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The Corsica/Opinion of the Court

The pleadings and evidence in the case show that the Corsica, having just steamed out from her dock, preparatory to her outward passage, had turned her stem southwardly, and was proceeding, at a distance of about three or four hundred yards from the line of the Jersey City wharves, straight down the river towards the Narrows. The evidence as to her speed is contradictory. Her master says about five or six knots an hour; the master of the America says eight or nine knots, and the pilot, seven or eight miles. The chief engineer of the Corsica says she was gradually increasing her speed, and had got up to fifteen revolutions per minute; that at full speed she made twenty-five revolutions and ten knots an hour. Fifteen revolutions would therefore make about six knots, which is equivalent to seven miles an hour. A number of vessels were at anchor on the westerly side of the river, and some to the east; amongst others two ships nearly opposite the Battery, one a little southerly of the other. Whilst the Corsica was thus starting on her course, the America came around the Battery from the East River, at a speed of about six miles an hour, passed between the two ships above mentioned, and directed her course across the river in a diagonal line, making for her wharf in Jersey City, where she was accustomed to take in coal and water. Her

course lay across that of the Corsica, and the men on the two vessel vessels each saw the approach of the other when they were about four hundred or five hundredyards apart.From the course the vessels were respectively pursuing, the one southerly, nearly in line with the river, and the other northwesterly, in a diagonal line, the Corsica was off the starboard bow of the America, and the latter was off the larboard bow of the Corsica. Both being steamers, and standing on an equal footing, they were subject to the following rule, adopted by Congress in the act of April 29th, 1864:

'If two ships under steam are crossing so as to involve risk of collision, the ship which has the other on her own starboard side shall keep out of the way of the other.'

This rule made it the duty of the America to keep out of the way of the Corsica; and, by implication, the corresponding and reciprocal duty of the Corsica to keep on her course. It can hardly be doubted from the evidence, taken together, that had the Corsica kept on her course, the collision would not have occurred. The diagrams furnished by the counsel for the appellants render this fact very clear and demonstrable. But, instead of doing this, the persons in charge of the Corsica, just before the collision occurred, ordered her helm hard a-starboard, and thus turned her right upon the America, which, as in duty bound, was backing out of her way. It is so apparent that this was the immediate cause of the disaster that it casts the burden of proof upon the appellants to show a sufficient cause in the conduct of the America to justify such a sudden change of course. We have carefully examined the testimony to see if anything of the kind was elicited, and have failed to find it. It is admitted by the pilot of the America that his first intention was to pass ahead of the Corsica; but seeing that it was risky, he took the more prudent course of stopping and backing. The master of the Corsica says, in effect, that the America had got right ahead of him, in his way, and he was obliged to turn to the left as the best means of avoiding or diminishing the danger. Now, the diagram of the courses of the two vessels shows that this could not have been so, until the Corsica had herself changed her course. And the master of the Corsica admits that instead of keeping her course, her helm was starboarded, and her course was altered two points, for the purpose of passing under the sterm of the America, soon after the latter vessel was discovered. This, if so, was the first error. It was the business of the Corsica, as we have seen, to have kept on her course. After this, perceiving the danger she had brought upon herself, her helm was again starboarded, and the collision ensued. According to the master of the Corsica's own account, therefore, the accident occurred in consequence of her assuming to perform the duty which devolved on the America under the Congressional rule above quoted.

It is also evident that the Corsica was under considerable headway when the collision occurred. The force of the blow proves this. The America did not contribute to the effect of the blow, for the weight of the evidence is, that she was backing away from the Corsica at the time. The fact is, that the latter vessel was under too much speed for the place she was in-a crowded harbor, spotted with vessels at anchor and in motion. This made her headway uncontrollable, and accounts for the fact that, although her officers tried to check her speed, they were only very partially successful.

We are satisfied that the decree of the Circuit Court was right, and ought to be

AFFIRMED.

title: The Corsica/Opinion of the Court


text: Talk:The Corsica/Opinion of the Court

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

title: Talk:The Corsica/Opinion of the Court


text:
City of Paris

THIS was an appeal in admiralty from the decree of the Circuit Court of the United States for the Southern District of New York; affirming a decree of the District Court on a libel in admiralty; the waters where the collision took place having been the very same as in the collision in the last case; those, namely, between Jersey City and the Battery at New York.

Mr. Justice SWAYNE stated the facts and delivered the opinion of the court.

title: City of Paris


text: Talk:City of Paris

title: Talk:City of Paris


text:
City of Paris/Opinion of the Court

The cause was one of collision. The vessels concerned were the schooner Percy Heilmar and the steamer City of Paris. The schooner was 78 feet in length; her tonnage, new measurement, was 107 tons; her carrying capacity was about 170 tons. The City of Paris was an iron screw steamer. She was 375 feet long, and 40 feet beam. Her register was 1669 tons, English measurement. Her engines were 600 horse power. The schooner was laden with coal, and was on a voyage from Phildelphia to Pawtucket, Rhode Island, by way of Long Island Sound.

The steamer was engaged in running between the ports of New York and Liverpool. The collision occurred on the morning of the 14th of April, 1866, below the Battery, in the North River. The schooner had arrived at the port of New York that morning. The tide being unfavorable for ascending the East River, she stood over towards Jersey City to find a suitable place to anchor, intending to wait there until the tide in the East River should be favorable. While proceeding to carry out this purpose, heading about west by north, with the wind free, the steamer ran into her, striking her on the starboard side, about the main chains. The blow was of such violence as to prostrate her mainmast and cut her nearly in two. As soon as she was struck the steamer put on steam and carried her forward to avoid raking, or being raked by other vessels, which the pilot of the steamer says 'would have done more damage than sinking a dozen schooners.' The schooner hung for a time on the steamer's bow. The pilot says: 'As soon as we got below, a little out of danger, a little room, then we stopped the steamer, backed on her hard, backed out from the schooner, and she went down.' All this happened so quickly that those on board had difficulty in escaping with their lives. They lost everything else. The captain was knocked overboard and rescued by a small boat which happened to be present.

The course of the schooner was nearly at right angles with the course of the steamer. It lay between a brig and a ship-both with their heads to the eastward, and one a little astern of the other. They were about three hundred feet apart. The brig was on the starboard and the ship was on the port side of the schooner. The course of the steamer was between the same vessels, with the ship on the starboard and the brig on her larboard side. The pilot says he picked out this course, though it was 'pretty narrow.' The subject was talked over. His plan was to go under the stern of the brig and ahead of the ship.

As almost invariably happens in this class of cases, each vessel has a theory which vindicates itself and condemns its adversary; and, as usual, each theory is earnestly supported by those on board the vessel which propounds it. In this case it is clear there is fault and responsibility somewhere. Our duty is to find where they belong and to pronounce accordingly. The District Court adjudged against the steamer, and the Circuit Court affirmed the decree.

The theory of the schooner is, that she was keeping her course, as she had a right to do, and that the steamer was wholly in fault. The steamer maintains that as soon as the schooner had passed under the stern of the brig, she descried the steamer for the first time and luffed, intending to pass between the brig and the steamer; that the steamer backed hard to enable her to do so, and that the schooner thereupon immediately fell off into the line of the steamer's course, and thus brought about the catastrophe. The steamer insists that if the schooner had kept her course, without luffing, the steamer would have passed under her stern; that if the schooner had continued her course after luffing, she would have passed between the steamer and the brig, and that her subsequent change of course was a gross fault, the sole cause of the collision, and deprives her of all claim to damages for the consequences. These conflicting views define the sphere of our inquiries in the case.

The morning was clear. The river was crowded with vessels sailing and at anchor. The condition of things required the greatest circumspection on the part of the steamer. Her rate of speed was probably from seven to eight miles an hour. The combined speed of both vessels was not less than ten miles an hour. The schooner was first seen by Mathewson, who was then, and had been from the time the steamer left the wharf, on her forecastle head as a lookout. He says that when first seen the schooner was from three to four points off the port bow of the steamer, and, he thinks, was distant about four hundred yards. Captain Kennedy, of the steamer, thinks she was a quarter of a mile off. Estimates of distance, under such circumstances, are little to be relied upon. It is to be presumed the witnesses in this instance made it large enough. Conceding that the distance to be passed by both vessels, to the point of collision, was a full quarter of a mile, the combined speed to ten miles an hour would have brought them together in a minute and a half. Mathewson reported the schooner as soon as he saw her. The orders that were given show the perturbation which existed. Captain Kennedy says: 'When the schooner was reported, the pilot and myself both ordered the helm hard a-starboard. I said, along with the pilot, hard a-starboard, and at the same time reduced the engines dead slow. . . . The next order was to stop the engines and reverse full speed. I worked the indicator myself.' The orders to slow, to stop, and to reverse the engines came too late. The steamer had but a little way to go. The headway she was under could not be arrested at once. It carried her forward with such force that her impact was necessarily fatal to the schooner. Her starboarding did no good. She could not go to the port side more than two points without colliding with the brig. She passed within an ordinary ship's length of the stern of that vessel.

We think that if there had been due care and vigilance the schooner would have been seen at an earlier period. There was nothing to prevent it. The result evinces gross nagligence. As soon as it was seen that the schooner was approaching the track of the steamer, the steamer should at once have stopped or reversed her engines, and have done all in her power to avert the impending peril. She ought not to have entered upon the narrow track between the ship and the brig, without being very careful first to see that her passage would involve no danger to any approaching vessel in its transit.

