text:
Armstrong v. Morrill/Dissent Strong

Mr. Justice STRONG, with whom concurred Justices DAVIS and BRADLEY, dissenting.

In the view which a majority of my brethren take of one branch of this case, I am unable to concur.

The plaintiff in the court below claimed title to the land in controversy under a patent of the State of Virginia, granted to Albert Gallatin on the 10th day of February, 1786. It does not appear that any possession was ever taken under this patent, but on the 1st of November, 1836, the lands were forfeited to the State for failure by the owners to make entry thereof upon the commissioners' books, for taxation. On the 12th of February, 1844, however, an act of the legislature was passed for the relief of Dundas and Kugler, who had become the grantees of the Gallatin right, by which they were allowed to redeem the lands, on the payment of all taxes and damages due thereon, and on the 8th day of May, 1845, the redemption was made. The plaintiff has no other title.

The defendants claim as grantees by sundry mesne conveyances through James T. Watson from Samuel M. Hopkins, who also obtained a patent from the State, dated July 1st, 1796.

I agree that neither this patent to Hopkins, nor any legislation of the State affecting it, presents any sufficient defence to the claim of the plaintiff under the earlier patent to Albert Gallatin. But the defendants set up in the court below another defence. It was that they were protected by the statute of limitations. They submitted evidence tending to prove that they, or those through whom they claim, took actual and adversary possession of the lands in 1827, and that such possession had been continued until the institution of this suit. Relying upon this, they presented to the court the following two points (among others), and requested that they might be given as instructions to the jury:

'Fourth. If the jury are satisfied from the evidence that adversary possession commenced before the 1st of November, 1836, and the same possession continued during the time of the forfeiture, as well as from the 8th of May, 1845, the time of redemption, up to the time of the institution of this suit, and by adding the time of adversary possession before forfeiture to the adversary possession after redemption makes a period of fourteen years, then they must find for the defendants, or such of the defendants as make out the fourteen years as aforesaid.

'Fifth. That the act of 1844, which authorized Dundas and Kugler to redeem the lands therein specified, did not so operate as to relieve them from the effect of the statute of limitation, which had commenced running for the defendants before the forfeiture, if the jury believed the defendants continued their possession without interruption during the forfeiture, and up to the time of redemption, and that the defendants continued the possession up to the time of the institution of this suit.'

Both these points the court refused to affirm, and, on the contrary, charged the jury that on the 1st of November, 1836, the possession of the defendants terminated and passed into and remained in the Commonwealth until the same was transferred to Dundas and Kugler by the act of February 12th, 1844, and that the adverse possession acquired by the defendants before November 1st, 1836, could not be connected with the adverse possession acquired by the defendants after Dundas and Kugler became revested with the title of the Commonwealth. Herein, I think, was clear error. Plainly, had there been no forfeiture, the adversary possession of the defendants, kept up continuously during fourteen years, would have protected them against any right of entry by the plaintiff. The forfeiture did not disturb their actual possession, nor their possession under claim of exclusive right in themselves, which is what is meant by adversary. I agree that their possession between the forfeiture and the redemption gave them no right as against the State. This is not because their possession was not adversary, nor because the actual possession was transferred by law to the Commonwealth, but because adversary possession is unavailing to bar any rights of the State, it not being subject to statutes of limitation, unless expressly named. The defendants here are not asserting their adversary possession against the State. The controversy is between them and one claiming under the Gallatin title, which, though at one time forfeited to the State, was allowed to be redeemed. They claim nothing against the State on account of their possession from November 1st, 1836, to May 8th, 1845, though it was adversary and uninterrupted, either by abandonment or by the entry of the State or of the plaintiff.

But why is not that possession operative against the plaintiff? I think it is. As between him and the defendants, nothing but an entry or an action brought was sufficient to change the character of their possession or break its continuity. It is not, however, necessary to discuss this. It is sufficient for this case that the defendants held actual and continuous possession of the lands from 1827 until 1857, when this suit was brought; that the possession was always adversary to the plaintiff; that he never took any steps to disturb it, and that he has had more than fourteen years within which he might have asserted his right.

Concede that the plaintiff's right of entry was suspended by the forfeiture, still it revived when the lands were redeemed, and if the defendants' possession was adverse to his right, and continuous during fourteen years in which he might have entered or asserted his right by action, I am unable to perceive why he is not barred.

The fact that an owner's right of entry has been suspended, after the statute has commenced running against him, can be of no importance, if he has had the statutory period within which to bring his action against the disseizor in adverse possession. If this is not so, then war might not only suspend the running of the statute, but render of no effect all adverse possession held before the war commenced. This has never been asserted. It is the uninterrupted, adverse possession alone which creates the bar. It is not essential to it that the right to enter or to bring suit should have suffered no interruption.

Every reason for applying the statute, which would have existed had there been no forfeiture, and consequently no suspension of the plaintiff's right to enter, exists in full force now. Statutes of limitation are dictated mainly by two considerations: one, that it is public policy to discourage stale claims; and the other, that it is not to be presumed that one having a right would delay asserting it for a long period in full view of another's wrongful interference with it. Hence, the period was fixed at fourteen years, in Virginia and West Virginia, within which a party out of possession may bring his action of ejectment against one in possession holding adversely. Assuming that the jury would have found the facts as stated in the points proposed, the plaintiff has had that entire period, and the public policy, as well as the presumptions arising from his laches, which gave birth to the statute, apply, in all their potency, to his case. And the statute is not only a bar to the assertion of a right of entry upon one in adverse possession after the expiration of the period fixed, but it gives a title to the disseizor. The law casts title upon him, and assures to him the privilege of asserting it, either aggressively or defensively. For the acquisition of this right the defendants have done all that the law contemplates. They entered under a claim of exclusive right, that is, adversarily, and they held that adversary possession continuously until this suit was brought. That the Gallatin title was forfeited during their occupancy was no fault of theirs. It was due to the wrongful neglect of the plaintiff, or those under whom he claims, to enter the lands upon the commissioners' books, and to pay the taxes. Can he now make use of a forfeiture, caused by his own neglect, to obtain or preserve rights which, confessedly, would have no existence but for his neglect? Yet this was, in substance, the instruction given to the jury. His laches, resulting in a forfeiture, is to have the same effect as an entry would have had, or as action brought. Thus he is allowed to secure an advantage through his own default. Thus he is allowed to make use of his own unlawful nonfeasance to break the continuity of the defendants' hostile possession. I cannot assent to such a view of the law.

Had the Commonwealth, after the forfeiture of the Gallatin title, granted the land to some other grantee, I agree that such grantee would not be affected by any adverse possession of the defendants held by them before the forfeiture, of less duration than fourteen years. But such was not the case. The holders of the Gallatin title were allowed to redeem. The nature of the transaction by which they became reinvested with the title is plainly seen in the act of February 12th, 1844, passed for their relief. Its preamble recited that the lands had become forfeited by reason of failure to enter the same on the books of the Commissioners of the Revenue for taxation, and that Dundas and Kugler, the trustees of the North American Land Company, for whose use the title had been held, had petitioned for permission to redeem said lands, on payment of the taxes assessed, together with six per centum per annum damages thereon. The first section authorized them to redeem on those terms, on or before June 1st, 1845. The second section released unto them, for the benefit of the shareholders of the company, all the right, title, and interest which had been forfeited upon the payment of said taxes and damages. The third section authorized a judgment against the lands for the amount of costs incurred, and for reasonable compensation to any commissioner of delinquent and forfeited lands by reason of his having prepared the redeemed lands for sale; and the fourth section directed all proceedings by such commissioners to be suspended until after June 1st, 1845. It thus appears that the redemption was not the acquisition of a new title. It was the common case of a waiver of a forfeiture. Dundas and Kugler, after the redemption, held by their old right, the Gallatin patent, and it was this right which the plaintiff gave in evidence and asserted in the present action. No new patent was issued to Dundas and Kugler. The act of 1844 contains no words of grant to them, and its avowed purpose was to place them in the same position, as holders of the title and trustees of the company, which they occupied before the forfeiture.

I am, therefore, of the opinion that the Circuit Court erred in refusing to affirm the defendants' fourth and fifth points, and also in the instruction which was given to the jury respecting the effect of the statute of limitations. For this reason I think the judgment should be reversed, and that a venire de novo should be awarded.

title: Armstrong v. Morrill/Dissent Strong


text: Talk:Armstrong v. Morrill/Dissent Strong

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


text:
Ex parte Newman

PETITION for writ of mandamus to the United States Circuit judge for the Eastern District of New York; the case being thus:

The Constitution ordains that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.'

The 10th article of the treaty of the United States with the King of Prussia, made May 1st, 1828, contains this provision:

'The consuls, vice-consuls, and commercial agents shall have the right as such to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews, or of the captain, should disturb the order or tranquillity of the country; or the said consuls, vice-consuls, or commercial agents, should require their assistance to cause their decisions to be carried into effect or supported. It is, however, understood that this species of judgment or arbitration shall not deprive the contending parties of the rights they have to resort on their return to the judicial authority of their country.'

'All treaties made, or which shall be made, under the authority of the United States,' it is ordained by the Constitution of the United States, 'shall be the supreme law of the land.'

