tide-waters, were not supposed to be waters within the admiralty and maritime jurisdiction of the Federal courts. Strange as that proposition may now appear to one familiar with the provision contained in the ninth section of the Judiciary Act, it is nevertheless true that the rule restricting admiralty jurisdiction to tide-waters had prevailed from the organization of the judicial system to that date, but the effect of that decision was to dispel that error and place the admiralty jurisdiction upon its true constitutional and legal basis, as defined in the Constitution of the United States and the laws of Congress.

Subsequent decision of this court, in the case of The Magnolia, was, that the admiralty jurisdiction of the Federal courts extends to cases of collision upon navigable waters, although the place of the collision may be within the body of a county and above the ebb and flow of the tide; and this court also held in that case that the District Courts exercise jurisdiction over fresh-water rivers, 'navigable from the sea,' by virtue of the ninth section of the Judiciary Act, and not as conferred by the act of the 26th of February, 1845, which is applicable only to the 'lakes, and navigable waters connecting said lakes.'

Direct proposition of the respondents in the case of The Commerce was, that the case before the court, which was a collision on the Hudson River, was not a case cognizable in the admiralty, because it did not appear that either of the vessels was engaged in foreign commerce, or in commerce among the several States; but the court held that judicial power in all cases of admiralty and maritime jurisdiction was conferred by the Constitution, and that in cases of tort the question of jurisdiction was wholly unaffected by the considerations suggested in that proposition; and we reaffirm the rule there laid down, that locality is the true test of admiralty cognizance in all cases of marine torts; that if it appears, as in cases of collision, depredations upon property, illegal dispossession of ships, or seizures for the violation of the revenue laws, that the wrongful act was committed on navigable waters, within the admiralty and maritime jurisdiction of the United States, then the case is one properly cognizable in the admiralty.

Navigable rivers, which empty into the sea, or into the bays and gulfs which form a part of the sea, are but arms of the sea, and are as much within the admiralty and maritime jurisdiction of the United States as the sea itself.

Difficulties attend every attempt to define the exact limits of admiralty jurisdiction, but it cannot be made to depend upon the power of Congress to regulate commerce, as conferred in the Constitution. They are entirely distinct things, having no necessary connection with one another, and are conferred, in the Constitution, by separate and distinct grants.

Congress may regulate commerce with foreign nations and among the several States, but the judicial power, which, among other things, extends to all cases of admiralty and maritime jurisdiction, was conferred upon the Federal government by the Constitution, and Congress cannot enlarge it, not even to suit the wants of commerce, nor for the more convenient execution of its commercial regulations.

Remarks, it is conceded, are found in the opinion of the court in the case of Allen et al. v. Newberry, inconsistent with these views; but they were not necessary to that decision, as the contract in that case was for the transportation of goods on one of the Western lakes, where the jurisdiction in admiralty is restricted, by an act of Congress, to steamboats and other vessels. . . employed in the business of commerce and navigation, between ports and places in different States and Territories.

No such restrictions are contained in the ninth section of the Judiciary Act, and consequently those remarks, as applied to a case falling within that provision, must be regarded as incorrect.

Such a rule, if applied to the commerce and navigation of the Atlantic coast, would produce incalculable mischief, as the vessels in many cases, even in voyages from one port in a State to another port in the same State, are obliged, in the course of the voyage, to go outside of any particular State, and it would not be difficult to give examples where more than half the voyage is necessarily upon the high seas. Unless the admiralty has jurisdiction, in such a case, to enforce the maritime lien, in case of a collision or jettison, it is difficult to see to what forum the injured party can resort for redress. Piracy, it is said, is justiciable everywhere, but it cannot be admitted that maritime torts are justiciable nowhere.

Unable to deny that the admiralty has jurisdiction over marine torts, though the voyage is between ports and places in the same State, the advocates of the more restricted jurisdiction over maritime contracts set up a distinction, and contend that the admiralty jurisdiction over such contracts is limited by the power granted to Congress to regulate commerce. Reference may be made to the case of Maguire v. Card, as one where that distinction was adopted; but the decisive answer to that case, and the one preceding it in the same volume, will be found in the later cases already referred to, and in the case of The Mary Washington, where the opinion was given by the present Chief Justice. All three of the cases, therefore, as well the case of W. C. Boon & Company as the other two, are cases within the admiralty and maritime jurisdiction of the Federal courts.

II. Suppose that to be so, then, it is contended by the libellants, in the second place, that all three of the original actions were well brought in the State court as a court of concurrent jurisdiction with the District Courts of the United States in admiralty, and that the particular remedy, given by the statute of the State, and adopted in these cases, is within the true intent and meaning of the saving clause in the ninth section of the Judiciary Act.

Wherever a maritime lien arises the injured party may pursue his remedy, whether for a breach of a maritime contract or for a marine tort, by a suit in rem, or by a suit in personam, at his election. Attention will be called to three classes of cases only as examples to illustrate that proposition; but many more might be given to the same effect.

Shippers have a lien by the maritime law upon the vessel employed in the transportation of their goods and merchandise from one port to another, as a security for the fulfilment of the contract of the carrier, that he will safely keep, duly transport, and rightly deliver the goods and merchandise shipped on board, as stipulated in the bill of lading or other contract of shipment.

Owners of vessels damaged by collision, occasioned without fault on their part, and wholly through the fault of those in charge of the colliding vessel, also have a maritime lien on the vessel in fault as a security for such damages as may be awarded to them in the admiralty for the injury thereby caused to their vessel, and they may proceed in rem to enforce their claim for the damages, or they may waive the lien and bring their suit in personam against the master or owners of the vessel.

Material-men, also, who furnish materials or supplies for a vessel in a foreign port, or in a port other than a port of the State where the vessel belongs, have a maritime lien on the vessel as a security for the payment of the price of all such materials and supplies. They have such a lien because, upon the principles of the maritime law, such materials and supplies are presumed to be furnished on the credit of the vessel, and consequently they are entitled to proceed in rem in the admiralty court to enforce the lien, but they are not compelled to do so, as they may waive the lien and bring their suit in personam against the master or owners, as they are also liable as well as the vessel.

