William Post and Others, Claimants of Portion of the Cargo of the Ship Richmond, Appellants v. John Jones and Others, Libellants

• Decision Date: 01 December 1856
• Citation: 15 L.Ed. 618,19 How. 150,60 U.S. 150
• Parties: WILLIAM E. POST AND OTHERS, CLAIMANTS OF A PORTION OF THE CARGO OF THE SHIP RICHMOND, APPELLANTS, v. JOHN H. JONES AND OTHERS, LIBELLANTS
• Court: U.S. Supreme Court

60 U.S. 150

19 How. 150

15 L.Ed. 618

WILLIAM E. POST AND OTHERS, CLAIMANTS OF A PORTION OF

THE CARGO OF THE SHIP RICHMOND, APPELLANTS,

v. JOHN H. JONES AND OTHERS, LIBELLANTS.

December Term, 1856

THIS was an appeal from the Circuit Court of the United States for the southern district of New York, sitting in admiralty.

It was a libel filed by the owners of the ship Richmond and cargo, under circumstances which are particularly stated in the opinion of the court.

The District Court dismissed the libel, thereby affirming the sales.

The Circuit Court reversed this decree, and declared the

sales invalid, but that the respondents were entitled to a moiety of the net proceeds, in the New York market, of the articles brought in their respective ships, and sold by the said respondents, respectively; and that they pay to the owners of the Richmond the other moiety of the said proceeds, with interest, to be computed at the rate of seven per cent. per annum, from the dates of the sales of the said articles.

The claimants appealed to this court.

It was argued by Mr. O'Connor for the appellants, and Mr. Lord for the appellees.

As this case involved some very important points of law, with respect to the rights of captains of vessels upon the ocean, and also the rights and duties of salvors, the reporter thinks it proper to take an extended view of the arguments of counsel, although they sometimes refer to depositions and facts which are not especially mentioned in the narrative, which is given in the opinion of the court.

Mr. O'Connor, for the appellants, made the following points:

First Point.—The decree of the Circuit Court cannot be sustained, unless, by an unbending rule which admits of no exception or qualification, the power of the master to sell is absolutely limited to a sale by auction, with the advantage of free competition between rival purchasers. If, in any case, or under any circumstances, he may sell by private contract and to a single purchaser, the decree is erroneous.

I. The authority of the master to sell in cases of extreme necessity like the present, is, as a general proposition, definitively settled. Even where there is only 'a probability of loss, and it is made more hazardous by every day's delay,' to act promptly, and thereby 'to save something for the benefit of all concerned, though but little may be saved,' is his imperative duty. (Abbott on shipping, 5 Am. ed., pp. 14, 19; Ib., note to page 19; Brig Sarah Ann, 2 Sumner, 215; New England Ins. Co. v. Sarah Ann, 13 Peters, 387.)

II. The master of the Richmond had no other resort, for the purpose of saving anything, than the sale which he made.

1. Even if transportation to the shore was practicable, every witness who was examined testifies that preservation there, through the long winter then approaching, was not possible. The faint intimations to the contrary by Reeve, and those still fainter put forth by Cherry, scarcely form an exception to the universality of this opinion.

2. That freighting or salvage services were unknown in those regions, and would not have been undertaken by any one, is still more distinctly established by the proofs. It rests not merely on the uniform opinion of experts, the absence of practice, the extreme remoteness of the scene from the theatre of any human action, except catching whales; for it is proven by the form of the insurance policies used by American whalers, the only civilized visiters of the territory. (1 Seward's Works, p. 242; The Boston, 1 Sumner, 335, 336; Elizabeth and Jane, Ware, 38.)

a. The freight, even as far as the Sandwich Islands, according to the best guess the libellants could elicit from any witness, if obtained by a miracle, would have exceeded the alleged maximum allowance in salvage cases.

b. A salvage service would involve a transportation over 25,000 miles for adjudication. A judgment in rem in a foreign intermediate admiralty would not be regular or binding; nor, if so, would it be beneficial to these libellants. (The Hamilton, 3 Hagg, 168.)

III. There was not want of ordinary judgment or prudence in the manner of the sale.

1. He gave notice to every vessel within reach; and, considering the season, the little experience yet had in those seas in respect to the time of its closing, and the great danger there was that the Richmond might go to pieces in case of any delay, prudence dictated the earliest possible action.

a. The experts differ much as to the time of the season closing.

b. Even Reeve deemed it unsafe to stay longer.

c. P. Winters's anxiety to get cargo on board of the Frith for safety even before the sale is manifest.

