The mvy upolltlIe real: es.tarte . facie. a satisfaction of the decree, therefore the machines arepri1!la facie free.· The defendants, as the oaseJ!.ow have tl:J.e right to have the injunctiondissolveq'r is "V/tried byfurthep. developments or differentresu1tE\, compensation, can be made to the orator in the acdanger of. injustice than $he continuanoe of the counting injunction would involve. Motion SJanted and injunction di$olved.
Tam L
HAIUUBBUBG.-
fC7lf'll1Iit (J01f'1, B. D. Pen'1illlloania.. February AnMmALTY JUUISDIOTION-,;,PROC1UII1>Dm FOB NAVIGULE W.ATltRS' , ,
1883.1
ToRT
IN . eMBOli' DBATJr UPOK
In the admiralty courts of the United States, the death of a human being uPQn the high seas, or waters' from. the Sea, caused by negligence, may be complained of as an injury a1'ld the Wrong redressed uuder the general maritime law. TlI,eT()1J!anrl,a,S4Leg. Int. 394, followed, COLLISION":"LIMITATION OF ACTION-LmEL IN REM.
Where it death was caused by 8 collision, in 1877, Mar the Cross Rip UghtBhip;in Nantncket sound, the offending vessel being enrolled in Philadelphia, and a libel en rem was filed in the district court for the eastern district of Pennsylvania in 1882, by the widow and daughter of the man 80 killed, their ¢ause of action'does not depend upon the statute laws of either Massachusetts or 'Pennsylvania{and the limitation of one year in the'statutes of those states d(>es not operate as a bar.
Iri Admiraity. Appeal by the steamer tlarrisburg from the decree of the district court awarding $5 y lOOdamages against her npon a libel, filed by the widow and daughter of the late first officer of 'the schooner Tilton, whose drowning was caused bya collision The material facts are as follows: , Near the 'Cross Riplight-ship in Nantucket sound, a sound of the sea, embraced between the coast of Massachusetts and the islands of Martha's Vineyard and Nantucket, parts of Massachusetts, on the sixteenth of May, 1877, a collision occurred between the schooner Tilton and the steamer Harrisburg, which resulted in the loss of the schooner and the drowning of six of her crew. , A libel by the schooner was determined against the stestnl;lr, (9 FED. REP. 169,) and its liability for the consequences of the collision was not contested *Reported by Albert B. Guilbert, E.q., of the Philadelphia bar. Reversed. See 7 Sup. ct. Rep. 140.
in the present proceeding; On Feb'tuary 25; '1882; Emfua S. 'Rickards. aii'd. :Mary E. Rj.ckards, by her next friend. Emma S. Rickards, widow and ter ()f SilasE. Rickards, deceased, late first officer of the schooner Tilton,filed a libel in rem against the steamer Harrisburg, for damages for his ,del\.tbl:oOcasioned by thecollii:!i?n.· The steamer was engaged.in the coasting trade, and belonged to the I?ort of Philadelphia, where ,she 'Yas. enr.olled,.. '.: ,.. ,,', , No innocent rights to or in the steamer had ariSen between the date onhe collision and the exhibition of the libel. and it did not appear that allY venience resulted to the respondents by the laches of libelants; ':,
The district court entered a decree in favor of'ihe libelants, a.lid damages were assessed at $5,100. ' " Ourtis Tilton and Henry Flanders, for In the admiralty courts of the United States the death of a human being upon the high seatl, or waters na\'igable from the sea, caus(l<l by may be complained'of as an injury,and the wrong dressed under the general maritime law. The Towanda, (Cir. Ct. Dis, Pa.) 28 InkRev. Rec. 884; 84 Leg. Int. 894; The Ohas. Morgan, 18 Law Reg. 624; The Sea GuU, Chase, Dec. 148; The Highland Light, Id. 150; Outting v. Seabury, 1 Spi'. 025 i Long Island' Tranap. 00. 5 FED. REP. 599; The Garland, Id. 984; Holrne8v. O. & R. 00. Id. 75; The Sylvan Glen, 9 FED. REP. 835; TMFavorite, 12 FED. REP; 213 ; The Ep8ilon, 6 Ben. 379 ; Taylor v. Dewar, 117 E. C. L. 68. ' The rule of the common law that no redress can be had for such injuries is peculiar to that jurisprudence, and does not obtaiuin miraIty. . Sullivan v. Railroad 00. 