Appellants Brief — The Resolute

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IN THB

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1897.

THE STEAM TUG “RESOLUTE,” A. B.

HAMMOND, and E. L. BONNER,

Claimants and Appellants.

a No. 16,200

HENRY E. WILSON, SIDNEY G. WOLF-

KILL, THOMAS NELSON & CHARLES

JAHN,

Libellants and Respondents.

THE STEAM TUG “RESOLUTE,” A. B.

HAMMOND and E. L. BONNER,

- Claimants and Appellants.

ied No. 16,199

GEORGE DOWSEIT,

Libellant and Respondent.

THE STEAMER “THREE SISTERS,’ THE

OREGON CENTRAL AND EASTERN

RAILROAD COMPANY,

Claimants and Appellants.

vs.

No.

R. J. YOUNG, M. BELL, C. A. BELL, H. 16,202

ROBERTSON, W. HOWELL, W. H.

SUTTON, ef ai,

Libellants and Respondents. /

Appeal from the District Court of the United States,

for the District of Oregon.

BRIEF FOR APPELLANTS.

rte SIRE Me asta Sispagernee h

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STATEMENT OF THE CASE.

The principal questions to be decided being common

to all of these cases, a stipulation has been entered into

between the parties consenting to a consolidation.

The Oregon Pacific Railroad Company was an Ore-

gon corporation engaged in operating a railroad in said

state, and incidental thereto, a steamship line between

its seaboard terminus, Yaquina Bay, Oregon, and San

Francisco, California, and a line of steamboats on the

Willamette river. The steam tug Resolute was em-

ployed on Yaquina Bay, in local aid of the ocean naviga-

tion of the company, and the steamboat Three Sisters

was engaged in river service on the Willamette. Early

in its history the Oregon Pacific Railroad Company

executed a mortgage upon all of its property, including

the libeled vessels, to the Farmers Loan & Trest Com-

pany, of New York, trustee, to secure the payment of

a large sum of borrowed money. Default was made in

the payment of the principal and interest of this mort-

gage indebtedness. The trustee brought suit in the

Circuit Court of the State of Oregon for Benton county,

to foreclose the mortgage, and for the appointment of

a receiver pendente lite. \ receiver was appointed in

the proceedings thus instituted, and, pending the final

determination thereof, he was authorized to continue

the operation of the railway, steamship and steamboat

lines. The libellants, Henry E. Wilson, Sydney G.

Wolfkill, Thomas Nelson and Charles Jahn, were em-

ployed, by the said receiver, as seamen on the tug Reso-

lute. They commenced said service on or about Janu-

——

— . We Fal > ated tp A CRANE ER Be PETE IE LD

— Where SORA LR nO aA RL IMR RENAE LO I DG PL POLES BEPC

ary 1, 1892, and continued therein until about Decem-

ber 17, 1893, at which time they were dismissed. In

the meantime their wages were not fully paid. At the

time of their discharge, the several amounts mentioned

in the amended libel were due them from the receiver.

Geo. Dowsett, the libellant of the Resolute, in one of

the cases, claims for services personally rendered, and

also under an assignment from one Tellef Telleffsen.

3oth Dowsett and his assignor, Telleffsen, were em-

ployed by the receiver.

The libellants of the Three Sisters were employed in

various capacities, on the boat named. Their employ-

ment began and ended during the administration of the

receivership. Libellants R. J. Young and Geo. Raabe

each acted as captain of the Three Sisters; Raabe acted

a part of the time as captain and watchman at a uniform

salary. It is shown that this boat was engaged in

river traffic within the State of Oregon, and that the

duties of the master were confined to the navigation of

the vessel. The boat carried a purser, whose business

it was to receive and pay out all moneys, and it plied

only between points where there were regularly em-

LTP LE LE EDL ESL ALI R SOBEL IL ITO EE,

ployed agents of the receiver. The libel against the i

last-named vessel was not filed until after the expira- §

tion of one year from the time the amounts claimed f

became due. Zhe amended libels all show that on or ;

about December 22, 1894, all of the property of the é

Oregon Pacific Railroad Company, including the ves-

sels named, was sold tn the original foreclosure pro-

ceedings, under the final decree of the ctrcutt court

RETELLING PUES EEE SS A BR ATE CLS

in which the suit was pending. The claimants be-

came the purchasers.

Record Three Sisters, pp. 33, 34.

Record Dowsett, p. 36.

Record Wilson, p. 29.

The amended libel against the Three Sisters con-

tains the following averment: “That until or about

December 22, 1894, the said steamer Three Sisters

remained in the control and possession of the receivers

so appointed as aforesaid by the said Circuit Court of

the State of Oregon for the County of Benton. That

the said suit of the Farmers Loan & Trust Company

against the Oregon Pacific Railroad Company and the

Willamette Valley & Coast Railroad Company was

brought for the purpose of foreclosing a mortgage or

deed of trust conyeyed to the said Farmers Loan &

Trust Company of the entire property of the said Ore-

gon Pacific Railroad Company for the purpose of secur-

ing an issue of bonds made by the said Oregon Pacific

Railroad Company: and that the said receivers so

appointed as aforesaid were appointed for the purpose

of operating said railroad and steamboat lines of the

said Oregon Pacific Railroad Company, including the

said steamer Three Sisters pending the foreclosure of

the said mortgage or deed of trust, and were so ap-

potted at the instance of the said Farmers Loan &

Trust Company, trustee as aforesaid. That on or about

the said December 22, 1894, all of the property of the

said Oregon Pacific Railroad Company, including the

said steamer Three Sisters, was sold under execution

issued out of the said Circuit Court of the State of

Oregon for the County of Benton in the said suit of

the Farmers Loan & Trust Company, trustee, vs. The

Oregon Pacific Railroad Company, and the Willamette

Valley & Coast Railroad Company, and that all of the

said property of the said Oregon Pacific Railroad Com-

pany, including the said steamer Three Sisters, was

purchased at the said sale by one A. B. Hammond and

I. L. Bonner, and that since said date the said steamer

Three Sisters has been in the possession of the said

sonner and of the said Hammond, and is now in their

possession as purchasers under the said sale as afore-

said.”

Record Three Sisters, pp. 33, 34.

This sale was confirmed, and subsequently approved

by the Supreme Court. (Farmers Loan Company v.

Oregon Pacific Railroad Company, 28 Or. 44.) The

receiver was thereupon discharged. At the time of sale

notice was given of libellants’ claims.

The claimants filed exceptions to the amended libel

against the Resolute upon the following grounds:

Ist. That the same shows that at the time the said

libellants and each of them, were employed, the said

steam tug Resolute was in charge of and being operated

by a receiver of the Oregon Pacific Railroad Company,

a corporation, the owner of said steam tug, said

receiver having been duly appointed by the Circuit

Court of the State of Oregon for Benton county, and

that all of the services performed by said libellants and

each of them, mentioned in said amended libel, were

performed while said steam tug was in the possession

of and being operated by said receiver, and that no

maritime or other lien arose by reason of such employ-

ment, or the rendition of said services.

“2d. That the said libel shows that this court has

no jurisdiction in the premises.”

Record Wilson v. Resolute, p. 31.

Record Dowsett v. Resolute, p. 37.

The same exceptions were filed to the amended libel

in the case against the Three Sisters. Exceptions were

also filed to the last-mentioned amended libel on the

additional ground that Young and Raabe were masters

of the vessel, and that no lien arose in their favor; and

on the further ground that Young and Raabe did not

file their libels until after the expiration of one vear_

from the rendition of the services.

Record Three Sisters, p. 35.

The court below overruled all of the exceptions, and,

upon failure of the claimants to further plead, rendered

judgment in favor of the libellants for the amounts

claimed. (69 Fed. 742.)

Upon the entry of judgment the claimants perfected

an appeal to this court. The appeal in each of the cases

is similar in form. The following is a copy of the one

were 7

—— NDS ARE Net BS Me FILA IRE ODOR IE BE BALI ADELE NEE LT IEEE a)

9 5

filed in Wilson et al. v. The Resolute: ‘The above-

named claimants . . . conceiving themselves ag- :

grieved by the final judgment entered herein on Octo- :

ber 5, 1895, in the above-entitled proceedings, do hereby :

appeal from said final judgment to the Supreme Court

of the United States, and they pray that this their ;

appeal may be allowed, and that the question of the A

jurisdiction of the above-entitled court to render the :

said judgment be certified to the Supreme Court of i

the United States, and that a transcript of the record, 4

and proceedings, and papers, upon which said judgment :

was made, duly authenticated, may be sent to the ¥

Supreme Court of the United States.”

Record Wilson, p. 22.

Record Dowsett, p. 27.

Record Three Sisters, p. 24.

The allowance of the appeal in the Wilson case, the

others being similar, is as follows:

“Be it remembered that on this day in the above-

entitled cause came Wm. T. Muir, of proctors for

claimants, and filed herein his assignment of errors, and

petition for an allowance of an appeal herein to the

Supreme Court of the United States, from the decree

herein, rendered on the 5th day of October, A. D. 1895,

which decree is as follows, to wit: (Here follows a copy

of the decree.) And in open court the said claimants,

by their said proctor, prayed that said appeal be allowed,

and tendered a bond with sufficient surety, to the

approval of the court, and which bond is hereby ap-

— ace soy op RON OREEGI FR SSIES ws 2

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ER DERE

PRESS a

proved, to stay proceedings herein until said appeal

shall have been determined, and thereupon the court

hereby allows said appeal, and approves said bond, and

execution is hereby stayed until the determination of

said appeal. And this court does hereby certify and

make known unto the Supreme Court of the United

States that the only question arising upon the said

appeal is the question as to whether or not, under the

facts stated in the amended libel, and the exceptions

thereto, this court acquired or had jurisdiction to hear

or pronounce the said decree.

“And that the following is a copy of the said amend-

ed libel and the exceptions thereto.”

(Here follows a copy of the amended libel and of the

exceptions.)

Record Wilson, pp. 25-31.

Record Dowsett, pp. 30-37.

Record Three Sisters, pp. 27-35.

In the case last mentioned the following assignment

of errors was filed:

“Now come the said E. L. Bonner and A. B. Ham-

mond, and having appealed from the final judgment

and decree of the District Court of the United States

for the District of Oregon, to the Supreme Court of the

United States in the above-entitled cause of contract,

civil and maritime, assign the following as the errors on

which they intend to rely on said appeal:

LEE EE EC RRL DS BONE ia IRS te Lie OR dent 1 fee ree Be aga +e Veet ee

pe ciel SEA Wyre hg reek Tes SON Ot Meter Oe eT all le Sag on kc ta

“First. The District Court of the United States for

the District of Oregon erred in overruling the excep-

tions and each of them to the amended libel.

“Second. The District Court of the United States

for the District of Oregon erred in holding that the

performance of the services, or any of them, mentioned

in the amended libel, gave rise to a maritime lien.

“Third. The District Court of the United States for

the District of Oregon erred in holding that the libel-

lants, and each of them, were entitled to and had a

maritime lien on the said steam tug Resolute, for the

sums due on account of the services mentioned in the

amended libel.

“Fourth. The District Court of the United States

for the District of Oregon erred in adjudging and

decreeing that the said steam tug Resolute be sold in

-said proceedings to satisfy the said claims of said libel-

lants.

“Fifth. The District Court of the United States for

the District of Oregon erred in holding that the said

court had jurisdiction in the said proceedings as to the

claims of any of the said libellants.”

Record Wilson, p. 23.

Record Dowsett, p. 28.

Record Three Sisters, p. 25.

Seek Cae ea

In the case against the Three Sisters there is another

assignment of error in addition to those quoted above,

filed in the Wilson case. It is as follows:

“Sixth. The said District Court of the United

States for the District of Oregon erred in holding that

libellants R. J. Young and Geo. Raabe had acquired a

lien upon the said steamer . . . on account of the

services rendered by them respectively as master, and

erred in holding that the rights of said R. J. Young

and Geo. Raabe, as master, had not been barred by the

statute of limitations.”

Record Three Sisters, p. 25.

All of the libellants except R. J. Young and Geo.

