Sidebilder
PDF
ePub

we was taken to the supreme court of the committed in admitting certain evidence.

territory. In that court, as we have seen, the action of the trial court was reversed and decree rendered in favor of Mrs. Amy.

The assignments of error are twenty-four in number, and the argument by which their correctness is sought to be maintained has taken a much wider range than the condition of the record justifies. It is settled that on error or appeal to the supreme court of a territory this court is without power to reexamine the facts, and is confined to deter184]mining whether the court below erred in the conclusions of law deduced by it from the facts by it found, and to reviewing errors committed as to the admission or rejection of testimony when the action of the court in this regard has been duly excepted to, and the right to attack the same preserved on the record. Harrison v. Perea, 168 U. S. 311 [42: 478], and authorities there cited.

The findings of fact and conclusions of law of the supreme court are as follows:

"Eleventh. The court further finds that the said Jennie Amy was married to one Elliot Butterworth in 1875.

"That on the third day of September, 1879, the probate court of Washington county made and entered a decree of divorce, dissolving the bonds of matrimony theretofore existing between the said Jennie Amy and the said Elliot Butterworth, and absolutely releasing the said Jennie Amy and the said Elliot Butterworth from all the obligations of said marriage; that the said probate court so granting said decree of divorce was a court of competent jurisdiction and had jurisdiction of the subject-matter of said divorce action and of both the parties thereto.

"That the said defendant therein, Elliot Butterworth, had knowledge at the time of the said divorce proceedings and was duly served with process in said action.

"That the said Elliot Butterworth married a second wife on the 11th day of October, 1880, being the year after said decree of divorce was rendered; that his second wife is still living, and she and the said Elliot Butterworth are still husband and wife; that as the issue of said second marriage the said Elliot Butterworth and his present wife have seven children, ranging from two years to fifteen years old.

"That afterwards, to wit, on April 4, 1886, the said Jennie Amy, the claimant in this proceeding to the estate of the said Oscar A. Amy, deceased, was duly and lawfuny married to the said Oscar A. Amy, and continued to be and was his lawful wife at the time of his death."

From these findings it deduced the following legal conclusion:

185] *"That the said Jennie Amy is now the widow of said Oscar A. Amy, deceased, and as such widow she is the successor to the whole of his estate, consisting of the property hereinabove described."

We will consider the assignments in their logical order. The first to the eleventh, inclusive, and the nineteenth complain of errors which it is alleged the supreme court 171 U, S. U. S., Book 43

9

But all the evidence objected to was received
by the trial court subject to the objection,
and the question of its admissibility turned
on that of its irrelevancy or the quantum of
proof which it would establish if considered.
The ultimate action of the trial court in re-
jecting the evidence which it had received,
subject to objection, amounted, in effect, to
a decision that the evidence did not establish
that the judgment in the divorce proceedings
had been rendered after due publication of
summons in accordance with the laws of the
territory, and therefore the evidence was in-
suñicient. But the express finding from all
the evidence by the supreme court of the
state is that the summons in the divorce
suit was duly issued and published according
to law, and that the defendant had, besides,
personal notice of the pendency of the suit.
This conclusion, being binding on us, estab-
lishes that the evidence was relevant and
material, and that there was Lo ground to
reject it. We cannot, therefore, say that the
evidence should have been disregarded be-
cause it did not establish the facts, which we
are bound to conclude it did fully prove.
If specific findings of each item of evidence
and the conclusions deduced from the separ-
ate items had been made, as in Cheely v.
Clayton, 110 U. S. 702 [28: 298], the case
would present a different aspect. Consider-
ing, however, the state of the record and the
nature of the findings of fact certified, we
cannot determine the correctness of the ob-
jections to the evidence without going into
its weight and making independent conclu-
sions of fact; in other words, without disre-
garding the findings made by the court be-
low, by which we are concluded. The same
reasoning is applicable to the other assign-
ments of error. Thus, the thirteenth, four-
teenth, seventeenth, and eighteenth assert
that the court erred in holding, as to the bur-[186]
den of proof, that it erroneously treated the
denial of the validity of the judgment of di-
vorce by the maternal aunts as a collateral
attack by them on such judgment. But
there are no findings which raise these ques-
tions. On the contrary, the facts found ren-
der them wholly immaterial, for it is obvious
that if the evidence affirmatively established,
as the findings declare, that the judginent of
divorce was rendered after due summons, and
that the defendant had personal notice of
the proceedings, the questions of burden of
proof and collateral attack are wholly irrele
vant. Again, the twenty-first and twenty-
second assignments of error complain that the
court erred in holding that it was not neces-
sary that there should be an order of the
court directing the publication of the sum-
mons in the divorce proceeding, and that the
court erred in holding that the only papers
necessary in proof of publication were the
complaint, summons, and affidavit of the
printer and judgment. But there are no
findings which raise these questions. On the
contrary, the facts found are that the sum-
mons were duly published, and that the de-
fendant had besides personal notice. To

