text:
Railroad Company v. Reeves

IN error to the Circuit Court for the Western District of Tennessee, the case being this:

Reeves sued the Memphis and Charleston Railroad Company as a common carrier for damage to a quantity of tobacco received by it for carriage, the allegation being negligence and want of due care. The tobacco came by rail from Salisbury, North Carolina, to Chattanooga, Tennessee, reaching the latter place on the 5th of March, 1867. At Chattanooga it was received by the Memphis and Charleston Railroad Company on the 5th of March, and reloaded into two of its cars, about five o'clock in the afternoon.

The Memphis and Charleston Railroad track extends from Memphis to Stevenson, Alabama, a point west of Chattanooga, on the Nashville and Chattanooga Railroad. Between Chattanooga and Stevenson, by a contract between the two companies, the trains of the Memphis and Charleston road were drawn by engines belonging to the last-named road, an agent of the road being at Chattanooga and receiving freight and passengers there for Memphis.

One Price, who as agent of Reeves was attending and looking after the tobacco along the route, testified (though his testimony on this point was contradicted) that the agent of the company at Chattanooga promised that, if the bills were brought over in time, the tobacco should go forward at six o'clock that evening; and shortly before that time informed him that the bills had come over, and assured him that the tobacco would go off at that hour. It did not do so, though he, Price, the agent, supposing that it would, went on by a passenger train and so could no longer look after the tobacco. By the time-tables which governed at the time the forwarding of freight, goods received during one day were forwarded the next morning at 5.45 A.M., and at that time the train on which the tobacco in question was placed went off. This train, however, found the road obstructed by rocks that had fallen during the night and had to return, and in consequence of information of the washing away of a bridge on the road, had to remain at Chattanooga. Chattanooga is built on low ground, on the Tennessee River, which, a short distance west of it, runs along the base of Lookout Mountain. On the 5th of March there had been heavy rains for some weeks, and the river had been rising and was very high. Freshets of the years 1826 and 1847, the highest ever remembered previous to one now to be spoken of, or of which there was any tradition, had not risen by within three feet as high as the level of the railroad track in the station where the cars containing the tobacco were placed, on their coming back to Chattanooga, after their unsuccessful attempt to go forward.

The river rose gradually until the evening of the 7th (Thursday), at which time it reached the high water mark of 1847. That night it rose an average of four inches and hour from 7 P.M. to 6 1/2 A.M. of the 8th of March, and it continued to rise until about 2 P.M. of Sunday, the 10th of March. On Friday, at 1 P.M., the engines standing on the tracks were submerged so that their lower fire-boxes were covered. On Saturday, at 8 P.M., the engines and cars were submerged ten feet or more, and the freight in question was thus damaged. Had it gone off on the evening of the 5th it would not have been damaged. A freight train did leave Chattanooga going towards Memphis on that evening, but it carried freight of the Nashville and Chattanooga road only, and none for the road of the defendant. Four or five days elapsed from the time when the water began to come up into the town, before it was so high as to submerge the cars and injure the freight. No one expected the water would rise as it did, because it rose full fifteen feet higher than had ever before been known. The rise was at first gradual, and from the direction of Lookout Mountain, by backing; but afterwards it came suddenly from the direction of the Western and Atlantic road, opposite to its former direction, and then rose very rapidly. Although on the 6th the river was getting out of its banks, there was no apprehension, up to the night of the 7th, that the water would submerge the town. During the night of the 7th merchants removed their goods, and one Phillips, who that night removed his to the second story of a building standing on ground no higher than the depot, saved them. The water rose into his building on the morning of the 8th. The people finally fled to the hills, and there was a universal destruction of property as well of individuals as of railroads passing through the city. The waters indeed were so high and the flood finally so unexpected that the mayor broke open railroad cars and took provisions which were in process of transportation, to feed the famishing population. The cars in which the tobacco was were standing on the highest ground in the region of the station. There were roads in other directions, beside the road over which the rock had fallen, physically traversable by the cars which had the tobacco; but there were difficulties of various kinds in going on them, which the agents considered amounted to a bar to trying to use them.

On this case the defendant, having by a first and second request, asked the court to instruct the jury that there was no obligatory contract even if the jury believed the conversations deposed to by Price, asked further instructions.

'Third. That if the jury shall believe that the train was stopped on the morning of the 6th by the falling of rock on the track and the washing away of a bridge, and was obliged to put back to Chattanooga in order to send force and implements to put the road in repair, then such delay was inevitable, and would not subject the road for any consequential damages, the immediate cause of the damage being the flood.

'Fourth. That when the damage is shown to have resulted from an immediate act of God, such as a sudden and extraordinary flood, the carrier would be exempt from liability, unless the plaintiff shall prove that the defendant was guilty of some negligence in not providing for the safety of the goods. That he could do so must be proven by the plaintiff, or must appear in the facts of the case.

'Fifth. If the freight train carrying the tobacco left Chattanooga on the morning of the 6th of March, 1867, on its proper time under the contract, and was prevented from going forward by obstructions on the track or the washing away of a bridge, caused by an extraordinary fall of rain and freshet, and was detained at Chattanooga by these obstructions, or either of them, until the tobacco was injured by the subsequent freshet, which could not be avoided, then the delay at Chattanooga would not be negligence, and the defendant would not be liable for the injury caused by such subsequent freshet, if such freshet was such as is described in the former request for instructions as an act of God, provided the defendant used all proper diligence to rescue the property from injury at Chattanooga, or provided the freshet was so sudden and overwhelming as to prevent rescuing it.'But the court refused to give any of these instructions, and gave the jury, among others, the following ones:

'2d. If you shall be satisfied from the proof that the tobacco was injured while the cars upon which it was being shipped were standing at the depot in Chattanooga by a freshet which submerged the cars containing the tobacco, and that no human care, skill, and prudence could have avoided the injury, then such injury would be occasioned by the 'act of God,' and the defendant would not be liable. But, if you believe that the cars containing the tobacco were brought within the influence of the freshet by the act of the defendant, or its agents, and that if the defendant or agents had not so acted the tobacco would not have been damaged, then the injury would not be occasioned by the 'act of God,' and the defendant would be liable for the damage sustained.

'3d. If you shall believe that the tobacco was received at Chattanooga by the defendant on the evening of the 5th of March, 1867, and that the agent of the defendant having the charge of the freights at, and superintending their shipment from, that point to Memphis, made a contract with Price, the agent of the plaintiff, by which the tobacco was to be sent forward for Memphis on the same evening, and that the agent of the defendant did not comply with the said contract or engagement so made with the agent of the plaintiff, but held the tobacco over until the next morning's train, and, as a consequence of such delay, the tobacco was injured by a freshet in the rivers and creeks contiguous to Chattanooga, and which freshet would not otherwise than by said delay have caused the said injury, then the defendant can claim no exemption from its liability as carriers on account of any injury or damage occasioned by the said freshet, and you will find a verdict in favor of the plaintiff.

'4th. If you shall believe that the tobacco in controversy was not sent forward from Chattanooga, en route for Memphis, until the morning of the 6th of March (and this in the absence of any such contract as stated in the preceding instruction), and that the train upon which said tobacco was being transported was delayed and hindered in its progress by an obstruction upon the track of the road some two and a half or three miles from Chattanooga, which obstruction was occasioned by a slide or tumbling of a rock from the mountain side along which the track of the road is located, and in consequence of said obstruction the said train returned to the depot at Chattanooga, when, by a diligent effort on the part of the defendant's agents the obstruction might have been removed and the train gone through to some other point on the road where no injury would have resulted; and if you believe that while the train was so at the depot at Chattanooga the tobacco aforesaid was damaged as alleged, then the returning of the train to Chattanooga was the immediate cause of the injury, and not the freshet; and the injury would not be caused by 'the act of God,' man's agency having intervened, and the defendant would not be relieved from liability, and the plaintiff will be entitled to a verdict in his favor.

'5th. That the loss or damage to the goods in question, if produced by a rise, or freshet, in the river or creeks in the vicinity of the depot where the train was standing, such rise, or freshet, to constitute it 'the act of God,' in a legal sense, must have been so sudden, immediate, and unforeseen as to leave the carrier no sufficient time or means of escape from its consequences. But if it be not shown by the evidence that such was the fact, then it was the duty of the defendant or its agents to save the property of the plaintiff from the impending danger, if it were possible to do so, by extraordinary exertion. If the damage could have been prevented by any means within the power of the defendant or its agents, and such means were not resorted to, then the liability of the defendant would not be relieved, and the jury must find for the plaintiff.'

The trial and verdict, which went for the plaintiff, was had March 26th, 1868. On the 15th of April following a motion was made by the defendant for a new trial, and overruled. The record went on, under date of the 18th of April, 1868, to say, after giving the title of the case, that,

On this day came the defendant by attorney and tendered its bill of exceptions herein, and asked that the same might be signed and sealed by the court and made part of the record in this cause, which was accordingly done.

