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Mutual Insurance Company v. Tweed/Opinion of the Court

There is, in this case, as presented by the transcript, nothing which a writ of error can bring here for review tested by the rules of the common law.

The distinction between law and equity prevails in the Federal courts sitting in Louisiana in the modes of proceeding, notwithstanding the Civil Code, which governs the practice as well as the rights of parties in the State courts. On account of the peculiarity in practice in that State, it has been decided in several cases coming from the State courts of Louisiana to this court by writ of error, that we would regard the statements of fact found in the opinions of the court as part of the record, where they were in themselves sufficient and otherwise unobjectionable. And perhaps this may in practice have been extended to cases from the Federal courts of that district. But in regard to the latter, we are not now at liberty to do so. The act of March 3d, 1865, by its fourth section provides a clear and simple mode by which parties who submit cases to the court, without the intervention of a jury, may have the rulings of the court reviewed here, and also prescribes what may be reviewed in such cases. This statute, which is but a reproduction of the system in practice in many of the States, is as binding on the Federal courts sitting in Louisiana as elsewhere, and we cannot disregard it.

We are asked in the present case to accept the opinion of the court below, as a sufficient finding of the facts within the statute, and within the general rule on this subject. But with no aid outside the record we cannot do this. The opinion only recites some parts of the testimony by way of comment in support of the judgment, and is liable to the objection often referred to in this court, that it states the evidence and not the facts as found from that evidence. Besides, it does not profess to be a statement of facts, but is very correctly called in the transcript, 'reasons for judgment.'

But the counsel for both parties in this court have agreed to certain parts of that opinion as containing the material facts of the case, and to treat them here as facts found by the court; and inasmuch as they could have made such an agreement in the court below, we have concluded to act upon it here as if it had been so made.

Upon an examination of the facts thus stated, and placing upon them that construction most favorable to the judgment of the court, we are of opinion that it cannot be sustained.

The only question to be decided in the case is, whether the fire which destroyed plaintiff's cotton, happened or took place by means of the explosion; for if it did, the defendant is not liable by the express terms of the contract.

That the explosion was in some sense the cause of the fire is not denied, but it is claimed that its relation was too remote to bring the case within the exception of the policy. And we have had cited to us a general review of the doctrine of proximate and remote causes as it has arisen and been decided in the courts in a great variety of cases. It would be an unprofitable labor to enter into an examination of these cases. If we could deduce from them the best possible expression of the rule, it would remain after all to decide each case largely upon the special facts belonging to it, and often upon the very nicest discriminations.

One of the most valuable of the criteria furnished us by these authorities, is to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote.

In the present case we think there is no such new cause. The explosion undoubtedly produced or set in operation the fire which burned the plaintiff's cotton. The fact that it was carried to the cotton by first burning another building supplies no new force or power which caused the burning. Nor can the accidental circumstance that the wind was blowing in a direction to favor the progress of the fire towards the warehouse be considered a new cause. That may have been the usual course of the breeze in that neighborhood. Its force may have been trifling. Its influence in producing the fire in the Alabama Warehouse was too slight to be substituted for the explosion as the cause of the fire.

But there are other causes of fire mentioned in the exempting clause, and they throw light on the intent of the parties in reference to this one. If the fire had taken place by means of invasion, riot, insurrection, or civil commotion, earthquake, or hurricane, and by either of these means the Marshall Warehouse had been first fired, and the fire had extended, as we have shown it did, to the Alabama Warehouse, would the insurance company have been liable?

Could it be held as necessary to exemption that the persons engaged in riot or invasion must have actually placed the torch to the building insured, and that in such case if half the town had been burned down the company would have been liable for all the buildings insured, except the one first fired? Or if a hurricane or earthquake had started the fire, is the exemption limited in the same manner?

These propositions cannot be sustained, and in establishing a principle applicable to fire originating by explosion, we must find one which is equally applicable under like circumstances to the other causes embraced in the same clause.

Without commenting further, we are clearly of opinion that the explosion was the cause of the fire in this case, within the meaning of the policy, and that the judgment of the Circuit Court must be

REVERSED AND A NEW TRIAL GRANTED.


text: Talk:Mutual Insurance Company v. Tweed/Opinion of the Court

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


text:
The China

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

The pilot act of New York, having provided for the education and licensing of a body of pilots, enacts that all masters of foreign vessels, bound to or from the port of New York, 'shall take a licensed pilot, or, in case of refusal to take such pilot, shall pay pilotage as if one had been employed.' It enacts, further, that any person not licensed as a pilot, who shall attempt to pilot a vessel bound as aforesaid, 'shall be deemed guilty of a misdemeanor, and be punished by a fine not exceeding $100; OR, imprisonment not exceeding sixty days. And all persons employing a person to act as pilot, not holding a license, shall forfeit and pay to the board of commissioners of pilots the sum of $100.' The pilot first offering his services to a vessel inward bound is entitled to pilot her in, and when she goes out has the right, by port rules, to pilot her out.

This pilot act of New York, it may be observed-differing from certain acts of Great Britain, known as the 'General Piot Acts,' though agreeing with others, sometimes called local pilot acts, to wit, the Liverpool pilot act and the Newcastle pilot act, and also in its main features with a Pennsylvania pilot act (though this inflicts no penalty of imprisonment, and provides only for a money fine of half pilotage, in case of refusal)-does not contain any provision to the effect that the owner or master of any ship shall not be liable for any loss or damage occasioned by the neglect, incompetency, or default of any licensed pilot.