With this treaty thus in force, the mate and several of the crew, all Prussians-who had shipped in Prussia on the Prussian bark Elwine Kreplin, under and with express reference, made in the shipping articles, to the laws of Prussia-got into a difficulty at New York with the master of the bark, who caused several of them to be arrested on charges of mutiny and desertion. They, on the other hand, took the case before the Prussian consul; denying all fault on their part, and claiming wages. The vice-consul heard the case, and decided that on their own showing they had forfeited their wages by the Prussian law applied to their contract of shipment. In addition to this he issued a requisition addressed to any marshal or magistrate of the United States, reciting that the master and crew had been guilty of desertion, and requiring such marshal or magistrate to take notice of their offence.

The mate and men now filed a libel in the District Court at New York against the bark for the recovery of wages (less than $2000), which they alleged were due to them; and the bark was attached to answer. The master of the bark intervening for the interest of the owners answered, and set up various grounds of defence to the claim, some of which arose under the laws of Prussia, and especially he invoked the protection of the clause in the above-quoted treaty between his country and this, and denied the jurisdiction of the District Court, alleging, moreover, that the matter in difference, the claim of the libellants for wages, had already in fact been adjudicated by the Prussian consul at the port of New York.

Before the cause was tried in the District Court, the consulgeneral of the North German Union presented to that court his formal protest against the exercise of jurisdiction by that court in the matter in difference. He invoked therein the same clause in the treaty, and claimed exclusive jurisdiction of such matters in difference; and declared also that, before the filing of the libel the matter had been adjudicated by him, and insisted that his adjudication was binding between the parties, and could only be reviewed by the judicial tribunals of Prussia.

The District Court proceeded notwithstanding to hear and adjudge the case; placing its right to do this, on the ground that the suit before it was a proceeding in rem to enforce a maritime lien upon the vessel itself, and not a 'difference between the captain and crew;' and, also, because the Prussian consul had no power to conduct and carry into effect a proceeding in rem for the enforcement of such a lien, and had not in fact passed at all and could not pass upon any such case. Accordingly after a careful examination of the facts, that court decreed in favor of the libellants $712. The case then came by appeal to the Circuit Court. This latter court considered that the District Court had given to the treaty too narrow and technical a construction. The Circuit Court said:

'The master is the representative in this port of the vessel and of all the interests concerned therein. He is plainly so regarded in the treaty. The matter in difference in this cause is the claim for wages. That arises between the crew and the master, either as master or as the representative here of vessel and owners. The lien and the proceeding in rem against the vessel appertain only to the remedy. The very first step in this cause is to settle the matter in dispute. If the claim be established, then, as incident to the right to the wages, the lien and its enforcements against the vessel follow. The District Court can have no jurisdiction of the lien, nor jurisdiction to enforce it if it has no jurisdiction of the difference or dispute touching the claim for wages. To hold that the jurisdiction of the consul is confined to cases in which there is no maritime lien, and in which no libel of the vessel could, apart from the treaty, be maintained, is to take from the treaty much of its substance.'

The Circuit Court adverted to and relied on the fact, that the Prussian consul had moreover actually heard the mate and sailors, and pronounced against them.

The Circuit Court accordingly, while it expressed on a general view of the merits its sympathy with the sailors, and a strong inclination to condemn the conduct of the master in the matter, yet was 'constrained to the conclusion that the treaty required that the matter in difference should have been left where the treaty with Prussia leaves it, viz., in the hands and subject to the determination of their own public officer.' The result was the dismissal of the libels by the Circuit Court for want of jurisdiction.

Thereupon Newman and the others, by their counsel, Messrs. P. Phillips and D. McMahon, filed a petition in this court for a writ of mandamus to the Circuit judge, commanding him 'to entertain jurisdiction of the said cause on appeal, and to hear and decide the same on the merits thereof.' The judge returned that the Circuit Court had entertained the appeal, and had heard counsel on all the questions raised in the case, and had decided it; and that the said court had decided that the matter in controversy was within the jurisdiction of the consul under the treaty, and that in the exercise of the jurisdiction so given him, he had decided the matter, and that therefore the court had dismissed the libel.

The question now was whether the mandamus should issue.

The reader will of course remember the provision in the 13th section of the Judiciary Act, by which it is enacted:

'That the Supreme Court shall have power to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States.'

And also the provision of the 22d section, extended by an act of 1803 to appeals in admiralty, by which it is enacted:

'That final judgments and decrees in civil actions. . . in a Circuit Court. . . removed there by appeal from a District Court, where the matter in dispute exceeds the sum or value of $2000, exclusive of costs, may be re-examined and reversed or affirmed in the Supreme Court.'

Messrs. D. McMahon and P. Phillips, in support of the motion:

The mandamus should issue:

1st. Because the treaty stipulation is unconstitutional. It strips the courts of the United States of the admiralty jurisdiction conferred on them by the Constitution of the United States. It is well settled that admiralty courts have jurisdiction, at their discretion, over foreign vessels within their jurisdiction, and actions in rem against them brought by foreign seamen. If then the treaties attempt to confer on a foreign officer exclusive jurisdiction of cases already within the control of admiralty, they violate the Constitution, and are so far null.

2d. The treaty with Prussia has no reference to suits or proceedings in rem, and in that respect differs from the case mentioned in the treaty, of a difference between the master and seamen. The proceeding is against the vessel to foreclose a lien, and the owners are brought in incidentally. The master, as such, has no interest, nominal or otherwise, in the suit in question, and it is a misnomer to call the present case a controversy between a master and his crew.

3d. The Prussian consul made no adjudication in the matter now in difference, between the libellants and the master.

4th. The treaty is with the kingdom of Prussia, and the tribunals referred to in it are the consuls, vice-consuls, and commercial agents of that government. Now, at the time of the occurrence of the facts here in controversy, there were no consuls, or vice-consuls, or commercial agents of the kingdom of Prussia in the city of New York, or in the United States, though there are such officers of the North German Union. A treaty stipulation to maintain tribunals independent of our own, in this country, is contrary to the spirit of our institutions, as its effect may be to create in our midst many tribunals independent of our national courts. It should, therefore, be construed strictly.

5th. The consul is estopped from asserting his exclusive jurisdiction, because that he appealed in his 'requisition' to our marshals and other magistrates, and prayed them to take cognizance of the case. He cannot be permitted, after doing so, to avail himself of the benefit of the treaty stipulations.

Messrs. Salomon and Burke, contra:

This is an attempt to cause this court to review the decision already rendered in the Circuit Court and to direct the Circuit judge to change his decision, and to render a different judgment in a case which cannot be brought before this court by appeal, because the amount in controversy is less than $2000. This cannot be done.

Mandamus cannot perform the functions of a writ of error or of an appeal. This court will never direct in what manner the discretion of an inferior tribunal shall be exercised; but will only, in a proper case, require the inferior court to decide. If the Circuit judge had refused to decide the case, or to enter a decree therein, this court might compel him by mandamus to decide or to enter a decree; but even then it could not by such process have commanded him how to decide it, or what decree to enter. A revision of his judicial decision can only take place by appeal. But here the applicants do not complain that the judge has refused to decide the case, or that he has refused to enter judgment, but they complain that his decision upon some of the questions involved therein, and which were fully argued before, and have been carefully considered and adjudged by him, is erroneous, and that consequently this court should overrule his judgment in this case.

Now, strictly speaking, this court cannot look into the opinion of the Circuit judge for the purpose of ascertaining on what ground his decision is based with a view of revising it.

It can look only to the record, which shows only that the Circuit Court has entertained the appeal, heard and tried it, and upon such hearing and trial, after due consideration, has ordered that the decree of the District Court be reversed and the libel dismissed. How can this court, then, upon an application for a mandamus, compel him to decide differently?

But, waiving this, no doubt the question arising under the treaty with Prussia has from the beginning been the material question in the controversy. That under the treaty the Prussian consul had exclusive jurisdiction, and had exercised that jurisdiction and decided between the parties, was set up by the claimant in his answer; it was brought before the District Court by the consul's protest; upon that, mainly, the appeal was taken to the Circuit Court. The question involved not only the proper construction of the treaty, but also the examination and adjudication of important facts and circumstances relating to the consul's action in the case. All the points were argued before the Circuit Court, and that court, after consideration, has decided upon the facts and the law. This is in no proper sense a case in which the Circuit Court has refused to entertain or to exercise jurisdiction. It has, in fact, entertained the appeal from the decree of the District Court, and upon consideration has decided that the decree appealed from should be reversed, on three grounds:

First. That under the treaty with Prussia, the Prussian consul had jurisdiction of the matter in difference involved in the litigation.

Second. That that jurisdiction of the Prussian consul was exclusive.

Third. Upon the proofs the court found and decided, that the Prussian consul had adjudicated the matter in difference involved in the litigation, and that the libellants were bound by that adjudication.

If this court can by mandamus review this decision of the Circuit Court, then it can in this manner review every case in which a suit is dismissed on the ground of a former adjudication of the subject-matter between the same parties.

