OpenJurist

TUEl·· MONTE A·.

331

THE

MONTE

A.

(Dilflrict Oourt,S. D. Ncw York; June-G, 1882.)
1.

ADMIRALTY JURlSDICTION-l'rllRITIME (JON'rRACTs-AFJ'REIGHTMENT.

Chltrter-parties and contracts,of affreightment are maritime contracts, nnd, by their subject-matter, within the admiralty jurisdiction.
2. SAME-BR,EACH. OF-ACTIONS ON.

a.

For the breach of such contracts, if wholly executory, and no part of the performance of the contract has been entered upon', no maritime lien exists upon the vessel, and an action in rem will not lie, but only an action in peraonam, against the master or owners.
AOTIONB-JOINDER OF-RULE 46-PRACTlCE. Under rule 46 of the supreme court rules in ,admiralty

an action in rem may be joined with an action in per8()nam against the master or owners for breaches of contracts) of affreightment or charter-parties. The same is true in other cases not expressly provided for under the supr.eme COlu;t: rules in accords!W6 with the prior and subsequent pr.actice of the district
,'

4. PRACTICE-AMENDMENT OF LIBEL.

In cRseswhere such actions tuay be conjoined in, the same libel, If the action be improperly brought in rem, held, that the court has jurisdiction of the subject-matter of the controversy and of the proceeding, ,and that it is competent process and judgfor the court to permit an amendment of the ment in per80nam against the owner after he has appeared and contested the suit in, rem upon the merits, there being no change in the subject-matter of the controversy; and the court should per,mit such an if d8$ired, much te!ltimony has been taken upon the merits in the proceeding in rem,when the latter will not lie for want of a lien.

5. SAME-JUDGMENTB-lN PERSONAM.

A judgment in per80nam cannot ordinarily be entered in B!!ult In rM71 eXMpt upon amendment and the issue of new llrocesa or the general appearance of the owner in per8()nam.
6 SAME-AMENDMENTS. " ,

A general appearance in an action in rem is limited by the nature of tbll action and the property seized.

7.

. Where the }:(onte A. had been chartered to the libellant to proceed to Balti· more to take a carltP, but subsequently refused togo there, and the libellaq,t thereupon sUed in rem for damages, and the libel showed such refusal on its face, and the owner appeared and answered the,merits, denying the alleged of the action, and testimony was charter-party,. bv.t not objecting to taken upon the merits, and after two years, upon the calling of the case on the calendar for heating, the objection to the form of the: action was first, taken, the vessel .having been bonded at the commencement of the action, held, that the objection that there wI'S. no lien on the vessel, and that. the action in rem , would not lie, was not waived; ,that no decree be prolJ-ounced, and that the sureties on the bond must be held discharged; Held, al8o, that the libellant should have leave to amend the libel by ineertlng,p :prayer for further process 'and juqgmentinperBornam, .and thereupon the Qiight JJe fW,'tber hea.rd on the prpofs t*e:n, 'l1y:g 8u;h as. be deslred; costs not allowed, the objectIOn bemg unreasonably delayed.

RE P9RTEB.

The libel in this case was filed against the Monte A. in rem tc recover damages for the breach of an aUeged contract of charterparty, whereby the owners agreed with the libellant that the Monte A., then on her way to Europe, should, upon her l'eturn, proceed to Baltimore to carry a cargo of grain for the libellant. Upon her return the vessel did not proceed to Baltimore, her owners denying that any valid contract with the charterer had been executed. The vessel was arrested at the commencement of this action, and was released iJpon the usual bond, with sureties, under the act of March 3, 1847. The libel averred, in general terms, the jurisdiction of this court. The answer contained no specific denial of jurisdiotion, but denied the making of the charter-party and any damages resulting from its Considerable'te,stimony was takeJ;lby deposition, alleged and after the cause had been pending for about two years, when called for trial the claimants for the first time objected to the jurisdiction of the court on 'the g'round that it appeared on the face of the libel that thecontra.ct,of charter-party was wholly executory, and that no lien upon the vessel, therefore, existed for any breach of the contract, even if made as alleged.'Onthe'part of the libellant'it"was chi.i;ined that' a lil:ln existe<l, though the contract'Was wholly but if not, ,that,jhe objection was waived by not: being pleaded. and by the litigation ''Upon the merits of the cause without objection. The residue of the evidence was taken, reserving 'the question of jurisdiction. Salomon « Dulon" for libellantJ ' Ullo,for claimant. BROWN, D. J. The action in this' case is brought fortheorel1ch of a, contrijoct of charter-party wholly executory. 'rhe never entered upon the performance of the contract or of any part of it. In such cases it has been repeated:lydeclared by' the "suprame oourt rlo'1ien ex'ists upon' the '\teaSElI. The Freernan,18 ,How: 182; Blade, 19 How.. 82,; Th,e I(e-pkuk, 9 'Wall(,51'l" $'19: ,The point ,has been directly adjudi<lateain sev811a1 cases in this 'court and irioth(itcourts, and lihelsin'temdistni'ssed upon' that, ground. "The
Willi.am

8

The Pauline, 1 Biss. 390;, The< Hermitltge, 4: Blatchf.4:74. ,: In the ,recElllt Ira Ohaffee, 2.FED. HEP.'401, lthe theaiatrict of theeasterp gao the autbori,ties, arriving aUhe out its conformity to the general m8tritime law. The"&dnsldetations iii favor of eucha lilln,expi-essed in the cases of
!

