Opposition Brief — United States v. Cornell SS Co.

FILE Copy.

Supreme Court of the United Statés.“evv e's’ * *

APR 24 1905

JAMES H. McKENNEY,

Clerk,

OCTOBER TERM, 1904.

THE UNITED STATES,

Petidioer

* No. 64, 23

THE CORNELL STEAMBOAT CO.,

Respondent.

Brief in Opposition to Application for

Writ of Certiorari.

The Respondent respectfully represents to this

Conrt, that no writ of certiorari should be granted

here, and presents the following considerations in

answer to the Petition of the United States.

FIRST POINT.

The vase came before the United States District

Courtona demurrer to the Petition. The demurrer

admitted the allegations of the petition, and the

tlegation was therefore admitted that the cargo

of stgar in question “had been saved from de-

struction by fire’ by the respondents ‘ug: that

“the duties on the sugar lad been paid to the

Government provisionally and in such wise that

if the sugar had been destroved by said fire the

owners of said sugar would have been entitled

fo claim a repayvinent to them of the amount of

the duties.”

These facts being admitted. the United States

ought not .o be heard to argue against them. And

this Court onght not te call up this case in order

”

-

to hear the United States argue that the facts ape

otherwise, which seems to be the substane: of th

present brief for the United States.

SECOND POINT.

These facts being admitted, the services | the

respondent's tug saved te the United Sites

S6.000. There is no equity in the refusal Of the

Mhited States to pay salvage for that saving, |

is not fair for the United States to refuse {

OF pMLY

for that service. The Cirenit Court of Appeals

has so decided, And this Court ought not to

assist the United States in its effort te avoid doing

What is fair.

THIRD POINT.

The brief on page 2 states that the case Presents

several questions of special importance. — We

deny that those questions as stated are in the CiINe,

(1) This suit dees not “arise under the Revenue

Laws.” It is a suit in Admiralty to recover sill

Vage on an implied contract in accordance with

the decision in the case of the Monareh.

(2) There is no question here astovimport duties

being subject (im rem) to salvage claims.” The

question is whether the United States. whose

right to righteously hold the S6.000 of duties lias

been saved to it, ought Cr ego el bono to par

t reasonable remuneration for such services.

(3) There is no question here of the applica

bility of Admiralty Rule 19. The Statute in ques

tion, the Tucker Aet, gives the District) Court

jurisdiction over the contract in this case,

4) This case is not “a hypothetical case.” It

is a case in whieh all the facts are admitted,

a ——

3

FOURTH POINT.

The quotation on ps of the brief for the United

States, purporting to be a quotation from the de-

cision of the Court ino the “respondent's suit

against the sugar” isa misquoetation, = No such

language is to be found in the opinion,

But that the loss of the duty by the destruction

of the sugar “would have been the loss of the

Government” is quite correet, That is the very

wronnd on whieh it ix held to be right for the

Government to pay a compensation for saving it

from that loss,

It ix correct to sav that the Government “could

not beamadea party to the suit” against the sugar,

but it ix net correct to say that it shad no interest

incor relation te the property. Tt had such an

interest Goan relation to it, that the destruction

of the sugar would have caused a lass of S600 to

the Government-—exaetly such an interest as wits

held by the Admiralty Courts of England in the

cases of “The Five Steel Barges” 5 PLD. Rep.

He. and “The Port Vietor® (Aspinall’s Maritime

Law Cases, volo pp. 163 and P82), to make a

claim to compensation, on the saving of the prope

erty a righteous and just ehaim,

We respectfully request the Court to examine

those eases, They will, we are sure, commend

themselves to the good sense and sense of justice

of this Court.

FIFTH POINT.