Admiralty courts generally decline to interfere between foreigners concerning seamen's wages, except where it is manifestly necessary to do so to prevent a failure of justice, and then only where the voyage has been broken up, or the seamen have been discharged. Now, if for this reason, in the proper exercise of his judicial discretion, the Circuit judge, on appeal, had ordered a dismissal of the libel, can it be maintained that by mandamus this court could compel him to reverse his own decision? Non constat that, if the Circuit judge had not ordered the dismissal of the libel on account of the treaty and the exercise of the consular jurisdiction, he would not have so ordered on this ground of comity between nations.

The application is for a mandamus directing the Circuit judge to hear the appeal and to decide the same on the merits thereof. What are the merits of the controversy? Is not this question of the jurisdiction of the Prussian consul and his decision a part of them? Will this court, by mandamus, determine what is and what is not of 'the merits of a controversy?'

Reply: The law will leave no one remediless, and the amount in controversy not being $2000, and no appeal existing, and there being no other remedy, the remedy in the premises must be by mandamus. The writ is issued to inferior courts to enforce the due exercise of these judicial powers; 'and this not only by restraining their excesses, but also by quickening their negligence and obviating their denial of justice.' While this court will not restrain nor direct by mandamus in what manner the discretion of the inferior tribunal should be exercised, it will, in proper cases, require the court to hear and decide. The 'principles and usages of law,' give the right to a mandamus where a party has a legal right, and no other remedy to enforce it.

In the case at bar the proposed mandamus does not usurp the functions of a writ of error or appeal, for no appeal lies, the amount being less than $2000.

The case is this. The Circuit judge refuses to consider and determine, on the merits, a cause over which he has ample jurisdiction, he entertaining the opinion that he has no jurisdiction, because of the terms of treaty with Prussia. In this court it is submitted that his conclusion is erroneous. No appeal, however, lies. A Circuit judge entertaining very strict notions of the extent of admiralty jurisdiction, might, in a contest between State and National courts, paralyze the commerce of a great commercial port like New York. Can there be no correction for this? Is a party to be dismissed in a case like this, with the allegation that the writ of mandamus cannot usurp the function of a writ of error, therefore there is no correction?

While it is conceded that the writ of mandamus cannot be used to correct an erroneous judgment of a court of acknowledged jurisdiction, yet it can be invoked to compel a court to exercise its jurisdiction, even though such court be of the opinion it had not jurisdiction. The distinction between the two classes of cases is obvious. The distinction lies between a direction to an inferior tribunal to act, and direction to it how to act. We do not seek to control the Circuit Court's judgment by the mandamus, but only to compel it to entertain jurisdiction of the cause, and then to hear and decide according to the law and the allegations and proofs.

Authorities are clear on the right of a superior tribunal to compel an inferior tribunal to hear a cause and decide it even after the latter has declined to entertain the cause because of an alleged want of jurisdiction.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Ex parte Newman


text: Talk:Ex parte Newman

title: Talk:Ex parte Newman


text:
Ex parte Newman/Opinion of the Court

Attempt was made in the first place to prosecute the suit in the name of the mate for himself and as assignee of the crew, but the court before entering the decree suggested an amendment, and the crew were admitted as co-libellants, which will render it unnecessary to make any further reference to that feature of the pleadings.

Proceedings in rem were instituted in the District Court against the bark Elwine Krepline, by the mate, for himself and in behalf of the crew of the bark, on the twenty-fourth of August, 1870, in a case of subtraction of wages civil and maritime, and they allege in the libel, as amended, that the bark is a Prussian vessel, and that they are Prussian subjects, and that they were hired by the master and legally shipped on board the bark for a specified term of service, and that they continued well and truly to perform the duties they were shipped to fulfil, and that they were obedient to the lawful commands of the master, until they were discharged. They also set forth the date when they were shipped, the length of time they had served, the wages they were to receive, and the amount due and unpaid to them respectively for their services, and aver that the owners of the bark refuse to pay the amount.

Process was issued and served by the seizure of the bark, and the master appeared, as claimant, and filed an answer. He admits that the appellants shipped on board the bark at the place and in the capacities and for the wages alleged in the libel, but he avers that they signed the shipping articles and bound themselves by the rules, regulations, and directions of the shipping law and rules of navigation of the country to which the bark belonged, and he denies that they well and truly performed their duties, or that they were obedient to his lawful commands. On the contrary, he alleges that they, on the day they were discharged, were guilty of gross insubordination and mutinous conduct, that they resisted the lawful commands of the master, and refused to obey the same, and interfered with him in the performance of his duty, and with force and threats prevented him from performing the same, and thereafter, on the same day, deserted from the vessel.

Apart from the merits he also set up the following defences:

1. That the court had no jurisdiction of the matter contained in the libel, because the bark was a Prussian vessel, owned by Prussian citizens, and because the libellants were Prussian subjects belonging to the crew of the vessel, and were also citizens of that Kingdom.

Support to that defence is derived from the tenth article of our treaty with that government, which provides that consuls, vice-consuls, and commercial agents of the respective countries, in the ports of the other, shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews, or of the captain, should disturb the order or tranquillity of the country, or the consuls, vice-consuls, or commercial agents should require their assistance to cause their decisions to be carried into effect.

He set up that provision of the treaty, and prayed that he might have the same advantage of it as if the same was separately and formally pleaded to the libel.

2. That the libellants in signing the shipping articles bound themselves, under the penalty of a forfeiture of wages, not to sue or bring any action for any cause, against the vessel, or the master, or owners thereof, in any court or tribunal except in those of Prussia.

3. That the consul-general of the North German Union, resident in the city of New York, which government included Prussia and other sovereignties, heard and examined the questions of difference between the libellants and the claimant and adjudicated the same; that the libellants appeared before the court on the occasion and presented their claim to be discharged and their claim for wages, and that the consul, in his character as such, heard and examined their said claims and adjudged that the libellants should return to the vessel, and that no wages were due them or would be due them until they complied with the contract of shipment.

Testimony was taken in the District Court, and the District Court entered a decree in favor of the libellants for the amount due them for their wages, and referred the cause to a commissioner to ascertain and report the amount. Subsequently he reported that the amount due to the libellants was seven hundred and forty-three dollars and forty-one cents. Exceptions were filed by the claimant, and the District Court upon further hearing reduced the amount to seven hundred and twelve dollars and thirty-two cents, and entered a final decree for that amount, with costs of suit. Thereupon the claimant appealed to the Circuit Court, and the record shows that the appeal was perfected, and that the cause was duly entered in that court.

On the fifth of the last month the petition under consideration was filed in this court in behalf of the appellees in that suit, in which they represented that the cause appealed was fully argued before the Circuit Court on the same pleadings and proofs as those exhibited in the District Court, and that the Circuit judge reversed the decree of the District Court and dismissed the libel for want of jurisdiction in the District Court to hear and determine the controversy; that the Circuit judge declined to entertain the cause or to consider the same on the merits, and that no final decree on the appeal has been entered in the Circuit Court or signed by the Circuit judge.

His refusal to entertain jurisdiction and to hear and decide the merits of the case was placed, as they allege, upon the ground that the matter in difference, under the tenth article of the treaty, was within the exclusive cognizance of the consul, vice-consul, or commercial agent therein described, and in consequence thereof that the District Court was without any jurisdiction, which they contend is an error for the following reasons:

(1.) Because the treaty stipulation, if so construed, is unconstitutional and void.

(2.) Because that article of the treaty applies only to disputes between the masters and crews of vessels, and has no reference to suits in rem against the vessel.

(3.) Because the record in this case shows that the Prussian authorities refused to entertain jurisdiction of the controversy.

(4.) Because the treaty is with Prussia, and it appears that her government has no consul, vice-consul, or commercial agent at that port.

(5.) Because that the consul who acted in the case requested the District Court to take jurisdiction of the matter in difference.

Hearing was had on the day the petition was presented, and this court granted a rule requiring the Circuit judge to show cause on the day therein named why a peremptory writ of mandamus should not issue to him directing him to hear the appeal of the petitioners and decide the same on the merits. Due service of that rule was made, and the case now comes before the court upon the return of the judge to that rule. He returns, among other things not necessary to be reproduced, as follows: That the cause of the libellants proceeded to a decree in their favor in the District Court; that an appeal from that decree was taken in due form to the Circuit Court for that district; that the Circuit Court did not refuse to entertain the appeal nor did the Circuit Court refuse to decide the case on the appeal nor hold or decide that the Circuit Court had no jurisdiction to hear or decide the same, as required by the proofs or by the law. On the contrary, the Circuit Court did entertain the appeal, did hear the counsel of the parties fully on all the questions raised in the case, and did decide the same. But in making such decision the said court did hold and decide that the matter in controversy was within the jurisdiction of the consul, under the treaty, and that the consul, in the exercise of that jurisdiction, after hearing the parties, had decided the matter. Pursuant to those views the Circuit Court, as the return shows, did thereupon direct that the decree of the District Court be reversed, and that the libel of the petitioners be dismissed.

Power to issue writs of mandamus to any courts appointed under the authority of the United States was given to this court by the thirteenth section of the Judiciary Act, in cases warranted by the principles and usages of law. When passed, the section also empowered the court to issue such writs, subject to the same conditions, to persons holding office under the United States, but this court, very early, decided that the latter provision was unconstitutional and void, as it assumed to enlarge the original jurisdiction of the court, which is defined by the Constitution.

