The Corsair Barton v. Brown

• Decision Date: 16 May 1892
• Citation: 36 L.Ed. 727,12 S.Ct. 949,145 U.S. 335
• Parties: THE CORSAIR. BARTON et al. v. BROWN et al
• Court: U.S. Supreme Court

145 U.S. 335

12 S.Ct. 949

36 L.Ed. 727

THE CORSAIR.

BARTON et al.

v. BROWN et al.

May 16, 1892.

STATEMENT BY MR. JUSTICE BROWN.

This was an appeal from a decree of the circuit court dismissing a libel, for damages sustained by the death of Ella Barton, against the steam tug Corsair and her owners. Suit was begun on April 5, 1888, by the filing of a libel by Edward S. Barton and Elizabeth Barton, his wife, against the steam tug Corsair, upon two distinct causes of action, viz., one for damages for the pains and suffering endured by Ella Barton, a daughter of the said Elizabeth Barton, in a collision caused by the said tug Corsair, on which the said Ella Barton was at the time a passenger, running at full speed into the right bank of the Mississippi river, on the 14th of April, 1887, at a point about 10 miles above Algiers, (which is opposite the city of New Orleans,) in consequence of which said tug filled with water and sank in 10 minutes. The other cause for action was for damages sustained by the said Elizabeth Barton in the loss of the life of her said daughter, alleged to have been caused by the negligence of the officers and crew of the tug.

The right to bring this libel was alleged to have accrued under article 2315 of the Revised Civil Code of Louisiana, as amended in 1884, which reads as follows:

'Article 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive, in case of death, in favor of the minor children or widow of the deceased or either of them, and, in default of these, in favor of the surviving father and mother, or either of them, for the space of one year from the death. The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife, as the case may be.'

By virtue of an attachment issued upon this libel, the vessel was arrested April 5, 1888, and was released upon a stipulation given by Samuel S. Brown and Harry Brown, by their duly authorized agent, 'claimants and owners of the steam tug Corsair.' Upon the same day they filed their claim as owners, averring that 'no other persons have any interest therein,' and subsequently filed exceptions to the libel, upon the ground that it set forth no cause of action cognizable by proceedings in rem in admiralty. Upon the hearing of these exceptions, the court, 'considering that no action in rem lies in this case,' 'ordered that the exception be sustained to the extent of releasing the tug Corsair from the seizure made under the admiralty warrant issued in the cause, the court being of the opinion that the statute of Louisiana creates no lien upon the vessel.' It was 'further ordered that libelants be allowed to amend their pleadings and proceed in personam against the owners of the vessel within ten days if they see fit.' On the following day an amended libel was filed against Samuel S. Brown and Harry Brown in personam, as 'owners of the steam tug Corsair,' adopting and reiterating all the allegations contained in the original libel, and praying for a citation against the owners, and for an attachment, in case they should not be found, against their goods and chattels, credits and effects, wherever found.

Processes of arrest and attachment, in the form provided for by Admiralty Rule 2, was allowed by the district judge, and returned served by the marshal, by seizing and taking into his possession the steam tug Corsair, and placing a keeper in charge, and taking another bond from W. H. Brown & Sons with a surety, conditioned that if 'said owners of the tug Corsair, William H. Brown & Sons, Samuel S. Brown, and Harry Brown, shall abide by all orders,' etc. On the same day a claim was filed by Samuel S. Brown and Harry Brown as sole owners of the tug Corsair, etc. Exceptions were filed to the amended libel by the claimants upon the ground that process had not been served upon them; that a warrant of arrest ought not to have issued, under Admiralty Rule 7, without affidavit or other proper proof showing the propriety thereof; that proceedings in rem and in personam could not be joined in the same libel; that 'there was no power in the court to allow the libelants to change this suit from a suit in rem to a suit in personam; and that the cause of action was barred by the prescription of one year, according to the law of the state.'

The cause was heard upon these exceptions, and the court 'being of the opinion that the suit and the amended libel is an action under a special statute of the state of Louisiana subjecting the owners to liability, whereas the action under the original libel sprang from the general liability of ships arrested as offending things under the admiralty law; that the amendment introduced a new party, and since, at the time of the amendment being made, more than a year had elapsed,'—the exception was allowed, and the suit dismissed.