The results proved that the speed of the steamer was higher than was consistent with the safety of other vessels in so crowded a throughfare, and hence higher than she was warranted to assume.

For these faults she must be condemned.

Was the schooner in fault?

When she passed the brig and reached the steamer's track she was pursuing her regular course. This she had a right to do, and the duty rested upon the steamer to see her and keep out of her way. At this point blame is imputed to her. Locman, the pilot on the brig, says, 'she luffed a little, and then kept off immediately after she luffed.' The pilot on the steamer says she luffed 'a very little while. It seemed to me about long enough to get his wheel down and then hove it up again. He appeared to be in a confused state; got frightened, and did not know exactly what to do.' The conduct of the schooner must be considered in the light of the facts. They were enough to produce consternation. As she passed the stern of the brig the peril of her position became apparent. A steamer of immense power was bearing down directly upon her, and rapidly approaching. Escape seemed impossible and destruction inevitable. There was no time for reflection or precaution. The vessel and the lives of all on board were at stake. The acts complained of were done in the excitement of the moment, and in extremis. Whether they were wise it is not material to inquire. If unwise, they were errors and not faults. In such cases the law in its wisdom gives absolution. It is by no means clear to our minds that if the schooner had failed to luff the results would not have been still more disastrous. It is quite probable that the steamer would have struck her midship, have passed over her, and destroyed the lives of all on board. Her conduct neither caused nor aggravated the catastrophe. After reaching the steamer's track she had no power to avoid it. We find in the record no ground upon which we can hold her responsible in any degree for the casualty.

The fact that both the courts below concurred in condemning the steamer and in exonerating the schooner is entitled to our respectful consideration.

DECREE AFFIRMED.

title: City of Paris/Opinion of the Court


text: Talk:City of Paris/Opinion of the Court

title: Talk:City of Paris/Opinion of the Court


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United States v. Rocha

APPEAL from the District Court of the United States for the Southern District of California.

This case involved the right to one league of land in the county of Los Angeles, California, claimed by the children and grandchildren of Antonio Jos e Rocha, an early settler in the pueblo of Los Angeles, where he long exercised the art of smithing. The land was called La Brea, which is the Spanish word for pitch or bitumen, and this name was given the rancho because it contained a large asphaltum spring, which added much to its value. From this fact the rancho was easily identified, and it had been well known by one name for more than forty years.

On the 6th of January, A.D. 1828, Rocha and one Dominguez petitioned the ayuntamiento or town council of the pueblo of Los Angeles for a grant of this place, called Ranch De La Brea. On the 8th of April, 1828, the petition was granted by the ayuntamiento, and the title was issued in the following form, indorsed upon the petition:

'The parties interested in this petition can build their corrals, place their stock, make their fields in the lands which they have signified, on the same terms, conditions, and circumstances as the other citizens have done who have received such a favor, being responsible for care, and only to report any crime which they may notice within their boundaries.

'CARILLO.'

This is the usual form of a a municipal grant for the ejidos and proprios of a town.

It was not now asserted that this concession vested a valid title in the petitioners, although they at the time believed it did. The land proved to be outside of the limits of this pueblo. For many years it was supposed by the inhabitants and municipal authorities of the pueblos of California that each town was entitled to sixteen square leagues, or four leagues square, of land. The quantity of land to which a pueblo was actually entitled under the laws of Spain and Mexico was four square leagues, and no more.

In an order of Pedro Nava, dated June 21st, 1791, at Chihuahua, reference was made to the foregoing laws as to the quantity of land which a pueblo should take, and the law is ambiguously stated as follows:

'The extent of four leagues, measured from the centre of the plaza (square) of the presidio (garrison), in each direction.'

The mistake of Nava was subsequently followed in several orders and decrees of the governors of California, issued in relation to the pueblo lands. Hence the general impression that a town was entitled to sixteen square leagues. Carillo, the president of the ayuntamiento, who signed the grant under consideration, testified that the land was considered at the time as belonging to the town, and that before the grant it was occupied by the town. The city of Los Angeles, in its petition to the late board of land commissioners, claimed sixteen square leagues, and prayed confirmation for that quantity. Much proof was taken to support that theory, but it was subsequently ascertained that the true quantity was four square leagues, for which a decree was entered and a patent subsequently issued. Indeed, even now the inhabitants of Los Angeles were in the habit of speaking of the old pueblo lines and the new pueblo lines. The land in question was situated within the sixteen square leagues claimed, but without the four leagues patented.

On the 13th of April, A.D. 1840, Maria Josefa, the widow of Rocha, who in the meantime had died, petitioned the prefect of the second district, reciting that the place called 'La Brea' was ceded provisionally to her husband in 1828, from which time it had been occupied by his family, and praying for a definitive grant of the same. On the next day the prefect referred this petition to the justice of the peace for information, and on the 28th of the same month the justice reported favorably to the grant, stating that he had gone with two witnesses to examine the land, found the dise no or map to be in conformity with the petition, and that the petitioner had the proper quantity of stock to occupy the land. On the 2d of May, 1840, the prefect of the second district recommended to the governor that the prayer of the petitioner be granted, assigning as a cause that the petitioner was a widow having charge of a family; and on the 10th of May the prefect issued and delivered to the petitioner a certificate, as follows, countersigned by his secretary:

'In conformity with the disposition of his excellency the senor governor, communicated to this prefecture in a note of the 27th of April last, with respect to that resolution of the excellent departmental junta, all of the places ceded for ranchos of this jurisdiction will remain of the character of provisional until the ejidos of the city shall be regulated. I have made known the said superior disposition to the interested party to this petition, and she remains informed.'

The expediente of these proceedings was found in the archives, 'Departmental State Papers, Angeles, Miscellaneous,' vol. xii.

From some cause or other doubt arose in the mind of the widow of Rocha as to whether the title issued to her husband by the city of Los Angeles was sufficient. This appeared from the fact that she terms it 'provisional,' though it was not more so than other municipal grants. She therefore instituted the proceedings stated above before the prefect for a more formal concession. Usually, proceedings for a grant of land under the colonization laws were begun by presenting a petition to the governor, who referred the petition to some of the local authorities for information. Sometimes, however, when the lands were situated and the parties lived at a great distance from the seat of government, the preliminary proceedings were begun before a prefect, who made the usual reference for report, received the same, and then transmitted all the papers to the governor for his action. That was the course pursued in this case, and was in strict conformity to the following decree, the original of which was on file in the office of the surveyor-general of the United States at San Francisco:

'Juan Bautista Alvarado, governor, ad interim, of the department of the California, to the inhabitants thereof: Know ye, That it being important that the public business of the department may be promptly dispatched, I have thought proper to decree as follows:

'1st. All those who make petitions in relation to lands, or others of this nature, will direct the same to the prefects of the respective districts, who will make reports on said petitions.

'2d. These expedientes shall be directed to the Secretary of State by the prefects. And that this may reach the notice of all, I order that this be published as a decree, and circulated in all the places of the department.

'Given in Monterey, at the governor's house, on the 7th of March, 1839.

'J. B. LAVARADO.

'MENUEL JIMENO,

'Secretary."OFFICE OF THE SECRETARY OF STATE.

'His Excellency, the governor, has ordered me to inform your honor, that at this date, there was issued to the subordinate authorities of the district under the charge of your honor, copies of the orders referred to; one of them being in relation to the division of the department into districts, in accordance with the resolution of the most excellent departmental junta; and others, that petitions for lands, and others of this class, shall be directed to the corresponding prefecturas; communicating them separately, and at the same rate, to the subaltern authorities, which, in the future, shall be attended to directly by the officers referred to in the decree regulating the affairs of the department, of the date of March, 1837. God and Liberty.

'MANUEL JIMENO.

'To the Prefect of the First District, Don Jos e Castro.

'MONTEREY, March 11, 1839.'

The governor, when he received the petition of the widow and the report of the prefect, was uncertain whether or not the land solicited was included within the limits of the town-lands or ejidos of Los Angeles; and for this reason he issued his decree in the form he did, that this, as well as all other places ceded for ranches within the jurisdiction of the second district, should remain as provisional grants until the ejidos of the city of Los Angeles should be regulated. The records showed that the city had made numerous grants in the form of the one issued to Rocha and Dominguez on the 8th of April, 1828. The ejidos of Los Angeles were not marked out under the Mexican authorities, nor were they in fact ever defined, until surveyed by the surveyor-general of the United States, under the decree confirming four square leagues of land to the city.

The claimants relied, for confirmation of their claims before the board of land commissioners, upon the grant issued by the ayuntamiento (town council) of Los Angeles, and the long-continued possession of the grantees or their legal representatives thereunder, which was from the date of the grant. The commissioners rejected the claim solely on the ground of the want of a sufficient description of the tract. The board expressed no doubt as to the genuineness of the papers or the effect of them in the conveyance of a right to the tract. The decision was made in March, 1855. The parties appealed to the District Court, where an issue was made up in January, 1858, and in August, 1860, the appeal was dismissed for want of prosecution.

In February, 1861, a notice was given to the United States attorney of a motion to the court for a bill of review on newly discovered evidence, which was heard and granted in October, 1862. The newly discovered evidence was found among the Spanish or Mexican archives of the executive department, in the surveyor-general's office of California, where they were kept, according to law, upon a diligent search in September, 1860. Search had previously been made, but failed, as there was no indices to the volumes of these records. These documents consisted of the petition of the widow to the prefect, and the proceedings thereon, including the decree of the governor, which are set forth above.

