Admiralty Rules 12 to 20 inclusive allow, in certain cases, a
joinder of ship and freight, or ship and master, or alternative
actions against ship, master, or owner alone, but in no case within
the rules can ship and owner
Page 145 U. S. 336
be joined in the same libel; whether they may in cases not
falling within the rules is not decided.
A district court sitting in admiralty cannot entertain a libel
in rem for damages incurred by loss of life where, by the
local law, a right of action survives to the administrator or
relatives of the deceased but no lien is expressly created by the
act.
When the collision of two vessels causes great pain and
suffering to a passenger on one of them, followed so closely by
death as to be substantially contemporaneous with it, a libel
in rem, where a right of action exists under a state
statute, will not lie for those injuries, as distinguished from
death as a cause of action.
The Court stated the case as follows:
This was an appeal from a decree of the circuit court dismissing
a libel for damages sustained by the death of Ella Barton against
the steam tug
Corsair and her owners. Suit was begun on
April 5, 1888, by the filing of a libel by Edward S. Barton and
Elizabeth Barton, his wife, against the steam tug
Corsair
upon two distinct causes of action,
viz., one for damages
for the pains and suffering endured by Ella Barton, a daughter of
the said Elizabeth Barton, in a collision caused by the said tug
Corsair, on which the said Ella Barton was at the time a
passenger, running at full speed into the right bank of the
Mississippi River on the 14th of April, 1887 at a point about ten
miles above Algiers, which is opposite the City of New Orleans, in
consequence of which said tug filled with water and sank in ten
minutes. The other cause for action was for damages sustained by
the said Elizabeth Barton in the loss of the life of her said
daughter, alleged to have been caused by the negligence of the
officers and crew of the tug.
The right to bring this libel was alleged to have accrued under
Article 2315 of the Revised Civil Code of Louisiana, as amended in
1884, which reads as follows:
"Article 2315. Every act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it; the
right of this action shall survive, in case of death, in favor of
the minor children or widow of the deceased or either of them, and,
in default of these, in favor of
Page 145 U. S. 337
the surviving father and mother, or either of them, for the
space of one year from the death. The survivors above mentioned may
also recover the damages sustained by them by the death of the
parent or child or husband or wife, as the case may be."
By virtue of an attachment issued upon this libel, the vessel
was arrested April 5, 1888, and was released upon a stipulation
given by Samuel S. Brown and Harry Brown, by their duly authorized
agent, "claimants and owners of the steam tug
Corsair."
Upon the same day, they filed their claim as owners, averring that
"no other persons have any interest therein," and subsequently
filed exceptions to the libel upon the ground that it set forth no
cause of action cognizable by proceedings
in rem in
admiralty. Upon the hearing of these exceptions, the court,
"considering that no action
in rem lies in this case, .
. . ordered that the exception be sustained to the extent of
releasing the tug
Corsair from the seizure made under the
admiralty warrant issued in the cause, the court being of the
opinion that the statute of Louisiana creates no lien upon the
vessel."
It was
"further ordered that libelants be allowed to amend their
pleadings and proceed
in personam against the owners of
the vessel within ten days if they see fit."
On the following day, an amended libel was filed against Samuel
S. Brown and Harry Brown
in personam, as "owners of the
steam tug
Corsair," adopting and reiterating all the
allegations contained in the original libel and praying for a
citation against the owners, and for an attachment in case they
should not be found, against their goods and chattels, credits and
effects, wherever found.
Processes of arrest and attachment, in the form provided for by
Admiralty Rule 2, was allowed by the district judge and returned
served by the marshal by seizing and taking into his possession the
steam tug
Corsair and placing a keeper in charge, and
taking another bond from W. H. Brown & Sons with a surety,
conditioned that if "said owners of the tug
Corsair,
William H. Brown & Sons, Samuel S. Brown, and Harry Brown,
shall abide by all orders," etc. On the same day, a claim was filed
by Samuel S. Brown and Harry Brown
Page 145 U. S. 338
as sole owners of the tug
Corsair, etc. Exceptions were
filed to the amended libel by the claimants upon the ground that
process had not been served upon them; that a warrant of arrest
ought not to have issued under Admiralty Rule 7 without affidavit
or other proper proof showing the propriety thereof; that
proceedings
in rem and
in personam could not be
joined in the same libel; that
"there was no power in the court to allow the libelants to
change this suit from a suit
in rem to a suit
in
personam, and that the cause of action was barred by the
prescription of one year, according to the law of the state."
The cause was heard upon these exceptions and, the court
"being of the opinion that the suit and the amended libel is an
action under a special statute of the State of Louisiana subjecting
the owners to liability, whereas the action under the original
libel sprang from the general liability of ships arrested as
offending things under the admiralty law, that the amendment
introduced a new party, and since at the time of the amendment
being made, more than a year had elapsed,"
the exception was allowed, and the suit dismissed.
