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December 1, 1868


ERROR to the Supreme Court of Alabama. The case was thus: The Constitution ordains that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.' And the ninth section of the Judiciary Act of 1789, provides that the District Courts of the United States 'Shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, . . . saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it.' In this state of Federal law, fundamental and statutory, the State of Alabama, by enactments, entitled 'PROCEEDINGS IN ADMIRALTY,'*fn1 provided that there should be a lien on all vessels for work and materials done or furnished, and for all debts contracted by the master, owner or consignee, and for the wages of the officers, crew, &c., in preference to other debts due from the owners thereof. By the terms of the code, the lien is to be asserted by filing a complaint in any county in which the vessel may be found, stating the amount and nature of the claim, and praying a seizure of the vessel. Thereupon the clerk is to issue a writ commanding the sheriff to seize the vessel, her tackle, apparel and furniture. At any time before judgment, the master, owner or other persons may release the vessel by entering into bond in double the amount of the claim, stipulating to pay the amount of the judgment. Any number of persons may unite in the same complaint, and if more than one complaint be filed the court must consolidate them, and render but one judgment against the vessel, which is to be considered several as to each complainant. If a stipulation be entered into, the stipulators are defendants. If none, the court must render a judgment ex parte condemning the boat, tackle, &c., to be sold in satisfaction of the claim; and the affidavit of complainant is made presumptive evidence of the justice of the demand. Finally, the code provides that, 'unless where otherwise provided in this chapter, the proceedings to enforce the lien shall be the same as in the courts of admiralty of the United States, but either party may have any question of fact decided by a jury, upon an issue made up under direction of the court.' By the act of 7th October, 1864, 'to amend the admiralty laws of the State,' these provisions are extended to the contract of affreightment. Under this statute, Boone & Co. filed their libel, March 30, 1866, in the City Court of Mobile, claiming $5800 for the loss of certain bales of cotton, shipped to them from Vienna, in the State of Alabama, to Mobile, in the same State, and prayed 'process in admiralty' for the seizure of the steamboat Belfast. In the same court a libel was also filed by J. & S. Steers, claiming compensation for other bales, shipped by them from Columbus, Mississippi, to Mobile, in Alabama, already mentioned. And a libel by Watson & Co. claiming it for cotton shipped by them, from and to the same points. All the navigation which was the subject of the case, was upon the Tombigbee River, navigable water of the United States. Under these several libels, the sheriff, by virtue of writs of seizure, took the steamer into possession, and posted his monitions, and the causes, under the statute, were consolidated and heard together. The answer, applicable to the three cases alike, set forth that the steamer was duly enrolled and licensed, in pursuance of laws of the United States, and that on the 15th January, 1866, she was regularly cleared at Mobile, Alabama, for Columbus, Mississippi, and that on her downward trip the cotton claimed was lost, and therefore, that the City Court had no jurisdiction. A decree was rendered on 28th July, for the three libellants. Appeal was taken to the Supreme Court of Alabama, where one assignment of errors was: 'That the City Court erred in overruling the protest to the jurisdiction.' The decree of the City Court was, however, affirmed by the Supreme Court; and deciding, as that court thus did, in favor of the validity of a statute of a State drawn in question on the ground of its being repugnant to the laws of the United States, the case was brought here under the twenty-fifth section of the Judiciary Act. Not much contesting the point that if the court had no jurisdiction in the two cases where the carriage was not wholly within one State no agreement below could authorize what it did about these two (jurisdiction being of course to be conferred by the law alone), the matter of debate was reduced, here, chiefly to the first case, that, namely, of Boone & Co., where the whole carriage was within the State of Alabama, and to the question of constitutional law arising upon it, to wit: Whether the contract, made as it was, for the transportation of goods from one place to another, both in the same State, and without the goods being carried in transitu, into or through any other State or foreign dominion, was a contract which could be enforced by a proceeding in admiralty in the Federal courts alone?If the State court had no jurisdiction in that case, a fortiori, it could have none in the two others.

The opinion of the court was delivered by: Mr. Justice Clifford delivered the opinion of the court.

Mr. P. Phillips, for the appellant:

It is matter of universal knowledge, that the admiralty jurisdiction of the Federal courts has undergone several changes since the establishment of this government, and we need not discuss at all the familiar cases of The Thomas Jefferson,*fn2 Waring v. Clarke,*fn3 The Lexington,*fn4 The Genesee Chief,*fn5 and some others of a past day. Whether they be all reconcilable or not, is unimportant now. The only thing important to be inquired into by us now, is the judgment of this court, as settled in its most recent decisions, determining the character and limit of the admiralty jurisdiction. And we have here two leading cases on this point. In The Moses Taylor,*fn6 the action was on a contract for personal transportation. The court held that this was a maritime contract; that it was not distinguishable from a contract for the transportation of freight, and that the breach of either is the appropriate subject of admiralty jurisdiction.