Applications for a mandamus to a subordinate court are warranted by the principles and usages of law in cases where the subordinate court, having jurisdiction of a case, refuses to hear and decide the controversy, or where such a court, having heard the cause, refuses to render judgment or enter a decree in the case, but the principles and usages of law do not warrant the use of the writ to re-examine a judgment or decree of a subordinate court in any case, nor will the writ be issued to direct what judgment or decree such a court shall render in any pending case, nor will the writ be issued in any case if the party aggrieved may have a remedy by writ of error or appeal, as the only office of the writ when issued to a subordinate court is to direct the performance of a ministerial act or to command the court to act in a case where the court has jurisdiction and refuses to act, but the supervisory court will never prescribe what the decision of the subordinate court shall be, nor will the supervisory court interfere in any way to control the judgment or discretion of the subordinate court in disposing of the controversy. Where a rule is laid, as in this case, on the judge of a subordinate court, he is ordered to show cause why the peremptory writ of mandamus shall not issue to him, commanding him to do some act which it is alleged he has power to do, and which it is his duty to do, and which he has improperly neglected and refused to do, as required by law. Due service of the rule being made the judge is required to make return to the charge contained in the rule, which he may do by denying the matters charged or by setting up new matter as an answer to the accusations of the relator, or he may elect to submit a motion to quash the rule or to demur to the accusative allegations. Matters charged in the rule and denied by the respondent must be proved by the relator, and matters alleged in avoidance of the charge made, if denied by the relator, must be proved by the respondent. Motions to quash in such cases are addressed to the discretion of the court, but if the respondent demurs to the rule, or if the relator demurs to the return, the party demurring admits everything in the rule or the return, as the case may be, which is well pleaded, and if the relator elects to proceed to hearing on the return, without pleading to the same in any way, the matters alleged in the return must be taken to be true to the same extent as if the relator had demurred to the return. Subordinate judicial tribunals, when the writ is addressed to them, are usually required to exercise some judicial function which it is alleged they have improperly neglected or refused to exercise, or to render judgment in some case when otherwise there would be a failure of justice from a delay or refusal to act, and the return must either deny the facts stated in the rule or alternative writ on which the claim of the relator is founded, or must state other facts sufficient in law to defeat the claim of the relator, and no doubt is entertained that both of those defences may be set up in the same return, as in the case before the court. Several defences may be set up in the same return, and if any one of them be sufficient the return will be upheld.

Evidently the District judge was inclined to adopt the proposition, advanced by the libellants, that the suit for wages, as it was prosecuted by a libel in rem, was not within the treaty stipulation, nor a controversy within the jurisdiction of the consul, but he did not place his decision upon that ground. He did, however, rule that the treaty did not have the effect to change the jurisdiction of the courts, except to require them to decline to hear matters in difference between the masters and crews of vessels in all cases where the consul had acted or perhaps was ready to act as judge or arbitrator in respect to such differences. Beyond doubt he assumed that to be the true construction of the treaty, and having settled that matter he proceeded to inquire whether the consul had adjudicated the pending controversy, or whether the evidence showed that he was ready to do so, and having answered those inquiries in the negative he then proceeded to examine the pleadings and proofs, and came to the conclusion in the case which is expressed in the decree from which the appeal was taken to the Circuit Court.

All of those matters were again fully argued in the Circuit Court, and the Circuit judge decided to reverse the decree of the District Court upon the following grounds: (1.) That the Prussian consul, under the treaty, had jurisdiction of the subject-matter involved in the suit in the District Court. (2.) That the jurisdiction of the consul under the treaty was exclusive. (3.) That the proofs showed that the consul heard and adjudicated the matter involved in the suit appealed to the Circuit Court, and that the libellants were bound by that adjudication.

Such questions were undoubtedly raised in the pleadings, and it is equally certain that they were decided by the District Court in favor of the libellants. Raised as they were by the pleadings, it cannot be successfully denied that the same questions were also presented in the Circuit Court, and in view of the return it must be conceded that they were decided in the latter court in favor of the respondent. Support to that proposition is also found in the opinion of the Circuit judge, and in the order which he made in the case. Suffice it, however, to say, it so appears in the return before the court, and this court is of the opinion that the return, in the existing state of the proceedings, is conclusive.

Confessedly the petitioners are without remedy by appeal or writ of error, as the sum or value in controversy is less than the amount required to give that right, and it is insisted that they ought on that account to have the remedy sought by their petition. Mandamus will not lie, it is true, where the party may have an appeal or writ of error, but it is equally true that it will not lie in many other cases where the party is without remedy by appeal or writ of error. Such remedies are not given save in patent and revenue cases, except when the sum or value exceeds two thousand dollars, but the writ of mandamus will not lie in any case to a subordinate court unless it appears that the court of which complaint is made refused to act in respect to a matter within the jurisdiction of the court and where it is the duty of the court to act in the premises.

Admiralty courts, it is said, will not take jurisdiction in such a case except where it is manifestly necessary to do so to prevent a failure of justice, but the better opinion is that, independent of treaty stipulation, there is no constitutional or legal impediment to the exercise of jurisdiction in such a case. Such courts may, if they see fit, take jurisdiction in such a case, but they will not do so as a general rule without the consent of the representative of the country to which the vessel belongs, where it is practicable that the representative should be consulted. His consent, however, is not a condition of jurisdiction, but is regarded as a material fact to aid the court in determining the question of discretion, whether jurisdiction in the case ought or ought not to be exercised.

Superior tribunals may by mandamus command an inferior court to perform a legal duty where there is no other remedy, and the rule applies to judicial as well as to ministerial acts, but it does not apply at all to a judicial act to correct an error, as where the act has been erroneously performed. If the duty is unperformed and it be judicial in its character the mandate will be to the judge directing him to exercise his judicial discretion or judgment, without any direction as to the manner in which it shall be done, or if it be ministerial, the mandamus will direct the specific act to be performed.

Power is given to this court by the Judiciary Act, under a writ of error, or appeal, to affirm or reverse the judgment or decree of the Circuit Court, and in certain cases to render such judgment or decree as the Circuit Court should have rendered or passed, but no such power is given under a writ of mandamus, nor is it competent for the superior tribunal, under such a writ, to re-examine the judgment or decree of the subordinate court. Such a writ cannot perform the functions of an appeal or writ of error, as the superior court will not, in any case, direct the judge of the subordinate court what judgment or decree to enter in the case, as the writ does not vest in the superior court any power to give any such direction or to interfere in any manner with the judicial discretion and judgment of the subordinate court.

Viewed in the light of the return, the court is of the opinion that the rule must be discharged and the

PETITION DENIED.

title: Ex parte Newman/Opinion of the Court


text: Talk:Ex parte Newman/Opinion of the Court


text:
The Scotia

APPEAL from the Circuit Court for the Southern District of New York, in a case of collision between the American ship Berkshire and the British steamer Scotia, by which the ship was sunk and totally lost.

On the 9th of January, 1863, a British order in council, authorized by virtue of the Merchant [[Shipping Amendment]]]] Act of July 29th, 1862 (25 and 26 Victoria), made a body of 'Regulations for preventing collisions at sea.' Among these were 'Rules concerning lights,' and 'Steering and sailing rules.'

In the first class were these:

LIGHTS FOR STEAMSHIPS.

ART. 3. Sea-going steamships when under way shall carry—

(a) At the foremast head, a bright white light. . . of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least five miles.

(b) On the starboard side a green light, &c., visible on a dark night, with a clear atmosphere, at a distance of at least two miles.

(c) On the port side a red light, &c., visible on a dark night, with a clear atmosphere, at a distance of at least two miles.

(d) The said green and red side-lights shall be fitted with inboard screens, projecting at least three feet forward from the light so as to prevent these lights being seen across the bow.

LIGHTS FOR SAILING SHIPS.

ART. 6. Sailing vessels under way. . . shall carry the same lights as steamships under way, with the exception of the white masthead lights, which they shall never carry.

In the steering and sailing rules was this one— SAILING SHIP AND SHIP UNDER STEAM.

If two ships, one of which is a sailing ship and the other a steamship are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the the way of the sailing ship.

All these regulations, as originally promulgated by Great Britain, were made applicable to all ships, whatever their nationality, within the limits of British jurisdiction, and to British and French ships whether within British jurisdiction or not. The Merchant [[Shipping Amendment]]]] Act, in virtue of which these regulations were passed, provided also that whenever it should be made to appear to the British government, that the government of any foreign country was willing that these regulations should apply to the ships of such country, when beyond the limits of British jurisdiction, Her Britannic Majesty might, by order in council, direct that such regulations should apply to the ships of such foreign country, whether within British jurisdiction or not.

On the 29th April, 1864, the Congress of the United States passed its 'act fixing certain rules and regulations for preventing collisions on the water,' and these rules as respects sea-going vessels being, to all intents, identical with those above quoted from the British act, the British government regarded the act of Congress as an expression by our government, that it was willing that the British regulations should apply to our ships when beyond the limits of British jurisdiction. The British government accordingly, by order in council, directed that the regulations should apply to all sea-going vessels of the United States, whether within British jurisdiction or not.

