BARK SAN FERNANDO V. JAOKSON.
BARK SAN FERNANDO V. JAOKSON
&
MANSON.-
(Circuit Oourt, E. D. Louisiana. Marehla,1882.) 1. ADMIRALTY JURISDICTION.
Admiralty courts have jurisdiction in all cases of maritime obligations. Ins. Co. v. Dunham, 11 Wall. 1. 2. GENERAL AVERAGE.
General average comes under the head of maritime obligations, and in sucb a case, wbere tbe consignee bas received his goods and given a general average bond, the United States admiralty court has jurisdiction of an action upon such bond, notwithstanding the opinion of the supreme court of tbe United States in Outle:r v. Rae, 7 How. 729, undertbe authority of tbe lattJ decision of that tribunal.
Admiralty Appeal. George L. Bright, for Thos. Gilnwre t1 Sons, for defendants. . PARDJiJE, C; J. This suit is brought by a libel in to cover the share due by defendants in a case of general average. record shows a proper case for general average, and that on the arrival of the hark this port the cargo delivered on an average bond. The only questions raised in the case ai'e f (1) As to _ the jurisdiction of the court; and (2) as to the amounfdue. Ihave held the case for some for consideration of the question of jurisdiction. Since the. decision in Ina. 00. v. Dunham, 11 Wall. 1, there seems to be no doubt that the admiralty courts have in all cases of maritime obligations. And that general average comes under the head of maritimeobligationl:! there 'cannot be muyu tion. In fact, ther<ds no doubt that the claim for general avera;ge is a lien enforcea.ble in' admiralty on the cargo saved until the. delivery of the and the teal question is 'whether thejurisdi'ction remains after the lien is lost by delivery,_ sO.that the claim, ¥lay be enforced in persOnam against"tqe eonsignees.' , The obligation of the cargo'io'contHbute,ina proper ca,se,of genbound, eral average, IS a m{ttit'it?-e obligatidn}or .which the but not the When the <largo is delivered 'there is :m implied obligation; ot,'if a bond is 'taken; an express obligation, Oil the part of theconsignees' to Qonti-ibiite thesbare' due by the cargo 80 received by them. Is this ilist oblig'ation a maritime obligatiim?
at
*Rcported by Joseph P.Hornor, Esq., of the New Orleans bar.,
342
FEDERAL REPORTER. '80
In Cutler v. Rae,· 7 How. 729, it is clearly decided not to be maritime contract. It is said:
" The owner of the goods is liable, because at the time he receives the goods they are bound to share in the loss of other property by which they have been saved, and he is not entitled to demand them until the contribution has been paid; and as this lien upon his goods has been discharged by the delivery, the law implies a promise that he will pay it. But it is not implied by the maritime law which gave the lien. It is implied upon the princfples of the common-law courts, upon the ground that in equity and good conscience he is bound to pay the money, and is therefore presumed to have made the promise when he received the goods."
It would seem that where the consignee receives the goods and gives a general average bond, the express contract takes the place of, and stands upon the same footing as, the implied obligation referred to in Cutler v. Rae. So that, if the case of C'!J;tler v. Rae is the law, the question of jurisdiction herein raised is settled adversely. But at the very time of the decision in that case, and ever since, doubts have thrown upon its' correctness. See the remarks of the chief justice rendering the decision, and of Justices Wayne and Catron, dissenting; also Curtis, Jur. U. S. Courts, 261; Dike v. St. Joseph, 6 McLean, 573. And in Ins. Co. v. Dunham, 11 Wall. 1, it is practically overruled. It is said by Judge Curtis in Gloucester Ins. Co. v.· Younger, 2 Curt. 334, that it would be remarkable if the admiralty were held not to have jurisdiction over an implied or express promise to contribute to a general aTerage loss, and yet had jurisdiction over an express promise in a policy of insurance to indemnify one for what he might be obliged to . Since the case of referred to, this last jurisdiction is undisputed.' The practice in the courts of this district has been in favor of the jurisdiction claimed, and the learned district judge in this case has mailltained it. Although the case of Cutler v. Rae has never been directly overruled, I think I must either disregard that case or else disregard the later decisions of the supreme court. The learned proctors for defendants are a little confused in the cases cited as to contracts for towage, master's wages, and mortgages. In those cases (libels in rem) it was held that' where there was no lien there was no jurisdiction to proceed in rem. As to the amount claimed, while there is ,some doubt about the charges for commissions and for the adjuster's services, yet, as these charges are proved to be regular, and the report of the adjuster containing them is approved by the average committee of the board
THE ,ALIDA. ,
of underwriters, I am not disposed to have the matter re-examined. The adjustment made at the port of destination I understand to be the correct one, and clearly the one made at Passages, Spain, was erroneous, and the libellants were not bound by it, particularly. when the respondents· rejected it. Let a. decree in terms affirming the judgment of the district ,court be entered.
THE L
ALIDA.-
(Circuit Oo'lJlrl, B. D. P611insY!fJania. April 24,1882., PRACTICE-JOINDER Oll' ACTIONS IN REM AND IN PERSClNAH. Proceedings ill rem and in pqr801lO/m cannot bejoined in the same libel,
except in the cases specified in the admiralty rules promulgated. by the supreme
court. CoNTRACT-MuTUAL PERll'ORHANOB.
One party to a contract cannot recover damages for its breach if he has failed , ,; to perform his part of it. '
Appeal from the decree of the district 'court. See opinion reported in 8 FED. REP. 47. ' Theodore M. Etting and Henry R. Edmunda, for libellant. Henry Flanders, for respondents.' , McKENNAN, C. J. On the twenty-sixth of May, 1880, at Philadelphia, T. Conrow, for the owners of the steam-tug Alida,-he being the equitable and thus the real owner of the entire vessel,-proposed to charter to G. H. Ferris the tug for two months, at the priceof $500 per month, for the purpose of "towing in North Landing river and Currituck sound," North Carolina; the tug to be furnished with coal. This proposal was accepted by Ferris. It was also agreeed that Ferris should furnish the master with provisions for his crew, and should pay the current expenses of the tug, the amount so expended to he deducted from the hire of the vessel, and the residue, if any, to be paid at the end of each m:onth. The tug left Philadelphia on the twenty-seventh ofMay, arriving at Norfolk June lst,and proceeded to North Landing river, some 30 miles distant from Norfolk, where she remained in the service of the libellant until the fourteenth of June, when she retu.rned to Norfolk for want of supplies. The libellant did not furnish needed supplies for the nor pay her, current expenses. Nor was the master able'to obtain supplies upon «'Reported by Frank P. Prichard, Esq., of the Philadelphia bar.