On the 4th October, 1862, leave to file the bill of review was granted. It was subsequently filed, and an answer put in to the same, and leave granted to take further testimony. Four witnesses were examined on the part of the appellant, in addition to those examined before the commissioners; and, on 8th of December, 1864, the decree of dismissal was set aside, and the decision of the commissioners reversed, and the claim of the appellants confirmed. The testimony produced by the claimants showed that their ancestor entered into possession of the land claimed as early as April, 1828; and that the possession by the claimants and their ancestors had been continuous and uninterrupted from that time to the present, under claim of title from the government.

Messrs. Brent and Wills, for the United States; Mr. C. Cole, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Rocha


text: Talk:United States v. Rocha

title: Talk:United States v. Rocha


text:
United States v. Rocha/Opinion of the Court

Several objections are taken to the decree of the court below. The first is, that this court had no power to grant the relief prayed for by a bill or petition of review. As we have seen, the cause was dismissed the 8th of August, 1860, for want of prosecution; and, on the 22d of February, 1861, some five months afterwards, notice was given for leave to file this petition, which was granted on the 4th of October, 1862, at a special term of the court, sitting at Los Angeles. There was no great delay, therefore, in making the application for relief, founded on the newly discovered evidence. The ninth section of the act of March 3d, 1851, #fn-s-s-s for the settlement of California land claims, provides that the claimant, if he fails before the commissioners, may present a petition to the United States District Court praying the court to review the decision; and the tenth section, that the court shall proceed to render judgment upon the pleadings and evidence in the case, before the commissioners, and, upon such further evidence as may be taken by order of the court; the eleventh section, that the District Courts, and the Supreme Court on appeal, shall, 'in deciding on the validity of any claim brought before them under the provisions of the act, be governed by the treaty of Guadaloupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the Supreme Court of the United States, so far as they are applicable.'

This provision, doubtless, refers to the rules to be observed by the courts in passing upon the merits of the claimant's right or title to the land; but no one can avoid seeing, that the liberal and equitable principles thus enjoined as a duty in the decision of the cases, cannot be fully or fairly carried out, without giving to them a reasonable application and effect in conducting the proceedings before the courts as well as in passing upon the merits. And, regarding these principles in this light, we cannot agree that the court possessed no power to open the case for the purpose of hearing the newly discovered evidence. It is not important what the proceedings are called, petition of review, or motion to set aside the decree dismissing the case for want of prosecution, for the purpose of letting in the new evidence. There had been no decree on the merits. The confusion and disorder that existed, in respect to the Spanish and Mexican archives at the close of the war, when the Mexican authorities hastily left the country, has been shown in several cases before this court; and some indulgence is due to an honest claimant as to the order and time in which to produce his evidence.

The next question, and the only remaining one, that it is material to notice, is whether the case presented to the court below justified the confirmation of the claim.

Antonio Jos e Rocha and his legal representatives had been in the possession and occupation of the land in question, claiming title to the same, for a period of twenty-four years, when, in 1852, the petition was presented to the commissioners for confirmation. The representatives have since been in the possession and occupation, and in continued litigation to defend their rights, for the period of eighteen years, making an uninterrupted possession of forty-two years. The present appellees are the children and grandchildren of the original occupant of the tract as early as 1828. He was then a blacksmith by trade, and one of the most respectable and substantial settlers in the pueblo of Los Angeles. The first claim of title under which he took possession was a grant of the president of the ayuntamiento of this pueblo, dated April 8th, 1828. The document is in the usual form by which grants were made of pueblo lands. Carillo, the president, still living in Los Angeles, was examined before the commissioners, and verified the document as original and signed by him. The rancho La Brea was then, and long afterwards, supposed to belong to the pueblo, and, if so, the council of the city had the right to dispose of it. This right is recognized in the act of 1851 for settling these titles. Section fourteen enacts 'that the provisions of this act shall not extend to any town-lot, farm-lot, or pasture-lot held under a grant from any corporation or town to which lands may have been granted for the establishment of a town by the Spanish or Mexican governments.' The section then provides that the claim for land embraced within the limits of the town may be presented to the commissioners by the corporate authorities.

It appears from the evidence that it was the general understanding and belief of the authorities of the city of Los Angeles, at the time, that the Rancho La Brea was situated within the limits of the city, and which was founded on an idea, which was prevalent, that a pueblo, according to Mexican laws, was entitled from the government to sixteen square leagues, whereas it was ultimately determined that it was entitled only to four, which left ranch outside of the city limits. But this was not settled till after the cession to this government. The city of Los Angeles presented their petition before the commissioners for the confirmation of sixteen square leagues. Four only were confirmed.

Then, as to the second claim, founded on this newly discovered evidence. This is obtained from Governor Alvarado, in the year 1840. It is true that the formal papers were before Tiburcio Tapia, the prefect of the district, but authority had been conferred upon him by the governor. The authority was issued March 7th, 1839. It states, 1st, that persons presenting petitions for land shall direct the same to the prefects of the district, who will make report on them; 2d, these expedientes shall be directed to the Secretary of the State by the prefects.

The reason assigned was for the convenience of the people, most of whom resided at great distances from Monterey, the residence of the governor. The city of Los Angeles was over four hundred miles distant. The papers in the case conform strictly to this regulation. Objection is made that there was no proof of the signatures of the officials to the expediente; but the answer is, that no objection was made to it upon this ground in the court below; nor, indeed, does it appear that any objection was made to it as it respected the genuineness of the papers. The objection seems to have been founded on the legal effect of the instrument as a concession of any title to the premises. The prefect had expressed his opinion to the governor that there was no objection to the grant of the land to the petitioner; but the governor, it would seem, being uncertain whether or not the tract might not lie within the limits of the town-lands, or ejidos of the city of Los Angeles, issued his decree that this as well as other neighboring tracts theretofore ceded for ranchos within the jurisdiction of the prefect of this district, should remain as provisional grants until the ejidos of the city should be ascertained. The prefect was directed to make this communication to the petitioner, which he did.

We think it clear, that the fair import and effect of this instrument, reading it in connection with the petition of the widow, that she and her children should take the titles provisionally, that is, if the tract fell within the limits of the town-land, when they were ascertained, it should be inoperative; but if outside these limits, the title should become absolute.

The petitioner had stated in her petition that she was the widow of Antonio Rocha; that the tract had been ceded to her husband, in 1828, provisionally; that it was about two leagues from the city of Los Angeles; that it was covered with cattle and horses, and that she desired it for the subsistence of her numerous family.

The ejidos were not ascertained during the existence of the Mexican government, as the disturbances broke out soon after this grant, which resulted in the war with this country and the cession of the lands. Since the peace, the limits belonging to the city have been defined under the direction of the surveyor-general of the United States, and the premises in question are not included within them. If this had taken place under the former government, it cannot, we think, be doubted but that under the Mexican laws and usages this title would have become perfect, and hence, under the treaty and act of Congress, it is the duty of this court so to hold. As we have seen, that treaty and act of Congress make it our duty to decide these cases 'according to the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of this court as far as applicable.' Here the claimants and their ancestors have been in the uninterrupted possession and occupation approaching the period of half a century, having entered first under a pueblo grant, which at the time was supposed to be in pursuance of authority; and, second, was confirmed by a provisional grant from the Mexican governor, who possessed full authority, which, we think, fairly enough brings the case within the principles governing these cases.

DECREE AFFIRMED.

Mr. Justice CLIFFORD, with whom concurred Mr. Justice DAVIS, dissenting.


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United States v. Rocha/Dissent Clifford

Mr. Justice CLIFFORD, with whom concurred Mr. Justice DAVIS, dissenting.

I dissent from the opinion and decree of the court in this case, for the following reasons:

1. Because the ayuntamiento of Los Angeles never possessed any authority to make such a grant, and it follows of course that the document purporting to be signed by the alcalde is null and void. Argument upon that topic is unnecssary, as the claimants admit that the proposition is correct.

2. Because the additional documents exhibited by the claimants in the District Court show conclusively, not only that those under whom the appellees claim never had any grant from the governor under the colonization laws, but that the governor, when the application was made to him for that purpose, peremptorily refused to make the grant; and that they never had any grant or concession of any kind from the governor of the department.

3. Because possession before the treaty, of the public lands held by the former government, without any title, is not sufficient evidence to warrant a confirmation of such a claim. Authorities to support that proposition are not necessary, as they are very numerous in the decisions of this court published within last ten years.

title: United States v. Rocha/Dissent Clifford


text: Talk:United States v. Rocha/Dissent Clifford


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The Suffolk County

APPEAL from the Circuit Court of the Southern District of New York; the case being thus:

The owners of the tugboat Joseph Baker filed a libel in the District Court at New York against the steam ferryboat Suffolk County, for a collision which had occurred in the East River, between New York and Brooklyn, and in which the tugboat was injured.