The 'bill of exceptions, filed April 18, 1868,' then followed. It commenced, after the title of the case, by saying that, 'on the trial of this cause, the following proceedings were had.' Then came the testimony introduced, the prayer of the plaintiff in error for five distinct instructions, the refusal of the court to grant them, and the instructions which the court did give (all as already mentioned), and the statement that the defendant excepted to the action of the court in refusing the instructions aforesaid, and also in giving the charge aforesaid, and also in overruling his motion for a new trial.

The exceptions to the charge of the judge at the trial, and to his refusal to charge as requested by defendant below, presented the only grounds on which error was alleged.

Mr. P. Phillips, for the plaintiff in error:

Although the case shows, from the published schedule and the oral proof, that it is impossible that any such conversation as Price states took place between himself and the agent could have occurred, we admit its truth for the purpose of the argument.

But this admitted, there is nothing in the evidence to authorize the court to submit to the jury the finding of a contract to forward this freight on the night of the 5th. There was no new consideration. But a consideration is of the essence of every contract; of every obligatory promise; and so indispensable is it that it must be always shown, and cannot be presumed. The loose language of Story, J., in his book on Bailments, as to what constitutes consideration, has no foundation in the common law.

title: Railroad Company v. Reeves


text: Talk:Railroad Company v. Reeves

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title: Talk:Railroad Company v. Reeves


text:
Railroad Company v. Reeves/Opinion of the Court

Whether the agent made the promise or not, the duty of the company was to forward the freight thus received, using due diligence for this purpose, and it had no higher one in consequence of the promise. There was no new agreement at Chattanooga for freight, or for any other purpose. The freight had been arranged at Salisbury, and was to be collected at Memphis, the terminus. The promise was a vol unteer statement merely, undum pactum.

But admit that there was a contract to forward on the evening of the 5th, the damage occasioned by the flood on the 6th cannot be referred to a violation of that contract. This is the view taken by the Supreme Court of Pennsylvania in Morrison v. Davis, and by the Supreme Court of Massachusetts, in Denny v. New York Central Railroad Company, cases analogous, both, to ours.

All the instructions asked for by the defendant ought therefore to have been given. Though the proximate cause may be occasioned by inevitable accident, the carrier is still bound to care and diligence. Yet no greater foresight of extraordinary perils is expected of him than of other men, and no greater penalty visited for its failure. When he discovers himself in peril, the law requires of him ordinary care, skill, and foresight. This is defined to be the common prudence which men of business and heads of families usually exhibit in matters that are interesting to them. As difficulties increase in danger, great care then becomes the ordinary care of a prudent man. If one uses the precautions which a reasonable man would use under the circumstances, he is not responsible for omitting other precautions which are conceivable, even though if he had used them the injury would certainly have been avoided.

Now as to the question of proof of negligence. The rule is admitted to be that the burden of proof is on the carrier to show that the loss was occasioned by a cause for which he is not responsible. When, however, the evidence brings the loss within the excepted danger, the onus probandi is changed. It is then upon the plaintiff to show that the danger might have been avoided by the exercise of reasonable skill and attention of the carrier.

The case shows that due diligence and care were used to avoid the threatened danger.

Messrs. Albert Pike and R. W. Johnson, contra:

1. It does not appear that any exceptions were taken or points reserved during the trial. The bill of exceptions sets out five instructions to the jury, asked by the defendant below, and refused by the court, covering some pages. These the court refused, and gave a charge in regard to the law in general as to the responsibilities of common carriers, and as to the case in hand upon the facts proven.

The bill of exceptions was taken three days after the motion for a new trial was overruled, and twenty-three days after the trial concluded. Now, does the word 'excepted' necessarily show that the exception was taken during the trial? It is not said that the company excepted at the time; and the court cannot presume that it did, in the absence of any statement, even the most vague, to that effect. On the contrary, as the statement is that the defendant also excepted to the overruling of his motion for a new trial, without saying that this was at a different time, the court must hold that there was no exception at all taken until that motion was overruled.

Now a bill of exceptions must be upon points expressly reserved and excepted to at the trial, otherwise they are waived, as a bill of exceptions originally was, if not presented at the trial. That was the rule under the statute of Westminster. If the exception was not stated in writing, and tendered at the trial, it was considered as waived, and the party could not resort to it after a verdict against him. Wright v. Sharp, is conclusive on that point. Holt, C. J., said there:

'If this practice should prevail, the judge would be in a strange condition; he forgets the exception, and refuses to sign the bill, so an action must be brought; you should have insisted on your exception at the trial; you waive it if you aquiesce, and shall not resort back to your exception after a verdict against you. . . . The substance must be reduced to writing while the thing is transacting, because it is to become a record.'Little profit accrues to the law by the abandonment of its old principles. It is not safe to trust the memory of a judge engaged in trying a multitude of cases, even for a week, in regard to the evidence given or refused, or to the language he may have used in directing the jury. We submit, therefore, that there is no bill of exceptions here, on which the court can act; and that the judgment below must necessarily be affirmed.

If the court should think that the single word 'excepted' has virtue enough to authorize it to conclude that the record shows affirmatively that the exceptions were taken on the trial, then we object that the exceptions are such as the rules of the law, and its own rules, will not permit the court to consider. They are sweeping and indiscriminate, being to the refusal to give long instructions, and to the giving of pages of legal principles and propositions in their stead. It surely will be at some time understood that this court will not look into a case which thus brings up a mass of instructions given and refused, and in which the party has put his finger on no particular errors. It is directly contrary to rule No. 4; and it is equally contrary to the law, and to the practice of all appellate courts of respectability. The rule will cease to be disregarded when it is rigidly enforced. To dispense with it, or overlook disobedience of it, on account of particular circumstances, makes it mere brutum fulmen.

There is no doubt that some portions, at least, of the charge and directions of the judge below, in this case, were correct in point of law. If he stated one correct proposition, the exception to his charge falls.

2. Of the contract made at Chattanooga, and the law as to common carriers, as set forth in the instructions given.

The court instructed the jury that if the agent having charge of freights and their transshipment did make such a contract, it bound the company. This was right. The testimony shows that the company sent only one freight train each day, and that in the morning; but it could certainly send a car in the evening, with the freight train of the Nashville and Chattanooga road, if it chose to pay for the service; and if its agent contracted with a party owning freight to do so, the company would be responsible for all damage caused by the delay.

So the instructions as to the liability of the company as a common carrier. No matter what degree of prudence may be exercised by the carrier and his servants; although the delusion by which it is baffled, or the force by which it is overcome is inevitable, yet if it be the result of human means, the carrier is responsible. In Campbell v. Morse, one Deft's wagon, in which he was carrying for hire, stuck fast in fording a creek, and the water, rising suddenly, damaged the goods; but he was held responsible. So in Bason v. Charleston & Columbia Steamboat Company, where a steamboat grounded from reflux of tide, and in consequence fell over, and the bilge-water, rising into the cabin, produced injury to the goods.

Denny v. New York Central Railroad Company, cited on the other side, is not against these cases, because the court there held that when the damages by flood occurred, the defendants no longer held the goods as common carriers.

In fact, the moment a faulty negligence begins, the carrier becomes an insurer against the consequences therefrom, both ordinary and extraordinary. If he improperly detains goods, and they are injured by a sudden and extraordinary rise of water, the detention being negligence, he is responsible. To relieve him there must be an entire exclusion of human agency from the cause of the injury or loss. In Read v. Spaulding, cited below, the goods were injured by a flood, being delayed at a point in transitu.

The fact, which in this case, with the windows of heaven opened, and the torrents descending day after day, ought to have been anticipated by the agents of the company, that the flood was coming, should have increased and stimulated their vigilance and caution, and if by any known means they could have prevented the damage, they should have done so. What if the floods never did, within their memory or their records, rise so high? These calamities, like great fires in cities, are encyclical. They come at long intervals only; often very long intervals. But come at some time they surely will, and on such a premonition as was had here, the company should not have stood 'stupidly gazing' at the menacing clouds till they burst and deluged the land. They should have moved the cars off at once to the farthest and highest spot possible, and if one route was blocked they should have gone in another.

When the negligence of the carrier exposes him to what he might otherwise have escaped, he is responsible for losses thus occurring through the combined agency of his own negligence and of inevitable accident. If his own neglect is the proximate cause of the peril being incurred, he is responsible. If he could have removed the property injured, beyond the reach of flood or fire, and so have escaped from that cause of loss, but did not do so, then, although the flood or fire was the act of God, yet the injury or loss was really caused by his negligence, and the accident was not inevitable. The fact that the carrier has done what is usual, is not sufficient to exempt him from a charge of negligence. He must show that he has done what was necessary to be done under all the circumstances. If he could have prevented the accident by the exercise of due diligence and care, and did not, he is liable.

Mr. Phillips in reply: No doubt the bill of exceptions is open to animadversion, as not in good technical form. But it is certain that the exception to the action of the judge was a 'proceeding,' and a very important one, and the opening of the bill declares that all the following proceedings were had 'on the trial of the cause.'

