In one case, where a minor child was shipped with the consent of his father on a certain voyage, and the libel brought by the father alleged gross and cruel treatment of the child, to the injury of his health, and his subsequent death, jurisdiction was sustained, and the libel determined upon its merits.1 On an appeal,2 Story, J., denied the jurisdiction of the circuit court over the case, mainly because the libel sought compensation for positive or permissive violation of an agreement for "good, careful, tender, and parental usage," which, although in connection with services which were to be performed upon the seas, were held to render the contract one of so mixed a nature, that the admiralty could not take cognizance of it. It has, however, always seemed to us that he shrank, in this case, from the possibility of unduly extending the bounds of admiralty jurisdiction, with more than necessary caution. Actions have also been maintained for the wrongful conversion of a whale upon the high seas. In the whale fishery whales are 1 Plummer v. Webb, Ware, 75. Plummer v. Webb, 4 Mason, 380, 385. Taber v. Jenny, 1 Sprague, 315. In Bowne v. Ashley, U. S. D. C. Mass., Sept. 1865, Lowell, J., a suit was brought for the conversion of a whale in the Ochotsk Sea in July, 1858. It was held that the rule of damages was the value of the whale at the time and place of the conversion; but as there was no market value there, the following rule was laid down: "We must ascertain, then, the value of the oil and bone at some market, and that of New Bedford, adopted by the assessor, and which is the controlling market of this country in this matter, may well be taken as the standard. The sum to be ascertained, then, will be the value at New Bedford, in July, 1858, of the oil and bone made or which might have been made from this whale, less the necessary average expenses of cutting in and boiling, freight, insurance, casks, and other proper charges; and as the transaction is assumed to be a cash transaction on the day of the conversion, less the interest on the supposed outlay for the time of an average direct voyage home, to this result is to be added interest from the day of the conversion. It has been strongly urged that the expenses of cutting in and boiling, and most of the other charges and expenses above enumerated should not be deducted; that the libellant's vessel and men were ready to perform the labor and transport the property; that they took no whale immediately after this time, and came home not wholly full; in short, that they did not request such services to be done, and were not benefited by them. But we must have a general rule, and if we admit the consideration of the actual damage to the plaintiff under the peculiar circumstances of this case, we must open the case to a vast deal of evidence of a very uncertain nature." Judge Lowell also said: "The case of Taber v. Jenny, 1 Sprague, 315, often captured and left for a time with some indicia of ownership, such as what is called a waif, which is generally a pole or oar with a signal on it, and they are often anchored. In all such cases the right of property remains in the original takers.1 Actions for personal torts do not survive the death of the person appears to adopt a somewhat different rule of damages. But that case was reported by the assessor, and argued by the counsel, upon the basis of the home price of the cargo that actually arrived in the libellant's vessel; and the point raised was, whether the actual charges should be deducted; and I do not believe the court intended to decide any question not fairly before it. I cannot say but that I should fully concur in the result of that case upon the theory upon which it appears to have been argued; nor can I say that there may not have been some reason peculiar to that case for assuming the time for the ascertainment of the damages to be that of the vessel's arrival. To that extent there appears to have been no dispute among the counsel, so that the questions were not presented in their present form. In this case, however, I cannot resist the conclusions to which I have come, though I should hold them with great distrust if I believed they were opposed to a deliberate opinion of Judge Sprague." The rule of damages laid down in Bowne v. Ashley was followed in Bartlett v. Budd, U. S. D. C. Mass., Lowell, J. 1 Taber v. Jenny, 1 Sprague, 315. In Bartlett v. Budd, U. S. D. C. Mass., Lowell, J., a whale was captured in the Ochotsk Sea in the afternoon. It was anchored in five fathoms of water, and a paddle and sail put on it as a waif. The takers then went on shore. The next day the whale was found by another vessel and cut in and boiled down. A suit was brought for a conversion, a demand having been first made. The defence was that the whale was found adrift, the anchor not holding, and the cable was coiled round the whale, and that there were no irons or waif in the fish. It was held that if this evidence were true the libellants were entitled to recover. The defendants also set up a usage that a whale found adrift in the ocean is the property of the finder, unless the first taker appeared and claimed it before it was cut in. The libellants contended that the usage did not apply to whales found in bays and harbors at all, and only applied to those found off soundings when there were no marks of appropriation except weapons or irons. Judge Lowell, without deciding whether the usage applied except in bays and harbors, said: "I find the preponderance of evidence to be very strong in favor of the libellants' version of the usage, in the matter of the definite marks by an anchor or other sure sign of actual capture. And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit. I do not, however, here pass upon the limits within which usage may reasonably vary, whether upon the one side or the other, the strict law of the pursuit and capture of animals of this kind, but decide upon the evidence that the whale was the property of the libellants." injured, even though a right of action is given by a statute of the State in the district in which the court is held.1 For the redress of torts, admiralty may proceed in personam, and, when the cause of the injury is the subject of a maritime lien, it may also proceed in rem; but it has been held that this lien can only exist upon movable things engaged in navigation, or upon things which are the subjects of commerce, and that if a vessel is injured by running against a bridge which crosses a navigable stream, an action in rem will not lie against the bridge.2 And it has also been held that if a bridge is injured by a vessel running against it, a proceeding in rem will not lie against the vessel by the owners of the bridge.3 1 1 Crapo v. Allen, 1 Sprague, 184. That actions for the death of another do not survive at common law was assumed in this case, and the only question was whether the statute of the State was applicable. In the subsequent case of Cutting v. Seabury, 1 Sprague, 522, a full review of the authorities was made, and Sprague, J., said he could not consider it as settled that no action could be maintained for the death of a human being. The point was not decided. The Rock Island Bridge, 6 Wallace, 213. The Bark Savannah, U. S. D. C. Penn., Cadwallader, J., June, 1868. |