The governments of various other countries soon also manifested their willingness that the British regulations should apply to their ships respectively, when beyond the limits of British jurisdiction; and orders in council accordingly directed that such regulations should apply to the ships of such countries respectively, whether within British jurisdiction or not. The countries referred to were Austria, the Argentine Republic, Belgium, Brazil, bremen, Chili, Denmark proper, the Republic of the Equator, France, Greece, Hamburg, Hanover, the Hawaiian Islands, Hayti, Italy, Lubeck, Mecklenburg-Schwerin, Morocco, the Netherlands, Norway, Oldenburg, Peru, Portugal, Prussia, the Roman States, Russia, Schleswig, Spain, Sweden, Turkey, Uruguay. These orders in council were published at various dates, from January 13th, 1863, to February 6th, 1866. All countries named except Denmark, Greece, the Hawaiian Islands, Schleswig, and the United States, adopted the regulations in 1863.

With these various statutes and orders in existence, the Scotia, a British steamer of the Cunard line, steering west by north one-half north, was sailing about midnight on the 8th of April, 1867, near mid-ocean, from Liverpool towards New York. Her lookouts were properly set, and her lights rightly stationed, that is to say, a white light was at her masthead, a green light on her starboard or right side, and a red light on her port or left side; all burning brightly.

Sailing at the same hour, equally about mid-ocean, the Berkshire, a sailing ship belonging to the American marine, was on her voyage from New Orleans to Havre, and with a wind free, blowing from about south-southwest, was pursuing a course southeast by east one-half east, as indicated by the following diagram. The courses of the two vessels thus intersected at an angle of exactly one point.

The Berkshire had no colored lights anywhere; nor any light but a white light, and this was at her bow, fastened to her anchor-stock, and raised about four feet above her deck. Of course, if the Scotia should mistake this light for a light fastened on the masthead of the Berkshire, she would infer from its apparent proximity to the water that the Berkshire was far off.

The Scotia was first seen from the Berkshire bearing one point or so off the ship's port bow, at a distance apparently of five or six miles. Then the steamer's white masthead light only was seen.

Immediately on her sighting the steamer, which was at most from fifteen to twenty minutes before the collision, her mate gave an order to luff, and she did luff, so as to head more into the wind. The effect of this was to make her go further to the south and thus diverge farther from the course of the steamer. She continued in this new direction ten or fifteen minutes, when, moving at the rate at which it was proved that the vessels were moving, she could not have been more than one or two miles from the Scotia. Her helm was then suddenly put to starboard, then steadied for a brief period, then put hard a-starboard and kept there, thus pointing her directly across the bow of the approaching vessel. By keeping her helm hard a-starboard she was made to change her course constantly. The diagram on the preceding page may perhaps assist the reader's comprehension. The dotted lines represent the Berkshire's movements.

Before she bore away the red light of the steamer was seen by her wheelsman, and probably by her lookout, if not indeed by her master.

The Scotia saw the white light on the Berkshire in due time, and first saw it off her port bow, from one to two points. Seeing a white light, the deck officer of the Scotia took the vessel for a steamer, and from the proximity of the light to the water inferred that she was far off; coming in fact just above the horizon, and accounting for the nonappearance of the usual colored lights because he supposed that they had not come up to view. He thus not only supposed the Berkshire to be a steamer, but judged that the supposed steamer was at a much greater distance than it was in fact. As already signified, the location of the light warranted the supposition, and its color gave no indication that it was on a sailing vessel. After its discovery the ship's light opened on the steamer's port bow; how much it opened was a matter somewhat agitated by the witnesses and the counsel, though this court considered that matter immaterial, because if it receded at all it indicated that there was then no danger of collision without some change of course, and consequently no necessity to take measures to avoid one. The weight of the evidence was that the ship had not then turned her course northward, but if she had it was still proved that her light opened on the Scotia's port side, after it was first seen, and before the steamer's course was changed. Soon after, and because of the ship's change of course, her light began to close in on the steamer's bow, and then for the first time was there any apparent danger of collision. Then the Scotia's helm was immediately ported, then hard ported, and observing that the ship's light still closed in, orders were given, in quick succession, to half-speed, slow, reverse, and back, but notwithstanding these orders, which were all promptly obeyed, the vessels came together in the position indicated on the diagram, and the Berkshire with her cargo went right down in mid-ocean.

The owners of the Berkshire, one Sears and others, now for themselves and the owners of the cargo, filed their libel in the District Court at New York, to recover the loss sustained by the collision. The libel charged, of course, that the collision occurred through the fault of the Scotia. The District Court decreed for the respondents. The view of that court was, that courts of admiralty were now required to take judicial notice of the existence of the British orders in council, and of the fact that so numerous maritime states had accepted them; that so general and adoption by such states of one rule had made a rule and usage of the sea; that by this rule and usage-in other words, by the law of the sea as it existed at the time of the collision the Berkshire was bound to exhibit colored lights, and colored lights alone; and that as she had not done so, she had no remedy. the decree, therefore, was, that the libel be dismissed; and the Circuit Court affirming this decree, the case was now here for review.

Mr. J. C. Carter, for the appellants:

The theory of the libellants is readily perceived. The Scotia's white light was first made about one point on the Berkshire's bow, and some twenty minutes before the collision. The mate supposed it to be a sailing vessel standing to the westward and closehauled on the wind. As the Berkshire was sailing free, it was her duty to keep out of the way of other sailing vessels who were closehauled. The man at the wheel was therefore ordered to keep his luff, that is, to run nearer to the wind, which was done, and the course of the Berkshire thus changed to windward about three-quarters of a point. Finding that the luffing did not have the effect of shaking the light off his bow, and supposing that the course of the vessel was nearly opposite to his, but really crossing his bow, he deemed it the safest course to starboard the helm and bear away before the wind while the light was yet a great way off and there was ample time. This was accordingly done. The light of the Scotia was soon under the effect of the starboarding brought upon the starboard side. The ship was kept away under her starboard helm until the light was brought abaft the beam on the starboard side, and then the helm was steadied. Soon after a red light was discovered, and then they were satisfied that the vessel was a steamer. The helm was ordered again hard a-starboard, but the steamer came up with rapidity and struck the ship, breaking her open.

Now we think that this is a view which ought to exculpate the ship. She did just what it was natural for her to do, and, in the darkness of the night, proper. It is perfectly settled in this court that it is the duty of steamers to keep clear of sailing vessels. No rule of the sea has been as emphatically declared of late times. We need not quote authorities to that point. The Scotia, in view of the great liability to error as to the position and distance of lights on the water at night, ought to have somewhat changed her course or slowed up, so soon as she saw how nearly the courses met.

The argument of the other side of course will be that we did not carry the side lights prescribed by the act of Congress and by the British admiralty regulations. This is admitted by us. Thus it is said that we violated our statutes. But the act of Congress prescribing the lights which sailing vessels are to carry is but a municipal regulation of the United States; and the Scotia cannot avail herself of such a statute to convict an American vessel of a tort on the high seas. All the questions in controversy are to be determined without reference to the municipal laws of either nation, and solely according to the general maritime law; and by that law there was no obligation on the Berkshire to exhibit any side lights, or not to exhibit a white light.

This precise question has arisen in England, and has been determined by a series of decisions of the highest authority. The question has arisen in every variety of form; sometimes the defendants, foreigners, seeking to bind the plaintiffs, British citizens, by the provisions of British statutes, and at others, British plaintiffs claiming the benefit of British statutes against foreign defendants. But the decision has been the same in all.

Nor is the position tenable, that inasmuch as the obligations resting on the Scotia by a British statute relating to lights were the same with those resting upon the Berkshire, the rule should be enforced in this suit on some principle of reciprocity. That question is strikingly concluded by authority. It happened to the principal libellant (Mr. Sears), to invoke in his own behalf, in a British tribunal, on this very notion of reciprocity, in a collision cause, in which his ship was libelled by British citizens, the protection of a British statute; and he supported his claim by proof that the United States had made a like enactment. The question was most elaborately considered by Dr. Lushington, and determined against him. In the face of this decision, it would be a singular exhibition of reciprocity, to yield to the claim of the Scotia.

There can be no reasonable doubt that this case is to be governed, not by the municipal law of either the United States or Great Britain, but by the maritime law. The main question is, what is that law? It is conceded that, at least until a recent period, it imposed no obligation upon either of the vessels to carry colored lights, or precluded either from carrying a white light. Now, has this law been changed? No change has been proved, nor any evidence offered tending to show such a change. Indeed, it is believed to have been the practice at the time, and to a great extent is now, for sailing vessels not to exhibit colored lights when away from the shore. But, conceding that any number of municipal ordinances were proved, they do not make any change in the maritime law. The high seas are outside of the territory of municipal powers, and their laws have no force there. Nor can any force be derived from them when taken together. It cannot be maintained when the laws of Great Britain, the United States, and France have, neither separately nor collectively, any effect whatever on the sea, that still if the concurring statutes of substantially all other maritime states were added, the combined effect would be to give to them effect there. How many nations must join? Who is to determine what is a maritime state, in order to know whether all have joined? Who or what is to apprise the unlettered mariner that the municipal statutes of all nations have at last been brought into harmony?

