text:
Baltimore v. Fifth Baptist Church

The Fifth Baptist Church, the plaintiff in the court below, is a religious corporation, created under the general incorporation act of congress in force in the District of Columbia. It owns a building in the city of Washington, situated on D street, between Four-and-a-half and Sixth streets, which was erected and has been used by it as a church for many years. The defendant in the court below, the Baltimore & Potomac Railroad Company, is a corporation created under the laws of Maryland, and is authorized by act of congress to lay its track within the limits of the city, and construct other works necessary and expedient to the proper completion and maintenance of its road.

The plaintiff alleges that the defendant, in 1874, erected an enginehouse and machine-shop on a parcel of land immediately adjoining its church edifice, and has since used them in such a way as to disturb, on Sundays and other days, the congregation assembled in the church, to interfere with religious exercises therein, break up its Sunday-schools, and destroy the value of the building as a place of public worship. It therefore brought the present suit in the supreme court of the district for the damages it had sustained. The defendant pleaded the general issue.

On the trial, evidence was given to show—

That the Fifth Baptist Church has owned and used the premises described as a place of worship since 1857; that the present church building was begun in 1867, and since 1868 or 1869 has been continuously occupied by the church as its house of worship; that in 1872 the defendant erected upon a parcel of ground immediately adjoining the premises on the west, and from April, 1874, till the commencement of this suit, maintained an engine-house and machine-shop, where a large number of locomotives and steam-engines were housed and their fires made, and to and from which the engines were propelled, and in which they were coaled, watered, repaired, and otherwise used; that when the ground was first broken for the erection of these works the plaintiff advised the company that if put there they would prove to be a nuisance and ruinous to the plaintiff's interests, and protested against their erection; that the company, however, paid no heed to this protest, but proceeded to erect the works upon the building line of its own premises within five and a half feet of the church edifice, and constructed upon the enginehouse 16 smoke-stacks, lower in height than the windows of the main room of the church; that the nearest of the smoke-stacks was less than 60 feet from the windows, and the others were in a semi-circular curve. at gradually increasing distances; that during this period-from April, 1874, to commencement of the present suit-the plaintiff was accustomed to have on every Sabbath day Sunday-school exercises in the morning, preaching in the forenoon, and preaching in the evening; and that religious services were also held in it on Wednesday evening of every week, and on the first Tuesday and Friday evenings of every month, and at intervals protracted religious meetings were held in it every night in the week except Saturday night; that during this period these services were habitually interrupted and disturbed by the hammering noises made in the workshops of the company, the rumbling of its engines passing in and out of them, and the blowing off of steam; that these noises were at times so great as to prevent members of the congregation sitting in parts of the church furthest from the shops from hearing what was said; that the act of blowing off steam occupied from five to fifteen minutes, and frequently compelled the pastor of the church to suspend his remarks; that this was of habitual occurrence, during the day and at night, and on Sundays as well as other days; and that in the summer-time, when the windows of the church were opened for air, smoke, cinders, and dust were blown from the smoke-stacks through the windows of the church, settling upon the pews and furniture, and soiling the clothes of the occupants, accompanied by an offensive odor, which greatly annoyed the congregation.

Evidence was also given to show—

That the railroad company, which was authorized to lay its track only along Virginia avenue in the city, had constructed a side track from the avenue to its workshops, crossing a part of D street and its sidewalk at a distance of about 100 feet from the door of the church; that the locomotives were allowed to stand at the entrance of its premises with their cow-catchers protruding several feet beyond the inclosure, and sometimes to stand across the sidewalk along which two-thirds of the congregation are obliged to pass in going to and from the church; that the access to the church was thereby obstructed and rendered dangerous, and on several occasions members had barely escaped being run over by the sudden starting of the locomotives without note or warning; that the congregation had been thereby diminished, and the attendance upon the Sunday-school decreased by about one-fourth; that the Sunday-school was a source of revenue to the plaintiff, having contributed to the construction and improvement of the church building, and this revenue was proportioned to the attendance thereon; that the property of the plaintiff was nearly ruined for church purposes by the proximity of the works of the defendant, and the noise, smoke, cinders, and dust which they created; that the rental value was ordinarily from $1,200 to $1,600 per annum, but that with the defendant's works adjoining it could hardly be rented at all; and that those works had depreciated the value of the property fifty per cent.

To meet the facts thus established, and as a defense to the action, the railroad company gave evidence to show—That it ran about 60 trains a day over its road in the city of Washington during week-days, and about 10 trains on Sundays; that its locomotives were the best known in the business; that it employed about 200 men, who were all skillful in their particular branches of the work, and well behaved; that in the engine and repair shop no more noise was made than was necessary; that every precaution was taken on Sundays to preserve quiet in the neighborhood of the church; that the main shop of the company was in the city of Baltimore, and the shop and engine-house in Washington were used only for making casual and temporary repairs in order to keep the machinery and engines in operation; that the smoke-stacks were higher than required by the building regulations in force in Washington; that the engine-house and workshops were skillfully and carefully constructed with suitable appointments and appliances; that the bells of the locomotives were not rung, not the whistle sounded, except when an accident was liable to occur; and that when the engines were brought into the house the steam ordinarily was not blown off, but allowed to go down.

The main reliance, however, of the railroad company to defeat the action was the authority conferred upon it by the act of congress of February 5, 1867, to exercise the same powers, rights, and privileges in the construction of a road in the District of Columbia, the line of which was afterwards designated, which it could exercise under its charter in the construction of a road in Maryland, with some exceptions, not material here. By its charter it was empowered to make and construct all works whatever, which might 'be necessary and expedient,' in order to the proper completion and maintenance of the road.

The act of congress provided that the road which the company was authorized to construct should enter the city at such a place and pass along such public street or alley to such terminus as might be allowed by congress, upon the presentation of a survey and map of its proposed location. Subsequently congress allowed the company to enter the city with its railroad by one of two routes, as it might select. It selected the one by which the road is brought along Virginia avenue, in front of the church of the plaintiff, to the intersection of South C and West Ninth streets.

The testimony of the parties being closed, the plaintiff prayed three instructions to the jury, which were given by the court, with additions to each. They are as follows:

FIRST INSTRUCTION PRAYED.

'If the jury find from the evidence that the engine-house of the defendant is used for receiving its engines when they come into the city after a trip; that after coming into said engine-house such engines more or less frequently blow off their steam, and that such blowing off of steam makes a loud and disagreeable noise, and that such engines are put in the stalls in said house, and omit the smoke from their fires through the chimneys of said house, and that the said engine-house is used for the purpose of a shop in which to make a certain class of repairs upon the engines and cars of the defendant, and that a loud noise of hammering is created in making such repairs, and that said engine-house is also used to receive coal for coaling the engines of defendant before going out, and that they are all coaled therein, and also get up their fire and steam therein, and further find that said house is located so near the church of the plaintiff that the noises from said engine-house can be distinctly heard inside of the said church, and also that the chimneys of said engine-house are so constructed that the tops thereof are not as high as the tops of the windows of said church, and shall further find that the smoke from said chimneys is thrown through said windows into said church in such quantities and so generally as to be a common annoyance and inconvenience to the congregation worshipping therein, and that said noises in said yard of blowing off steam are of daily and nightly occurrence, and are so distinctly heard in said church on Sundays, as well as the days of the week, as to annoy, harass, and inconvenience the congregation when engaged in divine worship therein, and that they disturb and greatly inconvenience the congregation in the enjoyment of said building as a church, then the plaintiff is entitled to recover, provided the jury find that said church was located upon the spot where it now is before the defendant established its engine-house in its present position, and provided the jury further find that the annoyance and inconvenience to said congregation from the smoke and noises above mentioned occurred within three years before the date at which this suit was brought, and provided further that said noises and smoke depreciated the value of the property of the plaintiff within the period from April 1, 1874, to March 22, 1877.'

The court granted this prayer and gave the instruction, adding to it a charge, as follwos:

'If you find all these facts, then this shop is a nuisance, and a special annoyance to the congregation that worship in this church. Every man has a right to the comfortable enjoyment of his own house, in which enjoyment a neighbor cannot molest him; and no grant conferred by proper authority upon any corporation to construct a railroad along the public streets, or to build shops, can be construed as authorizing that company to construct a nuisance. If the work is of such a necessary kind that the company must have it, if the shop is of that character, and yet is a nuisance in the neighborhood, they must find some other place to put it. No legislature has a right to establish a private nuisance.'

SECOND INSTRUCTION PRAYED.

'The actual amount of pecuniary loss to the plaintiff is not necessarily the rule of damages in actions like the present. In estimating the amount of compensation to the plaintiff for the injury, if any, found to have been sustained by it, the jury may determine the extent of the injury and the equivalent damages, in view of all the circumstances of said injury to said plaintiff, of depreciation in the value of its property during the period embraced in this suit, and of interference with the uses to which said property was devoted by said plaintiff during said period, and of all other particulars, if any, wherein the plaintiff is shown to have been injured during said period, and for which, under the instruction of the court, said plaintiff is entitled to recover.'