The question of the jurisdiction of the Court

has been sustained by two Cirenit Courts of

Appeal, the case of the Monarch. 99 PLR. a70 and

the present case. We respectfully request the

————

4

Court to carefully look at the opinion of the Coun

in the case of the Monareh, for we are SULE Lhiatt its

reasoning and conclusion will commend itself

ty the judgement of this Court,

The decision in the case of the Monareh is cuiple

fo sastain the liability upon the United States to

pay compensation for those services, As the

Court said in that case: “The essence of the plead.

ing is the petition to be awarded Compensation for

Valuable and highly meritorious services rendered

‘he Goverument in saving its property th mari.

tine peril” That is exactly this case, except that

the question here is whether the Government hud

such an interest in the property as toe fairly make

it liable to pay. The decisions in the English

cases above referred to are abundant to show that

this interest whieh the Government had in the

property by reason of its Venu mponw the property

Jor the duties, is abundant to sustain the clainy.

SIXTH POINT.

It is claimed that even if the facts were as

stated, vet the Secretary of the Treasury had the

power to refuse the repayment of the duty. even

though the facts were such as to make his refusal

tnarbitrary and wrongful act.

In other words, the proposition is that the See-

retary of the Treasury had the power to do an un-

just and unrighteous action, and that. beeause he

had that power, it cannot be argued that he

would be called upon to do the act which was

right and just. That is certainly not a propo-

sition which should commend itself to this Court,

On the contrary, as this Court said in the case of

Gibbous v. The United States, S Wall 269: “The

_

a)

supposition that the Government will not do jus-

tice is not to be indulged.” Nor should the sup-

position that the Secretary of the Treasury would

not do justice be indulged.

SEVENTH POINT.

The opinion of the Cirenuit Court of Appeals in

this case is well considered, It supports its con-

clusion that the Secretary would, on the facts

here admitted, be required to refund these duties

by the authorities and decisions of this Court,

to Which we refer.

In the case of the Supervisors v. The United

States, 4 Wall, 435, 446, this Court, in giving con-

etruction to a similar statute. used the following

language:

“The conelusion to be deduced from the au-

thorities is that where power is given to public

officers in the language of the Act before us, or in

equivalent language” (and it) cannot be argued

that the language of this statute is not equivalent

language), “whenever the public interest: or il-

dividual rights call for its exercise, the language

used, though permissive in form is in fact perenip-

tory. What they are empowered to do for a third

person the law requires shall be done. The power

is given not for their benefit, but for his. It is

placed with the depository to meet the demands

of right and to prevent a failure of justice.”

The argument in this case for the petition is that

the demands of right shall not be listened to, and

that justice shall fail. But we submit that ne

such conclusion can be properly adopted by this

Court.

EIGHTH POINT.

We submit that the opinion of the Clreniy (our

Of Appeals in this ease is well reasoned. js con

sonnet to law and justiees that Pespondent's elyiy

in this case isa claim onty for fair COMEDIC TST bop

and that the effort of the United States co renist

That payment is an effort to save itself rhe yin

entoof a sum due in fairness ond justiow, on ty

dssimMption that the Seeretary of the Trogsym

Would not have decided the ease in aecordane

With the facts if it had been submitted co hiinny

NINTH POINT.

The proposition is well settled that the (ies

tion of the comstruime of Nets containing sueh lay

giiive as that of this Net is to be dere ritined by

the intent of the Levishiure The argurent of

the petitioner seems tobe that when Congress

said “the Seeretary of the Treasure is authorized

fodlo what is manifest@y a just and righteous ae

it meant that the Seeretary of the Treasury was

wuthorized) wot te do that very aed We submit

(hat nosneh intent can be charged WpOn Congress

As the Cireuit Court of Appeals in its opinion

SUVS “TT seers quite apparent that the intent ot

the Legislature was te afford relief te unfortunan

importers who might be able te satisfy the Seen

tary by sufticient proof that they enme within

the terms of the Seetion.” And the qiaking of the

perpettal qantal appropriation for suet prt

ents plaindy shows that sueh was the intent. tl

could not have been the intent of Congress that

the Seeretarv of the Treasury might have the

power to refuse the relief to the unfortunate im

porters which the statute awards.