The municipal ordinances relied on by the District Court do not constitute a body of statutes enacted by the nations collectively, nor do they constitute anything in the nature of a convention or treaty; at all events, not so far as the United States are concerned, and the other powers, save Great Britain. They are municipal statutes, and nothing more. Great Britain, indeed, by her act, seems to indicate that in her view, as soon as other nations pass acts similar to her own, she will deem this to be an assent to a proposition made by her, and will then regard a convention as agreed upon, which her courts are to respect; and it may be very proper for her courts to act accordingly. But the United States have never done anything of the kind.

On the view of the District Court, that these concurring municipal enactments change the law of the sea, the question arises, at what point does this change become affectual? Is it when two, or three, or four, or what number of maritime states have concurred in the legislation? In the absence of any authoritative declaration by his own country, when is the American navigator to know that the law springs into operation? In short, the whole view of the District Court, whose decree was affirmed in the Circuit Court, is so embarrassed with difficulty, that however plausible it may be it cannot be safely maintained in practice.

Messrs. D. D. Lord and E. C. Benedict, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: The Scotia


text: Talk:The Scotia

title: Talk:The Scotia


text:
The Scotia/Opinion of the Court

It is plain that had the ship continued on her course after she first saw the steamer's bright light, there could have been no collision. And, still more, had she not afterwards and when near the steamer put her helm to starboard she would have been out of all danger. Even when she first sighted the Scotia she had passed the point at which her course and that of the steamer intersected. This is a necessary sequence from the facts that the angle between the courses of the two vessels was exactly one point, and that the light of the steamer, when first seen, bore from a point to a point and a half off her port bow. Besides, when the ship was first seen from the steamer, her bearing, it is clearly proved, was from a point to two points off the steamer's port bow. Such a bearing was impossible unless the ship had already crossed the line of the Scotia's course, and passed the point at which the vessels could have come together unless one or the other had taken a new direction. They must have passed with a wide berth between had the ship made no change of her helm, or had she kept her luff in obedience to the mate's order. But by putting her helm hard a-starboard she was made to change her course constantly till the collision occurred. Even before she bore away the red light of the steamer was seen by her wheelsman, and probably by her lookout, if not indeed by her master, doubtless in time even then to escape harm. Had it not been then for the unfortunate order of the master to starboard her helm, and bear away before the wind, this case could not have arisen.

It must, however, be conceded that this, of itself, is not sufficient to excuse the Scotia, if she failed to adopt such precautions as were in her power, and were necessary to avoid a collision. Meeting a sailing vessel proceeding in such a direction as to involve risk, it was her duty to keep out of the way, and nothing but inevitable accident, or the conduct and movements of the ship, can repel the presumption that the was negligent, arising from the fact of collision. But this duty of the steamer implies a correlative obligation of the ship to keep her course, and to do nothing to mislead. Nor is a steamer called to act, except when she is approaching a vessel in such a direction as to involve risk of collision. She is required to take no precautions when there is no apparent danger.

Was, then, the Scotia in fault? If she was, the fault must have been either that she did not change her helm sooner, or that she ported, or that she was unjustifiably late in slackening her speed and reversing her engines. No other fault is imputed to her. We have already said that she was not bound to take any steps to avoid a collision until danger of collision should have been apprehended, and we think there was no reason for apprehension until the ship's light was seen closing in upon her. Assuming for the present that she had no right to conclude that the light was on a steamer and to manoeuvre accordingly, and, therefore, that it was her duty to keep out of the way, it is still true that all her duty at first was to watch the light in order to discover certainly what it was, and to observe its course and notice whether it crossed her own course. It is not the law that a steamer must change her course, or must slacken her speed the instant she comes in sight of another vessel's light, no matter in what direction it may be. With such a rule navigation cannot be conducted. Nor is such a rule necessary to safety. It is, therefore, no fault that, seeing the ship's light off her port bow, apparently at a distance of several miles, the Scotia continued on her course without slackening her speed, until that light began to close in upon her. Then she ported her helm, the obvious effect of which was to take her farther away from the approaching vessel. Then she slowed her engines, stopped and backed, until, at the time when the collision took place, she had almost, if not entirely, ceased to move through the water. Had she starboarded, instead of porting, the movement would have turned her toward the Berkshire, and apparently would have rendered collision more probable. Of the propriety of her slowing her engines, stopping, and backing, there can be no doubt. If, now, it be considered that she had been misled by the nature and location of the light on the Berkshire, which indicated that the ship was at a much greater distance than she was in fact; the consequently the peril came upon her suddenly, leaving short time for deliberation, and if it be considered that she had been brought into this extremity, first, by the ill-judged and causeless change of the ship's course, and, second, by the persistent effort of the ship's master to cross her bow after he had seen her red light, and discovered certainly that she was a steamer, it would be unjust to impute to her as a fault that she did what she ought to have done, had the approaching vessel been in fact a steamer, and that which at all events seemed most likely to avoid a collision. Certainly it was not her fault that she did not know the Berkshire to be a sailing vessel. And in all human probability the measures taken by her to avoid a collision would have been successful if they had not been counteracted by the constant veering of the Berkshire, with her helm kept hard a-starboard.

Independently, therefore, of any statutory regulations, and looking to the facts with reference to the old maritime law alone, as it was before any modern legislation, we think the Scotia was not chargeable with fault.

But we think the Scotia had a right to conclude that the Berkshire was a steamer rather than a sailing vessel, and that, when first seen, she was at the distance of four or five miles, instead of being near at hand. Such was the information given her by the ship's white light, fastened as it was to the anchor-stock on deck, and no watchfulness could have enabled her to detect the misrepresentation until it was too late. Both vessels were moving under similar regulations. The Berkshire was an American ship, belonging to the mercantile marine, and she was required by the act of Congress of April 29th, 1864, to carry green and red lights, which she did not carry, and she was forbidden to carry the white light, which she did carry. By exhibiting a white light, she, therefore, held herself forth as a steamer, and by exhibiting it from her deck, instead of from her masthead, she misrepresented her distance from approaching vessels. It is clear the Scotia would have been justified in taking her for a steamer had she been known to be an American ship. But it is insisted on behalf of the appellants that, inasmuch as the act of Congress is a mere municipal regulation, obligatory as a statute only upon American vessels, the Scotia, a British steamer, cannot avail herself of it to fault an American ship, or to justify her own conduct. Waiving for the moment consideration of the question whether this position is well taken, it is yet true that the Berkshire was under the statute, though on the high seas, and that the Scotia was subject to and sailing under similar regulations (the British orders in council of January 9th, 1863); that the collision happended in the known path of vessels navigating between the United States and Great Britain, and that there was a reasonable probability that vessels in that path would be either American or British, and would, therefore, carry the lights prescribed by the laws of those countries. The steamer might well, therefore, in the absence of knowledge, act upon that probability, and in the emergency into which she had been brought, might, without fault, apply the rule of navigation common to the ships of both countries.

But, to return to the question, we think that independently of the act of Congress, considered as a mere municipal regulation, the Berkshire was bound to show a green light on her starboard, and a red light on her port side, without exhibiting any white light; and that the Scotia may set up in defence her failure to carry such green and red lights, as also the fact that she did improperly show a white light. And we think that her breach of duty in these respects misled the officers of the steamer, and caused them to act on the assumption that she was a steamer, and therefore under obligation to pass on the port side. If so, the collision was solely due to the fault of the ship. We rest this conclusion not solely, or mainly, upon the ground that the navigation laws of the United States control the conduct of foreign vessels, or that they have, as such, any extraterritorial authority, except over American shipping. Doubtless they are municipal regulations, yet binding upon American vessels, either in American waters or on the high seas. Nor can the British orders in council control our vessels, though they may their own. We concede also that whether an act is tortious or not must generally be determined by the laws of the place where the act was committed. But every American vessel, outside of the jurisdiction of a foreign power, is, for some purposes at least, a part of the American territory, and our laws are the rules for its guidance. Equally true is it that a British vessel is controlled by British rules of navigation. If it were that the rules of the two nations conflicted, which would the British vessel, and which would the American, be bound to obey? Undoubtedly the rule prescribed by the government to which it belonged. And if, in consequence, collision should ensue between an American and a British vessel, shall the latter be condemned in an American court of admiralty? If so, then our law is given an extra-territorial effect, and is held obligatory upon British ships not within our jurisdiction. Or might an American vessel be faulted in a British court of admiralty for having done what our statute required? Then Britain is truly not only mistress of the seas, but of all who traverse the great waters. It is difficult to see how a ship can be condemned for doing that which by the laws of its origin, or ownership, it was required to do, or how, on the other hand, it can secure an advantage by violation of those laws, unless it is beyond their domain when upon the high seas. But our navigation laws were intended to secure the safety of life and property, as well as the convenience of commerce. They are not in terms confined to the regulation of shipping in our own waters. They attempt to govern a business that is conducted on every sea. If they do not reach the conduct of mariners in its relation to the ships and people of other nations, they are at least designed for the security of the lives and property of our own people. For that purpose they are as useful and as necessary on the ocean as they are upon inland waters. How, then, can our courts ignore them in any case? Why should it ever be held that what is a wrong when done to an American citizen, is right if the injured party be an Englishman?

