1. Parties excepting to a report of a commissioner in admiralty
proceedings should state with reasonable precision the grounds of
their exceptions, with the mention of such other particulars as
will enable the court to ascertain, without unreasonable
examination of the record, what the basis of the exception is.
Ex. gr., if the exception be that the commissioner
received "improper and immaterial evidence," the exception should
show what the evidence was. If that "he had no evidence to justify
his report," it should set forth what evidence he did have. If that
he admitted the evidence of "witnesses who were not competent," it
should give their names, and specify why they were incompetent,
what they swore to, and why their evidence ought to have been
rejected.
2. This same necessity for specification it is declared --
though the case was not decided on that ground, the point not
having been raised on argument -- exists in a high degree in regard
to an
answer put in to an admiralty
Page 68 U. S. 44
claim, which answer ought to be full, explicit, and distinct,
and hence a defense to a libel for collision which sets forth that
the injured vessel "lay in an improper manner, and in an improper
place," without showing in any respect wherein the manner, or why
the place was improper, is insufficient,
it seems, as
being too indefinite.
3. Objections to want of proper parties being matter which
should be taken in the court below, a party cannot, in an admiralty
proceeding by the owners of a vessel, to recover damages for a
cargo lost on their ship by collision, object here for the first
time that the owners of the vessel were not the owners of the
cargo, and therefore that they cannot sustain the libel.
Independently of this, as vessels engaged in transporting
merchandise from port to port are "carriers" -- if not exactly
"common carriers" -- and as carriers are liable for its proper
custody, transport and delivery, so that nothing but the excepted
perils of the sea, the act of God, or public enemies, can discharge
them -- it would seem that they might sustain the action within the
principle of the
Propeller
Commerce, 1 Black 582.
Appeal from a decree of the Circuit Court of the United States
for the Southern District of New York in a cause of collision, the
case being thus:
La Tourette & Butler, appellees in the case, were owners of
the schooner
William Clark and filed their libel in the
district court of the United States for that district, alleging,
among other things, that on the 26th of January, 1860, the schooner
of the claimants, called the
Commander-in-chief, while
their schooner lay safely at anchor to the north and east
of Little Egg Harbor, and about a half a mile from the New Jersey
shore, came down, under full sail, and ran into her, cutting her
through, abreast of the main chains. The allegation was that the
William Clark sank within fifteen minutes after the collision, and
the claim was for a total loss
both of the vessel
and
the cargo. The collision occurred about ten o'clock in the
evening. The libellants alleged that it was a clear moonlight
night; that their schooner was properly anchored, and had a
competent watch on deck, and a bright light set in the rigging, and
that the collision occurred in consequence of the negligence,
mismanagement and unseamanlike conduct of those in charge of the
vessel of the respondents, and without any fault on the part of
those in charge of their own vessel.
Page 68 U. S. 45
The answer of the claimants, in general terms, denied the
material matters alleged in the libel. A separate denial of each
article was interposed, and the substance of the defense was that
the collision, if it occurred at the time and place alleged in the
libel, was occasioned through the fault of the officers and crew of
the vessel of the
libellants, the respondents alleging, in
the
general terms quoted, that the vessel of the
libellants
"
lay in an improper manner and in an improper place,
without a light or other necessary precautions, and that the
collision, so far as their vessel was concerned, was
unavoidable."
Testimony was taken by both parties. It showed that the schooner
of the libellants, bound from Indian River, in Delaware, to the
City of New York, anchored a mile or two to the northward of Little
Egg Harbor light
(a place where vessels frequently sail),
in consequence of the severity of the cold, and because it was
blowing so heavily that those in charge of her did not deem it safe
to proceed on the voyage. It was proved, however, that the
anchorage was not an improper one, and that a number of vessels
were anchored still further in the general track, towards the
south. The master of the
Commander-in-chief swore it was a
moonlight night -- very cold.
"There was a vapor on the water. Anything above the vapor you
could see a good way; but a vessel's hull you could not see beyond
a short distance.
You could see a light half a mile."
He then proceeded to state some facts from which the conclusion
was inferable that there was no light, but the proofs of the other
side were full
that there was a light and that it was
suspended in the rigging of the injured vessel, some twelve feet
above the deck, and moreover that the mate was on deck as a
lookout.
After a full hearing, an interlocutory decree was entered in
favor of the libellants and the cause referred to a commissioner to
ascertain and compute the amount due to the libellants for the
actual damages to the vessel and cargo occasioned by the collision.
The commissioner having made and returned his report, by which he
gave a specific sum as the value of the vessel, and an additional
specific sum
as the value
Page 68 U. S. 46
of the cargo, the respondents filed nine exceptions to
the report as follows:
1. "That the commissioner allowed improper and immaterial
evidence to be put in by libellants" the exception, however, not
stating what the evidence was.
2. "That he had no evidence to justify his report," the
exception not setting forth what evidence he did have.
3. "That he reported more than the evidence warranted," the
exception stating nothing further.
4. That he had "failed to report the principle of the
decree."