With the pilot act of New York, above set forth, in force, the steamer China, a foreign vessel bound from the port of New York, and being then in pilot waters, and in charge of a licensed pilot of that port, ran into the Kentucky, a vessel of the United States, and sunk her. The collision was occasioned by gross fault of the licensed pilot then in charge of the China. The owners of the Kentucky accordingly libelled the offending vessel in the District Court of New York. Her owners set up for defence, that at the time of the collision she was in charge of a pilot duly licensed by the State of New York; that the said pilot was taken in conformity with the laws of that State; that he directed all the manoeuvres of the steamer which preceded the collision, and that the same was not in consequence of any negligence of her officers or crew.

The case thus presented the question whether a vessel, in charge of a licensed pilot, whom the statutes of the State governing the port whence she sailed, enacted positively that the vessel should take aboard under penalties named, was liable in rem for a tort committed by her, the result wholly of this pilot's negligence.

The District Court held that she was, and the Circuit Court having affirmed the decree, the question was now here on appeal.

Mr. D. D. Lord, for the owners of the China, appellants, contended that the pilot act of New York was imperative. The China was compelled to take a licensed pilot, and had not even a right to choose from the body. If this was so, the conclusion which the appellants sought to establish followed; for nothing could be more unjust than for judicial law to hold men responsible for the consequences of acts which statute law compelled them to perform, and for the nonperformance of which, if they had not performed them, the judicial law itself would have fined or imprisoned them.

The fact that there was no 'exemption' clause in the New York statute was not important. That clause in the general pilot acts of Great Britain only gave words and form to a principle resulting already from previous requirements, the principle being, that the owners of the ship having been compelled to surrender her to an agent of the law, in whose selection they had no voice, and over whom, when put in charge, they had no power in any ordinary case, they should not be held responsible for his mismanagement; a mismanagement which it was reasonable to infer would not have occurred had they selected their own agent.

These views are supported by English cases which overrule other ones, perhaps, not consistent with our position. The American cases do not conflict with it. They all arose from the acts of pilots not taken by compulsion of law. In The Creole, decided by Mr. Justice Grier, the strongest case against us, it was held expressly that the statute (which provided only for a money fine of half pilotage in case of refusal to take a pilot), was not compulsory.

Mr. Evarts, contra:

1. The theory of the specific responsibility of the offending vessel to make good the injury which her improper navigation has inflicted upon an innocent sufferer proceeds upon reasons, both of justice and of policy, which exclude the protection against such responsibility asserted on the other side. This theory treats the faults of conduct in the vessel's navigation as imputable to the vessel itself, and discards as immaterial all considerations touching the adjustment among the navigators, or between them and the owners, of the personal fault or personal responsibility of the misgovernment of the vessel. It also gives to the sufferer the security of redress which the vessel itself, in its value and its subjection to judicial recourse, furnishes, as contrasted with the contingencies of personal sufficiency or personal accessibiity of the individuals in fault. Accordingly, in practical execution of this theory, the very blow which inflicts the culpable injury upon the innocent vessel, impresses in her favor a lien of indemnity upon the offending vessel. The proceeding in rem of the admiralty is but a judicial consummation of this lien, and requires for its support nothing but proof of such fault of the vessel as, by the rules of maritime law, raises the lien. To displace this lien, and defeat this recourse in rem, and thus reduce the sufferer to recourse against the individual in fault, is, in effect, to supplant the admiralty jurisprudence and the admiralty procedure, and overthrow the reasons of justice and policy upon which they are built up. Such consequences can be assigned only to legislation of paramount authority over the jurisprudence and the jurisdiction.

2. The collision between the Kentucky, a vessel of the United States, and the China, a foreign steamer, having occurred upon the high seas, the municipal legislation of the State of New York is inadequate to the authority imputed to it, in derogation of the admiralty jurisdiction or the principles of its administration. The foreign commerce of the United States cannot be withdrawn by State legislation from the protection of the admiratly jurisdiction conferred upon the Federal judiciary, in plenary and exclusive terms, by the Constitution.

3. The pilotage regulations of New York are simply in support of the emoluments of the pilot service, provided by the State, in aid of the commerce of its ports.

4. The British statutes have made determinate and peremptory provisions, both of compulsion upon the vessel to employ the pilot and of exemption from responsibility while directed by him.

5. But the doctrine of the British Admiralty Court, that the enjoining by statute of the taking of a pilot, and, in case of refusal, requiring the payment of pilotage dues, amounts to a compulsion to take a pilot, and exempts the ship from responsibility while navigated under his charge, has never been followed in this country. It seems never to have found favor with Sir William Scott. And the whole doctrine seems to be regarded with great distrust, notwithstanding the policy has been adopted in the statutes. The American cases are of uniform tenor, and the whole subject has been recently reviewed, and the doctrine of continued liability, notwithstanding the pilot regulations of the statutes, firmly established by Mr. Justice Grier in an important case in the Pennsylvania circuit.

Mr. Justice SWAYNE delivered the opinion of the court.

title: The China


text: Talk:The China

title: Talk:The China


text:
The China/Opinion of the Court

This is a case arising out of a collision between the steamship China, a British vessel, then leaving the port of New York for Liverpool, and the brig Kentucky, then on a voyage from Cardenas to New York. The facts are few and undisputed. The collision occurred on the 15th of July, 1863, a short distance outside of Sandy Hook. The brig was sunk. The steamship was wholly in fault. It was not alleged, in the argument here for the appellants, that there was either fault or error on the part of the brig. The case turns upon the effect to be given to the statute of New York, of the 3d of April, 1857. At the time of the collision the steamship was within the pilot waters of the port of New York, and was in charge of a pilot, licensed under this act, and taken by the master pursuant to its provisions. The pilot's orders were obeyed, and the catastrophe was entirely the result of his gross and culpable mismanagement. No question was made in the argument, upon the subject; the evidence is too clear to admit of any. These are all the facts material to be considered.