The tug was a small boat of about seventy tons burden. The ferryboat was a large steamboat, capable of carrying a thousand passengers, and a much faster sailer than the tug. They were going in the same general direction up the East River, about two hundred feet from the New York shore, the tug ahead and the ferryboat astern, as they passed Jackson Street. Somewhat higher up, the ferryboat endeavoring to pass between the tug and the shore, the collision took place. There was no signal by whistle or otherwise given by the ferryboat to warn the tug of the danger, and the pilot of the tug seemed to have had no apprehension of danger until the other vessel was within two of three feet of his boat. There was room enough for the ferryboat to have passed outside or inside, and as she was behind the other, and could easily have kept out of the way, the ferryboat, unless the collision could be clearly traced to some fault on the part of those in charge of the tug, was obviously to be held responsible. Such a fault was alleged in the answer of claimants, in this, to wit, that the tug attempted suddenly and without notice to sheer across the course of the ferryboat at a time when they were so near each other that no exertion of those in charge of the ferryboat could prevent the collision. The pilot of the ferryboat swore positively that such a sheer had been made. The pilot of the tug swore as positively that she had not changed her course at all for some time, and that the courses of the two vessels were the same. The truth seemed to be about as stated by the pilot of another ferryboat, who stopped his vessel to look at the two which came into collision, because they were so near that he expected it. He said that they were going in one direction, and that both were slightly curving towards the New York shore, and the tug a little more on the turn than the other boat.

The allegation of the libel itself was, 'that after passing the foot of Jackson Street, the channel rounds a little towards the north, and that the tug, pursuing the regular channel, gradually rounded with it, so that she was steering, at the time of the collision, upon a course not precisely parallel with that of the ferryboat, but at a slight angle therewith.'

The production of a map of the East River, and the testimony as to the wharves which were opposite to the place of collision seemed to show that the vessels had not fully arrived at the place where the curve in the channel required a change of course.

The District Court decreed in favor of the libellant, and the Circuit Court affirmed the decree. The case was now here for review.

Mr. Donohue, for the appellants, having endeavored to show that the pilot of the ferryboat had stated the real facts, and that the cause of the collision was a rank and unnecessary sheer by the tug, next argued the matter somewhat independently of that testimony.

Having remarked that the case was to be heard upon the issue raised by the pleadings; that the parties come into court prepared to meet the issues raised, and to make the proof necessary to meet the case, as made in the pleadings, and that any other rule would be to simply make pleadings a snare to the parties, and render them worse than useless, he argued two propositions:

1st. That the pilot, in swearing that he was pursuing a direct course, in which he had made no change for some time previous to the collision, contradicted the libel; that his testimony could not be received to do this; and that the libel, which alleged that a change of course had been made, was to be held to be true; that the testimony of the libellant's pilot being thus false, and the allegation of the libel stating a change which would to some extent bring the tug across the course of the ferryboat, the evidence of the pilot of that boat, thus far corroborated by the libel, must be taken as true, when he swears that the tug made a sudden and unexpected sheer across his course, which rendered the collision unavoidable.

2d. That the evidence of witnesses compared with authentic maps showing, as it did, that the collision occurred before the boats had got to the place alleged in the libel, there was a variance between the proofs and allegation; that the pleadings were for a collision after the Baker had taken a sheer, while, in fact, the case showed that she had not arrived at the rounding point. The pleadings admitting such a rounding or sheer, and the evidence showing no necessity for it, the defence was made out. The evidence failed to show necessity for what the Baker did, and her case failed.

Mr. Carter, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: The Suffolk County


text: Talk:The Suffolk County

title: Talk:The Suffolk County


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The Suffolk County/Opinion of the Court

The defence is that the tug attempted suddenly, and without notice, to sheer across the course of the ferryboat, when they were so near that no effort of the persons in charge of the ferryboat could prevent the collision. But we do not think that the defence is made out by the evidence. We cannot go minutely into all the testimony on this point. It is sufficient to say that we think that the fair result of it does not relieve the ferryboat from responsibility.

The counsel for appellants has made a very ingenious argument in favor of two propositions growing out of the allegation of the libel in regard to the manner and the place of the collision.

But as respects the first one, conceding that the pilot of the tug, in his desire to make clear his freedom from all blame, did not state the course of the vessel with accuracy, the statement of the other pilot is liable to the same suspicious influence, and is equally at variance with the allegation of the libel, and with all the other testimony in the case. The libel does not state a rank or sudden sheer, or any change of course which would bring the tug across the bow of the other vessel. It says she was gradually rounding with the channel, which brought her on a course not precisely parallel with that of the ferryboat, but at a slight angle therewith. And as we have already stated, the weight of the testimony supports this allegation, so far as the relative course of the two vessels, and any change in that course is in question.

The other proposition is, that on the production of a map of the locality of the accident, including the channel of the East River, it is shown conclusively that the collision occurred before the vessels reached the point where this curve in the channel required a change in the course of the boats. And it is maintained that as the testimony shows that the collision did not occur at the place alleged, the whole case of libellants must fail; that it was so material to their case to show that the reason for the gradual curve of the boat was the change in the course of channel, that if there was no such change in the channel before the collision, the change in the course of the vessel was without excuse, and was the cause of the collision.

It surely cannot be necessary to say that the libellant is not bound, at the hazard of losing his case, to state with perfect accuracy, within two or three hundred feet, the point of the collision or curve of the channel, except so far as they may be material to the question of who was in fault. Now the case here requires of the claimants to show that by a sudden and unexpected change in the course of the tugboat she was brought to directly across the course of the ferryboat that the latter could not avoid the collision. The relative positions of the boats to each other and their relative courses were correctly stated in the libel, and such change in the course of the tugboat as was made, was correctly stated. We cannot see that it was material whether this slight and gradual change was made a little before arriving at the corresponding curve in the channel or not, nor whether the collision occurred at that precise point of the river or a little before it was reached.

We concur with the decree rendered in favor of libellants, both by the District Court and the Circuit Court, and it is accordingly

AFFIRMED.

title: The Suffolk County/Opinion of the Court


text: Talk:The Suffolk County/Opinion of the Court


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Green v. United States (76 U.S. 655)

IN error to the Circuit Court for the Southern District of Ohio.

This was an action of debt brought by the United States against one Green, and the sureties on his official bond, as agent for paying pensions at Cincinnati. Seven sureties were named in the bond, all of whom executed it. The defendants charged as sureties, besides filing a joint plea of non est factum, each filed separate special pleas, first, to the effect that they signed the writing whilst the same was in blank, as to the names of the obligors, at the request of the principal, Green, upon the assurance and agreement that it should also be signed and sealed by other parties (named in the plea), as joint obligors with the defendants, and should not be delivered as a bond until signed and sealed by said persons; that those other persons never did sign the same; and that the defendants never would have executed the bond except upon the condition that they should sign it. A second plea averred that the bond was signed whilst it was in blank, as to the names of the obligors, on the conditions above-named, and being thus signed was left with Green as an escrow, to be by him delivered to the plaintiff in case it should be executed by the other persons named, and not otherwise; but that those other persons never did sign the bond, and it never was delivered as a valid bond of the defendants, and thereby became wholly annulled and vacated.

title: Green v. United States (76 U.S. 655)


text: Talk:Green v. United States (76 U.S. 655)


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Green v. United States (76 U.S. 655)/Opinion of the Court

To these special pleas the plaintiff demurred, but the demurrers were overruled, to which overruling the district attorney excepted, and the exception was entered of record; and thereupon replications were filed and issue joined on the pleas. The replications denied that the bonds were signed in blank as pleaded; denied any legal subsisting agreement whereby Green was to obtain the signatures of the persons named in the pleas; and averred that the defendants delivered the bond without giving the plaintiffs any notice that it was imperfect, but on the contrary delivered it as a full and complete obligation.

Upon these issues the parties went to trial, and a verdict was found for the plaintiffs of several thousand dollars. On the trial the defendants offered one or more of their number to prove the facts set up in their special pleas; but the court rejected the witnesses, on the ground that they were parties defendant to the action, and, the government being plaintiff, could not testify. To this ruling a bill of exceptions was taken, and a writ of error brought to this court.

By the third section of the act of Congress, passed July 2d, 1864, it is provided that:

'In the courts of the United States, there shall be no exclusion of any witness on account of color, nor, in civil actions, because he is a party to, or interested in, the issue tried.'

This section was amended by an act passed March 3d, 1865, by the addition of the following proviso:

'Provided, that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.'

The trial in this case took place in June, 1866, after the passage of the above acts.

Mr. Fox, for the plaintiff in error, citing Attorney-General v. Radloff, contended that the evidence had been improperly rejected; that the government was as much bound by the language of a statute, regulating the admission of evidence in civil suits where it was a party, as were individuals; and that the statutes themselves not having excepted it, this court could not do so.

Mr. Hoar, Attorney-Genearl, and Mr. W. A. Field, Assistant Attorney-General, submitted, contra, that the statutes were meant to give both parties an equal standing in court in respect to evidence; that the United States not being able to testify, a party opposed to them should not be allowed to do so either; and that independently of this, it was a rule of construction that 'the king is not bound by any act of Parliament, unless he be named therein by special and particular words.'

Mr. Justice BRADLEY having stated the case, as already given, delivered the opinion of the court.