And, further, that the clause of the Judiciary Act, which saves to suitors a common law remedy, does not save a proceeding in rem, as used in the admiralty courts. Such a proceeding not being a remedy afforded by the common law.

In The Hine v. Trevor,*fn7 the action wad for a collision occurring on the Mississippi, near St. Louis. The record 'raised distinctly the question how far the jurisdiction in admiralty was exclusive, and to what extent the State courts could exercise a concurrent jurisdiction,' and, owing to the importance of the principles involved, the 'case was held under advisement for some time, in order that every consideration which could influence the result might be deliberately weighed.' The court affirm the judgment given in The Moses Taylor, and reassert the doctrine declared in the case of The Genesee Chief, that the 'principles of admiralty jurisdiction, as conferred on the Federal courts by the Constitution, extend wherever ships float, and navigation successfully aids commerce, whether internal or external.' It further declares that the grant of this power under the act of 1789, is exclusive not only of all other Federal courts, but of all other State courts, and, therefore, State statutes which confer upon State courts a remedy for marine torts and marine contracts, by proceeding strictly in rem, are void.

The provisions of the Alabama code are those of the acts quoted in the above recent cases, and are subject to the same condemnation. Judgment, therefore, must be reversed.

Mr. Carlisle, contra:

1. The case arose in, and concerned alone, the internal commerce of the State of Alabama, and therefore it was one with which the laws of that State only could deal. It lay wholly beyond the region of Federal powers. And it is quite unimportant in what form, or by what system of pleading and evidence, the State might provide a remedy in such a case. The mere form cannot affect the substance. If the power exercised be one belonging to the State, and not to the Federal government, it does not concern the Federal government whether it be exercised in one form or another; or whether the proceeding be called a libel in admiralty, a bill in equity, or an action at common law; whether given by modern statute, or to be found in the Year Books.*fn8

2. The particular remedy given by the Alabama statute, and adopted in these cases, is within the saving in the ninth section of the Judiciary Act. What is meant, as well in the act of 1789, as in the Constitution itself, by the 'common law,' has been settled by this court. The language of the seventh amendment is:

'In suits at common law, when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.'The language of the ninth section, and that just quoted, is obviously used in the same sense. Now in Parsons v. Bedford,*fn9 the court say:

'By 'common law,' the framers of the amendment meant what the Constitution denominated in the third article 'law;' not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in admiralty, a mixture of public law and of maritime law and equity were often found in the same suit. Probably there were few, if any, States in the Union in which some new legal remedies, differing from the old common law forms, were not in use; but in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition and foreign and domestic attachment might be cited as examples variously adopted and modified.'

To show that the case at bar is a 'civil cause of admiralty and maritime jurisdiction,' shows nothing to the purpose, if it also appear that there was a common law remedy at the option of the suitors, and that they elected that remedy. They are the very persons who under the statute had the right to do so.

It is not necessary to make a case one at common law, that the suit be begun by the service of process, or by actually bringing into court, in any other way, the party whose rights are to be affected by the proceeding. A defendant may be brought into court as well by seizing his property, and bringing it into court, under circumstances giving him plain and reasonable notice of the cause of its seizure. If the statute makes provision for his personal appearance, and a day is given to him in court, with the right of trial by jury, then it is as much a common law case as if it had begun by a capias ad respondendum, instead of a seizure of his property. And, on the other hand, though the suit be begun by a capias, and proceeded in throughout according to the most exact forms of a common law suit in all things but one, to wit, the trial by jury, if that be denied, it is no true case at common law. It is this distinctive quality alone which the Constitution guarantees and preserves from all innovation. And there is no instance in this court in which, where the subject-matter was the adjudication of purely legal rights, and the right of the trial by jury has been 'preserved,' in which the case has been treated as other than a common law case, whether a concurrent remedy existed, either in admiralty or in equity, or not, and whatever may have been the mere form of the proceedings.

The Hine v. Trevor is no exception to this rule. There, as the report shows, there was, and could be, no jury trial. The Iowa statute, on which that case rested, made no provision to protect the owner of the vessel, and afforded him no opportunity, by his personal appearance, of converting the proceeding into a common law trial by jury. The proceeding was begun, continued, and ended, and could only be so, as a civil law proceeding in rem.