3 Dill. 337; De Lovio v. Boit, 2 Gall. 472; The Ohas. Morgan, 18 Law Reg. 624; BeIl. Adm. 149. In The Towanda, decided in this circuit, the conrtsaid': "While the weight of authority in common-law courts is, perhaps, in favor of the prittciple, it has not been adopted with uniform 'Sanction even by the,m, " and declaring that "the question is one of 'general -jurisprudence, " the court would not recognize the common-law rule. So in The Sea Gull, The Highland Light, and The Oha8. Morgan, supra. It is be-: that the admiralty courts of the United States and of ]rngland' have not followed the common-law rule in a single caSe. " The libel complains of' a maritime tort, and "the jurisdiction of the: American admiralty comprehends all maritime torts and injuries." ' "It is co-extensive with the subject, and depends upon the locality of the wrong, not upon its extent, character, or the relation8 of the per8onti: injured. " De Lovio v. Bait, The Towanda, and The Highland Light, supra. " A maritime lien arises ship for the damages rer.ultiJlg from a tort committed by it. This lien travels with the thingwher-'
612
FEPERALREPORTER.
it goes. The lien and the proceeding in rem are correlativewhere one exists the other can be taken." The Rock Island Bridge, 6 Wall. 215; Ins. Co. v. Baring, 20 Wall. 163: The Gen. Smith, 4 Wheat. 438. As to the statutory or laches bar of the action: (a) The supreme court in The Key City, 14 Wall. 660, say tha,t "the courts of admiraltyare not governed by any statute of limitations in the enforcement of maritime liens. (b) That no arbitrary or fixed period of time has been or will be established as an inflexible rule, but that the delay which will defeat such a suit must in every case depend on the peculiar equitable circumstances of that suit. (c) That where the lien is to be enforced to the detriment of a purchaser for value, without notice, there will be a more rigid scrutiny of the delay than when . the claimant is owner at the time the lien accrued." State statutes of limitation are not observed in the admiralty. 2 Pars. Shipp. 361; Willard v. Dorr, 3 Mason, 95: Brown v. Jones, 2 Gall. 481. "The matter of limitations in the admiralty is left to the discretion of the court, which can best judge, in view of all the circumstances, whether the demand be so stale as to be neglected and abandoned. This discretion is not mere caprice, but the sound legal discretion of cultivated reason, in which the circumstances of, the parties, the property, and thetraUj'>action are to be carefully weighed." Ben. Adm. § 575. The numerous cases. holding the lien is not lost by delay in enforcing it, where Ilothird person has acquired any right to the vessel, and the owner has not heen injured by the delay, are referable to the above rule." The Canton, 1 Spr. 437: The 1I1echanic,2 Curt. 404; The Bold 13uccleugh, 3 Wm. Rob. 29: The Europa, 2 Lush. 93; The Louisa, 2 Wood. & M. 60. In The Utility, BIatchf. & H. 222, it was said that "the only general restriction upon the take cogniright to sue, adopted by the admiralty, is that it will zance of stale demands." And in the D. 111. French, 1 Low. 44, the cause of action was four years one month old, and there was a sale without notice. Held, that" where no injury would result from granting the remedy, and there is reason to believe that no evidence has been lost by the delay, the lienholders may sustain a suit after a very considerable period; even, in the United States, afterthe lapse of the time prescribed by the statutes of the state as a peremptory bar to similar actions." The libelants, therefore, encounter no bar to their action unless the court, exercising its discretion, interpose one. There is no rea-
THE HARRISBURG.