We see no reason why these acts should not be applied to trials in which the United States are a party, as well as those between private persons. The express exception of executors, administrators, and guardians would seem, by necessary inference, to leave all other suitors under the operation of the law. It is urged that the government is not bound by a law unless expressly named. We do not see why this rule of construction should apply to acts of legislation which lay down general rules of procedure in civil actions. The very fact that it is confined to civil actions would seem to show that Congress intended it to apply to actions in which the government is a party, as well as those between private persons. For the United States is a necessary party in all criminal actions, which are excluded ex vi termini; and if it had been the intent to exclude all other actions in which the government is a party, it would have been more natural and more accurate to have expressly confined the law to actions in which the government is not a party, instead of confining it to civil actions. It would then have corresponded precisely with such intent. Expressed as it is, the intent seems to embrace, instead of excluding, civil actions in which the government is a party. Nothing adverse to this view can be gathered from the exceptions made in the amendment passed in 1865. These exceptions only relate to evidence of transactions with, or statements by, a deceased party (who cannot testify), or by a party under guardianship. In this case no transactions with, or statements of, the agents of the United States were attempted to be proved by the defendants who were called as witnesses;-nothing but conversations between the defendants themselves. We think the witnesses were competent under the act, and that the court erred in rejecting them.

For this reason the judgment must be REVERSED AND A NEW TRIAL AWARDED.

The court, however, deem it proper to say that they have grave doubts whether the facts set up in the special pleas, and offered to be proved by the witnesses, constitute a valid defence to the action. But as this point was not discussed by counsel, we refrain from expressing any opinion upon it.


text: Talk:Green v. United States (76 U.S. 655)/Opinion of the Court


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Downham v. Alexandria

ON motion to dismiss. The case was this:

The city of Alexandria, in Virginia, on a suit brought by it, in one of the county courts of the State, against a certain Downham, a dealer in liquors, had obtained a judgment for two hundred dollars; the amount of a tax imposed by the city on dealers of his class. Downham took the case by appeal to the Fourth Judicial District Court of the State, in which the judgment of the county court was 'wholly affirmed.' He then brought the case from that court directly here, conceiving that he had a right so to bring it here, under the 25th section of the Judiciary Act, which gives a writ of error from this court (in a certain class of cases within which the present suit was assumed to come), when a judgment has been given in the highest court of law or equity of the State 'in which a decision in the suit can be had.'

There was confessedly a higher court of law and equity in the State than the court last-named, to wit, the Supreme Court of Appeals; but Downham did not take the case to it; assuming that by the constitution and laws of Virginia he could not properly do so; and that being thus unable to take it there, he had a right to come directly from the inferior court.

The questions, therefore, were:

1. The chief one-whether under the constitution and laws of Virginia he was correct in assuming that he had no right to go to a higher court than that of the Fourth Judicial District? And if he was correct in this,

2. The question-one not much disputed-whether he could bring the case here from it, there being a higher court of law and equity in the State?

At the time when the writ of error was allowed and issued, and service of citation acknowledged, the constitution in force in Virginia was that of 1864. That constitution excluded from the appellate jurisdiction, in civil cases, of the Supreme Court of Appeals, all suits where the matter in controversy, exclusive of costs, was less than five hundred dollars, except certain specified controversies, among which were distinctly mentioned controversies concerning the right of a corporation to levy tolls or taxes. The case before the court being a controversy concerning the right of the corporation of Alexandria to impose and collect a tax upon plaintiffs in error, and, therefore, a controversy within the very terms of the exception, might have been taken to the Supreme Court of Appeals if nothing else had interposed. An act of the legislature of Virginia, however, passed February 27th, 1867, provided that no appeal to the Supreme Court should be allowed in any case from a judgment of the District Court wholly affirming the judgment of the Circuit Court, and where the matter in controversy did not exceed one thousand dollars.

Mr. D. L. Smoot, in support of the motion to dismiss, contended that the act in question was unconstitutional. Messrs. G. W. Brent and C. W. Wattles, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Downham v. Alexandria


text: Talk:Downham v. Alexandria

title: Talk:Downham v. Alexandria


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Downham v. Alexandria/Opinion of the Court

The act of February, 1867, extends the limitation upon appeals to all cases where original judgments of the Circuit Court are fully sustained by the judgment of the District Court, and where the amount in controversy does not exceed the legislative limit. And the case before us, though not excluded from the appellate jurisdiction of the Court of Appeals by the Constitution, seems to be excluded by this act. The only question, then, is whether this act of the legislature is in conflict with the constitution of the State. And we perceive no conflict. The legislature, then, having thought fit to make the judgment of the District Court in this case final and without appeal, that court is, for this case, the highest court in which the decision could be made; and the writ of error is, therefore, warranted by the act of Congress, and regular. Motion to dismiss must be

DENIED.


text: Talk:Downham v. Alexandria/Opinion of the Court


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Herndon v. Howard

IN this case Herndon had taken an appeal from the Circuit Court for the Western District of Texas; and after doing so had become bankrupt. His assignee in bankruptcy-one Masterson-now moved to be admitted as a party appellant in the cause with the original appellant, Herndon.

His motion was supported by the production of the deed of assignment of the register in bankruptcy of the District Court of the United States for the Eastern District of Texas, in the matter of his bankruptcy to Masterson, duly attested by the clerk of the court. The motion was founded upon the fourteenth section of the Bankrupt Law, which provides that the assignee in bankruptcy may prosecute and defend in his own name all suits at law and in equity pending at the time of the adjudication of bankruptcy, in which the bankrupt is a party, in the same manner and with the like effect as they might have been prosecuted or defendant by the bankrupt, and which makes a copy of the register's assignment, duly certified by the clerk of the proper court, conclusive evidence of the right of the assignee to use.

The CHIEF JUSTICE delivered the opinion of the court.

title: Herndon v. Howard


text: Talk:Herndon v. Howard

title: Talk:Herndon v. Howard


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Herndon v. Howard/Opinion of the Court

The section of the Bankrupt Law relied on, we think, governs the present case. It seems to require that Masterson, the assignee, be substituted as appellant for Herndon, the bankrupt, who may be said to be civiliter mortuus, precisely as an executor or administrator would be made party instead of an appellant actually deceased; and an order will be

MADE ACCORDINGLY.

title: Herndon v. Howard/Opinion of the Court


text: Talk:Herndon v. Howard/Opinion of the Court


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The Quickstep

APPEAL from the Circuit Court for the Southern District of New York in a matter of collision; the case, as assumed by this court upon the evidence, was this:

One Byrne, the captain and owner on the canal-boat Citizen, laden with wheat, contracted with the captain of the tug Quickstep to tow the canal-boat from New York to New Brunswick. Byrne did not know how many boats the captain

of the tug would take. The tow, however, when completed, consisted of six boats,-two abreast, on each side of the tug, and one directly in the rear of each of the two boats, as shown in the upper part of the drawing. The Citizen was on the port side, and nearest the tug, and the Wide World was in the same position on the starboard side. The stern of the boats, abreast of the tug, were about even with the stern of the tug, but their bows extended further than the bow of the tug, and the bows of the Citizen and Wide World were coupled by what is called a 'bridle line;' the line having been furnished by the towing tug.

This fleet proceeded on their voyage with safety until they approached a point in the harbor of New York, known as Robbins' Reef lighthouse, when the boat in the rear of the boats on the port side of the tug became detached. The weather, which was fair when the boat set off from New York, was now somewhat rough, with a certain amount of wind. The tug stopped as soon as the boat broke loose, and then proceeded to back. In backing the bridle-line parted, and the tug got into the trough of the sea, and collided with the Citizen, knocking two holes in her starboard side near the stern, and producing so considerable an injury that she ultimately sunk; her crew, however, not perhaps having exerted themselves as perseveringly as they might have done, to save her. The matter is exhibited in the lower part of the diagram.

In the course of the difficulty two other of the boats got loose. One of them cast anchor and was saved at the spot. The other, loaded with iron, drifted about all night and was picked up uninjured on the next morning.

The owner of the Citizen libelled the Quickstep in the District Court of New York.

The libel alleged 'a contract' with the steam-tug to tow the canal-boat to New Brunswick for a stipulated price, deviation to another dock before setting off, unreasonable delay in the performance of the contract. It alleged further, that the canal-boat was staunch, &c., and under the complete control of the steam-tug; that when near the light-house on Robbins' Reef, the boat which had been hitched to 'the boat of the libellant by some means became detached, that there-upon the steam-tug attempted to pick her up, and to that end commenced to back in so negligent and careless a manner as to endanger the safety of the boat of your libellant; that the libellant protested and warned the master or those in charge of said steam-tug that by so doing they would sink his boat, but the said parties paid no heed to his protest or warning, but continued to back said steam-tug, and handled and managed the same in such a careless and unseamanlike manner that the same said steam-tug struck against the canalboat with great force and violence, breaking in her starboard side, and causing her to fill with water and sink; that the libellant did all in his power to prevent the said loss; that the same was without fault on his part, and occurred entirely through the carelessness and mismanagement of the master and mariners on board of the steam-tug.' In conclusion, the libel prayed damages.

The answer substantially denied these allegations and set up the plea of inevitable accident. The evidence upon the trial was quite conflicting, but the case, as above given, was the case which this court considered as established by it.

The District Court, giving no opinion and finding no facts whatever, held that the libellant and claimant were both in fault, and divided the damages. On appeal, the Circuit Court gave an opinion of a few words, in which, however, no facts were found-and affirmed the decree. The owners of the steam-tug appealed.

Mr. Donohue, for the appellant:

The circumstance that the decrees in both courts below were against us, will perhaps be relied on as a reason why the decree here should be against us also. But the object of an admiralty appeal is to bring up the facts in the cause, and to have a rehearing on them; and while the court may, from time to time, speak of not reviewing the facts, it is submitted that both on principle they are bound to do it, and in precedents have done it. Only where the evidence is balanced will they refused to reverse.