This prayer was granted and the instruction given, accompanied with the following charge to the jury:

'That prayer I think is substantially right. The suit is brought by a congregation duly incorporated, and they have brought an action to recover damages for their inconvenience and discomfort in consequence of the acts of the defendant. It is the personal discomfort more than anything else which is to be considered in regard to the assessment of damages. Now, I can very easily imagine, and it may often happen, that the construction of an improvement such as this might increase the value of property in the vicinity, and I am not sure at all that the erection of this workshop in that neighborhood may not really have increased the intrinsic value of the property belonging to this congregation. The evidence in the case does not, as it seems to me, show that this property has been depreciated by the construction of that workshop. We can imagine, and it is not a far-fetched imagination either, that the effect of such a workshop in that neighborhood might be to collect a population around it, and thus increase the population in that neighborhood, and really enhance the value of property; and yet the congregation would be entitled to recover damages (although their property might have increased in value) because of the inconvenience and discomfort they have suffered from the use of the shop. The congregation has the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment of his own house, and it is the discomfort which is the primary consideration in allowing damages.'

THIRD INSTRUCTION PRAYED.

'If the jury find from the evidence that, among other purposes, the plaintiff's church was used by the said plaintiff as a school-house for the instruction of children on the Sabbath day, and that a revenue was derived from such school, depending for the amount thereof upon the number of children attending said school, and shall also find that the defendant was in the habit of allowing its engines, with steam on, and ready to move out over D street, to lie adjacent to the sidewalk of said D street, adjacent to its workshop and enginehouse, and that in consequence of said engine being so allowed to occupy such position the number of pupils attending said school was diminished, and that from the said cause the number of the pupils of the said school was lessened within the period from March 22, 1874, to March 22, 1877, then the jury will consider the extent of such special damage to the plaintiff, should they find such special damage an element in making up their verdict in this case.'

This prayer was granted and the instruction given, accompanied with the following charge:

'I grant that prayer because there is some evidence that this congregation used that church partly for a Sunday-school where children are instructed, and that those children were in the habit of contributing, and have contributed, sums of money to the support of the church. A party is entitled to be compensated, not only for actual damages sustained from the acts of the defendant, but, in a case like this, is entitled to his damages for a continuous and threatened danger. A man is entitled to recover damages from the owner of an adjoining property ready to tumble the danger may not have been actually That is a threatened danger, and although the danger may not have been abtually sustained, yet people are not to be kept in alarm constantly by a threat of danger. It may fall upon him at any time, and a court of chancery would direct it to be removed, and on an indictment for a nuisance of that kind it would be removed. But in private actions like this it may be taken into consideration by the jury whether those engines, standing inside the house and passing out and in so frequently as they do, and in that place, produce a reasonable and fair apprehension of danger to persons passing to that church, especially to children passing to Sunday-school. You can take that element into your consideration.'

To each of these instructions the defendant excepted. It also requested the court to give several other instructions, the purport of which was—

That if the railroad company constructed its smoke-stacks on the repair-shop in the usual and ordinary manner, and built them as high as required by the building regulations in force in Washington, the plaintiff could not recover for any damage caused by smoke from such smoke-stacks; that the company possessed the right to select the location in question, and to construct, maintain, and use upon it such engine-house and other works as were necessary and expedient for the construction, maintenance, and repair of its road and engines, and to occupy the premises for that purpose; and that if the jury found that the inconveniences complained of were no more nor greater than the natural or probable result of maintaining such engine-house and repair-shop, or found that, in the occupation and use of the property and management of its business, the company exercised such reasonable care as a person of ordinary prudence and caution would exercise under the circumstances, it was not liable for any damages; and that if the company did not use reasonable care in the construction of the smoke-stacks on the engine-house or repair-shop, the plaintiff was only entitled to recover interest for three years on the difference between the value of the property as it would have been if the defendant's smoke-stacks had been carefully constructed, and the actual value as reduced by the smoke from them; that the defendant was entitled to construct and use the side track across D street; and that the plaintiff could not recover, being a corporation, for any inconvenience which members of the congregation assembled in its church might suffer from the noise and offensive odors occasioned by the defendant's engines and shops.

The court refused to give these instructions, and the jury found for the plaintiff $4,500 damages, and the judgment entered thereon was affirmed at the general term of the supreme court of the district. To review that judgment the defendant brought the case here on a writ of error.

Enoch Totten, for plaintiff in error.

[Argument of Counsel from pages 326-328 intentionally omitted]

R. T. Merrick and I. J. Darlington, for defendant in error.

FIELD, J.

title: Baltimore v. Fifth Baptist Church


text: Talk:Baltimore v. Fifth Baptist Church

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

title: Talk:Baltimore v. Fifth Baptist Church


text:
Baltimore v. Fifth Baptist Church/Opinion of the Court

If the facts are established which the evidence tended to prove, and from the verdict of the jury we must so infer, there can be no doubt of the right of the plaintiff to recover. The engine-house and repair-shop of the railroad company, as they were used, rendered it impossible for the plaintiff to occupy its building with any comfort as a place of public worship. The hammering in the shop, the rumbling of the engines passing in and out of the engine-house, the blowing off of steam, the ringing of bells, the sounding of whistles, and the smoke from the chimneys, with its cinders, dust, and offensive odors, created a constant disturbance of the religious exercises of the church. The noise was often so great that the voice of the pastor while preaching could not be heard. The chimneys of the engine-house bing lower than the windows of the church, smoke and cinders sometimes entered the latter in such quantities as to cover the seats of the church with soot and soil the garments of the worshipers. Disagreeable odors, added to the noise, smoke, and cinders, rendered the place not only uncomfortable, but almost unendurable as a place of worship. As a consequence, the congregation decreased in numbers, and the Sunday-school was less numerously attended than previously.

Plainly the engine-house and repair-shop, as they were used by the railroad company, were a nuisance in every sense of the term. They interfered with the enjoyment of property which was acquired by the plaintiff long before they were built, and was held as a place for religious exercises, for prayer and worship; and they disturbed and annoyed the congregation and Sunday-school which assembled there on the Sabbath and on different evenings of the week. That is a nuisance which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrong-doer, and when the cause of the annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance. Crump v. Lambert, L. R. 3 Eq. 409.

The right of the plaintiff to recover for the annoyance and discomfort to its members in the use of its property, and the liability of the defendant to respond in damages for causing them, are not affected by their corporate character. Private corporations are but associations of individuals united for some common purpose, and permitted by the law to use a common name, and to change its members without a dissolution of the association. Whatever interferes with the comfortable use of their property, for the purposes of their formation, is as much the subject of complaint as though the members were united by some other than a corporate tie. Here the plaintiff, the Fifth Baptist Church, was incorporated that it might hold and use an edifice, erected by it, as a place of public worship for its members and those of similar faith meeting with them. Whatever prevents the comfortable use of the property for that purpose by the members of the corporation, or those who, by its permission, unite with them in the church, is a disturbance and annoyance; as much so as if access by them to the church was impeded and rendered inconvenient and difficult. The purpose of the organization is thus thwarted. It is sufficient to maintain the action to show that the building of the plaintiff was thus rendered less valuable for the purposes to which it was devoted.

The liability of the defendant for the annoyance and discomfort caused is the same, also, as that of individuals for a similar wrong. The doctrine which formerly was sometimes asserted, that an action will not lie against a corporation for a tort, is exploded. The same rule in that respect now applies to corporations as to individuals. They are equally responsible for injuries done in the course of their business by their servants. This is so well settled as not to require the citation of any authorities in its support.

It is no answer to the action of the plaintiff that the railroad company was authorized by act of congress to bring its track within the limits of the city of Washington, and to construct such works as were necessary and expedient for the completion and maintenance of its road, and that the engine-house and repair-shop in question were thus necessary and expedient; that they are skillfully constructed; that the chimneys of the engine-house are higher than required by the building regulations of the city; and that as little smoke and noise are caused as the nature of the business in them will permit. In the first place, the authority of the company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them wherever it might think proper in the city, without reference to the property and rights of others. As well might it be contended that the act permitted it to place them immediately in front of the president's house or of the capitol, or in the most densely populated locality. Indeed, the corporation does assert a right to place its works upon property it may acquire anywhere in the city. Whatever the extent of the authority conferred, it was accompanied with this implied qualification that the works should not be so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their property. Grants of privileges or powers to corporate bodies, like those in question, confer no license to use them in disregard of the private rights of others, and with immunity for their invasion. The great principle of the common law, which is equally the teaching of Christian morality, so to use one's property as not to injure others, forbids any other application or use of the rights and powers conferred.