Persons furnishing materials or supplies for ships or vessels, within the State of Alabama, have a lien by the law of that State on the same for all debts contracted by the master, owner, or consignee therof for the work done, and for the materials and supplies furnished, in preference to other debts due and owing from the owners of such ships or vessels. By the code of that State it is also provided, under the title, 'proceedings in admiralty,' that whenever any steamboat or other water-craft shall receive on board, as a common carrier, any goods or merchandise as freight, to be delivered at any specified place, and shall fail to deliver the same as directed in the bill of lading or other contract of shipment, the owner or consignee of such goods or merchandise shall have a lien on such boat or other water-craft for his loss or damage, to be enforced in the same manner and subject to the rules and regulations prescribed in relation to similar liens for labor, materials, and supplies furnished to such steamboats or other water-craft, as described in the antecedent provision.*fn10

Pursuant to those statutory rules and regulations of the State, the libel in this case was filed in the City Court of Mobile, and the libellants alleged that they, on the twenty-third of January, 1866, shipped on board the steamboat Belfast, then lying at Vienna in that State, one hundred bales of cotton, to be transported to Mobile, in the same State, and there to be delivered to certain consignees, they paying freight therefor at the rate of five dollars per bale, the dangers of the river excepted; that on the way down the river, below Vienna, twenty-nine bales of the cotton were lost, not by the dangers of the river, and were never delivered to the consignees, whereby the libellants suffered loss to the amount of five thousand eight hundred dollars. Introductory allegations of the libel, also, are the same as in a libel in rem in the District Courts of the United States; and in conclusion, the 'libellants pray process in admiralty' against the steamer, 'her tackle, apparel, and furniture,' and that the same may be condemned to satisfy their damages and costs. Process was accordingly issued, commanding the sheriff to seize and take the steamer, &c., into his possession, and to hold the same until released by due course of law. Respondents appeared as claimants, and alleged that they were the owners of the steamer, and they admitted that the cotton was shipped on board at the time and place, and on the terms and for the purpose alleged in the libel; but they excepted to the jurisdiction of the court, and alleged that the steamer, at the time the cotton was shipped, was duly enrolled and licensed under the laws of the United States; that she was then and there regularly engaged in commerce and navigation between the city of Columbus, in the State of Mississippi, and the city of Mobile, in the State of Alabama, and that the cotton described in the libel was lost in her trip down the river from the former city to her port of destination. Defence of the respondents upon the merits was, that the steamer and cargo were captured by a band of robbers in the trip down the river, within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of the United States, and without any negligence or fault on the part of the officers and crew of the steamer. They also set up the defence, that it was agreed between the master and the shippers that the vessel should not be liable for the loss of the cotton, if it was captured by armed men during the voyage, without any negligence or fault on the part of the carrier. Libellants excepted to that part of the answer denying the jurisdiction of the cort, as insufficient and invalid; and they also excepted to the defence, as pleaded, that the steamer was robbed of the cotton, as no bar to a recovery in the case, and the court sustained the views of the libellants in both purticulars, and the respondents excepted to the respective rulings of the court.

Two other consignments of cotton were also on board the steamer at the time the alleged robbery occurred. Ninety bales were shipped by J. H. Steers & Company, at Columbus; and one hundred bales were shipped by John Watson & Company, at the same place. Both shipments were to be transported to the port of Mobile, and there to be delivered to certain consignees under a similar contract of affreightment as that alleged in the first case, except as to the price to be paid for the transportation. Steers & Company lost thirty-four bales of their shipment, and Watson & Company lost thirty bales, as alleged by the respective parties. Libels in the same form were also filed by those parties about the same time, in the same court, and the owners of the steamer appeared in each case as claimants, and pleaded the same defences in the three cases.

Evidence was introduced by the respective libellants, proving that the entire cotton lost, and not delivered, was of the value of four thousand dollars. They also introduced the several bills of lading, and the respondents admitted the shipments as alleged in the respective libels. On the other hand, the libellants admitted that the steamer was robbed. as alleged in the answer, and without any neglect or fault of the owners of the steamer, or those in charge of her navigation.

Agreement of the parties, as stated in the bill of exceptions, was that the three cases should be tried together, and they were all submitted at the same time and upon the same issues. Finding of the court was that the whole loss in the three cases was four thousand dollars, and of that sum the decree of the court allowed one thousand dollars to the libellants in the first case, fourteen hundred dollars to the libellants in the second case, and sixteen hundred dollars to the libellants in the third case, with costs to the prevailing party.

Exceptions were seasonably tendered by the respondents to the rulings and decision of the court, and the exceptions were duly allowed by the court. Appeals were then taken by the respondents to the Supreme Court of the State, where the objections to the jurisdiction of the court were renewed in the formal assignment of errors. The parties were heard, but the court overruled the objections to the jurisdiction of the court, and affirmed the respective decrees rendered in the subordinate court. Writs of error were then sued out under the twenty-fifth section of the Judiciary Act, and the respective causes were removed into this court.

Jurisdiction of this court to re-examine the questions presented in the pleadings may be assumed as existing without discussion, as it is conceded that the questions are the same as were raised and decided in the State courts, and it is not controverted that the questions are such as ...

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