129

[No. 591.]

maintain the assignments of error, we should
be obliged to go into the record and ascer-
tain what was the proof on the subject upon Submitted April 11, 1898. Decided May 31,

which the court based its findings, and deduce from this analysis that the premise upon which the assignments just mentioned are based was a correct one. The same reasoning applies to the twenty-third and twentyfourth assignments, which charge that the court erred in holding that the probate court by which the divorce judgment was rendered possessed common law or chancery jurisdic tion, or that it was ever a court of general jurisdiction. These questions become only material for the purpose of determining the prima facie proof resulting from the record of the divorce proceeding. It is not questioned that it was correctly held that the court wnich rendered the judgment of divorce had jurisdiction of the subject-matter. If, there fore, it had jurisdiction, and the proof affirmatively shows the regularity and validity of the proceedings, it is wholly immaterial to determine whether it possessed common-law or chancery powers, or was a court of general ju

[187]risdiction. *In effect, all the assignments of error and the argument based thereon rest in reason on the assumption that the findings of fact certified by the court below are not conclusive, and that this court has the power, in order to pass upon the questions raised, to examine the weight of the evidence and disregard the facts as found. If the argument be that the findings of fact are the mere statement of ultimate legal proposi tions, and therefore they may be disregarded or reviewed, then the result of the contention is that there are no findings of fact and nothing to review, and if the other aspect be looked at, the views which we have just expressed are conclusive.

[blocks in formation]

1898.

ON A CERTIFICATE from the United States Circuit Court of Appeals for the Second Circuit certifying a question on which that court desires instruction, in an action in admiralty instituted in the District Court of the United States for the Southern District of New York by the libellants, George Christall et at., trustees, against Flint, Eddy, & Company, for contribution from the cargo of a vessel in respect of certain general average charges arising from the stranding of the steamer Irrawaddy on the coast of New Jersey, in which action the district court made a decree in favor of the libellants; from which decree an appeal was taken to said Circuit Court of Appeals. Question answered in the negative.

See same case below, 82 Fed. Rep. 472.

Statement by Mr. Justice Shiras:

*This case comes here on a certificate from[188] the United States circuit court of appeals for the second circuit.

The facts out of which the question arises are as follows:

On November 9, 1895, the British steamship Irrawaddy, upon a voyage from Trinidad to New York, with cargo, stranded on the coast of New Jersey through the negligent navigation of her master. Up to the time of stranding she was properly manned, equipped, and supplied, and was seaworthy.

The vessel was relieved from the strand November 20 as the result of sacrifices by jettison of a portion of her cargo, of sacrifices and losses voluntarily made or incurred by the shipowners through the master and of the services of salvors.

The Irrawaddy then completed her voyage and made delivery of the remainder of her cargo to the consignees in New York on their executing an average bond for the payment of losses and expenses which should appear to be due from them, provided they were

(See S. C. "The Irrawaddy," Reporter's ed. stated and apportioned by the adjusters "in

187-202.)

Right to general average contribution.

If a vessel seaworthy at the beginning of the

voyage is afterwards stranded by the negligence of her master, the shipowner, who has exercised due diligence to make his vessel in all respects seaworthy, properly manned. equipped, and supplied, under the provisions of § 3 of the act of February 13, 1893, has no right to general average contribution for sacrifices made and suffered by him subse quent to the stranding, in successful efforts to save vessel, freight, and cargo.

NOTE.-As to general average, see note to Columbian Ins. Co. v. Ashby, 10:186.

As to general average; loss by stranding,

see note to Fowler v. Rathbone, 20: 281.

As to liability for necessaries, supplies, and repairs to ship; liability for conduct and acts of master and mariners, -see note to United States v. The Malek Adhel, 11:239.

accordance with established usages and laws in similar cases."

An adjustment was afterwards made in New York, which allowed in the general average account the compensation of the salvors, the sacrifices of cargo and the losses and sacrifices of the shipowner.

The respondent thereupon paid $4,483.64, which was their full assessment, except the sum of $508.29 charged against them in respect of sacrifices of the shipowner, which they refused to pay.

The district court made a decree in favor of the libellants; from which decree the respondent duly appealed to this court.