It is again said, that the exceptions are too general, and that they should have been specifically made to the several charges. It is to be observed that the charges were asked in the first place by the defendant. These were rejected, and the defendant excepted. Then the court gave several charges, all involving the single question of negligence. The substance of these was a denial of the doctrine asserted in the prayers of the defendant, and to these instructions the defendant also excepted.

It is evident that the charges given are in direct response to the charges asked and refused, and no revision is now asked which involves a question that was not distinctly presented to the court below.

The court will not allow the right of review to be defeated because of any mere informality or irregularity in the mode in which the exceptions had been presented.

Mr. Justice MILLER delivered the opinion of the court.

A preliminary point is raised by the defendant in error that the exception was not taken at the trial, but was taken afterwards on the overruling of a motion for a new trial.

It seems probable that the formal bill of exceptions was not signed or settled until after the motion was overruled, but it is a common practice, convenient in dispatch of business, to permit the party to claim and note an exception when the occasion arises, but defer reducing it to a formal instrument until the trial is over. We think the language of the bill implies that this was done in the present case, and that it is a reasonable inference from the language used at the beginning and end of this bill, that the exceptions were taken during the trial, as the rulings excepted to were made.

Comment is also made, that the exception does not point out to which instruction it is taken, nor to any special part of the charge which was given. But the instructions prayed by defendant were not offered as a whole, but each one for itself, and the action of the court in refusing them, to which exception is taken, may be fairly held to mean each of them.

As to the charge given by the court, the language of the exception is more general than we could desire. And if the errors of this charge were less apparent, or if there was any reason to suppose they were inadvertent, and might have been corrected if specified by counsel at the time, we would have some difficulty in holding the exception to it sufficient. But the whole charge proceeds upon a theory of the law of common carriers, as it regards the effect of loss from the act of God, on the contract, so different from our views of the law on that subject, that it needs no special effort to draw attention to it, and it is so clearly and frankly stated as to have made it the turning-point of the case.

We are of opinion, then, that both the refusal to charge as requested and the charge actually given are properly before us for examination. As regards the first, we will only notice one of the rejected instructions, the fourth. It was prayed in these words:

'When the damage is shown to have resulted from the immediate act of God, such as a sudden and extraordinary flood, the carrier would be exempt from liability, unless the plaintiff shall prove that the defendant was guilty of some negligence in not providing for the safety of the goods. That he could do so must be proven by the plaintiff, or must appear in the facts of the case.'

It is hard to see how the soundness of this proposition can be made clearer than by its bare statement. A common carrier assumes all risks except those caused by the act of God and the public enemy. One of the instances always mentioned by the elementary writers of loss by the act of God is the case of loss by flood and storm. Now, when it is shown that the damage resulted from this cause immediately, he is excused.

What is to make him liable after this? No question of his negligence arises unless it is made by the other party. It is not necessary for him to prove that the cause was such as releases him, and then to prove affirmatively that he did not contribute to it. If, after he has excused himself by showing the presence of the overpowering cause, it is charged that his negligence contributed to the loss, the proof of this must come from those who assert or rely on it.

The testimony in the case, wholly uncontradicted, shows one of the most sudden, violent, and extraordinary floods ever known in that part of the country. The tobacco was being transported from Salisbury, North Carolina, to Memphis, on a contract through and by several railroad companies, of which defendant was one. At Chattanooga it was received by defendant, and fifteen miles out the train was arrested, blocked by a land slide and broken bridges, and returned to Chattanooga, when the water came over the track into the car and injured the tobacco.

The second instruction given by the court says that if, while the cars were so standing at Chattanooga, they were submerged by a freshet which no human care, skill, and prudence could have avoided, then the defendant would not be liable; but if the cars were brought within the influence of the freshet by the act of defendant, and if the defendant or his agent had not so acted the loss would not have occurred, then it was not the act of God, and defendant would be liable. The fifth instruction given also tells the jury that if the damage could have been prevented by any means within the power of the defendant or his agents, and such means were not resorted to, then the jury must find for plaintiff.

In contrast with the stringent ruling here stated, and as expressive of our view of the law on this point, we cite two decisions by courts of the first respectability in this country.

In Morrison v. Davis & Co., goods being transported on a canal were injured by the wrecking of the boat, caused by an extraordinary flood. It was shown that a lame horse used by defendants delayed the boat, which would otherwise have passed the place where the accident occurred in time to avoid the injury. The court held that the proximate cause of the disaster was the flood, and the delay caused by the lame horse the remote cause, and that the maxim, causa proxima, non remota spectatur, applied as well to contracts of common carriers as to others. The court further held, that when carriers discover themselves in peril by inevitable accident, the law requires of them ordinary care, skill, and foresight, which it defines to be the common prudence which men of business and heads of families usually exhibit in matters that are interesting to them.

In Denny v. New York Central Railroad Co., the defendants were guilty of a negligent delay of six days in transporting wool from Suspension Bridge to Albany, and while in their depot at the latter place a few days after, it was submerged by a sudden and violent flood in the Hudson River. The court says that the flood was the proximate cause of the injury, and the delay in transportation the remote one; that the doctrine we have just stated governs the liabilities of common carriers as it does other occupations and pursuits, and it cites with approval the case of Morrison v. Davis & Co.

Of the soundness of this principle we are entirely convinced, and it is at variance with the general groundwork of the court's charge in this case.

As the case must go back for a new trial, there is another error which we must notice, as it might otherwise be repeated. It is the third instruction given by the court, to the effect that if defendant had contracted to start with the tobacco the evening before, and the jury believe if he had done so the train would have escaped injury, then the defendant was liable. Even if there had been such a contract, the failure to comply would have been only the remote cause of the loss.

But all the testimony that was given is in the record, and we see nothing from which the jury could have inferred any such contract, or which tends to establish it, and for that reason no such instruction should have been given.

JUDGMENT REVERSED AND A NEW TRIAL ORDERED.


text: Talk:Railroad Company v. Reeves/Opinion of the Court


text:
The Lulu

APPEAL from the Circuit Court for the District of Maryland.

This was a suit in admiralty to enforce a lien claimed upon the steamer Lulu for repairs made upon her at the request of the master. It was consolidated with other suits, all brought by material men for supplies or repairs to the vessel to the extent of $8796.21.

The steam vessel was owned in New York, which was her home port, but employed in the trade between Baltimore, in Maryland, and Charleston, in South Carolina. When the libel was filed she had been plying in the trade about eleven months, that is to say, from April, 1866, to March, 1867. The repairs and supplies for which satisfaction was sought were furnished in Baltimore during and after July, 1866, but chiefly in November and afterwards, at fair prices, and were proper and necessary; and there was no proof whatever that the master had any funds which he could have applied to procure the repairs and supplies.

In each suit a New York company filed a claim and answer, asserting a prior right to satisfaction out of the proceeds of the steamer, which under an order of the court had been sold, bringing but $10,250. The claim of this company was founded upon a bill of sale, made to it by the former owners of the vessel (residents of New York also), in consideration of an advance of $12,000, on the 24th of August, 1866. This bill of sale, though in form absolute, was intended as a mortgage to secure repayment of the advance in six months from the date, but no part of it had been repaid.

The only question in the case was: 'Were the repairs and supplies in question furnished under such circumstances as would entitle the material men to the liens which they claimed?' If they were, this lien was superior to that created by the bill of sale or mortgage, whether prior or posterior in time, and the mortgage or most of it was cut out.

The District Court, in which the libel was originally filed, decreed for the material men; but the case coming before the Circuit Court, held by the Chief Justice in November, 1868, and therefore before the recent judgment in The Grapeshot, which explained what had been received as law since The Laura (Thomas v. Osborn), and more particularly since The Sultana 3 Reed), in which last case the court stated the rule thus:

'The proof of a necessity at the time of procuring a supply for a credit on the vessel. . . is as essential as that of the necessity of the article itself. . . . It is only under very special circumstances, and in an unforeseen and unexpected emergency, that an implied maritime hypothecation can be created'

and put the decision of the case upon the ground, not that the supplies were not necessary, but that there was no sufficient proof of necessity for the implied hypothecation of the vessel, or of any unexpected or unforeseen exigency that required it-the Circuit Court finding itself 'unable to make any distinction which had substance' between that case and the present, felt 'constrained' to reverse the decree, and with obvious reluctance deprived the material men of their lien.

The case was now here on appeal from that reversal, the case of The Grapeshot being in the meantime decided, and deciding that if there have been,

1. A necessity for the repairs—

2. If the credit have been given to the ship and not to the owner, master, or agent—

3. Then a presumption of necessity for the credit will arise, conclusive, in the absence of evidence to the contrary, if the material man has acted in good faith.

Messrs. Orville Horwitz and G. H. Williams, for the material men, appellants, relied on the case of The Grapeshot, decided, as above-mentioned, since the reversal below, a reversal, as they said, made only in deference to old authorities, now overruled or explained away by that more recent case. This was the end of the matter.

