Wilder's S.S. Co. v. Low

• Decision Date: 04 November 1901
• Docket Number: 684.
• Parties: WILDER'S S.S. CO. et al. v. LOW et al.
• Court: U.S. Court of Appeals — Ninth Circuit

112 F. 161

WILDER'S S.S. CO. et al. v. LOW et al.

No. 684.

United States Court of Appeals, Ninth Circuit.

November 4, 1901

This is a suit in admiralty, brought in the district court of Hawaii to recover damages for loss of cargo and personal belongings caused by a collision between the steamer Claudine and the barkentine William Carson, wherein the latter vessel was sunk. The lower court rendered a decree in favor of the libelants, to reverse which this appeal is brought. The appellant Wilder's Steamship Company was the owner of the steamship Claudine, which vessel is alleged to have been of the value of $125,000 at the time of the collision. The barkentine William Carson was an American vessel of about 791 tons burden, owned by George U. Hind and others, and at the time when the cause of action arose was employed in a voyage between NewCastle, N.S.W., and Honolulu, H.I. It is alleged that on the evening of December 17, 1899, at about 8:40 pm.m., the said barkentine William Carson was within about 12 miles from Honolulu harbor, sailing free on a southwest course at a speed of between 2 and 3 knots an hours; that she was approached by the steamer Claudine, apparently heading south by east, and bearing to the starboard beam of the barkentine; that subsequently, after a nearer approach, the said steamer showed her starboard light, and then, suddenly shifting her helm and blowing her signal whistle once collided with the said barkentine, striking her on the starboard bow forward of the cathead; that, as a result of such collision, the barkentine sprung a leak, began to fill then tipped over on her starboard side, and sank, becoming a total loss, with her cargo, freight, and all personal effects on board. It is alleged that before and during the time when said collision took place the said barkentine carried the lights prescribed by law; that such lights were brightly burning at the time, and could have been seen by the said Claudine, if she had kept a proper lookout, for as much as two miles, and in sufficient time to have avoided the said collision. It is further alleged that the said barkentine had a proper watch on deck at the time of and before the said collision, and that when the danger of a collision became apparent it was impossible for the barkentine to get out of the way; that before the collision the steamer Claudine after suddenly shifting her halm, never slacked her speed, nor signaled to stop or reverse her engines, although she was going at a speed of about 10 knots per hours; that, if said steamer had continued on her course, instead of shifting her helm, and attempting to cross the bow of the barkentine, no serious damage would probably have ensued to either craft. The respondent denies that the collision occurred through any fault on the part of the steamer Claudine, and alleges that the barkentine was wholly at fault, in that her starboard light was improperly placed, and not visible from the steamer Claudine, and alleges that the barkentine was wholly at fault, in that her starboard light was improperly placed, and not visible from the steamer Claudine until such time as it was impossible by any maneuver to avoid a collision. Two libels were filed against the steamer Claudine in the lower court,-- one by the appellee J. S. Low, as assignee of the owners of the cargo and freight of the barkentine, alleged to be of the value of $9,050; and one by the appellee John Piltz, master of the barkentine at the time of the collision, to recover the sum of $2,474.30, alleged to be the value of certain personal effects on the said barkentine, and which were wholly lost by reason of the collision. By stipulation between the respective counsel the two actions were consolidated and tried together. Decree was entered in favor of J. S. Low for the full amount of his claim, with interest and costs from the date of collision, and in favor of John Piltz for the sum of $1,162.80, the value of articles proven to have been lost by him personally, together with interest and costs from the date of collision. The remaining amount claimed by the libelant John Piltz proved to have been for personal effects belonging to his wife, and, it not appearing that he was authorized to sue for or maintain an action for the same, this portion of the amount claimed was disallowed. An action was brought in the circuit court, First judicial circuit of the territory of Hawaii, for the value of the barkentine itself, and recovery had by the owners of the barkentine. The case was appealed to the supreme court of Hawaii, resulting in the same decree. An appeal was then prosecuted to this court, the circuit court of appeals for the Ninth circuit, but was dismissed by the court for want of jurisdiction. By stipulation the evidence and exhibits in the suit brought by the owners. George U. Hind and others, against the Wilder's Steamship Company, in the circuit court and supreme court of the territory of Hawaii, respectively, are used as evidence and exhibits in the present suit.

