Jervey v. The Carolina

• Decision Date: 15 March 1895
• Parties: JERVEY v. THE CAROLINA et al.
• Court: U.S. Court of Appeals — Fourth Circuit

66 F. 1013

JERVEY v. THE CAROLINA et al.

United States District Court, E.D. South Carolina.

March 15, 1895

J. P K. Bryan, for libelant.

W. A Barber, Atty. Gen. S.C., C. P. Townsend, and W. Gibbes Whaley, for defendant Holley.

BRAWLEY District Judge.

The schooner Carolina, a vessel of the United States, whereof Joseph E. V. Jervey, Sr., is owner, and which is duly enrolled and licensed for the coasting trade under the laws of the United States, sailed from the port of Savannah, in the state of Georgia, on the 18th day of February, 1895, and crossing the bar of Charleston about 9 o'clock on the night of the 25th February reached Palmetto wharf about 3 o'clock on the morning of the 26th, having on board six packages marked 'whisky,' and twenty-six packages marked 'vinegar,' which investigation proved to contain whisky. While lying in the dock, and before her cargo was unloaded, she was seized by M. T. Holley, Sr., chief constable of the state of South Carolina, under section 38 of the act of the general assembly of said state approved January 2, 1895, commonly known as the 'Dispensary Act,' which section is as follows:

'Sec. 38. Any wagon, cart, boat or other conveyance transporting liquors at night, other than regular passenger or freight steamers and railway cars, shall be liable to seizure and confiscation, and to that end the officer shall cause the same to be duly advertised and sold, and the proceeds sent to the state commissioner.'

A libel in rem in a cause of possession was filed by Jervey, as owner, on the 27th of February. The answer of the defendant Holley, by the attorney general of South Carolina, filed March 5, 1895, avers that the seizure was lawful, and denies the jurisdiction of this court. Theodore G. Barker, intervening for his interest, claims that he advanced to Jervey the purchase money to said schooner, taking a mortgage thereon, which has been duly enrolled; that a balance of $560, with interest thereon from March 31, 1891, remains unpaid; and that by the stipulations of said mortgage the title to said schooner has vested in him.

The first question to be considered is that of jurisdiction. The constitution of the United States provides (article 3, Sec. 2): 'The judicial powers shall extend to all cases of admiralty and maritime jurisdiction. ' This clause, imputed to Charles Pinckney, was accepted by the framers of the constitution without debate and without dissent. The most vigilant defenders of the rights of the states, and the most jealous upholders of the rights of the people, intent upon preserving to them the right of trial by jury, and protection to person and property, and providing for its administration according to the course of the common law in all the material subjects of litigation, conceded to the courts of the United States jurisdiction in all admiralty and maritime cases, without exception as to subject or place. The intent of the framers of the constitution manifestly was to secure perfect equality in the rights and privileges of the citizens of the different states, not only in the laws of the general government, but in the mode of administering them. The sea belongs to no state. It is the joint property of the nations. And as the tranquillity, reputation, and intercourse between citizens of different states and foreign nations would be affected by admiralty decisions, it is essential that they should be uniform, and no uniformity could be expected if there were as many independent jurisdictions as there are distinct states. By the judiciary act of 1789 (Rev. St. Sec. 563) congress vested this entire grant of judicial power to the district court: 'The district court shall have jurisdiction of all civil causes of admiralty and maritime jurisdiction, saving the suitors in all cases the right of common law remedy when the common law is competent to give it, and such jurisdiction should be exclusive.' The supreme court of the United States, in The Moses Taylor, 4 Wall. 430, declares the reason why this grant should be exclusive: 'Because it connects itself with diplomatic relations and duties to foreign nations and their subjects, with great interests, foreign and domestic, of navigation and commerce. ' And in The Belfast, 7 Wall. 643, it declares that the saving clause in this section operates as a privilege to the suitor to invoke a common-law remedy at his election. 'It is to suitors, and not to state courts, nor to the circuit courts of the United States. ' Examined carefully, it is evident that congress intended by that provision to allow the party to seek redress in the admiralty if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy, etc. And, comparing the common-law remedies, the court says: 'But there is no form of action at common law which, when compared with the proceeding in rem in admiralty, can be regarded as a concurrent remedy;' and, referring to the question again, in Moran v. Sturges, 154 U.S. 276, 14 Sup.Ct. 1019, the court says: 'This act saves to suitors in all cases the right of a common-law remedy where the common law is competent to give it;' that is, not a remedy in the common-law courts, but a common-law remedy. Suitors are not compelled to seek such remedy if it exist, nor can they, if entitled, be deprived of their right to proceed in a court of admiralty.