5. That he "admitted evidence of witnesses as to the value of
the vessel on the part of the libellant, who were not competent as
to that fact, and whose evidence should have been rejected," no
names of witnesses being given nor any specification of the reasons
why they were incompetent, nor what they swore to, nor why their
evidence should have been rejected.
6. That he
"reported the value of the cargo as part of the
damage," when the libellant is not entitled to recover
therefor.
7. That the evidence showed the vessel to be of far less value
than the report made it.
8. That the loss of the vessel was not the necessary or actual
results of the injury to the vessel.
9. That the loss is shown to have been incurred by the fault of
the libellant or his agents.
The court, after full argument, overruled these exceptions,
including the sixth, and entered a final decree in favor of the
libellants for the amounts reported. Appeal was then taken by the
respondents to the circuit court, where the parties were again
fully heard and the decree of the district court affirmed,
whereupon the respondents appealed to this Court, and now sought to
reverse the last-named decree.
Page 68 U. S. 48
MR. JUSTICE CLIFFORD, after stating the case, delivered the
opinion of the Court:
1. Persons appearing as claimants, or for the purpose of making
defense in causes civil and maritime, are required, under all
circumstances, to answer on oath or solemn affirmation, and the
authorities are unanimous that the answer should be full, explicit,
and distinct, to each separate article and allegation of the libel.
[
Footnote 1] Claimants merely
allege in this case that the vessel of the libellants lay in an
improper manner and in an improper place, but the answer does not
set forth or in any form point out in what manner she lay or in
what respect the manner was improper, nor is there
Page 68 U. S. 49
any definite description of the place where she lay, or any
reasons assigned why it was an improper anchorage. Explanations in
that behalf are entirely wanting; nor is it possible to determine
from the allegations of the answer whether the respondents intended
to set up that the place selected as an anchorage was an usual one,
and that those in charge of their vessel were thereby misled, or
whether that part of the answer was intended as an averment that
she lay too near to or too far distant from the shore, and more or
less in the pathway of navigation than was customary or necessary.
Such indefinite allegations are hardly sufficient to constitute a
valid defense; but as no exception was entered to the answer in the
district court, and inasmuch as this point was not made here in
argument, perhaps it is but right that the decision of the case
should true upon the merits of the controversy.
2. Evidence shows that the schooner of the libellants was bound
on a voyage from Indian River, in the State of Delaware, to the
port of New York; that she anchored a mile or two to the northward
of Little Egg Harbor light in consequence of the severity of the
cold and because it was blowing so heavily that those in charge of
her did not deem it safe to attempt to proceed on the voyage.
Proofs also show that the anchorage was a proper one and that a
number of vessels were anchored still farther to the south. She had
a good light suspended in the rigging, and the mate was on deck as
a lookout. Suggestion is made that there was some mist or vapor on
the water, but if it were conceded that the testimony establishes
that fact, still it could not benefit the respondents as a defense,
because the proofs are full to the point that it was a clear
moonlight night and that the light suspended in the rigging of the
schooner was some twelve feet above the deck of the vessel.
Witnesses for the respondents, or some of them, testify that they
did not see the light until just before the collision occurred, and
the inference is attempted to be drawn from that fact that the
light was in an improper place; but the weight of the evidence
satisfies the court that it might easily have been seen if
there
Page 68 U. S. 50
had been proper vigilance on the part of those in charge of the
respondents' vessel. Both the courts below held that the
respondents were in fault, and we entirely concur in that
opinion.
3. None of the exceptions to the report of the commissioner is
entitled to any consideration except the sixth.
First
exception was that the commissioner allowed improper and immaterial
evidence to be introduced by the libellants, but the exception is
not accompanied by any report of the evidence objected to, and of
course there is no means of determining whether it was proper or
improper.
Second exception was that the commissioner had
no evidence to justify his finding, which, without a report of the
facts, is quite too indefinite to be available for any purpose, and
the same remark applies to the
third and
fourth
exceptions, which need not be reproduced.
Fifth exception
was to the effect that witnesses were admitted to testify as to the
value of the vessel who were not competent, and whose evidence
should have been rejected, but the names of the witnesses are not
given, nor is it stated why they were incompetent, nor what their
testimony was, nor on what ground it is claimed that the testimony
should have been rejected. Suffice it to say that in the judgment
of this Court, these several exceptions are without merit, and were
properly overruled.
