Elder Dempster Shipping Co. v. Pouppirt

• Decision Date: 05 November 1903
• Docket Number: 495.
• Citation: 125 F. 732
• Parties: ELDER DEMPSTER SHIPPING CO., Limited, v. POUPPIRT.
• Court: U.S. Court of Appeals — Fourth Circuit

125 F. 732

ELDER DEMPSTER SHIPPING CO., Limited, v. POUPPIRT.

No. 495.

United States Court of Appeals, Fourth Circuit.

November 5, 1903

H. H Little (Robert M. Hughes, on the brief), for appellant.

Floyd Hughes (F. M. Whitehurst, on the brief), for appellee.

Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk.

For opinion below, see 122 F. 983.

Before SIMONTON, Circuit Judge, and MORRIS and KELLER, District Judges.

Before SIMONTON, Circuit Judge.

This case comes up on appeal from the District Court of the United States for the Eastern District of personam in the court below against the Elder Dempster Shipping Company, Limited of African House, a corporation created under the laws of Great Britain and Ireland, on the 21st February, 1902. The defendant, being a foreign corporation, could not be found nor served with process within the district. An attachment was issued out of the said court on the same day, under which the British steamship Montenegro was attached and taken into custody by the marshal as the property of said respondent. The vessel was released on bond. Prior to this a libel in rem had been filed against the steamship Montenegro by the same libelant for the same cause of action, and the steamship released on a similar bond, under a stipulation that, if the defendant and its sureties are held liable on the bond taken in attachment, they will not be held liable on the bond taken upon the libel in rem. The respondent has answered the libel in personam, and, after excepting to the jurisdiction of the court, traversed the main allegations of the libel.

The steamship Montenegro was chartered by the respondent, her owner, to take a cargo of mules from the port of New Orleans to a port in South Africa. The libelant was engaged to go on the steamer as a veterinary surgeon by the British government, and went on the said steamer as a passenger, his expenses to be paid at Cape Town, South Africa, and from port of arrival, on his return to the United States, to Denver Colo. The ship took the cargo of mules to South Africa delivered them, and started on her voyage to New Orleans for another cargo. When she reached the mouth of the Mississippi she was met by a telegram instructing her to go to Galveston for a cargo of cotton. She at once, greatly to the disgust and against the protest of libelant and two others, also veterinary surgeons, on the ship, set out for Galveston libelant and his companions having in vain sought the means of going ashore to Port Eads, at the mouth of the Mississippi. In order safely to transport the mules, the vessel had had stalls and other fixtures set up in her hold and on the main deck. The structure on the main deck extended from the bridge of the forecastle, and was covered over with a good roof; this roof, in effect, making another deck extending from the bridge forward. The timbers used in the construction of this structure were many of them long and heavy. On the roof of this structure the passengers and officers of the ship could take exercise, and frequently used it for this purpose. When he was on this voyage to Galveston under his new instructions, the master of the Montenegro began to prepare his ship for a cargo of cotton. To this end he employed his crew and a gang of muleteers, who having gone with the mules to South Africa, were now returning. These tore down the partitions and stalls in the hold and dismantled the structure on the deck. This work of demolition began on the day after leaving Port Eads; that is, 13th November, 1901, and was continued all the next day. Two gangs were employed, one under the mate on the starboard side of the ship, and the other under the boatswain on the port side. The smaller pieces, as they were disengaged, were sent over the side of the ship in a basket. The steam winch of the ship was used for this purpose. The longer and larger beams, after being disengaged from their fastenings, were lifted by the workmen and placed on the rail of the ship and shoved along until the weight of the part over the rail counterbalanced that on the ship. They were then let go, striking the water and falling overboard. As the vessel was moving through the water at the rate of eight or ten knots, the ends of the beams, being shoved overboard, when they struck the water, were driven aft, and that protion of the beams resting on the rail, which acted as a sort of pivot, were necessarily driven forward. Of course, there was great danger during this operation to every one on the main deck in proximity to the beams which were being put overboard. During the morning of the day on which the working parties were thus dismantling the ship, the libelant and his companions were on the bridge, watching the operation with interest. They saw very many beams disposed of as above described, and very great progress was made in the work. The libelant and the other doctors lived in the cabin at the stern of the ship occupied by the officers. During the afternoon the libelant, after afternoon tea, went down upon the main deck where this work was being performed. A very short time afterwards, whilst he was on that deck in proximity to a large beam, which was in the act of being discharged over the side of the ship, he was struck a violent blow on the head by that part of the beam still over the hip, the other end having struck the water. The lower end of the beam having been suddenly drawn aft, the upper end of the beam was canted forward. There is conflict in the testimony upon two principal points. The libelant denies that he was warned either against going on the deck or whilst upon the deck. He heard a cry immediately before he was struck, which he did not understand. Witnesses for respondent say that whenever a beam was thrown in this way overboard, the general warning had been given by the crew of 'Look out.' and also that the libelant had been specially warned about going on the main deck where the men were at work. Another point of contradiction is as to the place in which he was standing when the blow came. On his behalf it is said that he was on the deck four or five feet from the rail, looking at the ship. The witnesses for the respondent say that when he was on the deck he ran to the rail whilst the beam was being shoved over it, and watched it as it fell in the water. Whilst he was leaning over the rail and looking down, the beam slid on the rail and struck him. The court below heard the case upon testimony taken before him and by deposition, gave a decree for the libelant, and fixed his damages at $12,000. An appeal was allowed, and the case comes up on many assignments of error. The first two of these are error in entertaining jurisdiction of the case and error is not holding that the action is governed by the law of Great Britain, and that therefore libelant had no right of action in admiralty. The other assignments or error go to the merits; error in holding that respondent was guilty of negligence; error in holding respondent for damages; error in granting excessive damages; error in admitting the libelant to say that, if he had been warned not to go to the scene forward by the captain, he would have obeyed him, but that in fact he had no such warning.