But, independently of that, the vessel was mortgaged in August, 1866, by the owners to the claimants, for about $2000 more than she was worth, according to the result of the sale. This mortgage was overdue and unpaid at the time of the libels filed. So that at the time of the repairs, confessedly needed, the owners had created a mortgage over and above the value of the steamer, which they had been unable to liquidate, and the effort here is to appropriate the labor and materials of the libellants towards the payment of that mortgage. Suppose that the onus of showing that the necessity for credit to the ship existed still remained on the libellants, the facts prove that those owners could have obtained no credit in a strange city on their personal responsibility.

Mr. William Meade Addison, contra:

Maritime liens are given but in the interests of commerce, and are not favored by the courts. They are allowed only from the necessities to which vessels in foreign ports may be exposed. In their origin they were never designed to apply to vessels in their own country, nor ought they now to apply to those vessels, which, though in reality belonging to a common country, are, by a pure fiction, deemed foreign vessels because owned by citizens of other States than those where they chance to be, except in cases of extreme necessity. It was a mooted question, until the decision, A.D. 1819, in The General Smith, whether the ships of one State were foreign as to another. If the question were a new one, now for the first time to be decided, a different rule perhaps would govern. Certainly in a country of United States, States separated often only by rivers, each State having ports directly in face of ports of the other, nothing seems more unreasonable than now to regard one port as foreign to the other. The great vessels of New York now have their docks at Jersey City opposite, for convenience, as those of Philadelphia have theirs at Camden, New Jersey, also opposite, for the same cause. How unreasonable to say that Jersey City is a port foreign to New York, and that of Camden foreign to the port of Philadelphia! And since The General Smith was decided, telegraphs and railways have changed the whole ground, even as to ports far separated, on which it was rested. Indeed, if there be anything that is especially National, and withdrawn from the operation of State laws, it is a vessel whose home is a port, not a State; whose flag is that of the Union, and not of any State; where National officers watch her, and control her, and tax her, and National custom-houses constitute the repositories of her papers.

Still with the safeguards thrown around the subject by the two decisions which it is said that The Grapeshot has explained away and overruled, we might admit that ships in one State are foreign as to another. The difficulty of creating a valid lien obliged the material man to inquire. Presumptions were against him, not in his favor. But if all old safeguards are thrown overboard, as it is said they are by The Grapeshot, there is great reason for treating as foreign ports only those ports which are so in fact, and of considering the power vested in a master to impawn his owner's ship or goods for necessaries furnished in a foreign port, as what it was originally declared to be, 'a legal indulgence founded on the urgency of the case, and intended for the general benefit of commerce,' and of obliging the person disposed and perhaps eager to trust, to show that he had inquired in the ship's home port as to whether the master had funds.

Again: 'Where money,' says Mr. Justice Bee, 'is borrowed on a ship before the voyage is begun, she is not answerable in the admiralty. The law means to favor the completion, not the commencement of a voyage.' Now, the Lulu while obtaining necessaries in the port of Baltimore must have made not less than eleven distinct voyages to Charleston and back. These repairs and supplies were all made, in the language above quoted, not to favor the completion of a voyage,' but the commencement' of eleven distinct voyages.

To sustain a lien under such circumstances would be an innovation upon the ancient and well-established principles of the admiralty law. It will have no precedent to support it; and arrayed against it are the principles of sound maritime policy and commercial fair dealing. This court in The Grapeshot in no wise impairs the force of its language, in Pratt v. Reid, where it says:

'These maritime liens in the coasting business, and in the business upon the lakes and rivers, are greatly increasing, and as they are tacit and secret, are not to be encouraged, but should be strictly limited to the necessities of commerce which created them. Any relaxation of this law in this respect, will tend to perplex and embarrass business rather than furnish facilities to carry it forward.'

Mr. Justice CLIFFORD delivered the opinion of the court.

title: The Lulu


text: Talk:The Lulu

title: Talk:The Lulu


text:
The Lulu/Opinion of the Court

Experience shows that ships and vessels employed in commerce and navigation often need repairs and supplies in course of a voyage, when the owners of the same are absent, and at times and places when and where the master may be without funds, and may find it impracticable to communicate seasonably with the owners of the vessel upon the subject.

Contracts for repairs and supplies, under such circumstances, may be made by the master to enable the vessel to proceed on her voyage, and if the repairs and supplies were necessary for that purpose, and were made and furnished to a foreign vessel or to a vessel of the United States in a port other than a port of the State where the vessel belongs, the prim a facie presumption is that the repairs and supplies were made and furnished on the credit of the vessel unless the contrary appears from the evidence in the case.

Where it appears that the repairs and supplies were necessary to enable the vessel to proceed on her voyage, and that they were made and furnished in good faith, the presumption is that the vessel, as well as the master and owners, is responsible to those who made the repairs and furnished the supplies, unless it appears that the master had funds on hand, or at his command, which he ought to have applied to the accomplishment of those objects, and that they knew that such was the fact, or that such facts and circumstances were known to them as were sufficient to put them upon inquiry and to show that if they had used due diligence in that behalf they might have ascertained that the master, under the rules of the maritime law, had no authority to contract for the repairs and supplies on the credit of the vessel.

Repairs and supplies amounting to eight thousand seven hundred and ninety-six dollars and twenty-one cents, as adjudged by the District Court, were made and furnished by the various parties mentioned in the record to the steamship Lulu, at the request of her master, while she was lying in the port of Baltimore, and the owners of the steamer refusing to pay for the same, those several parties, including the appellants in this case, filed separate libels against the steamer in the District Court to recover the amount of their respective claims. Monitions were issued in the several suits, and the steamer was arrested to answer to the allegations of the respective libels.

Appearance weas entered in each suit by the owners of the steamer as claimants, and on their petition, and pursuant to the order of the court, the steamer was sold by the marshal and the proceeds of the sale were paid into the registry of the court to abide such further order of the court as might be made in the respective causes.

Answers were filed by the claimants to the several libels and the suits were subsequently consolidated, and the order of the court was to the effect that they should be heard together.

Testimony was taken on both sides and the District Court entered a decree that the several libels filed in the case, except one, 'be allowed as liens against the steamer to the amount of the respective claims,' and by the decree of distribution the court awarded to the appellants the sum of two thousand three hundred and thirty-seven dollars and forty-six cents, as appears of record.

Appeal was taken from that decree by the claimants to the Circuit Court for the same district, where the parties were again heard, and the Circuit Court reversed the decree of the District Court and ordered, adjudged, and decreed that so much of the fund in the registry of the court as was applicable to the payment of the appellant's claim, under the decree of the District Court, should be paid to the claimants as the owners of the steamer. Dissatisfied with that decree the libellants appealed from the same to this court, and now insist that it ought to be reversed.

Prior to the twenty-fourth of August, 1866, the title to the steamer was in the grantors of the claimants, but the claimants admit, in their answers, that their grantors, as well as themselves, were residents of New York, and that the port of New York was the home port of the steamer. Whatever title they have was acquired by virtue of a bill of sale executed on that day, and the record shows that it is duly recorded in the custom-house of that port. Although the bill of sale is absolute in form the claimants allege that it was intended only as a mortgage, but the fact alleged is of no importance in the decision of the case, as it is admitted that the former owners, as well as the claimants, were residents of a State other than the one where the repairs were made and the supplies furnished, and that the steamer belonged to a port of the State where her owners resided.

When arrested the steamer had been engaged for a period of eleven months in carrying passengers and freight between the ports of Baltimore, in the State of Maryland, and Charleston, in the State of South Carolina, and the evidence is full to the point that the repairs made and the supplies furnished were necessary to enable the steamer to continue to make her regular trips between those ports and to fulfil the obligations to the travelling and commercial public which her owners had contracted. Argument upon that topic is quite unnecessary, as the point is conceded by the claimants, but they deny that the repairs and supplies were made and furnished on the credit of the steamer, or that the evidence shows that there was any necessity for any such credit to the steamer. Full proof is exhibited that the repairs were made and the supplies furnished in the several cases at the request of the master, and there is no proof whatever that he had any funds which he ought to have applied, or which he could have applied, to accomplish those objects or any other.

Attempt is made to show that the agent of the steamer had funds derived from freight which might have been so applied, but the evidence in the case fails to establish that theory and satisfies the court that he had no funds of the owners and that he was not under any obligations to grant them any further credit for that purpose.

Unless the repairs or supplies, as the case may be, are necessary to render the ship or vessel seaworthy or to enable her to prosecute her voyage, it is quite clear that the master, as between himself and the owners, is not authorized to make any such contracts or purchases either on the credit of the vessel or her owners. Such necessity usually arises when the ship or vessel is in a port distant from the owners, and oftentimes when they have no knowledge or means of knowledge as to the actual condition of the vessel, and it is chiefly for that reason that the authority is reposed in the master to act in their behalf and for the best interest of all concerned, but it should be borne in mind that his authority in that respect is limited to the circle of duties which that necessity requires should be performed before the owners can be consulted.