But here the case comes to this court free from all question of a prior disposition of any fact. It is open for judgment upon the evidence; for we know not on what grounds either court below adjudged the case, whether on fact or on law.

The libel is too general in its terms. Alleging negligence and misconduct generally, it wholly omits to state what particular acts of the tug produced the catastrophe. We cannot reply to such allegations. Moreover, it sets up a contract made to tow direct, and a deviation; that we took too many boats; that in backing to pick up another boat we injured this boat and sunk her. But the case shows that proof as to the contract to go direct failed. No such contract is in the least established.

The accident is readily accounted for by a vis major. It occurred in a storm. The line parted, without our fault, and the only mode left for us was to back. On our side, although not called on to do anything but to wait until the opposite side have made out a case, we yet fully proved an entire want of negligence. Having started with fair weather, and with reason to suppose we could tow through, we met with a severe storm, which broke this line, and the vessel being deeply loaded, and not protected, sunk.

But whatever view is to be taken of the case, the decree must be reversed. A decree which finds no fact or facts, but a simple legal conclusion, cannot be examined.

Mr. Carter, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: The Quickstep


text: Talk:The Quickstep

title: Talk:The Quickstep


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The Quickstep/Opinion of the Court

The difficulty of discovering the truth in collision cases, which are mainly trials of fact, grows out of the character of the evidence, which is always more or less conflicting. The court that can see the witnesses, hear their statements, observe their demeanor, and compare their degree of intelligence, is better able than an appellate tribunal to reconcile differences in testimony, or, if that be not possible, to ascertain the real nature of the transaction. The District Court that tries the case in the first instance enjoys this advantage, and the finding of facts by it, if followed by the concurrent judgment of the Circuit Court, is entitled to so much weight in this court, that it will be presumed a correct conclusion was reached, and before the decision will be disturbed it must manifestly appear that it was wrong. The testimony in this case was heard by the district judge, who decided that the damages should be divided, and the Circuit Court, on appeal, affirmed his judgment, and the case, therefore, comes before us with every presumption strongly in favor of the correctness of the decision of the lower courts.

It is unnecessary to travel through the evidence, to a great extent contradictory, in order to vindicate our views concerning it. It would serve no useful purpose to do so, and we shall content ourselves with applying the law to a state of facts which we consider the evidence establishes, without any attempt to discuss it. The libel was not filed to recover damages for the breach of a contract, as is contended, but to obtain compensation for the commission of a tort. It is true it asserts a contract of towage, but this is done by way of inducement to the real grievance complained of, which is the wrong suffered by the libellant in the destruction of his boat by the carelessness and mismanagement of the captain of the Quickstep. It is objected that the libel is too general in its terms, and is defective because it does not state the particular acts of negligence and misconduct on the part of the tug which produced the injury; but if this were necessary, the objection should have been interposed at an earlier stage of the proceedings, and cannot be taken, for the first time, after the cause has reached this court. It is always better to describe the particular circumstances attending the transaction; but in admiralty an omission to state some facts which prove to be material, but which cannot have occasioned any surprise to the opposite party, will not be allowed to work any injury to the libellant, if the court can see there was no design on his part in omitting to state them.

We now pass to the facts of the case.

The inquiry is, who is to blame for what has happened? Clearly not the Citizen, for it does not appear that her conduct in any way contributed to the accident. If the tug, in constructing the tow, used the lines furnished by the different boats, yet as each boat was independent of the other, no responsibility can attach to either for the breaking of the line, which she did not provide, and had nothing to do with making fast. In this case neither the bridle-line nor the line that first parted were supplied by the Citizen, and she ought not to suffer for their insufliciency. It is well settled that canal-boats and barges in tow are considered as being under the control of the tug, and the latter is liable for this collision, unless she can show it was not occasioned by her fault.

It was the duty of the tug, as the captains of the canalboats had no voice in making up the tow, to see that it was properly constructed, and that the lines were sufficient and securely fastened. This was an equal duty, whether she furnished the lines to the boats, or the boats to her. In the nature of the employment, her officers could tell better than the men on the boats what sort of a line was required to secure the boats together, and to keep them in their positions. It she failed in this duty she was guilty of a maritime fault. The parting of the line connecting the boat in the rear on the port side with the fleet, was the commencement of the difficulty that led to this accident. In the effort to recover this boat the consequences followed which produced the collision. If it was good seamanship on the part of the captain of the tug to back in such an emergency, he was required, before undertaking it, at least to know that his bridle-line would hold. And if the sea was in the condition the captain of the tug says it was, it was bad management to back at all. Whether this be so or not, he was bound, in executing a manoeuvre to recover the detached boat, to look to it that no other boat in the fleet suffered in consequence of it.

But the claimants of the tug deny that their vessel was in fault, and insist that the disaster occurred by the violence of the storm and gale of wind which prevailed at the time. If this be so, how did it happen that two of the canal-boats that got loose from the fleet survived the perils of that night? One of these boats anchored, and was saved without difficulty; the other, loaded with iron, drifted about and was picked up the next morning without having sustained any damage. The fact that these boats did not experience any bad effects from the severity of this storm explodes the theory advanced by the claimants on the subject.

In our opinion the tug was clearly in fault, and the courts below, in dividing the damages, doubtless came to the conclusion that the men on board the Citizen were also to blame for deserting their boat sooner than good seamanship under the circumstances required. As the libellant did not appeal, and can, therefore, only be heard in support of the decree, we are not required to consider whether the evidence convicts the canal-boat of fault. The appellants have no right to complain, for in any aspect of the case they cannot escape without paying at least half the loss.

JUDGMENT AFFIRMED.

title: The Quickstep/Opinion of the Court


text: Talk:The Quickstep/Opinion of the Court

title: Talk:The Quickstep/Opinion of the Court


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The Syracuse

THIS was an appeal in admiralty from the decree of the Circuit Court for the Southern District of New York, which, on a libel filed by the owners of the steamer Rip Van Winkle, against the steam tow-boat Syracuse, for a collision, had held the complaining boat itself in fault, and the tug-boat not liable.

Messrs McMahon and Hoar, for the appellant; Mr. Benedict, contra.

Mr. Justice SWAYNE stated the facts and delivered the opinion of the court.

title: The Syracuse


text: Talk:The Syracuse

title: Talk:The Syracuse


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The Syracuse/Opinion of the Court

Both will be better understood by reference to a diagram by the reporter on the next page.

The steamer Rip Van Winkle, a freight and passenger boat, left New York for Troy, heavily laden, on the evening of the 15th of May, 1866. About 2 o'clock the next morning she reached a point in the river opposite to Brandow's Hollow. There, three boats above were plainly in view to her, and she was as plainly in view to them. They were all tow-boats with barges attached, and were the Johnson, the Arnold, and the Syracuse. The Arnold was on the east side of the river, and going up. The Johnson was on the west

side, going down, and was as near to the flats as it was safe for her to go. The Syracuse was on the west side, and also descending. She had in tow, lashed to her, on the port side, the heavy ice barge Colgate. The Roberts, a light barge, was attached to her in like manner on the starboard side. The speed of the Johnson was less than that of the Syracuse. The Johnson had nine tows, attached by a hawser about four hundred and fifty feet long. The Syracuse made a sheer and passed the hawser-tier of the Johnson, and lapped her about fifteen feet on the east side. About this time the Rip Van Winkle blew a long whistle as a signal that she intended to pass them to the eastward. They blew their whistles in response and assent. The speed of the steamer was seventeen miles an hour. The distance of the Syracuse and the steamer from each other when their whistles blew was probably about half a mile. The usual course of ascending steamers at that point, and the one which the Rip Van Winkle proposed to pursue, was diagonally across the river from the west to the east side. Teason was the pilot in charge of the steamer, and we give the occurrences which grew out of this movement as he states them. He says:

'We passed the Johnson, and on her starboard side was the Arnold, bound up with a tow. I went close to his hawser-tier, and probably within fifty or seventy-five feet. The tide being flood-tide, and the wind southeast, he was working to the windward, and the tier tailed off from him, so that I did not go as close to the Arnold as I did to his hawser-tier. I went off from the Arnold probably one hundred and fifty feet, may be not as far as that, and just as I got abreast, or just before I got abreast of the Arnold, the steamer Syracuse, bound down, on our larboard hand, altered her course before I got to the Arnold, and came right head towards us. I didn't slow the boat nor I didn't stop her. . . . I let her keep her regular gait. . . . I thought I could outrun her when I saw her coming. I thought, in the position she was, I could get by her, and I hove my wheel over aport, and that took us hard off more to the eastward. I thought I would let her get as far to the eastward as I could, and did so. Then the Syracuse hit us. . . on the starboard side, just aft of the forward gangway. . . . It was the barge that she had alongside that hit us-hit us with the bluff of her bow, right on the turn of her bow. We were heading to the east, and she struck us right aft of the forward gangway, and forward of the paddle-box, and after she struck us it carried away our deck-beams, and side-house, and water-wheel, and the like of that; that disabled our engine, and then we drifted, till in time we drifted ashore, or we let our anchor go before we got ashore, but our anchor would not hold us, and we drifted ashore; we drifted about twenty minutes or half an hour after she struck us before we went ashore.'