Raabe claim to be entitled to a lien under the general

rules of admiralty. Young and Raabe, having each

served in the capacity of master, rely upon the state

law. The statute reads as follows:

“Sec. 36yo. Every boat or vessel used in navigating

the waters of this state or constructed in this state shall

be liable and subject to a lien—

“1. For wages due to persons employed for work

done or services rendered on board of such boat or

vessel.”

2 Hill’s Code (1887), p. 1599.

“Sec. 3706. <All actions against a boat or vessel

under the provisions of this title shall be commenced

RTECS OT ——

within one year after the cause of action shall have

accrued.”

2 Hill's Code (1887), p. 1602.

The cases were appealed on jurisdictional questions

only. There are four of these. We claim—

. First. That the incidents of a receiver's contract

attached to the contracts of employment, and no ad-

miralty liens arose therefrom.

Second. Regardless of the decision of this point,

we contend that the matters have been thoroughly

and finally determined by the decree of the court of

equity, and cannot be re-examined tn any court.

Third. That the amended libels show that the stat-

ute of limitations has barred those claims which are

based on the Oregon statutes.

Fourth. That the claim assigned was, by reason of

the assignment, divested of an admiralty lien, and, in

consequence, a court of admiralty has no jurisdiction to

enforce its payment by a proceeding z% rem.

Se sper ee

Bade: SSP gi NM Brae mal

Si EAR ES ERAS

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ARGUMENT.

These appeals were taken to this court from the final

judgment of the United States District Court for the

District of Oregon, under section 5 of the act of Con-

gress of 1891. This section reads as follows, to wit:

“That appeals or writs of error may be taken froin

the district court, or from the existing circuit courts

to the Supreme Court in the following cases:

“In any case in which the jurisdiction of the court

is in issue; in such cases the question of jurisdiction

alone shall be certified to the Supreme Court from the

court below for decision”

Supplement to Rev. Stats. 1874-1891, p. 903.

The proceedings were instituted by the former em-

ployes of a receiver, appointed by a court of equity in-a

foreclosure suit, to recover the amounts earned by them

while in the receiver's employ. The employment of the

men in the several occupations alleged; the rendition of

services by them; the amounts remaining unpaid, and

all other well-pleaded allegations of the amended libels,

are admitted. The only questions argued in the lower

court, and the only ones raised on these appeals, are

jurisdictional. The proceedings arezz rem. Admiralty

has no jurisdiction zz rem to enforce a demand for a

seaman 's wages, orother obligation arising ex contractu,

unless the person instituting the proceedings is entitled

fi ,

. piano meee: . — . . — Tn

Gere eee EERE RAIS SDAIN IG ELLE IE LI EET I ee BE LE ll pe

to a maritime lien at the time the proceedings are

brought. If, then, we are right in our first contention,

that no maritime or other lien can arise out of a receiv-

er’s contract, admiralty has no jurisdiction zz rem to

enforce payment of the several sums due libellants. If

it is held that a maritime lien does attach as an inci-

dent to a receiver's contract, and is further held that

the final decree of the court of equity in this case, and

the sale of the libeled vessels and other property there-

under, is a complete adjudication of the rights of the

libellants, and one which cannot be set aside, or reviewed

in admiralty, the lower court had no power to render

judgment in these cases. Whatever may be the con-

clusion of this court as to the correctness of our views,

the guestzons for settlement are jurisdictional. The

determination of these questions necessarily involves

a consideration of the facts alleged in the amended

libels. A determination of any legal question depends

upon the facts existing in the particular case. Of

course no attempt is made to doubt the general jurisdic-

tion of the district court over admiralty causes. We

claim in the first instance that while these cases are

connected with the navigation of boats, they are, never-

theless, of a class not cognizable in admiralty. There

are many such cases. Some of them are noted later

in this brief. The mere fact that the subject-matter

of litigation arises out of the operation of a boat does

not give admiralty jurisdiction zz xem, There are well-

recognized exceptions. For instance, a master of a

vessel under the general law has no lien. Neither has a

person furnishing supplies in the home port. And it is

held that a mortgage given upon a vessel as security

for a loan of money, not advanced for the purposes of

a voyage, cannot be enforced in admiralty. The John

Jay. 17 How. 399. The principal points presented are

new. We claim they furnish another instance in which

admiralty gives no lien. If we are right in our conten-

tion, the lower court did not have jurisdiction. If we

are wrong, it did have.

It is held in Taylor v. Carryl, 20 How. 583, that

“where a vessel has been seized under a process of

attachment in a state court, and is in the actual cus-

tody of the sheriff, no valid seizure can be made of her

ssid Rae

so as to give surtsdzction in proceedings za rem in the

District Court of the United States sitting in admi-

| ralty.” And in Shields v. Coleman, 157 U. S. 168, 169,

4 it was held by this court that ‘ta Circuit Court of the

_ United States has not the power to appoint a receiver

ty of property already in the possession of a receiver duly

3 and previously appointed by a state court.” The ques-

: tion in the cases just quoted was whether a federal

i court could acquire jurisdiction over property wz/e in

‘ the custody of a state court. The controlling question

i in the cases at bar is whether a federal court, sitting in

; admiralty, can acquire jurisdiction 2” rem over certain

property, situated as previously herein explained, after

the custody of the state court is relinquished.

As before noted, there are two other questions inci-

: dentally raised. Libellants Young and Raabe claim

under the state statute. Our contention is that, at-

Pease oe

See 5 RRL RCIA RV ORES

tached to the right to a lien given by the state statute

is a condition that proceedings must be commenced to

enforce the lien within one year after the cause of

action arose. The amended libels show, as to the two

libellants mentioned, that the causes of action in their

favor accrued more than one year prior to the filing of

the libels. If we are right in our contention, this also

raises a question of jurisdiction. The life of the lien

given by the statute is limited to one year after the

cause of action arises. If no proper proceedings are

instituted within the time designated, the lien is lost.

If the lien has expired by limitation, no proceeding 7

rem can be brought to enforce it. The parties are

relegated to whatever remedy the law may afford them

zm personam. Admiralty has no power to enforce a

lien, by a proceeding zz rem, which does not exist at

the time its jurisdiction is invoked. And so with the

remaining question hereinbefore noted. If it is true, as

we contend, that the lien given a mariner is a personal

privilege, and therefore incapable of assignment, the

court had no jurisdiction zz rem to enforce the claim of

Geo. Dowsett acquired by him by assignment from

Tellef Telleffsen. The reason is clear. The court had

no jurisdiction to enforce a lien, because there was no

lien to enforce. The existence of a lien is the life of a

proceeding 2% rem. If there was no lien originally, or,

being one, if it has been lost, the remedy cannot be

invoked. Nothing remains but a personal right of

action.

It will be shown hereafter that the decisions of the

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federal courts upon the last two questions are conflict-

ing. We submit to the court that these questions, in

the interest of harmony of decision, should be finally

determined here.

The lower court has certified that these appeals are

taken solely on the questions of jurisdiction arising out

of the facts shown by the record now in this court.

We think we are at liberty to argue any jurisdictional

question so appearing. If we are mistaken in suppos-

ing the last two questions are jurisdictional, the appeal

cannot be affected by the error. The arguments will

not be considered.

As we apprehend it, under the judiciary act of 1891,

the test of a right to an appeal to this court from a

Circuit or District Court of the United States, is the

question to be reviewed. If it is purely a jurisdictional

one the appeal lies ee to this court.

Smith v. McKay, 161 U.S. 355, 357.

Shields v. Coleman, 157 U.S. 168, 177.

Mfg. Co., 156 U. S. 322.

United States v. Jahn, 155 U.S. 109.

MeLish v. Roff, 141 U. S. 661, 667, 668.

In re Lehigh Mining &

The circuit court of appeals for this circuit has held

it has no jurisdiction to entertain such an appeal.

Allen v. Strong, 70 Fed. 273.

Barling v. Blank, 50 Fed. 260.

United States v. Sutton, 47 Fed. 129.

All of these cases were tried upon exceptions to the

amended libels. The court below, as shown in the

earlier pages of this brief, certified the decree, the

amended libels and the amended exceptions to this

court. As we understand, the rule requiring the lower

court to certify the question to be reviewed was made

in the interest of brevity. The question to be deter-

mined respecting the jurisdiction might frequently

arise during the course of the taking of testimony, or

might otherwise be disguised in a long record, a large

portion of which would be unnecessary to the decision,

and would but embarrass the court in arriving at the

true point for settlement. In these cases the questions

arise upon the amended libels and the exceptions. It

was considered that a certification of the short record,

together with the appeal on the question of jurisdiction,

and the certificate of che court that the appeal is taken

solely upon that ground, would present the matter as

clearly and with as much brevity as it could be pre-

sented in any other form. It was also considered that

it is necessary to fully understand all of the allega-

tions of the amended libels in order to thoroughly com-

prehend the questions raised. The portions of the rec-

ord certified to by the court fully explain all the facts

necessary to be considered here.

Record Three Sisters, pp. 27-35.

Record Dowsett, pp. 30-37.

Record Wilson, pp. 25-31.

The clerk of the court, we notice from the printed

record, has certified, in addition to the papers last

referred to, the other documents filed in the cause.

These. with the exception of the petition for appeal,

supersedeas bond and assignment of errors, are unneces-

sary to be considered.

In Shields v. Coleman, 157 U. S. 168-9, this court

says: “The court below, in its order granting the ap-

peal, said: ‘This appeal is granted solely upon the

question of jurisdiction’; and made further provisions

for determining what part of the record should be cer-

tified to this court under the appeal, under which it

subsequently dzvected the portions of the record to be

certified to this court, and the record was prepared

accordingly. Held, that this was a sufficient cer/zficate

of a question of jurisdiction under the provisions of the

judiciary act of March 3, 1891, c. 517, 26 Stat. 826,

827."

To the same effect is Smith v. McKay, 161 U.S. 355.

357:

It would seem that the method adopted here has

received tl direct sanction of this court.

The claimants filed exceptions to the rulings of the

lower court. These exceptions are broad enough to

cover all the points made in this brief. When the

questions raised go to the jurisdiction of the court and

appear upon the face of the proceedings, it would

seem unnecessary to file exceptions. This is especially

true under the liberal practice in admiralty.

“When the want of jurisdiction is apparent on the face

of the libel, there can be no doubt of the admissibility

and substantial propriety of a simple demurrer.

And indeed it matters not in what mode, however

informal, in such cases, the fact of a defect of jurisdic-

tion is brought to the notice of the court; for in what-

ever manner it may be done the court will, of course,

thenceforth desist from all further cognizance of the

cause, or, in the language of the English High Court

of Admiralty, will ‘prohibit itself.”

The Bee, Wares R. 332.

2 Conkling’s U. S. \dmiralty (2d Ed. Rev.), p. 229.

It will be observed that the exceptions filed to the

amended libels do not specifically direct attention to

the point to be extensively dwelt upon here, that the

final decree of the court of equity renders the subject

matter of the present litigation ves judzca/a, although

this point is involved in the general and particular

exceptions expressly noted. All of the facts necessary

to form a basis for this argument appear upon the face

of the amended libels.

The syllabus of the case of The Maggie Hammond,

9 Wall. 435, reads: “Where a libel was filed against a

foreign ship in an admiralty case, in an admiralty court

of the United States, the libellant and claimant both

being foreigners, the place of shipping and the place of

sities al

consignment being foreign ports, and the whole ground

of libel a matter which occurred abroad, this court con-

sidered the question of jurisdiction open for argument

here, though it was not raised by the pleadings, and

had not been suggested by any one in the court below.”

And on page 449 of the decision the court says: “Aside

from the merits of the controversy they also contend

that the district court had no jurisdiction of the case;

and as that is a preliminary question, it will be first con-

sidered before examining the questions more immedi-

ately involved in the pleadings. No such question is

directly presented in the pleadings, and none such was

raised in the court below, still, the better opinion is

that the question is open to the appellants as it substan-

tially appears that the home port of the ship is Yar-

mouth, Nova Scotia, and that both the libellants and

claimant are foreigners.”

Il.

Under the general maritime law an employe on board

a vessel engaged in navigation is entitled to a lien upon

the vessel for sums due him and arising out of his

employment. This lien he may enforce in an admiralty

court by a proceedingzz rem. And it is provided in See.