Undoubtedly a railway over the public highways of the district, including the streets of the city of Washington, may be authorized by congress, and if when used with reasonable care it produces only that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars, with the noises and disturbances necessarily attending their use, no one can complain that he is incommoded. Whatever consequential annoyance may necessarily follow from the running of cars on the road with reasonable care is damnum absque injuria. The private inconvenience in such case must be suffered for the public accommodation. But the case at bar is not of that nature. It is a case of the use by the railroad company of its property in such an unreasonable way as to disturb and annoy the plaintiff in the occupation of its church to an extent rendering it uncomfortable as a place of worship. It admits, indeed, of grave doubt whether congress could authorize the company to occupy and use any * premises within the city limits in a way which would subject others to physical discomfort and annoyance in the quiet use and enjoyment of their property, and at the same time exempt the company from the liablility to suit for damages or compensation, to which individuals acting without such authority would be subject under like circumstances. Without expressing any opinion on this point, it is sufficient to observe that such authority would not justify an invasion of others' property, to an extent which would amount to an entire deprivation of its use and enjoyment, without compensation to the owner. Nor could such authority be invoked to justify acts creating physical discomfort and annoyance to others in the use and enjoyment of their property, to a less extent than entire deprivation, if different places from those occupied could be used by the corporation for its purposes, without causing such discomfort and annoyance.

The acts that a legislature may authorize, which, without such authorization, would constitute nuisances, are those which affect public highways or public streams, or matters in which the public have an interest and over which the public have control. The legislative authorization exempts only from liability to suits, civil or criminal, at the instance of the state; it does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large.

Thus, in Sinnickson v. Johnsons, 2 Har. 151, it was held by the supreme court of New Jersey that an act of the legislature authorizing an individual to erect a dam across a navigable water constituted no defense to an action for damages for an overflow caused by the dam. 'It may be lawful,' said the court, 'for him [the grantee of the power] and his assignees to execute this act, so far as the public interests, the rights of navigation, fishing etc., are concerned, and he may plead, and successfully plead, the act to any indictment for a nuisance, or against any complaint for an infringement of the public right, but cannot plead it as a justification for a private injury which may result from the execution of the statute.' In Crittenden v. Wilson, 5 Cow. 165, it was held by the supreme court of New York that an act authorizing one to build a dam, on his own land, upon a creek or river which was a public highway, merely protected him from indictment for a nuisance. If, said the court, there had been no express provision in the act for the payment of damages, the defendant would still have been liable to pay them, and the effect of the grant was merely to authorize the defendant to erect a dam, as he might have done, if the stream had been his own, without a grant. In such a case he would have been responsible in damages for all the injury occasioned by it to others.

In Brown v. Cayuga & S. R. Co. 12 N. Y. 491, the company was sued for overflowing plaintiff's land by means of a cut through the banks of a stream which its road crossed. It pleaded authority by its charter to cross highways and streams, and that the cut in question was necessary to the construction and maintenance of the road. But it was held that the company was liable for damages caused. 'It would be a great stretch,' said the court, 'upon the language, and an unwarrantable imputation upon the wisdom and justice of the legislature, to hold that it imports an authority to cross the streams in such a manner as to be the cause of injury to others' adjoining property.' And so the court adjudged that the company was under the same obligation as a private owner of the land and stream, had he bridged it; and that the right granted to bridge the stream gave no immunity for damages which the excavation of its banks for that purpose might cause to others.

In Com. v. Kidder, in the supreme court of Massachusetts, (107 Mass. 188,) a statute of that state authorized the storage, keeping, manufacture, and refining of crude petroleum or any of its products in detached and properly-ventilated buildings, specially adapted to that purpose; and it was held that it did not justify the refining of petroleum at any place, where a necessary consequence of the munufacture was the emission of vapors which constitute a nuisance at common law by their unwholesome and offensive nature.

Numerous other decisions from the courts of the several states might be cited in support of the position that the grant of powers and privileges to do certain things does not carry with it any immunity for private injuries which may result directly from the exercise of those powers and privileges.

If, as asserted by the defendant, the noise, smoke, and odors, which are the cause of the discomfort and annoyance to the plaintiff, are no more than must necessarily arise from the nature of the business carried on with an engine-house and work-shop as ordinarily constructed, then the engine-house and work-shop should be so remodeled and changed in their structure as to prevent, if that be possible, the nuisance complained of; and, if that be not possible, they should be removed to some other place where, by their use, the plaintiff would not be thus annoyed and disturbed in the enjoyment of its property. There are many places in the city sufficiently distant from the church to avoid all cause of complaint, and yet sufficiently near the station of the company to answer its purposes.

There are many lawful and necessary occupations which, by the odors they engender or the noise they create, are nuisances when carried on in the heart of a city, such as the slaughtering of cattle, the training of tallow, the burning of lime, and the like. Their presence near one's dwelling-house would often render it unfit for habitation. It is a wise police regulation, essential to the health and comfort of the inhabitants of a city, that they should be carried on outside of its limits. Slaughter-houses, lime-kilns, and tallow-furnaces are, therefore, generally removed from the occupied parts of a city, or located beyond its limits. No permission given to conduct such an occupation within the limits of a city would exempt the parties from liability for damages occasioned to others, however carefully they might conduct their business. Fish v. Dodge, 4 Denio, 321.

The fact that the smoke-stacks of the engine-house were as high as the city regulations for chimneys required, is no answer to the action, if the stacks were too low to keep the smoke out of the plaintiff's church. In requiring that chimneys should have a certain height, the regulations did not prohibit their being made higher, nor could they release from liability if not made high enough. It is an actionable nuisance to build one's chimneys so low as to cause the smoke to enter his neighbor's house. If any adjudication is wanted for a rule so obvious, it will be found in the cases of Sampson v. Smith, 8 Sim. 272, and Whitney v. Bartholomew, 21 Conn. 213.

The instruction of the court as to the estimate of damages was correct. Mere depreciation of the property was not the only element for consideration. That might, indeed, be entirely disregarded. The plaintiff was entitled to recover because of the inconvenience and discomfort caused to the congregation assembled, thus necessarily tending to destroy the use of the bilding for the purposes for which it was erected and dedicated. The property might not be depreciated in its salable or market value, if the building had been entirely closed for those purposes by the noise, smoke, and odors of the defendant's shops. It might then, perhaps, have brought in the market as great a price to be used for some other purpose. But, as the court below very properly said to the jury, the congregation had the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment of his own house, and it is the discomfort and annoyance in its use for those purposes which is the primary consideration in allowing damages. As with a blow on the face, there may be no arithmetical rule for the estimate of damages. There is, however, an injury, the extent of which the jury may measure.

Judgment affirmed.


text: Talk:Baltimore v. Fifth Baptist Church/Opinion of the Court


text:
United States v. Ambrose (108 U.S. 336)

''Sol. Gen. Phillips'', for the United States.

''Geo. Hoadly, E. M. Johnson, and Edward Colston'', for Ambrose.

[Argument of Counsel from pages 337-338 intentionally omitted]

MILLER, J.

title: United States v. Ambrose (108 U.S. 336)


text: Talk:United States v. Ambrose (108 U.S. 336)


text:
United States v. Ambrose (108 U.S. 336)/Opinion of the Court

ase comes before us on a certificate of division of opinion between the judges holding the circuit court for the southern district of Ohio.

The defendant, who was clerk of the circuit and district courts for that district, was indicted for perjury in swearing before the district judge to his emolument returns and an account for services rendered for the United States. The indictment consists of four counts, framed under section 5392 of the Revised Statutes, namely:

'Every person who, having taken an oath before a competent     tribunal, officer, or person, in any case in which a law of      the United States authorizes an oath to be administered that      he will testify, declare, depose, or certify truly, or that      any written testimony, declaration, deposition, or      certificate by him subscribed is true, willfully and contrary      to such oath states or subscribes any material matter which      he does not believe to be true, is guilty of perjury, and      shall be punished by a fine of not more than $2,000, and by      imprisonment at hard labor not more than five years; and      shall, moreover, thereafter be incapable of giving testimony      in any court of the United States until such time as the      judgment against him is reversed.'

In the first three counts of the indictment, after setting out the emolument returns, and their verification by oath of the defendant, the falsity of the counts, and the corrupt perjury of the defendant in swearing to them, each count closes with this language:

'And so the grand jurors aforesaid, on their oaths and     affirmations aforesaid, present that he, the said Thomas      Ambrose, having taken the said oath, before the said officer      who was competent to administer the same, that said written      declaration by him so subscribed as aforesaid was true,      willfully and contrary to said oath did then and there      unlawfully subscribe said matters heretofore set forth, which      were material and which he did not believe to be true,      contrary to the form of the statute in such case made and      provided, and against the peace and dignity of the United      States of America.'

