Newell v. Norton and Ship

• Decision Date: 01 December 1865
• Citation: 18 L.Ed. 271,1865 WL 10771,70 U.S. 257,3 Wall. 257
• Parties: NEWELL v. NORTON AND SHIP
• Court: U.S. Supreme Court

70 U.S. 257

18 L.Ed. 271

3 Wall. 257

NEWELL v. NORTON AND SHIP.

December Term, 1865

THIS was an appeal from a decree of the Circuit Court for Louisiana affirming a decree of the District Court in admiralty in a case of collision between the steamboats Hill and World.

The owner of the World filed his libel in the District Court, March 12, 1863, setting forth that his vessel, sailing down the Mississippi and laden with a valuable cargo, had been lost by collision with the Hill, and solely through the fault of the Hill.

The collision out of which the proceeding came, took place in a bend of the Mississippi below the town of Princeton, Mississippi. The Hill received no material injury. The World sank almost immediately, carrying down with her about thirty persons. The wreck and cargo were soon afterwards abandoned to the underwriters: who subsequently assigned their claims to the libellant.

The account of the catastrophe, as given by the libellant, was briefly this: that the World was descending the river in the ordinary channel, when the Hill, which had been running up on the Mississippi side, came quartering out from that side, attempted to cross the river in front of the descending boat, but, being a little too late, ran into her and sunk her.

The libellant accounted for the accident on the ground that the pilot of the Hill failed, for want of proper watchfulness, to discover the World in time to avoid the collision; that he was either ignorant or disregardful of his obligations to obey signals which he ought to have obeyed; and that he manoeuvred his boat with entire want of skill.

The respondent admitted an attempt of the Hill to cross the river, but asserted that it was effected in safety, and that, after the Hill had gained the Arkansas side, the World came square across the river, directly towards the Hill, struck her, inflicting, however, no damage, but was herself by the blow stove in and sunk.

The District Court, in accordance with the prayer of the libel, issued process in rem against the Hill, and citations in personam against the captain, owner, and pilot. The 15th rule in admiralty of this court, of the Rules of 1845,¹ it should be said, allows a libellant, in all cases of collision, 'to proceed against the ship and master, or against the ship alone, or against the master or the owner alone, in personam.'

The owners of the Hill, of whom the master was one, put in a claim, and on the same day the boat was released on a bond, conditioned that the claimants and sureties should abide by all the orders of the court, and pay the libellant the amount awarded by the final decree. The claimants immediately afterwards filed an exception to the libel for misjoinder of owners and pilot in a proceeding against the vessel and master, and prayed that the libel be dismissed. The court ruled that an action against the owners and pilot could not be joined with the proceeding in rem, and that the libellant must elect which remedy he would pursue; and he having elected to proceed in rem against the steamboat, and in personam against the master, it was ordered that the libel be dismissed as to the owners and pilot, and sustained against the steamboat and master. Proofs were then taken.

The testimony was voluminous and conflicting. With the documents it filled a book of three hundred and ten pages of long primer, 'solid.' One hundred and ten persons, first and last, and through a term of five years that the case was in the courts below, were examined. It embraced a number of questions, as whether a sufficient watch had been kept—sufficient and proper signals given—whether the engines had been rightly worked when the boats approached—whether certain officers of the World were or were not intoxicated—what was the character of the pilots for sobriety and skill—and whether Henry Evans, 'a flatboat pilot' on the Mississippi, who saw the collision and testified strongly that the Hill was to blame for it, was worthy of faith seven persons swearing that he was not, and twenty-two that he was. And finally, whereabouts exactly in a bend of the river the collision took place, and what topographical inference could be made from the hydrographical fact that portions of the World's cargo had floated to a particular spot of the shore; and that cattle which had been on the boat were found the next morning walking contemplatively in the State of Mississippi and not in the opposite one of Arkansas.

The District Court decreed for the libellants ($52,500); a decree which the Circuit Court, on full consideration and after giving an opinion at large, which the record contained, affirmed with interest and costs.