As to the Jurisdiction.

The respondent insists, as the cause of action in this libel originated on the high seas, on a British ship flying the British flag, it must be treated as if it occurred on British soil, solely within the jurisdiction of the British courts. The appellant admits that many decided cases sustain the general jurisdiction of our courts in admiralty over cases of tort arising on the high seas on vessels of other nationality than ours. But he insists that these are cases of collision where the tort did not occur wholly on either ship, or contracts of carriage, or for seamen's wages; all of which are communis juris, and are cognizable by courts of admiralty of all nations. It must be borne in mind that the libelant is a citizen of this country, under his contract to be restored to the country. The Supreme Court of the United States has established the doctrine that the courts of admiralty of this country can, in their discretion, take jurisdiction of cases of tort occurring on the high seas between subjects or citizens of foreign states; that, if they decline to exercise such jurisdiction, it is not for a want of authority to do so, but because they deem it expedient, under the circumstances of the particular case, to do so. Take a case of foreign seamen suing because of ill treatment. In such cases the consent of their consul or minister is frequently required before the court will proceed to entertain jurisdiction, not on the ground that it has not jurisdiction, but that, from motives of convenience or internation comity, it will use its discretion whether to exercise jurisdiction or not. And where the voyage is ended, or the seamen have been dismissed, or treated with great cruelty, it will entertain jurisdiction even against the protest of the consul. The Belgenland, 114 U.S. 363, 364, 5 Sup.Ct. 864, 29 L.Ed. 152. See, also, for a full discussion of the law Deady J., in Bernhard v. Creene et al., 3 Sawyer, 230, Fed. Cas. No. 1,349. If this be the law as to actions by foreigners against foreigners, a fortiori it is the law as between an American citizen and a foreigner. The language of Dr. Lushington in The Johann Friederich, 1 W.Rob. 35, quoted in The Belgenland, supra, is proper here:

'If these parties must wait until the vessel that has done the injury return to its own country, their remedy might be lost altogether, because she might never return; and, if she did, there is no part of the world to which they might not be sent for redress.'

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