Upon these facts the court desires instruction upon the following question of law, namely:

If a vessel, seaworthy at the beginning of the voyage, is afterwards stranded by the negligence of her master, has the shipowner,

:

who has exercised due diligence to make his and not merely that he does not know her to vessel in all respects seaworthy, properly be unseaworthy at the time of beginning her manned, equipped, and supplied, under the voyage, or that he has used his best efforts to provisions of § 3 of the act of February 13, make her seaworthy; and that his undertak1893, a right to general average contribution ing is not discharged because the want of fit

[189]for *sacrifices made and suffered by him sub-ness is the result of latent defects. Richelieu sequent to the stranding, in successful efforts & O. Nav. Co. v. Boston Marine Ins. Co. 136 to save vessel, freight, and cargo?

Messrs. Wilhelmus Mynderse and James C. Carter for appellants. ants.

Mr. Harrington Putnam for appellees.

Mr. Justice Shiras delivered the opinion of the court:

The answer we shall give to the question certified by the circuit court of appeals must be determined by the meaning and effect

U. S. 408 [34: 398]; The Edwin I. Morrison, 153 U. S. 199 [38:688]; The Caledonia, 157 U. S. 124 [39:644].

In this condition of the law the so-called

Harter act was approved on February 13, 1893 (27 Stat. at L. chap. 105), wherein, after providing in the 1st and 2d sections that it shall not be lawful for any owner, agent, or master of any vessel transporting merchandise or property from or between ports of the United States and foreign ports, to

which should be given to the act of February exempt himself from liability for loss or dam13, 1893, known as the Harter act. Admitted-age arising from negligence in the loading or

ly, upon the facts conceded to exist in the present case, the owner of the ship has no right to a general average contribution from the cargo, unless such right arises from the operation of that act.

We shall first inquire why it is that, apart from the act in question, the owner of the ship is not entitled to a general average contribution where the loss was occasioned by the fault of the master or crew, and we find the rule is founded on the principle that no one can make a claim for general average contribution, if the danger, to avert which the sacrifice was made, has arisen from the fault of the claimant or of someone for whose acts the claimant has made himself, or is made by law, responsible to the cocontributors. We are not called upon either to trace the history of the rule, or to justify it as based on equitable principles, as it is conceded on both sides that such is the ordinary rule in the absence of statute or contract to modify it.

Nor is it necessary to inquire into the origin or nature of the law of general average. That has been so recently and thoroughly done in Ralli v. Troop, 157 U. S. 386 [39: 742], that it is sufficient to refer to the opinion of Mr. Justice Gray in that case.

proper delivery of such property, or to insert in any bill of lading any covenant or agreement whereby the obligations of the owner to exercise due diligence in manning and equipping the vessel, and to make such vessel seaworthy and capable of performing her intended voyage should be in anywise lessened, weakened or avoided, it was, in the 3d section enacted as follows:

"That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel "in all respects seaworthy and properly [191] manned, equipped, and supplied, neither the vessel, her owner or owners, agents, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel, nor shall the vessel, her owner or owners, charterers, agent or master, be held liable for losses arising from the danger of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service."

The argument on behalf of the shipowner is clearly expressed by the learned judge of the district court in the following terms:

Not only is the shipowner excluded from [190]contribution by way of general average when the loss arises from the ship's fault, but he is legally responsible to the owner of the cargo for loss and damages so occasioned. And it is the well-settled law of this court that a common carrier by sea cannot, by any stipulation with a shipper of goods, exempt himself from responsibility for loss or damage arising from the negligence of the officers or crew; claim to general average compensation for

"There is no doubt, I think, that the liability to indemnify the cargo owner is the sole ground of the exclusion of the shipowner's

his expenses in rescuing the adventure from

that it is against the policy of the law to al-
low stipulations that will relieve a carrier a peril caused by bad navigation. It there-

from liability for losses caused by the negligence of himself or his servants. Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397 [32:788].