Merchants are not obliged to make advances to the master, nor to make repairs or furnish supplies at his request, and before they can safely do so they should be reasonably satisfied that the vessel needs what the master requests them to make and furnish, as the law supposes that the vessel is in the port where the request is made, and that they have the opportunity of making due inquiry and investigation upon that point.

Subject to that limitation the master is the agent of the owners for the voyage, and they are bound to the performance of all lawful contracts made by him relative to the usual employment of the ship and for repairs made and supplies furnished for her use in a foreign port.

Ports of States, other than those of the State where the vessel belongs, are for that purpose considered as foreign ports, and the authority of the master in contracting for repairs and supplies is not confined to such as are absolutely or indispensably necessary, but includes also all such as are reasonably fit and proper for the ship and the voyage. Where such repairs and supplies are reasonably fit and proper the master, if he has not funds and cannot obtain such on the personal credit of the owners, may obtain the same on the credit of the ship, either with or without giving a bottomry bond, as necessity shall dictate. Reasonable diligence in either event must be exercised by the merchant or lender to ascertain that the repairs and supplies were necessary and proper, as the master is not authorized to hypothecate the vessel unless such was the fact within the meaning of the maritime law.

Such necessity for repairs and supplies is proved where such circumstances of exigency are shown as would induce a prudent owner, if present, to order them, or to provide funds for the cost of them on the security of the ship.

Proof that the repairs and supplies were necessary will not in any case be sufficient to entitle the furnisher or lender to recover by a suit in rem against the vessel if it appear that the master had funds sufficient to execute the repairs and furnish the supplies, and that the party who made and furnished the same knew that fact, or that facts and circumstances were known to him sufficient to put him upon inquiry, and to show that if he had used due diligence he would have ascertained that no funds except such as the master already possessed were necessary for any such purpose.

Good faith is undoubtedly required of a party seeking to enforce a lien against a vessel for such a claim, but the fact that the master had funds which he ought to have applied to that object is no evidence to establish the charge of bad faith in such a case unless it appears that the libellant knew that fact, or that such facts and circumstances were known to him as were sufficient to put him upon inquiry within the principles of law already explained.

Express knowledge of the fact that the master had sufficient funds for the purpose is not necessary to maintain the charge of bad faith, as it is well-settled law that a party to a transaction, where his rights are liable to be injuriously affected by notice, cannot wilfully shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had actually been received; or in other words, the general rule is that knowledge of such facts and circumstances as are sufficient to put a party upon inquiry, and to show that if he had exercised due diligence he would have ascertained the truth of the case, is equivalent to actual notice of the matter in respect to which the inquiry ought to have been made.

None of these rules, however, have any application to a case where the master had no funds which could be applied to any such object, as the party making the repairs and furnishing the supplies could not know what was not true in point of fact, nor could he be put upon any inquiry in respect to any supposed funds which had no real existence.

Inquiry certainly need not be made as to the necessity for credit if the master has no funds nor any other means of repairing his vessel or furnishing her with supplies, and it is equally certain that proof of failure to institute inquiries is no defense to such a claim even if the master had funds, unless that fact was known to the libellant or such facts and circumstances were known to him as were sufficient to put him on inquiry and fairly subject him to the charge of collusion with the master or of bad faith in omitting to avail himself of the means of knowledge at hand to ascertain the true state of the case.

Whenever the necessity for the repairs and supplies is once made out, it is incumbent upon the owners, if they allege that the funds could have been obtained upon their personal credit, to establish that fact by competent proof, and that the libellant knew the same or was put upon inquiry, as before explained, unless those matters fully appear in the evidence introduced by the libellant.

Extended discussion of that question, however, is no longer necessary, as the principle is conclusively settled by a recent decision of this court. Where proof is made of necessity for the repairs and supplies, or for funds raised by the master to pay for the same, and of credit given to the ship, a presumption will arise, said the Chief Justice, in the absence of evidence to the contrary, of necessity for credit.

Remarks are found in two cases decided by this court quite at variance with that rule, but it is unnecessary to comment upon those cases or to enter into any explanation of those remarks, as it is clear that if they assert any different rule of decision they are in that respect directly overruled.

Whether the master has funds or not is a matter always known to him, and seldom or never known to merchants in the port selected by the master as a port for relief, unless they obtain it from the master. Masters, if they are honest, will not ask for such assistance when they are supplied with funds, and if they are dishonest they are not likely to communicate any facts to the merchant which would induce him to refuse to make the requested advances.

Inquiry as to the credit of the owners of the vessel, except of the master, would seldom be of any avail unless it was extended to the great majority of the merchants resident at the port of distress, and any rule which should impose that obligation upon the merchant as a condition to his right of action to recover the amount of his advances would in many cases operate as a denial of justice, as he could better afford to lose his claim than to incur the expense of making the required investigation.

Viewed in any light it is clear that necessity for credit must be presumed where it appears that the repairs and supplies were ordered by the master, and that they were necessary for the ship when lying in port or to fit her for an intended voyage, unless it is shown that the master had funds, or that the owners had sufficient credit, and that the repairer, furnisher, or lender knew those facts or one of them, or that such facts and circumstances were known to them as were sufficient to put them upon inquiry and to show that if they had used due diligence they would have ascertained that the master was not authorized to obtain any such relief on the credit of the vessel. Applying that rule to the present case the conclusion is inevitable that the decree in the Circuit Court was erroneous.

Decree in the Circuit Court is REVERSED, and the cause remanded with instructions to enter a decree

AFFIRMING THE DECREE OF THE DISTRICT COURT.

Soon after the preceding appeal was decided, two other appeals, both from the same court with it, and with facts which distinguished them little, if at all, from it in principle, were adjudged. They were

title: The Lulu/Opinion of the Court


text: Talk:The Lulu/Opinion of the Court

title: Talk:The Lulu/Opinion of the Court


text:
The Kalorama the Custer

THE case was exactly the same in both these appeals; which were accordingly argued with one set of briefs, on one set of depositions, contained in one record; the appeals having been, in fact, regarded at the bar as presenting throughout identically the same points. The case was thus:

Morgan, of New York, owning the steamer Kalorama, belonging to that port, and Comstock, of the same place, owning the Custer, belonging to the port of Georgetown, D. C., agreed with one Pendergast, of Baltimore, Md., who was disposed to purchase both steamers, that he should run them for two trips between Baltimore and Charleston, and if, after this trial, he liked the vessels, that he might purchase them. For the two voyages Pendergast was to charge 10 per cent. commission on the gross freights of the vessels, and to disburse the steamers, and to have all freights and disbursements insured for the benefit of the owners; and in case the vessels were not satisfactory after a trial of two trips, Pendergast was to retain them in the Southern trade on the same terms. Pendergast accordingly took the two vessels to make the trips, and the owners of them respectively being at the time in Baltimore, he with their consent changed the master, and selected some of the crew. After the two trial trips he elected not to make the purchase, and subsequently refused to disburse the vessels on the credit of the owners.

While in the port of Baltimore, the steamers needed repairs and supplies to enable them to make their trips to Charleston. The masters of neither vessel had funds which they could apply to the purpose, nor could either procure any on the credit of the respective owners. Pendergast therefore made repairs and furnished supplies to both; all of the repairs being made and the supplies furnished at the request of the masters in the absence of the owners, or at the request of the owners themselves when present in Baltimore, as they frequently were on the arrivals of the steamers in that port; and as the court considered that it was, in every case, 'quite clear' 'with the express understanding that the repairs were so made and furnished on the credit of the steamer.' Part of the supplies and repairs were made during the two trips made under the agreement, and part during two afterwards, but part of the bills had been paid before any libel was filed, and payments were made afterwards also. For the value of the repairs and supplies unpaid for, Pendergast brought a common law suit against the owners in one of the State courts of Baltimore, and while that suit was pending and undecided filed a libel for the same repairs and advances on the admiralty side of the District Court at Baltimore.

The District Court decreed in favor of the libellants, the amount allowed by it being for a less sum than had been disbursed by Pendergast after the first two trips had been made. The Circuit Court, the Chief Justice holding it, reversed the decree, he stating that he thought that a literal construction of the language used by this court in the cases of The Sultana and The Laura made it his duty as a Circuit Judge to do this; but stating it to be his opinion also that the Supreme Court did not, in those cases, intend to establish the law which the language used in the opinions in those cases seemed to announce, and that, considered in connection with the facts of the cases in which it was used, the language was susceptible of a different interpretation, and that this, the Supreme Court, in The Grapeshot and The Guy, which had been argued and were then pending before it, and which involved, as he considered, the same points, might give to it an interpretation, as he himself as a judge of this court might feel at liberty to do, which would necessitate the reversal of his own decrees and the affirmance of those of the District Court.

It was in these circumstances that the appeals came before this court.