4535 of the Revised Statutes that “No seaman shall by

any agreement other than is provided by this title, for

fert his lien upon the ship, or be deprived of any remedy

for the recovery of his wages to which he would other-

wise have been entitled, and every stipulation in any

agreement inconsistent with any provision of this title,

and every stipulation by which any seaman consents to

abandon his right to his wages in the case of the loss

of the ship, or to abandon any right which he may

have or obtain in the nature of salvage, shall be wholly

”

inoperative.” Notwithstanding the general admiralty

rule, and notwithstanding the federal statutes, every

maritime contract and every maritime service does not

give rise to a maritime lien enforceable against the

ship by an action zy rem through the medium of a

court of admiralty. ‘To sustain a maritime lien, there

must be in all cases, etther tn fact or by presumption

of law, a credit of the ship; and when such credit ts

negatived by the evidence, no such lien, whether mar-

etime or statutory, will be recognized.”

The Advance, 60 Fed Rep. 766, 767.

The Samuel Marshall, 4 C. C. A. 385.

Id. 54 Fed. Rep. 396, 403.

The Sirocco, 7 Fed. Rep. 599.

The Erastina, 50 Fed. Rep. 126.

Beinecke v. Secret, 3 Fed. 665, 667.

Consolidated Coal Co, v. The Secret, 6 Fed. Cases.

338.

Scott v. Failes, 5 Benedict, 82.

A lien upon a vessel for personal services and the con-

sequent right to proceed against it zx rem, under the

forms of the practice in admiralty, is based upon either

a presumption of law or fact, that the person seeking

the remedy performed the services upon the credit of

roa;

TRE aie Selaa

the ship, and not upon the personal responsibility of

the owner, or those in charge. A reference to the

cases above cited will show that this principle has been

applied in various instances, to wit: towage, supplies

and wharfage, wages, and coal delivered to a foreign

vessel. In some cases, and under some circumstances,

the attendant presumption is against, and in others is

in favor of the lien. This idea is coeval with admiralty

jurisprudence. It found a ready application in the case

of supplies furnished a vessel in the home port. It has

never been ignored, but, on the contrary, has been

broadened and extended as new circumstances occurred

and new conditions arose. In this respect the common

law finds an analogy in the rules of admiralty. The

cases show that the presumption of law is sometimes

conclusive in favor of the lien, and sometimes conclusive

against it. One of the decisions cited above (7 Fed.

Rep. 599) is an authority for the statement that the

presumption in favor of the lien is sometimes rebuttable.

So far as we know, the first question to be examined

is new. It has never been determined by a court of

admiralty—certainly not by this court. In the appli-

cation of an old rule to new facts, particular attention

will be given to the reason of the rule. The reason

itself must be applied, and the rule must follow upon

the reason. The first inquiry is, Did the libellants, as

a matter of law or fact, render these services upon the

credit of the vessels, or were the services performed

upon the credit of the court of equity in charge of the

property, and upon the credit of the ordinary rules of

equity, giving the persons who are employed by the

court a first right to the earnings of the property under

the control of the court; a first equitable lien upon the

corpus of the property, and a right, if necessary, to the

entire proceeds thereof upon judicial sale? Whatever

may be the true answer to this question, there is yet

another one present in all the cases at bar, and applica-

ble alike to the claim of each of the libellants. The

amended libels show that the property in the hands

of the receiver, including the railway, steamship and

steamboat lines, as well as all franchises of the defend-

ant company, the Oregon Pacific Railroad, was sold

by the receiver. The money thus received was applied,

as in equity it must be applied, first, to the payment of

the claims outstanding against the receivership, and

incurred by the receiver for labor and supplies. It is

apparent that the money derived from the sale of the

entire property of the railroad, its franchises and all,

was insufficient to pay these claims for labor in full.

Can these libellants, after all of this property, includ-

ing the vessels libeled, has been sold for their benefit

in a judicial proceeding, and after they have received

their pro rata of the proceeds therefrom, calculated

according to the established rules of the court of

equity directing and conducting the sale, tnvoke the

aid of a court of admiralty, and cause a resale of the

tdentical property ?

Section 4535 of the Revised Statutes, above quoted,

does not aid either party to this controversy. The

question here is not whether a seaman has attempted

to relinquish a “remedy for the recovery of his wages to

which he would otherwise have been entitled.” Nor is

it a question whether a seaman is attempting to “for-

feit his lien upon the ship.” The genuine question is

whether the libellants were ever entitled to a lien, or to

the remedy invoked. As we read the section noted,

does not assume to establish a rule of admiralty. It

does not extend the seaman’s right to a lien. It merely

declares that any contract made with the view of abridg-

ing his rights or remedies, as then recognized by the

settled practice of admiralty, shall be void. It gives no

new right, no new lien, no new remedy. It prevents

the bargaining away of those existing.

In the case of the Three Sisters the amended libel

alleges that the boat was engaged in traffic on the Wil-

lamette river only between points where there were

regularly employed agents of the receiver; that the

duties of the captain thereon were only such as per-

tained to a pilot; that the boat carried a purser whose

duty it was to sell tickets and to receipt for and see to

the delivery of freight at the various points where

agencies were established; that the captain had nothing

whatever to do with the equipment or supply of the

boat, nor the employment of the various persons occu-

pied thereon. These averments state the facts as they

existed and are admitted. They were made for the pur-

poses of showing that the reasons W hich forbid a master

having a lien in admiralty were absent here. And they

supply reasons why an employe on board should not

have a lien although ordinarily entitled thereto. In the

cases against the Resolute, this state of facts does not

ERE TTT Py SWAT Seeks TRS ee nN ce ie gaia

so plainly appear. It is shown, however, that the last-

named vessel was emploved locally on the bar at

Yaquina Bay. It may, therefore, be fairly assumed that

the facts are substantially the same.

{t is apparent, then, at the very outset, that these

cases differ from the ordinary ones in admiralty. The

men on board were employed by a receiver, and were

subject only to him. So far as their relations towards

each other were concerned, they were in their nature

independent. The power to employ, and the power to

discharge was exercised by the receiver.

When this property was placed in the hands of a

receiver, it was at once put under the government of a

court of equity. The rules of equity applicable are well

understood. .\ll employes of the court, whether serv-

ing as brakemen or sailors, were bound to take knowl-

edge of these rules. The receiver could not give em-

ployment to any one in any manner unauthorized by the

law of receiverships. The persons employed were com-

pelled, by the force of the law itself, to accept the

employment upon the terms and under the conditions

imposed by the rules of equity. These rules make no

distinction between a manager, a sailor, or a day laborer.

In the matter of their right to payment, in the time of

payment, and the sources from which they were to

receive their compensation, they all stood upon an

equality. The same remedies were open to all alike.

equity knows no favor. [quality is equity. One of

the settled-rules of equity is that property in the cus-

tody of a receiver is in the custody of the law.

Wiswall v. Sampson, 55 U. 5S. 64.

MeNulta v. Lochridge, 141 U. S. 327. 332.

Another settled rule is that those who contract with

a receiver must look to the trust property and its pro-

ceeds for compensation.

Barton v. Barbour, 104 U.S. 126, 130.

Turner v. Peoria & S. R. R. Co., 95 Ill. 134-5.

Vanderbilt v. Central R. R. Co., 43 N. J. Equity,

66g, 670.

In Turner v. Railroad, 95 Ill. 135, the court, referring

to receiver's certificates, says: “Whether they are pay-

able in full or only pro rata depends on the fact of the

sufficiency of the fund under the control of the court.

Again, there is no personal liability on any one for their

payment. Only the fund which the court controls is

bound, and that only when it is equitable to charge it

with the payment of the money evidenced thereby.

Their payment can only be coerced by the application

of the court having control of the trust property for an

order upon its acting officer.”

It is the duty of a court appointing a receiver to pay

the debts of the receivership out of all moneys coming

into the receiver's hands, either from the operation of

;

the road, or the sale of the corpus of the property. And

the debts contracted for necessary operating expenses

are, in equity, a lien on the property, prior to the lien

of the mortgage. One of the purposes of the sale of

the property by the court of equity is to pay these

liens.

Kneeland v. American L. & T. Co., 136 U. S. 89.

Kneeland v. Bass Foundry, ete., 140 U. S. 592.

sellingham Bay Imp. Co. v. Fairhaven, etc., Ry.

Co., 49 Pac. Rep. 514.

What, then, is the presumption of law arising from

these contracts for personal services? Is it to be held

that the employes of a court of equity must look to the

rules of equity for protection, or is it to be held that

they, or some of them, may look to a court of admiralty

for the enforcement of the contracts made with the

equity court? Does the employment of a deck hand

on a river boat destroy the rule of equity that those

dealing with such a court must look to the trust prop-

erty for compensation? It was argued in the lower

court, with success, that, under the general maritime

law, a seaman has a lien for his wages regardless of all

conditions and circumstances of his employment or

service; that the maritime law in this respect subordi-

nates every other rule of law; destroys the principles

of equity jurisprudence, and pays no heed to the exer-

cised jurisdiction of a court of competent authority.

It was contended further, that the final decree of a

court of equity does not conclude even the employes of

that court; that among the employes of the equity court

there are certain ones entitled to the protection afforded

by admiralty, and these must be favored to the distinct

pecuniary detriment of all others of their fellow em-

ployes. In our judgment these arguments are based

upon two palpable and fundamental errors: First. They

do not appreciate or contemplate the fact that, in some

circumstances, under the general maritime law, the ren-

dition of services as a seaman gives rise to no lien. Sec-

ond. They fail to recognize the character of receiver's

contracts, and the power and authority which a court

of competent jurisdiction may exercise when it has com-

plete control of a particular subject-matter in litigation,

and of the binding and conclusive force of its final

orders and decrees, regardless of whatever remedies

might have been given, in the absence of a complete

adjudication, in some other court of equal but different

jurisdiction. As hereinbefore shown, it is not true that

every maritime employment carries with it the right to

a maritime lien, even though the service performed 1s

of the nature which ordinarily gives a lien to a mariner.

Certain things must concur. First and foremost there

must be a credit of the ship. Out of the same engage-

ment which gives rise to a mariner’s lien, and a right to

enforce it by a proceeding 22 rem, spring other legal

rights and remedies. Whenever the law gives a lien for

wages it also gives a right 72 personam,and the mariner

may elect which remedy to pursve. His claim arises

ex contractu. \Ne submit the statement for the con-

sideration of the court, that no lien can arise out of any

employment, or by reason of the performance of any

labor of the kind mentioned, unless at the same time

there arises a personal right of action. The two rem-

edies are inseparably connected. One cannot exist

without the other. They are both incidents of the same

contract. In Taylor v. Carryl, 20 How. 583 (Star page

600), this court said: ‘In all causes of action, says the

judge of the admiralty of Great Britain, which may

arise during the ownership of the persons whose ship is

proceeded against, I apprehend that no suit could be

maintained against a ship where the owners were not

themselves personally liable, or where the liability had

not been given up. (The Druid, 1 Wm. Rob. 399.)

And the opinion of this court in The Schooner Free-

man v. Buckingham, 18 How. 183, was to the same

effect." In the cases at bar did any personal right of

action accrue, and, if so, against whom? Certainly not

against the receiver or any officer subordinate to him.

for they were officers of the court, without personal

liability, and the sailors did not deal or contract with

any one else.

If no right 27 personam arose, how can it be claimed

that there is a right 2% rem when the law, which gives

the right zz vem, at the same time and for the same

service, gives a right zz personam? This argument

alone shows that the libellants have not all the rights

under their contracts of employment usually apper-

taining to mariner’s contracts. The reason is because

they are contracts of a court of equity, and the rules of

equity, which allowed the making of the contracts, nee-

essarily affixed to them the incidents of receiver's con-

a pes e.

Oe i

Sp gE AL

Teg ee ERC ERLE ON Se Ra Re OR. ee eee x ee ade 5

tracts. The rules of equity and admiralty are incon-

sistent. An admiralty court cannot make a contract.