It being the manifest intention of the framers of the constitution to create a tribunal in the interest of commerce, and for its safety and convenience for the speedy decision of controversies where delay would be ruinous, and this court having been created with a jurisdiction, original, instant, plenary, and exclusive, it remains to consider whether this cause falls within its cognizance. Here is a schooner, duly enrolled as a United States vessel, sailing from the port of a neighboring state, over the high seas, laden with an undischarged cargo, her transit completed, but, until discharged, still occupied in the business of navigation, seized without a warrant or other process of law. In determining the jurisdiction of a court in admiralty, locality is the primary question, and the ship or vessel, in its uses, forms the central point, for the great interests of commerce are affected by such instruments, and these interests become subject to the regulations of maritime law, called maritime because the sea is the place of its operation. Says Justice Story in De Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 3,776: 'These words include jurisdiction of all things done upon or relating to the sea, or, in other words, all transactions and proceedings relating to commerce and navigation and to damages and to injuries upon the sea. ' And Justice Clifford in Ex parte Easton, 95 U.S. 68: 'It may now be said without fear of contradiction that it extends * * * to civil marine torts and injuries, 8 * * illegal dispossession or withholding of possession from the owners of ships, * * * municipal seizures of ships,' etc. 'Petitory as well as possessory suits are cases of admiralty and maritime jurisdiction. They may be brought in all cases to reinstate the owners of ships who have been wrongfully deprived of their property. ' Ben. Adm. pp. 176, 177, Sec. 311; Hen.

Adm. p. 38. Torts on navigable waters of the United States are cognizable in admiralty. The test is locality. The Slavers, 2 Wall. 383. 'We reaffirm the rule that locality is the true test of admiralty cognizance in all cases of marine torts, that if it appears as in cases of collision, * * * illegal dispossession of ships, * * * that the wrongful act was committed on navigable waters within the admiralty and maritime jurisdiction of the United States, then the case is one properly cognizable in the admiralty. ' The Belfast, 7 Wall. 640. Jurisdiction in torts 'depends entirely upon locality. If the wrong be committed on the high seas, or within the ebb and flow of the tide, it has never been disputed that they come within the jurisdiction of that court. Even Lord Coke declares 'that of contracts, pleas, and querels made upon the sea, or any part thereof which is not within any county, the admiral hath, and ought to have, jurisdiction.' ' Philadelphia, W. & B.R. Co. v. Philadelphia & H. S. Towboat Co., 23 How. 215. 'Nor is the term 'tort,' when used in reference to admiralty jurisdiction, confined to wrongs or injuries committed by direct force, but it includes wrong suffered in consequence of the negligence or malfeasance of others, where the remedy in common law is by an action on the case. ' Leathers v. Blessing, 105 U.S. 630. In this case the only question raised was as to jurisdiction. The steamboat was lying at a wharf, securely moored thereto, with one of her gang planks out, and resting on the shore; and the libelant, having business on the boat, went aboard, when a bale of cotton fell upon him, breaking his leg. The court held that the fact that the boat was moored, and her gang plank ashore, did not make her a part of the land, or deprive her of the character of a water-borne vessel. Among the latest cases is that of Vanderbilt's yacht seized by the collector of the port of New York for nonpayment of duties, reported in Re Fassett, 142 U.S. 484, 12 Sup.Ct. 295, where the court uses this language: 'The subject-matter of this libel is a marine tort, cognizable in a case of possession in admiralty by any district court of the United States which finds the vessel within the territorial limits of its process,' and cites with approval The J. W. French, 13 F. 916, which was a case for restitution of a vessel seized and held under laws of the state of Virginia, which were held void.

It being clear that the conduct complained of is, if illegal, a...