Kinney, Ballou & McClanahan (Nathan H. Frank, of counsel), for appellants.

Page, McCutchen, Harding & Knight and Paul Neumann, for appellees.

Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge.

MORROW Circuit Judge, after stating the foregoing facts, .

The assignments of error are numerous, but relate entirely to the findings of fact by the court below, and its application thereto of rules of law. The appellees contend that this court has no jurisdiction over the appeal in this cause, for the reason that there is no provision of law directly authorizing this court to entertain appeals in admiralty from the district court of Hawaii. In support of this contention they cite section 86 of the organic act of April 30, 1900, providing a government for the territory of Hawaii, which section defines the jurisdiction of the district court of Hawaii as follows:

'Said court shall have, in addition to the ordinary jurisdiction of district courts of the United States, jurisdiction of all cases cognizable in a circuit court of the United States, and shall proceed therein in the same manner as a circuit court.'

And with regard to appeals from said court it provides:

'Writs of error and appeals from said district court shall be had and allowed to the circuit court of appeals in the Ninth judicial circuit in the same manner as writs of error and appeals are allowed from circuit courts to the circuit courts of appeals as provided by law.'

The appellees construe this section as making no provision for appeals from the district court except when acting as a circuit court, and contend that, as the circuit court has no jurisdiction in admiralty, there is no 'manner' of allowing an appeal in admiralty from that court. The language of the section does not warrant such a restricted interpretation. It expressly provides that writs of error and appeals from said district court shall be allowed to the circuit court of appeals in The ninth judicial circuit. This jurisdiction conferred upon the appellate court is general and comprehensive. There is no exception, either in terms or by implication; and the provision that follows in the section that such writs of error and appeals shall be allowed 'in the same manner' as they are allowed from circuit courts to the circuit court of appeals cannot be construed as creating an exception excluding appellate jurisdiction in admiralty jurisdiction. Such a construction would defeat the appellate jurisdiction of the circuit court of appeals in nearly all cases arising in the district court of Hawaii, since the circuit courts of the United States have concurrent jurisdiction with the district courts in but few cases. No such purpose can be attributed to congress, particularly in view of the general terms of the appellate jurisdiction provided in the section. Besides, the phrase 'in the same manner' has a well-understood meaning in legislation, and that meaning is not one of restriction or limitation, but of procedure. It means by similar proceedings, so far as such proceedings are applicable to the subject-matter. Phillips v. County Com'rs. 122 Mass. 258, 260. In Durousseau v. U.S., 6 Cranch, 307, 315, 3 L.Ed. 232, 235, section 10 of the act to establish the judicial courts of the United States (1 Stat. 73, 77) was under consideration. The section provided 'that the district court in Kentucky district' should, in addition to the ordinary jurisdiction of a district court, 'have jurisdiction of all other causes, except of appeals and writs of error hereinafter made cognizable in a circuit court, and shall proceed therein in the same manner as a circuit court; and writs of error and appeals shall be from decisions therein to the supreme court in the same causes as from a circuit court to the supreme court, and under the same regulations. ' It was contended with much show of reason that under this provision writs of error and appeals 'from decisions therein' were intended to lie only from cases in which the district court acted as a circuit court; but Mr. Chief Justice Marshall held that this construction could not be tolerated, and in delivering the opinion of the court disposed of the contention in language applicable to the present case. He said:

'It would be difficult to conceive an intention in the legislature to discriminate between judgments rendered by the district court of Kentucky while exercising the powers of a district court and those rendered by the same court while exercising circuit powers, when it is demonstrated that the legislature makes no distinction in the cases from their nature and character. Causes of which the district courts have exclusive original jurisdiction are carried into the circuit courts, and when become

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