A court of equity cannot make a contract other than

of the kind admitted by its principles. It follows that

these contracts, being those of a court of equity, are

governed by equitable rules, and chief among them is

the method of payment, hereinbefore stated. If it is

true that these libellants have liens on the vessels

libeled, they must also have a personal right of action

against the receiver as an individual. If the admiralty

law supersedes one rule of equity, it should supersede

all of them.

An important element in these cases is the fact that

at no time were any of these vessels beyond the terri-

torial jurisdiction of the court having them in charge.

At no time were they expected to go beyond the juris-

diction. The character of the vessels precluded that

possibility. When a vessel, being operated by a receiver,

goes beyond the territorial jurisdiction of the appoint-

ing court, it immediately becomes subject to the pro-

cess of the courts sitting in such foreign jurisdiction.

This statement is not more true of admiralty than it is

of courts of common law. It has been intimated, per-

haps decided, that a foreign court acting upon a prin-

ciple of comity, will decline to seize property in charge

of a receiver of another court coming within its juris-

diction. We understand, however, the rule now to

be that such foreign court will protect its own citizens,

and will subject any property coming within its juris-

diction to the payment of their claims. Such a vessel

in a foreign jurisdiction is subject to seizure and attach-

ment in an action at law, as well as a proceeding in

admiralty. A vessel, sailing the high seas, must neces-

sarily carry some one possessing authority to supply

and man her, and the fact that she was dispatched on

her voyage by a receiver would not prevent the pre-

sumption of a credit to the ship from arising in favor of

material men and of sailors. Zhe Court in sending the

vessel beyond the limits of the state, would adandon tts

jurisdiction and subject her to those rules of admiralty

made necessary for a successful voyage and a safe

return. A case of this kind does not, however, stand

upon the same basis as those on trial here.

We concede that the appointment of a receiver

would not have any effect upon maritime liens which

accrued prior to his appointment. Liens of this de-

scription are no exception to the general rule. The

appointment of a receiver does not discharge any prior

lien.

Moran v. Sturgis, 154 U. S. 256, 282.

High on Receivers (3d Ed.), Sec. 138.

We also concede that a purchaser under a receiver's

sale would take property so sold subject to any lien

attaching prior to the receivership and remaining un-

paid. But it is denied that any lien, of any description,

can arise within the jurisdiction of the court and out of

its contract made while administering its equitable

relief. It is also denied that, if such a lien can arise, it

Roam eat

i SRSA Sab ea wae

ee aE Oe

will survive the final decree of the court in the cause in

which the receiver was appointed and the contract

made.

It is further admitted that while a vessel is in the cus-

tody of the law, she is subject to a lien, in case of acci-

dent or collision. This is true even when the vessel is

sequestered in the hands of a marshal.

The Esteban de Antunano, 31 Fed. 920-1-4.

Paxson v. Cunningham, 63 Fed. Rep. 134.

The reason for this, so far as we can perceive, is that

no personal right of action can arise as against an officer

of the law, while acting in his official capacity under and

within the directions of the court whose officer he is.

Unless a right to proceed directly against the offending

vessel is given, the law would not afford a remedy for

a distinct damage. As said in Paxson v. Cunningham,

63 Fed. Rep. 134. “A maritime lien upon the offending

ship for an injury by a collision is ayws zz re in the ship

itself.”

In cases of this character the vessel is regarded as a

“sentient being, endowed with a personality capable of

being called to account for injuries inflicted by it.”

1 Am. & Eng. Ency. of Law, p. 200.

The rule, however, is different in matters of contract.

In the Esteban de Antunano, 31 Fed. Rep. 924, the

court says: “When the sheriff of the parish of Orleans,

Louisiana, seized and took into his possession, under

a RY OST Te ae gy a LRG ANS RRND OM NY BRR Rea RUNS Ie eT Oe Ee PON ERE _—

process from the state court, the steamship Antunano,

she went into the custody of the law, and her contem-

plated voyage was broken up and abandoned, and

thereby the authority of her owners and of their agents,

the master and ship’s husband, to thereafter affect the

ship by any conduct or contract to result in a lien on

the ship was ended. By the seizure all persons were

notified of the change of control and possession. While

the ship was in the custody of the law it is doubtful

whether on any account or for any service (except per-

haps for salvage or through a collision) any lien could

arise on the ship; certainly not without the express

authority of the court having the property in posses-

sion. Liens for supplies and materials are based on

contracts entered into on behalf of the ship. When

there is no representative of the ship or her owners

authorized to contract, there can be no contract, and

therefore no lien based on a contract. The supposed

necessities of the ship or of her crew would warrant

no person in interfering without the authority of the

sheriff or the court.” And, on page 926 of the decision,

the court says: “The material men in this case may

seem to be badly treated, but it is not the fact. Each

one of them furnished supplies with his eyes wide open

—or else willfully shut—with the hope that, through

some payment or settlement, the seizure of the ship

would be released and the abandoned voyage resumed.

Neither the ship nor the claimants are responsible for

their too sanguine expectations.” See also

Parker y. The Little Acme, 43 Fed. Rep. 925.

The Augustine Kobbe, 37 Fed. Rep. 696.

We realize in the cases last referred to the vessels

were sequestered in the hands of officers of the courts

having jurisdiction over the controversies pending, and

that these officers were only empowered to keep the

vessels and not to operate them. We also understand

that the vessels libeled in these cases were being

operated by the command of the court having them in

charge. We cite these cases for the purpose of showing

that the lien for wages arises out of contract. and

springs from a presumption of a credit of the ship, as

well as to note the distinctions drawn in cases of acci-

dent. These decisions are authorities to this further

effect; that a person contracting with those in charge

of a ship are held to some understanding of the situa-

tion of the vessel, and the power to bind the ship pos-

sessed by those assuming to act with regard to her. If

a vessel in a particular case happens to be in the hands

of a marshal, those contracting for the rendition of

personal services or the furnishing of supplies are pre-

sumed in law to know the nature of the custody and

the limitation of the power of the officer. In no other

way can the authority of the court be maintained. If

a vessel chances to be in the custody of a court of

equity those contracting with the court or its employes

must be presumed in law to know of that fact. And

they must also be presuined to know that the rules pre-

vailing in equity, as well in reference to the means of

paying employes as in all other respects, are different

from the rules in force in admiralty, and that the

equitable rules control.

The receiver and all of the employes engaged in con-

ducting the business of the railway and steam naviga-

tion lines of the defendant corporation were servants

of the court. The court was one of competent juris-

diction; it had cognizance of the subject-matter of the

litigation, and was proceeding to administer the well-

settled rules of equity jurisprudence applicable in the

particular case. The jurisdiction of the court was not

partial. It was complete. Every act done by the

receiver in purchasing supplies, employing servants, or

to any other purpose, was the act of the court. // was

an exercise of jurisdiction, \t was contended, on the

other side, and so decided by the lower court, that a

maritime contract carried with it, as an incident, the

right to a lien, and it is said this rule grows out of the

necessities of commerce. We grant all that. But are

the contracts in question maritime? And what com-

mercial necessity exists for a lien in admiralty, when

the property is at all times retained within the juris-

diction of the equity court, and when the court is

bound under its rules to sell the vessels, if necessity

arises, to pay the employes? There is no commercial or

other necessity for a sale in admiralty when the power

to sell in equity attaches as an zvcrdent to the contract.

The same purpose is accomplished, but in a different

forum, and in a different manner. The proctors for the

libellants deem these considerations of "a force. They

open and close their cases with the declaration that

these men made the contracts to work upon the vessels.

That, they elaim, is sufficient. It is true they made

such contracts. But with whom? There were neces-

bh RE GAR CARR SO

sarily two parties to the contracts. The sailors were

the parties of the one part, and the court of equity the

party of the other part. Did the court of equity re-

nounce its principles and its jurisdiction when dealing

with these favored individuals? It is impossible. It

could not; it had no power to do so. No incident not

known to the rules governing a court of equity could

attach to any contract made by it. The very making

of the contracts was an exercise of its equitable juris-

diction. We would say that the contracts were made

by a court of equity, and the zxc¢dents of a recetver’s

contract attached, because of the jurisdiction of the

court, and the character of the proceedings in which

the contracts were made. A court cannot make a con-

tract under which it may, by a hostile proceeding in

another court, be ousted out of its own jurisdiction.

The libellants were employes of a court of equity, and

not wards of admiralty.

ILI.

It seems to us the argument necessary to be made to

support the jurisdiction of admiralty in these cases

totally fails to take notice of the system of laws as

administered in the United States. In England at one

time undignified contentions constantly arose between

the courts of common law and admiralty. Very little

respect seems to have been paid by either court to the

process or orders of the other. In this country, as we

understand it, there is no conflict in the jurisdiction of

o> Sa

UTE SABA ONS i LO Aer HT oe

the several courts, state or federal, common law, equity

or admiralty. It is true that the rules governing in

each forum are diverse, and the methods of procedure

are different. Nevertheless the jurisdiction of courts

of admiralty, of common law and of equity, is concur-

rent and co-ordinate, in the sense that when either of

such courts, through its ordinary and known procedure,

acquires jurisdiction, of, and determines a particular sub-

ject-matter in litigation, the decree of such court is final

and conclusive and cannot be reviewed, or the subject-

matter thereof re-examined, in any other court. When

a controversy has been determined by either of the

tribunals named and has gone to final iudgment, it is

res judicata and cannot be reviewed or relitigated in the

same court or in another tribunal administering different

rules or applying different remedies. Counsel ask this

court, as a court of admiralty, to decide that a court of

equity by its final decree has failed to do justice in the

particular case. It is tantamount to a request for a

review of the final judgment of the equity court. It is

a complaint, based upon the idea that if the matters had

originally been under the jurisdiction of admiralty, dif-

ferent rules would have been applied. The admiralty

rule is that the seaman has a lien paramount, practically

speaking, to all others. The equity rule is that equality

must prevail. It does not recognize one employe as

being better than another. Each of the amended libels

avers that the property in charge of the receiver was sold

by him under the orders of the court. We contend that

this decree is final and, after its affirmation by the

Supreme Court of Oregon, conclusively settled all ques-

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tions arising out of the receiver's management of the

affairs of the corporation.

It is held that “the admiralty jurisdiction of courts of

the United States, although exclusive on some subjects,

is concurrent upon others. The courts of common law

deal with ships or vessels as other personal property.”

Taylor v. Carryl, 20 How. 583 et seq.

Freeman v. Howe, 24 How. 450-1-6.

The Hine v. Trevor, 4 Wall. 555, 556.

The Moses Taylor, 4 Wall. 411-412.

Tefit v. Sternberg, 40 Fed. 2-5.

Leon v. Galceran, 11 Wall. 185.

Steamboat v. Chase, 16 Wall. 522.

Sherlock v. Alling, 93 U. S. 99.

Schoonmaker v. Gilmore, 102 U.S. 118.

Insurance Co. v. Dunn, 19 Wall. 223.

New Orleans v. S. S. Co., 20 Wall. 387.

It is distinctly decided in the cases last cited that

either a court of common law, or a court of equity, is

competent to adjudicate questions arising out of mari-

time contracts. And that the jurisdiction is concurrent

with admiralty. Such a court has no right to proceed

in rem against the vessel, but it can hear and finally

determine all such questions. And it may apply the

remedy appropriate to the case. The only restriction

resting upon the state courts in such matters is that

they may not adopt the forms of admiralty, but must

proceed according to their own forms and administer

remedies according to their own rules. The vesu/tisa

sale of the property, And when once a state court has

determined a matter it is settled, and cannot thereafter

be brought within the jurisdiction of admiralty. We

must make the confession, even though it be a humil-

lating one, that we cannot see any doubt about this. It

is said in Taylor v. Carryl, supra, pages 599 and 6oo:

“It follows, by an inevitable induction from the cases

of Harmar v. Dennie, 3 Pet. 299; Hagan v. Lucas, 10

Pet. 400; and Peck v. Jenness, 7 How. 612, that the

custody acquired through the seizure of manual occu-

pation of the Royal Saxon, under the attachment by

the sheriff of Philadelphia county, could not legally be

obstructed by the marshal, nor could he properly assert

a concurrent right with him in the property, unless the

court of admiralty holds some peculiar relation to the

state courts or to the property attached, which author-

ized the action or right of its marshal. The relation of

the district courts, as courts of admiralty, is defined

with exactness and precision by Justice Story in his

Commentaries on the Constitution. He says: ‘Mr.

