Pouppirt v. Elder Dempster Shipping

• Decision Date: 28 March 1903
• Citation: 122 F. 983
• Parties: POUPPIRT v. ELDER DEMPSTER SHIPPING, Limited.
• Court: U.S. Court of Appeals — Fourth Circuit

122 F. 983

POUPPIRT v. ELDER DEMPSTER SHIPPING, Limited.

United States District Court, E.D. Virginia.

March 28, 1903

Whitehurst & Hughes, G. L. McCracken, and James B. & Charles J. Stubbs for libelant.

Hughes & Little, for respondent.

Libel in personam to recover damages against the respondent corporation, owners of the British steamship Montenegro, for personal injuries received by libelant, a passenger on said steamer, and in which action a foreign attachment was issued and levied upon respondent's ship.

The facts in the case are briefly these: The steamship Montenegro was, in the fall of 1901, under charter by the British government to carry a cargo of mules from the port of New Orleans to the ports of Cape Town or Durban, South Africa. The libelant was a veterinary surgeon, of Leavenworth, Kan employed by the British government to accompany the steamship en route, to care for the mules. The terms of the contract provided for the transportation and subsistence of the doctor on the voyage out and back to the port of New Orleans. The cargo was delivered at Durban, and on the 7th of October 1901, the return trip to the port of New Orleans was begun the libelant and another veterinary surgeon, Dr. Miller, and a Mr. Matthews, who has since died, being the only passengers; and there were on board, in addition to these three and the crew, some fifty odd employes, muleteers, and the foreman and subforeman, who had gone over to attend the mules, and were being returned to this country, as was required by the British government. Upon reaching Port Eads, near the mouth of the Mississippi, on the 10th of November, the steamship was directed by its owners to discontinue its voyage to New Orleans, and proceed to the port of Galveston, Tex., there to load with cotton, which the ship did, and en route the ship's officers proceeded to remove the cattle fixtures, necessary to the carrying of a cargo of that character, from the hold and deck of the ship. On the evening of November 12th or 13th, the exact date not being entirely clear, about 4:30 p.m., and while engaged in casting overboard a piece of timber, one of the temporary beams covering the main deck, that reached entirely across the ship, libelant was struck, as the same was thrown into the water, from which blow he sustained the injuries complained of. Libelant insists that his injury was solely due to the negligence and lack of care on the part of the navigators of the ship in removing the cattle fixtures, and attempting to throw over a piece of timber of the size and description of the one by which he was struck, while the ship was proceeding at full speed, from 9 1/2 to 10 knots an hour, and also because of their not properly warning passengers, and himself especially, of the danger of occupying the main deck pending such work. He insists, moreover, that he was, by reason of the ship's change of its place of destination, carried, against his protests, from Port Eads to Galveston, instead of being landed at New Orleans, as he should have been. On the other hand, respondent insists that the accident was due entirely to libelant's want of care, at the time of the accident, in going upon the main deck; that he was duly warned of the dangers thereof at or about the time of the injury to him; and that he was carried to the port of Galveston by his own consent. Respondent also insists that the libel cannot be maintained, for an injury aboard of a British ship is subject to the laws of Great Britain, and under those laws courts of admiralty do not take cognizance of such actions, and that, therefore, this court should not take jurisdiction, as it only administers the British law.

WADDILL, District Judge (after stating the facts as above).

The vice in the legal position thus taken by proctors for respondent is patent, and grows out of their treating this case, where the tort sued for was committed upon the high seas, as if committed upon a British ship, exclusively within the British jurisdiction, and between British subjects. The position is possibly a correct one in cases of torts so committed. But it has no application to a case like this, brought to recover for injuries sustained by an American passenger on board of a foreign ship on the high seas. The fallacy of respondent's position is fully shown in The Chartered Mercantile Bank of India, etc., v. The Netherlands India Steam Navigation Company, Limited, 10 Q.B. 521, 536, 537, 544, 545. This was an action brought by the owner of certain goods, shipped under a bill of lading in the defendant's vessel, called the Crown Prince, and lost in a collision on the high seas, between that vessel and the Atjeh, another vessel of the defendants. Brett, L. J., speaking for the court in that case, said:

'Therefore it seems to me on the question of fixing the defendants with liability for the negligence of the captain and crew of the Atjeh, who are admitted to be the servants of the defendants, that the defendants cannot escape liability by saying their ship was not registered as a British ship, but that she was registered as a Dutch ship. She was, nevertheless, an English ship, and the defendants are liable according to English law. But I will assume that both ships are Dutch ships. Nevertheless, whatever might have been the Dutch law, if this case had been tried in Holland, it seems to me the defendants are still liable. The negligence on the part of the servants of the defendants did not take place in Holland; it did not take place within the sole territorial jurisdiction of a foreign country. This case is not like The M. Maxham, 1 P.D. 107, where the ship in Spain ran against a pier or quay in Spain. In that case, whatever the cause of action was, it arose entirely in Spain, and the action was an action in tort, and the well-known rule applies that for any tort committed in a foreign country within its own exclusive jurisdiction an action of tort cannot be maintained in this country unless the cause of action would be a cause of action in that country, and also would be a cause of action in this country. Both must combine if the tort alleged was committed within the exclusive jurisdiction of a foreign country. But the negligence complained of in this action took place upon the high seas, which is the common ground of all countries. Therefore that rule with regard to the exclusive jurisdiction of a foreign country does not apply. The case comes to this, whether an action for a tort committed on the high seas between two foreign ships (for I assume for this purpose that both are foreign ships) an action can be maintained in this country, although it is not a tort according to the laws of the courts in that foreign country. From time immemorial, as far as I know, such actions have been maintained in the court of admiralty, and the rule of the liability of the shipowner for the acts of his servants has been invariably employed, and, inasmuch as the rule of exclusive jurisdiction cannot apply, it seems to me that if a foreigner in this country can be served with a writ for an act of his servants done on the high seas, which are as much within the jurisdiction of England as they are within the jurisdiction of any other country, an action can be maintained in a court of common law.'

In the same case, Lindley, L. J., speaking on the same subject, said:

'What reason is there for saying that Dutch law, as distinguished from English law, or the general maritime law, is to govern such a case? The reason alleged is that, each ship being Dutch, the law of the flag, i.e., the Dutch law, regulates the persons on board each ship, and determines the rights and liabilities of her owners both towards the captains and crews and towards the owners of the cargoes on board. This reason is based on a very common and fruitful source of error, viz., the error of identifying the ships with portions of the territory of the states to which they belong. The analogy is imperfect, and is more often misleading than the reverse, as I have endeavored to point out before. Reg. v. Keyn, 2 Ex.D. 93-94. In this particular case the analogy appears to me more misleading than usual. I am not aware of any decision in this country to the effect that where two ships come into collision on the high seas the rights and liabilities of their respective owners have been held to depend on the laws of the respective flags of the ships. The law applicable in this country to cases of collision on the high seas is the maritime law as administered in England, and not the laws of the flags. See The Johann Friederich, 1 Wm.Rob. 35; The Leon, 6 P.D. 148; and Foote on Priv. International Law, pp. 398, 403. According to the maritime law, the defendants, as principals of the captain of the Atjeh, are clearly liable for the consequences of his negligence.'

The contention that the courts of admiralty of Great Britain do not take cognizance of torts for injury to the person committed upon British ships, within the jurisdiction of that country, becomes more or less an unimportant inquiry, if the above position is correct, as this court will not be controlled in its action in that regard. In passing, however, it may be said that the authorities do not appear to be entirely free from conflict. The following English cases seem to support the doctrine of the admiralty jurisdiction in such cases: The Sylph, L.R. 2 A.&E. 24; The Gulf Faxe, L.R. 2 A.&E. 325; The Beta, L.R. 2 P.C. 447. And originally, and independently of statute, the courts of admiralty of Great Britain took jurisdiction of cases arising in tort committed upon the high seas. The Ruckers, 4 C.Rob. 73; The Hercules, 2 Dod. 353; The Lagan or Mimah, 3 Hagg.A.D.N. 418; The Volant, 1 Wm.Rob. 383.

The cases questioning this...