A demurrer was filed to the whole indictment, on the ground, relied on here also, that the paper, to the truth of which defendant swears as it is set forth in the indictment, is neither a declaration, as it is charged to be in the first three counts, nor a certificate, as charged in the last, within the meaning of those words in section 5392. And in regard to this question, as it applies to each count, the judges of the court have sent us the following certificate:

(Circuit Court of the United States, Southern District of     Ohio.)

(1472) UNITED STATES v. THOMAS AMBROSE.

Indictment.

'This cause coming on to be heard before the Hon. NOAH H.     SWAYNE and Hon, JOHN BAXTER, judges of said court, sitting      therein upon the demurrer of defendant to the indictment,      certain questions thereupon occurred on said hearing to be      decided by the court, to-wit:

'First. Whether the instrument set forth in the first count     of indictment, and alleged therein to have been subscribed      and sworn to by the defendant, was a written declaration      within the meaning of section 5392 of the Revised Statutes of      the United States.

'Second. Whether the instrument set forth in the second count     of the indictment, and alleged therein to have been      subscribed and sworn to by the defendant, was a written      declaration within the meaning of section 5392 of the Revised Statutes of the      United States.

'Third. Whether the instrument set forth in the third count     of indictment, and alleged therein to have been subscribed      and sworn to by the defendant, was a written declaration      within the meaning of section 5392 of the Revised Statutes of      the United States.

'Fourth. Whether the instrument set forth in the fourth count     of the indictment, and alleged therein to have been      subscribed and sworn to by the defendant, was a written      certificate within the meaning of section 5392 of the Revised      Statutes of the United States.

'Upon which said questions the judges aforesaid were divided     in opinion.

'It is thereupon ordered that the said points of     disagreement, stated as above, under the direction of said      judges, be certified under the seal of the court to the      supreme court of the United States at their next session.'

We do not think the words 'declaration' and 'certificate,' as used in the section of the Revised Statutes on which this indictment is founded, are used as terms of art, or in any technical sense, but are used in the ordinary and popular sense, to signify any statement of material matters of fact sworn to and subscribed by the party charged. Indeed, the word 'declaration,' as a word of art in the law, is generally used to signify the plea by which a plaintiff in a suit at law sets out his cause of action, as the word 'complaint' is in the same sense the technical name of a bill in chancery. The fact that in many acts of congress cited by counsel that body has used the word to signify a statement in writing, whether sworn to or not, as the foundation in many cases of official action, or as preliminary to the assertion of rights by the party who makes the declaration, is far from proving that the use of the word in the act concerning perjury is limited to these cases. The inference is strong the other way, for the word is used in the cases cited in regard to so many and such diverse transactions, that it can, in view of them all, have no other meaning than what is attached to it in ordinary use. And in all these instances it is equivalent to a statement of facts material to the matter in hand.

The paper or statement of the emolument account, the falsity of which is the foundation of the charge, is set out; and if, in the charging clause of the indictment, it is described by a word equally applicable to other instruments, no harm can come to defendant, since he is precisely informed as to the identical writing which is alleged to be false, and which he swore to be true. Nor can he be mislead in any way, because what he says in that writing is, in the correct use of language, his sworn declaration on that subject. But the perjury in all such cases consists in the oath by which the party indicted swears to the truth of some matter, and this oath may be said to be the false statement of the statute. Or, in another sense, it may be said that the written statement and the oath of the party that it is true, all constitute the declaration or certificate of the statute, for the falsity of which he is chargeable with perjury and liable to punishment. The previously-prepared writing, his oath to its truth, or the whole taken together, is, in our opinion, a declaration of the party within the meaning of the statute, and may be so well described in the indictment. We are quite satisfied that, as set forth in this indictment, these are material matters under the statute, and if defendant did not believe them to be true when he swore to and subscribed the statement that they were true, that he is guilty of perjury, as declared in section 5392; and we think the word 'declaration' correctly defines such statement. The same rule of construction is applicable to the word 'certificate' used in the statute.

It is attempted in argument to raise the question whether the judge of the district court had authority to administer the oath in which the perjury was committed. But it is clear that no such question is certified to us by the judges of the circuit court, and we cannot consider it. U.S. v. Briggs, 5 How. 208; Dennistoun v. Stewart, 18 How. 568.

We answer all the questions submitted to us in the affirmative, and it will be so certified to the circuit court.


text: Talk:United States v. Ambrose (108 U.S. 336)/Opinion of the Court


text:
The Tornado

''Thos. J. Semmes and Richard De Gray'', for appellants.

''P. Phillips, Jas. McConnell, and W. Hallett Phillips'', for appellees.

BLATCHFORD, J.

title: The Tornado


text: Talk:The Tornado

title: Talk:The Tornado


text:
The Tornado/Opinion of the Court

This is a libel in admiralty against the cargo of the ship Tornado, brought by the master and owners of that vessel, to recover freight money. The district court and, on appeal, the circuit court, dismissed the libel. The libelants have appealed to this court. The material facts found by the circuit court are these:

On the twenty-fourth of February, 1878, the ship, while     moored at the wharf in New Orleans, and bound on a voyage to      Liverpool, England, and before she had broken ground for said      voyage, was discovered to be on fire in her hold. Her master     had given bills of lading for the transportation from New      Orleans to Liverpool, with the exceptions usual in bills of      lading, of 5,195 bales of cotton, of which 5,008 had been put      on board, 164 were on the levee, and 23 had not reached the      levee. Water was pumped into the ship to extinguish the fire,     and on the 26th, near 6 o'clock P. M., being filled with      water, she sank to the bottom of the river along-side of the      wharf, a part of her bulwarks remaining above water. While so     resting upon the bottom of the river, the ship, cargo, and      freight were, on the 27th, libeled in the district court, for      salvage, by the New Harbor Protection Company, and about 2      o'clock P. M. of that day the marshal, by virtue of a warrant      of seizure issued by said court on said lible, took      possession of the ship and cargo. On the 28th, about noon,     the ship was pumped out and raised along-side of the wharf,      and the discharge of the cargo on board was commenced, all of      it being damaged by water, and some of it by fire, 336 bales      having been removed by the salvors in an undamaged condition      before the ship sank, but after the fire was discovered; but      salvage was claimed and allowed on the entire cargo. On the     same day, the proctor for the salvors filed in the district      court a motion in writing, suggesting that the whole cargo      then being discharged from the ship was greatly damaged by      water, and some of it by fire and water, and would in all      probability have ultimately to be sold, being in an unfit      condition to be sent to its destination; and an order of the      court was thereupon made directing a sale of the cargo by the      marshal upon the levee as it came out of the ship, on two      days' advertisement, in such lots as might accumulate from day to day. On the same day an application     was made to the court by the master of the ship, in which he      represented that he was desirous and entitled to bond the      ship and cargo, and asked for a rule upon the libelant to      show cause on the next day, March 1st, why the order to sell      the cargo should not be rescinded, and the master be allowed      to bond the cargo.

On March 1st the rule came on for hearing. The proctor for     the salvors, and counsel representing the insurers of the      cargo, appeared and resisted the rescinding of the order of      sale, and counsel appeared for the master, who filed a formal      claim to the ship and cargo. On the trial of the rule     witnesses were examined orally before the judge, among them      various representatives of the underwriters on the cargo, who      were called as witnesses by the proctor for the salvors, and      who testified that if their interest were to be consulted      they preferred that the cotton should be sold by the marshal      as it came out of the ship, and that the master should not be      permitted to bond the cotton. The counsel for the insurers of     the cargo then asked leave to be heard on their behalf. To     this the counsel for the master and claimant objected, and      insisted that counsel for the underwriters on the cargo could      not be heard until after the proof of abandonment to them by      the owners of the cargo and acceptance of the abandonment. Thereupon, Mr. Palfrey, president of the Factors' & Traders'     Insurance Company of New Orleans, which was one of the      companies represented by said counsel, and one of the      witnesses who had been called to the stand as above stated,      was recalled by said counsel, and testified that so far as      his company was concerned the loss on the cargo had been paid      or ordered to be paid, and said company had become the owner      of the cotton insured by it, and abandonment thereof had been      made and accepted by his company. After this, said counsel     was allowed to and did make an oral argument in behalf of the      underwriters, in opposition to the motion to rescind the      order to sell, which had been obtained by the salvors, but no      pleadings were filed in behalf of the underwriters. Upon the     trial of the rule evidence was also taken, by order of the      court, in relation to the condition of the cargo, and whether      the same was or was not a total loss.