None of these principles are controverted, but the libellants contend that the State courts have concurrent jurisdiction to afford the parties the same remedies in all such cases. No warrant for that proposition, however, is found in the ninth section of the Judiciary Act, nor in any other part of that fundamental regulation of our judicial system. On the contrary, the exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction is, by the very terms of that section, conferred upon the District Courts of the United States, 'saving to suitors in all cases the right of a common law remedy where the common law is competent to give it.' Nothing is said about a concurrent jurisdiction in a State court or in any other court, and it is quite clear that in all cases where the parties are citizens of different States, the injured party may pursue the common law remedy here described and saved, in the Circuit Court of the district as well as in the State courts.

Original cognizance is exclusive in the District Courts, except that the suitor may, if he sees fit, elect to pursue a common law remedy in the State courts or in the Circuit Court, as before explained, in all cases where such a remedy is applicable. Common law remedies are not applicable to enforce a maritime lien by a proceeding in rem, and consequently the original jurisdiction to enforce such a lien by that mode of proceeding is exclusive in the District Courts.

State legislatures have no authority to create a maritime lien, nor can they confer any jurisdiction upon a State court to enforce such a lien by a suit or proceeding in rem, as practised in the admiralty courts. Observe the language of the saving clause under consideration. It is to suitors, and not to the State courts, nor to the Circuit Courts of the United States. Examined carefully it is evident that Congress intended by that provision to allow the party to seek redress in the admiralty if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy. Properly construed, a party under that provision may proceed in rem in the admiralty, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common law remedy in the State courts or in the Circuit Court of the United States, if he can make proper parties to give that court jurisdiction of his case.

Undoubtedly most common law remedies in cases of contract and tort, as given in common law courts, and suits in personam in the admiralty courts, bear a strong resemblance to each other, and it is not, perhaps, inaccurate to regard the two jurisdictions in that behalf as concurrent, but there is no form of action at common law which, when compared with the proceeding in rem in the admiralty, can be regarded as a concurrent remedy.

Consignees or shippers may proceed in the admiralty in rem against the vessel to enforce their maritime lien, or they may waive that lien and still proceed in the admiralty in personam against the owners of the vessel to recover damages for the non-fulfilment of the contract, or they may elect to bring a common action against the owners to recover damages, as in other cases for the breach of a contract to be executed on land.

Proceedings in a suit at common law on a contract of affreightment are precisely the same as in suits on contracts not regarded as maritime, wholly irrespective of the fact that the injured party might have sought redress in the admiralty. When properly brought, the suit is against the owners of the vessel, and in States where there are attachment laws the plaintiff may attach any property not exempted from execution, belonging to the defendants.

Liability of the owners of the vessel under the contract being the foundation of the suit, nothing can finally be held under the attachment except the interest of the owners in the vessel, because the vessel is held under the attachment as the property of the defendants, and not as the offending thing, as in the case of a proceeding in rem to enforce a maritime lien. Attachment in such suits may be of the property of non-residents or of defendants absent from the State, as in suits on contracts not maritime, and the same rules apply in respect to the service of process and notice to the defendants.

Applying these rules to the cases before the court, it is obvious that the jurisdiction exercised by the State court was of the precise character which is exclusive in the District Courts of the United States sitting in admiralty. Authority does not exist in the State courts to hear and determine a suit in rem in admiralty to enforce a maritime lien.

Such a lien does not arise in a contract for materials and supplies furnished to a vessel in her home port, and in respect to such contracts it is competent for the States, under the decisions of this court, to create such liens as their legislatures may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations prescribing the mode of their enforcement.

Contracts for shipbuilding are held not to be maritime contracts, and, of course, they fall within the same category, but in all cases where a maritime lien arises, the original jurisdiction to enforce the same by a proceeding in rem is exclusive in the District Courts of the United States, as provided in the ninth section of the Judiciary Act.

Respective decrees REVERSED, and the several causes remanded, with instructions to

DISMISS THE RESPECTIVE LIBELS.

title: The Belfast/Opinion of the Court


text: Talk:The Belfast/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:The Belfast/Opinion of the Court


text:
White's Bank v. Smith

ERROR to the Circuit Court for the Northern District of New York.

The case was this:

An act of Congress, 'providing for the recording of conveyances of vessels and for other purposes,' and passed July 29th, 1850, thus enacts:

'No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance, be recorded in the office of the collector of customs where such vessel is registered or enrolled.'

And a statute of the State of New York thus enacts:

'Every mortgage of chattels which shall not be accompanied, &c., shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed as directed in the succeeding section of this act.'

The 'succeeding section' above referred to directs where the mortgage shall be filed. And a third section proceeds:

'Every mortgage filed in pursuance of this act, shall cease to be valid as against the creditors of the person making the same, or against subsequent mortgagees in good faith, after the expiration of one year from the filing thereof, unless within, &c., a true copy of such mortgage shall be again filed in the office of the clerk or register aforesaid of the town or city where the mortgagor shall then reside.'

With these two acts, one of the United States and the other of the State of New York, in force, one Hoyt, then a resident of Buffalo, Erie County, New York, executed, on the 22d May, 1863, a mortgage to White's Bank, of Buffalo, upon the schooner Emmett, of which he was owner. This mortgage was recorded, on the 12th of the June following, in the collector's office at Buffalo, where the Emmett was duly enrolled, and where, as just said, Hoyt, her owner, resided. The mortgage was filed, also, in the office of the clerk of the county of Erie, on the 5th June, 1863, according to the requirement of the above-quoted law of New York, but it was not refiled at the end of a year.