On appeal to the circuit court, this decree was affirmed, and an appeal taken by the libelants to this court.

Richard De Gray, for appellants.

[Argument of Counsel from pages 338-341 intentionally omitted] Joseph P. Hornor and Guy M. Hornor, for appellees.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This was a libel in rem against the tug Corsair, by the mother of one Ella Barton, to recover for the loss of her life in a collision alleged to have been occasioned by the negligence of those in charge of the tug. Exceptions to this libel were sustained, upon the ground that a suit in rem would not lie for injuries resulting in death; but leave was given to amend by proceeding in personam against the owners of the tug. Exceptions were also filed to the amended libel upon the ground that the amendment introduced a new party to the suit, and, as against such party, the year had elapsed within which, under the law, the action must be brought.

1. The decree of dismissal, so far as it operated upon the amended libel, was proper for two reasons: First, the amendment to the original libel, by introducing the owners of the tug as parties defendants, was in violation of Admiralty Rule 15, providing that, 'in all suits for damage by collision, the libelant may proceed against the ship and master, or against the ship alone, or against the master or owner alone in personam.' These rules, from 12 to 20, inclusive, were intended to prescribe a remedy appropriate to each class of cases in admi- ralty, allowing in certain cases a joinder of ship and freight, or ship and master, or alternative actions against the ship, master, or owner alone. In no case, however, under these rules, except in possessory suits, can the ship and owner be joined in the same libel, though perhaps they may be in cases not falling within the rules. These rules were adopted in pursuance of an act of congress of August 23, 1842, (5 St. p. 516,) authorizing this court, among other things, to prescribe 'the forms and modes of proceedings to obtain relief' in suits in admiralty, and have always been regarded as having the force of law. They are little more than a recognition and formulation of the previous practice of courts of admiralty in this country and in England. They have come before this court in several instances, and have always been treated as obligatory. Thus in Newell v. Norton, 3 Wall. 257, the district court, in accordance with the prayer of the libel, issued process in rem against the vessel for a collision, and citations in personam against the master, owner, and pilot. On exceptions being filed for misjoinder, the court ruled that an action against the owner and pilot could not be joined with the proceeding in rem, and that the libelant must elect which remedy he would pursue; and he having elected to proceed in rem against the steamboat and in personam against the master, the libel was dismissed as to the owners and pilot, and sustained as against the steamboat and master. The allowance of this amendment was held by this court to be proper, Judge GRIER observing, however, that the objection that a libel in rem against a vessel and in personam against the 'owner' cannot be joined was properly overruled. The word 'owner' here is evidently a misprint for 'master,' as appears from the syllabus and statement of the case on page 259. Rule 19, prescribing the mode of proceeding in cases of salvage, was discussed by Mr. Justice CLIFFORD in the case of The Sabine, 101 U. S. 384, in which he said that there was no authority for holding that salvors may proceed against the ship and cargo in rem and in personam against the consignees of the cargo, in the same libel, as the rule gave only an alternative remedy in rem against the property saved, or in personam against the party at whose request or for whose benefit the service had been performed. He found there was no well-considered authority which gave any countenance to the theory that the two modes of proceeding in rem against the ship and cargo, and in personam against the owners of the same, might be joined in the same libel; citing The Boston, 1 Sum. 328, and The Hope, 3 C. Rob. 215. He spoke of the nineteenth rule as 'expressed throughout in the disjunctive form, and plainly requires the action, if against the property saved or the proceeds thereof, the be in rem, the alternative clause clearly referring to a case where the property saved has been sold, and the proceeds of the sale have been deposited in the registry of the court.'

A like construction has uniformly been given to this rule by the circuit and district courts. The Richard Doane, 2 Ben. 111, (Mr. Justice BLATCHFORD;) The Zodiac, 5 Fed. Rep. 220, 223, (Judge CHOATE;) Insurance Co. v. Alexandre, 16 Fed. Rep. 279, (Judge BROWN;) The Young American, Brown, Adm. 462. Judge LONGYEAR'S citations in the last case intimate that a similar practice prevailed in England, at least until the...