530
FEDERAL
:(liples that the costs of this coprt be decreed against the Plymouth Rock, iJ:]. ,fav;or of the Dentz. , ' .' , ,'," , ,will be a decree ag/iloinst:the Plymouth Rock in favor of the libelant fQr the whole damagesdecreed by the district court, with incosts of ,the district court, and in favor of the Dentz for the costs of this court.
MAGDEBURG (DiBfHokt Oourt, S.
"
INs. Co.
'11.
PAtJLSON.
E. D. November 30, 188B., UImIAadjudged unseaworthy.
1.
CARRIERS-OF GOODs-SHIP-EVIDENOE REVIEWED-VJl:SSEL HELD WORTHY. '
On the evidence stated, the
2. SAME-DAMAGE '.l'0 CARGO-PAR'.l'IAL INJURy-MEASURE 01' DAMAGES.
,
If the of is the partial injury or destruction of the property shipped, In the absence of proof. of fault or fraud on the part of the car. rier, the ,(li1ference the value of the goods at the point of ,destination at the time and in the condition in which they did arrive, and 'their actual value at the time and, in the condition in which they ought to have'arrived, is the proper amount' of recovery.
3. SAME.
4.
In other words. when: there isa 1;Ireach of contract, the amount that would have been received had the contr.actbeen kept is the measure of damlloges. if the contract is broken. B., in .Alder v.KeiUhly. 15 Mees. & W. 117. Held, under the facts of this case, that the market value of the damaged rice was to be determined by the price it actually brought ,after it was beaten and prepared for market, and not by the'testimony of the experts. , ,
SAME-MARKET VALUE-How ASCERTAINED.
(SyllaoU8 oy the Oourt.)
In Admiralty. Libel in pers_. Garrard <to Meldrim, for libelants. '/Ater «Ravenel, for respondent. , SPEER, J. The libel is sued out by the Magda.burg General Insurance Company, a corporation by the laws of the kingdom of Prussia, against Paulson, the owner of the schooner Pilot. It alleges that of1 the tenth day of September, 1879, A. E. Moynello shipped on ,the Pilot a cargo of rough rice in bulk, from the Vallambrosa plantation, on the Ogeechee river, to Savannah, Georgia;, that the rice was to be delivered in good order to Moynello t on the schooner,· at the upper rice--mill, in Savannah; that it was delivered badly damaged by water; and that this damage was occasioned by the unseaworthiness of the schooner. Thecal'go had been insured against marine losses with the libelants, and they paid all the damages to Moynello, and the cQsts of a board of :survey; the amount being $563. Moynello assigned, in consideration of this payment, all his claim {or damages against the Pilot to the libelants. They allege that they are subrogated to his rights for compensation from the owner
}{AGDEBURGGENllRAL INS. CO. II. PAULSON.
531
olthe schooner, and that they made It demand upon Paulson for the amount paid to Moynello by them, and on his refusal, brought the action, ciVil and maritime. Respondent filed an answer, in which he denies that the Pilot was unseaworthy, and that the injury to the rice was caused by negligence; but alleges that it was caused by a boisterous sea, which sttained the seams of the vessel during a strong east wind. He also denies that Moynello was damaged. On the hearing, many witnesses were examined, but the evidence is qUite clear that the Pilot was unseaworthy, and at the time oHhis shipment unfitted to safely convey a cargo, even on the quiet waters stretching from Vallambrosa to the harbor of Savannah. The port wardens A. M. Miller and Thomas H. Lahd, together with H. F. Willink, a master ship-carpenter, surveyed the Pilot, and give their testimony as witnesses to the effect that they found her planking and frame defective, with a large, leak on the stem under the bowsprit. The leak had recently been covered with canvass, but, in the opinion of the witnesses, the Pilot made a great deal of water at that point, and was not in a seaworthy condition to carry grain or any perishable cargo. The "protest" filed by-the mariner who navigated the PHoton this voyage, in its enumeration of the perils of the deep encountered, mentions nothing more severe than a strong breeze from the eastward, with a heavy sea, "which compelled him to put the Pilot in the marsh, and pump her out." On this evidence the Pilot is adjudged unseaworthy at the time the cargo was shipped. The testimony of Mr. Moynello is that the cargo consisted of a fine lot of rice, in good oruer at the, time of its shipment; that it was delivered at the rice-mill, and was wet and injured. Frank Buchanan, an expert with rice, testified that with Mr. McArthur he examined the rice on ooardtheschooner, and found it wet. It was impossible to separate the wet· from the dry; that nobody could tell exactly what