Subsequently to the date of this mortgage of Hoyt to White's Bank, the vessel became the property of one Zahn, residing at Sandusky, Ohio; and on the 2d June, 1865, he mortgaged her to one Smith. The mortgage to Smith was recorded in the collector's office, at the port of Sandusky, Ohio, on the 17th of June, 1865, where the Emmett was duly enrolled, and at which place, as above stated, the then owner, Zahn, resided. The vessel having been sold subsequently to the date of both the mortgages, under a paramount lien for seamen's wages, and a remnant of the proceeds of sale, after payment of such wages, remaining, but being insufficient to pay either mortgage, the question was, to which of the mortgages it should be applied,-to the first mortgage, that of the bank? or to the subsequent one, Smith's? Smith set up that the lien of the mortgage to White's Bank was lost on account of the omission to refile it in the clerk's office of Erie County at the end of the year, and this position it was which raised the material question in the case; the question, namely, whether or not the recording of the mortgage in the collector's office at Buffalo had the effect, by its own force, and irrespective of the filing in the clerk's office, to give a preference to it over any subsequent purchaser or mortgagee?

The court below decreed that the fund should be appropriated to Smith's mortgage; and White's Bank appealed.

Mr. Haddock, for the appellant, contended that the act of the legislature of New York, so far as it required chattel mortgages upon vessels to be recorded, was a regulation of commerce, and therefore repugnant to that clause of the Federal Constitution which provides that Congress shall have power to regulate commerce with foreign nations, and among the several States. In Steamship Company v. Portwardens, where a statute of Louisiana, imposing a tax upon vessels, was declared repugnant to the Constitution of the United States, the court says: 'The power to regulate commerce was given to Congress in comprehensive terms. It was thus given with the obvious intent to place that commerce beyond interruption or embarrassment, arising from the conflicting or hostile State regulations.' So here the subject-matter, having been acted upon by Congress, was placed beyond the reach or control of the States.

Mr. Rogers, contra:

The act of Congress did not supersede the necessity of a compliance with the statute of New York. It is not repugnant to, nor in any manner in conflict with that law. There is no difficulty in complying with both. To regulate commerce was not the purpose of the State act; and if it does affect commerce, it does so only by acting incidentally on one of its instruments. But if the two acts are inconsistent, which should give way?

The act of Congress is, in some sort, a recording or registry act, having in view, apparently, the protection of the interests of bon a fide purchasers, as well as those of the United States, in the enforcement of its revenue and navigation laws. In so far as it thus assumes to regulate the transfer of the title of parties in such property, is the act constitutional? Can Congress enter the domain of property and assume in all cases to regulate the transfers thereof? We submit that it cannot. The clause of the Constitution which gives to Congress power to 'regulate commerce,' contains nothing in terms giving to that body the power to enter the domain of private property, and to enact what shall be, and what shall not be, a valid transfer thereof. Nor does any such power arise from implication from the power actually given. The rights of property as well as of person are carefully left to the several States, which, according to the theory of the Constitution, were better fitted to regulate them properly than any general government could possibly be. An owner who obtains the enrolment of his vessel because he cannot otherwise engage her in commerce, cannot be deemed thereby to resign his right to sell or dispose of her, by the observance of such formalities as the laws of his State alone prescribe.

If Congress have power to enact this registry law for the protection of creditors, purchasers, &c., simply because a ship is a vehicle of commerce, they have also the power to enact a similar law in relation to all locomotives, cars, wagons, sleighs, and other vehicles used in the carrying on of commerce between the States or with foreign nations; and in fact to regulate the transfer of title to all property which is the subject of commerce.

[A question was also made as to whether the record of the vessel under the act of Congress should be in the vessel's home port, or, as was decided by the Supreme Court of Massachusetts, in Potter v. Irish, and afterwards by the Supreme Court of Maine, in Chadwick v. Baker, in the port of the last registry or enrolment, though not the home port?]

Mr. Justice NELSON delivered the opinion of the court.

title: White's Bank v. Smith


text: Talk:White's Bank v. Smith

title: Talk:White's Bank v. Smith


text:
White's Bank v. Smith/Opinion of the Court

The act of Congress, July 29, 1850, on this subject, of the present case, is as follows:

'That no bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance, be recorded in the office of the collector of customs, where such vessel is registered or enrolled.'

The next section provides for recording these bills of sale, &c., and also certificates of discharge and cancellation in a proper book. No provision was made for any authentication of these instruments preparatory to their being recorded. They were received by the collector from the parties delivering them, and were recorded, with no proof of their verity, except from the execution of the same, as appeared on their face; and this, both as it respects the bills of sale, mortgages, &c., and the discharge and cancellation of the same. And the law thus stood for some fifteen years. On March 3, 1865, it was enacted that 'no bill of sale, mortgage, hypothecation, conveyance, or discharge of mortgage, or other incumbrance of any vessel, shall be recorded, unless the same is duly acknowledged before a notary public, or other officer authorized to take acknowledgment of deeds.'

Previous to this act of 1850, providing for the recording of bills of sale, mortgages, &c., of vessels, they were required to be filed, by the laws of many of the States, in the clerk's office, or some place of public deposit in the town or city where the vendor or mortgagor resided, in order to protect the interest of the vendee or mortgagee against subsequent bon a fide purchasers or mortgagees. And this practice continued in many places after the passage of the act of 1850, for abundant caution, on account of a doubt as to the effect that would or might be given to it as a recording act, from the very imperfect provisions of the law. There can be no doubt, however, but that the system of recording these instruments in the collector's office, at the home port of the vessel, furnishes a much readier opportunity to persons dealing in this species of property, to obtain a knowledge of the condition of the title, than by the former mode under the State law. We say the home port, because it is quite apparent from the language of the act, 'be recorded in the office of the collector of customs, where such vessel is registered or enrolled,' means the permanent registry or enrolment, which is at the port, 'at or nearest to which the owner, if there be but one, or if more than one, the husband or acting and managing owner of said ship or vessel usually resides. And the name of the said ship or vessel, and the port to which she shall so belong, shall be painted on her stern, on a black ground, in white letters, of not less than three inches in length,' and, if found without such name and the name of the port, the owner is subject to a penalty of fifty dollars.

The same act provides for a temporary registry, when the owner acquires her in a different district from that in which he resides; but this is to enable him to bring the vessel within the home district or port, where she can obtain her permanent registry. The character of his temporary registry is expressed on the face of it, and is delivered up to the collector on the issuing of the permanent registry, whose duty it is to return it to the collector that granted it.

