The John C. Sweeney
| Decision Date | 25 April 1893 |
| Parties | THE JOHN G. SWEENEY. v. THE JOHN G. SWEENEY et al. CHARLESTON BRIDGE CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Bryan & Bryan, for the motion.
J. F Ficken, Mitchell & Smith, and J. N. Nathans, opposed.
The libel in this case was filed in rem for injuries to the bridge of libelant, caused by the schooner running into it. It was tried with a libel in personam by the master of the schooner for injuries to her, received at the same time, and growing out of the same collision. 55 F. 536. The libels were in tort. A full hearing was had, with testimony and argument. After consideration, the libel in rem was sustained, and the libel in personam was dismissed. After opinion filed, but at the same term, respondent in the libel in rem moves to dismiss that libel for want of jurisdiction.
The first question is, can this motion be now entertained? The question of jurisdiction of the court can be made at any time, (Railway Co. v. Swan, 11 U.S. 382, 4 S.Ct 510;) indeed, can be made after decree below and writ of error for the first time in the supreme court, (Capron v Van Noorden, 2 Cranch, 126; King Bridge Co. v. Otoe Co., 120 U.S. 226, 7 S.Ct. 552.) In Mail Co. v. Flanders, 12 Wall. 130, the circuit court had granted an injunction and had issued a writ of sequestration, on which latter writ the marshal had taken possession of a steamer, and held it subject to the order of the court. No question of jurisdiction had been made until after this was done. The supreme court sustained the action of the circuit court in setting aside the injunction and the order of sequestration and restoring the property, when want of jurisdiction was made to appear. Where the record discloses a controversy of which the court cannot take cognizance, its duty is to proceed no further; and this it can do on its own motion, if need be. Morris v. Gilmer, 129 U.S. 325, 9 S.Ct. 289. This case distinguishes Hartog v. Memory, 116 U.S. 591, 6 S.Ct. 521, which at first blush would seem to limit this doctrine. It must be noted also that the decretal order in this case has not yet been filed. The present motion is analogous to a motion in arrest of judgment. The motion is to dismiss the libel in rem because on its face it shows that the injury complained of is not within the jurisdiction of a court of admiralty. The libel sets out that libelant is the owner of a bridge constructed and located and extending from a point near the extreme west end of Spring street, in the city of Charleston, across Ashley river, in the said state, to the opposite shore; that the schooner collided with said bridge, striking first the eastern fender at or near the southernmost part of the draw opening, and then lurching over and striking against the center or draw pier, thereby causing great damage or injury to the bridge. The bridge is built on piers. The draw swings on a center pier, resting on the bottom of the river.
The proof sustaining the libel is that the schooner, entering the draw, sheered to starboard, striking and glancing from the fender, and crossing to the other side of the draw, driving her bowsprit into the iron work of the bridge, tearing it away, and breaking the drawbridge by force of the collision against the center pier. She was afloat in a navigable stream from the beginning to the end of the accident. Is this case within the jurisdiction of admiralty? The jurisdiction in admiralty over tort depends exclusively on the locality. Thomas v. Lane, 2 Sum. 9. This whole case depends upon the determination whether this means the locality of the damage complained of, or whether the locality of the instrument causing the damage can be taken into consideration. 'To ascertain what the maritime law of this country is, * * * we must have regard to our own legal history, constitution legislative usages, and adjudications. The decisions of this court illustrative of these sources and giving construction to the laws and constitution are especially to be considered, and when these fail us we must resort to the principles by which they are governed. But we must always remember that the court cannot make the law; it can only declare it. If within its proper scope any change is desired in its rules, other than those of procedure it must be made by the legislative department. The Lottawanna, 21 Wall. 576, 577. The supreme court, in The Plymouth, 3 Wall. 20, discusses this question. A steamer anchored beside a wharf on a navigable stream took fire from the negligence of her crew. The fire communicated itself to the wharf, and consumed several large package houses thereon, with their valuable contents stored therein. The parties damaged filed a libel against the steamer in rem. The case was most ably and fully argued in the supreme court. The counsel for the libelant presented every view in favor of the jurisdiction which can be presented in a clear, precise, and elegant argument. The libel was dismissed (Mr. Justice Nelson speaking for a unanimous court) on the ground that the injury complained of occurred on the land. The opinion responding to the argument says: 'We can give 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 of a vessel, except as evidence that it originated on navigable waters,-- the Chicago river; and, as we have seen, the simple fact that it originated there, but the whole damage done upon 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. ' In other words, the cause of action is the injury inflicted on property on land. But for this injury, the action could not lie. The injury being on land, admiralty has no jurisdiction. In Johnson v. Elevator Co., 119 U.S. 397, 7 S.Ct. 254, the jib boom of a vessel in tow of a tug on a navigable stream struck a building on the wharf through the negligence of the tug, causing great damage. A statute of Illinois, in which state the damage occurred, gave a right of action in personam secured by attachment, creating a lien on all water craft over five tons used in navigating the waters of that state, for all damages arising from injury done to persons or property by such water craft, whether aboard the vessel or not, arising from negligence. Action was brought in the state court against the vessel to enforce this lien. The lower court gave the relief sought, and the court of last resort sustained the decision. It was carried to the supreme court on writ of error. The question was on the validity of the statute. It is the settled doctrine of the supreme court that no state statute can authorize suits in rem in a state court against vessels when the causes in...
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