the damage was, but they estimated it to be 34 per cent.; that the market value of rice in Savannah at that time was $1.60 to $1.65 per bushel; that he sold some of the rice of this shipment; that it brought $1.36 to $1.40 net; equivaJE'nt to $1.65 gross; that this was the full market price. W. T. Owen, clerk in the testified that the cargo of rice was handled with gTeat care, and it turned out as well as if it had never heen injured, arid; 'that Mr. Moynello got as much for it, less the expense of haridlingand milling, and less a loss of 26 bushels, which could not be used. He also testified that the extra expense consisted in the hire of two hands'for nine days, at 75 cents per day. Major Tilton, superintendentof the rice-mill, t stified that it took nine days to cure this rice intliemill, and that the moisture did not penetrate the graiu;that all of it ttlrIledout in good condition, except 26 bushels; that he was surprised at the quality of the rice; that it was much ,superior to what he expected; The witness Freeman testified that the rice brought the best market 'price. From this evidence, it is manifest that the rice was injured to some extent' beeause of the unseaworthiness of the schooner in which it was
REPORTER.
shipped. To the extent of that injury libelants,who were the insurers, were liable to Mr. Moynello; and the amount which they should properly have paid to him theyareel!ltitled to recover fr9ill the respondent. In order to ascertain what is that. amount, it is necess;try. to determine what is the measure of damages in view of the facts in this case. It is insisted by the counsel for the libelants that the damage must be estimated in view of the condition of the rice at the timeofits delivery by the carrier at the point of destination, and that the testimony of the experts who examined the rice at that time is conclusive, and shows that it was injured 34 per cent. of its value, which amount, with interest thereon) they insist the libelants should recover. The. general rule that. in case ofinjury to the property by the carrier, the measure of damages is the difference between the value of the goods and wh;tt· their value would have been if they had not been damaged in the course of transportation, may be considered as settled_3 Suth. Dam.. 237. The difficulty is in the ascertainment of what is such difference of value. This is a matter of evidence. The testiJnonyof the gentlemen who inspected this rice would be satisfactory, if there was no other evidence before the court to show its actual condition, although the inspection of a cargo of grain in bulk, only partially exposed to view, is necessarily superficial. If it turns out that there was no loss, does it not follow that there was no damage? But, say the (lOunsel for lib31ants: "Suppose the rice had turned out badly, could the defendant hav(;) ,been held liable for the loss of handling in the mill?" In that event there would likely have be.enno facts before the court to negative the testimony of the appraisers, and their testimony might have been controlling. . Nothing is better settled in estimating damages than the rule that every case is to be governed by its own facts. There was a duty on the shipper as well as on the carrier. It was the duty of Mr. Moynello'to do the best he could with the wet rice, and to be diligent about its manipulation, and thus, if possible, to prevent loss. If he had intended to sell the cargo as rough rice,-,-if that had been the purpose for which the shipment was made,--the evidence of the appraisers might have been conclusive. But that was not his purpose. The rice had been con· signed to the rice-mill, to be beaten and prepared. for the market.. This process developed the fact that the injury was apparent, and not real, and that,at a trifling expense, the rice was made and at the highest net price. It cannot, therefore, be justly, insisted, because while in transmission, at one time, the cargo seemed damaged, that the court must settle damages on a partial view of the facts" and must not look further. to ascertain whether the apparent damage was actual and injurious. The value upon which this is to be estimated is the net value, after deducting freight and expenses. Pars. Shipp.. & Adm. 271; Wallace v. Vigua, 4 Blackf. 260; McGregor v. Kilgore, Ohio, 358. To illustrate: Suppose the carrier had dellJ.yed to deliver the goods beyond the day promised, and the shipper, for that reason, foJ' one day, had failed of a market, and yet, on the day thereafter, sold [Qr, a price quite as good as that he could have had the day before,. could ap.ything
MAGDEBURG GENERAL INS. CO. 'II. PAUlSON.