On appeal to the circuit court, this decree was affirmed, and an
appeal taken by the libelants to this Court.
Page 145 U. S. 341
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This was a libel
in rem against the tug
Corsair, by the mother of one Ella Barton, to recover for
the loss of her life in a collision alleged to have been occasioned
by the negligence of those in charge of the tug. Exceptions to this
libel were sustained, upon the ground that a suit
in rem
would not lie for injuries resulting in death, but leave was given
to amend by proceeding
in personam against the owners of
the tug. Exceptions were also filed to the amended libel upon the
ground that the amendment introduced a new party to the suit, and,
as against such party, the year had elapsed within which, under the
law, the action must be brought.
1. The decree of dismissal, so far as it operated upon the
amended libel, was proper for two reasons: first, the amendment to
the original libel, by introducing the owners of the tug as parties
defendants, was in violation of Admiralty Rule 15, providing
that
"in all suits for damage by collision, the libelant may proceed
against the ship and master, or against the ship alone, or against
the master or owner alone
in personam."
These rules, from 12 to 20, inclusive, were intended to
prescribe a remedy appropriate to each class of cases in
admiralty,
Page 145 U. S. 342
allowing in certain cases a joinder of ship and freight, or ship
and master, or alternative actions against the ship, master, or
owner alone. In no case, however, under these rules, except in
possessory suits, can the ship and owner be joined in the same
libel, though perhaps they may be in cases not falling within the
rules. These rules were adopted in pursuance of an Act of Congress
of August 23, 1842, 5 Sat. 516, authorizing this Court, among other
things, to prescribe "the forms and modes of proceedings to obtain
relief" in suits in admiralty, and have always been regarded as
having the force of law. They are little more than a recognition
and formulation of the previous practice of courts of admiralty in
this country and in England. They have come before this Court in
several instances, and have always been treated as obligatory.
Thus, in
Newell v.
Norton, 3 Wall. 257, the district court, in
accordance with the prayer of the libel, issued process
in
rem against the vessel for a collision and citations
in
personam against the master, owner, and pilot. On exceptions'
being filed for misjoinder, the court ruled that an action against
the owner and pilot could not be joined with the proceeding
in
rem, and that the libelant must elect which remedy he would
pursue, and he having elected to proceed
in rem against
the steamboat and
in personam against the master, the
libel was dismissed as to the owners and pilot and sustained as
against the steamboat and master. The allowance of this amendment
was held by this Court to be proper, Judge Grier observing,
however, that the objection that a libel
in rem against a
vessel and
in personam against the "owner" cannot be
joined was properly overruled. The word "owner" here is evidently a
misprint for "master," as appears from the syllabus and statement
of the case on page 259. Rule 19, prescribing the mode of
proceeding in cases of salvage, was discussed by Mr. Justice
Clifford in the case of
The Sabine, 101 U.
S. 384, in which he said that there was no authority for
holding that salvors may proceed against the ship and cargo
in
rem and
in personam against the consignees of the
cargo in the same libel, as the rule gave only an alternative
remedy
in rem against the property saved, or
in
personam against the
Page 145 U. S. 343
party at whose request or for whose benefit the service had been
performed. He found there was no well considered authority which
gave any countenance to the theory that the two modes of proceeding
in rem against the ship and cargo, and
in
personam against the owners of the same, might be joined in
the same libel, citing
The Boston, 1 Sum. 328, and
The
Hope, 3 C. Rob. 215. He spoke of the nineteenth rule as
"expressed throughout in the disjunctive form, and plainly
requires the action, if against the property saved or the proceeds
thereof, the be
in rem, the alternative clause clearly
referring to a case where the property saved has been sold, and the
proceeds of the sale have been deposited in the registry of the
court."
A like construction has uniformly been given to this rule by the
circuit and district courts.
The Richard Doane, 2 Benedict
111 (MR. JUSTICE BLATCHFORD);
The Zodiac, 5 F. 220, 223
(Judge Choate);
Insurance Co. v. Alexandre, 16 F. 279
(Judge Brown);
The Young American, Brown's Admiralty 462.
Judge Longyear's citations in the last case intimate that a similar
practice prevailed in England at least until the adoption of the
Judicature Act. 2 Conkling's Admiralty 43; 2 Parsons' Shipping and
Admiralty 378.
Second. If the so-called "amended libel" be considered as an
independent libel against the owners
in personam, then it
is clearly defective in failing to aver that the respondents were
the owners of the tug at the time of the accident.
