Hunter v. St. Louis & M. V. Transp. Co.

• Citation: 25 Mo.App. 660
• Parties: ABRAHAM R. HUNTER, Appellant, v. ST. LOUIS & MISSISSIPPI VALLEY TRANSPORTATION COMPANY, Respondent.
• Decision Date: 03 May 1887
• Court: Court of Appeal of Missouri (US)

25 Mo.App. 660

ABRAHAM R. HUNTER, Appellant, v. ST. LOUIS & MISSISSIPPI VALLEY TRANSPORTATION COMPANY, Respondent.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the St. Louis Circuit Court, LEROY B. VALLIANT, Judge.

Affirmed.

A. R TAYLOR, for the appellant: The barge was lost, within the meaning of the statute. Rev. Stat., sect. 6992; Collard v. Eddy, 17 Mo. 356. And was in a perishable condition. Cohen's Admiralty Law, 39; The Saragossa, 1 Benedict 551; Holmes v. The Sloop, 1 Benedict 81.

GIVEN CAMPBELL, for the respondent: The case presented by the petition is for alleged salvage services. Such claim is of ancient admiralty jurisdiction, and, as this claim is wholly founded upon an unconstitutional statute, this court has no authority to enforce it. The Moses Taylor, 4 Wall. 411; The Hine v. Trevor, 4 Wall. 455; The Belfast, 7 Wall. 624; The Lottawanna, 21 Wall. 558; Aiken v. Steamer Bismarck, 4 Mo.App. 569. The vessel was neither lost nor in a perishable condition. Rev. Stat., sect. 6992; Schooner Emulous, 1 Sum. 216; Abbott, Shipping, 564; Marvin, W. & S., sect. 99; 2 Pars. Mar. Law, 288, 289; The Reward, 1 W. Rob. 177.

OPINION

ROMBAUER J.

This is an action under the statute relating to salvage. The plaintiff, in company with others, tied to the bank of the Mississippi river, above the town of New Madrid, in this state, a model barge, the property of the defendant, and after having complied with the provisions of the statute touching oath and publication, he brings this action in personam against the owners, having first acquired, by assignment, the interest of his associates in the venture.

The cause was tried before a jury, who found a verdict for the defendant.

The questions arising on the appeal are: (1) Whether the trial court had jurisdiction of the subject matter. (2) Whether the testimony made out a case of salvage under the statute. (3) Whether the court erred in its instructions to the jury. The respondent claims now, although the point was not made in the court below, that chapter 149, of the Revised Statutes, is in contravention of the constitution of the United States because it confers upon the courts of this state admiralty and maritime jurisdiction, which, under the constitution of the United States, and section 563, of the United States Revised Statutes, is vested exclusively in national tribunals.

This claim is untenable. State statutes authorizing proceedings in rem against vessels, for causes cognizable in admiralty, are unconstitutional. Cavender v. Steamboat Barker, 40 Mo. 235; Aiken v. Steamboat Bismarck, 3 Mo.App. 569. As is said in the leading case of The Moses Taylor (4 Wall. 427), " the distinguishing and characteristic feature of such a suit is, that the vessel, or thing proceeded against, is, itself, seized and impleaded as the defendant, and is judged and sentenced accordingly." But, in order to deprive the state court of jurisdiction over the subject, it is essential that the controversy be touching a maritime, or admiralty, lien, and be a proceeding in rem seeking its enforcement. Mitchell v. Steamboat Magnolia, 45 Mo. 67. The proceeding, under our statute, is neither the one nor the other, and the jurisdiction of our state courts is unquestionable.

The statute provides (sect. 6992): " When any boat, vessel, raft, or other property shall be lost or wrecked, and in a perishable condition, upon any river, any person may take up and secure the same, at or near the place where found."

The uncontroverted evidence tended to show the following facts: The barge in controversy was moored, with a number of other barges, the property of the defendant, at Belmont, on the Mississippi river. An ice gorge above the town gave way, and swept the barges from their moorings, and they were floating down the river, surrounded by heavy ice. This happened before midnight of February 11, 1886. The defendant's superintendent, in charge of these barges, advised its agent, at Cairo, whence the company's tugboat, at one o'clock P. M. of the succeeding day, started in pursuit of them. The company's agent also telegraphed to certain persons in New Madrid to look out for the barges. Several of the defendant's barges passed New Madrid, the river going heavily with ice, from bank to bank, on the afternoon of February 13, which was Saturday. Some attempts were made to stop them, without effect. The barge in question was coming down close to shore, about one-half mile above New Madrid, when the plaintiff and one of his associates boarded her, jumping onto the barge from the shore, and, procuring a cable, after some effort, succeeded in securely fastening her to the bank. The defendant's tugboat came along a few hours afterwards, and persons in charge of it demanded the barge, stating that the defendant would undoubtedly pay the plaintiff and his associates for any trouble they had gone to, but the plaintiff refused to surrender the barge, and said he would claim the statutory salvage.

The barge remained in that situation, according to the plaintiff's testimony, until the next day, Sunday, the fourteenth, and according to the testimony of one of his witnesses, until Monday, the fifteenth, when she was moved a short distance below, into a slough of the river, which was free from floating ice, and where she was in a secure position. While lying in the river the plaintiff and his associates had felled some trees above the barge to make her more secure against damage from floating ice. The barge, when the plaintiff first took possession of her, was in a sound condition, uninjured, free from water, and floating bow foremost down the river. She was strongly built, and empty and there is no evidence that a barge of her build, when floating in the water, surrounded by ice, is not as safe as when tied to the bank in the current of the river. There was evidence that she had been in the floating ice from the...