538
more than nominal damages be given for the delay? I think not. The true rule is this: that if the damage complained of is the partial injury or destruction of the property shipped, in the absence of proof of fraud or wrong on the part of the carrier, the difference between the actual value of the goods at the place of delivery, at the time and in the condition in which they did arrive, and their actual value at the time and in the condition in which they ought to have arrived, is the measure of damages. In other words, the amount which would have been received· had the contract been kept is the measure of damages, if the contract is broken. There has been some contrariety of opinion as to the manner in which this actual value should be ascertained. In The Columbus, 1 Abb:' Adm. 97, it was held that where goods were damaged during transporta1;ionon board ship, and were received by conRignees upon an understanding tha.t the depreciation was to be made good to them, and they were sold at auction by the consignees, but with the assent of the mae-ter, for the purpose of making adjustment of the amount due from the vessel for the injury, the sum realized at the sale should be regarded as the valu.e of the goods in their damaged state. Where the vessel proved. unseaworthy, and put into port, the voyage broken up, and the plaintiff's cargO sold,held, that the loss on the goods, taking them at their "invoiceprice/' r,esulting from the sale, was the true rille of damages, on there was no fault or fraud on the part of the defendant; the only the breach of the implied warranty of seaworthiness. Wluielivright v. Beers, 2 Hall, 391. In the case of Hq,milrnn v. The Kate Irving, 5 Fed. Rep. 631, where cotton ties were injured by being stowed with chemicals, it was held that the market value of the damaged cotton ties was to be determined by the price they actually produced when sold, and not by the testimony of experts. See, also, Barb. Ins. § 155 et seq.; Pars. Shipp. & Adm. 271-273; 2 Phil. Ins.
1460.
For these masons it is clear that the libelants improvidently paid to Moynellothe sum fixed by the appraisers for the apparent damage, without waiting to ascertain what was the real daqlage. To this appraisement, Paulson, the owner of the Pilot, was not a party, and did not consent. The libelants cannot, therefore, recover from Paulson the 'amount for which they sue. They are entitled to recover for the extra expense incurred in handling the wet rice, and also for the value of 26 bushels of rice so injured as to be worthless, and for the costs ofthe survey of the Pilot. It is true, as insisted by respondent, that the claim of li,belants was in excess of their just demand; but it is also true that Paulson offered to pay nothing, when he was clearly liable for some. amount, and he also greatly increased the expense of the trial by maintaining that his vessel was seaworthy, and he must have known that it was unseaworthy. For these reasons it is adjudged that each party pay haJJ the cost\!. Let the decree be framed accordingly.
, FEDERAL REPORTER.
THE SAWMONI and another. FEOL v. THE SALOMONI and another. (DiaWict (Jourt, 8. D. GeM"gia, E. D. December 7, 1888.) 1. CLJllRK: Oll' COURT-UNITED STATES DISTRICT COURT-IN ADMIRALTy-JURISDIOTION...,.TRESPASS. ",' . ·
If the clerk of the United States district court issue process under a standing admiralty rule of the court, he cannot be as a trespasser, even though the court had no jurisdiction in the premIses.
2.
SEAMEN...,. CONTROVERSY BETWEEN SEAMEN AND OFFIOERS"'" JURISDICTIONJUSTICES OF THE PEAOE--CONSULS-TREATY BETWEEN UNITED STATES AND ITALy-REV. ST. U. S. §§ 4546, 4547;
Under the treaty between the United States and the kingdom of Italy, stip. ulating that" consuls general, consuls, vice-consuls, and consular agents shall have exclusive charge: * * * ,and shall alone take cognizance of questions, of whatever kind, that may arise, both at sea and in port, between the captain, officers, and seamen, without exce'ption. and especially of those relating to wages, and the fulfillment of agreements reciprocally made." a justice of the peace has no power, under sections 4546 and 4547 of the Revised Statutes of the United States to compel the clerk to issue admiralty process against an ItaHal?- ship for the wages of a seaman thereon. ON SEAMAN IN UNITED STATES PORT-DISTRICT COURT-
Where the master of an Italian vessel, in one of the porta of the United States, is guilty of a barbarous and malicious assault upon'a seaman on such vessel, he is not protected by the terms of the consular compact above quoted, and the district court may, In its djscretion, take jurisdiction of the case, for the protection of the seaman,' and 'the redress of his wrongs. (BgTlabU81J'U the (Jourt.)