The questions with which we have to deal, are questions of law. No others arise in the case.

It is insisted by the appellants that the statute referred to compelled the master of the steamship to take the pilot, and that they are therefore not liable for the results of his misconduct.

British adjudications are relied upon in support of both these propositions. In order to appreciate these authorities, the British pilot acts must be understood. They are the 52 George III, ch. 30; the 6 George IV, ch. 125; the Shipping Act of the 17 and 18 Victoria, ch. 104; the Liverpool Pilot Act of 37 George III, ch. 789, and the Newcastle Pilot Act of the 41 George III, ch. 86. The three first mentioned contain equivalent provisions. The same remark applies to the two latter. The former all contain a clause to the effect that the 'owner or master of any ship shall not be answerable for any loss or damage occasioned by the neglect, default, incompetency, or incapacity of any licensed pilot.' The latter contain a system of local pilot regulations, but have no such provision. They require that a pilot shall be taken, and if not taken, that pilotage shall, nevertheless, be paid. In these respects, and in most others, they are substantially the same with the statute of New York.

1. Was the steamship compelled to take the pilot?

In the case of The Maria, in which the Liverpool Pilot Act was largely considered, Dr. Lushington said: 'It never was decided that a clause requiring a pilot to be taken on board, or if not taken, the pilotage to be paid, was not compulsory. . . .. Now the Liverpool Pilot Act provides for three cases: 1st. The case of vessels homeward bound; 2d. Of vessels outward bound; and lastly, of vessels lying at anchorage; and with reference to homeward bound vessels, it is provided in the twenty-fourth section of the act, that if the master refuses to take a pilot on board, he is liable to the payment of pilotage. There is, therefore, this distinction in the two cases: that in the case of a vessel at anchor, the taking of the pilot on board is perfectly optional with the master, but in the case of a homeward bound vessel, it is enjoined upon him by the provisions of the act, and if he refuses so to do, he is rendered liable to the payment of the pilotage dues. This, in my opinion, amounts to compulsion to take such pilot on board, and it was so held by the learned judges by whom the case of Sidebotham v. Caruthers was decided. What says Mr. Justice Le Blanc? 'It appears that the master was compellable to take the pilot on board, and it was in consequence of his misconduct that the vessel was placed in such a situation, that when the water left her, she fell upon her side, and thus the damage happened.' Without going further into the case, it is sufficient to observe, that Lord Ellenborough and Mr. Justice Bailey were of the same opinion, that the master was compellable to take the pilot on board.'

Other authorities to the same effect might be referred to, but it is deemed unnecessary. The one we have cited is sufficient.

Suppose the New York statute, in the event of a refusal to take a pilot on board, instead of full pilotage had given the vessel or cargo to the pilot. Whether the amount to be paid were large or small, it would operate in the same way, and involve the same principle. The difference would be not in the fact but in the degree of compulsion. If it be said the master had the option to pay the pilotage, and proceed withou the pilot, the answer is, that he would have had the same option if the consequence had been fine and imprisonment, or the visiting upon him of any other penal sanction. In each case there would be compulsion, measured in its force by the means prescribed to make it effectual. A duty is enjoined, and an obligation is imposed. The alternatives presented are to receive the pilot; or to refuse and take the consequences.

In this connection it is proper to consider the particular provisions of the New York statute. It enacts that the master 'shall take a licensed pilot;' that in case of refusal, pilotage shall be paid, and that it shall be paid to the first pilot offering his services. Any person not holding a license under this act, or the law of New Jersey, who shall pilot or offer to pilot any vessel to or from the port of New York, by way of Sandy Hook, except such as are exempt by virtue of this act; or any master on board a steamtug who shall tow such vessel without a licensed pilot on board, shall be punished by a fine not exceeding one hundred dollars, or imprisonment not exceeding sixty days; and all persons employing a person not licensed under this act, or the laws of New Jersey, are subjected to a penalty of one hundred dollars.

It was contended by the counsel for the appellee, that if the master had chosen to proceed without a pilot, he would have been liable only to the payment of pilotage; and that none of the other penal provisions of the statute, according to its true meaning, apply in such a case. We have not found it necessary to examine this subject. Giving to the statute either construction, it seems to us clear, in the light of both reason and authority, that the pilot was taken by the steamship upon compulsion.

2. This brings us to the examination of the second proposition. Does the fact that the law compelled the master to take the pilot, exonerate the vessel from liability?

The immunity of the wrongdoing vessel when the pilot is in charge, and alone in fault, is now well settled in English jurisprudence, both in the Admiralty Court and in the courts of common law. The rule must necessarily be the same in both. In such cases the liability of the ship and of the owner are convertible terms. The ship is not liable if the owners are not; and no responsibility can attach to the owners, if the ship is not liable to be proceeded against.

Some of the leading English cases will be adverted to, according to the order of time in which they were determined.