On March 5th, and before the district court had made any     decision or order on the rule to rescind the order for the      sale of the cotton, a proctor representing underwriters at      Lloyds, by leave of the court, filed an intervention for the      interest of the insurers of the freight on the cargo, in      which it was prayed that the order for the sale of the cargo      be rescinded. This intervention was supported by affidavits     filed by the intervenors and by a brief of the proctor. Afterwards, on March 6th, after consideration of the rule     taken by the master of the ship to rescind the order of sale,      and of the evidence and arguments thereon, and of the      last-named intervention, and of the affidavits and brief      submitted therewith, the court ordered that the master be      allowed to bond the ship and such of the cotton then stored      in the levee steam cotton-press as was in good order,      amounting to 523 bales, and that the remainder of the cargo      on board the ship or upon the levee, which was more or less      damaged, be sold by the marshal after three days' notice, and      all questions of freight were reserved by the court, and the      court appointed a trinity master to advise and assist in      making sale of the cotton. On the nineteenth of March the     underwriters filed their claim, claiming all of the cargo,      and procured an order from the judge of the district court to      be entered on their claim, suspending the right given to the      master on the sixth of March, to bond such of the cotton as      was stored in the levee cotton-press, to-wit, about 500      bales, until the further order of the court. On March 26th,     the master not having bonded the cotton a rule was taken and      duly served on him to show cause why the order of March 6th,      so far as it allowed him to bond a portion of the cotton,      should not be rescinded, and the movers of the rule, the      insurers of the cargo, be allowed to bond the same. The rule     was heard on March 27th, the movers of the rule and the      master being represented by their respective counsel, and was      by the court made absolute, without opposition, and the order      allowing the master to bond said portion of the cargo was      rescinded, and the movers of the rule were allowed to bond      the same.

On the thirtieth of March the present libel was filed. The     unsold cargo and the proceeds of that which had been sold were then in the custody of the marshal, in the suit for      salvage. The libel recites the proceedings above mentioned,     and alleges that the cotton might have been picked, dried,      and rebaled, and sent to its destination, and freight have      been earned thereon, but that the application of the master      to bond the cargo was refused, owing to the opposition of the      libelant for salvage, and especially to the opposition of the      underwriters on the cargo; and that, under the contract of      carriage, it was the right as well as the duty and the desire      of the libelants to pick, dry, and rebale so much of the      cotton as might require it, and which could easily have been      done, and to carry it to its destination and earn the freight      money for carrying it, which they had been unable to do      because they had been denied the right to bond it, owing to      the opposition of the libelant for salvage and of the      underwriters on the cargo, resulting in the taking away of      the cargo entirely from the master; in consequence of which      the entire freight money agreed on became due, as well as      money paid by the libelants for compressing and stowing the      cargo in the vessel, and other expenses incident thereto, and      for railroad charges; for all of which the libel claims a      lien on the cargo and on the proceeds of sale.

The circuit court found the following further facts:

The libelants paid for compressing the cargo before it was     put on board, and for stowing it on board, and other expenses      incident thereto, $14,278.26. The gross freight on the cargo,     had it been delivered at its destination in Liverpool, as      required by the bills of lading, would have been £4,169 13s. 1d. Of the cotton, 523 bales were in an undamaged and sound     condition, being the 23, the 164, and the 336 before      mentioned. In consequence of the fire, and as a result     thereof, the ship was so badly damaged that the cost of her      repairs would exceed her value when repaired, and she was      unseaworthy and incapable of carrying freight. The 523 bales     were bonded by the underwriters, and were appraised at the      sum of $19,100. The gross proceeds of the sale of the damaged     cotton amounted to $116,000. The purchaser at the marshal's     sale shipped to northern states, in the condition in which it      came from the ship, 1,185 bales of the damaged cotton; and      2,896 bales more were picked, dried, rebaled, and shipped, part to Liverpool      and the rest to Philadelphia. All the damaged cotton taken     from the ship was unmerchantable cotton, even after it had      been picked, dried, and rebaled; that is, it could not be      used for making cotton cloth, but could only be used for      making felt hats, paper, wadding, and such like articles,      having lost, by the submersion and drying, a large part of      its natural oil, its fiber being injured and its weight      reduced.

On the facts so found the circuit court held that the libelants had no lien on the cargo or its proceeds for freight, or for money paid by them for compressing and stowing the cargo, and dismissed the libel.

The libelants seek to apply to the present case the principle applied where a voyage partly performed is interrupted by a disaster to the ship, namely, that the ship-owner has a lien on the cargo for the earning of the freight, and so has a right to carry the cargo forward by his vessel or some other conveyance, and deliver it and receive his full freight. As in the case of a disaster to the ship in the course of a voyage the whole freight is payable if, by the fault of the owner of the cargo, the master is prevented from forwarding the cargo from an intermediate port to its destination, it is contended in the present case that the libelants have a right to recover the whole agreed freight, because they had a right to send the cargo to Liverpool and earn full freight, and were prevented from doing so by the action of the underwriters, who became, by abandonment, the owners of the cargo. It is also contended that the owners had a right to repair the ship, even though the cost of repairing would exceed her value when repaired.

The law in regard to the respective rights and liabilities of shipper and ship-owner, where cargo has been carried for a part of a voyage, is nowhere better expressed than by Lord ELLENBOROUGH in Hunter v. Prinsep, 10 East, 378, 394:

'The ship-owners undertake that they will carry the goods to     the place of destination, unless prevented by the dangers of      the seas, or other unavoidable casualties; and the freighter      undertakes that if the goods be delivered at the place of      their destination he will pay the stipulated freight; but it was only in      that event, viz., of their delivery at the place of      destination, that he, the freighter, engages to pay anything. If the ship be disabled from completing her voyage, the     ship-owner may still entitle himself to the whole freight by      forwarding the goods by some other means to the place of      destination; but he has no right to any freight if they be      not so forwarded, unless the forwarding them be dispensed      with, or unless there be some new bargain upon this subject. If the ship-owner will not forward them, the freighter is     entitled to them without paying anything. One party,     therefore, if he forward them, or be prevented or discharged      from so doing, is entitled to his whole freight; and the      other, if there be a refusal to forward them, is entitled to      have them without paying any freight at all. The general     property in the goods is in the freighter; the ship-owner has      no right to withhold the possession from him, unless he has      either earned his freight or is going on to earn it. If no     freight be earned and he decline proceeding to earn any, the      freighter has a right to the possession.'

These remarks were made in regard to a voyage partly performed, and interrupted by a disaster, where freight money was claimed pro rata itineris peracti. But no case can be found in which freight money has been allowed, where the voyage was not commenced, and the ship was, by a disaster for which the shipper was not at all responsible, put into the situation of the vessel in this case after the contract of carriage was made.

In the present case the ship was rendered unseaworthy by the fire, and incapable of earning freight, and was so badly damaged that the cost of her repairs would exceed her value when repaired. There is no suggestion in the findings that there was any intention of repairing her, and on the facts found it must be presumed she would not have been repaired. All that could have been done, if the cargo had been bonded by the master or ship-owners, in regard to sending it forward, would have been to send it by another vessel. But, although the order of March 6th allowed the master to bond the 523 undamaged bales, and there was no suspension of that order until the nineteenth of March, they were not bonded.

We are of opinion that by the disaster which occurred before the ship had broken ground or commenced to earn freight, the circumstances with reference to which the contract of affreightment was entered into were so altered by the supervening of occurrences which it cannot be intended were within the contemplation of the parties in entering into the contract, that the shipper and the underwriters were absolved from all liability under the contract of affreightment. The contract had reference to a particular ship, to be in existence as a seaworthy vessel and capable of carrying cargo and earning freight and of entering on the voyage. All the fundamental conditions forming part of the contract of the ship-owner were wanting at the time when the earning of freight could commence. In addition, as the result of the fire, and by no fault of the shipper, all but 523 bales of the cotton was rendered unmerchantable, and put into such a condition that its owner might well hesitate to incur the expense of sending it to Liverpool. As to the undamaged cotton, the master had an opportunity for 13 days to bond it, and failed to do so.

The money paid by the ship-owners for compressing and stowing the cotton, and for other expenses incident thereto, must be understood as having been included in the freight money, and to be reimbursed out of that, and to be money for which, in any event, the shipper of the cotton would not have been liable in addition to the freight money. If the ship-owner was not entitled to the latter he was not entitled to anything. He took, as to the expenses, the risk of losing them if he lost the freight money. So, the two are bound up together.

It is an inherent element in a contract of affreightment under a bill of lading, that the vessel shall enter on the voyage named, and begin the carriage of the goods shipped, or, as it is technically called, break ground, before a claim to freight money can arise, unless the shipper of the goods, the vessel remaining ready to enter on the voyage, undertakes to reclaim the goods. In the latter case the circumstances under which the contract was entered into continuing substantially the same so far as respects the vessel, the shipper cannot reclaim the goods without paying at least full freight. But, subject to this qualification, it is a principle of the maritime law that if a ship does not begin her voyage at all, does not break ground, no freight can be payable. This was laid down and applied in the early case of Curling v. Long, 1 Bos. & P. 634. That case has never been overruled, and no case holding to the contrary is cited or has been found. It is a case directly in point in two particulars, and it will be useful, therefore, briefly to examine it. Some hogsheads of sugar were shipped, under bills of lading, on a vessel while lying in a port in Jamaica, bound for London. Before the vessel sailed she was cut out by privateers and carried to sea, but was recaptured and taken into another port. Under a libel for salvage in the admiralty court of Jamaica, the cargo was sold by order of the court, and the net proceeds were remitted to the defendants for the owners of the cargo. The ship-owners had expended money in lading the cargo, according to the usage of the Jamaica trade. They sued the defendants to recover the freight money or the expenses. It was held that they could not recover anything; that the inception of freight was breaking ground, and that the expenses incurred were to be reimbursed in the freight money or not at all.