In Admiralty.
Seamen's wages. Henry McAlpin, for the rule. Den:roork & Adams, centra.
Rule againsi the clerk.
SPEER, J. This is a rule sought against the clerk of this court by Henry McAlpin, as proctor for Frank Feol. It appears, from the petition filed, and the answer of the clerk thereto, that Feol was a seaman on the Italian hark Salomoni. On the fifteenth day of September last he made an affidavit before McNAUGHTON, a justice of the peace, alleging an assault upon him, made by Francisco Grasso, the master of the bark, ' while she was lying at the wharf in the harbor of Savannah. The affidavit was intended to be in accordance with sections 4546 and 4547 of the Revised Statutes of the United States. to compel the payment of the wages due affiant, and to obtain his discharge. It does not appear, from these sections, that they embraced the SUbject of the discharge of the seaman, but they relate simply to his claim for wages. A summons was issued by the justice, directed to the master and owner of the vessel, commanding them to appear before him to show cause why process of at.tachment should not issue. Acopy of the summons was served personally on the master ofthe bark by the constable of Justice McNAUGHTON'S court, but the master treated the summons and the justice's court
THE IALOMOl!\.
535
with greatindifl'erence, and, indeed, refused altogethedo appear. Whereupon the justice issued his certificate to the clerk of the district court, in accordance with sectio:q. 4547, Rev. St. THE OERTIFIOATE.
"Sa"Mnnah, Ohatham 00., fJeorgia. "OFFIOEOF MoNAUGHTON, JUSTIOE OF THE PEAOE,
"September 17,1886. "Tbemaster against whom the within summons issued neglects to appear, and I l:lartifyto the clerk of the district court of the United States for the Eastern division of the Southern district of Georgia that there is sufficient cause of cOI;nplaint whereon to found admiralty process against said vessel. "In Witness whereof I have hereunto set my official Signature and seal of office this seventeenth day of September, A. D. 1886. [seal;] "MoNAUGHTON, N. P. & Ex. O. J. P., C. Co., Ga." On the eighteenth day of September, the seaman also filed his libel in this court. and prayed process for the recovery of his wages. He madeno claim for compensation for the assault, nor did he ask to be discharged. The clerk declined to issue process, either on the certificate ofthe magistrate or upon the libel. The reason he assigns for this refu!38.1 was his knowledge of the want of jurisdiction by this court of a difference of this character,:between the master and seaman of an Italian vessel. both Italian subjects. He answers that he was aware that, under the treaty between the' United States and Italy, this jurisdiction had beensurrendered by the government 'ofthis country. The article of the consular Compact ratified between the United States and Italy on the eighteenth of September, 1878, is as follows: .. Art. 11. Consuls general, consuls, vice·consuls, and consular agents shall have exclusive charge of the internal order on board of the merchant vessels of llation, and shall alone take cognizance of questions, of whatever kind, that may arise, both at sea and in port, between the captain, oliicers, and withollt exception, and especially of those relating to wages, and the fulfillment of agreements reciprocally made. The courts, or federal, state, or municipal authorities in the United States, and the tribunals or authorities in- Italy, shall not, under any pretext, interfere in such questions; but they shall lend aid to consular officers, when the latter shall request it, -in order to find out. arrest. andilnprison any person ·. belongi ng to the. crew, whom they may think proper to place in custody. These persqns shall be arrested at sole demand of the consular officers, made in writing to the courts, or federal, state, or municipal authorities, in the United states, or to the competent court or authority in Italy,-such demands being supported by an official extract from the of the vessel. and from the crew-list; and they shall be detained during the stay of the vessel in port, at the disposal of the consular officers. They shall be released at the written request of the said officer, and the expenses of the arrest and detention shall be paid by the consular officer." A protest, signed by the master and the Italian consul at the port of tendered to the clerk, and his attention was therein called to the provisions of the consular compact,and it was therein insisted that he issue no process in the premises. The master also stated :that he appeared before Justice MoNAUGHTON, and called his attention to
536
FEDERAL REPORTER.