Sixth exception is to the effect that
the commissioner improperly reported the value of the cargo as part
of the damage when in point of fact the libellants were not
entitled to recover therefor. Report of commissioner shows that he
estimated the actual damage to the cargo as well as the actual
damage to the vessel, and the decree states that the report, as
made, was confirmed by the court. Taken together, therefore, the
report and decree affirm the principle that the libellants, under
the circumstances of this case, were entitled to recover both for
the damage to the vessel and cargo. Appellants insist that the
action of the court in confirming the report was erroneous, and
that the decree on that account should be reversed. Common
carriers, however, it is conceded, are liable for the safe custody,
due transport, and right delivery
Page 68 U. S. 51
of goods and merchandise entrusted to them to be conveyed from
one port or place to another, and where the owners of the ship or
vessel damaged by a collision sustain that relation to the cargo,
it is admitted that they may recover for its loss or injury in the
suit for the collision if the libel is properly framed and the
proofs sustain the charge. Admission to that effect could hardly
have been withheld, as it was so decided by this Court in the
recent case of the
Propeller Commerce, [
Footnote 2] to which reference was very
properly made. But it is contended that the decision in that case
was placed exclusively upon the ground that the lake boat
Isabella was a common carrier in the strict technical
sense, and the argument is that the schooner of the libellants was
not such a carrier, and, therefore, that the rule adopted in that
case cannot be applied in the case under consideration. Whether all
ships and vessels employed in transporting goods or merchandise
from port to port are, strictly speaking, common carriers or not it
is not necessary to determine in this case. Suffice it to say that
they are carriers, and as such are liable for the safe custody, due
transport, and right delivery of the goods or merchandise which
they receive and undertake to transport, and nothing can discharge
them from the obligation of the undertaking, as specified in the
bill of lading but the excepted perils, or the act of God, or the
public enemy. Liability, therefore, of the schooner of the
libellants as a carrier, was precisely the same as that of the lake
boat
Isabella in the case referred to, so that the rule
adopted in that case is fully applicable to the case at bar.
[
Footnote 3] Undoubtedly all
persons interested in a cause of collision may be joined in the
libel for the prosecution of their own claims and the protection of
their own interests. Owners of the vessel and the shippers of the
cargo, for example, and all other persons affected by the injury,
may be made parties to the suit, or it may be prosecuted by the
master as the agent of all concerned. Where it appears that the
party or parties named as libellants are competent to prosecute the
suit, the nonjoinder of
Page 68 U. S. 52
others having an interest in the controversy must be shown by
exception, and, if not made to appear in the court below, cannot be
made available as an original objection in the appellate tribunal.
Objections to parties or for the want of proper parties should be
made in the court below, where amendments may be granted in the
discretion of the court. Parties improperly joined may, on motion,
be stricken out, and new parties may be added by a supplemental
libel or petition. [
Footnote 4]
Service of regular process is a warning to all parties who have any
interest in the cause to come in and protect their interest, and
unless they do so, if due notice was given, they are bound by the
decree. [
Footnote 5] Amendments
are readily granted in the Admiralty Court, as carrying out the
maxim that all the world are parties to the proceeding; and if due
notice be given, and anyone interested fails to appear, he cannot
thereafter have any ground of complaint. Collision suits are
frequently prosecuted by the owners of the injured vessel for
damages to the cargo as well as to the vessel, and it does not
appear that any serious embarrassment has grown out of the
practice. Manifestly, where the prosecution is instituted by one or
more parties for themselves and others not named, it would be more
regular that it should be so averred in the libel; but as there can
be only one prosecution for the same collision, it is not perceived
that the omission of that averment can operate to the prejudice of
the claimant. [
Footnote 6]
Persons appearing as claimants may object to the want of proper
parties, and it may be that, if the exception is seasonably and
properly taken, the proceeding cannot be sustained. On that point,
however, we express no decided opinion, but leave the question to
be determined when it shall arise. Suit in this case was commenced
by the owners of the vessel, and no exception was taken to the
nonjoinder of the shippers of the cargo, either in the pleadings or
in any stage of the proceedings, prior to the appeal. Under these
circumstances, we are all of the
Page 68 U. S. 53
opinion that the objection must be overruled. [
Footnote 7] No inconvenience will result from
this rule to the claimants of the other vessel, and there will
still be sufficient power in the court to afford protection to the
rights of the shipper of the cargo, provided proper measures are
taken by him to assert his rights before the controversy is
completely ended. Where the suit is commenced by the owners of the
injured vessel, it is undoubtedly competent for the owners of the
cargo to petition to intervene for the protection of their
interests at any time before the fund is actually distributed and
paid out of the registry of the court. Our conclusion is that the
suit was well brought, and that it was well and properly prosecuted
in the name of the libellants. Case does not show that the
libellants are not the owners of the cargo, but if not, the real
owners thereof may still intervene.
The decree of the circuit court is therefore affirmed with
costs.
Decree accordingly.
[
Footnote 1]
3 Greenleaf on Evidence 398, 435.
[
Footnote 2]
66 U. S. 1 Black
582.
[
Footnote 3]
The Niagara v.
Cordes, 21 How. 26;
Clark v.
Barnwell, 12 How. 272.
[
Footnote 4]
Dunlap, Practice 87.
[
Footnote 5]
Benedict Admiralty § 364, p. 203;
The
Mary, 9 Cranch 114.
[
Footnote 6]
The Kalamazoo, 9 English Law & Equity Reports
557.
[
Footnote 7]
The Steamboat Narragansett, Olcott Adm.R. 255;
The
Iron Duke, 9 Jurist 476;
The Monticello v.
Mollison, 17 How. 155;
Fretz v.
Bull, 12 How. 466; Sedgwick on Damages, 3d ed.,
469; Mer.Shipp. by Maclachlan, 280;
Hay v. Le Leve, 2
Shaw's Appeal Cases 395;
The Petersfield, MS.Cs. temp.
Marriott.