After the decree in the Circuit Court a motion was made for a re-hearing, 'upon the ground that the court had erred in its view of the evidence, and that the damages ought to be apportioned.' This motion was refused; Campbell, J., who gave its opinion, saying:

'I have considered the evidence with much care; it is very conflicting; and an opinion founded upon one portion of it must necessarily be hostile to conclusions which have their support in another portion. I think it is a case in which men may naturally form different conclusions, and that an appeal is a very proper remedy for the party who is aggrieved. A re-hearing of the case would not speed the cause to its final determination; and, upon the suggestions that the decree is erroneous, I do not think I should be authorized to allow a re-hearing.'

The case was now here on appeal.

Mr. Speed, A. G., and Mr. Ashton, acting as private counsel, for the appellants: It has never been decided nor recognized as a principle of admiralty practice that the misjoinder of actions can be cured by putting the libellant to his election. The libel ought to have been dismissed, and then the party asserting himself to be aggrieved could have filed his libel rightly. Before the adoption of the admiralty rules of 1845, the proceeding in rem could not be joined with a suit in personam; and the right to unite these distinct remedies in the same libel is given solely by virtue of these rules. By authorizing the two remedies to be blended in the same libel they made an innovation in established practice, and the libellant must have complied literally with their provision. The amending of a libel, all wrong originally, was improper.

2. As respects the discharge of the sureties. The boat was not seized again after the change in the libel, and no new bond was given or required. The sureties bound themselves with reference to the libel. The contract of suretyship is stricti juris, and cannot be extended by implication.² The undertaking of the sureties was to satisfy such decree as might be rendered upon the libel filed, under which the vessel had been seized; and it is obvious that no other decree could have been rendered upon the libel, in its original form, than one of dismissal. If the libel was not authorized by law, if, in fact, as was the case, it was in direct violation of the law and the rules adopted by this court governing proceeding in the admiralty, the seizure and detention of the boat were illegal ab initio; and the bond given for her release was without consideration and void.

When, therefore, the libellant elected to proceed in rem against the vessel, and in personam against the master alone, he attempted to place the sureties in duriori casu than that contemplated by them at the time they contracted as sureties, and to change the obligation which they had assumed, which was to satisfy such decree as might be rendered upon the libel filed, into an obligation to respond to a decree to be rendered upon a new libel, freed from the objection which made that with reference to which they had bound themselves void; an obligation to which the sureties in no manner have assented. Of course they are discharged.

3. The libellant here but represents the underwriters, or the vessel and cargo. Now can a claim for damages resulting from a collision be assigned so as to convey to the assignee the lien which may have existed in favor of the assignor, and to vest in the assignee the right to proceed in the admiralty in his own name for reparation for a wrong which was not done to him nor to his property? We think not. The admiralty has no jurisdiction unless the contract which the libellant seeks to enforce is maritime. A contract may be maritime, but it would by no means follow that the assignment of that contract must also be maritime. An assignment is not and never can be a maritime contract; it is always an ordinary civil contract. Maritime liens are not established by the agreement of the parties, except in hypothecations of vessels, but they result from the nature and object of the contract. They are consequences attached by law to certain contracts, and are independent of any agreement between the parties that such liens shall exist. They, too, are stricti juris. Indeed, the only power the contracting parties have respecting such liens as attach as consequences to certain contracts is, that the creditor may waive the lien, and may by express stipulation, or by his manner of dealing in certain cases, give credit exclusively to those who would also have been bound to him personally by the same contract which would have given rise to the lien.

4. As to merits. [The learned counsel here proceeded to collocate and present the evidence, so that it bore in a strong way against the World; and argued that, rightly considered and according to the weight of the evidence, reference being had to the character of the witnesses as sworn to for truth, the fault was with that vessel, not at all with the Hill.]- Messrs. Carlisle and McPherson, contra: This libel is not multifarious within a proper definition of the term. It states but one cause of action, and seeks but one measure of relief. And it is a proof of this, that if any one of the defendants would satisfy the demand...