CHAPTER XI.

OF THE EQUITY JURISDICTION AND PRACTICE OF COURTS OF ADMIRALTY.

COURTS of admiralty are not, strictly speaking, courts of equity; thus, if a libellant disclose that his case rests upon a trust, he, in general, destroys his own right of action in admiralty, because the court cannot take cognizance of a bill in equity in the disguise of a libel in admiralty. But they have still very general and extensive powers, analogous to those which belong to courts of equity, and in general govern themselves by similar principles.2 Thus no party prevails there who does not come into court with clean hands and make out a case ex æquo et bono.3 So a condemnation

1 Davis v. Child, Daveis, 71, 80. In Andrews v. Essex Ins. Co. 3 Mason, 6, it was held that although a court of admiralty had jurisdiction over a contract of insurance, yet it could not reform the policy, that being the province of a court of equity. Mr. Justice Story said: "To be sure, in a certain sense, and in the exercise of their general jurisdiction, courts of admiralty may be said to be courts of equity, that is, courts proceeding ex æquo et bono, and not confined to the narrow notions of the common law. But courts of admiralty have no general jurisdiction to administer relief as courts of equity. They cannot entertain an original bill or libel for specific performance, or to correct a mistake, or to grant relief against a fraud, though they may perhaps, sometimes, like courts of law, perform what may be deemed analogous functions. They may give the same benefit, as if there were no fraud or mistake, or omission of performance; but this can be in a few cases only, which fall in all their circumstances completely within their general jurisdiction." See also Bernard v. Hyne, 6 Moore, P. C. 56, 74, per Lord Langdale; The David Pratt, Ware, 495, 500; Deane v. Bates, 2 Woodb. & M. 87, 92; Kellum v. Emerson, 2 Curtis, C. C. 79. In this latter case the rule is said to be, that a court of admiralty has not the equitable jurisdiction of a court of chancery, but merely applies principles of equity to subjects within its jurisdiction. And in Kynoch v. S. C. Ives, 1 Newb. Adm. 205, the court refused to decree the specific performance of a contract for the sale of a ship.

2 In Brown v. Lull, 2 Sumner, 443, 449, the court said, concerning mariners' contracts: "Courts of admiralty are not, by their construction and jurisdiction, confined to the mere dry and positive rules of the common law. But they act upon the enlarged and liberal jurisprudence of courts of equity; and, in short, so far as their powers extend, they act as courts of equity."

* In The Schooner Boston, 1 Sumner, 328, 341, Story, J., said: "I take it to

against one party in default or contumacy does not prejudice the rights of any other party to make defence on the same facts.1 And an agreement made under a clear mistake will be set aside.2 And after a case has been closed, it may be reopened for sufficient cause; but this the court have said it would be very reluctant to do.3 In general, a far less rigorous strictness prevails in the construction of maritime contracts in courts of admiralty than in those of common law.1

be very clear, according to the course of admiralty proceedings, that no person can come into that court and ask its assistance, unless he can, ex æquo et bono, make out a case fit for its interposition. A court of admiralty is, to the extent of its jurisdiction, at least in cases of this sort, a court of equity, and the same rule applies here as in other courts of equity, that the party who asks aid must come with clean hands." This was said in reference to embezzlement by salvors, which, we have seen, forfeits their claim.

1 The Mary, 9 Cranch, 126.

The Hiram, 1 Wheat. 440.

3 In The Fortitudo, 2 Dods. 58, two suits had been commenced on two bottomry bonds, the first of which was on the ship, and the second on the ship, cargo, and freight. The warrants of arrest were executed in the usual manner, and the average account between the ship, freight, and cargo made out by a third person. The bondholders objected to the amount charged for the freight. The master then consented to take their own account of freight, upon which they withdrew their actions, and supersedeas was decreed. The master then chartered the ship anew, and she was again arrested on the same bonds. The court said: "These are the circumstances stated by the master in his affidavit, and they do not, in my apprehension at least, render it necessary that I should inquire how far the permission again to open a case which has once been closed, comes within the range of that large discretion with which this court is, by its commission, intrusted. It might, perhaps, within the limits of that very extended equity which it is in the habit of exercising, deem it not improper, in some cases, to suffer a cause to be reopened. But it certainly would not do so, unless there existed very strong reasons to show the propriety of the measure. I feel no hesitation in saying, that mere negligence or oversight would not be a sufficient ground for such an extraordinary interposition of the authority of the court. A direct case of fraud, or something equivalent to it, must be made out before I can suffer such a step to be taken." In this case the bondholders were condemned in costs and two months' demurrage.

↑ The cases which show that admiralty courts give a liberal and equitable construction to the contracts which come before them, are innumerable. Most of these cases are cited in this work, under various heads. Among them, we may refer again to the following:- - as to the wages of seamen and their contracts, see The Minerva, 1 Hagg. Adm. 347; The Prince Frederick, 2 Hagg. Adm. 394; The Cypress, Blatchf. & H. Adm. 83; The Triton, id. 282; The Crusader,

Customs and mercantile usages are greatly regarded; but not those of a particular port or place, for these are seldom allowed to control the general maritime law, unless they are such, and so proved, that they must be taken to be a part of the contract.

