53 U.S. 443 (1852), The Genesee Chief

Citation:53 U.S. 443, 13 L.Ed. 1058
Party Name:THE PROPELLER GENESEE CHIEF, PIERCE (WILLIAM L.), KELSEY (ALEXANDER), CHENEY (WILLIAM H.), HUNTER (WILLIAM), SWAN (LANSING B.) CLARK (GEORGE R.), STRONG (ELISHA B.) v. FITZHUGH (HENRY), LITTLEJOHN (DEWITT C.), PECK (JAMES)
Case Date:February 20, 1852
Court:United States Supreme Court

Page 443

53 U.S. 443 (1852)

13 L.Ed. 1058

THE PROPELLER GENESEE CHIEF, PIERCE (WILLIAM L.), KELSEY (ALEXANDER), CHENEY (WILLIAM H.), HUNTER (WILLIAM), SWAN (LANSING B.) CLARK (GEORGE R.), STRONG (ELISHA B.)

v.

FITZHUGH (HENRY), LITTLEJOHN (DEWITT C.), PECK (JAMES)

United States Supreme Court.

February 20, 1852

THIS was an appeal from the Circuit Court of the United States for the Northern District of New York.

It was a libel filed by Fitzhugh, Littlejohn, and Peck.

The libellants filed their libel in the District Court for the Northern District of New York, against the propeller Genesee Chief, and Pierce, as master, in which they allege that they were the owners of the schooner Cuba, a vessel of fifty tons burden and upwards, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between ports and places in different states and territories upon the lakes, and navigable waters connecting said lakes. That said schooner, at the time of the loss and collision, thereinafter mentioned, was laden with five thousand nine hundred and fifty-five bushels of wheat; and on Lake Ontario, about forty miles below Niagara, bound from Sandusky, in the state of Ohio, to Oswego, in the state of New York. That the propeller Genesee Chief, of which the appellant, Pierce, was master, and being a vessel of fifty tons burden and upwards, duly enrolled and

Page 444

licensed as aforesaid, and then actually engaged in commerce and navigation as aforesaid, while at the place aforesaid, on the sixth day of May, 1847, by the carelessness and negligence of the master and crew, ran foul of and sunk the said schooner, with her cargo; and concluding with the usual prayer for the condemnation of the vessel and for the payment of the damage.

The claimants of Alexander Kelsey and others, and the master, put in their joint and several answer to the libel, admitting the collision and the loss of the Cuba, but denying that the collision happened from any want of care, negligence, or mismanagement of the master or crew of the propeller, and alleging that the collision occurred in consequence of, and was occasioned by the carelessness, ignorance, mismanagement and want of skill of the master and crew of the Cuba. The answer also contains the following objection to the jurisdiction of the court: 'And these respondents aver that the respondents Alexander Kelsey, William H. Cheney, Lansing B. Swan, George R. Clarke, Elisha B. Strong, and William L. Pierce, are all citizens of the state of New York, and that the said Henry Fitzhugh and Dewitt C. Littlejohn are also citizens of the state of New York; and they also aver that the collision set forth in the said libel occurred within the territorial boundaries of the said state, and not on the high seas, nor in any arm of the sea, river, creek, stream, or other body of water where the tide ebbs and flows, and therefore they say that this court has no jurisdiction over the matters set forth in the said libel, and they pray that the same effect may be given to their defense in this respect as if the same were made by special plea or exception.'

The cause was tried before his honor the district judge, in April, 1848, and a decree passed in favor of the libellants. The respondents appealed to the Circuit Court, and the cause was tried in that court in June, 1849. The decree of the District Court was affirmed.

The master of the propeller, Pierce, was allowed to file a separate answer in the Circuit Court, and he was sworn as a witness for the claimants.

From this decree the owners of the propeller appealed to this court.

COUNSEL

It was argued by Mr. Mathews, for the appellants, and by Mr. Grant andMr. Seward, for the appellees.

The points made by the appellees (the libellants) will first be stated as they were made in the Circuit Court and repeated here. The natural order appears to be that the libellants should prove their case.

Page 445

Mr. Grant, for the libellants, contended that the following facts were proved by the evidence, and made these points:

1st Point. The propeller was bound up the lake with a light load, going eight miles an hour, while the Cuba was bound down the lake, heavily loaded, with a light breeze, making only two miles an hour. The courses of the two vessels were about one hundred rods apart, and they would have passed each other at that distance, had not the propeller swung off from her course.

2d. The Cuba was close hauled on the wind, and having laid her course, was justified in keeping it.

1. A vessel having the wind free must give way to one close hauled, or be responsible for the consequences. 2 Dods., 36, 37; 2 Chit. Gen. Pr., 514; Story on Bailm., 611; Am. Law Journal, vol. 4, No. 4; Lyle v. The Conestoga; Id. Feb. 1849, 354.