So a registered vessel may be enrolled, or an enrolled vessel registered, on the master giving up to the collector the registry or enrolment, as the case may be; and if such vessel shall be in any other district than the one to which she belongs, the collector of such district, upon the master taking an oath that, according to his best knowledge and belief, the property remains as expressed in a registry or enrolment proposed to be given up, and on giving the bond required, shall make the exchanges above mentioned; but the collector to whom the registry or enrolment is given up, shall transmit the same to the Register of the Treasury, and the registry or enrolment granted in lieu thereof, shall, within ten days after the arrival of such vessel within the district to which she belongs, be delivered to the collector of said district, and be by him cancelled.

This exchange of registry or enrolment may occur in any part of a voyage or voyages, and the temporary registry or enrolment continues till the vessel, in the regular course of her employment, arrives at the port to which she belongs, where she may again obtain a renewal of her permanent documentary title. As we have said, we think it apparent that the collector's office in the district in which this temporary registry or enrolment is made, is not the office contemplated by the act of 1850. The temporary papers are made in the office where the vessel happens to be at the time of the sale or exchange of the documentary title, and continues only till her arrival at the port to which she belongs. Her name, and the name of her home port, remains painted on her stern, notwithstanding this temporary document, and satisfies the requirement of the act in that respect, and both continue until a new home port is acquired by a change of ownership, requiring a permanent registry or enrolment on account of the different residence of the owners, when the name of that port is substituted. And, confining the record to the home port, there is great propriety and convenience in requiring bills of sale, mortgages, &c., of the whole, or parts of a vessel, to be made matters of record in this office, as in the registries there are the names of all the owners under oath, together with their residences; and since the act of 1850, containing also the part or proportion of such vessel belonging to each owner (§ 5). And in this same section it is provided that, 'in all bills of sale of vessels registered or enrolled, shall be set forth the part of the vessel owned by each person selling, and the part conveyed to each person purchasing.' And in this connection we may also mention, that in case of the sale of a vessel, which can only be to a citizen or citizens of the United States, and a new permanent registry becomes necessary, the former certificate of registry must be delivered to the collector to whom application is made for the new registry, to be transmitted by him to the Register of the Treasury to be cancelled; and in every such sale or transfer of a vessel, there shall be some instrument in writing in the nature of a bill of sale, which shall recite at length the certificate of the former registry, otherwise the ship or vessel shall be incapable of being registered anew. And as this bill of sale is recorded in the collector's office in which the new permanent registry is made, it affords information to any person examining it as to the former home port and collector's office in which the vessel had been previously registered, and where examination can be made for any bill of sale, mortgage, or other incumbrance, upon or against the vessel.

It will be seen, therefore, as the law now stands, there can be very little difficulty on the part of a purchaser or mortgagee in ascertaining the true condition of the title of a vessel, as it respects written evidence of the same, or of incumbrances thereon, from an examination of the records of the collector's office at the several home ports of the vessel, as the records of the last home port refers to the preceding one, the last bill of sale incorporating into it a copy of the previous certificate of registry. In this respect, the system of recording in the collector's office possesses very great advantages over the filing of these instruments in the clerks' offices where the vendor or mortgagor happened to reside at the time, as no means exist, under this practice, by which the subsequent purchaser or mortgagee, by any diligence, could obtain a knowledge of the actual condition of the title.

We are aware that in the case of Potter v. Irish, the court came to the conclusion, upon an examination of the acts on this subject, that bills of sale, mortgages, &c., under the act of 1850, in order to protect the title of the purchaser or mortgagee, should be recorded in the office of the collector of customs at the port of the last registry or enrolment, though not the home port of the vessel. And the court in the case of Chadwick v. Baker, followed this decision. Our respect for the courts rendering these decisions has led us to examine the several statutes upon which this question depends with more than usual care, and after the best consideration we have been able to give, we are obliged to differ with them. We think the better construction of these statutes leads to the conclusion that the home port was the one in the contemplation of Congress at which these instruments were to be recorded, and is the more appropriate one in furtherance of the object for which the act was passed.

The temporary registry or enrolment is at a collector's office in a district where the owners do not reside, and is made without any reference to such residence. It is made at any collector's office, and at any port within the limits of the United States where the vessel may happen to be at the time this temporary document is registered.

While the home port may be at the city of New York, the temporary registry or enrolment may be made at New Orleans or San Francisco, or Portland, in Oregon, where it would be as inconvenient for the vendee or mortgagee to make a record of the bill of sale or mortgage as it would be for a person dealing in this species of property to acquire any notice of such record; whereas a record at the home port is within the district where the owners reside, and where negotiations or dealings in respect to this species of property would naturally be conducted.

Some question is made as to the power of Congress over the title and property of vessels of the United States to such an extent as to enable it to pass a recording act.

But, after the regulation of this species of property by the several acts of Congress to which we have referred, and in respect to which there has never been a question, there can be very little hesitation in conceding the power to protect the rights of subsequent bon a fide purchasers and mortgagees therein.

Ships or vessels of the United States are the creations of the legislation of Congress. None can be denominated such, or be entitled to the benefits or privileges thereof, except those registered or enrolled according to the act of September 1, 1789; and those which, after the last day of March, 1793, shall be registered or enrolled in pursuance of the act of 31st December, 1792, and must be wholly owned by a citizen, or citizens of the United States, and to be commanded by a citizen of the same.

And none can be registered or enrolled unless built within the United States before or after the 4th of July, 1776, and belonging wholly to a citizen, or citizens, of the United States, or, not built within said States, but on the 16th of May, 1789, belonging, and thence continuing to belong, to a citizen or citizens thereof; or ships or vessels captured from the enemy, in war, by a citizen, and lawfully condemned as prize, or adjudged to be forfeited for a breach of the laws of the United States, and being wholly owned by a citizen or citizens thereof.

Shis or vessels not brought within these provisions of the acts of Congress, and not entitled to the benefits and privileges thereunto belonging, are of no more value as American vessels than the wood and iron out of which they are constructed. Their substantial if not entire value consists in their right to the character of national vessels, and to have the protection of the national flag floating at their mast's head.