——

he question invelved is net of any great im

janes to amount, Phe cases in whieh goods

destroved under such cirenmastanees as bring

yo within the purview of the Statute, ape few,

this case the only aieunt involved is SiN

vlred Dothars, Bini, aside from the question of

wont, the question whether the United States

cornment shall er shall net do the Uhiivege theent

ight ane fair, and whether it shall be assumed

jot that the Secretary of the Treaaury would re

ete dea just act whieh le was authorized to

is a question of Tnipertatics, That question

Sheen passed upon by the Cirenit Court of Ap

dso and rightly decided,

TENTH POINT.

Phe praver of the petition, therefore should be

seal

ko. BENEDTET,

Adveerte for Cornell Steamboat Company,

Respondent,

lo Uiles | 5 Baprone oat $. :

- ite

[LE COPY.

APR 16 1906

JaMn?

wiles

\apeete Court of the

Tike UNITED STATES,

Petitioner.

No. 289

Tue CORNELL STEAMBOAT Co,

Brief and Points for the Cornell 8S. B.

Co.

This case is brought by certiorari to review a

decree of the U. 8. Cirenit Court of Appeals for the

Second Circuit made on March 13, 1905, affirming

a decree rendered by the District Court of the

Southern District of New York against the United

States in favor of the Steamboat Co. for the sum of

ROH03, 60.

The suit against the United States was brought

under the Tucker Act.

The case was disposed of in the District Court

on a demurrer to the petition.

FIRST POINT.

The claim of the Cornell Steamboat Cu. which is

resisted by the Government of the United States is

founded on the principle laid down by the Supreme

Court of the United States in the case of The Davis

(10 Wallace R., p. 19) in these words ;

‘‘When the property of the Government has

been saved from destruction by salvors justice and

2

sound policy require that it should be held to bear

its share of the burden which the unanimous voice

of maritime nations imposes upon all other property

in like condition.”’

SECOND POINT.

The case came before the District Court of the

United States for the Southern District of New

York on a petition under the Tucker Act and a dr-

murrer to that petition by the United States.

The facts stated in the petition are therefore ad-

mitted.

Those facts, thus admitted, are as follows:

That the barge Bangor, loaded with 1,883 bags of

sugar, while in the waters of the port of New York,

was in danger of being destroyed by fire.

That the petitioner’s tug, at great risk and peril,

saved the lighter and the sugar from destruction

by said fire.

That the sugar was subject to duty and was still

in the possession and under the control of Custom

louse officers of the United States.

That the owners of the lighter paid salvage.

That the petitioner filed a libel agaiust the sugar

in the District Court for the Eastern District of

New York to recover salvage, and that in that case

that Court made a decree, a copy of which is at-

tached to the petition.

That by the services the sum of $6,000 in duties

was saved to the United States.

The decree, which is alsuv admitted, decided that

the duties on the sugar, amounting to $6,000,

had been paid to the Government of the United

States and that ‘if the sugars had been burned

the claimants (the owners of the sugar) would

have been entitled to a rebate of said duties,’

and that the amount of the award to the libellants

for the salvage services is fixed at ten per cent. of

the value of the property saved.

-_ -

_ seam eatet way

3

And it awarded ten per cent. of the market value

of the sugars, less the amount of the duties, $6,000,

And therefore the District Court awarded to the

Cornell Steamboat Co. 10 per cent. of the $6,000

which had thus, as was admitted, been saved to the

United States.

THIRD POINT.

It has been held by various courts that the United

States Government is liable to pay salvage. In this

the Government differs from an ordinary shipowner

only in the form in which it must ve saed, and in

the fact that no attachment can be made of its ves-

sel to which the service was rendered. But its lia-

bility to pay salvage—not compensation for work,

labor and services, but sa/eage, with all that the

word means—has been affirmed by the Supreme

Court, by the Court of Claims, by the Cireuit Courts

of Appeal for the Fourth and Second Circuits, by

the Circuit Court for the District of Connecticut,

and by the District Court for the Northern District

of California, and has never been denied by any

court. It would seem, therefore, as though the

matter were well settled.