Messrs. J. H. Thomas and S. T. Wallis, for the appellants:

Since the recently announced opinions of this court in The Grapeshot and the The Guy, there is nothing open in this case. The former case, explaining the ill-considered language of the opinions in The Sultana and The Laura, settles conclusively that the repairs and supplies, supposing them to have been furnished in the owner's absence, are a lien; and the case of The Guy, where obviously the owner was present, treats that feature as not qualifying the general principle.

We need say nothing about the writs issued out of the State court of Baltimore City; these proceedings in personam, are of course no bar to the right to maintain libels in rem; it being perfectly and long settled that creditors making advances to ships in a foreign port are entitled to a threefold remedy,-against the ship, the master, and the owners; that these are cumulative, not alternative, and that they may all be pursued simultaneously.

The judgment of the Circuit Court must be reversed, and that of the District Court affirmed, as of course.

Mr. William Shepard Bryan, contra:

1. The advances were made in pursuance of a contract entered into with the owners personally, by which the appellants assumed entire charge of the steamers for a series of voyages, and were to receive the specified compensation of 10 per cent. commission on the gross freights. They became the agents of the owners; freighted the ships, collected the freights, and paid their expenses. These agents appointed captain, officers, and crew, ordered supplies, and stood in the place of owners generally. There is nothing in the nature of a maritime lien in the case, but the case is the ordinary one of an agent against a principal for a settlement of accounts, and the remedy is by assumpsit at common law. Indeed, from such common law suit having been brought, it is plain that the suit in admiralty is an afterthought.

2. The claim maintained in the libels is for a tacit or implied hypothecation. Now all the authorities show that no one but the master can create these liens. The owner himself cannot do it, except where he also sustains the character of shipmaster or captain. This seems to be assumed as settled law in ''The Grapeshot. The Guy'' hardly decides that if the master be present the lien can exist. Such a doctrine would be in the face of the whole idea and nature of a maritime lien, such as is set up here. That lien exists only in case of a foreign vessel in a foreign port. It is an implied trust, founded on a necessity, and never existing without a necessity, proved or presumed. A constant argument against this class of liens has been that the master or material men could have communicated with the owner. This very argument is made in The Lulu; and that the port was not a foreign port, but, on the contrary, one where the owner was, or could readily come to.

If the lien can be created in a foreign port where the owner is, and appears, and acts, why shall it not exist, coeteris paribus, in the domestic port? Yet it does not exist there. No doubt an owner can either at home or abroad pledge his vessel, or he can sell her, and whether he have credit or no credit, funds or no funds. But an actual pledge is not here set up. The libel proceeds upon the idea of 'a maritime lien,' that sort of implied lien given to persons who, in cases of necessity, repair or supply a foreign vessel in a foreign port at the master's instance; an ancient, well-known, and well-defined lien.

But, independently of that question, everything was in this case defined by a contract, and Pendergast was to make the disbursements.

3. The suit in the State court of Baltimore is still pending. It may be proceeded in to judgment; and if a decree is sustained on this libel, two judgments would be had for the same claim. The pendency of the common law suit is a bar within the maxim, Nemo debet bis vexari pro e adem caus a.

Mr. Justice CLIFFORD delivered an opinion of the court in each of the cases, thus:

title: The Kalorama the Custer


text: Talk:The Kalorama the Custer

title: Talk:The Kalorama the Custer


text:
The Kalorama the Custer/Opinion of the Court

I. IN THE KALORAMA.

Advances for repairs and supplies to the steamer named in the pleadings were made by the libellants to an amount much larger than the sum claimed in the libel, and allowed in the decree of the District Court.

Payments made before the suit was instituted were deducted from the claim as set forth in the libel, and it was ordered, adjudged, and decreed by the District Court, that there was due to the libellants at the date of the decree the sum of five thousand one hundred and thirty-two dollars and thirty-six cents as a lien upon the steamer, for which the stipulators for value were liable.

Process was duly served in the District Court, and the owner of the steamer appeared as claimant and filed an answer setting up several defences, as follows: (1.) That the repairs and supplies were not necessary, as alleged in the libel. (2.) That they were not made and furnished on the credit of the steamer. (3.) That the steamer is not chargeable with the moneys advanced for the repairs and supplies described in the libel, as they were not made and furnished under a maritime contract. (4.) That the libellants brought a common law suit for the same cause of action before the libel was filed, and that the same is still pending and undecided.

None of these defences call in question the correctness of the charges in the account, and no motion was made to refer the cause to an assessor to report the amount of the expenditure nor was any exception taken to the finding of the District Court in that behalf.

Appeal was taken by the owner and claimant of the steamer from the decree of the District Court to the Circuit Court, where the decree of the District Court was reversed.

Remarks respecting the correctness or incorrectness of the accounts exhibited in the record may well be omitted, as it is not pretended that, in view of the evidence, there can be any well-founded doubt that the advances were made as therein set forth.

Distinct issues of law are presented in the pleadings, and the District and Circuit Courts differed as widely as the parties; the former holding that the advances were a lien upon the steamer under the general rules of the maritime law. On the other hand the Circuit Court, in deference to certain expressions contained in the opinions of this court in the two cases of Thomas v. Osborn and Pratt v. Reed, held that the advances were the mere personal debt of the owner, that they did not constitute a lien upon the steamer, and accordingly dismissed the libel, which was a libel in rem against the steamer, setting up a maritime lien. Whereupon the libellants appealed to this court, and now seek to reverse that decree.

Before examining the special defence set up by the respondent, growing out of the contract of the libellants to employ the steamer in two or more trips between Baltimore and Charleston, it becomes necessary to define with some precision what is meant by a maritime lien as affording a security for such advances, and under what circumstances it arises where repairs are made or supplies are furnished to a vessel engaged in commerce and navigation.

In considering that question it will be sufficient to state that the owner of the steamer throughout that period was a resident of the city of New York, and that the port of New York was the home port of the steamer, as conceded by both parties. Proof satisfactory to both courts was introduced, showing that the steamer needed the repairs and supplies when the advances were made by the libellants, and that they were made while the steamer was lying in the port of Baltimore, where the libellants resided, to enable the steamer to continue her regular trips as contemplated by her owner; that her master had no funds which he could apply to that purpose, nor could he procure any on the credit of the owner, and that all of the advances were made at the request of the master, in the absence of the owner, or by the owner in person when he was present.

Contracts or claims for service or damage purely maritime, and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty. Wherever a maritime lien arises in such a contract or claim, as in controversies respecting repairs made or supplies furnished to a ship, or in case of collision, the injured party may pursue his remedy, whether it be for a breach of a maritime contract or for a marine tort, by a suit in rem against the vessel, or by a suit in personam, at his election, against the owner, or against the master and owner in cases where they are jointly liable for the alleged default.

By the civil law a lien upon the ship is given, without any express contract, to those who repair the vessel or furnish her with necessary supplies, whether the vessel was at her home port or abroad, when the repairs and supplies were made and furnished.

But the only lien which the common law recognizes in such cases, independent of statutory regulations, is the possessory lien, which arises out of, and is dependent upon, the possession of the ship, as in cases where goods are delivered to an artisan or tradesman to be repaired or manufactured. Such a lien, as understood at common law, did not attach unless the ship was in the possession of the person who set up the claim, and the extent of the privilege which it conferred was that he might retain the ship in his possession until he was paid the money due him for the repairs made and the supplies furnished. Until paid he might refuse to surrender the ship, but if he relinquished the possession of the ship his lien was displaced and extinguished.

In jurisdictions where the rules of the common law prevail the shipwright who works upon the ship, without taking possession of it, or if he parts with the possession before collecting what is due for his services, is not deemed to be a privileged creditor, nor is the merchant so considered who furnishes the ship with necessary supplies unless the ship is placed within his control.

Important alterations have recently been made in those rules of decision by acts of Parliament; but it is not necessary to pursue that inquiry, as those rules were never regarded as rules of decision in the admiralty courts of this country exercising jurisdiction under the present Constitution and the laws of Congress. On the contrary, some of the Federal courts, immediately after their organization under the Judiciary Act, decided that repairs made and supplies furnished to a ship, if made and furnished on the credit of the ship, were a lien upon the ship, whether she was at the time in her home port or in a foreign port. Other district judges were of the opinion that a maritime lien did not arise if the repairs were made and the supplies were furnished in the home port of the vessel, and some uncertainty for a time prevailed upon the subject until the same was examined by this court, when the question was put at rest.

Such a lien is a privilege in the thing, and is not dependent upon possession or registry, nor is it displaced, as in a contract of affreightment, when possession is relinquished, unless the circumstances are such as to show that it was waived; nor is it lost by delay, unless for such a time as to show gross laches, and to afford a reasonable presumption that it was abandoned.

Where repairs had been made and supplies furnished to a foreign ship, or to a ship in a port of the State to which she does not belong, the general maritime law, said Judge Story, following the civil law, gives the party a lien on the ship itself for security, and he may well maintain a suit in rem in the admiralty to enforce his right.