613
son why this should be done, but tJIese weighty reasons for petmit. ting the actions to go on: There has been no sale of the vessel; nor has evidence been lost, (it is all preserved in the records of this court;) nor, viewing the facts, has there been delay, for the test case time of collision; nor were the was vigorously pressed from claims abandoned, for in the test case it was expressly averred that they would be pursued. Thomas Hart, Jr., for respondents. The libel should be dismissed, because there is no law under which it is maintainable, except the statute law of Massachusetts and Pennsylvania, and by both it is barred by the limitation of time therein: provided. The death of a person upon navigable waters, caused by the negligence of another, cannot be cotnplained of as an injutyto be redressed under the general maritime law. Such a right depend.s solely upon the statute laws gover,ning the locality where the death took place; .or, if upon the high seas, upon the statute laws of the state to which the vessel causing the injury belonged. Both the states of Maryland and Pennsylvania bar this action. The libelants are the persons entitled to sue, by the Pennsylvania statute. See Company v. Rupp, 39 Leg. Int. 337. Thejurisdiction of the admiralty is not denied. The right given by the Pennsylvania statute may, within the year, be enforced in the admiralty. Ex parte McNeil, 13 Wall. 243; Rctilroad Co. v. Whit. ton, 13 Wall. 270. It was in accordance with this principle that the writ of prohibition was refused in Ex parte Gordon, 13 Reporter, 417. None of the cases sustain a libel in a case like this. In The To" wanda, 34 Leg.lnt. 394, (1877,) the judgment was right, for the ship was a Philadelphia vessel and the statute applied. The Towanda cannot be sustained on any other ground. The common-law cases cited therein are not now law. See Green v. Hudson R. R. Co. 2 Keyes, 294; Ins. Co. v. Bra,me, 95 U. S. 754; Dennick v. "Railroad Co. 103 U. S. 11; Osborn v. Gillett, L. R. 8 Exch. 88; Amer. Law Rev. 1882, p. 128. Cuttingv. Seabury, 1 Spr. Dec. 525, was in 1860, and is opposed by Crapo v. Allen, ld. 184. No distinction was attempted between common law and admiralty law on this subject. The Sea Gull, 2 Amer. Law T. 15, (1869,) is responsible for the error on this subject. The decision is made without examination or discussion, and, as far as it goes upon authority, is baseless. It should be rejected. The Highlttncl Light, 2 Amer. Law
.6H,
F.EDERA,:r. .,RlljPORTER.
T. Rep. 118,W.eot 00 the ground of the locality of' the wrong, and the United l111d MarylandstatutE,\s. all the recent·cases., state stata,tes governirigthe locality of ihe tort, or the vessel committing it, exiated, and the aecisions went wholly or partially thereon.T.hia was so in Holmes v. O. « O. By. Co. 5 FED. REP. 75; The Qhiej,7FED. REP. 163; Long Island T; Co.5 FED. REP. 599; The Oharles M01'gan, 18 Amer.Law Reg. 624; The Garland, 20 Amer. Law Reg. 742; (see note to this caae, page 750.) When, cause of action has arisen on highsea.s, the law of the !ltate of the offending vessel has been applied. McDonald v. Mallory, 77 Y. 546; Orapo v. Kelly, 16 Wall. 610. The Sylvan Glen, 9 l!'ED. REP. 335, is a direct authority for respondents; and so is Armstrong v. Bea(lZe,5 Sawy. 4tH. English admiralty law is with reSmith v. Brown; L. R.6 Q. B. 729; The GuldJaxe,L. R 2. Adm. 325; The 289; The Frarwonia, L. R. 2 Prob. Div. 163. The civil law did not give an action in such a case. Note. to The Garland, 20 Amer. Law Reg. 74:7; Hubgh v. Railroad, 6 La. Ann. 498; Herman v. Railroad, 11 La. Ann. 5. After a partial oral argument, MoKENNAN, J., (BUTLER; J., also sitting,) said that the court would not disturb the decision in the case of The Towanda; but that the was