The case of The Neptune the Second, was decided two years after the passage of the statute of 52 George III. In that case Sir William Scott said: 'If the mere fact of having a pilot on board and acting in obedience to his directions. would discharge the owner from responsibility, I am of opinion that they would stand excused in the present case. I think it is sufficiently established in proof, that the master acted throughout in conformity to the directions of the pilot. But this I conceive is not the true rule of law. The parties who suffer are entitled to have their remedy against the vessel that occasioned the damage, and are not under the necessity of looking to the pilot, from whom redress is not always to be had, for compensation. The owners are responsible to the injured party for the acts of the pilot, and they must be left to recover the amount, as well as they can, against him. It cannot be maintained that the circumstance of having a pilot on board, and acting in conformity to his directions, can operate as a discharge of the responsibility of the owners.' The statute is not adverted to in the case.

In The Attorney-General v. Case, it was held by the Court of Exchequer that the case was to be determined under the Liverpool Pilot Act, and that the statute containing the clause of exemption did not apply; that the vessel being at anchor, it was optional with the master to take a pilot or not, and that the vessel was therefore liable. It was strongly intimated that if she had been under way, and the pilot had been taken under the Liverpool Act, there would have been no such compulsion as, upon general principles, would have exonerated the vessel from responsibility.

In Caruthers v. Sidebotham, the Court of King's Bench held that the pilot was compulsorily taken, and that, independently of the statute giving the exemption, the vessel, upon general principles of municipal law, was not liable. The Attorney-General v. Case was referred to in the argument. The ruling of the court was in direct antagonism to the intimations in that case.

The Girolamo was decided by Sir John Nichol. He held, among other things, that the provision in the 6 George IV, that 'the act should not affect or impair the jurisdiction of the High Court of Admiralty,' limited the operation of the clause of exemption to proceedings in personam in the common law courts, and left the admiralty jurisdiction to be exercised in all respects as if the exemption in the statute had not been enacted. The judgment is a very elaborate one. The vessel was held liable, although in charge of a licensed pilot at the time of the collision.

This case was followed by The Baron Holberg, The Gladiator, and The Eolides -decided by the same judge in the same way.

So the English law stood until the decision by Dr. Lushington in the case of The Protector. In that case the subject was examined with great care and fulness of research. The learned judge expressed the opinion that Sir William Scott had decided the case of The Neptune the Second in entire ignorance of the statute of 52 George III, ch. 39, and that the case, therefore, was not authority. He overruled the judgment of Sir John Nichol as to the effect of the jurisdiction clause of the statute, and held the true rule to be, that the statute took away the responsibility of the vessel whenever the accident was imputable to the fault of the pilot alone. The court found the fact so to be, and upon that ground dismissed the owner of the Protector from the suit.

In The Maria the subject was again ably examined by the same admiralty judge. It was held that under the Newcastle Pilot Act the taking of a pilot by a foreign ship was compulsory, and that if damage occurred to another vessel by his default, the vessel which had taken him was not liable, both upon general principles and by virtue of the act of 5 George IV, ch. 55. The rule laid down by the Court of King's Bench in Caruthers v. Sidebotham, was recognized and affirmed.

These judgments have stood unquestioned down to the present time. There have been numerous adjudications settling the construction of the statutory provision that the vessel shall be exonerated where the pilot is in fault.

The following propositions may be deduced from them:

The statute giving the immunity where a licensed pilot is employed, abridges the natural right of the injured party to compensation, and is therefore to be construed strictly.

The exemption applies only where the pilot is actually in charge of the vessel, and solely in fault.

If there be anything which concurred with the fault of the pilot, in producing the accident, the exemption does not apply, and the vessel, master, and owners are liable.

The colliding vessel is in all cases prim a facie responsible.

The burden of proof rests upon the party claiming the benefit of the exemption. He must show affirmatively that the pilot was in fault, and that there was no fault on the part of the officers or crew, 'which might have been in any degree conducive to the damage.'

The last in the series of these authorities, to be considered, is The Halley. The owners of a foreign ship sued the owners of an English ship in the British Court of Admiralty, claiming damages for a collision in Belgian waters. The defendants pleaded that by the Belgian law pilotage was compulsory. The plaintiffs replied, that by the same law the wrongdoing vessel was liable for the damages. The case turned upon the sufficiency of the latter proposition as an answer to the former.

Sir Robert Phillimore, following the case of Smith v. Condry, decided by this court, and other authorities to which he referred, held that the rights of the parties were governed by the law of the place of the tort. In the course of his learned and elaborate opinion, he said:

'The English legislature has thought it expedient that only certain persons, under certain restrictions, shall be allowed to act as pilots in British waters; and that it shall be compulsory upon all masters of ships to place the navigation of their vessel under the control of one of these licensed pilots. And the common law of England has ruled, that in such cases the natural responsibility of the owner of the vessel, for injuries done to the property or persons of others, by the unskilful navigation of that vessel, shall cease, and be transferred to the pilot. This law holds, that the responsibility of the owner, for the acts of his servant, is founded upon the presumption that the owner chooses his servant, and gives him orders, which he is bound to obey; and that the acts of the servant, so far as the interests of third parties are concerned, must always be considered the acts of the owner. But no such presumptions, it is said, can exist in the case of compulsory pilotage, in which the State forces its own servant upon the owner, and, indeed, in some respects reverses the usual order of things on board ship, by rendering it incumbent on the master to obey the order of the pilot. But the considerations of domestic policy, which have created this peculiar law, are not founded on principles of universal law or natural justice. They are considerations of British policy, which apply to British waters and territory; but not Flushing waters, in which this collision took place. . . .. Lord Stowell's mind, furnished as it was with the principles of jurisprudence, rejected the argument for the immunity of the wrongdoing vessel. . . . I will frankly say, that it appears to me difficult to reconcile the claims of natural justice to the law which exempts the owner who has a licensed pilot on board, from all liabilities for the injuries done, by the bad navigation of the ship, to the property of an innocent owner. . . . No one acquainted with the working of this law, which exempts the wrongdoing vessel from liability in this court, can be ignorant that it is fruitful of injustice.'