2. An important question arises in connection with the dismissal
of the original libel which has never been squarely presented to
this Court before, and that is as to the power of the district
court to entertain a libel
in rem for damages incurred by
loss of life where by the local law a right of action survives to
the administrator or relatives of the deceased, but no lien is
expressly created by the act. A similar question arose in the case
of
Ex Parte Gordon, 104 U. S. 515,
where a writ of prohibition was applied for to enjoin the
prosecution of an action
in rem for loss of life, but the
writ was denied upon the ground that the liability was within the
jurisdiction of
Page 145 U. S. 344
the district court to decide, and any error it might commit in
this particular could only be corrected by appeal. Subsequently, in
the case of
The Harrisburg, 119 U.
S. 199, it was held that in the absence of an act of
Congress or a state statute giving a right of action therefor, a
suit in admiralty could not be maintained to recover damages for
the death of a human being caused by negligence. This was a mere
application to the court of admiralty of a principle which had been
announced by this Court as applicable to courts of common law in
Insurance Co. v. Brame, 95 U. S. 754. The
Harrisburg was a Pennsylvania vessel, and the collision
occurred in the waters of Massachusetts, both of which states gave
a remedy by civil action, with a proviso that such action should be
brought within one year after the death, and while the question of
the right to sue
in rem for the recovery of such damages,
when an action at law had been given therefor by the state statute,
was presented in that case, it was not decided, since the suit was
not begun until nearly five years after the death, and the case
went off upon that ground.
Prior to this decision, a number of libels both
in rem
and
in personam had been brought for loss of life in the
courts of different districts, and, as a rule, the liability was
held to exist, but the question whether such liability should be
enforced
in rem or
in personam does not seem to
have been discussed except in the cases of
The Sylvan
Glen, 9 F. 335, and
The Manhasset, 18 F. 918, in one
of which Judge Benedict, and in the other Judge Hughes, held that
while the state statute created a right, it did not create a lien,
and that a libel
in rem could not be maintained. Since the
decision in the
Harrisburg case, that no libel can lie
except where a right to sue is given by a local statute, the
question has been presented only in the case of
The North
Cambria, 40 F. 655, in which Judge Butler adopted the views
expressed in
The Sylvan Glen and
The Manhassett.
In
The Oregon, 45 F. 62, a lien was given by the state
statute, and was enforced in the admiralty.
A similar question under Lord Campbell's Act, allowing damages
to be recovered "whensoever the death of a person
Page 145 U. S. 345
shall be caused by wrongful act, neglect, or default," has been
the subject of much discussion in the courts of England. By the
Admiralty Court Act of 1861, § 7, jurisdiction was given to
the High Court of Admiralty over "any claim for damage done by any
ship," and by § 35,
"the jurisdiction conferred by this act on the High Court of
Admiralty may be exercised either by proceedings
in rem or
by proceedings
in personam."
Giving a construction to these provisions, it was held by Sir
Robert Phillimore in 1867, in
The Sylph, L.R. 2 Ad. &
Ec. 24, that personal injuries were included by the words "damage
done by a ship," and that proceedings
in rem might be
taken for damages occasioned by such injuries. In the subsequent
case of
The Guldfaxe, L.R. 2 Ad. & Ec. 325, the same
rule was applied to a suit for damages instituted by the personal
representatives of a seaman who had been killed in a collision.
This was subsequently affirmed in
The Explorer, L.R. 3 Ad.
& Ec. 289, decided in 1870. The same question came before the
court of Queen's Bench upon an application for a writ of
prohibition in the case of
Smith v. Brown, L.R. 6 Q.B. 729
(in 1871), wherein it was held that the word "damage" did not
include loss of life and personal injury, and that the admiralty
court act conferred no jurisdiction upon the high court of
admiralty to entertain a suit under Lord Campbell's act. The
judgment of the court in this case was delivered by Lord Chief
Justice Cockburn, and concurred in with some doubt by Mr. Justice
Blackburn. Notwithstanding this prohibition, however, the Court of
Admiralty continued to assume jurisdiction of actions
in
rem brought by the personal representatives of a deceased
person. This appears from the case of
The Franconia, 2
P.D. 163, Sir Robert Phillimore being of the opinion that he was
bound by the case of
The Beta, L.R. 2 P.C. 447, in which
the Judicial Committee of the Privy Council had held that the word
"damage" referred to injuries to the person as well as to property.