Ware, 437; The David Pratt, Ware, 495; The Betsey & Rhoda, Daveis, 112; Ellison v. Ship Bellona, Bee, 106. As to salvage, and agreements extorted in distress, see The Henry Ewbank, 1 Sumner, 400, and The Louisa, 2 W. Rob. 22, where an agreed apportionment was set aside. As to bottomry bonds, see The Heart of Oak, 1 W. Rob. 204, 213. As to the lien of material men, see Ramsay v. Allegre, 12 Wheat. 611. And as to the discretion of the court in deciding, by the maritime law, forfeitures of seamen's wages, see The Crusader, Ware, 447, and Cloutman v. Tunison, 1 Sumner, 373, 379.

CHAPTER XII.

OF THE LAW OF ADMIRALTY IN CASES OF TORT AND TRESPASS.

ADMIRALTY jurisdiction in cases of tort depends entirely upon locality. Hence the fact that the vessel is merely engaged in commerce between two ports in the same State does not deprive the court of jurisdiction.1

That torts, committed upon the high seas, are within the jurisdiction of admiralty, is certain; and so are those committed on all waters navigable from the sea, and on the lakes and navigable waters connecting the same.2 Jurisdiction has been sustained in a case where a steamboat ran against a pile which had been negligently left in the bed of a river; but in another case, where buildings on a wharf were destroyed by a fire communicated to them from a vessel which was lying at the wharf, the fire being caused by the negligence of those on board the vessel, the court refused to entertain jurisdiction. The fact that the tort is committed within the body of a county does not oust the admiralty of jurisdiction. If a tortious act originates on land, and is not a

1 The Commerce, 1 Black, 574.

4

* In Thomas v. Lane, 2 Sumner, 1, this jurisdiction in civil cases seems to be confined, by Mr. Justice Story, to acts done on the high seas, or on waters within the ebb and flow of the tide. But under the decisions of our Supreme Court, the rule of tide-waters no longer exists. See also ante, p. 165.

Philadelphia R. v. Philadelphia Steam Towboat Co. 23 How. 209.

The Plymouth, 3 Wallace, 20. Nelson, J., said: "It will be observed that the entire damage complained of by the libellants, as proceeding from the negligence of the master and crew, and for which the owners of the vessel are sought to be charged, occurred not on the water, but on the land. The origin of the wrong was on the water, but the substance and consummation of the injury on land." And in Ransom v. Mayo, 3 Blatchf. C. C. 70, where a contract was made on land, between the owner of a vessel and a ship-builder, for the repair by the latter in his ship-yard on the land, it was held that an action in personam would not lie, in the admiralty, to recover for damage to the vessel caused by the negligence of the ship-builder in hauling the vessel upon the ways to be repaired. Philadelphia R. v. Philadelphia Steam Towboat Co. 23 How. 209. See also ante, p. 163, n. 2.

5

perfected wrong until the vessel leaves the port, it is a continuous act, and suit may be brought in the admiralty.1

The principal cases in which suits in admiralty have been brought for torts are those of collision,2 those in which passengers have sought for compensation for ill-treatment by the captain, and similar actions by mariners against the officers of the vessel, and those in which actions have been maintained for the abduction or ill-treatment of minors.

It is held that passengers have a legal right, not merely to ship room, and suitable and sufficient food, but to kind and proper treatment, and a due regard to the courtesies and decencies of life; and if these are violated, the offence may be reached and damages recovered by libel in admiralty.4

In regard to cases of the third class, it seems to be quite certain that a parent may maintain a libel for the abduction of his minor child, against the master, or the ship-owner; even though the latter has no personal knowledge of the fact, the act of the master being held to be within the scope of his authority, as agent for the owners. But knowledge of the minority on the part of either the master or owner would be essential.7

The rule of the common law, that the gist of the action consists in the loss of the services, is followed, and it may be stated as a general rule, that where an action per quod servitium amisit would not lie at common law, no suit can be brought in admiralty.8

The Yankee, 1 Mc All. 467.

2 See Vol. I. p. 525.

See ante, p. 89, n. 3. In Brown v. Overton, 1 Sprague, 462, a seaman broke his legs while on a voyage. A suit was brought against the master for not putting into St. Helena for surgical assistance, for want of proper care and attention during the passage, and for neglect after arriving at the home port. The action was maintained.

Chamberlain v. Chandler, 3 Mason, 242; West v. Steamer Uncle Sam, 1 McAll. 505. In McGuire v. Steamship Golden Gate, 1 McAll. 104, a suit in rem was maintained against the vessel for a personal assault on passengers by the The judge, however, doubted whether the suit could properly be brought. See also cases ante, Vol. I. p. 609.

master.

Steele v. Thatcher, Ware, 91.

Sherwood v. Hall, 3 Sumner, 127; Luscom v. Osgood, U. S. D. C. Mass., 7 Law Rep. 132; Walcott v. Wilcutt, Same Court, 1858; The Platina, Same Court, 21 Law Rep. 397. See ante, p. 58, n. 1.

Cutting v. Seabury, 1 Sprague, 522.

See Steele v. Thatcher, Ware, 91; Plummer v. Webb, Ware, 75.