the consular COmpact between the government of the United States and the kingdom of Italy. The great names appended thereto, viz., Baron Alberto Blanc and William Maxwell Evarts, had no terrors: for his honor Justice McNAUGHTON. He. discredited the treaty, and pefused to attach any importance to it. But the clerk regarded it as controlling him in his the admiralty process of the court. For action, and lieclined to this refusal it was sought to make him liable. H the clerk :had issued the prQcesssought by the seaman upon the libel filed in this court, he could not l , in the opinion of theco1iLrt, have been regarded as a trespasser. It is true that he is merely a ministerial officer, but there isastanding admiralty rule of this court, having theeffeet of an order 6fdirection to the clerk, to-wit: "Admiralty rule No. 1. '! ... ... In all suits in rem or in personam, attachmentor warrant of arrest and monition may issue, without a judge's order, immediately upon the filing of the libel, and the for costs in the clerk's office, except in suits in personam requiring bail, where the claim the, libelant amounts to more than five hundred dollars. upon an ascertained. appearing upon the face of the libel, or is for uncertain or unliquidated damages. In such excepted cases, a judge's order authorizing bail process, atId fixingthe amount of bail, will be required." 1.,.
So far as the-proceeding under the libel is concerned; the clerk would have been protected by this rule had he issued process. ,So far as the certificate of the justice ,of the peace is concerned, the action of the clerk was entirely justifiable. The order direoted to an officer of this court from an inferiorjudicature must depend for its validity upon the power of the courtisauillg it. The justice of,the peace, in the presence of the treaty stipulations" had no power to interfere in this difference between tho Italian master and seaman of an Italian vessel. The treaty was paramount law, and should have been respected by him. His sole power, under the statute, related to the wages of the seaman, and that, by the treaty, is clearly remitted to the. Italian consul. It was to avoid interference of precisely this character, with the navigators of both nations, that the compact between the kingdom of Italy and the United States was made. The court has no disposition to lessen the importance of the functions attaching to the office of justice of the peace. They are stated with some .elaboration of detail in, the case of Bendheim v. BaldWin, 7.3 Ga. 594, Mr. Justice BLANDFORD delivering the opinion of the court; and on this subject of state polity the decision of the highest appellate tribunal of the state may be regarded as binding on the courts of the United States; albeit the excellent humor of their court of appeals is scarcely just to the dignified metropolitan justiciary of which Justice McNAUGHTON is a member. "It is true, however, that certain functions are occasionally improperly e-xercised by'justices of the peace; as, for example, a justice would, improvidently issue a<warrant for the arrest and impJ'isonmentofseainen under section 4080 of the Revised Statutes. This power belongs' to the judge of a court of record of the United States, or to a comniissioner of that court. Besides, it is the duty of all courts,
THE SALOMONl·.
537
from .motives of justiqe f1.Qd .reciproaal policy, and for the advancement of :commerge,to interfere as little as may be between them,aster and sea· . men. t"a,glI\g p£ the United States. The certi-. ficate of the justice in this case, directed to the clerk, was a nullity, the clerk very properly paid no attention to I t . " .. ' The only remaining question is, should the clerk have issued process under the libel? It is now settled that the district court of the United States, unless restricted by some treaty stipulations, may, in the exer· cise of its discretion, assume jurisdiction a claim for wages against a foreign vessel; and also, where it isptovided by treaty stipulation that the consuls, vice-consuls, etc., of a nation, shall have tbe right, as such, to sit as judges and arbiters upon such differences as may arise between .crews, w,ithout the interference of the local.authorities, the it is held that the district court was not thereby debiured from exercising its authority, in a case where there was no C09su1, or other such officer, within the territorial jurisdiction of the court. The Amalia, 3 Fed. Rep."652. , '. , It appears, therefore, that, notwithstanding the trE¥l-ty, there are ocwben the courts should take jurisdiction of suits prosecuted. by fo:reignse8,men ,against foreign vessels. Such