On appeal to the Court of Appeal, his judgment was affirmed by a
divided court. The question was again raised before the Admiralty
Division of the High Court of Justice, in the case of
The Vera
Cruz, 9 P.D. 88, in
Page 145 U. S. 346
which Mr. Justice Butt did not discuss the question, but held,
in deference to the previous decisions of Dr. Phillimore, that an
action
in rem would lie by the widow and administratrix of
the master of a British schooner against the
Vera Cruz,
and that the plaintiff should recover a moiety of the damage she
had sustained, both vessels being adjudged to be in fault. On
appeal, the Court of Appeal, 9 P.D. 96, held that it was not bound
by its former decision by a divided court in the case of
The
Franconia, and reversed the judgment of the Admiralty
Division. The case was again appealed to the House of Lords, and
the judgment of the court below was affirmed. 10 App.Cas. 59,
65-67, 73. Lord Chancellor Selborne, in delivering the opinion,
held that the thirty-fifth section of the Admiralty Court Act,
above cited, showed that
"while an option to proceed
in rem or
in
personam is given as to the jurisdiction conferred by the act,
yet from the very nature of such an option, every case provided for
by the act is regarded as a proper case for a proceeding
in
rem, and accordingly the appellant, considering that the
seventh section brought cases under Lord Campbell's Act within the
purview of the admiralty jurisdiction, justly upon that hypothesis
held it to mean such actions as were capable of being brought by a
proceeding like the present
in rem, and if the action
cannot be so brought, then I apprehend it will follow,
ex
converso, that the seventh section does not extend to this
description of claim. . . . No one can say,"
said he,
"that Lord Campbell's act relates expressly to claims for damage
done by ships, and this section in the act of 1861 relates to that
and to nothing else. . . . Every word of that legislation [Lord
Campbell's Act] being, as it appears to me, legislation for the
general case, and not for particular injury by ships, points to a
common law action, points to a personal liability and a personal
right to recover, and is absolutely at variance with the notion of
a proceeding
in rem."
Lord Watson, concurring, said:
"I entertain no doubt that a right of action such as is given by
Lord Campbell's act in a case like the present is not a 'claim for
damage done by a ship' within the meaning of the seventh section of
the Admiralty Court Act, 1861. "
Page 145 U. S. 347
This is the last expression of the highest court of England upon
the question of proceeding
in rem under Lord Campbell's
Act, and must be regarded as settling the law of that country that
such jurisdiction is not conferred. That, notwithstanding this, an
action
in personam will lie in the Admiralty Division is
evident from the case of
The Bernina, 11 P.D. 31, in which
the Admiralty took cognizance of the case, and upon appeal to the
Court of Appeal, 12 P.D. 58, and subsequently to the House of
Lords, 13 App.Cas. 1, the jurisdiction was sustained, a trial by
jury being now permitted in that court, although the main question
discussed was as to the principle involved in the case of
Thorogood v. Bryan, 8 C. B. 115, which was overruled.
While these cases turn upon the construction of the English acts,
the courts have been guided in such construction by principles
which are of general application both in this country and in
England.
A maritime lien is said by writers upon maritime law to be the
foundation of every proceeding
in rem in the 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 of the vessel -- 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 upon the offending
thing. If it merely gives a right of action
in personam
for a cause of action of a maritime nature, the district court may
administer the law by proceedings
in personam, as was done
with a claim for half pilotage dues under the law of New York in
the case of
Ex Parte
McNiel, 13 Wall. 237, but, unless a lien be given
by the local law, there is no lien to enforce by proceedings
in
rem in the Court of Admiralty.
The Louisiana act declares in substance that the right of action
for every act of negligence which causes damage to another shall
survive, in case of death, in favor of the minor children or widow
of the deceased, and in default of these, in favor of the surviving
father and mother, and that such survivors
Page 145 U. S. 348
may also recover the damages sustained by them by the death of
the parent, child, husband, or wife. Evidently nothing more is here
contemplated than an ordinary action according to the course of the
law as it is administered in Louisiana. There is no intimation of a
lien or privilege upon the offending thing, which, as we have
already held, is necessary to give a court of admiralty
jurisdiction to proceed
in rem.
3. We do not find it necessary to express an opinion whether a
libel
in rem will lie for injuries suffered by the
deceased before her death, a right of action for which passes to
the immediate relatives under the Louisiana statute, since there is
no proper averment in the libel to show that such damages were
suffered. It is true that the seventh paragraph alleges that from
the time the
"tug struck the bank of the river to the time she sunk [about 10
minutes] and the said Ella Barton was drowned, she, said Ella
Barton, suffered great mental and physical pains and shock, and
endured the tortures and agonies of death."
But there is no averment from which we can gather that these
pains and sufferings were not substantially contemporaneous with
her death, and inseparable as matter of law from it.
Kearney v.
Boston & Worcester Railroad, 9 Cush. 108;
Hollenbeck
v. Berkshire Railroad Co., 9 Cush. 478;
Kennedy v.
Standard Sugar Refinery, 125 Mass. 90;
Moran v.
Hollings, 125 Mass. 93. Had she suffered bodily wounds and
bruises, from the result of which she lingered, and ultimately
died, it is possible that her sufferings during her illness would
give a separate cause of action; but the very fact that she died by
drowning indicates that her sufferings must have been brief, and,
in law, a mere incident to her death. Her fright for a few minutes
is too unsubstantial a basis for a separate estimation of
damages.
The decree of the court below is therefore
Affirmed.