But we need not affirm that the Berkshire was under obligation to show colored lights, or to refrain from showing a white light, merely because of an act of Congress, nor need we affirm that the Scotia can protect herself by setting up the ship's violation of that act. Nor is it necessary to our conclusions that the British rules in regard to lights are the same as ours, though that is an important consideration. We are not unmindful that the English courts of admiralty have ruled that a foreigner cannot set up against a British vessel, with which his ship has collided, that the British vessel violated the British mercantile marine act, on the high seas, for the reason, as given, that the foreigner was not bound by it, inasmuch as it is beyond the power of Parliament to make rules applicable to foreign vessels outside of British waters. This decision was made in 1856, in the case of The Zollverein. A similar rule was asserted also in The Dumfries, decided the same year; in The Saxonia, decided in the High Court of Admiralty in 1858, and by the Privy Council in 1862. The same doctrine was laid down in 1858, in the case of Cope v. Doherty, and in The Chancellor, decided in 1861. All these decisions were made before the passage of the Merchant [[Shipping Amendment]]]] Act, which took effect on the 1st day of June, 1863. By that act the same rules in regard to lights and movements of steamers and sailing vessels on the high seas were adopted as those which were prescribed by the act of Congress of 1864, and by the same act it was provided that the government of any foreign state might assent to the regulations, and consent to their application to the ships of such state, and that thereupon the Queen, by order in council, might direct that such regulations should apply to ships of such foreign state when within or without British jurisdiction. The act further provided that whenever an order in council should be issued applying any regulation made under it to the ships of any foreign country, such ships should in all cases arising in British courts be deemed to be subject to such regulations, and for the purpose thereof be treated as British ships. Historically, we know that before the close of the year 1864, nearly all the commercial nations of the world had adopted the same regulations respecting lights, and that they were recognized as having adopted them. These nations were the following: Austria, the Argentine Republic, Belgium, Brazil, Bremen, Chili, Denmark, Ecuador, France, Great Britain, Greece, Hamburg, Hanover, Hawaii, Hayti, Italy, Lubeck, Mecklenburg-Schwerin, Morocco, Netherlands, Norway, Oldenburg, Peru, Portugal, Prussia, Roman States, Russia, Schleswig, Spain, Sweden, Turkey, United States, and Uruguay-almost every commercial nation in existence. Had this libel then been filed in a British court, the Berkshire must have been found solely in fault, because her white light and her neglect to exhibit colored lights signalled to the Scotia that she was a steamer, and directed the Scotia to do exactly what she did.

It must be conceded, however, that the rights and merits of a case may be governed by a different law from that which controls a court in which a remedy may be sought. The question still remains, what was the law of the place where the collision occurred, and at the time when it occurred. Conceding that it was not the law of the United States, nor that of Great Britain, nor the concurrent regulations of the two governments, but that it was the law of the sea, was it the ancient maritime law, that which existed before the commercial nations of the world adopted the regulations of 1863 and 1864, or the law changed after those regulations were adopted? Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which when generally accepted became of universal obligation. The Rhodian law is supposed to have been the earliest system of marine rules. It was a code for Rhodians only, but it soon became of general authority because accepted and assented to as a wise and desirable system by other maritime nations. The same may be said of the Amalphitan table, of the ordinances of the Hanseatic League, and of parts of the marine ordinances of Louis XIV. They all became the law of the sea, not on account of their origin, but by reason of their acceptance as such. And it is evident that unless general assent is efficacious to give sanction to international law, there never can be that growth and development of maritime rules which the constant changes in the instruments and necessities of navigation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, express or understood, of maritime nations? When, therefore, we find such rules of navigation as are mentioned in the British orders in council of January 9th, 1863, and in our act of Congress of 1864, accepted as obligatory rules by more than thirty of the principal commercial states of the world, including almost all which have any shipping on the Atlantic Ocean, we are constrained to regard them as in part at least, and so far as relates to these vessels, the laws of the sea, and as having been the law at the time when the collision of which the libellants complain took place.

This is not giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws, but it is recognition of the historical fact that by common consent of mankind, these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign municipal laws must indeed by proved as facts, but it is not so with the law of nations.

The consequences of this ruling are decisive of the case before us. The violation of maritime law by the Berkshire in carrying a white light (to say nothing of her neglect to carry colored lights), and her carrying it on deck instead of at her masthead, were false representations to the Scotia. They proclaimed that the Berkshire was a steamer, and such she was manifestly taken to be. The movements of the Scotia were therefore entirely proper, and she was without fault.

DECREE AFFIRMED, WITH COSTS.

title: The Scotia/Opinion of the Court


text: Talk:The Scotia/Opinion of the Court

title: Talk:The Scotia/Opinion of the Court


text:
The Java (Supreme Court)

APPEAL from the Circuit Court for the District of Massachusetts.

On the 7th of November, 1866, the Cunard steamer Java, a screw-steamship of large size, drawing nineteen feet water, and about 360 feet long (more than usual length), entered Boston harbor (a diagram of part of which is on a page following), about noon, in fine, clear weather, the tide being about one hour's ebb, and the wind blowing a three or four knot breeze from the west. Her berth and point of destination was a wharf at East Boston, about 2000 feet east of the Boston Commercial Wharves. Her proper course in coming up from what is called the Upper Middle until she arrived within about a mile of the Commercial Wharves, and seven-eighths of a mile from her own dock, was about northwest by west. At this point, a direct course to her dock would require her to change her course about two points more to the north. But almost directly in her path, a little to the right of it, lay at anchor a large school-ship for the instruction of boys, nearly two-thirds of the distance between her and her dock, and about 17 feet out of water. In getting into her berth she could go either to the right or to the left of this school-ship. The main expanse of water (2000 feet wide) was to the left of the school-ship, but there was a sufficient channel, and one recognized on charts as such, of about 500 feet in width, at that period of tide, to the right of it. Her most direct course would have been to the left, and this was the one by which the Cunard steamships more usually went in; but they had, more than once, it was testified, gone in on the right, as other steamships not unfrequently did, and on this occasion the pilot chose the right, for the reason, as alleged, that several vessels were lying at anchor to the left or west of the school-ship, along in front of the East Boston docks; and he judged that he could get the Java more easily into her berth by going to the right than on the other side. His idea was that owing to her length, if going on the left side the vessel could not have turned herself round without aid. He had scanned the channel about a mile below the school-ship, and saw nothing opposing.

It so happened that just as the Java approached the school-ship, the schooner James McCloskey, laden with linseed, came out from behind it, having been previously concealed by it (her sails not being up), and although the Java was only making about two knots an hour, had her lookouts all in place and vigilant, and used every exertion that human skill could devise, a collision was inevitable, and the schooner and cargo were so much injured that she had to run on to the East Boston flats to prevent sinking. The schooner, it may be added, had been towed down from a wharf at East Boston to the school-ship by a tug, which she there discharged; and she was now floating along with the tide while her crew Diagram of the port of Boston.

were hoisting her sails; and not having at the momentg at the moment any lookout. This suit was brought by the owners of the James McCloskey to recover the damage to vessel and cargo.

The question was, whether the Java was in fault. No fault was seriously suggested but that of going to the right hand of the school-ship. The District Court decided in favor of the Java. From that decision an appeal was taken to the Circuit Court. It was there argued that, as matter of fact and on the evidence before the court, the Java had pursued an unusual course in attempting to go to her dock by the passage to the right of the school-ship, and that for having taken this unusual course she was liable for what had happened. The learned judge who delivered the opinion of that court, in answer to this argument, said:

'A vessel is not to be considered in fault merely because she takes, for reasons of her own convenience or necessity, an unusual course; but when there is a usual and an unusual course, the vessel taking the unusual course for her convenience does it at her peril, and is bound to see that she does it in safety.'

Again he said:

'The school-ship for many years had been constantly, during the winter months, kept moored in the same position near the edge of the channel. She was large and high out of water. The pilot of the Java knew her position, and that the view of a small sailing vessel might be shut out by the school-ship. The steamer was bound to guard against the emergency. If she went under the stern of the school-ship at an acute angle under such circumstances, she was bound by law to proceed so slowly and with so much vigilance that she could keep out of the way of a sailing vessel.'

The Circuit Court accordingly reversed the decree of the District Court, and decreed for the libellants. The owners of the Java now brought the case here.

Mr. Richard Henry Dana, for the libellants, and in support of the ruling below:

It is a well-settled rule of admiralty law, one enforced by statute, that if a steamer approach a sailing vessel, the steamer is required to take the necessary measures to avoid collision; and if collision occurs, and it is not shown to have been inevitable, the steamer is, prim a facie, in fault. Inevitable accident is not simply when it is too late, but it must appear that its being too late was not the fault of either side. It must be understood to mean 'a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent its occurrence.' It is an equally settled rule that a steamer, in entering a harbor is bound to great caution. The vigilance is thrown on her Ordinary care will not excuse her. Steamers, in such in stances, have been held in fault for not using precaution, although they may have done their utmost at the time. If the night is too dark to distinguish a small vessel in season, a large steamer should not attempt to go down the harbor. This court indeed always holds a steamer responsible for the selection of her course. If she takes an unusual course, or one that involves more risk than another, when she has an election, or voluntarily puts herself in a position where, if a sailing vessel shall happen to come in the way, she cannot avoid her, or cannot do so without extreme measures on her part, she is responsible for the damage. And, in such cases, it is not an excuse to show, that but for some mere error, not a fault, in the other vessel, or some accident to her, the collision might not have occurred; it not being made clear that the collision was occasioned by a fault of the other vessel to which the course taken by the steamer did not contribute.