The case of Jones v. Holm, L. R. 2 Exch. 335, was a different case. By a charter-party, a vessel was to go to a specified port and take a specified cargo and deliver it at Liverpool for a specified freight. She went to the port and was partly laden, when she was so damaged by fire that she was scuttled. The cargo was injured and sold, except a small part, not on board, which was forwarded to Liverpool by the master. The vessel was repaired and tendered to take the remainder of the cargo. The charterer refused to supply more cargo, and the vessel obtained a cargo carried it to England at a less freight than she would have earned for a full freight under the charter-party. In a suit to recover damages for a breach of the charter-party, it was held that the charterer was bound to complete the lading of the vessel.

The authority of the case of Curling v. Long is recognized in Bailey v. Damon, 3 Gray, 94; Burgess v. Gun, 3 Har. & J. 225; Clemson v. Davidson, 5 Bin. 392; and in various text-books. 3 Kent's Comm. 223; 1 Parsons, Shipp. & Adm. 220; Abb; Shipp. (11th Lond. Ed.) 407; Maclachlan, Shipp. (2d Ed.) 458; Smith, Merc. Law, (3d. Am. Ed.) 400.

On principle this case falls within the rule that where the stipulations of a contract are interdependent, a defendant cannot be sued for the non-performance of stipulations on his part which were dependent on conditions which the plaintiff has not performed. The ship-owner was entitled to freight only for carrying the cargo and delivering it at Liverpool, with the implied covenant that this particular vessel was to take it on board and enter on the voyage. Before that event occurred this vessel was substantially put out of existence by no fault of the shipper, and he had and could have no benefit from the contract. He had a right, therefore, to treat the contract as rescinded, so far as any liability for freight was concerned. In Taylor v. Coldwell, 3 Best & S. 826, it is laid down as a rule that 'in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance.' The reason given for the rule is that without 'any express stipulation that the destruction of the person or thing shall excuse the performance,' 'that excuse is by law implied, because from the nature of the contract it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel.' The rule was there applied to excuse the owner of a music hall which had been burned from fulfilling a contract to let the use of it. The principle was extended further in Appleby v. Myers, L. R. 2 C. P. 651. There the plaintiffs contracted to erect certain machinery on the defendant's premises at specific prices for particular portions, and to keep it in repair for two years, the price to be paid upon completion of the whole. After some portions of the work had been finished, and others were in the course of completion, the premises, with all the machinery and materials thereon, were destroyed by an accidental fire. It was held that both parties were excused from the further performance of the contract, and that the plaintiffs were not entitled to sue in respect to those portions of work which had been completed, whether the materials used had become the property of the defendant or not. See Benj. Sales, (3d Amer. Ed.) § 570; Wells v. Calnan, 107 Mass. 514, and cases there cited.

These principles are so well established that it is only necessary to refer to one case in this court, (Jones v. U.S. 96 U.S. 24,) which recognizes them, in which it is said:

'Where an act is to be performed by the plaintiff before the     accruing of the defendant's liability under his contract, the      plaintiff must prove either his performance of such condition      precedent, or an offer to perform it which the defendant      rejected, or his readiness to fulfill the condition until the      defendant discharged him from so doing, or prevented the      execution of the matter which the contract required him to      perform. * *  * A contract may be so framed that the promises      upon one side may be dependent on the promises upon the      other, so that no action can be maintained, founded on the      written contract, without showing that the plaintiff has      performed, or at least has been ready, if allowed by the      other party, to perform his own stipulations, which are a      condition precedent to his right of action.'

On a full consideration of the case, we are of opinion that the decree of the circuit court must be affirmed.

title: The Tornado/Opinion of the Court


text: Talk:The Tornado/Opinion of the Court

title: Talk:The Tornado/Opinion of the Court


text:
The Connemara (108 U.S. 352)

[Syllabus from page 352-353 intentionally omitted]

[Statement of Case from page 353 intentionally omitted]

''P. Phillips, Jas. McConnell, and Wm. Hallett Phillips'', for appellants.

[Argument of Counsel from pages 353-354 intentionally omitted]

Richard De Gray, J. R. Beckwith, and ''Chas. W. Hornor'', for appellees.

GRAY, J.

title: The Connemara (108 U.S. 352)


text: Talk:The Connemara (108 U.S. 352)

title: Talk:The Connemara (108 U.S. 352)


text:
The Connemara (108 U.S. 352)/Opinion of the Court

This is a libel in admiralty by the owner, master, and crew of the steam tow-boat Joseph Cooper, Jr., for salvage on the ship Connemara and cargo. Louis Wurtz and Henry Holser, passengers on the tow-boat, and John Evers, a passenger on the ship, were permitted to file intervening libels. The value of the ship and cargo was agreed to be $236,637. The district court awarded as salvage 8 per cent. on that value, or $18,930.96, and the owners and claimants of the ship appealed to the circuit court.

The circuit court found the following facts:

On the fifteenth of April, 1879, the ship Connemara, being in     the port of New Orleans, with her cargo on board, consisting      chiefly of pressed cotton, and bound on a voyage for      Liverpool, England, engaged the tow-boat Joseph Cooper, Jr.,      to tow her to the mouth of the Mississippi river, and was by      her towed about 26 miles down the river, and came to anchor      about 8 o'clock in the evening opposite the Belair      plantation. About 11 o'clock at night the ship, with the     tow-boat lashed to her side, was lying with her bow to the      current and her stern to the wind, which was blowing stiffly,      no watch had been set,--and the two mates and the boatswain      set,-and the two mates and the boatswain fluence of liquor,      but the captain and the rest of the crew were sober. Evers, a     passenger on board the ship, being then asleep in the second      mate's cabin, was awakened by a smoke of burning cotton,      sprang from his berth, and gave the alarm to the officers and      crew of the ship and of the tow-boat. The fire was not in the     hold, but in the poop above the main deck, and near the door,      which could be opened by raising the latch; and the fire,      when discovered, was confined to three bales of cotton, a      spare sail, and two coils of tarred rope. There were 127     bales of cotton stowed in the poop. The fire was not caused     by the fault of the tow-boat, or by any defect in her      equipment or management. The tow-boat had on her deck a pump     worked by steam, and hose long enough to reach the fire on      the ship. As soon as the alarm was given, and by the     exertions of the tow-boat's officers and crew, of her two      passengers and of Evers, the hose was laid from the pump to      the deck of the ship, and by their use of this pump and hose      the fire was put out in 15 or 20 minutes, without any damage      to ship or cargo, beyond the burning of the sail and the two      coils of rope, the partial burning of the three bales of      cotton, and the charring of a part of the upper deck or roof      of the poop. In extinguishing the fire there was no serious     risk of loss or damage to the tow-boat, or of injury to life      or limb of any of the salvors. No efficient effort was made by the officers or the crew of the ship to     extinguish the fire. The ship had on her deck, within 15 feet     of the fire, two tanks of water, holding 400 gallons each,      one of which was full and the other half full, with six      buckets near the fire and seven above, and a pump by which      water could have been pumped upon the upper deck. At the time     of the fire the steam-tug Harry Wright was lying about a      quarter of a mile off; and there was a telegraph station on      the Belair plantation, from which a dispatch could have been      sent to the city of New Orleans for aid to put out the fire,      and efficient aid might have reached the ship from the city      in two hours and a half after notice. The agreed value, as     aforesaid, of the Connemara and cargo, and the names and      monthly wages of each of the officers and crew of the Joseph      Cooper, Jr., were also stated in the findings of fact.

From these facts the circuit court made and stated the following as conclusions of law:

(1) The services rendered by the tow-boat Joseph Cooper, Jr.,     her officers and crew, and the three passengers, Wurtz,      Holzer, and Evers, in the extinguishment of the fire on board      the ship Connemara, were a salvage service; (2) a gross      salvage on the ship and cargo of $14,198, or 6 per cent. on     the value thereof, should be allowed; (3) this salvage should      be equally divided, half to the owner of the tow-boat, and      half to the salvors; (4) the moiety allowed to the salvors      should be distributed among them in proportion to their      monthly wages, the passengers Wurtz and Evers to rank as      pilots, and Holser as a steersman.