cases are, however,of rare occurrence.' In the case cited by counael for the rule, reported in the :N'ew YorkDail;y ltegif!ter of March 13, 1875, decided by Judge JOACHs1)<' in the marine cotirt of New York city, where a suit to recoverfbr assault. and battery, committed on board the vessel, was entertained, it was held that the injury complained of was a difference of a nature to the public peac6ilnd order in port or onshore, and treaty vesting jurisdiction in the German consul excepted. cases ofthlit char· acter. of the treaty under consideration, to-wit, "consuls,etc., The shall alone take cognizance of questions of wliatevet·kind that may,arise, both at in port, between the captain, officers, and seamen, without exception, and especially of those relating to wages, and the fulfillment of agreements reciprocally made," suggests the inquiry, do the questions contemplated by this clause of the treaty include such a tort as an unjustifiable and cruel assault by the master upon the seamen on board ship, while in port?-an assault which would indicate settled hostility, and probable repetition. I am inclined to think they do not. Must we not construe the treaty to include questions of a similar character to those enumerated, ejusdem generiJ3? The treaty, it seems, does not indicate a criminal assault upon the seaman, within the territorial jurisdiction of the court, as a matter of exclusive ('onsular jurisdiction; and, in that protection which courts have always extended over the seaman, a denial of jurisdiction in the admiralty court is held to be a matter of too serious import to be rested on implication. Weiberg v. The St. Oloff, 2 Pet. Adm. 433. It is perhaps. fortunate, therefore, for the legality of the clerk's action, that the libel filed in this court contained no prayer for the injury occasioned by the assault, and no prayer for .a discharge on account of such
FEDERAL REPORTER. and not otherWise comply with the admiralty rule above cited. SinCe itCQntaiped a prayer for wages only, a matter ofwhich, by \'irtueof the terms of the treaty,' the Italian consul had exclusive jurisdiction t the rule must be d i s c h a r g e d . ' '
THE GALILEO.1 THE EDGAR BAXTER. ,; RmDF..MANN and others n
f1.
THE GALILEO and another.
OO'Url, 8. D. New York. October 12,1886;)
ADMmALTY-DISTINCTION BETWEEN APPEALS AND WRITS OF ERROR.
In suits against joint tort·feasors, if the defendants answer severally and not jointly, thei,r interests, are severed, and, if a judgment'be recovered against one, he may sue 'out a writ of error without joining the other defendant. The writ ofljrrOf, is, in effect, the foundation of a new suit; and the Ol1-ly questions brought' up for review are those arising between the person who takes out the writ and the opposite par!1.' because the party who is not joined in the writ is no longer in, the case. ;'l'his is 'not so, in admiralty, when the appeal suspends the operation of the decree, and brings up the whole cause for a new hearing. The appellant alone can be heard in support of the appeal, but all parties interested in supporting the decree appealed from are entitled to,be heard.
·· S.um-DECBEEON APPEAL.
a.
The libelants proceeded'against two vessels for damages by collision. The district court dIsmissed the libel, with costs, as to one, and awarded the libelants their whole damages, with costs, against the other. An appeal was taken by the,latter vessel, and also by the libelants. The libelants subse· quently a.bandoned their appeal. Upon the hearing in the circuit court all partiesappeared,and litigated the cause. The decree of the district court was fault. Held, ,that although the libelants w;ere in the, positioll ofnot having appealed, they were entitled to a decree agaInst both vessels, such a decree beIng necessary to protect the ap· pellant and do full justice between all parties; but that the libelants were not entitled to costs of the circuit court. '
COLLISION-,APPEALS-LIBEJ,ANTS NOT JOINING IN ApPEAI.--FORM OF DEOREIll.
When, in a cause of collision, a libel against two vessels has been missed as to one and sustained as to the other. and if therefrom the latter alone appeale,"the libelants, though not appealing, will be entitled to the same though not to costs. form of decree. asif they
28 Fed. Rep.' 4:69.' , H. Putnam, i , Owtm Gray, for .the EdgarBaxter. E,. a. Henders0r" and
Admiralty." ¥qtion,for decr,ee and costs.
For opinion of court, Sea
the Galilea.
WALLAClll,J. 'Upon the settlement .of the decree cause,. the fact was first brought to the attention the court that the appeal which
of
lReported by Theodore M. Etting, Esq., oftbe Philadelphia bar.