Many of the rules of the general maritime law are doubtless drawn from the civil law; but it is not quite correct to say that the maritime law of the United States, as laid down in that case, follows the civil law in respect to the lien conceded to the shipwright and tradesman who make repairs and furnish supplies to ships engaged in commerce and navigation, as the civil law extends that privilege to such repairers and furnishers without any such distinction between domestic and foreign vessels, as that which is constantly maintained in the decisions of this court.

Ports of States other than those where the vessel belongs are for that purpose considered as foreign ports, and of course the port where the steamer in this case was lying when the repairs were made and the supplies were furnished must be regarded, as between the parties in this controversy, as a foreign port.

Controversies respecting such liens usually arise in cases where the repairs or supplies were ordered by the master without any express directions from the owner, and in such cases the repairer or furnisher must prove affirmatively that the ship needed such repairs and supplies, as the authority of the master in such a case is implied from the necessity for the repairs or supplies, the want of funds for that purpose, the inability to procure the same, and the absence of the owner.

Where it appears that the repairs and supplies were necessary to preserve the ship in port, or to enable her to proceed on her voyage, and that they were made and furnished in good faith, the presumption is that the ship, as well as the master and owner, is responsible to those who made the necessary advances, and it is clear that the necessity for credit must be presumed where it appears that the repairs and supplies were ordered by the master, and that they were necessary for the ship, unless it is shown that the master had funds or that the owner had sufficient credit, and that the repairers, furnishers, and lenders of the money knew those facts or one of them, or that such facts and circumstances were known to them as were sufficient to put them upon inquiry, and to show that if they had used due diligence they would have ascertained that the master was not authorized to obtain any such relief on the credit of the vessel.

Subject to those conditions, the master, in the absence of the owner, is vested with the authority to order necessary repairs and supplies, but it is no objection to his authority that he acted on the occasion under the express instructions of the owner, nor will the lien of those who made the repairs and furnished the supplies be defeated by the fact that his authority emanated from the owner instead of being implied by law.

When the owner is present the implied authority of the master for that purpose ceases, but if the owner gives directions to that effect the master may still order necessary repairs and supplies, and if the ship is at the time in a foreign port, or in the port of a State other than that of the State to which she belongs, those who make the advances will have a maritime lien, if they were made on the credit of the vessel.

Grant all these several propositions, still it is contended by the respondent that no such lien arises in this case because, as he insists, the repairs were made and supplies furnished in pursuance of a contract with the owner, by which the appellants assumed the entire charge of the steamer for a series of trips and were to receive the specified compensation of ten per cent. commission on the gross freights.

Doubtless some of the repairs and supplies were ordered by the owner, and the respondent contends that the appellants, by virtue of the arrangement, became the agents of the owner, and that it was in that capacity that they freighted the steamer and paid the expenses of the repairs and supplies, without any other lien upon the steamer than that given by the common law.

Strong doubts are entertained whether the written agreement, even if it had continued in force without alteration, and if the advances in question had been made under it, would support the theory set up by the respondent, but it is not absolutely necessary to decide that point, as it is quite clear that the repairs were made and supplies furnished in every case either by the order of the master or the owner, and with the express understanding that they were so made and furnished on the credit of the steamer.

They employed the steamer, in the first place, under the written agreement of the fourteenth of March, 1866, for two trips between Baltimore and Charleston, and it was agreed that they were to receive ten per cent. commissions on the gross freights, and that they should disburse the steamer, but they also stipulated to have the freights and disbursements insured for the benefit of the owner, which shows to a demonstration that they were not owners for the voyage. Suggestion is made that they changed the master and selected some of the crew, but the evidence shows that all those acts were performed by the consent of the owner and subject to his approval. Much the larger portion of the advances was paid before the libel was filed, and additional payments have since been made.

Viewed, as the state of the case was, at the date of the decree entered in the District Court, it is not doubted that an amount much greater than the amount allowed in that decree had been disbursed by the libellants for repairs and supplies to the steamer subsequent to the two trips made under the written agreement. Suppose the libellants had no lien for the disbursements made under that agreement, which is not admitted, still it is fully proved that the appellants, subsequent to the two trips, refused to make further advances on the credit of the owner, and that the owner expressly requested that the advances should be made on the credit of the steamer.

Implied liens, it is said, can be created only by the master, but if it is meant by that proposition that the owner, or owners, if more than one, cannot order repairs and supplies on the credit of the vessel, the court cannot assent to the proposition, as the practice is constantly otherwise.

Undoubtedly the presence of the owner defeats the implied authority of the master, but the presence of the owner would not destroy such credit as is necessary to furnish food to the mariners and save the vessel and cargo from the perils of the seas.

More stringent rules apply as between one part-owner and another, but the case is free from all difficulty if all the owners are present and the advances are made at their request, or by their directions, and under an agreement, express or implied, that the same are made on the credit of the vessel. Were it not so mariners would refuse to ship for distant ports if the owner was to remain with the ship, either as supercargo or passenger, unless it was known that he had credit everywhere, as in case the ship should become disabled and need repairs and provisions the most reliable means of relief would be withdrawn, and it is not difficult to imagine a case where life and property might be lost because the owner was on board and without personal credit.

Decree of the Circuit Court REVERSED, and the cause remanded with directions to enter a decree

AFFIRMING THE DECREE OF THE DISTRICT COURT.

II. IN THE CUSTER.

Jurisdiction, it is conceded, is vested in the district courts, by the ninth section of the Judiciary Act, to enforce maritime liens by a suit in rem in all cases where such liens arise, whether the libel is for the breach of a maritime contract or to recover damages for a marine tort.

Repairs were made and supplies furnished by the appellants to the steamer named in the pleadings, and the owners of the steamer refusing to pay for the same, the appellants filed their libel in the District Court for the District of Maryland, and caused the steamer to be arrested, claiming that the repairs and the supplies were a lien upon the steamer. Appearance was entered by the owners of the steamer, as claimants of the same, and they filed an answer setting up the same defences as those pleaded by the owner of the steamer in the suit just decided. Testimony was taken by both parties in the two suits, as exhibited in the transcript of the other suit, and the parties entered into a stipulation that reference might be made in the trial of this suit to the depositions printed in the other, and that both should be heard at the same time.

Two principal questions, it seems, were discussed in the District Court. (1.) Whether the evidence showed that the credit for the repairs and supplies was or was not given to the steamer, under the rules of the maritime law as understood and administered in the Federal courts. (2.) Whether the repairs made and the supplies furnished, in view of the circumstances, became a lien upon the steamer. Both of those questions were answered by the district judge in the affirmative, and the court entered a decree for the libellants in the sum of six thousand four hundred and ninety-six dollars and sixty-three cents against the owners of the steamer and the stipulators for value. Appeal was taken by the respondents to the Circuit Court, where the decree of the District Court was reversed, upon the ground that the evidence in the transcript, if tested by the rules laid down in Thomas v. Osborn, and in the case of Pratt v. Reed, does not show the existence of any such lien.

Since that ruling was made the whole subject has been very fully reconsidered by this court in the case of The Grapeshot, in which the opinion was given by the Chief Justice. Viewed in the light of that decision, and of the opinion of the court in the case of The Lulu, lately delivered, as the case must be, it is clear that further discussion of the same is unnecessary, as it is conclusively settled that 'where proof is made of necessity for the repairs and supplies, or for funds raised to pay for the same, and of credit given to the ship, a presumption will arise, conclusive in the absence of evidence to the contrary, of necessity for credit,' or, in other words, the necessity for credit must be presumed where it appears that the repairs and supplies were necessary, unless it is shown that the master had funds, or that the owner had sufficient credit, and that the person or persons making the advances knew those facts or one of them, or that such facts and circumstances were known to them as were sufficient to put them upon inquiry, and to show that if they had used due diligence in that behalf they would have ascertained that the master was not authorized to obtain any such relief on the credit of the steamer.

Suppose that defence cannot be sustained, still the respondents insist that the steamer is not liable for the advances made by the appellants, because the decree, as they contend, falls within the rule laid down in the case of Minturn v. Maynard, where it was held that a libel in personam could not be maintained to recover a balance of account, consisting of moneys paid, laid out, and expended for the respondents in payment for repairs and supplies to a steamer owned by the debtors, together with charges for commissions and for advertising the steamer.

Examples might easily be given where a party may sue in the admiralty or in the common law courts at his election, but it is unnecessary to express any doubts as to the correctness of the rule laid down in that case, as it is clear that it does not control the case before the court even if the rule be admitted to be correct without any qualification.

Undoubtedly the appellants took charge of the steamer for two trial trips between Baltimore and Charleston, and by the terms of the written agreement entered into at that time they were to receive for the services rendered in those trips a commission of ten per cent. on the gross freights of the steamer, but they also stipulated to disburse the steamer, and to insure the freights and disbursements for the benefit of the owners. They took the steamer on trial for those two trips with a view to purchase her in case they were 'satisfied with the vessel,' but they elected not to make the purchase, and subsequently refused to disburse the steamer on the credit of the owners. Uncontradicted as the evidence is upon this point, it does not seem necessary to reproduce it, especially as it is all one way.