The first case is The Davis, 10 Wali., 14, in

which the Supreme Court says as follows :

‘*Two questions are raised by the record in

this ease, both of which are important. The

first is whether personal property of the United

States on board a vessel for transportation from

one port to another is subject to a lien for sal-

vage services rendered in saving the property.

* * * Of the first proposition there does not

seem to be any reasonable doubt, upon a view

of the authorities. * * * The proposition

is treated by the modern text writers as settled.

We are quite satisfied with the reasons on

which the principle vests, and are of opinion

that when the property of the Government has

been saved from destruction by salvors, or by

PE ee

4

those sacrifices which are compensated by a

contribution in general average, justice and

sound policy require that it should be held to

bear its share of the burden which the unani-

mous voice of maritime nations imposes on all

other property in like condition.”

The question of the liability of the Government to

pay salvage, and the jurisdiction of the Court of

Claims to hear salvage claims, was three times pre-

sented to the Court of Claims and decided in favor

of the liability and the jurisdiction.

Gould v. United States, 1 Court of Claims, 184,

Was an action to recover salvage for services ren-

dered toa Government lightship in distress, and a

salvage award was made.

Bryan v. United States, 6 Court of Claims, 128,

was an action brought to recover salvage for ser-

vices rendered to a barge laden with military stores,

the property of the Government. And while the

Court dismissed the petition on the ground that no

valuable services had been rendered, it reiterated

its view that salvage is recoverable against the Gov-

ernment, and that the Court of Claims had juris-

diction to award salvage in a proper case.

In MeGowan v. United States, 20 Court of

Claims, 147, a claim for salvage for saving a Gov-

ernment tug in peril on the Missouri River, the

Court declared that it ‘*saw no reason for changing

a conclusion which was reached fourteen years ago,

and has remained unquestioned since,” and awarded

salvage for the service.

Three cases besides the present one have been de-

cided under the Tucker Act to the same effect.

In United States v. Morgan, 99 Fed. Rep., 570,

the Cireuit Court of Appeals for the Fourth Circuit

sustained an award against the Government made by

the Circuit Court for the Eastern District of Vir-

ginia fora salvage service rendered by atugtoa

Government lightship adrift in Chesapeake Bay.

a, omens opmensiens

In Hartford & N. Y. Trans. Co. v. United

States, 138 Fed. Rep., 618, the Circuit Court for

the District of Connecticut awarded salvage for

services rendered to a United States vessel on fire.

And in Rees v. United States, 134 Fed. Rep., 146,

the District Court for the Northern District of Cali-

fornia awarded salvage against the Government on

account of the saving of certain property by the

salvors from the wreck of the United States ship

Yosemite.

We maintain that, in view of these decisions, the

question of the liability of the United States to pay

salvage ina proper case is not open to argument,

The law which sustains such a claim is but a form

of the general and ancient rule that ‘the United

States, in relation to the proprietorship of real or

personal property, have, in their public capacity,

like authority and remedies, and are subject to like

liabilities in dealing with it through legal agencies

or otherwise as natural persons.”

Eight Hundred and Fifty-eight Bales

of Cotton, Blatchford’s Prize Cases,

325.

When the United States allows itself to be sued

before the Court, it must stand before the Court

like any other party before the Court, affected by

the same considerations as any other party.

‘When the Government engages in the mak-

ing and negotiation of commercial paper, it

submits itself to the settled rules of commercial

law, and in that respect stands before the

Courts of law, whenever jurisdiction is properly

obtained, to receive the wpplication of those

rules precisely as they would be applied to an

individual.”

Cooke v. The U. S., 10 Blatch., p. 59.