This survey of the English adjudications warrants several observations.

Lord Stowell, overlooking the statute, refused to recognize the principle of exemption. He held the 'true rule of law' to be, that fault created liability, notwithstanding that the pilot was taken upon compulsion.

Sir John Nichol made a persistent effort to get rid of the statute by giving the jurisdiction clause a construction which annulled the operation of the exemption in the Admiralty Court.

Dr. Lushington and the Privy Council have held that the exemption clause is to be strictly construed, and have given it a construction so narrow as greatly to limit its operation and impair its efficacy; while Sir Robert Phillimore pronounced its working in the Admiralty Court 'fruitful of injustice,' and more than intimates that it is contrary to the fundamental principles of natural right.

These results furnish little inducements to us to establish the principle in our jurisprudence.

The question is not a new one in this country. It arose as early as the year 1800, in Bussy v. Donaldson. In that case the court said:

'The legislative regulations were not intended to alter or obliterate the principles of law, by which the owner of a vessel was previously responsible for the conduct of the pilot, but to secure in favor of every person-strangers as well as residents trading to our port, a class of experienced, skilful, and honest mariners, to navigate their vessels safely up the bay and the river Delaware. The mere right of choice is, indeed, one, but not the only reason why the law in general makes the master responsible for the acts of his servant-and, in many cases where the responsibillty is allowed to exist, the servant may not in fact be the choice of the master.'

Williamson v. Pierce, Yates v. Brown, and Denison v. Seymour, involved the same principle, and were decided in the same way.

In the case of The Creole, decided by Mr. Justice Grier, on the circuit, in the year 1853, the subject underwent a learned and thorough examination, both by counsel and the court. The result was the same as in Bussy v. Donaldson. It appears by that case, that Mr. Justice Wayne had ruled the point in the same way in his circuit. No American adjudication to the contrary has been brought to our attention.

The question is now, for the first time, presented in this court.

The New York statute creates a system of pilotage regulations. It does not attempt, in terms, to give immunity to a wrongdoing vessel. Such a provision in a State law would present an important question, which, in this case, it is not necessary to consider.

The argument for the appellants proceeds upon the general legal principle that one shall not be liable for the tort of another imposed upon him by the law, and who is, therefore, not his servant or agent.

The reasoning by which the application of this principle to the case before us is attempted to be maintained, is specious rather than solid. It is necessary that both outward and inward bound vessels, of the classes designated in the statute, should have pilots possessing full knowledge of the pilot grounds over which they are to be conducted. The statute seeks to supply this want, and to prevent, as far as possible, the evils likely to follow from ignorance or mistake as to the qualifications of those to be employed, by providing a body of trained and skilful seamen, at all times ready for the service, holding out to them sufficient inducements to prepare themselves for the discharge of their duties, and to pursue a business attended with so much of peril and hardship. The services of the pilot are as much for the benefit of the vessel and cargo as those of the captain and crew. His compensation comes from the same source as theirs. Like them he serves the owner and is paid by the owner. If there be any default on his part, the owner has the same remedies against him as against other delinquents on board. The difference between his relations and those of the master is one rather of form than substance. It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel. He may exercise it or not, according to his discretion.

The maritime law as to the position and powers of the master, and the responsibility of the vessel, is not derived from the civil law of master and servant, nor from the common law. It had its source in the commercial usages and jurisprudence of the middle ages. Originally, the primary liability was upon the vessel, and that of the owner was not personal, but merely incidental to his ownership, from which he was discharged either by the loss of the vessel or by abandoning it to the creditors. But while the law limited the creditor to this part of the owner's property, it gave him a lien or privilege against it in preference to other creditors.

The maxim of the civil law-sic utere tuo ut non laedas alienum-may, however, be fitly applied in such cases as the one before us. The remedy of the damaged vessel, if confined to the culpable pilot, would frequently be a mere delusion. He would often be unable to respond by payment-especially if the amount recovered were large. Thus, where the injury was the greatest, there would be the greatest danger of a failure of justice. According to the admiralty law, the collision impresses upon the wrongdoing vessel a maritime lien. This the vessel carries with it into whosesoever hands it may come. It is inchoate at the moment of the wrong, and must be perfected by subsequent proceedings. Unlike a common-law lien, possession is not necessary to its validity. It is rather in the nature of the hypothecation of the civil law. It is not indelible, but may be lost by laches or other circumstances.

The proposition of the appellants would blot out this important feature of the maritime code, and greatly impair the efficacy of the system. The appellees are seeking the fruit of their lien.

All port regulations are compulsory. The provisions of the statute of New York are a part of the series within that category. A damaging vessel is no more excused because she was compelled to obey one than another. The only question in all such cases is, was she in fault? The appellants were bound to know the law. They cannot plead ignorance. The law of the place makes them liable. This ship was brought voluntarily within the sphere of its operation, and they cannot complain because it throws the loss upon them rather than upon the owners of the innocent vessel. We think the rule which works this result is a wise and salutary one, and we feel no disposition to disturb it.

The steamship is a foreign vessel. We have, therefore, considered the learned and able argument of the counsel for the appellants with more care than we should otherwise have deemed necessary. Maritime jurisprudence is a part of the law of nations. We have been impressed with the importance of its right administration in this case.