A decree was entered accordingly, and the claimants appealed to this court. A motion to dismiss the appeal for want of jurisdiction was made and overruled at October term, 1880. The Connemara, 103 U.S. 754.

The errors assigned are: first, that the facts found do not constitute a salvage service; second, that, if a salvage service, it is salvage of the lowest grade, and the amount allowed is exorbitant; third, that the amount allowed to John Evers, he being a passenger on board the Connemara, is not warranted by law.

Neither of the grounds assigned will justify this court in reversing the decree.

If the fire, which had made such headway as to wholly consume the two coils of tarred rope and the spare sail, and to partly destroy three bales of the cotton stowed in the poop, had not been promptly discovered and extinguished, there was imminent danger that it would extend to the rest of that cotton, and, fanned by the stiff breeze which was blowing lengthwise of the ship, destroy or greatly damage the ship and the whole cargo. Saving a ship from imminent danger of destruction by fire is as much a salvage service as saving her from other perils of the seas. The Blackwall, 10 Wall. 1. The shortness of the time occupied in rescuing the ship from danger does not lessen the merit of the service. The General Palmer, 5 Notes Cas. 159, note; The Syrian, 2 Marit. Law Cas. 387; Sonderburg v. Ocean Tow-Boat Co. 3 Woods, 146. The danger being real and imminent, it is not necessary, in order to make out a salvage service, that escape by other means should be impossible. Talbot v. Seeman, 1 Cranch, 1, 42.

The fact that no serious risk was incurred on the part of the salvors does not change the nature of the service, although an important element in estimating its merit and the amount of the reward. As has been well said by Mr. Justice CURTIS, 'the relief of property from an impending peril of the sea, by the voluntary exertions of those who are under no legal obligation to render assistance, and the consequent ultimate safety of the property, constitute a case of salvage. It may be a case of more or less merit, according to the degree of peril in which the property was, and the danger and difficulty of relieving it. But these circumstances affect the degree of the service, not its nature.' The Alphonso, 1 Curt. 376, 378.

The contract of the tow-boat and her officers and crew was to tow the ship, and did not include the rendering of any salvage service by putting out fire or otherwise. Such a service, which, by the use of the steam-pump and engine of the tow-boat, rescued the ship from an unforeseen and extraordinary peril, gave the owner as well as the officers and crew of the tow-boat a right to salvage. The William Brandt, Jr., 2 Notes Cas. Supp. 1xvii.; The Saratoga, Lush. 318; The Minnehaha, 15 Moore, P. C. 133; S.C.. Lush. 335; The Annapolis, Lush. 355, 361, 372. And no doubt is or could be raised as to the right of the passengers on the tow-boat, whose exertions contributed to putting out the fire, to share in the salvage awarded to her officers and crew. The Cora, 2 Pet. Adm. 361; S.C.. 2 Wash. C. C. 80; The Hope, 3 Hagg. Adm. 423.

Evers, the passenger on the Connemara, was also entitled to share in the salvage. A passenger cannot, indeed, recover salvage for every service which would support a claim by one in nowise connected with the ship. In the case of a common danger, it is the duty of every one on board the ship to give every assistance he can, by the use of all ordinary means in working and pumping the ship, to avert the danger. Yet a passenger is not, as the officers and crew are, bound to stand by the ship to the last; he may leave her at any time and seek his own safety; and for extraordinary services, and the use of extraordinary means, not furnished by the equipment of the ship herself, by which she is saved from imminent danger, he may have salvage. Newman v. Walters, 3 Bos. & P. 612; The Branston, 2 Hagg. Adm. 3, note; The Salacia, 2 Hagg. Adm. 262, 269; The Vrede, Lush. 322; The Pontiac, 5 McLean, 359, 363; The Great Eastern, 2 Marit. Law Cas. 148; S.C.. 11 Law Times, (N. S.) 516; 3 Kent, Comm. 246. The services of Evers were of peculiar value, and involved the use of means outside the ship. His promptness and vigilance gave the alarm, which, by the supineness and neglect of the officers and crew of the ship, might not otherwise have been given in time to save her. This might not of itself have entitled him to reward; but beyond this he exerted himself, as if he had been one of the officers and crew of the tow-boat, in the use of the steam-pump and hose on board of her, by which the fire on the ship was effectually subdued.

It may also be observed that this case comes before us on the appeal of the owners of the ship; and that there is no controversy, either between Evers and the other salvors, or between the salvors who gave their personal exertions and the owners of the tow-boat whose machinery was used, as to the distribution of the salvage.

The services performed being salvage services, the amount of salvage to be awarded, although stated by the circuit court in the form of a conclusion of law, is largely a matter of fact and discretion, which cannot be reduced to precise rules, but depends upon a consideration of all the circumstances of each case. The Blaireau, 2 Cranch, 240, 267; The Adventure, 8 Cranch, 221, 228; The Emulous, 1 Sumn. 207, 213; The Cora, 2 Pet. Adm. 361, 375; S.C.. 2 Wash. C. C. 80; Post v. Jones, 19 How. 150, 161.

In The Sybil, 4 Wheat. 98, Chief Justice MARSHALL said: 'It is almost impossible that defferent minds, contemplating the same subject, should not form different conclusions as to the amount of salvage to be decreed and the mode of distribution.' And by the uniform course of decision in this court, during the period in which it had full jurisdiction to reverse decrees in admiralty upon both facts and law, as well as in the judicial committee of the privy council of England, exercising a like jurisdiction, the amount decreed below was never reduced, unless for some violation of just principles, or for clear and palpable mistake or gross overallowance. Hobart v. Drogan, 10 Pet. 108, 119; The Camanche, 8 Wall. 448, 479; The Neptune, 12 Moore, P. C. 346; The Carrier Dove, 2 Moore, P. C. (N. S.) 243; S.C.. Brown. & L. 113; The Fusilier, 3 Moore, P. C. (N. S.) 51; S.C.. Brown. & L. 341.

By the act of congress of sixteenth February, 1875, c. 77, the appellate power of this court is restricted within narrower bounds; its authority to revise any decree in admiralty of the circuit court is limited to questions of law; and the finding of facts by that court is equivalent to a special verdict, or to facts found by the court in an action at law when a trial by jury is waived. The Abbottsford, 98 U.S. 440; The Francis Wright, 105 U.S. 381; ''Sun Ins. Co. v. Ocean Ins. Co.'' 1 SUP. CT. REP. 582.

The effect of this change may be illustrated by referring to the revisory power of the courts in actions at law tried by a jury. The facts are decided by the jury in the first instance. If the jury return a general verdict, clearly against the weight of evidence, or assessing exorbitant damages, the court in which the trial is had may set aside the verdict and order a new trial. But a court of error, to which the case is brought by bill of exceptions or appeal on matter of law only, cannot set aside the verdict, unless there is no evidence from which the conclusion of fact can be legally inferred. Parks v. Ross, 11 How. 362; Schuchardt v. Allens, 1 Wall. 359.

Before the act of 1875, this court, upon an appeal in a case of salvage, gave the same weight, and no more, to the decree of the court below that a court of common law would allow to the verdict of a jury, and might revise that decree for manifest error in matter of fact, even if no violation of the just principles which should govern the subject was shown. Post v. Jones, 19 How. 150, 160. Since the act of 1875, in cases of salvage, as in other admiralty cases, this court may revise the decree appealed from for matter of law, but for matter of law only; and should not alter the decree for the reason that the amount awarded appears to be too large, unless the excess is so great that, upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case.

In the present case a vessel and cargo of great value were rescued from imminent danger by the energetic efforts of the salvors, and the amount of salvage awarded is less than one-sixteenth of the value of the property saved. Although upon the circumstances of the case, so far as they can be brought before us by the summary of them in the findings of fact by the circuit court, we might have been better satisfied with an award of a smaller proportion, we cannot say that the amount awarded is so excessive as to violate any rule of law.

Decree affirmed.


text: Talk:The Connemara (108 U.S. 352)/Opinion of the Court


text:
Adriatio Fire Insurance Company v. Treadwell

John E. Parsons, for plaintiff in error.

Luther P. Marsh and ''Wm. G. Wilson'', for defendant in error.

MATTHEWS, J.


text: Talk:Adriatio Fire Insurance Company v. Treadwell


text:
Adriatio Fire Insurance Company v. Treadwell/Opinion of the Court

This action was brought by the defendant in error to recover compensation for professional services as an attorney and counselor at law, rendered, as alleged, at the instance and request of the defendants in error, and each of them, as well as of sundry other corporations not inhabitants of the southern district of New York or of the state of New York, nor found therein, and therefore not joined, as defendants below, in and about the defense of certain suits brought against several of them in Massachusetts, but in which all had a common interest, and for which it is alleged these companies, including the plaintiffs in error, jointly and severally promised to pay what said services were actually worth.

