The Glendale

• Decision Date: 10 July 1897
• Docket Number: 215.
• Citation: 81 F. 633
• Parties: THE GLENDALE. v. EVICH. THE GLENDALE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

81 F. 633

THE GLENDALE.

THE GLENDALE et al. v. EVICH.

No. 215.

United States Court of Appeals, Fourth Circuit.

July 10, 1897

This was a libel in rem by Phillip B. Evich, administrator of Joseph Evich, deceased, against the steamtug Glendale, and Horace Furman and E. J. Furman, composing the firm of Furman Bros (owners of said tug), to recover damages for wrongfully causing the death of the said Joseph Evich. The district court rendered a decree for the libelant (77 F. 906), and the owners have appealed.

William Flegenheimer, for appellants.

H. R Pollard and Conway R. Sands, for appellee.

SIMONTON Circuit Judge.

This is an appeal from the district court of the United States for the Eastern district of Virginia, sitting in admiralty. The libel is filed by the administrator of Joseph Evich deceased, against the steamtug Glendale in rem. The alleged cause of action is the death of libelant's intestate arising from the collision with the said tug.

The first question is: Has the court, sitting in admiralty, in the Eastern district of Virginia, a jurisdiction in rem for a tort resulting in the death of the person injured? In The Harrisburg, 119 U.S. 199, 7 Sup.Ct. 140, the supreme court discusses this question. After an elaborate and full review of all the cases reported, the court decides that no such proceeding can be maintained in admiralty in the absence of a statute giving the right; and the court expressly reserves the question whether such a right having been given to the state courts, the federal courts sitting in such state can exercise it in admiralty. In The Corsair, 145 U.S. 335, 12 Sup.Ct. 949, the question is again fully and elaborately discussed, and the authorities, American and English reviewed. And it is stated that, by the last and most authoritative decision in England (The Vera Cruz, 10 App.Cas. 59, etc.), the law is now settled in that country that admiralty has no jurisdiction to proceed in rem in such cases. The law of this country is thus declared:

'A maritime lien is said by writers on maritime law to be the foundation of every proceeding in rem in admiralty. In much the larger class of cases the lien is given by the general admiralty law, but in other instances, such, for example, as insurance, pilotage, wharfage, and materials furnished in the home port, the lien is given, if at all, by the local law. As we are to look, then, to the local law in this instance for the right to take cognizance of this class of cases, we are bound to inquire whether the local law gives a lien on the offending thing. * * * Unless a lien be given by the local law, there is no lien to enforce by proceedings in rem in admiralty.'

In this case the court had no jurisdiction, because the law of Louisiana, in which state the action was brought, did not create a lien. It is true that this case is somewhat negative in relation to the proposition. But it is clear from its reasoning that, if the lien be given by the local law, it will be enforced in admiralty. This is in accord with the general rule as to liens given by a state statute. The J. E. Rumbell, 148 U.S. 1, 13 Sup.Ct. 498. It is in close analogy to the remedy given by the state statutes to material men in the home port.

The jurisdiction therefore depends upon the Virginia statute. The provisions upon this subject appear in sections 2902 and 2903 of the Code of Virginia, and they settle this question in favor of the jurisdiction of the court:

'Sec. 2902. When Suit may be Maintained on Account of Death of a Person Caused by Wrongful Act of Another. Whenever the death of a person shall be caused by the wrongful act, neglect or default of any person or corporation, or of any ship or vessel, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, or to proceed in rem against the said ship or vessel, or in personam against the owners thereof or those having control of her, and to recover damages in respect thereof, then, and in every such case, the person who, or corporation or ship or vessel which, would have been liable if death had not ensued, shall be liable to an action for damages, or, if a ship or vessel, to a libel in rem, and her owners or those responsible for her acts or defaults or negligence to a libel in personam, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.

'Sec. 2903. How and When to be Brought; How Damages Awarded; New Trials. Every such action shall be brought by and in the name of the personal representative of such deceased person, and within twelve months after his or her death. The jury in any such action may award such damages as to it may seem fair and just, not exceeding ten thousand dollars, and may direct in what proportion they shall be distributed to the wife, husband, parent and child of the deceased. But nothing in this section shall be construed to deprive the court of the power to grant new trials, as in other cases.'