Congress having created, as it were, this species of property, and conferred upon it its chief value under the power given in the Constitution to regulate commerce, we perceive no reason for entertaining any serious doubt but that this power may be extended to the security and protection of the rights and title of all persons dealing therein. The judicial mind seems to have generally taken this direction.

DECREE ENTERED FOR THE APPELLANT.


text: Talk:White's Bank v. Smith/Opinion of the Court


text:
The Nichols

BROWN, owning a schooner of that name, filed a libel in the District Court for Northern New York, against the barque Nichols; the ground of his complaint being, that the two vessels being on Lake Erie, one going in one direction, and the other coming towards it in another nearly opposite, and the two so approaching each other, the barque had, in violation of the 'Rules and Regulations for Preventing Collisions on the Water,' fixed by the act of Congress of April 29, 1864, run into his schooner, and sunk her and her cargo. The Phoenix Insurance Company, which had insured the cargo, and paid for the loss, filed a similar libel.

The case was thus:

Congress, by the act above referred to, laid down certain rules or articles, to prevent collisions on the water, and among them these:

'Article 11. If two sailing ships are meeting end on, or nearly end on, so as to involve risk of collision, the belms of both shall be put to port, so that each may pass on the port side of the other.

'Article 12. When two sailing ships are crossing, so as to involve risk of collision, then, if they have the wind on different sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side, except in the case in which the ship which the wind on the port side is closehauled and the other ship free, in which case the latter ship shall keep out of the way. But if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward shall keep out of the way of the ship which is to leeward.

'Article 18. Where, by the above rules, one of two ships is to keep out of the way, the other shall keep her course.'

With these articles in force, the schooner was bound up Lake Erie, of a clear, starlight night; her course west by north. The barque was bound down it; her course east by south, half south-the two vessels being nearly dead ahead of each other. The wind was from the northeast, and the speed of each vessel full six miles an hour; the two so approaching one another at the rate of a mile every five minutes. The schooner had the wind free and on her starboard side. The barque was closehauled, with the wind on her port side. Each vessel was seen from the other about the same time, and when they were some two or three miles apart; the evidence being conflicting as to the exact distance.

When the two vessels made each other, the mate of the barque ordered her helmsman to 'keep her off a little,' so as to give the schooner 'a good full;' but as the vessels approached closely, he ordered him to 'put the helm hard up, and keep her right off;' in other words, to port the helm. The effect of this was, of course, to turn the vessel's head southward. Such were the manoeuvres of the barque.

The master of the schooner, on his part, so soon as he saw the barque's lights-judging them to be two or three miles off, 'nearly dead ahead, a very little on our starboard bow'-ordered his helm put starboard, 'to keep her off to the west.' The vessels were advancing rapidly, and with the manoeuvres ordered, respectively, were fast approaching each other as well. Two or three minutes before the collision-and the vessels being then not more than a quarter of a mile apart-the master of the schooner 'seeing the barque bearing down on him, and that she was off the wind,' ordered the wheel of his schooner put 'hard up,' and to 'let the main sheet run out.' The schooner accordingly swung to the south, somewhat of the southwest. But this was too late, or perhaps the very cause of the catastrophe. The barque advancing, went, bow first, and at right angles, into the starboard quarter of the schooner, and the schooner went down at once.

The collision being, of course, the exact result which was liable to follow from the combined manoeuvres of the vessels, the question was, which vessel had made the false navigation, under the act of Congress? And this question involved largely a consideration of the element and effects of distance; that is to say, in this particular case, the proximity of the vessels at the time when the master of the schooner gave the first order to starboard.

The District Court, not without hesitation, came to the conclusion that the distance between the vessels at this time-two or three miles-was such that the master was not in fault in making the order; that the case fell within the twelfth rule, and that the barque ought not to have changed her course. Conceding that the vessels were clearly approaching each other, 'nearly end on,' and that if they had both continued their courses, they would soon have been meeting nearly end on, so as to involve risk of collision,' within the meaning of the eleventh rule; that court was yet in doubt whether, at the distance at which these vessels were when they first made each other, they were meeting end on,. . . so as to involve risk of collision,' which the plain import of the eleventh rule required them to be before both were obliged to port their helms. It accordingly dismissed the libels.

On appeal, the Circuit Court was of a different opinion. The vessels being nearly dead ahead, their combined speed being twelve miles an hour, and they being thus within ten to fifteen minutes of meeting, that court considered that they were 'dangerously close together,' and their proximity such that the execution of the first order to starboard the helm of the schooner, involved not only the risk of the collision, but was the controlling cause of it; and thinking that the master of the schooner had mistaken the position of the barque, and had supposed that her lights were to the windward, when, in fact, they were to the leeward, reversed the District Court's decrees.

The correctness of this reversal was the question now here, on appeals by the owner of the schooner and by the insurers of her cargo, the Phoenix Company.

Mr. Hibbard, for the appellants:

1. There is no risk of collision when vessels, upon an open lake, and in a clear night, make each other at the distance of two or three miles; nor would there have been the slightest danger of collision, in this case, had not the barque disregarded the eighteenth article, and changed her course.

The act of Congress contemplates such nearness of approach, and imminency of danger, as makes it necessary for both vessels to change; for, beyond question, the act will not be so construed as to require unnecessary manoeuvres. Certainly it is not necessary that both should so change when they are two miles or anything like that distance apart upon an open lake. On a narrow river the rule might be different.

If the eleventh article does not apply, it of necessity follows that the twelfth and eighteenth do, and if the barque changed her course (as it is plain that she finally did), she violated absolutely a statutory provision, and must be in fault; for if a vessel bound to keep her course, changes that course, how can a vessel bound to 'keep out of her way,' know where to turn to avoid her?

2. The case being to be governed by the twelfth and eighteenth articles, it follows that the barque was bound to 'keep her course.' The schooner was bound simply to 'keep out of the way.' To do this she could either port or starboard, as she pleased.

3. As the Nichols largely changed her course, and commenced that change when the vessels were yet at a considerable distance apart, that change must make her solely responsible for all the damage done by this collision.