DECREE AFFIRMED.

title: The China/Opinion of the Court


text: Talk:The China/Opinion of the Court

title: Talk:The China/Opinion of the Court


text:
Lane County v. Oregon

ERROR to the Supreme Court of Oregon. The case was this:

Congress, February, 1862, authorized the issue of $150,000,000 in notes of the United States, and enacted that they should 'be receivable in payment of all taxes, internal duties, levies, debts, and demands due to the United States, except duties on imports; and of all claims and demands of any kind whatever against the United States, except interest on bonds and notes, which shall be paid in coin; and shall also be lawful money and legal tender in payment of all debts, public and private, within the United States, except duties on imports.' A subsequent act, authorizing a further issue, contained an enactment very similar, as to the legal characteristics of the notes, when issued. A third act, authorizing a yet further issue, enacted simply that they should be lawful money or a legal tender. Under these three acts, a large amount of notes of the United States, which circulated as money, were issued.

Subsequently to this, the legislature of Oregon passed a statute, enacting that 'the sheriff shall pay over to the county treasurer, the full amount of the State and school taxes, in gold and silver coin;' and that 'the several county treasurers shall pay over to the State treasurer the State tax in gold and silver coin.'

In this condition of statute law, Federal and State, the State of Oregon, in April, 1865, filed a complaint against the County of Lane, in the Circuit Court of the State for that county, to recover $5460.96, in gold and silver coin, which sum was alleged to have become due, as State revenue, from the county to the State, on the first Monday of February, 1864.

To this complaint an answer was put in by the county, alleging a tender of the amount claimed by the State, made on the 23d day of January, 1864, to the State treasurer, at his office, in United States notes, and averring that the lawful money, so tendered and offered, was, in truth and fact, part of the first moneys collected and paid into the county treasury, after the assessment of taxes for the year 1862.

To this answer there was a demurrer, which was sustained by the Circuit Court, and judgment was given that the plaintiff recover of the defendant the sum claimed, in gold and silver coin, with costs of suit. This judgment was affirmed, upon writ of error, by the Supreme Court of the State.

The case was now brought here by writ of error to that court.

Mr. Williams, for Lane County, plaintiff in error, laid down and pressed upon the attention of the court, seeking to maintain them by argument and authority, these two propositions:

1st. That the laws of Oregon did not require the collection, in coin, of the taxes in question, and that the treasurer of the county could not be required to pay the treasurer of the State any other money than that in which the taxes were actually collected.

2d. That the tender of the amount of taxes made to the treasurer of the State, by the treasurer of the county, in United States notes, was warranted by the acts of Congress authorizing the issue of these notes, and that the law of the State, if it required collection and payment in coin, was repugnant to these acts, and therefore void.

Mr. Johnson (a brief of Mr. Mallory being filed), contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Lane County v. Oregon


text: Talk:Lane County v. Oregon

title: Talk:Lane County v. Oregon


text:
Lane County v. Oregon/Opinion of the Court

Two propositions have been pressed upon our attention, ably and earnestly, in behalf of the plaintiff in error.

The first of them will be first considered.

The answer avers, substantially, that the money tendered was part of the first moneys collected in Lane County after the assessment of 1863, and the demurrer admits the truth of the answer.

The fact therefore may be taken as established, that the taxes for that year, in Lane County, were collected in United States notes.

But was this in conformity with the laws of Oregon?

In this court the construction given by the State courts to the laws of a State, relating to loca affairs, is uniformly received as the true construction; and the question first stated must have been passed upon in reaching a conclusion upon the demurrer, both by the Circuit Court for the county and by the Supreme Court of the State. Both courts must have held that the statutes of Oregon, either directly or by clear implication, required the collection of taxes in gold and silver coin.

Nor do we perceive anything strained or unreasonable in this construction. The laws of Oregon, as quoted in the brief for the State, provided that 'the sheriff shall pay over to the county treasurer the full amount of the State and school taxes, in gold and silver coin;' and that 'the several county treasurers shall pay over to the State treasurer the State tax, in gold and silver coin.'

It is certainly a legitimate, if not a necessary inference, that these taxes were required to be collected in coin. Nothing short of express words would warrant us in saying that the laws authorized collection in one description of money from the people, and required payment over of the same taxes into the county and State treasuries in another.

If, in our judgment, however, this point were otherwise, we should still be bound by the soundest principles of judicial administration, and by a long train of decisions in this court, to regard the judgment of the Supreme Court of Oregon, so far as it depends on the right construction of the statutes of that State, as free from error.

The second proposition remains to be examined, and this inquiry brings us to the consideration of the acts of Congress, authorizing the issue of the notes in which the tender was made.

The first of these was the act of February 25, 1862, which authorized the Secretary of the Treasury to issue, on the credit of the United States, one hundred and fifty millions of dollars in United States notes, and provided that these notes 'shall be receivable in payment of all taxes, internal duties, excises, debts and demands due to the United States, except duties on imports, and of all claims and demands against the United States of every kind whatsoever, except interest on bonds and notes, which shall be paid in coin; and shall also be lawful money and legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest as aforesaid.'

The second act contains a provision nearly in the same words with that just recited, and under these two acts two-thirds of the entire issue was authorized. It is unnecessary, therefore, to refer to the third act, by which the notes to be issued under it are not in terms made receivable and payable, but are simply declared to be lawful money and a legal tender.

In the first act no emission was authorized of any notes under five dollars, nor in the other two of any under one dollar. The notes, authorized by different statutes, for parts of a dollar, were never declared to be lawful money or a legal tender.