This witness further states that the width of the channel between the Arnold and the Johnson was at least five hundred feet; that there was a space between the Johnson and the steamer for the Syracuse to pass of three hundred and fifty feet; that the steamer had passed the Johnson and the Arnold, and that just as she passed the latter the disaster occurred. The length of the steamer was about two hundred and seventy-five feet. The combined speed of the steamer and the Syracuse was over twenty miles an hour. It was not less than half a mile in a minute and a half. Teason says:

'Further, that the Syracuse could have kept her course and followed down the same course that the Johnson was going, and would have given us plenty of room to have gone by. All that was necessary for her to clear us would have been to have kept her course. . . . She sheered right off-took a very sudden sheer right off towards us.'

This witness is mainly relied upon by the libellant. Conceding his testimony to be correct it inculpates the tug, but by no means exonerates the steamer. The channel was narrow and crowded. The Johnson, Arnold, and Syracuse, with their tows, made a fleet of eighteen vessels of different kinds. Witherwax, another pilot on the steamer, says:

'We seen the river full of lights; it looked to be all light away across the river.'

He warned Teason several times that the steamer would approach the Syracuse. His warnings show that he was alarmed. They produced no effect. A tug with vessels in tow is in a very different condition from one unincumbered. She is not mistress of her motions. She cannot advance, recede, or turn either way at discretion. She is bound to consult their safety as well as her own. She must see that what clears her of danger does not put them in peril. For many purposes they may be regarded as a part of herself. They have the benefit of her traction and she the burden of their inertia. The character of the fleet could not be mistaken. The attempt of the steamer, under such circumstances, to pass the other vessels, and in such close proximity to the Syracuse, at a speed of seventeen miles an hour, was gross and wanton recklessness. Before turning her head to the eastward she should have slowed her engine. If the prospect of danger darkened she should have stopped, and, if need be, have reversed it. She had no right thus to hurl herself like a projectile into the midst of the vessels before her, taking the hazard of the consequences and thus imperilling herself and them with all the lives and property on board. 'The Rule of the Road' gives no warrant for such conduct. The maxim applies, 'Sic utere tuo ut alienum non loedas.' The steamer is condemnable alike upon reason and authority.

The alleged fault of the Syracuse lies in the sudden sheer to the eastward which is imputed to her. As soon as her whistle was blown she stopped her engine, and did not put it in motion again until after the collision occurred. This is conclusively proven, and is not denied. It is an important fact in her favor. That she voluntarily and unnecessarily sheered, and put herself in the way of the steamer, as charged, is very improbable. The fact is proven by no one but Teason. It was several times denied expressly by Witherwax when his deposition was first taken. He was recalled the next day, and then stated that he saw the sheer and supposed it was to enable the Syracuse to pass the tow of the Johnson, and that she kept her course afterwards until she struck the steamer. The denials in his former examination detract from the weight of this testimony. The captain and pilot of the Syracuse contradict positively the statement of Teason. The pilot thinks she did not sheer either way after the steamer came in sight. He says she might have headed a little to the westward. The captain of the Colgate saw her sheer to the westward as soon as her engine was stopped. He says the Colgate had a tendency to pull her in that direction. The wind and tide both contributed to that result. The testimony of these officers outweighs that of Teason, which has no support from any other witness. The stem of the Colgate was twenty feet aft of the stem of the Syracuse. The steamer in crossing headed to the eastward. If, as is alleged, the sudden sheer of the Syracuse brought her into the track of the steamer, and thus produced the collision, the blow must necessarily have been given by the stem of one steamer or the other. Such was not the result. The stem of neither touched the other. The steamer struck her port forward gangway against the bluff of the bow of the Colgate, ten feet aft the stem of the latter. This is entirely irreconcilable with the testimony of Teason, and is fatal to the theory which it is relied upon to support. That theory is the sole ground of imputation against the Syracuse. Other views vindicating the Syracuse with more or less of cogency might be presented, but we deem it unnecessary to pursue the subject further. In our judgment the Syracuse is not shown to have been in fault.

DECREE AFFIRMED.

title: The Syracuse/Opinion of the Court


text: Talk:The Syracuse/Opinion of the Court

title: Talk:The Syracuse/Opinion of the Court


text:
Insurance Company v. Weide (76 U.S. 677)

ERROR to the Circuit Court for the District of Minnesota.

Charles Weide and Joseph Weide, of Minnesota, brought suit in one of the State courts of Minnesota against the AEtna Insurance Company, on a policy of insurancee, to recover $10,000 insured upon a stock of goods lost by fire within the conditions of the policy. The suit was removed to the Federal court under the 12th section of the Judiciary Act, which enacts that suits such as the present was may be transferred, and that copies of the process being filed in the Circuit Court, 'the cause shall proceed there in the same manner as if it had been brought there by original process.'

A copy of the process, and of the complaint in the State court, were filed in the Circuit, and the company, the defendant, appeared there and put in its answer to the complaint; but no new declaration was filed.

On the trial, the counsel for the defendant moved to dismiss the cause from the docket, on the ground that a new complaint or declaration, properly entitled, had not been filed in the Circuit; but the motion was denied.

The principal question in the case, however, was as to the admissibility of evidence. Both the plaintiffs in the court below were witnesses to prove the value of the goods in the store lost by the fire. All the books of account were burnt, except two day-books and a ledger. The day-books covered entries of sales and purchases in the store from 1865 down to the day of the fire, which was on the 22d of February, 1867. The ledger began the 1st of October, 1866, and contained a merchandise account, posted from the day-books, also coming down to the time of the fire. Joseph Weide, one of the plaintiffs, testified that the value of the goods at the time of the fire, according to the books, was $45,564.64, and with profits added, would amount of $70,000; that the cash inventory of the goods, the last of February, 1866, amounted to $75,500; that he got the amount from the fly-leaf of the ledger, upon which, in July, 1866, he made an abstract from the inventories for several years before the fire; and that these inventories were destroyed by it. The witness identified the day-books and ledger, and testified that these books were kept by him and his partner, as they had no clerk; that they were the books kept in their business, and that they were correct; that the entries in the day-books were the original entries of purchases and sales; that he could not state from recollection the amount or value of the stock on hand at the time of the fire, nor at the time of taking the last inventory, in February, 1866, nor by the purchases and sales after that inventory. This witness was cross-examined, among other things, as to the entries in the ledger, and as to the entries on the fly-leaf, and as to the correctness of these entries, and of the amounts therein stated. The evidence on the cross-examination is not stated in the bill of exceptions.

Charles Weide, the other member of the firm, was also examined, and, as the record stated, gave, in substance, the same testimony as Joseph.

Other witnesses were called, and gave evidence as to the value of the goods in the store at the time of the fire.

The plaintiffs then offered in evidence the fly-leaf of the ledger, a copy of which was in the record. The defendant objected to the same as incompetent and immaterial, and not made at the date of the transaction. The court admitted it. They also offered in evidence the two day-books and ledger, which were objected to, but admitted.

Verdict and judgment having been given for the plaintiff, the insurance company brought the case here.

Messrs. Brisbin and Lamprey, for the plaintiff in error:

1. Upon the transfer the action should have proceeded as if then originally commenced in the Circuit Court. A new complaint or declaration should have been filed. This was not done. As there was thus no declaration for the defendant to answer, there was no jurisdiction, and the action should have been dismissed on the defendant's motion.

2. The fly-leaf of the ledger purported to contain an abstract of inventories for several years. The witness, Joseph Weide, who made the abstract, stated that the entries on the fly-leaf were all made July, 1866, and were an abstract from inventories for several years prior to the fire. The witness did not state that he made these inventories nor that he knew them to be correct. It follows, therefore, that this fly-leaf was a mere abstract from inventories for several years, not produced and not known to be correct, and only a partial copy of such inventories, and not made at the date of the transaction. They were but the declarations of a party in his own behalf; incompetent and immaterial, and we urge the same objections to the admission of the day-books and ledger.

Messrs. Peckham and Allis, contra.

Mr. Justice NELSON delivered the opinion of the court.


text: Talk:Insurance Company v. Weide (76 U.S. 677)


text:
Insurance Company v. Weide (76 U.S. 677)/Opinion of the Court

As the first question raised. If there was any irregularity in not filing a new complaint or declaration, it was to late, after the defendant had taken issue upon the complaint, to take advantage of it. The question, however, whether a new complaint, or declaration, should have been filed on a removal of the cause from a State court, is one of practice, and not the subject for which error will lie.

As to the second question, the admissibility of the evidence received by the court. There can be no doubt but the day-books and ledger, the entries in which were testified to be correct by the persons who made them, were properly admitted. They would not have been evidence, per se, but with the testimony accompanying them all objections were removed.

So, in respect to the memorandum to the fly-leaf of the ledger. It was made by one of the witnesses, taken from inventories, present at the time it was made, but which had been subsequently destroyed by the fire. Those inventories, if they had been in existence, would have been the best evidence, and, unless their loss was accounted for, must have been produced. But, being lost, parol evidence of their contents was admissible, as secondary evidence, and so was the memorandum taken from them, for the like reason. As we understand the evidence in the case, the correctness of the entry was testified to. The witness was cross-examined, among other things, as to the correctness of it. The testimony is not given, but, if the evidence of the witness had not been satisfactory, it should have been placed upon the record.

In Merrill v. The Ithaca and Owego Railroad Company, it was held that when original entries are produced, and the person who made them, and knew them at the time to be true, testified that he made the entries, and that he believed them to be true, although at the time of testifying he had no recollection of the facts set forth in the entries, such evidence is admissible, as prim a facie evidence for the jury. In this case, Mr. Justice Cowan, who delivered the opinion of the court, examined most of the authorities, English and American, on the subject. The same doctrine is also sustained by the case of Guy v. Mead.