2. A steam vessel is regarded as always having the wind fair. 2 Hagg. Adm., 173; 3 Id., 414; 2 Wend. (N. Y.), 452; 2 Chit. Gen. Pr., 514, 515; Story on Bailm., 611; Conk. Adm. Pr., 305, 308; Abbott on Ship., part. 3, p. 300, 308, 311; 10 How., 558-587.

3. The proceedings on the part of her master were strictly regular; he performed his duty in every respect. Story on Bailm., 611; The Thomas, 5 Rob. No., 345; 5 Rob., 316.

4. The Cuba had a good light, which was hung in a conspicuous place, and was seen by the propeller four or five miles off.

5. No response was given to the Cuba's hail, and the propeller continuing on her swinging course to bear down directly upon the Cuba, the captain was justified in his order to put the helm down; especially as the danger had then become so imminent, that the putting the helm up or down could not have avoided the collision or changed its result.

6. Pierce is not a competent witness for the appellants. 1 Browne Civ. Co. Law, 500, 501; 1 Story, 96; 1 Ware, 367; Wood's Inst., 315, 316; 2 Paige (N. Y.), 54; 1 Sumn., 343, 344, 401, 432; 2 Gall., 48, 50; How. Rep., 53, 57; 2 Hagg. Adm., 149, 151; 1 Pet. Adm., 139, 141, 211.

1st. The appellants have been guilty of delay. They might have got this testimony in the court below. Conk. Adm. Pr., 755; 1 Sumn., 331.

2d. The moving papers are defective in not showing how the testimony of Captain Pierce is pertinent. 1 Sumn., 344, 345.

7. The collision was occasioned by the carelessness, negligence, and mismanagement of those having charge of the propeller, and the appellants are responsible for all the consequences.

Page 446

1st. The propeller swung from her course, as if to pass the Cuba on her larboard side, and, while thus swinging out, she ran down and sunk the latter, with her engine in full operation.

2d. There was no officer of the watch on duty.

3d. There was no look-out.

4th. The wheelsman is not a look-out. 10 How., 558, 587.

5th. White, the wheelsman, was asleep; if not, he was incapacitated by liquor or imperfect vision.

6th. Boskkirk was not competent as a look-out, even if he had been on duty.

7th. There was no response from the propeller to the hail of the Cuba. Abbott on Ship., 234; Story on Bailm., 6, 611; 3 Kent Com., 230; 5 Id.; Brig Cynosure; 7 Law Rep., 222; The Shannon, 1 Wm. Rob., 467; 1 Law rep., 313, 318; Conk. Adm., 305-311.

8th. The engine was not stopped. It was a clear starlight night.

8. The propeller must account for her situation, and show satisfactorily that there was no mismanagement, or mistake, or blame, that can be reasonably imputed to her. The Perth, 3 Hagg. Adm., 414, 417.

9. Her excuses are unsatisfactory and untrue, to wit:

1st. That the Cuba had the wind fair; that she changed her course and crossed the propeller's bows.

2d. That the Cuba had no light; and if she had, the night was so thick, smoky, and foggy, it could not have been seen by the propeller.

10. The case, as claimed by the appellants, is not possible; while the one proven by the libellants could have occurred.

Under the former, the vessels could not be brought together by their courses and speed, as is demonstrated by the diagrams.

11. The act of Congress of 1845, extending the jurisdiction of the District Court to the cases therein mentioned, is constitutional. 5 How., 441; 6 Id., 344, 386; Gibbons v. Ogden, 9 Wheat., 1.

12. The libellants are entitled to recover the amount of damages allowed them in the decree below, together with the interest thereon, 'with costs, in the District Court, in the Circuit Court, and in the Supreme Court, and damages and reasonable counsel fee. Rule 17, 20.'

Mr. Mathews made the following points:

1st. The District Court had not jurisdiction of the case, and the libel should have been dismissed for that cause. The following three reasons are given for this:

1. It is not a case of admiralty and maritime jurisdiction,

Page 447

under the Constitution of the United States, which is limited to cases occurring upon waters within the ebb and flow of the tide. The Jefferson, 10 Wheat., 428; The Steamboat Orleans v. Phoebus, 11 Pet., 175; The United States v. Combs, 12 Id., 72; Waring et al. v. Clarke, 5 How., 441; New Jersey S. N. Co. v. Merchants Rank, 6 Id., 344; Thomas v. Lane, 2 Sumn., 1, 9.

2. It is not a case arising under the Constitution, or any law of Congress. 1 Pet., 512, 545; 10 How., 99.

3. The act of Congress of the 26th February, 1845, is not authorized by the Constitution of the United States, and is in conflict with it, and is void.

The Constitution declares that the judicial power of the federal courts shall extend to all cases arising under the Constitution and the laws of the United States, and to all cases of admiralty and maritime jurisdiction, and to other cases particularly enumerated, but which it is unnecessary to specify here.

It is supposed that the jurisdiction of the federal courts is limited to the cases and subjects particularly enumerated in the Constitution, and that it cannot be extended beyond these. Such has been the uniform construction of that instrument.

In the case of Marbury...

To continue reading

FREE SIGN UP