It is obvious, therefore, that a legal tender in United States notes of the precise amount of taxes admitted to be due to the State could not be made. Coin was then, and is now, the only legal tender for debts less than one dollar. In the view which we take of this case, this is not important. It is mentioned only to show that the general words 'all debts' were not intended to be taken in a sense absolutely literal.

We proceed then to inquire whether, upon a sound construction of the acts, taxes imposed by a State government upon the people of the State, are debts within their true meaning.

In examining this question it will be proper to give some attention to the constitution of the States and to their relations as United States.

The people of the United States constitute one nation, under one government, and this government, within the scope of the powers with which it is invested, is supreme. On the other hand, the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence. The States disunited might continue to exist. Without the States in union there could be no such political body as the United States.

Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States. But in may articles of the Constitution the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated to the national government are reserved. The general condition was well stated by Mr. Madison in the Federalist, thus: 'The Federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designated for different purposes.'

Now, to the existence of the States, themselves necessary to the existence of the United States, the power of taxation is indispensable. It is an essential function of government. It was exercised by the Colonies; and when the Colonies became State, both before and after the formation of the Confederation, it was exercised by the new governments. Under the Articles of Confederation the government of the United States was limited in the exercise of this power to requisitions upon the States, while the whole power of direct and indirect taxation of persons and property, whether by taxes on polls, or duties on imports, or duties on internal production, manufacture, or use, was acknowledged to beiong exclusively to the States, without any other limitation than that of non-interference with certain treaties made by Congress. The Constitution, it is true, greatly changed this condition of things. It gave the power to tax, both directly and indirectly, to the national government, and, subject to the one prohibition of any tax upon exports and to the conditions of uniformity in respect to indirect and of proportion in respect to direct taxes, the power was given without any express reservation. On the other hand, no power to tax exports, or imports except for a single purpose and to an insignificant extent, or to lay any duty on tonnage, was permitted to the States. In respect, however, to property, business, and persons, within their respective limits, their power of taxation remained and remains entire. It is indeed a concurrent power, and in the case of a tax on the same subject by both governments, the claim of the United States, as the supreme authority, must be preferred; but with this qualification it is absolute. The extent to which it shall be exercised, the subjects upon which it shall be exercised, and the mode in which it shall be exercised, are all equally within the discretion of the legislatures to which the States commit the exercise of the power. That discretion is restrained only by the will of the people expressed in the State constitutions or through elections, and by the condition that it must not be so used as to burden or embarrass the operations of the national government. There is nothing in the Constitution which contemplates or authorizes any direct abridgment of this power by national legislation. To the extent just indicated it is an complete in the States as the like power, within the limits of the Constitution, is complete in Congress. If, therefore, the condition of any State, in the judgment of its legislature, requires the collection of taxes in kind, that is to say, by the delivery to the proper officers of a certain proportion of products, or in gold and silver bullion, or in gold and silver coin, it is not easy to see upon what principle the national legislature can interfere with the exercise, to that end, of this power, original in the States, and never as yet surrendered. If this be so, it is, certainly, a reasonable conclusion that Congress did not intend, by the general terms of the currency acts, to restrain the exercise of this power in the manner shown by the statutes of Oregon.

Other considerations strengthen this conclusion. It cannot not escape observation that the provision intended to give currency to the United States notes in the two acts of 1862, consists of two quite distinguishable clauses. The first of these clauses makes those notes receivable in payment of all dues to the Unites States, and payable in satisfaction of all demands against the United States, with specified exceptions; the second makes them lawful money, and a legal tender in payment of debts, public and private, within the United States, with the same exceptions.

It seems quite probable that the first clause only was in the original bill, and that the second was afterwards introduced during its progress into an act. However this may be, the fact that both clauses were made part of the act of February, and were retained in the act of July, 1862, indicates clearly enough the intention of Congress that both shall be construed together. Now, in the first clause, taxes are plainly distinguished, in enumeration, from debts; and it is not an unreasonable inference, that the word debts in the other clause was not intended to include taxes.

It must be observed that the first clause, which may be called the receivability and payability clause, imposes no restriction whatever upon the States in the collection of taxes. It makes the notes receivable for national taxes, but does not make them receivable for State taxes. On the contrary, the express reference to receivability by the national government, and the omission of all reference to receivability by the State governments, excludes the hypothesis of an intention on the part of Congress to compel the States to receive them as revenue.

And it must also be observed that any construction of the second, or, as it may well enough be called, legal-tender clause, that includes dues for taxes under the words debts, public and private, must deprive the first clause of all effect whatever. For if those words, rightly apprehended, include State taxes, they certainly include national taxes also; and if they include national taxes, the clause making them receivable for such taxes was wholly unnecessary and superfluous.

It is also proper to be observed, that a technical construction of the words in question might defeat the main purpose of the act, which, doubtless, was to provide a currency in which the receipts and payments incident to the exigencies of the then existing civil war might be made.

In his work on the Constitution, the late Mr. Justice Story, whose praise as a jurist is in all civilized lands, speaking of the clause in the Constitution giving to Congress the power to lay and collect taxes, says, of the theory which would limit the power to the object of paying the debts, that, thus limited, it would be only a power to provide for the payment of debts then existing. And certainly, if a narrow and limited interpretation would thus restrict the word debts in the Constitution, the same sort of interpretation would, in like manner, restrict the same word in the act. Such an interpretation needs only to be mentioned to be rejected. We refer to it only to show that a right construction must be sought through larger and less technical views. We may, then, safely decline either to limit the word debts to existing dues, or to extend its meaning so as to embrace all dues of whatever origin and description.