858 Bales of Cotton, Bl. Pr. Cas., 325.

“The United States, when they contract with

their citizens, are controlled by the same laws

™

—

VES UNAS aia RE RM RRR one ores —

6

that govern the citizen in that behalf. All obli-

gations which would be implied against citizens

under the same circumstances will be implied

against them.”

U.S. v. Bostwick, 94 U. 8.. 53, 66.

And the principle that in Court a man shall be

held to have undertaken to do what he ought to do

: must be as applicable to the United States when it

is sued, as to any citizen of the United States.

FOURTH POINT.

It was argued for the Government on the Brief in

support of the petition for the certiorari that. the

District Court had no juridiction, ** the suit being

under a Revenue Law.”’

But the statement is an error. The suit is not

“under a Revenue Law.” It is a suit under the

general Maritime law.

In the case of Ferry Co. v. The U. 8. (85 F. R.,

551), which seems to have been relied on to sustain

the above statement, the suit was brought to reverse

a decision which had been made by the Secretary of

the Treasury and the Court held it had no power to

reverse. We fail to see any similarity between that

case and the present one.

FIFTH POINT.

It is claimed that the suit for salvage cannot

lie here, because the United States did not request

the service. That proof of a specific request is not

necessary is held in all the cases above cited, for in

none of them was there proof of any specific request

by the United States. The « implied contract grow-

ne igo of the successful event of the service” (99

_B., 572) has always been held sufficient ground

¥ the Sandia tion of the Court to award salvage.

The case of The Sabine (101 U. 8., 384) is referred

to. But that was a proceeding (7m persouam against

consignees of cargo who were not owners of it, and

it was very properly held that the consiguees of the

property could not be held unless there was proof

of arequest by them, But the distinction between

the personal liability of owners and of mere con-

signees is plainly pointed out.

SIXTH POINT.

But the claim is made on behalf of the Govern:

ment that the construction of Section 2084 of the

Revised Statutes is involved in this case, and that

the Circuit Court of Appeals in its decision wrongly

construed that section.

It is claimed that although the case comes up on

demurrer which admits all the facts, and although

if this sugar had been destroyed by this fire, its

owners would have been entitled to claim a repay

ment of the $6,000 duties by the United States, yet

that the Seeretary of the Treasury might have re-

fused to pay the duties back, even if all the facts

which called for such payment had been proved to

him, and that therefore the United States was in no

danger of losing anything if the sugar had been

burned, because, as the Statute says that the Secre-

tary is “authorized? to pay, he had the power to

refuse the repayment of the duty, even though the

facts were such as to make his refusal an arbitrary

and wrongful act.

In other words, the proposition is that the Secre-

tary of the Treasury had the power to do an unjust

and unrighteous action, and that, because he had

that power, it cannot be argued that he would be

8

called upon to do the act which was right and just.

That is certainly not a proposition which should

commend itself to this Court.

On the contrary, as this Court said in the case of

Gibbons v. The United States, 8 Wall., 269: “The

supposition that the Government will not do justice

is not to beindulged.’? Nor should the supposition

that the Secretary of the Treasury would not do

justice be indulged.

The decision of the Cireuit Court of Appeals in

this case that under this Statute the Secretary

would, on the facts here admitted, de required to

refund these duties is sustained by Inany authorities

and decisions of this Court and other courts.

In the case of the Supervisors ». The United

States, 4 Wall., 435, 446, this Court, in giving con-

struction to a similar statute, used the following

language :

‘The conclusion to be deduced from the au-

thorities is that where power is given to public

officers in the language of the Act before us, or

in equivalent language” (and it cannot be

argued that the language of this statute is not

equivalent language), ‘* whenever the public in-

terest or individual rights call for its exercise,

the language use@, though permissive in form,

is in fact peremptory. What they are em pow-

ered to do for a third person the law requires

shall be done. The power is given not for their

benefit, but for his. It is placed with the de-

pository to meet the demands of right and to

prevent a failure of justice.”