Mr. Ganson, contra, contended that there was not any necessity for any change of course on the part of the schooner; that she was on a course that would have taken her safely to the northward and windward of the barque; that there was nothing to prevent her pursuing that course; and that the change of her course caused the collision. Neither the eleventh nor twelfth articles applied therefore to the case, but the schooner was guilty of bringing about the collision, by attempting to pass across the bows of the barque when there was no occasion for her so doing; and in violation of the rules of navigation.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: The Nichols


text: Talk:The Nichols

title: Talk:The Nichols


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Page:Haiti- Her History and Her Detractors.djvu/164

 148 to the fierce attacks of Capois. Both sides fought with desperate bravery. The native generals, incited by Dessalines's presence and also by the goal they wished to reach, were often seen during the bloody struggle fighting gun in hand side by side with their soldiers. As to Capois, he compelled the applause even of Rochambeau; driven off by the relentless fire of the enemy, his army unceasingly returned to the charge, stimulated by the audacity with which its leader was defying death. Horse and rider rolled on the ground as a cannon ball hit the General's charger; but with lightning rapidity Capois extricated himself, and sword in hand he once more rushed back to his place at the head of his soldiers. Amidst the hurrahs of the French troops Rochambeau gave order for the firing to cease, and a cavalryman proceeded toward the amazed natives. "Captain-General Rochambeau," said he, "congratulates the General who has just covered himself with so much glory."

The messenger withdrew and the fight was resumed, until in the afternoon a torrential rain put an end to the battle. Both sides lost heavily. But the consequences of this encounter were of the greatest importance to the natives: they acquired possession of a country.

Rochambeau hastened to return to Cap-Français, the exterior fortifications of which were partly evacuated. On the same night, November 18, he sent a flag of truce to Dessalines; and on the 19th the following capitulation was agreed upon:

"This day, the 27th Brumaire, of the 12th year (19 November, 1803), the Adjutant Commandant Duveyrier, having received full power from General Rochambeau, Commander-in-Chief of the French army, to treat for the surrender of the town of Cape, and Jean-Jacques Dessalines, General of the native army, have agreed on the following articles, viz.:

"I. The town of the Cape (Cap-Français) and the forts dependent thereon shall be given up in ten days, reckoning from to-morrow, the 28th of Brumaire, to General-in-Chief Dessalines.


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The Nichols/Opinion of the Court

Controversies growing out of collisions between ships on navigable waters are in general of easy solution in cases where the facts are agreed, or where there is no material conflict in the testimony of the witnesses. Few cases, however, find their way into the tribunals of justice where the witnesses examined in the case concur either as to which vessel was in fault, or as to the circumstances attending the collision. On the contrary, such investigations are almost always complicated and embarrassed with conflicting testimony, and sometimes to such an extent that it is exceedingly difficult to form any satisfactory conclusion upon the merits.

Some of the causes which promote such contrariety of recollection are, that the moment when the collision occurs is necessarily one of alarm, and, frequently, of consternation, and also because the disaster is seldom witnessed with much care by any persons other than those on board the respective vessels, and all experience shows that they are quite too apt to see fault in the navigation of the other vessel, more readily than in that of the vessel to which they belong. Where such conflict exists the inquiry is very perplexing, and the difficulty can only be overcome in a satisfactory manner by a critical analysis of the testimony, and a careful comparison of the respective conflicting statements of the witnesses with the undisputed or well-established facts and circumstances developed in the testimony.

Decrees of an entirely opposite character were rendered in this case in the District and Circuit Courts, obviously on account of differences of opinion produced by the conflicting character of the testimony, and the appellants now set up a theory different from either of those adopted in the courts below, and it must be admitted that it finds some support in the evidence exhibited in the transcript.

In the investigation of such a case the first steps is to ascertain the facts material to the issue involved in the pleadings, but in accomplishing that purpose, in this case, it is not deemed necessary to enter much into the details of the testimony, as any such a discussion would not benefit the parties nor any one else not possessed of the entire record. Views of the District Court were that the Nichols was in fault, but the Circuit Court was of a different opinion, and reversed the decree, and dismissed the libel. Appeal was taken by the libellant from that decree of the Circuit Court to this court. Succinctly stated, the material facts of the case, as they appear to the court, are as follows:

Heavily laden with coal and iron, the schooner William O. Brown was bound up Lake Erie, on a voyage from Buffalo to Chicago. Her course was west by north, and when the collision occurred she was about half way between Little's Point and Bar Point, and about one and a half miles from the Canada shore. Statement as to the voyage of the barque A. P. Nichols is, that she came out from Detroit River early in the evening before the collision, and that she was bound down the lake to Buffalo, laden with a full cargo of corn. Undisputed fact is that she was heading east by south, half south, and that she, as well as the schooner, had competent lookouts properly stationed on the vessel. Both vessels also showed good lights, as required by law, and they were well manned and equipped. Prior to their arrival at the place where the collision occurred they had met with no difficulty, and they had fair weather and a good breeze from the northeast, not exceeding six or seven knots, and the speed of the respective vessels was about six miles an hour. Parties agree that the time and place of the collision is truly alleged in the libel, and there is neither fact nor circumstance in the case to warrant the conclusion that it was the result of any other cause than faulty navigation. Inexcusable as the disaster was, the principal question is, which vessel was in fault? When the vessels came together they had sufficient sea room, and they were both under full sail. The schooner had the wind free, and on her starboard side, but the barque was closehauled, with the wind on her port side. They were on lines which diverged not more than half a point, and which, in any event, if they continued their respective courses, would bring them into collision. Obliged to change their course or collide, the true inquiry is, what should have been done? Clear weight of the evidence is that each vessel was seen from the deck of the other, about the same time, when they were some two or three miles apart, and as they were approaching each other from nearly opposite directions it is quite clear, under the regulations enacted by Congress, that the helms of both should have been put to port, so that each might have passed on the port side of the other, unless the distance between them, at that precise time, was so great as not to involve risk of collision. Rules of navigation are obligatory upon vessels approaching each other, from the time the necessity for precaution begins, and continue to be applicable as the vessels advance, so long as the means and opportunity to avoid the danger remain.