Chancellor Kent and Mr. Rawle seem to think that the

admiralty jurisdiction given by the constitution is, in

all cases, necessarily exclusive. But it is believed that

this opinion is founded on mistake. It is exclusive in

all matters of prize for the reason that, at the common

law, this jurisdiction is vested in the courts of admir-

alty to the exclusion of the courts of common law. But

Sh ype RES

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Site a ae eusce

in cases where the jurisdiction of common law and

admiralty are concurrent (as in cases of possessory suits,

mariners’ wages and marine torts) there is nothing in

the constitution necessarily leading to the conclusion

that the jurisdiction was intended to be exclusive; and

there is no better ground, upon general reasoning, to

contend for it. The reasonable interpretation,’ con-

tinues the commentator, ‘would seem to be that it

conferred on the national judiciary the admiralty and

maritime jurisdiction exactly according to the nature

and extent and modifications in which it existed in the

jurisprudence of the common law. When the juris-

diction was exclusive, it remained so; when it was con-

current, it remained so. Hence, the states could have

no right to create courts of admiralty as such, or to

confer on their own courts the cognizance of such cases

as were exclusively cognizable in admiralty courts. But

the states may well retain and exercise the jurisdiction

in cases of which the cognizance was previously con-

current in the courts of common law. This latter class

of cases can be no more deemed cases of admiralty and

maritime jurisdiction than cases of common-law juris-

diction.’ (3 Story’s Com., Sec. 1666, note.)

In conformity with this opinion, the habit of courts

of common law has been to deal with ships as personal

property, subject in the main like other personal prop-

erty to municipal authority, and liable to their remedial

process of attachment and execution and the titles to

them, or contracts and torts relating to them are cog-

nizable in these courts.

It has not been made a question here that the Royal

Saxon could not be attached, or that the title could

not be decided in replevin. But the district court seems

to have considered that a ship was a juridical person,

having a s/a/us in the courts of admiralty, and that

the admiralty was entitled to precedence whenever any

question arose which authorized a judicial tribunal to

call this legal entity before it. The district court, in

describing the source of its authority, says of the con-

tract of bottomry that “it is made with the thing, and

not the owner,” and that the contract of the mariners

is similar; that the yes “represents” in that court all

persons having a right and privilege, while the rights

of the owner are treated as something incorporeal, sep-

arable from the ves, and which might be seized by the

sheriff, even though the yes might be in the admiralty.

The representation is not true in matter of fact, nor in

point of law. Contracts with mariners for service, and

other contracts of that kind, are made on behalf of

owners who incur a personal responsibility; and if lend-

ers on bottomry depend upon the vessel for payment it

is because the liability of the owner is waived in the

contract itself. “In all causes of action,” says the judge

of admiralty of Great Britain, “which may arise during

the ownership of the persons whose ship is proceeded

against, | apprehend that no suit could ever be main-

tained against a ship where the owners are not them-

selves personally liable, or where the liability had not

been given up.” (The Druid, 1 Wm. Rob. 399.) And

the opinion of the court in The Schooner Freeman v.

Buckingham, 18 How. 183, was to the same effect.

Un aT a RRS pa EREp RENAE Te gl

By:

In courts of common law the forms of action limit a

suit to the persons whose legal right has been affected

and those who have impaired or injured it. In chan-

cery the number of parties is enlarged, and all are in-

cluded who are interested in the object of the suit; and

as the parties are generally known, they are made par-

ties by name and special notice.

In admiralty all parties who have an interest in the

subject of the suit—the ves—may appear and each may

propound independently his interest. The seizure of the

res and the publication of the monition or invitation to

appear is regarded as equivalent to the particular serv-

ice of process in the courts of law and equity.”

We take it to be settled that when one court of com-

petent power acquires jurisdiction over a subject-matter

of litigation and proceeds to final judgment, that judg-

ment is conclusive, even though the parties litigant

might in the first instance have selected another forum

for the settlement of their differences. Hence, the well-

recognized plea of a former adjudication. It is not nec-

essary to cite any authority to support this statement

as a general proposition. The reasons for the estab-

lishment of the principle are many and obvious. The

force of judgments rendered in the United States

comes direct from the constitution. This court is asked

to make an exception in favor of a court of admiralty

and against a court of equity. It is asked to go further

than that. Counsel would have this court declare that

the acé/ of exercising jurisdiction in equity confers juris-

diction on admiralty.

Suppose a receiver is appointed in a federal court of

a corporation cngaged exclusively in operating a line

of steamboats ona river. to Feeeiver, pursuant to

the orders of the court, purchases supplies and employs

various individuals in different capacities on board the

vessels. The earnings derived from the operation of

the lines are insufficient to pay the wages of the em-

ployes, and the claims of those furnishing supplies. The

employes and material men seek to libel the vessels in

adnuralty. The district judge, sitting in the circuit

court, appointed the receiver and supervised the man-

agement of the property. The same judge, sitting in

admiralty, pronounces judgment upon the showing

made in the libel. Would he decide that he was power-

less to enforce his contracts, made as chancellor, and

proceed in admiralty to sell all of the property in his

charge in equity? To say the least, this would be a

curious termination of the equity proceedings, and a

singular adjustment of the rights of those concerned.

We suppose the chancellor would not have any judicial

knowledge, in the equity case, of the admiralty proceed-

ings. And we are incapable of surmusing his emotions

upon being formally notified by the receiver whom he

had placed in charge of the property of the complete

asportation of the subject-matter of the equity suit. A

proceeding of this character would certainly not be

accompanied by the gravity customarily attending judi-

cial action. Suppose again that no libel is filed. The

court of equity proceeds to final judgment. A decree

is entered directing the sale of all the property in the

hands of the receiver; first, to pay the expenses of opera-

tion incurred by the court. The property is not worth,

and therefore it does not bring, the amount outstand-

ing. All of the money realized is distributed pro rata

among the employes and material men. A part of the

claims remain unpaid. Would the equity judge, sitting

wn admiralty, take cognizance of a libel brought by the

employes and material men for the unpaid balance, seize

the property in the hands of the purchaser at the re-

ceiver’s sale, and then sell ihe same property over again?

It seems to us that upon the application first suggested

the court would rule that equity had the power, which

it would exercise, to sell the property for the benefit of

the employes and others equally entitled. And, upon

a libel filed after the receiver's sale, the ruling would

be that the property had once been sold for the benefit

of the libellants and the title had passed free from their

claims. The libellants, strictly speaking, would not be

parties to the equity proceedings. | Nevertheless, the

primary duty of the court is to protect their interests,

and in the case supposed, as in these cases, the decree

would provide that the property be sold for their ben-

efit. and it would be so sold. If the decree contained

error it could only be corrected on a direct appeal. If

a double sale could not be made when the entire prop-

erty consisted of steamboats, it could not be made in

these cases where the property consisted half of steam-

boats and half of railroads. We apprehend the juris-

diction of admiralty is not influenced, nor does it depend

upon a calculation of the proportion the steamboat lines

bear to the railroad lines. Sailors in admiralty, awd 7x

equity are entitled to have the vessels sold to pay their

wages. In neither court can they twice sell the same

property for the same purpose, nor can they accomplish

this end by proceedings in both courts. The final de-

cree of the court of equity is as much an adjudication

of the rights of employes and all others interested as it

would be if they were all joined in the suit. The court

employing these seamen was at all times open to receive

any representation, by proper petition, which they

might have seen fit to make, looking towards the pro-

tection of their rights. In admiralty they would not

have been entitled to any greater relief than they were

in equity. In equity they were entitled to and received

the entire proceeds of this hopelessly bankrupt prop-

erty. Can they, after accepting their proportion of the

moneys arising from the sale, rush into another court

and cause the resale of a part of the same property for

their own peculiar and special benefit?

Suppose a sailor entitled to a lien on a particular ves-

sel should elect to bring an action in a court of common

law, as he might do, and in the proceedings thus insti-

tuted sell the vessel under execution for his claim. The

amount realized is not sufficient to pay him in full.

Could he then proceed in admiralty zz rem, and seize the

ship in the hands of a purchaser at the first execution

sale? The case supposed is really not different from

those at bar. The sailor would have a right to bring an

action at common law for the amount due him. The

decisions expressly so hold, and the statutes of the

United States reserve it to him Section 563 reads as

follows: ‘The district courts shall have jurisdiction as

“

‘

seb ERNE Be SESS RSI AN: tr a rE ane mae ms npr occ aon ere eneghsi write aeRO

follows: . . . Eighth. Of all civil causes of admi-

ralty and maritime jurisdiction; saving to suitors in all

cases, the right of a common-law remedy, where the

common law is competent to give it.”

It is true that a seaman cannot, in an ordinary case,

bring suit in a court of equity to enforce the claim due

him. In these cases, however, the demands in his favor

arose out of the operation of the property of the railway

company by an equity court, and after its jurisdiction

had attached. Here, by reason of circumstances of an

unusual character, the seaman was 7a court of equity,

and that court had complete power and control over all

matters pertaining to the management of the affairs of

the corporation. Certainly it will be conceded if equity

had the power to make the contracts it had power to

enforce them, and they must in their nature be equitable

contracts. Suppose these libellants had represented by

proper petition to the court of equity having these mat-

ters in charge, that they, as employes on board boats,

had a right to full payment of their wages out of the

proceeds of the sale of all of this property before any

one else was entitled to receive anything. They would

have had a standing in court for the purpose of making

this or any other pertinent representation. And sup-

pose they had supported their petition by the argument

that in admiralty they would be entitled to such a pri-

ority. The court of equity could have made but one

answer. It was not administering admiralty rules.

That the contracts in question were made with a court

of equity and no favoritism was permitted by its doc-

trines. That they were limited to the remedy given by

equity. Suppose, further, that these employes should

have attempted in some fashion, it is inconceivable how.

to move a court of admiralty to cause a distribution of

the funds arising from the sale, and in the hands of the

equity court, in accordance with the rules of admiralty.

There is no practical difference between the case sup-

posed and those at bar. In the case supposed, they

would attempt to interfere through admiralty with the

apportionment of funds in the hands of a court of equity

by denying the jurisdiction of the court to apportion

them otherwise than as prescribed by the admiralty

law. In the cases on trial here, they have accepted their

Prorata of the fund, and now seek, in admiralty, to deny

the jurisdiction of the equity court, and to compel a

relitigation of the matters already determined and a

readjustnient of their rights.

One other point in this connection. A suit to fore-

close a mortgage is in its nature a proceeding zz rem.

Farmers Loan & Trust Co. v. Nor. Pac. R. R. Co.,

69 Fed. 871-2-8, 880-882-884.

Martin v. Pond, 30 Fed. 15.

Railway Co. v. Gay, 26 S. W. 599.

In the case of the Farmers Loan & Trust Co. v. Nor.

Pac. R. R. Co., supra, at page 884 the court says:

“And proceedings zx rem are impossible in a

court having no jurisdiction of the res, Now as the

custody, control and operation of a railroad through

receivers must be pursuant to proceedings 7” rene juris-

diction thereof cannot be acquired by a distant court,

although it may have jurisdiction to foreclose the mort-

gage by a suit 7% personam.”

It may be said that the suit to foreclose the mortgage

mentioned, in which these vessels were sold, was not a

proceeding 2” vem, as the phrase is generally used. All

of the property, however, was necessarily in the pos-

session of the court, and was sold in specie under a de-

cree directly authorizing the sale. Whether the pro-

ceeding is called one zz rem, or is properly designated

by another name, is purely a question of nomenclature.

The principle is the same.

Mr. Chief Justice Marshall says, in speaking of a

judgment 27 rem in Williams vy. Armroyd, 7 Cranch, 423,

432, cited in Hilton v. Guyot, 159 U.S. 167: ‘‘The sen-

tence of a competent court proceeding 2% vem is con-

clusive with respect to the thing itself, and operates as

an absolute change of the property. By such sentence

the right of the former owner is lost, and a complete

title given to the person who claims under the decree.