In the case of The City of Galena ». Amy, 5 Wall.,

708, where the word ‘*may ” was used ina statute,

this Court said that under the circumstances the

discretion given by it to the City Couneil could not

‘be resolved in the negative.’ “The power is in

the nature of a trust for his benefit.”

And again, in French v. Edwards, 13 Wall., 511,

this Court said: ‘Where the requisition; pre-

scribed are intended for the protection of the citi-

zen and to prevent a sacrifice of his property, and

eaeseens " Soe -. teas

bs MOA SEND oe

v

by a disregard of which his rights might be and

generally would be injuriously affected, they are

not directory but mandatory.”

In the case of Ralston v. Crittenden, 13 Fed. Rep.,

hiv. the Cirenit Court of Missouri, McCrery, J.;

said:

“Even if the terms of the statute were per-

missive only, and meant no more than the

words generally employed in the statutes em-

powering a grant of authority or power to a

public officer to do a certain act, still it is well

settled that such acts are to be construed as

mandatory whenever the public interest or in-

dividual rights call for the exercise of the

power conferred.”

The above cases are referred to.

In the case of New Orleans National Bank ».

Merchant, 18 Fed. Rep., 841, in which the question

was under section 2999 of the Revised Statutes,

which provides that the Postmaster-General ** 7202/.

upon evidence satisfactory to him, &e., instruct

postmasters,’’ the Circuit Court held that that law

“cave to the Postmaster-Gene ‘al no authority

to suspend accion. Upon evidence satisfactory

to him Ae must act,” and

the case of Supervisors v. U. S., 4 Wallace, 445,

from which we have quoted above, is cited as a con-

trolling authority.

In the case of The National Bank of the Republic

v. The City of St. Joseph, 31 Fed. Rep., 216, where

it had been provided by statute that the Mayor and

Councilmen ‘may levy and collect a special annual

tax,” &e., the Circuit Court, Wallace, J., Says:

‘The proposition seems almost too plain to

require discussion that it is the intention of

section 3, evinced in plainand explicit language,

to empower the Mayor and Councilmen to call

in and pay off, whenever they may deem it

proper to do so, the whole or any part of the

bonded indebtedness of the city. ‘The exercise

of the power, though permissive merely in its

terms, is a duty which these officers are bound

ELFEN LD AIP ES EAL ASIAN.

1

to fulfill.” (Supervisors ». U. S.. 4 Wall.. 490)

It is a power to be held and exercised for the

benetit of the publie from time to time, as ocen

sion requires,”

In the case of Provisional Municipality of Penss

cola ev. Lehman, 27 Fed, Rep., 324, 382, the Cirenit

Court of Appeals for the Fifth Circuit said:

* The authorities are to the extent that When

authority is given under a statute, whether hy

the word * may’ or other permissive words. for

an aet to be done by a public officer, and it

concerns the public inte vest, or is for the be nefil

of third persons, it is mandatory, There

seems to be no doubt that if the words, ‘and it

should appear equitable to said board that such

conveyance should be made,’ had been omitted

from the first section of the statute. the Statute

would have been mandatory.”’ Citing the same

Causes,

“With those words in the statute it would

seem, under the authority of Supervisors»,

U.S., that unless there should be, in fact, equi-

table reasons against making such conveyance

the statute would still be mandatory.”

In the case of The City of Little Rock +. The

U.S., 108 Fed. Rep., 324, the language of this

Court in the case of Supervisors v, The U. S., 4

Wall., 435, is quoted as a conclusive answer to the

contention made that the statute did not declare

that the officers of the city should exercise the

power to issue the warrants.

In the case of The Village of Kent ¢. The U. S.,

113 Fed. Rep., 237, where the statute did hot say

that the village should levy the tax, the Circuit

Court of Appeals, in the Sixth Circuit, said:

“It is argned that this statute is merely an

enabling one to permit the Council to levy as

much for this purpose as they shall see fit. But

it is well settled in statutory interpretation

that the word ‘may’ miy be read * shall.’