When the two vessels made each other it was the mate's watch on board the Nichols, and he had command of her deck. His first order to the man at the wheel was to keep her off a little, so as to give the vessel ahead a good full; but as the vessels advanced, seeing that there was danger of collision, he gave the order to put the helm 'hard up and keep her right off,' which, under the circumstances, was equivalent to the order to port the helm, as the helmsman stands on the weather side of the wheel, and consequently the effect of the order 'hard up,' when executed, was to bring the helm to port, and turn the prow of the vessel to the leeward.

Before remarking further as to the movements of the barque, it becomes necessary to ascertain what was done on board the schooner, as she was approaching from nearly the opposite direction, at about the same speed. Her master admits that he saw both side lights of the other vessel at the same time, and he testifies that he immediately ordered the helm of his vessel to be put to starboard. Plain effect of that order, when executed, was to turn the prow of the vessel to the leeward, instead of hugging the wind closer, as the should have done, to avoid a collision.

Article eleven of the regulations enacted by Congress provides that if two sailing ships are meeting end on, or nearly end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other.

Sailing ships are meeting end on within the meaning of that provision when they are approaching each other from opposite directions, or on such parallel lines as involve risk of collision on account of their proximity, and when the vessels have advanced so near to each other that the necessity for precaution to prevent such a disaster begins, which cannot be precisely defined, as it must always depend, to a certain extent, upon the state of the navigation, and the circumstances surrounding the occasion.

Where vessels approaching are yet so distant from each other, or where the lines of approach, though parallel, are so far apart as not to involve risk of collision, that rule of navigation has no application to the case.

Much greater difficulty will arise in any attempt to define, with technical accuracy, the phrase nearly end on, as the language itself is in terms somewhat indefinite. Such attempts have been made in the English Admiralty Court, but without much practical success. Nearly end on, as the phrase is employed in that article, may doubtless be construed to include cases where two sailing ships are approaching from nearly opposite directions, or on lines of approach substantially parallel, and so near to each other as to involve risk of collision; but the application of the rule must also be considered as subject to the same limitations and qualifications as the preceding phrase in the same article. Decided cases may be found in the English admiralty reports where the attempt is made to define, with precision, how great the variation may be from opposite directions, or from parallel lines, and the case still be within the eleventh article; but the present case does not necessarily involve that inquiry, as the variation, in any view of the evidence, did not exceed half a point by the compass, which is clearly insufficient to take the case out of the operation of that article.

Argument for the appellant is, that the distance between the two vessels was so great when the helm of the schooner was put to starboard that it cannot be considered as a fault, and such, it seems, was the opinion of the district judge; but the proposition, in view of the circumstances, cannot be sustained, as it was in the night time, and the combined speed of the two vessels was at least twelve miles an hour, and none of the witnesses pretend that more than ten or fifteen minutes elapsed after the second order of the master of the schooner was given, to put the helm hard up, before the collision took place.

Strong doubts are entertained whether the effect of the first mistake made by the schooner would have caused a collision if she had then kept her course; but the second order to put the helm hard up, was fatal as the schooner then fell off even faster than the barque, and the collision became inevitable. Particular description of the effect of that movement need not be given, except to say that it brought the schooner directly across the bows of the barque. Confirmation of this view is derived from the conceded fact, that the schooner was struck by the stem of the barque on her starboard quarter. The effect of the blow was that she sunk, and, with her cargo, became a total loss.

Remaining proposition of the appellant is, that the barque is also in fault, because her helm, just before the collision occurred, was put to starboard; but it is clear that the error, if it was one in that emergency, was produced by the impending peril, which is justly chargeable to those having the control and management of the other vessel. Mistakes committed in such moments of peril and excitement, when produced by the mismanagement of those in charge of the other vessel, are not of a character to relieve the vessel causing the collision from the payment of full damages to the injured vessel.

Appeal was taken to this court at the same time from the decree of the court below, in the case of The Phoenix Insurance Company v. James R. Slanson, claimant, &c., and the two cases were argued here together, as the parties conceded that they depend upon the same facts. All the testimony was taken in the first case, and the stipulation of the parties is, that it should be regarded as also taken in the other, and that both cases should be heard at the same time. Libellants in this case were insurers of the cargo, and having paid the loss to the owner, they claimed that they were subrogated to his rights and interests, and that, by reason thereof, they had a lien upon the barque for the amount which they paid to the owner of the cargo. Evidently the appeal is disposed of by the opinion in the other case.

DECREES AFFIRMED.

title: The Nichols/Opinion of the Court


text: Talk:The Nichols/Opinion of the Court

title: Talk:The Nichols/Opinion of the Court


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The Floyd Acceptances

APPEALS from the Court of Claims.

The facts, as found by that court, were thus:

Russell, Majors & Waddell had contracts for supplies and transportation, to be furnished to the army in Utah. By these contracts, they were to be paid either by the quartermaster at St. Louis, or by his drafts on the assistant treasurer of the United States in New York. In all the contracts, except one, these payments were to be made on the final delivery of the supplies in Utah; but in one contract there was an agreement that partial payments should be made when the trains were started. In all cases, such payments were to be made upon certificates of the proper quartermaster.

The performance of these contracts required a very large outlay of money, and Russell & Co. finding it difficult to advance this and wait for its return until they were entitled to receive payment under their contracts, made an arrangement with the Secretary of War, under which they should draw time-drafts on him, payable to their own order, at the Bank of the Republic in New York, which should be accepted by the secretary. On these drafts they were then to raise the money necessary to enable them to perform their contracts, and as the money for the transportation and supplies became due, they were to receive it, and take up the acceptances of the secretary before or at maturity. Under this arrangement the secretary accepted drafts to the amount of $5,000,000, most of which were taken up by Russell, Majors & Waddell, as agreed; but over a million of dollars in amount remain unpaid.

The drafts, with unimportant verbal differences and differences of date, were in this form:

$5000.

WASHINGTON, November 28, 1859.