Further, it has frequently been decided by this court that in every contract for the carriage of goods by sea, unless otherwise ex

fore seems necessarily to follow that in cases where all such liability is abolished by law, as it is under the circumstances of this case by the Harter act, no such exclusion can be justified; and that where no such liability exists on the part of the ship or her owner, his right to a general average contribution

pressly stipulated, there is a warranty on the from the cargo arises necessarily by the same part of the shipowner that the ship is sea- principles of equitable right that apply in orworthy at the time of beginning her voyage, dinary cases of general average. Where due

diligence has been exercised to make the ship sage of the act, the owner could not contract seaworthy, and a common danger arises upon against his liability and that of his vessel for the voyage by 'fault or error in the naviga- loss occasioned by negligence or fault in the tion or management of the ship, the third officers and crew, because such a contract was section of that act declares that 'neither the held by the Federal courts to be contrary to vessel nor her owner, agent, or charterer public policy, and, in this particular, the ownshall become or be held responsible for dam-ers of American vessels were at a disadvanage or loss resulting therefrom;' the previous tage as compared with the owners of liability of the shipowner to the cargo owner foreign vessels, who can contract with for faults of navigation is thus abolished in shippers against any liability for negligence

all cases coming within the act. In such cases faults in the navigation or management of the ship are no longer, by construction of [192]*law, faults of the owner, as heretofore; and the ship and her owner are now no more liable to the cargo owner for his damages therefrom than the latter is liable to the shipowner for the resulting damages to the ship. Both are alike strangers to the fault, and equally free from all responsibility for it; and hence all expenditures or losses voluntarily incurred for the common rescue are no longer made in the discharge of an individual legal obligation, or in diminution of a fixed liability resting upon one of the parties only, but are

truly a sacrifice voluntarily incurred, and
for the common benefit, as much and as truly
so when made by the shipowner as when made
by the cargo owner alone. On principle,
therefore, in such cases, the one is as much
entitled to a general average contribution for
his sacrifice as the other.

The appli

cation of this new relation of nonresponsibil-
ity under the Harter act to cases of general
average does not, in fact, make the least
change in the principles of general average

or fault on the part of the officers and crew.
This inequality, of course, operated unfavor-
ably on the American shipowner, and Con-
gress thought fit to remove the disadvantage,
not by declaring that it should be competent
for the owners of vessels to exempt themselves
from liability for the faults of the master and
crew by stipulations to that effect contained
in bills of lading, but by enacting that, if
the owners exercised due diligence in making
their ships seaworthy and in duly manning
and equipping them, there should be no lia-
bility for the navigation and management of
the ships, however faulty.

Although the foundation of the rule that
Althoug

forbade shipowners to contract for exemp-
tion from liability for negligence in their
agents and employees was in the decisions of
the courts that such contracts were against
public policy, it was nevertheless competent
for Congress to make a change in the stand-
ard of duty, and it is plainly the duty of the
courts to conform in their decisions to the
policy so declared.

But we think that for the courts to declare, as a consequence of this legislation, that

contribution. The rule remains as before, the shipowner is not only relieved from liathat he by whose fault, actual or construct- bility for the negligence of his servants, but ive, the ship and cargo have been brought is entitled to share in a general average reninto danger cannot recover an average contri- dered necessary by that negligence, would be bution for his expenses in extricating them. in the nature of a legislative act. The act in And so the counter rule remains as before, question does, undoubtedly, modify the pubthat the interest which, being without fault, lic policy as previously declared by the

makes sacrifices for the common rescue, is en titled to an average contribution from what is thereby saved. Prior to the Harter act the shipowner, under our law, was constructively in fault for bad navigation and hence fell within the former rule. The Harter act, by abolishing his constructive fault and freeing him from all responsibility, withdraws him from the former rule and entitles him to contribution under the latter." 82 Fed. Rep. 472, 474-477.

We are unable to accept this view of the operation of the act of Congress.

Plainly the main purposes of the act were to relieve the shipowner from liability for latent defects, not discoverable by the utmost care and diligence, and, in event that he has exercised due diligence to make his vessel seaworthy, to exempt him and the ship from responsibility for damage or loss resulting from faults or errors in navigation or in the [193]*management of the vessel. But can we go further, and say that it was the intention of the act to allow the owner to share in the benefits of a general average contribution

courts, but if Congress had intended to grant the further privilege now contended for it *would have expressed such an intention in[ unmistakable terms. It is one thing to exonerate the ship and its owner from liability for the negligence of those who manage the vessel; it is another thing to authorize the shipowner to do what he could not do before, namely, share in the general average occasioned by the mismanagement of the master and crew.

What was the reasoning on which the courts proceeded in holding that it was against public policy to permit shipowners to contract for exemption from liability for the negligence of their agents? Was it not that such a state of the law would impel the shipowners to exercise care in the selection of those for whose conduct they were to be responsible? This being so, can it be reasonably inferred that Congress intended, when relieving shipowners from liability for the misconduct of their agents, to confer upon them the further right to participate in a general average contribution, and that to the detrito meet losses occasioned by faults in the nav-ment of the shippers? Such an interpretaigation and management of the ship? tion of the statute would tend to relieve shipDoubtless, as the law stood before the pas-owners, to some extent at least, from care in the selection of the master and crew; and it | Upon the whole we think that in determin

would likewise operate to influence the master in deciding, in an emergency, whether he would make a case of general average by sacrificing the vessel, in whole or in part. If he knew that the owner would participate in a contribution occasioned by a loss, he would be the less likely to exert himself and crew to avoid the loss.