The learned counsel for the appellants contends that the state statute must create and give a lien in advance and in express terms. The Corsair, supra, says that we are bound to inquire whether the local law gives a lien on the offending thing. The Virginia statute declares that 'the person who, or the corporation or ship or vessel which, would have been liable if death had not ensued, shall be liable to an action for damages, or, if a ship or vessel, to a libel in rem. ' A libel in rem proceeds upon the idea of the existence of a lien. 'Whenever a lien or claim is given on a thing by the maritime law,'-- and, as has been seen, the lien created by the local law is administered in admiralty on the same principles as maritime liens,-- the admiralty will enforce it by its process in rem, and it is the only court competent to do this. It is much more than a right to sue. It is jus in re, a right in the thing itself, without actual possession or any right of possession, and can be executed and devested only by process in rem, and is treated as a proprietary right. Henry, Adm. Jur. & Proc. Sec. 41.

This beings us to the facts of the case. The Glendale is a small tug, 41 feet long, 8 3/4 feet beam, propelled by steam, and engaged in towing in and about the James river. The intestate of the libelant was with his father, the libelant, and two other men, fishing with a seine in the James river, between Richmond and Manchester, on the afternoon and evening of the 7th June, 1896. On that evening, the Glendale, proceeding down the river, came upon the small boat in which these persons had been fishing. When she came close to the boat, Evich, the libelant, caught the rail of the tug, and jumped out of his boat into the tug. One of the men, Coleman, took the boy Joe Evich by the hand, and reached out and got on the tug. Somehow his grasp on the boy was loosened, so that the boy got away from him; probably was sucked under the tug, and was drowned. He was about 12 years old. The small boat had no light. It was about 14 feet long, about 5 feet wide in the center, its greatest beam, pointed at the bow, with a square stern and a flat bottom. These facts are undisputed. By whose fault the said accident occurred is the question in the case. The testimony is very voluminous. The number of witnesses examined out of all proportion. The evidence is contradictory to a great degree. The district court decreed in favor of the libelant. Ordinarily, this would have had great and controlling weight if the witnesses had been examined in the presence of the court. The Thomas Melville, 37 F. 271; The Holberg, 43 F. 120; Duncan v. The Gov. Nicholls, 44 F. 302.

The rule and the reason of the rule are stated in The Alejandro, 6 C.C.A. 57, 56 F. 624:

'The rule is well settled that in cases of appeal in admiralty, when the questions of fact are dependent upon conflicting evidence, the decision of the district judge, who had the opportunity of seeing the witnesses and judging their appearance, manner, and credibility, will not be reversed, unless it clearly appears that the decision is against the evidence,'-- quoting The Albany, 48 F. 565, quoted and followed in this circuit; The Lucy, 29 C.C.A. 660, 74 F. 572, and 42 U.S.App. 100.

But all the testimony in the case was taken before a commissioner, and it is before us in his report. We must examine it for ourselves, and reach our own conclusion. The three men in the small boat, Evich (the libelant), Coleman, and Ebenhack, testify to about the same effect. The last says that they were fishing with the seine out on the Manchester side of the river, and saw the tug coming towards them when she was some three or four hundred yards away. They hallooed, but the tug apparently paid no attention. They pulled towards the Manchester side of the river. The tug seemed to be coming right at them. Then Evich told Coleman, who was rowing, to pull towards Richmond. The tug came near. Coleman jumped from the boat with the boy. So did Evich. The tug struck the boat. The witness Ebenhack remained in her, and, when she tilted at the blow, he righter her. When they missed the boy, he paddled about, hunting for him; afterwards took Evich and Coleman from the tug, and they went in the boat, which was half full of water, to Richmond. He says that the tug struck the boat four or five feet from the bow, running at full force.

Coleman says that 'they had taken the seine up, and made way back to Richmond, when they saw the tug between a hundred and fifty yards from us. That they commenced to get out of the way of it, and found that they could not. Every way we would turn he would turn into us. It seems to me like he had to run into us. I saw ...