United States v. Cornell Steamboat Company

• Citation: 26 S.Ct. 648,202 U.S. 184,50 L.Ed. 987
• Decision Date: 14 May 1906
• Docket Number: No. 239,239
• Parties: UNITED STATES, Petitioner , v. CORNELL STEAMBOAT COMPANY
• Court: United States Supreme Court

202 U.S. 184

26 S.Ct. 648

50 L.Ed. 987

UNITED STATES, Petitioner,

v CORNELL STEAMBOAT COMPANY.

No. 239.

Argued April 20, 1906.

Decided May 14, 1906.

This was a petition under what is known as the Tucker act, defining the jurisdiction of the court of claims, to recover salvage upon the duties on 1,883 bags of sugar, cargo of the lighter Bangor.

The facts agreed upon and found by the court are substantially as follows:

The steamboat company, a New York corporation, and owner of the steam tug R. G. Townsend, at great risk and peril to the tug, saved a certain lot of 1,883 bags of sugar on board of a lighter called the Bangor, in the waters of the port

of New York, which was in danger of being destroyed by fire. The sugar had been imported from a foreign country, was subject to duty under the laws of the United States, and at the time of the fire had not been delivered to the consignees, and was still in the possession and control of the customs officers. The duties on this sugar, amounting to $6,000, had been paid to the government.

Petitioner filed a libel in the district court against the cargo to recover salvage compensation for services rendered in saving the sugar. The case resulted in a decree awarding the petitioner salvage, amounting to 10 per cent of the value of the property saved, viz., $1,274.03. 108 Fed. 277. In fixing this sum, the district court considered the invoice value of the sugar only, excluding salvage upon the duties saved to the United States by the salving services.

Upon these facts the district court awarded the petitioner 10 per cent upon the amount of the duties saved to the United States, namely, $600, with clerk's fees, $3.60. 130 Fed. 480. The circuit court of appeals affirmed this judgment (137 Fed. 455), whereupon the United States applied for this writ of certiorari.

Assistant Attorney General McReynolds for petitioner.

[Argument of Counsel from pages 185-187 intentionally omitted] Mr. R. D. Benedict and Messrs. Benedict & Benedict for respondent.

[Text intentionally omitted]

[Argument of Counsel from 187 intentionally omitted] Mr. Justice Brown delivered the opinion of the court:

This is practically a libel in personam for the salvage of government property, viz., of $6,000 duties collected by the government upon a cargo of sugar saved from loss by fire while on board a lighter, in the harbor of New York.

The claim is prosecuted under what is known as the Tucker act (24 Stat. at L. 505, chap. 359, U. S. Comp. Stat. 1901, pp. 752, 753), the 1st section of which declares that 'the court of claims shall have jurisdiction to hear and determine . . . all claims founded upon the Constitution of the United States, or any law of Congress, . . . or upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable.'

By the 2d section concurrent jurisdiction with the court of claims was vested in the district courts as to all claims not exceeding $1,000.

It is at least doubtful whether an ordinary claim for salvage can be said to arise upon contract, inasmuch as such services are rendered voluntarily, frequently in the absence of the owner of the property, and usually without a definite agreement for compensation. The Liffey, 6 Asp. Mar. L. Cas. 255; Five Steel Barges, L. R. 15 Prob. Div. 142. A claim for salvage may undoubtedly be founded upon an express contract, but where the services are rendered, as in this case, without request of an officer of the government, and particularly where they are incidental to services rendered in the saving of private property, we do not think the claim can be said to arise upon any contract, express or implied, with the government of the United States. But the claim may properly be said to be one for unliquidated damages in a case 'not sounding in tort,' in respect of which the party would be entitled to redress in a court of admiralty, if the United States were suable.

The Tucker act also resolves any doubt which might arise as to the responsibility of government property for salvage service, since it was the very object of the act to give a direct recourse against the government. Indeed, that question was settled by this court in 1869, in the case of The Davis (United States v. Douglas) 10 Wall. 15, 19 L. ed. 875, in which personal property of the United States, in transit from one port to another, was held liable to a lien for salvage services rendered in saving the property, following the rule laid down in England in The Marquis of Huntly, 3 Hagg. Adm. 247, and The Lord Nelson, Edw. Adm. 79. The same rule was adopted by Mr. Justice Story in United States v. Wilder, 3 Sumn. 308, Fed. Cas. No. 16,694, although both in England and in this country vessels belonging to the United States, or to a foreign sovereign, and engaged in the public service, are exempt from seizure. The Exchange v. M'Faddon, 7 Cranch, 116, 3 L. ed. 287; The Charkieh, L. R. 4 Adm. & Eccl. 59; The Constitution, L. R. 4 Prob. Div. 39; The Parlement Belge, 4 Asp. Mar. L. Cas. 234, L. R. 5 Prob. Div. 197.

The fact, however, that the property saved is not within the physical possession of the court, but is of an intangible nature, like freight or customs dues, does not prevent the maintenance of a libel in personam against the owner. Indeed, general admiralty rule No. 19 provides that 'in all suits for salvage the suit may be in rem . . . or in personam against the party at whose request, and for whose benefit, the salvage services have been performed.' In the case of freight the practice is to require its payment into court. The Leo Lush. 444.

At the basis of the claim in this case lies the proposition that, although the duties had been actually paid before the services had been rendered, the Secretary of the Treasury was authorized to refund duties upon so much of the sugar as would have been lost by the fire had not the cargo been rescued by the salvors. The obligation to refund such duties is contained in the following sections of the Revised Statutes:

'Sec. 2984 (U. S. Comp. Stat. 1901, p. 1958). The Secretary of the Treasury is hereby authorized, upon production of satisfactory proof to him of the actual [industry] [injury] or destruction, in whole or in part, of any merchandise, by accidental fire or other casualty, while the same remained in the custody of the officers of the customs in any public or private warehouse under bond, . . . or while in the custody of the officers of the customs, and not in bond, or while within the limits of any port of entry, and before the same have been landed under the supervision of the officers of the customs, to abate or refund, as the case may be, out of any moneys in the Treasury not otherwise appropriated, the amount of impost duties paid or accruing thereupon, and likewise to cancel any warehouse bond or bonds, or enter satisfaction thereon in whole or in part as the case may be.'

Provision for such abatements or refunds is made in:

'Sec. 3689 (U. S. Comp. Stat. 1901, p. 2460). There are appropriated, out of any moneys in the Treasury not otherwise appropriated, for the purposes...