Objection is also made that the advances cannot be held to be a lien upon the steamer, because some of the repairs and supplies were ordered by the owners in person, but the objection is entitled to no weight, as the evidence shows that it was expressly agreed that the advances should be furnished on the credit of the steamer.

Payments have been made by the respondents since the decree was entered in the District Court, but the court here is not asked to revise the finding of the District Court as to the amount, nor to deduct the payments since made, as those matters will be adjusted under the stipulations executed between the parties.

Suggestion is also made that the lien was waived by the commencement of an action for the advances in the State court, but the record shows that the action is still pending, and it is well-settled law that the pendency of such an action is no bar to a suit in a Federal court.

Had the judgment been rendered it might be different, but it is clear that the rule transit in rem judicatam cannot apply during the pendency of the action.

All sums collected in that proceeding have been duly credited in this case, and it is fully proved that the whole amount included in the decree of the District Court was properly cognizable in the admiralty.

Decree of the Circuit Court is REVERSED, and the cause remanded with directions to enter a decree

AFFIRMING THE DECREE OF THE DISTRICT COURT.


text: Talk:The Kalorama the Custer/Opinion of the Court


text:
Braun v. Sauerwein

ERROR to the Circuit Court for the District of Maryland; the case being thus:

An act of Congress, passed July 13th, 1866, and which by its terms took effect on the 1st of August of that year, enacts:

'That no suit shall be maintained in any court, for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof, and a decision of said commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decision, or within six months from the time this act takes effect. Provided, that if said decision shall be delayed more than six months from the date of such appeal, then said suit may be brought at any time within twelve months from the date of such appeal.'

With this statute in force, Braun, on the 18th of February, 1868, brought suit in one of the State courts of Maryland against Sauerwein, a collector of internal revenue, to recover a sum of money alleged to have been illegally exacted by him, in virtue of his office, from the plaintiff.

The defendant pleaded a statute of limitation of the State of Maryland, which bars actions of this nature unless brought within three years from the time when the right of action accrued. The plaintiff replied, that after the defendant had received the money for which the suit was brought, the plaintiff duly appealed from the assessment and collection thereof made by the defendant, to the Commissioner of Internal Revenue of the United States, according to the provisions of law and in conformity to the regulations of the Secretary of the Treasury; that a decision of his appeal was not made until on or about the ___ day of February, 1868, and that his suit was brought within six months from that date. But the replication, it will be observed, did not aver when the appeal was laken, nor the day when it was decided. The case being removed after this into the Circuit Court of the United States, under certain acts of Congress, the defendant rejoined, averring that the money alleged to have been taken, was received on the 2d day of February, 1864, and not afterwards, and that the appeal of the plaintiff to the Commissioner of Internal Revenue was taken on the 20th of August, 1867, and not before; and that the decision of the appeal by the commissioner was made on the 11th of January, 1868. To this rejoinder the plaintiff then demurred. The court overruled the demurrer, and judgment went for the defendant.

The case, therefore, as worked out by the pleadings, and with its facts arranged in order of time, stood thus:

The collector took the money and the cause of action arose, February 2, 1864.

The act of Congress took effect, August 1, 1866.

The appeal to the Commissioner of Internal Revenue was taken, August 20, 1867.

The commissioner decided the appeal, January 11, 1868.

The suit was brought, February 18, 1868.

It thus appeared that more than three years had elapsed after the cause of action accrued before the suit was brought, and more than three years before the appeal was taken to the Commissioner of Internal Revenue; that the statute began to run on the 2d of February, 1864, and supposing that nothing intervened to suspend its operation, that the bar would have been complete on the 2d of February, 1867.

The question was, whether the act of Congress of the 13th of July, 1866, had, under the facts of this case, worked such a suspension as that the suit, though thus brought four years and sixteen days after the cause of action accrued, was still unbarred by the Maryland statute.

The court below, in overruling the demurrer, decided that it had not; and the correctness of that view was the only important point now here on error.

Messrs. Brent, Crittenden, and Hughes, for the plaintiff in error:

As we could not sue after the 13th July, 1866 (the date of the act of Congress), until an appeal taken and a decision thereon, and as our replication avers that the appeal was duly made (a matter not denied in the rejoinder), the appeal must be taken to have been in time. The rejoinder then shows a decision of that appeal on the 11th day of January, 1868, and this suit being brought on the 19th February, 1868, some thirty-nine days after the appeal, it results that if we deduct the whole term between the 13th July, 1866, and 11th January, 1868 (date of the decision), we have only two years, five months, and twenty days left between the receipt of the money on the 2d February, 1864, and the bringing of this suit on the 19th February, 1868. The State statute of three years could not therefore bar the action.

We make no point as to whether the suit was properly transferred under any act of Congress, though, possibly, one might be raised.

Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Braun v. Sauerwein


text: Talk:Braun v. Sauerwein

title: Talk:Braun v. Sauerwein


text:
Braun v. Sauerwein/Opinion of the Court

It is undoubtedly a general principle, that when a statute of limitation has begun to run, a disability to sue subsequently intervening does not stop its running, even though the disability be one of those expressly recognized in the statute itself. Notwithstanding this, however, the courts in this country have engrafted upon such statutes at least one implied exception. Thus, in Hopkins v. Bell, this court held that the treaty of peace of 1783, by which the independence of the United States was acknowledged by Great Britain, prevented the operation of a Virginia statute of limitations upon debts due to British subjects, and contracted before the treaty was made. In that case, though the statute had begun to run before the commencement of the war in 1775, the time during which it had thus run was not allowed to be added to any time subsequent to the treaty. This, perhaps, is not to be regarded as a clearly judicial exception, incorporated into the Virginia statute. It was rested upon the force of the treaty which declared that creditors on either side (British or American), should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts theretofore contracted. The treaty, however, was not the act of Virginia, and the suspension of the statute's operation was by something outside of the statute itself. But in Hanger v. Abbott it was ruled, after grave consideration, that the time during which the courts of the recently rebellious States were closed to the citizens of other States, is, in suits brought by such citizens, to be excluded from the computation of the time fixed by statutes of limitation, within which only suits may be brought, and this, though the statutes contain no such exception. In other words, it was held that the statutes of limitations of the insurrectionary States were suspended, while the courts in those States were closed by the war. Similar decisions have been made in the State courts. They all rest on the ground that the creditor has been disabled to sue, by a superior power, without any default of his own, and, therefore, that none of the reasons which induced the enactment of the statutes apply to his case; that unless the statutes cease to run during the continuance of the supervening disability, he is deprived of a portion of the time within which the law contemplated he might sue.

It seems, therefore, to be established, that the running of a statute of limitation may be suspended by causes not mentioned in the statute itself. Assuming, then, that the act of Congress did, for a time, stop the running of the Maryland statute against the plaintiff, the inquiry remains, how long did the suspension continue? To this there can be but one answer. Manifestly, only so long as he was prevented from suing by the act of Congress. The act, speaking from August 1st, 1866, prohibited a suit until he should appeal to the Commissioner of Internal Revenue, and until his appeal should be decided, unless the decision should be postponed longer than six months, in which case he was at liberty to sue within a year from the time when his appeal was taken. The interval between the appeal and its decision, then, was the entire period during which he was disabled by the act. If, in fact, he was disabled a longer time, the prolonged disability was caused by his own neglect to appeal. The replication to the defendant's pleas fail to state when the appeal was made. True, the averment is, it was duly made, but that is pleading a conclusion of law rather than a fact. The time when the appeal was taken was material to show how long the statute of limitation was suspended. The effect of the replication was only to aver that the statute was suspended for a time. Nothing more was well pleaded by it. Instead of meeting it by a demurrer, however, the defendant rejoined, setting forth the date of the appeal, and the date of its decision, and the plaintiff demurred to the rejoinder. It is thus admitted that the plaintiff's appeal was pending only from August 20th, 1867, to January 11th, 1868, four months and twenty-two days. The act of Congress denied to him a right to sue during that period, and no longer. The time which he permitted to elapse between August 1st, 1866 (when the act of Congress took effect), and August 20th, 1868, when he appealed, was not taken from him by any controlling power. He lost it by his own delay. It would be giving a most unreasonable construction to the act were we to hold, that by merely delaying to appeal, when it was all the time in his power, he could have suspended the running of the statute indefinitely. Deducting, then, the four months and twenty-two days, during which his appeal was pending, and during which he was disabled, from the four years and sixteen days that elapsed between the inception of his right to sue and the commencement of his suit, there remain much more than three years in which he was under no disability, except such as was imposed by himself. The judgment of the Circuit Court on the demurrer was, therefore, correct.

It remains only to add that the case was well removed into the Circuit Court of the United States.

JUDGMENT AFFIRMED WITH COSTS.

title: Braun v. Sauerwein/Opinion of the Court


text: Talk:Braun v. Sauerwein/Opinion of the Court