Rundell v. La Campagnie Generale Transatlantique

• Decision Date: 22 March 1900
• Docket Number: 613.
• Citation: 100 F. 655
• Parties: RUNDELL v. LA CAMPAGNIE GENERALE TRANSATLANTIQUE.
• Court: U.S. Court of Appeals — Seventh Circuit

100 F. 655

RUNDELL v. LA CAMPAGNIE GENERALE TRANSATLANTIQUE.

No. 613.

United States Court of Appeals, Seventh Circuit.

March 22, 1900

Charles A. Munroe, for appellant.

Gilbert E. Porter, for appellee.

Before WOODS, Circuit Judge, and BUNN and ALLEN, District Judges.

BUNN District Judge.

This is an appeal from a decree in admiralty dismissing a libel in personam for want of equity. 94 F. 366. The appellant, as administrator of the estate of Edwin R. Rundell, deceased filed his bill in the district court to recover damages for the death of the deceased, for the use and benefit of a minor son. The libel sets forth that on July 2, 1898, Edwin R Rundell, residing at Chicago, became a passenger on board the steamship La Bourgogne, being one of appellee's steamships, at the port of New York, and bound for the port of Havre, in France; that the ship set sail from New York on the 2d day of July, and so continued upon her voyage in the Atlantic Ocean until the 4th day of July, when it collided with a ship called the Cromartyshire, an English sailing vessel, and in the collision was sunk and wholly lost, and Rundell was filled by being drowned, wholly through the fault and improper navigation of the steamship by its officers and crew; that said steamship was upon said voyage being operated by the appellee, a corporation organized under the laws of France and a citizen of that country; that said steamship was sunk upon the high seas, in the Atlantic Ocean, about 60 miles south of Sable Island, beyond the territorial jurisdiction of any nation, but was at the time flying the French flag. The libel further avers that certain sections of the statute law of France, which are set forth in haec verba, gave a legal representative a right of action for the death of his intestate occurring through the negligence of another; and that by the decisions of some of the courts of France (which are not identified or set forth) said statute law is held to extend to and operate upon all persons, whether citizens or aliens, upon the high seas, in vessels flying the French flag; and that under those statutes and decisions a right of action for the death of said deceased, enforceable in the district court, arose and exists in favor of the libelant; and prays judgment for the sum of $50,000. Appellee, the defendant in the libel, filed exceptions to the libel, alleging points of insufficiency in substance as follows:

'First. The libel does not present or disclose any right of action in libelant against this defendant enforceable by said court in the exercise of its admiralty jurisdiction. Second. The libel is insufficient in law to enable libelant to recover from defendant in this cause, in this: that it is brought solely to recover damages for the death of Edwin R. Rundell, which is alleged to have occurred upon the high seas by reason of the negligence of the defendant, also occurring upon the high seas, when, as a matter of law, no right of action exists and no action can be maintained in a court of admiralty of the United States to recover damages for death by negligence occurring upon the high seas. Third. The libel is insufficient, because it is brought solely to recover for death by negligence occurring on the high seas, and under the general maritime law as interpreted and enforced by the courts of the United States, which alone governs the case, no right of action arises or can be maintained in this court for death so occurring.'

Other exceptions relating to the insufficiency of the libel in pleading the law of France it is not necessary here to set out.

We think there are two very substantial grounds upon which the decree of the district court should be sustained. The first is that it does not appear from the libel that the death of the deceased occurred upon the steamship La Bourgogne, the averments being merely that he lost his life by drowning, as a result of a collision and consequent sinking of the vessel; second, that in cases arising in tort upon the high seas the United States district court, sitting in admiralty, cannot enforce the local law of France, even if in terms it applied to the case, which does not appear, but that such cases must be adjudged and governed by the general maritime and admiralty law as understood and administered by the United States courts.