The cause was tried by a jury, and resulted in a verdict and judgment for the plaintiff below, to reverse which, for errors of law alleged to have occurred in the rulings of the court during the trial, and presented in a bill of exceptions, this writ of error is prosecuted.

The plaintiff below put in evidence an agreement in writing, signed by 15 insurance companies, including the defendants, a copy of which is as follows:

'In re Taylor, Randall & Company versus The St. Paul Fire &     Marine Insurance Company et als.

'The undersigned insurance companies, having policies     outstanding issued to Taylor, Randall & Company, upon      property at Central wharf, Boston, upon which claims have      been made against said companies, do, in consideration of one dollar, by each      paid to the other, and divers other good and valuable      considerations, mutually covenant and agree to and with each      other as follows; that is to say: the said companies will      unite in resisting the claim made upon said policies, and on      each thereof, and in the defense of any and all suits and      legal proceedings that have been or may be instituted against      any of said companies upon any of said policies, and will,      when and as required by the committee hereinafter mentioned,      contribute to and pay the costs, fees, and expenses of said      suits and proceedings pro rata; that is to say, each company      shall pay such proportion of said costs, fees, and expenses      as the amount insured by said company shall bear to the whole      amount insured on said property by all the companies      subscribing to this agreement. The management and conduct of     said resistance to said claims and defense of said suits and      proceedings shall be and is fully intrusted to and devolved      upon a committee to be composed of W. H. Brazier and James R.      Lott, of the city of New York, Charles W. Sproat, of the city      of Boston, L. S. Jordan, of the city of Boston, which      committee shall have full power and authority to employ      counsel and attorneys to appear for said companies and each      thereof, and defend said suits and legal proceedings, and to      employ other persons for other services relative thereto, and      to assess upon and demand and receive from such companies,      from time to time, as such committee shall deem proper, such      sum or sums of money for the compensation of such counsel and      attorneys, and such other persons, and all other expenses of      such defense of said suits as said committee shall deem      necessary and expedient, such assessment upon and payment by      each of said companies to be pro rata, as above mentioned.

'Each and every of said companies shall fully and faithfully     adhere to this agreement, and shall refrain from any act or      proceeding in reference to such claims or suit, or the      defense thereof, that can or may in anywise defeat, obstruct,      or interfere with the acts or proceedings of said committee      relative thereto, and shall at all times furnish to said      committee any and all papers information, and assistance in      and about such management and conduct of such resistance and      defense as may be in the possession or power of said      companies respectively, and as may be desired by said      committee.

'In witness whereof the said insurance companies have subscribed this agreement, this twenty-fourth day of April,     eighteen hundred and seventy-four.'

Prior to the execution of this agreement, suits had been commenced against some of the companies, other than the plaintiffs in error, in Boston, in one of which the agreement itself is entitled; and the defendant in error had been employed to defend them. After the agreement had been signed, the committee named in it employed the defendant in error on behalf of all the companies parties to it. He testified that the agreement was shown to him and that he accepted the invitation to become the attorney of the companies. The employment was general, no special terms being fixed, and it is not questioned that it was with full knowledge of the agreement between the companies, and according to the authority conferred by it upon the committee. The plaintiff below having proved the fact and value of the services rendered, rested his case, at the conclusion of which and afterwards again, after all the evidence had been put in, the defendants below requested the court to instruct the jury to find a verdict for the defendants, on the ground 'that the agreement was not one under which any joint liability could be created; that the provisions of the agreement were specific,-the parties to the agreement were only to pay severally and pro rata any amount that should become due under the agreement.' This instruction the court refused to give, and that refusal is now assigned for error.

The committee appointed by the agreement between the insurance companies were special agents only for the purposes and within the limits declared in it. They had no authority to bind their principals beyond its import, and the limits of that authority were made known to the defendant in error when he accepted employment from them. Whatever authority to bind the companies in making that employment had been conferred upon them by the agreement, they in fact exerted. So that the question to be determined is, whether that agreement conferred upon the committee authority to bind the companies jointly, or jointly and severally, to pay the expenses of the litigation; or whether they became liable, severally only, each for its proper proportion.

The contract, it will be observed, is between the companies. No other person is a party. The promises are between them severally. Each binds itself to each of the others. There is no joint undertaking or promise, on the part of all, to any one else. They 'mutually covenant and agree to and with each other.' They do agree, indeed, that they 'will unite in resisting the claim made upon said policies, and on each thereof, and in the defense of any and all suits and legal proceedings that have been or may be instituted against any of said companies upon any of said policies;' but, as to the obligation of payment on that account, its nature and extent, the agreement is that they 'will, when and as required by the committee hereinafter mentioned, contribute to and pay the costs, fees, and expenses of said suits and proceedings pro rata; that is to say, each company shall pay such proportion of said costs, fees, and expenses as the amount insured by said company shall bear to the whole amount insured on said property by all the companies subscribing to this agreement.' These expressions leave no doubt as to the intention of the parties in regard to the limit of their several liabilities as between themselves.

The management and conduct of this common defense were intrusted to and devolved upon a committee of named persons; and the powers and rights of that committee are expressly defined. They are given full power and authority to employ counsel and attorneys to appear for said companies, and each thereof, and defend said suits and legal proceedings, and to employ other persons for other services relative thereto. They are thus constituted the agents, for the purposes named, of the parties to the contract, and whatever they do within the terms of that agency, which, of course, is not general, but special, binds the parties according to their agreement. The committee is not a party to the agreement, but derives its powers from it and has rights under it, chiefly the right of reimbursement for expenses and indemnity for obligations legitimately incurred. This right would be implied, if it were not expressed; but if the mode and measure of it are expressly declared, no implication can enlarge its limits. It is in fact expressly defined. The committee have, by the further provisions of the agreement, also full power and authority 'to assess upon and demand and receive from such companies, from time to time, as such committee shall deem proper, such sum or sums of money for the compensation of such counsel and attorneys, and such other persons, and all other expenses of such defense of said suits, as said committee shall deem necessary and expedient; such assessment upon and payment by each of said companies to be pro rata, as above mentioned.' It is very clear, we think, from this language, that for any advances made by the committee for the expenses of the defense, or for any indemnity against any personal liability they may have incurred in conducting it, they could have no personal recourse upon the companies except by way of assessment upon them severally, each for his own proportion, according to the ratio fixed by the agreement. Such proportion could be enforced by action against each delinquent company. There is no ground on which the companies could be made jointly responsible, so that any one or more could be required to make good the default of any of the rest. The fund for the payment of all the obligations contemplated by the agreement is limited, in express terms, to be raised in the mode pointed out in it by a pro rata assessment upon each for its individual share.

Such being the relation between the several companies and the committee, those employed by the latter for the purposes of the agreement can have no greater rights than such as grow out of it. The agency being special, those who claim under it are bound by its limitations; and in the present case the defendant in error, it is admitted, had actual knowledge of them. So that, though the employment by the committee established a privity between him and the parties to the contract, giving him a right to treat the companies directly as his principals and employers, nevertheless, it must be taken to be only to the extent of the authority of the committee under the agreement, and subject to the limitations imposed by it upon the liability of the companies. He must be considered as relying, if he did not stipulate for the individual liability of the members of the committee, upon their power to raise the fund for the payment of his compensation by the assessment under the agreement; which, being made, he would have a right to enforce; or which, if denied to him wrongfully, would entitle him to his action, as if it had been made, or against the committee for not making it. But there is no ground on which he can claim that the employment of the committee imports a joint promise of compensation from the companies, in the face of the express restrictions upon the power of the committee to bind them otherwise than severally, each in proportion to its interest. The defendant in error is and can be in no better position by reason of the employment by the committee under the agreement between the companies, than the committee would have been if they had made the advances required, or than he would have been if he had been a direct party to that agreement, employed by the companies according to its terms. There is not only nothing in the agreement from which it could be inferred that the companies were to be sureties for each other, but that inference is expressly negatived by the declaration, according to which each is to be liable for its own separate and proportionate part.

Similar reasoning, leading to like conclusions upon analogous facts, is to be found in many reported cases. We select, as illustrations, the following: Peckham v. North Parish in Haverhill, 16 Pick. 274; Ludlow v. McCrea, 1 Wend. 228; Ernst v. Bartle, 1 Johns. Cas. 319; Howe v. Handley, 25 Me. 116; Gibson v. Lupton, 9 Bing. 297; Fell v. Goslin, 21 Law. J. Rep. (N. S.) Exch. 14.

In our opinion, the court below should have instructed the jury, as requested by the plaintiffs in error, to render a verdict for the defendants below, on the ground that no joint liability had been proven; and its declining to do so was error, for which the judgment is reversed, with directions to grant a new trial. And it is so ordered.


text: Talk:Adriatio Fire Insurance Company v. Treadwell/Opinion of the Court