No court of co-ordinate jurisdiction can examine. the

sentence. The question, therefore, respecting its con-

formity to general or municipal law, can never arise, for

no co-ordinate tribunal is capable of making the in-

quiry.”’ nd it has been very recently held in Hilton vy.

Guyot, supra, page 167. that “the most common illus-

trations of this are decrees of courts of admiralty and

PTE TRCN ETE

prize, which proceed upon principles of international

law. . . . But the same rule applies to judgments

in rem under municipallaw.” See also Eunis v. Smith,

14 How. 251.

And it is decided that, “By the law of most if not all

civilized nations, the sale of a vessel by a proceeding zx

rem, in a court of competent jurisdiction, extinguishes

all liens upon her and vests a clear and indefeasible title

in the purchaser.”

The Amelie, 6 Wall. 18.

Taylor v. Carryl, 20 How. 583.

Freeman v. Howe, 24 How. 450.

Tefft v. Sternberg, 40 Fed. 2.

It is clear that the court of equity was a court of com-

petent authority. It had jurisdiction of the subject-

matter of the litigation. The jurisdiction was exercised.

Final decree was entered and affirmed by the court of

last resort. The property seized under the process of

the district court has been once sold for the benefit of

libellants. It cannot be again sold in admiralty, or else-

where, for the same purpose. The libellants are cred-

itors of the receiver and stand upon precisely the same

footing as all other creditors. When they were em-

ployed they gave credit to the entire trust property.

They have received the full proceeds arising therefrom.

See aR ee a in ng es Fees eee |

Minas a a ie aed

‘s

‘|

Seti

IV.

We think these cases will be determined upon the

points hereinbefore suggested. | We ask permission,

however, to briefly present two other points relating to

different branches of the cases. The questions are of

importance and the authorities conflicting. If these

remaining questions are not jurisdictional ones, the

arguments will not be considered.

Libellant George Dowsett sues on a claim due him

personally and on another claim transferred to him by

assignment. The point was made in the lower court

that a right to a lien in admiralty is a personal privilege

and one which cannot be assigned so as to give the

assignee a right to maintain a proceeding zz rem i

admiralty. This seems to have been the ruling in the

following cases:

Logan v. The Aeolian, 15 Fed. Cases, 786.

Rusk v. The Freestone, 21 Id. 19.

The Pride of America, 19 Fed. Rep. 607, 608.

The Gate City, 5 Biss. 200.

The opposite view is expressed in

American Eagle, 19 Fed. 879.

M. Vandercook, 24 Id. 474.

Liberty No. 4, 7 Id. 231.

The New Idea, 60 Id. 294.

, Cage ae ale ee pak Taya 7 .

SPE PR TO EPR REN EIR ISTE I LUE A I

It is contended by the appellants that a court of ad-

miralty has no jurisdiction to enforce the claims of R. J.

Young and George Raabe in the case of the Three Sis-

ters, and the claims of the same parties in the case of

the Wm. M. Hoag, hecause they are barred by the lim-

itation of the Oregon statutes. It has been stipulated

that the decision in the case of the Three Sisters shall

determine the points involved in the case of the Wm.

M. Hoag. Young and Raabe each acted as captain.

The amended libel states that Raabe acted “as captain

and watchman in charge of said boat at the agreed price

of $125.00 per month.” Under the general admiralty

rules the master of a vessel is not entitled to a lien for

his wages. The rule is the same when the master em-

ploys himself in some other and additional capacity.

14 Am. & Eng. Ency. of Law, p. 430 and note.

M. Vandereook, 24 Fed. Rep. 472. 474-5.

The Aeolian, 1 Biss. 321.

The existence of this rule made it necessary for op-

posing counsel to rest these claims upon the provisions

of the law of Oregon extending the jurisdiction of ad-

miralty. The state statute gives all persons employed

upon a boat a lien to secure their pay. It is provided

by Sec. 3706 of the law hereinbefore quoted, that “all

actions against a boat or vessel under the provisions of

this title shall be commenced within one year after the

cause of action shall have accrued” Judge Deady, sit-

ting as the District Judge of the United States for the

District of Oregon, construed this identical statute.

The City of Salem, 31 Fed. Rep. 616, 619.

The court, on page 619 of that decision, says: “In

enforcing liens on vessels given by state statutes, courts

re)

of admiralty do so subject to every qualification and lim-

itation attached to them by such statutes,” citing The

Alida, 1 Abb. Admr. 165. See also

The Red Wing, 14 Fed. Rep. 869.

The Lottawanna, 88 U.S. 559, 582.

In the case of the Red Wing, supra, the court says:

“Where a lien for supplies furnished a vessel at 1ts home

port was, by the terms of the statute conferring it, only

enforceable within nine months after the supplies were

furnished, and the vessel to which they were furnished

was, during the whole of the prescribed period, in the

custody of a state court; Ae/d that the fact of such cus-

tody did not enlarge or suspend the operation of the

state statute.” The statement of facts in the case shows

that “the defendant vessel was owned by a corporation

whose assets, including the vessels named, had passed

into the custody of a receiver, appointed by the state

court after the demand accrued, and that immediately

after such custody ceased the suit was instituted, al-

; though nine months had elapsed.”

Beste yn ERY LAS ST Tre me

: 55

It was argued by the other side in the court below

and so decided, that all of the provisions of the statute

which undertake to confer upon state courts jurisdiction

to enforce the liens given by the acts are void. “And,”

says the court, “the limitation of such actions is there-

fore necessarily ineffectual and void.” It is definitely

decided that the courts of the several states have no

power to enforce maritime contracts by a proceeding zz

rem, because the constitution has reposed the exclusive

jurisdiction, to apply the particular remedy, in courts

of admiralty. But, with all deference to the learned

court below, we are unable to comprehend what this

has to do with the power of the legislature to attach

conditions to new rights given by it to admiralty courts.

It is well settled that admiralty will enforce a state stat-

ute giving liens on vessels where none existed under the

general admiralty law, and that courts of admiralty will

enforce the new law according to their own peculiar

forms. Ifa court of admiralty will enforce a state stat-

ute of the kind mentioned, what overpowering authority

has it to select certain portions of the statute and reject

others? If the state may confer jurisdiction upon the

admiralty courts, why can it not name the reasonable

conditions upon which it may be exercised? Surely a

suitor, invoking the aid of a statute, cannot mutilate it

so as to serve his own purposes, and defeat the inten-

tion of the legislature. This section imposing a limita-

tion is a part of the law conferring the lien, and was

passed at the same time. In effect, the statute says

certain persons may have a tien for one year, and no

longer. The lower court says, by force of the statute

PRAGA A STD

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plane Roitace Da Aap Ribas Saami AE Cae

certain persons have liens for any number of years. We

do not see anything in the case of the Hine v. Trevor,

4 Wall, 555, cited by the lower court, sanctioning such

a construction. It cannot be said that this section 1s

intended to apply only to the state courts. It is in-

tended to govern any court in which the lien given may

be enforced.

The meaning of this law, like any other one, we sup-

pose is to be found by an examination of all its provis-

ions. Ifa part of it is to be rejected, all of it ought to

be upon the particular point. It seems to us, and we

submit it to the court for decision, that the true inter-

pretation of this statute is, that the persons specified

may have the lien given on condition that they proceed

to its enforcement within the period named. It is a

right founded upon a condition. The condition is a

part of the right. It modifies and limits the right. “It

detracts something from it. The grant and the condi-

tion annexed in reality form the right. The right to

the lien is qualified. Precisely what it is can only be

ascertained upon reading and accepting the whole stat-

ute. This court has held that it is necessary to comply

with the formalities prescribed by the state law to per-

fect a lien. The Lottawanna, 21 Wall. 558, 559. 578,

379. On pages 578 and 579 it is said, “And a further

act provides that if the privilege be not in writing, the

facts on which it is based must be stated in the affidavit,

which must be recorded” (citing Revised Civil Code).

“None of these requisttes having been performed, no

lien can be claimed under the state law.” From this

LEMOS GRIGG RMT LEE IT INERT IIE OTE IE, SS SARE A

decision we infer the rule of this court is, that persons

invoking the aid of a state statute in admiralty are com-

pelled to comply with the statute in all essential re-

spects. If it is necessary to comply with the terms of

the staute to perfect a lien, why is not the same compli-

ance imperative as a prerequisite to the right to enforce

alien? It was claimed by the libellants that the limita-

tion would not run during the time the vessel was in

the hands of a receiver. The case of the Red Wing,

supra, fully covers this point. In support of this con-

tention, the argument was that admiralty could not

obtain jurisdiction without a seizure, and in consequence

no action could be begun during the receiver's posses-

sion. This argument will not bear scrutiny. The

statute hereinbefore quoted prescribes that all actions,

etc., “shall be commenced within one year,” etc. The

commencement of an action and the acquisition of 7ur7s-

diction over the defendant, or the thing proceeded

against, are two different matters. This particular

statute stands alone. The question is, when within its

meaning is an action deemed to be commenced? It

would seem to us, that the filing of the libel is the com-

mencement of the proceeding. The filing of the libel

accomplishes something. If it does not commence the

proceeding. we are at a loss to understand what effect it

has.

The rule that a court of admiralty has no jurisdiction

of the ves until after seizure, does not state that the

action is not commenced until after seizure. In the

absence of any express statement in the law to that

Ree rere: WSOPE WAMU YIGAL EL ns

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effect. it would seem to us the filing of a libel is in law,

what it is in fact, the commencement of the proceed-

ings. How can any seizure be made until after the pro-

ceedings are @commenced? Is the seizure of a vessel

under a writ, issued at the instance of a libellant, the

commencement of the proceeding, or is it the final act

giving the court jurisdiction over the ves under the

proceeding theretofore commenced? In the City ot

Salem, 31 Fed Rep. 619, the court says, “Neither can

the bank have a lien for this demand, unless it appears

that it accrued within one year from the fi/zzg of the

Iihel”” . . . And in the Red Wing, 14 Fed. Rep.

872, it is said, “The fact that the lien could not

have been previously exforced by seizure, in consequence

of the custody of the state court, does not enlarge or

suspend the operation of the statute. The hen expired

before the suit was brought.” With deference to the

lower court we suggest that this is the only correct con-

struction of this statute. Any other might render the

law nugatory, or else prolong the statutory period indef-

initely. The limitation of this statute begins to run

from the time the cause of action accrues, and not

from the time plaintiff may choose, or be able, to seize

the boat. Suppose a merchant should furnish supplies

to a vessel, in this, her home port. The statute would

give him a lien for the amount due. Payment is not

made, and the vessel sails for a foreign country. Within

a year a libel is duly filed and a writ issued command-

ing the marshal to seize the ship. He returns his ina-

bility to do so, because of the absence of the vessel

beyond his jurisdiction. In such a case would it be held

PDE RON CCAR ROG $f Cet R REN ATER tert ee a owes ere soon

that the action had not been commenced because no

seizure had been made? We do not think so. It seems

to us if the opposing argument is to prevail, the result

will be not only a violation of the statute, but also of

the principle of business policy which condemns secret

liens. It was said by Mr. Justice Bradley, in the Lotta-

wanna, supra, that “the existence of secret liens is not in

accord with the spirit of our commercial usages, and a

uniform law by which the liens in question should be

required, within a reasonable time, to be placed on

record in the custom house, like mortgages, and other-

wise properly regulated, would be a great advantage to

the business community.”

It seems to us, by holding in accord with The City

of Salem, and The Red Wing, supra, \ien holders, will

be compelled to file their libels within the year, although

seizure cannot be made, thus making their claims mat-

ters of public record, and often of public notoriety.

A stipulation has been entered into agreeing to sub-

mit these causes on printed briefs, and without oral argu-

ment.

We trust that this fact, in connection with what seems

to us the importance of the questions involved, will serve

as an apology for the length of this brief,

Portland, Ore., August 27th, 1897.

Respectfully submitted,

WILLIAM T. MUIR,

Of Proctors for Claimants.

JOHN W. WHALLEY and

WILLIAM T. MUIR,

Proctors for Claimants.