As stated, there is no allegation that the deceased was drowned while upon the appellee's ship, and there can be no implication to that effect. The implication is rather the other way, as the pleading must be construed most strongly against the pleader. The acts of negligence which caused the sinking of the vessel were committed upon the vessel, but these would be damnum absque injuria, unless it also appear that the drowning of the deceased, which constitutes the real damage and injury, was also upon the vessel. The drowning would not be in any sense under the French flag, unless it was upon the sinking vessel. It will not be claimed that the jurisdiction of the flag extended upon the high seas beyond the limits of the ship flying it. To make the local law of France, therefore, of any possible application, it should appear by clear averment that the drowning took place upon the steamship. The libel nowhere states that the deceased came to his death while upon the Bourgogne. The averments are merely that he lost his life by drowning as a result of a collision and sinking of the vessel. The plain implication, therefore, is that he was drowned upon the high seas, apart from the vessel. At least, there is nothing to show to the contrary. The locus of the tort, therefore, which must always be determined by the place where the injury and damage arise, rather than where the negligent act is committed, must be considered as being upon the high seas, rather than upon French territory, supposing that the flying of the French flag made the vessel French territory while upon the high seas, as is claimed. The place where the death occurred and the damage arose must be held to be the locus in quo. The damage is the substance and consummation of the injury, and from that alone springs the right of recovery. The Plymouth, 3 Wall. 20, 18 L.Ed. 125; Leonard v. Decker (D.C.) 22 F. 741; The City of Lincoln (D.C.) 25 F. 835; City of Milwaukee v. Curtis (D.C.) 37 F. 705; The H. S. Pickands (D.C.) 42 F. 239; The Mary Garrett (D.C.) 63 F. 1009; Hermann v. Mill Co. (D.C.) 69 F. 646.

In the case of The Plymouth, supra, opinion by Mr. Justice Nelson, it was held that, where the damage done is wholly upon land, the fact that the cause of the damage originated on water subject to the admiralty jurisdiction does not make the cause one for the admiralty. So that where a vessel lying at a wharf, on waters subject to admiralty jurisdiction, took fire, and the fire, spreading itself to certain storehouses on the wharf, consumed these and their stores, it was held not to be a case for admiralty proceeding. The court in the opinion used this language:

'We can give, therefore, no particular weight or influence to the consideration that the injury in the present case originated from the negligence of the servants of the respondents on board a vessel, except as evidence that it originated on navigable water (the Chicago river); and, as we have seen, the simple fact that it originated there, but, the whole damage done upon the land, the cause of action not being complete on navigable waters, affords no ground for the exercise of the admiralty jurisdiction. The negligence, of itself, furnishes no cause of action; it is damnum absque injuria. The case is not distinguishable from that of a person standing on a vessel or other support in the river, and sending a rocket or torpedo into the city, by means of which buildings were set on fire and destroyed. That would be a direct act of trespass, but quite as efficient a cause of damage as if the fire had proceeded from negligence. Could the admiralty take jurisdiction? We suppose the strongest advocate for this jurisdiction would hardly contend for it. Yet the origin of the trespass is upon navigable waters, which are within its cognizance. The answer is, as already given: The whole or at least the substantial cause of action, arising out of the wrong, must be complete within the locality upon which the jurisdiction depends,-- on the high seas or navigable waters.'

Leonard v. Decker (D.C.) 22 F. 741, arising in the Southern district of New York, was a case in admiralty for tort, where the defendants, as lessees of a wharf, negligently permitted certain bolts to project from the wharf under water, whereby injury was caused to libelant's vessels mooring there. It was contended that, as the locality of the negligence was on land, the case was not of admiralty cognizance. But the court held that the place where the injury is consummated and the damage actually received is regarded as the locus of the tort, and in the opinion by Judge Brown, after citing many cases, the court says:

'In all the above cases the decision is made to turn, not upon the place where the negligence as the cause of the damage originates, but upon the place where the injury is received and consummated. It must appear that the damage, as the substantial cause of action, arising out of the negligence, is complete within the locality upon which the jurisdiction depends, namely, upon the high seas or navigable waters. The Plymouth, 3 Wall. 36, 18 L.Ed. 125. The canal boats in this case were moored alongside the wharf for the purpose of discharging their cargoes,-- a work which is maritime, and one of the necessary incidents of navigation,-- and the vessels were afloat upon navigable waters. The whole damage and injury were received by them in this situation. The locus of the damage was

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