1]

The Court then quotes the language in Rock

Island Company Supervisors ¢. The United States,

4th Wall., which we have quoted above, and pro-

ceeds:

“This language seems to us applicable to the

statute under consideration, The power to

levy this tax is given for the benefit of credit-

ors, in this case, to meet a demand adjudicated

to be right and) proper after full trial. It im-

wses aduty upon the council, which, in our

judgment, they are required to exercise as long

as they are able to do so within the limit im-

posed by the law upon the amount of taxation

for any given year. We therefore construe

this seetion as though it read, *The council

shall levy a sum sufficient to pay the interest

on the publie debt to be applied for no other

purpose.’ We find nothing in the case cited

by counsel for plaintif? in error (U.S. %. Tho-

man, 166 U. 8., 858) that is in contliet with this

view.”

In the case of the People v. Supervisors of Otsego

Co., 51 N. Y., 401, it appeared that a statute had

been passed by which the Supervisors were * author-

ized and empowered upon the application of any

party aggrieved,” to hear and determine a claiin for

repayment of taxes paid on property exempt from

taxation, “and to repay to the proper person the

amount collected or paid.’ The relator had paid

taxes on property exempt and applied to the Super-

visors for repayment. They had refused to repay

them and the Court of Appeals held that the words

‘authorized and empowered” were ‘ mandatory

and imperative,’ ane affirmed a judgment directing

the Supervisors to act and repay the amount = The

opinion cites abundant authorities to sustain its po

sition. Among others it quotes from Smpervisors

v. UL S., 4 Wallace, 435, the language which we

have quoted above.

Says Judge Field in the Chinese Laborers’ case,

13 F. R., 291, 294: ‘All laws should be so con-

strued,if possible, as to avoid an unjust or an absurd

conclusion.

Sapp Renyewne ns,

a

re ee ee ern =

12

General terms should be so limited in their a

plication as not to lead to injustice, oppression op

an absurd consequence’ (U.S. », Kirby, 7 Wall,

482).

Any construction of the statute under considers

tion in the case at bar which would hold that the

Secretary of the Treasury, although all the facts

Were proved without contraaiction before him which

the statute requires, miglit arbitrarily refuse t.

make the payment, simply because the word in the

statute is “authorized,” would certainly be an

authorization of injustice. It is diffieult to say

whether such a refusal would be more uaAjust, or

more oppressive, or more absurd.

SEVENTH POINT.

But it is claimed that even if the sugar was saved

under such circumstances that the United States

would have been required, if it had been destroyed

by the fire, to repay the 86,000, that was not such

un interest as that the United States ought to pay

salvage for the saving of the sugar.

The contrary rule has been laid down by the

English Admiralty Court.

In the case of The 5 Steel Barges, (15 P. D. Rep.,

142), cited in U.S. ¢, Morgan, 99 F. R., 570, a party

had built five barges for the government of England,

to be paid for by installments, one of which re-

mained due. Salvage services were rendered to the

five barges. ‘Two of them were thereafter delivered

to the Government, before any lien for salvage was

asserted agaist them. The salvors filed a libel

against the three undelivered barges in rem, and

against the owners of the two that had been deliv-

ered.

The Court said: ‘1 think it is perfectly clear on

the authorities that an action jn personam lies

ES7— -

13

avainst the owners of a vessel which has been trans-

ferred to others, and the lien lost.”

The Court then held that the property in these

two barges was not in the defendants, but in the

Government, and said: “ But on this point Ll am

of opinion that the right to sue in personam is not

confined to the ease of a defendant being the legal

owner of the property saved, | think it exists in

eases Where the defendant has an interest in the

property saved) which interest has been saved by

the fact that the property is brought into a position

of security.’

“The claim of salvage" said the Court further,

“is a legal liability, arising out of the fact that

property has been saved, that the owner of the

property who has had the benefit of it, shall make

the remuneration to those who have conferred the

benefit, notwithstanding that he has not entered

into any contract on the subject.”