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BRIEF. FOR APPELLANTS _

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‘ Appeal from the District Court of the United States 4 tee

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IN THe

Supreme Court ofthe United States

OCTOBER TERM, 1897.

THE STEAM TUG “RESOLUTE,” A. B.

HAMMOND, and E. L,. BONNER,

Claimants and Appellants.

us. No. 16,200

HENRY E. WILSON, SIDNEY G. WOLF-

KILL, THOMAS NELSON & CHARLES

JAHN,

Libellants and Respondents.

THE STEAM TUG “RESOLUTE,” A. B.

HAMMOND and FE. L. BONNER,

Claimants and Appellants,

vs.

GEORGE DOWSETT,

Libellant and Respondent.

"No. 16,199

THE STEAMER “THREE SISTERS,” THE

OREGON CENTRAL AND EASTERN

RAILROAD COMPANY,

Claimants and Appellants.

sa ‘No. 16,202

R. J. YOUNG, M. BELL, ¢. A. BELL, H.

ROBERTSON, WwW. HOWELL, W. H.

SUTTON, ef ai,

Libellants and Respondents.

Appeal trom the District Court of the United States

for the District of Oregon.

BRIEF FOR APPELLANTS

In REPLY ON Morronx TO Dismiss AppEALs.

The argument filed for the res ondents, found on

pages 3 to 10, inclusive, of their brief, assumes the

point in issue. It is there stated that no appeal lies

to this court in these cases, because the court below

had jurisdiction of the parties and of the subject matter

bs] iad . . . .

4 of litigation, and that if any error was committed it was

a error on the merits which cannot be considered here.

3 The only point insisted upon by appellants is that

the lower court did not have jurisdiction of the subject

matter of the litigation. The method of discussion

pursued does not alter this fact. The argument made

Say Lane es)

under subdivision 2, pages 22 to 38 of our original brief,

is intended to show that, owing to the circumstances

attendant upon the transactions set out in the amended

3 libels, no right of action 7x2 vem: or in personam arose in

5 favor of the libellants of which a court of admiralty

: could take cognizance. The ultimate reason, as ex-

: plained on pages 37 and 38 of the brief mentioned, is

4 because the contracts pleaded are not maritime con-

tracts.

And the argument made under subdivision 3, pages

38 to 52 of our former brief, is designed to show that

the matters alleged in the amended libels have passed to

final judgment and cannot form the sebyect matter

of litigation in a court of admiralty or any other court.

; We entirely agree with the authorities quoted in the

opposing brief defining the meaning of the term juris-

diction. It is the “power to hear and determine the

subject-matter in controversy between parties to a

suit.” We also agree in the statement there made

that “if the law confers the power to render a judgment

DY ANNA a re nt rae Cae Te Ne on WN ET gn rR rica aN Te ne kate aug - a - ,

2 ELT IL ELE CNET ER AIIM ALE NESTE IPRUN MIO ER RR Ge A RR

or decree, then the court had jurisdiction; what shall

be adjudged or decreed between the parties, and with

which is the right of the case; is judicial action, by

hearing and determining it.”

The first question confronting every court in every

case, and one which it must determine before examin-

ing into the merits, or proceeding to decide “with which

party is the right of the case,” is whether the court

has jurisdiction of the subject-matter of litigation, and

then whether it has jurisdiction of the parties thereto.

If it has not jurisdiction of the subject-matter, it can-

not proceed further, even though the parties are in

court willing to proceed. “The question of the true

limits of maritime law and admiralty jurisdiction is

exclusively a judicial question.”

The Lottawanna, 21 Wall. 558, 572.

The Scotland, 105 U.S. 24.

It is held in Taylor v. Carryl, 20 How. 583, 599, 600,

that the reasonable interpretation of the constitution

“would seem to be that it conferred on the national

judiciary the admiralty and maritime jurisdiction ex-

actly according to the nature and extent and modifica-

tions in which it existed in the jurisprudence of the

common law.” To the same effect, see

The Scotland, 105 U.S. 24.

The Lottawanna, 21 Wall. 558.

Receiverships were unknown at common law. A

receiver's contract has never, until the decision of the

lower court, been held to be a maritime contract. So

the question here is, whether the rules of equity gov-

ern the contracts mentioned in the amended libels, or

whether they are governed by admiralty rules. If the

rules of equity control, the contracts are equitable. If the

rules of admiralty control, the contracts are maritime.

If the first is held to be the law, the lower court had

no jurisdiction. If the latter is held, it did have. Cer-

tainly this is purely and distinctively a question of

jurisdiction over the subject-matter. The lower court

decided in favor of the admiralty jurisdiction. It held

the contracts maritime. We appeal from the decision

and ask the judgment of this court upon the correct-

ness of the ruling below. — It is held in Insurance Co.

y. Dunham, 11 Wall. 31, that “perhaps the best cri-

terion of the maritime character of a contract is the

system of law from which it arises and by which it is

governed.”

And it is held that “there is no jurisdiction in admir-

alty to foreclose a mortgage of a vessel by a sale, or

by transfer of the possession to the mortgagee.”

The John Jay, 17 How. 399.

The District Court of the United States, sitting in

admiralty, has no jurisdiction of a contract of partner-

ship for the use of a vessel put into a line for carrying

passengers and freight. The contract arranged the

contributions which each party was to make and the

share of profits to be received; and though one of the

parties furnished the vessel, the contract was not a

charter party.

‘Ward v. Thompson, 22 How. 330.

“This court reasserts the doctrine that the circuit

court, sitting in an admiralty court, has no jurisdiction

to foreclose or give other remedy on a mortgage.”

Schuchardt v. Babbidge et al., 19 How. 239.

AI REARS MONROE ERP

“The principal question is, whether the case made is

within the admiralty jurisdiction. That it would not be

within the admiralty jurisdiction in England is clear. :

In general, contracts upon land, though to be executed ¢

upon the sea, and contracts at sea, if to be executed on é

the land, are not cognizable by the English admir-

alty. There are some exceptions to this rule in that

country; but none, it is believed, which affect the ques-

tion now before us. There are conflicting decisions as

to the admiralty jurisdiction in England, and also in

this country. It may be difficult, if not impracticable,

to state with precision the line of this jurisdiction, but

we may approximate it by consulting the decisions of

our own courts.

“In the case of Willard v. Dorr, 3 Mason, QI, it was

held, ‘no suit for services performed by the master, as a

factor, or in any other character than that of master,

is cognizable in the admiralty.’. And again, in Plum-

mer v. Will, 4 Mason C. R. 380, it was said, ‘a contract

;

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of a special nature is not cognizable in the admiralty,

merely because the consideration of the contract is

maritime. The whole contract must, in its essence, be

maritime, or for compensation for maritime service.’

In 11 Peters, the Steamboat Orleans v. Phoebus, it was

said the admiralty has no jurisdiction in matters of

account between part owners. And, further, ‘the jur-

isdiction of courts of admiralty, in case of part owners,

having unequal interests and shares, is not, and never

has been, applied to direct a sale upon any dispute be-

tween them as to the trade and navigation of the ship

engaged in maritime voyages, properly so called.” (Ib.)

“The jurisdiction of courts of admiralty is limited,

in matters of contract, to those, and to those only,

which are maritime. (Ib.)

“An agreement by the master of a vessel to pay

wages may be sued upon in the admiralty; but a stipu-

j lation in the same contract to pay a sum of money in

3 case the voyage should be altered or discontinued, can

é be enforced only at common Jaw. (L. Arira v. Man-

3 waring, Bee's Rep. 199.) The admiralty jurisdiction

of the District Courts of the United States, being ex-

clusive, cannot be extended to cases of law or equity,

cognizable by the circuit and state courts, under the

11th section of the judiciary act. (1 Baldwin, 554.)"

Grant et al. v. Poillon, 20 H. 162.

Numerous cases have been brought in the admiralty

courts of this country in which the contracts relied

% upon have been adjudged not to be maritime, and the

jurisdiction has been consequently denied. And the

questions thus raised have always been regarded as 3

jurisdictional. They cannot be treated in any other y

way. :

Opposing counsel seems to think that because the ;

vessels were within the territorial jurisdiction of the

district court; because they were seized, and because

the claimants appeared, the lower court had jurisdiction,

and could proceed to hear the case upon the merits.

He seems to also think that any ruling thereafter made

by the court was a decision upon the merits. And it é

is argued that this is true because the court, in render- 3

ing a decision, must take into consideration the facts :

appearing. Nothing could be more fallacious. Any :

one might file a pleading in any kind of a case, and a 4

marshal might seize any kind of personal property, but ¢

the fact of the filing of the pleading called a libel, and :

the fact of the seizure, would not give the court jurisdic- é

tion over the cause. The court would have to deter- m

mine whether the subject-matter of the litigation was H

maritime. This would depend upon the nature of the

contract sued on. If a person should attempt to libel

a vessel to foreclose a contract of mortgage of the kind

mentioned in the case of the John Jay, supra,and the

marshal should seize her, these facts would not give the

court any right to either hear or determine the contro-

versy. And if it did assume to hear and determine it,

an appeal would lie to this court upon the question

of the power of the lower court to take cognizance of

the cause, and the judgment rendered below would be

declared void.

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Counsel seems to suppose that, because it is some-

times necessary to consider facts in order to reach a

conclusion whether a controversy is within the mari-

time jurisdiction, the decision of the point is always

upon the merits. This is not so. It makes no differ-

ence at what stage of the proceeding, whether during

the taking of testimony or otherwise, the defect of

jurisdiction appears, or how it may arise, it is the duty

of the court to at once cease all further cognizance of

the cause.

2 Conkling’s U. S. Admir. (2d Ed., Rev.), p. 229.

The Maggie Hammond, 9 Wall. 435.

It is stated, on page 4 of the opposing brief, that at

the time of the seizures “The Resolute” and “The Three

Sisters” were within the district of Oregon, and were

lawfully seized by the marshal of the court below. In

this statement, as in every other statement in this por-

tion of his brief, counsel has assumed in his favor the

question to be decided upon these appeals. Our posi-

tion is that, while in a sense the seizure was lawful, at

the same time it was not rightful. If the court had

no jurisdiction of the subject-matter of the action, there

was no power to seize, and the seizure having been

made, upon a showing that the subject-matter of the

action was not within the cognizance of the court, the

custody of the marshal should have been released.

Mere seizure could not give jurisdiction unless, as

before stated, there existed a right to seize. If it is to

be decided that admiralty has jurisdiction of any prop-

* x Ue ANE aha n rey A TAIN Ea ARR Ae a CS NN OTE

SP BRI RLS Ds DIO NPS RY eT Lag,

erty which is capable of physical seizure, or that the

jurisdiction of the court proceeds from the fact that the

thing was seized, it seems to us that the jurisdiction of

admiralty is limited only by the various kinds of per-

sonal property capable of manual possession. In every

case of a seizure, the question of the validity and the

rightfulness of the seizure is one to be determined upon

an examination of the libels under which the seizure

was made. If the libels disclose the fact, as we claim

in these cases they do, that the contracts are not mari-

SIEGE REL O EEE LES Y LMT TIL ENE

time, or, in other words, that the subject-matter of

the litigation is not within the jurisdiction of admir- t

alty, the seizure must be adjudged to be irregular and 3

one which cannot be maintained. For this reason we :

say that the claim made for the libellants. on page 4 4

of the brief, “that the court below therefore had juris- b

diction of the parties and of the subject-matter of the :

action. It therefore had a riglit to decide the questions i

presented by the exceptions to the libels,” is incorrec,. :

The statement that the court below had jurisdiction

over the subject-matter assumes the identical question

in dispute. If the court had jurisdiction over the sub-

ject-matter, as shown by the allegations of the amended

libels, it had power to seize the vessels and had power

to determine all the controversies. If, however, the

lower court did not have jurisdiction over the subject-

matter, then it had no power to do any of these things,

and that is precisely the point upon which we seek the

determination of this court. It is purely jurisdictional,

and this court is the only one to which we could have

appealed. |

RP ASLELOL OEE COLE LE LOPE NG CLEA AEM

SES BAD ELA LS NEE I! MALS TS RE GE HPT NPE INET SLB AE St TILTED, MEL CIEL IE eel

On page 10 of the opposing brief, it is said, in refer-

ence to the argument in the original brief filed by us,

and commencing on page 38 thereof: “This point is

equivalent to a plea of prior adjudication.” A com-

parison of the original libels with the amended libels

will show that the allegations that “all the property in

charge of the receiver of the state court, including the

vessels libeled,” were sold under the order of the court,

were not contained in the original libels, but were

inserted in the amended libels. With these amend-

ments it became unnecessary to file exceptive allega-

tions. The amended libels upon their face show all the

facts, and made it possible to try these cases upon

exceptions thereto. These exceptions are not in-

tended to be the equivalent of a plea of prior adjudica-

tion, but are designed to raise a question of law as to the

jurisdiction of the court over the subject-matter, upon

the facts as shown by the amended libels and admitted

by the exceptions.