What then is its true sense? The most obvious, and, as it seems to us, the most rational answer to this question is, that Congress must have had in contemplation debts originating in contract or demands carried into judgment, and only debts of this character. This is the commonest and most natural use of the word. Some strain is felt upon the understanding when an attempt is made to extend it so as to include taxes imposed by legislative authority, and there should be no such strain in the interpretation of a law like this.

We are the more ready to adopt this view, because the greatest of English elementary writers upon law, when treating of debts in their various descriptions, gives no hint that taxes come within either; while American State courts, of the highest authority, have refused to treat liabilities for taxes as debts, in the ordinary sense of that word, for which actions of debt may be maintained.

The first of these cases was that of Pierce v. The City of Boston, 1842, in which the defendant attempted to set off against a demand of the plaintiff certain taxes due to the city. The statute allowed mutual debts to be set off, but the court disallowed the right to set off taxes. This case went, indeed, upon the construction of the statute of Massachusetts, and did not turn on the precise point before us; but the language of the court shows that taxes were not regarded as debts within the common understanding of the word.

The second case was that of Shaw v. Pickett, in which the Supreme Court of Vermont said, 'The assessment of taxes does not create a debt that can be enforced by suit, or upon which a promise to pay interest can be implied. It is a proceeding in invitum.'

The next case was that of the City of Camden v. Allen, 1857. That was an action of debt brought to recover a tax by the municipality to which it was due. The language of the Supreme Court of New Jersey was still more explicit: 'A tax, in its essential characteristics,' said the court, 'is not a debt nor in the nature of a debt. A tax is an impost levied by authority of government upon its citizens, or subjects, for the support of the State. It is not founded on contract or agreement. It operates in invitum. A debt is a sum of money due by certain and express agreement. It originates in and is founded upon contracts express or implied.'

These decisions were all made before the acts of 1862 were passed, and they may have had some influence upon the choice of the words used. Be this as it may, we all think that the interpretation which they sanction is well warranted. We cannot attribute to the legislature an intent to include taxes under the term debts without something more than appears in the acts to show that intention.

The Supreme Court of California, in 1862, had the construction of these acts under consideration in the case of Perry v. Washburn. The decisions which we have cited were referred to by Chief Justice Field, now holding a seat on this bench, and the very question we are now considering, 'What did Congress intend by the act?' was answered in these words: 'Upon this question we are clear that it only intended by the terms debts, public and private, such obligations for the payment of money as are founded upon contract.'

In whatever light, therefore, we consider this question, whether in the light of the conflict between the legislation of Congress and the taxing power of the States, to which the interpretation, insisted on in behalf of the County of Lane, would give occasion, or in the light of the language of the acts themselves, or in the light of the decisions to which we have referred, we find ourselves brought to the same conclusion, that the clause making the United States notes a legal tender for debts has no reference to taxes imposed by State authority, but relates only to debts in the ordinary sense of the word, arising out of simple contracts or contracts by specialty, which include judgments and recognizances.

Whether the word debts, as used in the act, includes obligations expressly made payable, or adjudged to be paid in coin, has been argued in another case. We express at present, no opinion on that question.

The judgment of the Supreme Court of Oregon must be

AFFIRMED.


text: Talk:Lane County v. Oregon/Opinion of the Court


text: 1911 Encyclopædia Britannica/Schelandre, Jean de


text:
Aurora City v. West

ERROR to the Circuit Court for Indiana; the case being this:

The charter of the city of Aurora authorized its council, whenever a majority of its qualified voters required it, to take stock in any chartered company for making 'roads' to that city, and to make and sell their bonds to pay for it. With this power the city, in 1852, issued $50,000 of bonds to the Ohio and Mississippi Railroad Company; a company whose charter authorized it to survey, locate, and construct a railroad 'on the most direct and practicable route' between Lawrenceburg on the Ohio and Vincennes on the Wabash. The bonds recited that they were issued in payment of a subscription to stock in the Ohio and Mississippi Railroad Company, made by the city by order of the common council, in pursuance of its charter.

The bonds all passed from the company to West & Torrence, and the interest, due January 1st, 1856, not being paid, these persons brought suit on them at May Term, 1856, in the Dearborn County Court of Indiana, for payment. The declaration alleged that the city, under the authority of its charter, subscribed for $50,000 of the stock of the company; that the company was chartered to construct, and was then constructing, a railroad to the said city; that a majority of the qualified voters had assented to the subscription; that the city issued and sold the bonds to raise the funds to pay for the stock, and that the plaintiffs purchased them.

The city pleaded: 1. That the location of the railroad was not established through the city till after the subscription. 2. That the company was not chartered to construct, and was not, at the date of the subscription, constructing a railroad to the city.

To the first plea the plaintiffs demurred, and the demurrer was sustained; and to the second they replied, that the company located their railroad through the city before the bonds were delivered.

The defendants demurred to the replication, but the court overruled the demurrer.

The concluding statement of the record was that 'the said city, not desiring to controvert the facts stated in said reply, but admitting the same,' judgment was rendered for the plaintiffs.

Other sets of coupons subsequently falling due, West & Torrence, at May Term, 1861, brought suit on them in the same Dearborn Court, on pleadings much the same as the other, and obtained judgment against the city. This judgment was reversed for error, in the Supreme Court of Indiana, and the cause remanded.

title: Aurora City v. West


text: Talk:Aurora City v. West

title: Talk:Aurora City v. West