I , ' . ' . ·

.

THE MONTE A·

Adm. 67, and The Pacific, 1 Blatchf. 569,mll.st be deemed overruled by these subsequent decisions. There being, therefore, no lien upon the vessel, there is no,foundation for a decree in rem against her. Delruy in presenting the objection cannot, therefore, affect the question; for the want of any lien appears upon the face of the pleadings, since the libel asserts that the vessel never entered upon the performance of any part of the charter-party. The proofs confirm it, and the answer itself expressly admits it; claiming, however, a dismissal of the libel on the ground that the alleged charter-party was wholly unauthorized and void; and the record itself, therefore, would show any in,rem against the vessel to be errone· ous. As the vessel cannot be held, the sureties in the b!lnd exe.cuted for her release, which stands merely as a substitute for the are also necessarily discharged. The Fidelity, 16 Blatch£. 569, 576. As the owner of the vessel,' however, is a who' peared generally in the and cohbested his the merits, without taking any exception to ,the form of remedY"as he might and should have done the commencement oLthe. (The Warren, 2 Ben. 498; The 'Bilboa, Lush. 149 ; The, 1 SWab. 509; Id. 496, 428 ; The Great Eastern, L. R. 1 Ad. &E. 384; The Sylph, L. R. 2 Ad. &. E. 24;) and as the sittiittionas respects him, after the release ofthe on bond, is claimed to be essecntially the as if the actjon hali been Qommencedin personam, it isuxgedthat if heisfouJ;ld e.learly liable}or the in the libel, a personal judgment against him ought. t9:pe feJ:)Mred . : per. ,The .otdin:ary practice' in adp}iralty does: does. not . sonal judgment to be entered upon a mere libel in rem. :thecase of 118 Sticks of Timber, 10 Ben. 86, a personal judgment Itgainst the claimant was rendered unde!; circurilstance,s altogether The libel was filed against the timber, a part of ,to,re.c,9ver freight and demurrage under an agreement with the consignee. The timber libelled had been delivered to the consignee and sola to a third person with ,the assent 'of the libellants, 80 thathisliehwas 'l<>st. A libel was it in /fhe had no longer ,any interest in the t,imber,voluntarily fl,S claimant, gave a stipulation for jtlil by his .aIlsweJ:, admitted his liability for the freight and demurrage- claimed, except as to the mode of computing the'll.mol'lntof freight under thecoh%ract set'forth in the 'libel. ,. 'A'1;)ersona!:decreewas oylBenedict, J., for the damagep.dmitted; and forille freight as adjudged by hiQl, or costs. . . ,
.The Flash,

at

In

rem: .

334

FEDERAL' REPORTER.

The question has usually arisen where the property libelled and sold ill found insufficient to satisfy the decree in rem, and application has beextmadefot a personal judgment for the deficiency against the claimant, who had contested the suit and was himself liable for the demand. In the case of The Triune, 3 Hagg. 117, such relief was allowed. A contrary rule was, however, soon afterwards established in ,the' English practice by two adjudications of Dr. first;'in the case of The Hope, 1 W. Rob. 155, and afterwards in the case of The Volant, Id. 383. In the case of The Hope he says:
"Looking to the general principles upon which the proceedings in this court are conducted, it is, I apprehend, wholly incompetent for the court to engraft a personal claim against the master as part oWner of this vessel upon the pt-oceedings which have already taken place in this cause. It may be true, as stated; that the proceeds of the Hope will prove inadequate to answer the full amount of the damage which the owners of the have !ilUBtailled. If so,. it is undoubtedly a hardship upon these owners; but this circumstanpe not entitle me to exercise a jurisdiction in their behalf which, 'my own impression, I clearly do not possess. I am not aware of any' case in whlch this court, in a proceeding of this kind, has ever engrafted upon it 'a further: proceeding as;tainst the owners, upon the ground that.the proceeds tif'the vassel proceeded against have· been insufficient to answer the full amount of the damage pronounced. for."