“1 think that proposition equally applies to the

man who has had a benefit arising out of the sav-

ing of the property.”

“Tf defendants had not been ina position to de-

liver the barges within the twelve eating? 2

they would have been * liable to make restitution of

the installments which bad been paid them on con-

ditions not fulfilled by them. | think, therefore,

that they had substantially an interest to the full

amount of the barges at the time of the services.”

And the Court gave a decree for the libellants.

This case of the Five Steel Barges was fully con-

sidered by the Admiralty Court and the High Court

of Justice in England in the ease of the Port Vie-

tor (Aspinall’s Maritime Law Cases, vol. 9 pp. 163

and 182), and unhesitatingly sustained.

Justice Jeune in his decision says (p. 166): “The

true view is, | think, that the law of Admiralty im-

poses on the owners of property saved an obliga-

tion to pay the person who saved it, simply because,

in the view of that system of lar, it is just that he

should and this conception of justice naturally im-

—_— se DS PPR GEN ROR Ret 9 = .

em CORMDRH OEE

a

PPM FLOR AE SOMALI ORIN,

Sa me

BUR eae

14

poses a proportionate obligation upon any person

whose interest in the property is real though fal|-

ing short of that of ownership. I see no reason,

therefore, why I should not follow the view of Lord

Hannen and of the Seoteh Court of Session, that

aman who has had a benefit arising out of the

saving of the property is liable to a claim for sal-

vage no less than the owner of it.”

The case being taken by appeal ‘to the Hieh

Court of Justice was affirmed (p. 183). Lord Alver.

stone in his opinion said: “Speaking for myself |

really feel almost bound by the authority of so

areata lawyer on such a subject as Sir James Han-

nen, under circumstances practically identical

with the cireumstances of the present case, |

should hesitate a very long time to overrule his de-

cision in the case of the Five Steel Barges.” And

he quotes from the opinion in that case the Jan.

guage which we have quoted above.

Judge Smith agreeing with Lord Alverstone. said

(p. 184): ** We have. independently of each other,

four Scotch Judges and a fterwards Sir James ‘Han-

nen, spontaneously arriving at the same conclusion.

Now we are asked in the year 1901 to say that all

of those five learned Judges were Wrong in what

they decided in those cases, | myself am prepared

fo rest my judgment upon the judement of Sir

James Hannen;. and I will say this, that naving

read that judgment through twice, J consider it is

Sounded on common sense and L refuse to say it is

wrong.”

Now in 1906 this Court is asked to say that “all

of those five learned Judges, supported as they

have been by the high authority of Judge Jeune

and of Lord Alverstone and his two associates and

of the Circuit Court of Appeals in this case were

“wrong in what they decided,” and that no weight

is to be given to the considerations of ** justice ”’

and ‘* common sense,’ on which those decisions are

founded.

The Court. will hardly come to such a con-

clusion,

ie

REPT VIR Sh aS e6taers OH Teg hae

15

EIGHTH POINT.

The ‘Circuit Court of Appeals held that as the

Government had a lien on these sugars till the du-

ties were paid, and (Record fol. 32) which would

have been lost if the sugars were burned, the Gov-

ernment had such an interest in these sugars as

made the rule laid down by the English Admiralty

law applicable.

That the Government had such a lien is well set-

tled (U.S. v. Boxes of Pipes, 2 Abbott's Reports,

500; U. S. v. George, 6 Blatchford Rep., 415).

And the Admiralty law being governed every-

where by the same principles and rules of equity

and justice, and no reason of equity or justice exist-

ing why this interest should go free and the Cornell

Steamboat Co. should not receive the same rate of

compensation for saving all interests.

The decree of the Circuit Court of Appeals in

this case should be affirmed.

BENEDICT & BENEDICT,

Proctors for Appellee.

R. D. BENEDIOT,

Advocate.

EE