2. The event is not the proper test, but if applied here it would favor the master's decision. He could not have induced these three ships to lie idle, and to lie still in an unlucky spot until the 18th of August, waiting for customers. And if he had the means of working this singular achievement, there is no satisfactory evidence that he could have drummed up a sufficient company to make an auction such as the decree below requires.

3. The weight of evidence is, that as much was obtained as could have been gotten if there were numerous bidders.

4. The want of precision and exactitude as to weight and measure, in a place where neither weights nor measures existed or were in use, is an unimportant circumstance.

5. Dispensing with settlement or payment till the meeting at Sandwich Islands was natural, and indeed necessary; for money was not to be had.

6. The difference in value between oil and bone, which might have led to a more profitable arrangement, did not at the time occur to any one concerned in these transactions. It is not necessary to the validity of the sale, that in every detail the most subtle contrivances ingenuity can suggest for attaining a profitable result should have been resorted to.

IV. There is not the remotest ground for imputing fraud or ill motive to any one concerned.

1. That Philander Winters was in failing health, apprehensive of approaching death, and susceptible of fraternal tenderness, are not circumstances to excite suspicion of his motives.

2. The difference in age and experience between the brothers was trivial. There was evidently a total absence of concert between the three purchasing masters; and the weight of evidence is, that the Junior got the greatest amount of bone.

3. The relation between Jonas and Philander Winters, coupled with the omission of Jonas to secure for himself any advantage over the others, and his letting the wreck go to a stranger for $5, conclusively repel every suggestion of this kind. They also present a vivid picture of the extraordinary condition of things produced by a shipwreck in the Arctic regions.

4. The small price given for the wreck is like what frequently happens at regular auction sales with full competition. (7 Law Reporter, 378; 6 Cowen's Rep., 271.)

5. The resort to the forms of an auction may indeed have been idle, as there were not purchasers enough to take the whole, and so, necessarily, no competition; but, pursuing imitatively the practice in the world, is not alone adequate proof that these Polar wanderers were seeking to color the transaction.

V. None of the preceding propositions are affected by the testimony of Reeve and Cherry.

1. They are interested in the result, and actual prosecutors of the claim. Their testimony should be wholly rejected as incompetent, because of their interest. (The Boston, 1 Sumner, 328.)

2. They are evidently uncandid, self-impeached in a considerable degree, and are contradicted in many particulars. (The Jane, 2 Hagg, 338; The Boston, 1 Sumner, 345.)

Second Point.—The decree of the Circuit Court appears to borrow some of its principles from analogy to the position, assumed as law, that a contract between salvors and the salved, made at sea, is necessarily and per se void. Such is not the case; and the most that can be said on that head is, that the nature of the subject gives apparently more occasion to the 'chancery of the sea' than the chancery of the land, to vacate oppressive and unreasonable contracts.

1. There are two obiter dicta to that effect in 1 Bee, (pp. 136, 139;) but the English authorities, and those in the American admiralty, including this court, are merely that such agreements must appear to be fair and reasonable. (The True Blue, 2 W. Rob., 176; The Graces, 2 W. Rob., 294; The Westminster, 1 W. Rob., 235; The Industry, 3 Hogg, 205; The Mulgrave, 2 Hogg, 77; The Emulous, 1 Sumner, 210, 211; Houseman v. Sch. North Carolina, 15 Peters, 45.)

Third Point.—The libellants err in supposing that the law of nature, which enforces the saving of life as a duty, has any force in relation to the saving of property. (The Boston, 1 Summer, 335, 336; The Zephyr, 2 Hogg, 43; The Ganges, 1 Notes of Cases, 87; The Margaret, 2 Hagg, 48, note.)

Fourth Point.—It is not, as claimed by the libellants, a fixed and invariable rule, that salvage, in cases of derelict, shall not exceed one-half the value; and, if such appeared to be the rule in all former decisions, the present is a new case in all its features, and would require a higher compensation.

I. This moiety practice has a very barbarous origin, and is entitled to no respect. The authorities all show that it has no binding force, the allowance being merely discretionary. (The Aquila, 1 C. Rob., 41, 47, and note; 1 Sumner, 214, 215; 1 Story, 323; 1 Ware, 39; The Huntress, 1 Wallace, jr., 70.)

II. The instances of salvage service to be found in the books are confined to the highways of commerce, and within comparatively narrow spaces.

There is no recorded judgment upon the salvage to be allowed for rescuing property from shipwreck, under circumstances at all comparable with the present case. (The Martha, 3 Hagg, 434; Elliotta, 2 Dodson, 75; The Effort, 3 Hagg, 166; L'Esperance, 1 Dodson, 49; Sprague v. 140 Bbls. Flour, 1 Story, 197; Peisch v. Ware, 4...