It is said that it has been decided by the English courts that when, by a contract in the bill of lading, the shipowner is exonerated from liability for loss caused by the fault of the master or crew, he is entitled to share in a general average contribution.

An examination of the cases cited has not convinced us that there has been any such fi nal decision by the English courts. The case of The Carron Park, L. R. 15 Prob. Div. 203, does, indeed, hold that the relation of the goods owner to the shipowner was altered by the contract; that the shipowner was not to be responsible for the negligence of his servants in the events which have happened; and that, therefore, the shipowner's claim for general average was allowed. On the [195]other hand, in the case of The Ettrick, L. R. 6 Prob. Div. 127, the ship owner claimed the benefit of a general average contribution rendered necessary by reason of negligence in navigation, and put his claim on the ground that, having availed himself of the limited liability laws by paying into court the £8 a ton, which is the limitation fixed by the statutes of Great Britain, he was thereby relieved from his liability on account of the negligence in the navigation, and stood in the position of an innocent party entitled to share in the contribution. But the court of appeals held otherwise, and Sir George Jessel, M. R., said:

"The ground upon which the shipowner puts his claim is this: he says that the pay ment of £8 per ton not only prevents his being answerable in damages for any more, but is equivalent to saying that he shall be in exactly the same position as if no negligence had been committed, and nothing had been done by him or his agents that would give rise to any liability. But I cannot read the act so. All it says is that he shall not be answerable in damages for any greater amount. It does not make his acts right if they were previously wrongful. It does not give him any new rights as far as I can see.

It

seems to me that he could have no such right, for the statute does not destroy the effect of all that had been done, as it simply diminishes or limits the liability in damages. If that is so, of course there is an end of the case."

But whatever may be the English rulings as to the effect of contract immunity from negligence as entitling the shipowner to claim in general average, we do not think the cases are parallel. By the English law the parties are left free to contract with each other, and each party can define his rights and limit his liability as he may think fit. Very different is the case where a statute prescribes the extent of liability and exemption.

ing the effect of this statute in restricting the operation of general and well-settled principles, our proper course is to treat those principles as still existing, and to limit the relief from their operation *afforded by the[196] statute to that called for by the language itself of the statute.

Our conclusion accordingly is, that the question certified to us by the Court of Appeals should be answered in the negative, and it is so ordered.

Mr. Justice Brown, with whom was Mr. Justice McKenna, dissenting:

I am constrained to dissent from the opinion of the court in this case. While I freely concede that the owner of a ship is not by the general maritime law entitled to a general average contribution, where the loss is occasioned by the fault of the master or crew, [ regard the 3d section of the Harter act as introducing a new feature into the law of carriage by sea, and as eliminating altogether the question of negligence in navigation. This section provides in substance that if the owner shall exercise due diligence to make his vessel in all respects seaworthy, and properly manned, equipped, and supplied, he shall not "be held responsible for damage or loss resulting from faults or errors in navigation or in the management" of his vessel. As the steamer Irrawaddy was stranded on the coast of New Jersey, confessedly by the negligent navigation of her master, it will not be contended that she or her owners became liable to the owners of the cargo for any damages thereby occasioned. It is said, however, that while the Harter act may be appealed to in defense of any action by the cargo against the ship, it is not available by the shipowner in a suit against the owners of the cargo for a contribution to the general average expenses occasioned by such stranding. If this be so, then the ship is thereby made responsible for a fault in her navigation to the exact extent to which she would be otherwise entitled to a general average contribution, and the statute to that extent is disregarded and nullified. I consider this a narrow and technical construction of the act. I think the 3d section makes the question of fault in navigation an immaterial one, and eliminates it from "the relations of the [197] ship to the cargo. The section, therefore, becomes available to the shipowner either as a weapon of defense or attack. If the shipowner stands in relation to the cargo as if no fault had been committed, it is impossible for me to see why he may not avail himself of this in whatever shape the question may arise.

As the Harter act is a novelty in maritime legislation, of course it would be vain to search for authorities based upon a similar enactment; but cases are by no means wanting where a similar question has arisen upon stipulations in bills of lading exempting the owner of the ship from the consequences of faults or errors in navigation. While it is conceded in this country that such stipula

« ForrigeFortsett »