Now, to apply these principles to this case, the Java had the usual broad channel, and deliberately elected to go through a narrow passage, very seldom used by screw-steamers of her length and draft, for her own convenience solely. In doing this, she took upon herself the risk, if ill consequences ensued. Such a vessel as she was-a steamer of great length and draft, for which the passage inside was hazardous, in case any craft should be in her way there-ought not to have gone through that passage unless she knew that the passage was clear.

At the place where she ported her helm to go that way, the Java could not see the course inside the school-ship. Still, if she had kept close on the right side of the channel, the course would have been more open to her view. In going through the passage, therefore, she had an election, and chose to keep in the middle of the channel so as to bring her to such an angle with the school-ship that she could not see objects on the other side, or on the starboard bow of the school-ship. She is chargeable with negligence in this election; for it is clear that as soon as she saw the McCloskey, a collision was inevitable. Neither her helm, nor her machinery, nor her ground-tackle, nor all together, could prevent it.

The Java could never be sure that small vessels, tugs, boats, barges, and scows, might not come into the passage at any moment. They, on the other hand, had no reason to expect that such a vessel as the Java would be there. Some large steamers go inside, but not those we may reasonably affirm like the Java; and it is to be presumed that they keep on the north side, in order to keep the passage open to view, so that they can both see and be seen. Therefore, if a small vessel left a wharf in East Boston to go inside, and saw no steamer in view, she was justified in supposing she should not meet one until she got clear of the school-ship. This crossing the stern of the school-ship by a huge screw-steamer was a surprise.

The collision was not inevitable; for there were two other courses open to the Java, in one of which it could not, and in the other probably would not, have occurred. Nothing happened that she was not bound to anticipate as possible or probable.

The Circuit Court, though not receiving as of great weight our argument that the Java pursued an unusual course, and was therefore in fault, yet takes a ground which was what in effect we meant to urge, to wit, that 'when there is a usual and an unusual course, the vessel taking the unusual course for her convenience does it at her peril, and is bound to see that she does it in safety.' So again, when saying that the school-ship for many years had been, during the winter months, 'kept moored in the same position near the edge of the channel; that she was large and high out of water; that the pilot of the Java knew her position, and that the view of a small sailing vessel might be shut out by the school-ship, and that the steamer was bound to guard against the emergency.' These were the views, in truth, meant to be presented by us, and we rely on them as true ones.

Mr. W. G. Russell, contra.

We admit the obligation of a steamship to avoid a sailing vessel; that the omission so to do renders the steamship prim a facie liable; that precaution on the part of the steamship must be seasonable; that extreme caution is required in entering a port; that a departure from a course required by established usage is a fault; but we contend that the obligation to avoid a sailing vessel only arises where the vessels are in sight of each other, unless their failure to see each other results from previous fault of the steamer; that the prim a facie case against the steamer may be overcome by affirmative proof of due care; that the burden of proof is on the libellants, and that there is no liability where fault is disproved.

The Circuit Court erred in law by imposing liability where there was no fault; or, in fact, by assuming that the steamer might reasonably have anticipated meeting the schooner, when, in fact, she had no reason to expect to meet her.

The facts show due care on the part of the Java. Neither vessel was seen by the other till the collision was inevitable The school-ship concealed each vessel from the other. This fact also determines the course of the two vessels.

The Java was not in fault for not sooner discovering the schooner. Her lookout was sufficient, well stationed, vigilant. The schooner was not discovered, because without canvas and in range of the school-ship. She was seen as soon as visible.

The Java was not in fault in her course or the manner in which she pursued it. The Cunard steamships are not excluded from taking their course inside the school-ship by non user. Usage of Cunarders not to take that course would be inadmissible in law, and if it were admissible no non user is proved. Contrariwise, there was a not wholly infrequent use by Cunard ships and a quite frequent use by all other steamships. The course of the schooner was not influenced by her not expecting to meet the steamer.

Inside the school-ship was the proper course enough. The Java took the course with all possible precaution. The channel is shown on charts. That it is safe and proper is proved by this fact; and, still more, by its frequent use by all classes of steamships; and there was the special reason for taking it here that there were several vessels anchored ahead of the school-ship, obstructing the outside course to the Java's dock, and which would have obliged her to make a great circuit and to go into dock in a way which without tugs it would have not been easy to do. Then the Java took her course inside with all due caution. Caution was observed in her equipment, management, and speed. The vigilance of her lookout is proved. The pilot at only a mile below the school-ship had scanned the whole inside passage and found it clear. She had all appliances in readiness for manoeuvring rapidly, and her speed, when she discovered the schooner, was not over two knots. All this is indeed admitted.

The Circuit judge assumes that the Java might reasonably have expected to meet the schooner where, and as she in fact met her. This was an error arising from neglect to observe the proved fact, that the pilot, only ten minutes before, had scanned the whole passage and found it clear. There was an extreme improbability that any vessel could come into the passage unobserved. Any vessel under sail must have been seen, and any vessel, except upon the exact line taken by the schooner, would have been seen. The collision was impossible, except by exactly such a combination of circumstances as occurred. Such a combination, so improbable, that the Java was not bound to govern her course by anticipating it.

The Java took all proper measures, with all diligence, after discovering the schooner. Upon this point no fact is found against the Java in the Circuit Court. In every case cited, where a steamship has been charged, it has been for specific fault. In the case of the Java every fault charged is disproved. So far as the Java is concerned, the case is one of inevitable accident.

Then, on the other hand, the schooner was herself in fault. She should have sooner discovered the steamer. She had no lookout. This was in itself negligence. The Java could have been seen more readily than the schooner. The schooner was, moreover, in fault in thrusting herself helpless in the way of the steamer from behind the school-ship.

The learned judge, who gave the opinion of the Circuit Court, while denying the position taken before him by the libellants' counsel, that the Java having taken (as was assumed) an unusual course, yet falls into a mistake almost as considerable. His view, that a vessel taking an unusual course, even for her greater convenience, does it at her peril, and is bound to see that she does it safely,' and bound to proceed so slowly and with so much vigilance' as to make accident absolutely impossible-is a view entirely too broad. It would oblige a vessel to follow what from her structure or from the circumstances in which she might happen to be would be a most inconvenient course, though one commonly used by other vessels, or by herself in other circumstances, and make her liable for even inevitable accident.

Mr. Justice BRADLEY delivered the opinion of the court.

title: The Java (Supreme Court)


text: Talk:The Java (Supreme Court)

title: Talk:The Java (Supreme Court)


text:
The Java (Supreme Court)/Opinion of the Court

If the expressions of the learned judge who delivered the opinion of the Circuit Court, in answer to the argument that the Java pursued an unusual course in attempting to go to her dock by the passage to the right of the school-ship, and which have been commented on at the bar, mean that she was bound to use more than ordinary precaution by reason of taking an unusual route, they are correct; but if they mean that she was liable at all events, whatever precautions she took, we cannot concur in the position. A small vessel might have been concealed by the school-ship, and might have come out upon the Java unawares, whichever side of the school-ship she had gone. It was shown by the evidence that the Cunard steamers had before passed in by the same route which the Java took, and it seems on this occasion to have been the preferable one, inasmuch as the Java, from her great length, could not, by herself, have turned into her dock had she taken the other route and gone around the vessels lying at anchor. She had a perfect right to go by the passage which she took, as much so as the James McCloskey had to come out by that passage; and in doing so, she was not liable at all events; she was only bound to use that degree of care and precaution which the particular circumstances of the case demanded. There is not the slightest evidence that in this regard anything was wanting, or that there was any lack of skill or vigilance on the part of the pilot and crew of the Java.

On the other hand, the James McCloskey was not without fault. She had been towed down from one of the East Boston wharves to the school-ship, and there discharged her tug, and floated along slowly with the tide, without having her sails up (her crew being engaged in hoisting sail), without being under control, and entirely concealed from the view of the Java by the intervention of the school-ship. She came out from behind the latter without any notice or warning. If either ship is to blame, we think the blame rests with her, rather than with the Java.

It is contended that the Java ought to have anticipated the possibility of a small vessel lying behind the school-ship. The answer is, that she took every reasonable precaution which the circumstances required. She proceeded very slowly, only two knots an hour; she had lookouts posted in every proper place; as soon as the schooner was seen, she took every means in her power to stop and back and avoid the collision. How could she anticipate the possibility of a vessel lying behind the school-ship, without sails hoisted, incapable of being seen in a bright, clear day, drifting along helplessly with the tide, ready to drop under the Java at her approach? Is it not applying too severe a rule to the Java, to require her to anticipate all this, and to require the schooner to anticipate nothing?

It seems to us that if this was not an inevitable accident, so far as the Java was concerned, it would be very difficult to imagine a case of inevitable accident not caused by external force, as of winds and waves.

The decree of the Circuit Court is REVERSED, with directions to

DISMISS THE LIBEL.


text: Talk:The Java (Supreme Court)/Opinion of the Court