This remarkable statement is made on page 10 of

the brief: “Certainly any court in which such a plea

was presented has undoubted jurisdiction to hear such

plea and decide thereon. If this be not so, then it

would only be necessary to set up a plea of prior adjudi-

cation, and then insist that the court was without jur-

diction to hear it. According to appellants’ argument,

the court would be without jurisdiction to hear the

plea, and such plea would therefore have to remain for-

ever undecided.” This is a peculiar deduction from the

arguments made in the original brief. and is certainly

——— LOT LLOOLELOL EEL

13 q

not justified by anything therein contained. Our con- ;

: , '

tention, as we have before stated, is that a court must, .

whenever the question is raised, and at whatever stage é

of the proceeding it occurs, decide upon its own juris- &

diction. It matters not whether this point is raised

by a plea of prior adjudication, whether it is raised by

a demurrer, or by exceptions, as in these cases, when j

the facts appear and are admitted, or whether it is

raised during the course of the taking of testimony. t

The court must at once address itself to a determina- E

tion of the point, and whatever may be its decision, :

under the act of 1891, this court is the only court to ¢

Which an appeal may be taken. i

It is stated, on page 2 of counsel's brief. that “on

pages 25 and 49 of the appellant’s brief, a statement is

made that the vessels libeled were sold with other prop-

erty for the benefit of the respondents, and that the

respondents have received a portion of the proceeds of

the sale. Noe such fact is stated anywhere in the record,

and the statement !s without foundation in fact.” It is

true that it is nowhere stated in the amended libels

that the respondents received a proportion of the

moneys arising from the sale of this property, but the

amended libels show that all of this property, including

‘he libeled vessels, was sold under the final decree of the

equity court, in a proceeding the nature of which js

disclosed. Our position in this regard is that it is the

duty. under the undisputed law, of an equity court, in

making final disposition of property which has been

operated by it through a receiver. to provide in its

Sn ater art aie CaN oe |

Age RL STG SILL NE A ta Pe ee ee

EEE BI Se “ ale te et cecal HRD Rg ala ALINE EILEEN OG SIEGE

deerce, first for the payment of the operating expenses

incurred by the receiver. In case of a failure to make

this provision, a decree would contain error, and this

errcr could only be corrected upon direct appeal in the

cause in which the decree was entered. We have as-

sumed in our former argument, and we think we have

a right to assume, that the decree of the court of equity

was rendered in conformity to the law, and did make the

provision for the distribution of these funds as stated

in the brief. The correctness of that decree cannot be

questioned here. However, it makes no difference for

the purposes of our argument whether the libellants

accepted their pro rata or whether they declined it. If

they accepted it, they are entitled to no more; and if

they declined it, that fact would not give admiralty

jurisdiction over the subject-matter of this litigation.

It is not necessary to consider all of the arguments

contained in the portion of the brief referred to. The

same error prevails throughout. Counsel has assumed

that it is conceded that the lower court had jurisdiction

of the subject-matter. No such concession is made.

That is the question we claim a right to have decided

here.

Objection is made to the form of the certificate of the

trial court, for the reason that ‘no question concerning

the jurisdiction of the District Court of the United

States for the District of Oregon over said cause has

been certified to this court from the said district court

for decision.”

ree. Peorkeeeaet

‘ “ RI NEE Det AE ALPE CL LIP TE EO HET

aa LAER CASINO IR. NS ALD HAW OU ae

Further objection is made “that no question con-

cerning the jurisdiction of the District Court of the

United States for the District of Oregon over said

cause has alone been certified to this court from the J

said court for decision, but, on the contrary, the mat-

ter undertaken to be certified to this court by the said

district court involves questions not relating to the

jurisdiction of said district court over this cause.”

LETS ey eee

ORS

Some argument is presented in our original brief,

pages 14 to 22 inclusive, touching the right to and

form of appeal, which we request the court to consider

in connection with the statements now to be made.

The portion of the federal statute governing the

method of appealing to this court from a decision of a

district or circuit court of the United States is as fol-

lows:

EP RRE PANY LATING Re ae oe Bee EN

“In any case in which the jurisdiction of the court is

in issue; in such cases the question of jurisdiction alone

shall be certified to the supreme court from

below for decision.”

the court

Sup. to Rey. Stat. 1874-1891, p. 903, sec. :

The following is the form of the appeal in all of these F

cases:

“The above-named claimants, * * * conceiving

themselves aggrieved by the final judgment rendered

the above-entitled proceedings, do hereby appeal from

Le BARS ATS EE ES ELAM REAR IN LE MBL NS NTS DRA RD SATN APRE Mae WRITE IRE LING AEM EBD REE AN IS LEG NE LAE

the said final judgment to the Supreme Court of the

United States, and they pray that this, their appeal,

may be allowed, and that the question of the jurisdic-

tion of the above-entitled court to render said judg-

ment be certified to the Supreme Court of the United

States, and that a transcript of the record and proceed-

ings and papers upon which said judgment was made,

duly authenticated, may be sent to the Supreme Court

of the United States.’

petition for an appeal, the claimants filed their assign-

Subsequent to the filing of this

ment of errors in the district court. The district court,

in the order allowing the appeal, made the following

certificate:

“Be it remembered that on this day in the above-

entitled cause came Wm. T. Muir, of proctors for

claimants, and filed herein his assignment of errors,

and petition for an allowance of an appeal herein to the

Supreme Court of the United States from the decree

herein rendered on * * * 1895, which decree is as

follows, to-wit: (Here follows copy of the decree.) And

in open court the said claimants, by their said proc-

tors, prayed that said appeal be allowed, and tendered

a bond with sufficient surety to the approval of the

court, which bond is hereby approved, to stay pro-

ceedings herein until said appeal shall have been deter-

mined, and thereupon the court hereby allows said

appeal and approves said bond, and execution is hereby

stayed until the determination of said appeal. And

this court does hereby certify and make known unto

the Supreme Court of the Unjted States that the on/y

jee Age walt

‘7

question arising upon said appeal is the question as to

whether or not, under the facts stated in the amended

libel and the exceptions thereto, this court acquired or

had jurisdiction to hear or pronounce the said decree,

and that the following is a copy of the said amended

libel and the exceptions thereto. (Here follows copy

of the amended libel and the exceptions.) This allow-

ance of appeal and certificate was signed by the judge of

the court below.

As we understand it, a certificate of the trial court is

necessary, under the act of 1891, to give this court

jurisdiction in any case. Maynard v. Hecht. 151 U.S.

324. This jurisdictional prerequisite is certainly met

by the certificate above referred to. The remaining

question is whether the certificate is in proper form.

A number of decisions have been rendered by this

court upon objections raised as to the form of the cer-

tificate. We have found no case where there was a

certificate satisfying this jurisdictional prerequisite, in

which this court has held that the form of the certifi-

cate as a matter of practice was insufficient: on the con-

trary, whenever the certificate has been made by the

trial court, this court has held that it had jurisdiction

to determine the jurisdictional question certified.

The form and character of the certificate is a ques-

tion of practice. It is not prescribed by the statute,

and this court has not announced a rule covering the

point, nor defined precisely how the certificate should

be framed. Taken together, the petition for an appeal,

epeeRG end EIT

LE VYRE MERTEN ONT ae

BOD SOE WIT 4 RAEN INO REA Ie a a,

the allowance of the appeal, and the certificate of the

judge, are equivalent to a statement by the lower court

to this court that “these (referring to and copying the

amended libels) are the undisputed facts; that the ques-

tion raised on these appeals is whether, under these

undisputed facts, a court of admiralty had jurisdiction

to hear and determine the cause.” It seems to us tnat

no more satisfactory course could have been pursued.

It was not necessary for the court below to state in its

certificate that the question was whether a court of

admiralty had jurisdiction to enforce a receiver’s con-

tract, and to state specially the other matters necessary

to a clear comprehension of the particular character of

the contracts and the claims made thereunder, because

all of these facts appear as clearly and as briefly from

the facts certified to this court as they could have been

made to appear by a certificate of the court reciting,

independently of the amended libels, the facts stated ;

therein. We submit that the amended libels do not

state any fact not necessary for the consideration of the

i court in the determination of this controversy, and

‘ that the judge of the court below could not have stated

3 these facts more clearly or in shorter compass than

3 they are stated in the certificate. We are inclined to

F the belief that if any of the facts stated in the amended

libels had been omitted from the certificate of the judge

; or the record sent up, counsel on the other side would

E have had some reason for complaint, on the ground

4 that the true nature of the controversy was not dis-

: closed by the record forwarded to this court.

OTN AER TE IN IES TEEN EAI

The lower court, in its opinion, asks and decides this

question (see p. 744, 69 Federal Reporter): “Does the

fact that the wages are earned in an employment by

a receiver take the case out of the general rule which

confers jurisdiction upon the admiralty courts for any

reason?’ This expression of the lower court in its

opinion, which is certified to this court, shows the

nature of the jurisdictional question decided by that

court. The argument and the reasoning of the court

does not affect the character of the question which

was before it. In Shields v. Coleman, 157 U. S. 168,

and in Smith v. McKay, 161 U. S. 355, 357, the lower

court certified to this court the portions of the record

necessary to be considered on the appeals, and this

court held that that was a proper method of stating the

question of jurisdiction. This course was pursued in

these cases. The certificates state that the appeals

were taken on/y on the gues/zon of jurisdiction. The

precise question in each case plainly appears from the

certificates to be, whether the contracts alleged in the

amended libels were maritime contracts, and, in con-

sequence, whether the lower court had jurisdiction over

the subject-matter of the controversy.

The objection raised, that no question concerning the

jurisdiction of the district court over said cause has

alone been certified to this court is met by the terms of

the certificate itself. The lower court, as shown above,

in its certificate has said:

“This court does hereby certify and make known unto

the Supreme Court of the United States that the on/y

question arising upon said appeal is the question as to

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whether or not, under the facts stated in the amended

libel and in the exceptions thereto, this court acquired

or had jurisdiction to hear or pronounce the said

decree.”

It would seem, therefore, that no genuine fault can

be found with the form of the certificate, nor can it be

successfully contended that the court below has as-

sumed to make a broader certificate to this court than

; authorized by the statute above quoted. It is stated

; in the original brief that the last two questions dis-

3 cussed therein may not be considered jurisdictional

j questions. The argument upon the appeals must not,

a however, be confounded with the appeals themselves,

4 nor with the certificate of the question to be decided.

5 It appears plainly, from the undisputed facts certified,

: that the only question certified is whether the con-

tracts alleged in the amended libels are maritime con-

; tracts. The last two questions were discussed, as

stated in the brief, because there are conflicting decis-

ions of the federal courts upon the points, and it was

thought, in the interest of harmony of decision, they

should be finally determined by the court of last resort.

The appeals have been properly taken, and the jurisdic-

tional question has been duly certified. The validity of

the appeals cannot be affected by any argument made

extending to questions which may not be considered

jurisdictional ones. The argument will not be con-

sidered.

A SPOIL PALATE

21 :

Respectfully submitted,

WILLIAM T. MUIR,

Of Proctors for Claimants.

JOHN W. WHALLEY and

WILLIAM T. MUIR,

Proctors for Claimants.

ATA EASA D. LOTFI ey

Portland, Or., Oct. 23, 1897.

OR RENEE Ns at

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.