The learned counsel for the plaintiff in error is mistaken in supposing that the witness Joseph Weide did not testify to the correctness of the facts stated in the memorandum. As already stated, this very point was made the subject of cross-examination, and, if the witness failed to testify to it, the fact should have been set forth in the record, as it was most material for the defendant. The witness had stated on his examination-in-chief, that he made the abstract in July, 1866, from the inventories for several years previous to the fire. Nothing else being shown, the inference is that it was correctly made: hence the cross-examination on this point to show the contrary. We think that the memorandum was properly admitted, and that the judgment should be

AFFIRMED.


text: Talk:Insurance Company v. Weide (76 U.S. 677)/Opinion of the Court


text:
The Portsmouth

APPEAL from the Circuit Court for the Northern District of Illinois; the case was this:

The Salt Company of Onondaga shipped at Buffalo, on the propeller Portsmouth, a large quantity of salt for Chicago, under a bill of lading in the usual form, but containing an exception of the dangers of the navigation.

On the 9th of October, 1866, the propeller, with the salt on board, reached Fox Island, in Lake Michigan, and about seven o'clock in the evening of the same day left it, bound directly for Chicago, using both sail and steam. The weather was foggy, and the wind was blowing from the northeast, with a considerable sea. The fog continued during that night and all the next day, and the wind blew freshly, though not so as to prevent the propeller's carrying her foresail. Nothing particular occurred until about sunset of the evening of the 10th, when, as described by the master, the fog lifted for a minute, and a loom of the land on the west side of the lake was discovered, and the master, mate, and engineer 'could just see a church-steeple and a house, as near as they could calculate.' The master did not know the distance from Fox Island to Racine, but consulting with the engineer as to the quantity of steam carried, and referring to his own expectation of the time when he expected to be that far on his course, which he had fixed at six o'clock in the evening, he concluded that the place was Racine, in Wisconsin. Acting upon that conclusion the propeller was continued on a course generally south by east half-east, and southeast, then south by west, and southwest, and finally west, until a whistle was heard, which the master took to be that of a propeller at the Chicago pier. This must have been at about three o'clock in the morning of the 11th. Soon after a white light was discovered, and this was assumed to be the Chicago light; the light at port being a white one, though not the only white one on the west coast of the lake. The sound of cars running, and of car-whistles was also heard, which the master inferred to be caused by making up trains at Chicago. Accordingly he attempted to enter the port, but when the propeller came very near the pier it was discovered not to be the pier of Chicago, and the vessel was immediately backed. It was, however, too late. She grounded and held fast. According to the testimony of the second engineer, who was in the engine-room managing the steamer, the vessel, until three minutes before his getting the bell to stop, had been running at full speed, which was between eight and nine miles an hour. The captain and first engineer-this last, until three minutes before the bell to stop was rung having been on deck with the captain-testified that they were not running so fast, that she was 'under check,' the captain stating that she was not running more than from three to four miles an hour. The master testified that although the weather was rough, he might safely have remained out in the lake till daylight, or might have signalled for a tug to take them in, and that he would not have gone in had he not, in common with the other officers, certainly believed that the place was Chicago. After the boat was found to be aground and fast the clerk was at once sent ashore and dispatched to Chicago for a tug. Meanwhile the propeller remained at the place where she had taken the bottom, which proved to be Waukegan, some thirty or forty miles from Chicago, until the tug arrived late in the afternoon of the 11th. No lighter was sent for, and no efforts were made to save the cargo, but after the arrival of the tug about one thousand barrels of the salt were thrown overboard to lighten the propeller, though the wind had then subsided, and she was apparently in no danger. The next morning she was got off, and she proceeded to her port of destination, where the residue of the salt was landed. The Salt Company now filed a libel in the District Court for the Northern District of Illinois, for the salt that had been thrown overboard and was undelivered. The propeller set up that it had been lost in the perils of navigation-thrown over to save the vessel and residue-and was so a case for general average. The District Court decided otherwise, and the Circuit Court affirmed its decree. The owners of the propeller now brought the case here.

''Mr. Comstock, for the plaintiff in error. No opposing counsel''.

Mr. Justice STRONG delivered the opinion of the court.

title: The Portsmouth


text: Talk:The Portsmouth

title: Talk:The Portsmouth


text:
The Portsmouth/Opinion of the Court

The contract of the appellant was to deliver the two thousand barrels of salt at Chicago to the cosignee named, 'the dangers of lake navigation only excepted,' and whether the failure to deliver was caused by the excepted dangers is now the only question. A loss by a jettison occasioned by a peril of the sea is, in ordinary cases, a loss by perils of the sea. But it is well settled that, if a jettison of a cargo, or a part of it, is rendered necessary by any fault or breach of contract of the master or owners of the vessel, the jettison must be attributed to that fault, or breach of contract, rather than to the sea peril, though that may also be present, and enter into the case. This is a principle alike applicable to exceptions in bills of lading and in policies of insurance. Though the peril of the sea may be nearer in time to the disaster, the efficient cause, without which the peril would not have been incurred, is regarded as the proximate cause of the loss. And there is, perhaps, greater reason for applying the rule to exceptions in contracts of common carriers than to those in policies of insurance, for in general, negligence of the insured does not relieve an underwriter, while a common carrier may not, even by stipulation, relieve himself from the consequences of his own fault.

In view of this recognized construction given to such clauses in bills of lading as 'perils of the sea excepted,' or, as in this case, 'the dangers of lake navigation only excepted,' it is plain that the appellant has shown no sufficient excuse for the failure to deliver the salt to the consignee of the libellant.

It is manifest that the master was first at fault in mistaking the land which he dimly saw on the evening of the 10th for Racine. He was, in fact, then from thirty to forty miles farther from Chicago than he supposed he was. His supposition was unwarranted by the evidence he had. He thought the place was Racine, not because of its appearance when he saw the steeple and the house. His view of those objects was very indistinct. His language is, 'We could just see a church-steeple and a house, as near as we could calculate.' The outline of the shore he does not pretend to have seen, or anything which, by its appearance, justified his conclusion that he was opposite Racine. His sole reasons for assuming that such was his position are to be found in his having consulted with his engineer about the quantity of steam carried, and in his own estimate of the time when he expected to reach that place. At best, therefore, his conclusion was based upon a conjecture. Considering that the voyage from Fox Island had been through a thick fog, and in a heavy sea; that the wind had not been quite steady; that the speed of the propeller had not been measured by the log, or by observations; and considering also another fact, to which the master testifies, that he did not know the distance from Fox Island to Racine, it seems to us his conjecture that the propeller was opposite Racine at sunset of the 10th was no reliable guide to the subsequent conduct of the voyage. It was, however, accepted as a guide, and it led directly to the disastrous fault afterwards committed of mistaking Waukegan for Chicago. The master, judging that he had steamed far enough from Racine, readily concluded that the light he saw, and the whistle and running cars he heard were at the place of his ultimate destination, and without any careful verification of his opinion he attempted to enter the port. The light he saw, it is true, was a white light, like that at Chicago. But there were other white lights on the west shore of the lake. Waukegan had one. The whistle and the running cars were not peculiarities at Chicago. There was enough in his situation to awaken doubt, and to induce caution. We think that, in his circumstances, the attempt he made to enter the port was inexcusably rash. It was not a necessity. His duty to the owners, and still more to the freighters, was to exercise the highest prudence, as well as skill, to guard against loss. According to his testimony he might safely have remained out in the lake until morning, or he might have signalled for a tug to take the propeller in. It was his duty to do one or the other. He did neither. He testifies he would have gone out into the lake and waited until daylight had he not supposed he had found a harbor. He had no right to act upon such a supposition, which at best was no more than a careless conjecture. He admits, what must be evident, that he could have seen plainer had he waited till daylight before attempting to enter, and that he might have known the pier was Waukegan pier. He thinks a tug could have found the propeller had he signalled, but he neglected to signal. The second engineer also testifies that the propeller attempted to enter the port at her usual speed of eight and a half or nine miles an hour, which, if the statement be correct, was much too great. It is true, his statement varies from the account given by the master and chief engineer; but the chief engineer and the master were both upon deck, and the second engineer was in immediate charge of the engine until within three minutes of the time when the signal was given to stop, and even during those three minutes the chief engineer was outside of the engine-room. The second engineer must, therefore, have best known at what rate of speed the propeller was moving. In view of all this, we have no hesitation in coming to the conclusion, that the loss sustained by the libellants is to be attributed to the fault of the carrier, and not to the excepted dangers of lake navigation.

Were it necessary, it would be easy to show that the conduct of the master after the vessel was stranded was entirely unjustifiable. It was his duty even then to take all possible care of the cargo. He was bound to the utmost exertion to save it. Losses arising from dangers of navigation, within the meaning of the exception in the bill of lading, are such only as happen in spite of the best human exertions, which cannot be prevented by human skill and prudence. But in this case no effort was made to save the cargo. The salt was not thrown overboard until after the arrival of the tug. The fog had then lifted. The wind and the sea had subsided. It is evident the salt might then have been saved, if it could not have been removed before.

DECREE AFFIRMED WITH COSTS.

title: The Portsmouth/Opinion of the Court


text: Talk:The Portsmouth/Opinion of the Court