Ten months after date, for value received, pay to our own. order, at the Bank of the Republic, New York City, five thousand dollars, and charge to account of our contract for supplies for the army in Utah.

RUSSELL, MAJORS & WADDELL.

Hon J. B. FLOYD, Secretary of War.

[Indorsement.]

'RUSSELL, MAJORS & WADDELL.'

[Acceptance.]

WAR DEPARTMENT, November 28, 1859.

'Accepted:

JOHN B. FLOYD, Secretary of War.'

The drafts passed into the hands of different holders; among them T. W. Pierce, the Dover Five Cent Saving Bank, E. D. Morgan, and the Boatmen's Saving Institution; and Mr. Floyd having retired from the War Department, and the department refusing to pay the acceptances, Pierce, by his separate bill, and the other parties in a proceeding treated by the Court of Claims as one in substance, brought suit in that court. The petition of Pierce averred:

'That the said Floyd, as Secretary of War, and in behalf of the United States, and as the principal officer of an executive department, had authority to accept the drafts, and that, in accepting them, he acted in his official capacity, and in behalf of the United States. And that he, in behalf of the United States, as such Secretary of War, was authorized to accept drafts of such and the like tenor and effect as the drafts aforesaid; and that the said Pierce, relying upon the apparent, as well as upon the actual authority of the said Secretary of War to make such acceptances, and upon the fact of his acceptance of the bills, became the holder and owner of them, in a regular course of business, before they severally matured and for valuable consideration.'

Similar averments were made in the petitions of the other three parties. And by an amended petition they set forth the further facts:

That when the bills were accepted, and when they became due, the government owed the contractors a larger sum than the amount of them.

That at that time the army in Utah was in imminent danger from cold and starvation; that it was the duty of Floyd, as Secretary of War, to save it; and that to so save it he authorized the drawing of the bills and accepted them.

That as secretary he had authority by law to make advances to the contractors after their trains were ready to start; and that their trains being ready to start, he did what was done.

That he had authority by law to ascertain and determine the debt of the United States to the contractors, and did so determine; that there was due them the sums specified in the bills; and that the bills so drawn and accepted were conclusive evidence of the debt as against the government.

These same additional matters were considered by the court below in the case of Pierce. The general issue was pleaded in all the suits.

To present the case more completely, it must be stated that by statute of 31st January, 1823, it is enacted:

'That from and after the passage of this act no advance of public money shall be made in any case whatever; but in all cases of contracts for the performance of any service, or the delivery of articles of any description, for the use of the United States, payment shall not exceed the value of the service rendered, or of the articles delivered previously to such payment.'

The Court of Claims-upon a full history of the facts, as presented by evidence introduced by the government, and whose introduction was opposed by the petitioner, Pierce,-the admission being one of the errors alleged by Pierce himself-dismissed all the cases, holding, in the case of Pierce, that the secretary had no power to bind the United States by the acceptances; that the acceptances were to be regarded as within the act of 31st January, 1823, and as an attempt to avoid it, and were, therefore, void; that no decision of the Supreme Court authorized such acceptances; that the evidence failed to establish any usage, in the different departments, by which the Secretary of War was authorized to accept, in behalf of the United States, the bills in suit, and that if such usage or practice were established, it could not avail the claimant, because forbidden by law.

And finding, in the other three cases, that though it is and has been the practice of heads of departments to accept drafts or bills of exchange for the transmission of funds to disbursing officers, or the payment of those serving in distant stations, or for services rendered, the cases were still substantially the same as the case of Pierce, and, like it, to be dismissed.

The record did not show that anything remained due to the contractors, or was due when the bills matured; no evidence on the state of the accounts being given on either side.

Messrs. Black, Curtis, and Gooderich, for the appellants:

The Court of Claims declared the acceptances to be null and void, for the reasons, in substance, that—

1. To accept these particular bills was a violation or evasion of the act of 1823.

2. No usage to accept bills like these existed in the department, and that such usage would be unlawful if it did exist.

3. No decision of the Supreme Court authorized these acceptances, or made them binding.

Now was this an advance of public money? Take it to be true that the acceptance was given for money yet to be earned. Then the case is this: The contractor comes to the secretary and tells him that the army in a distant and hostile territory is in danger of suffering for lack of supplies, and he (the contractor) cannot furnish them without more capital than his present means will command. The secretary says, 'I can pay you no money out of the public treasury until it is due, according to the very terms of your contract; but your credits are daily accumulating, and in a few months the sum you want will be legally payable. I have no objection to put the future obligation of the United States into a negotiable form, so that if you are willing to pay the discount, you can get somebody else to make the advance, which I cannot make. But I must do this cautiously. I will subject the government to no risk. I will accept your bills only for fifty per cent. of the amount which will be due upon the delivery of the goods which are now actually in transitu.' This was the reverse of an advance of the public money.

The court assert that the acceptances were not authorized by the decisions of the Supreme Court. Yet the power is recognized in many decisions, and in The United States v. Bank of the Metropolis, at least, it is directly and positively affirmed.

The authority of the secretary to give these acceptances, is proved beyond a doubt, unless the practice of eighty years, with the sanction of Congress and the express adjudication of this court, is to be disregarded. It is a curious fact, that the Court of Claims in the case of Pierce, deny the authority of a secretary to accept bills of exchange, and accompany that denial with an assertion that the practice does not exist; while in the other case they admit that 'it is and has been the practice of heads of departments to accept drafts or bills of exchange for the transmission of funds to disbursing officers, or for the payment of those serving at distant stations, or for services rendered.' This last statement is true. Being true, it shows the existence of the power in a secretary to bind the United States in that way.

The Equities.-So far as regards these, the defence is utterly naked. All the facts found by the court show that there was no fraud or collusion between the drawers and Floyd, nothing done and nothing intended except what was right and proper.

In United States v. Reeside, tried before the late Mr. Justice Baldwin, a case very similar to this, though the acceptance there was by the Postmaster-General, he charged the jury thus:

title: The Floyd Acceptances


text: Talk:The Floyd Acceptances

title: Talk:The Floyd Acceptances