# Appellants Brief — The Resolute > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0032%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 1897 - **Citation:** 168 U.S. 437 ## Text “WHE STEAM TUG. URRSOLUTE, oo B| AREAS tee a... eRe pt E; L. BONNER, ~ Shack NE imants a (Abbe: ee ea ce Y wi N, st WOLP: — Fay . Hts _ WILSON, SIDNEY 6. af THE STEAM ‘TOG-“RESOLUTE, ad B. | RE BONNER,” hac _.. ., Claimants Sa +: aie eri ontoxor powserr, : et ae mE al Libellant and Respondent.) Te | Tae STRAMERE “THREE SISTERS/" THR). PINE eee RY a8 “~~ “OREGON CENTRAL AND EASTERN RS pees - RAILROAD COMPANY, , fe He pasion ims eid Appian ' - 4 any i amit R..J.. YOUNG,. sah” Goa, ‘BELL, ROBERTSON, .W. 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Pe te a AO i) AONB Mery s TP OCI te ROR > EN, Feregy ip ae pt pike ce Og NY Romeo ad EN AOA Rc Pinay ale wa a ria a ne sad hgh oe agents cae on, ve #% ee ae ae at elie Ete te Fe4 ty No vA ee ee Bay He POMS cde nle > en HAPOH I ty ee a al Fee ie 6 BPR OO eines AOC ai NS a Bh ervey BOE II gO arin d® PaaS snaete eaR LE SO ead Rate Pre ated tp A CRANE ER Be PETE IE LD — Where SORA LR nO aA RL IMR RENAE LO I DG PL POLES BEPC 5 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 6 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 7 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: ae 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.” ta 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 et a Reg . pc yooh Vs av ak: Sy aaa sy ‘gt TIN ie Bd - x 4% Pose . ER DERE Wa Ae PRESS a fs FE ¥ 10 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 II “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. % 3 3 SR Seek Cae ea pS 12 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. Sa UTE SABA ONS i LO Aer HT oe 39 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- pe seen Be PRR ee Ee - ang 20% . wore abi iE a es a LOREEN ee " Cc a De i ae : s Hi ie ‘s a 4 # & m4 * ‘| : 2 e % a +s 4 *~ 4 Seti 52 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 rw V. 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 54 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 & % 3 re) iH < =f 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 Ma RB Re PNT Ta plane Roitace Da Aap Ribas Saami AE Cae 56 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 57 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 ME ERE $ € : | 4 4 & a i ie ee 2 2 m4 g 58 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 59 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. . sie Reis LAGE SE PhS et SPP LUAE ADEN LIN LEE METS PO ali eee os mnie | SIA LTBI AIEEE TUNE RY oe REPLI NN AN mr Ta STEAM ‘706 Sey enene ee AB" B* ae. aud E. L. BONNER, rd Claimants nsige Appeltants. , vs, : HENRY B. WILSON, SIDNEY G. WOLF. | ~~ KILL, THOMAS NELSON & CHARLES {| ~ JAHN, ~ : es ad Lidellantr and Respondents. is Tae STEAM TUG “RE “RESOLUTE, ” A. B. oy ND and E. L. BONNER, Wilsons eee oo nents el Atle, No. 16,199 s oHORGE powsETT, se a Jgorwniks THE erenie- “THREE stsrers,” THE OREGON CENTRAL AND EASTERN RAELROAD COMPANY, "Claimants and Appellants. Stil hari vs. No. 6,202... R. J. YOUNG, M. BELL, Cc A. BELL, H.j}. . " cktgod “ROBERTSON, w. ‘HOWELL, W. H.f-« SUTTON, et al, “Libellant $ and Respondents. | ‘tor the District of Oregon BRIEF. FOR APPELLANTS _ _In REPLY ON MoTIon TO Dismiss APPEALS. ° "i WEL ae T. MUIR, ~~ © ‘JOHN Ww. WHALLEY ana Of Proctor for Claimants WILLIAM T, MUIR, rs for Claimants. Pr RE AS toy _ The Lewis & Dryden Printing Co. ae de oe ee 3897. wvy ~ eee OCC ‘ Appeal from the District Court of the United States 4 tee cee mires bebe #5 ce het enyes e Sale ees oes < oo r 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 s pages 3 to 10, inclusive, of their brief, assumes the point in issue. It is there stated that no appeal lies 4 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 3 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, me 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 3 4 : 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 5 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. 6 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 7 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. RE “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 ; 2 ns esate RS TIES GL ee , : SORE REL SEE EE TE ro — se; . PREIS = jo ee re — RAR BOLLRE ARAMAIC IRIS. AA AE Ne ESE IT ORISA BILE AT HAE REALE EINE RIG LEI AVE LEIS) EOS 8 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 9 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. Rebs Naas | 2 patina EN REESE OR RE ’ ia ce NEOs fis Sik ~~ - TE LTE pincer Sit BO Pi Wee EE de) 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, II 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. | Bo | 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 I2 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 ra 4 4 13 q E 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 14 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 tS 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. : mn 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 herein on the * * * Gay of * © * ips, in the above-entitled proceedings, do hereby appeal from f % % : 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 16 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, 18 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. | i OTN AER TE IN IES TEEN EAI 19 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 yen PRS RO PAR NRE EL ATO ee - mes DORR Ait INR RA SERS 229 ATE EOS ES, SARE ON, . ee Tea i oes —— = , BPO IRE ES a Ee Le ae a. : 20 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0032%3A2. Public record. Not legal advice.