doubtful, and it should go to the supreme court. The decree of the district court was, therefore, affirmed, and the following conclusions of law were subsequently filed: 1. By tlle s.tatute law of the commonwealth of Massachusetts, (St. 1860, c. 63, §§ 98, 99,) it is provided in cases of death arising from negligen.ce that a fine may be reoovered by indictment and paid to the executor. or ad.ministrator, and that such indictment shall be prosecuted within one year from the injuries causing the ·death. By the statute laws of Pennsylvania, acts of AprH 15, 1851, and April 26, 1855, it is provided that the aptian therein given in cases of death occasioned by negligence shall be brought within brie year' after the death, and not thereafter. 3. In the admiralty courts of the United States, the death of a human being upon the high seas, or waters navigable froni the sea,' caused by negligence, may be '3omplained of as an injury, and the wrong redressed UJldel' the generarlmaritime law. 4. The right of the libelants doesoot depend upon ,the statute law of either the of Massachusetts or Pennsylvania, a.nd the tion of one year .in the statutes of tho3e states does not bar this proceeding.
EIGHT HUNDRED AND Fonn'JONE TONS QF IRON ORE.
:
615
5. Although an action in the statecolirts of either or Pennsylvania would be'barred by the limitation expressed statutes (')f thdse:lltates, the admiralty is not bound thereby, and, in ,this case; WIll not follow the perrotl of limitation therein provideda'nd . 6. The drowning complained of was caused by the improper navigation, negligence,and fault of. the said steamer, producing the cbIlision aforesaid, and the libelants are entitled to recover.' ",: ' 7. As theteare no innocent rights to be affected by the present proceeding., and no inconvenience will result to the respondents from the delay attending it, the action, if. not governed by the statutes aforesaid, is not barred by the libelants' laohes. ,J ;.
Eo die. An appeal wasenterad· to the supreme court of the United States. \
,
LIIlH1 HUNDRED A.ND FOflTl,ONE 'l'ONS OF IRON ORE.· , '. ,",jl:; i
(District . Court, E.D·. , ' . ';';'
York. ",
January 29, 1883.) ' .
L
PRACTJCE--SUl'PLEMENTAL LmEL....ExoEPTlONS.
A libel having been fi,led claiming freight and demurrage under a chatterparty, the libelant thereafter filed a supplemental libel, setting up the same and additional facts, and claiming the same freight and demurrage and addle tionaldemurrage, to which libel the claimant excepted on the commenced, Hdd, ground thaJ; it set forth facts occurrip.g after the suit that as it did not appear upon the face of the supplemental libel that any of the facts therein stated occurred subsequent to the commencement 01 the suit, the exceptions must be overruled. 2. SAME-MOTION TO STRIKE OUT SUPPLEMENTAL LmEL.
Where it appeared that the original libel was filed and process issued and served on September 22d, and the supplemental libel, claiming an additional amount, was filed October 4th, before the return of process, rio claimant having appeared, and on October 6th tM qlahlIant appeared and prooured a discharge of the property by depositing in mpney to the amount claimed in the sup. plemental libel,semble, that a motion to strike, out the supplemental libel on the ground that it set forth facts occurring after the, suit was commenced, would be denied, on the groUnd that the claimant would be deprived of no right by allowing it to stand, while to strike it out would increase expense without benefit, a,nd would also deprive the libelant ,of the, security which the claimant had given for the demand made in the' 8upplementallibel. . 'Ast(}'when a proceeding in admiralty is deemed to De commcnced,gUlll1'Il. ,.
,In A.dmiralty.· *Reported by R. D. & Wyllys Benedict. '