Two years afterwards, in the case of The Volant, supra, the subject was reconsidered by the same eminent authority, and the Mme conclusion reached; overrniitig the case of The Triune in that partic, ular, (BRagg. 117.)" In denying the application for a personal decree for the deficiency he
"W:\1ere is an appearance the action, and bail given, as to the bail the decree cannot be extended beyond what they, who are strangers to the cause, have voluntarily made themselves responsible for; but in a case where the owner has appeared the question il' to what extent he has appeared to the process against the ship. It is. material to see how that process is worded: 'It decrees the ship to be seized, and it cites .all persons having, or pretending to any right, title, or interest therein to appear in this court, on certain days and hours, there to. answer in a cause civil and maritime.' The are only called in respect to' any right, title, and interest, in order that they may appear and intel'vene for their interest in the vessel, and not further. Now, if it were possible, on such warrant, to demand bail beyond the value of owners went to. make them responsible the ship, or it the process against /!,hip, there be no reason bail should not.be beyond the value of the amount is not restricted by statc,olllmensurate with the damage. ute; but if bail could not be demanded beyond the value 6ftheship, I do not see how the owners, in that proceeding, can be madefuithet responsible. 'the-

THE MONTlil ..4..

335

warrant of arrest is confined to the ship; it goes no further. It appear$ to me, therefore, that there is no personal liability beyond the value of the ship; for this obvious reason, that the original process would not jnstify any such proceeding. The appearance given by the individual himself would not justify snchproceeding; he has appeared only to protect his interest in the ship."

Such is now the established practice in the English admiralty, (see The Wild Ranger, 1Br. & L. 84; Will. & B. Adm. Pro 67; Boyd, Adm. (1868) p. 33; Coutte, Adm. Pro 8 j) and the same view is expressed in the revised edition of Conkling, Adm. Pro vol. 2, p. 265. In the present case the claimant, the owner of the vessel, resides in Italy, and has never been personally within the jurisdiction of the court. His appearance in this case was an appearance in invitum, upon an arrest of his vessel, which I am obliged to hold was unauthorized. It would be unjust, as it seems to me, to hold that a foreign owner shall not appear in court to reclaim his property as against an unauthorized seizure without necessarily subjecting himself to liability to a personal judgment, against. which he has never been cited to defend; and yet that must be the necessary. result if it be admissible to turn a suit in rem into a suit in personam by amendment, without any further service of process and without the claimant's consent. In actions at common law, and in actions in admiralty ,in personam a general appearance, though ·it cannot any essential defect of jurisdiction of (Cutler v.,Rae, 7 How. 729, 731; The Louisa, 1 Brow. & L. 59 j The Elenore, ld. 185; The Ida, Lush. 6,) cures any irregularities in the service of process, or even the want of any service. Atkins V. Disintegrating Co. 18 Wall. 272; Wheelock V. Lee, 74: N. Y. 495, 498; The Roslyu$ 9 Ben. 119, 129; Pia:ley v. Winchell, 7 Cow. 366. In these cases, the action being general against the person; a general appearance is co-extensive with the nature of the action. But even in such actions, where the defendant's person or property has been arrested or attached irregularly, the defendant may ap.pear specially to vacate the proceedings, and the court will not acquire thereby any jurisdiction to proceed to a personal judgment.' Sanford v. Cha,se, 3 Cow·. 381; Seaver v. Robinson, 3 Duer, 622; Brett-v. Brown, 13 Abb. (N. S.) 295 j Manice v.Gould, 1 Abb. (N. S.) 255. But an action purely in rem· is itself limited to a proceeding against it seems to the res, and a general appearance in such an . me, be deemed no more general than the limited nature and scope of the action itself,andof no greater effect than a special appearance to vacate i an unauthorized arrest 01' attachID;ent upon a general suit in personam.

336

FEDERAL REPORTER.

No judgment in personam can, therefore, be allowed in this case, except through some amendment of the proceedings which it is compElt.ent for the court to grant, and upon due notice or qitation which shall preserve the essential rights of the parties. I have no doubt that an action in personam would lie in admiralty upon the facts in this case. The charter-party or contract of af. freightment was a contract for a maritime service; The libellant's cause of action for the breach of it was, therefore, by its subjectmatter, within the jurisdiction of the admiralty, although, for want of any lien upon the vessel, his remedy was in personam against the owners and not in rem. Morewoodv. Eneq1list, 23 Rdw. 491, 493; Oakes v. Richardson, 2 Low. 113; Mauryv. Gulliford, 10 FED. REP.3S8. The libel in rem is'dismissed as against the vessel, not strictly speaking for any want of jurisdiction in the court, but for It mistake in the form of remedy demanded. The subject-:rnatter of the controversy, the parties, and the property are all within the jurisdiction of the court; and this court is not only competent, but it is the appropriate court, to pass upon the questions involved; and the libel as respects the vessel is dismissed because the court adjudges that no lien upon the vessel existed. In a common-law action of libel, if the defamatory words set forth in the decla,ration were held not to constitute in law a libel, and the complaint were thereupon dismissed, it would not be said that the court had not jurisdiction of the action; and so if it should appear that the libellous words were only spoken by the defendant, and not written or published. If, pending proceedings upon a libel in rem, the property seized were sold as perishable, though the libel might be afterwards dismissed on the ground that no lien existed, as in this case, it could not be held, I think, that the proceeding was beyond the jurisdiction of the court, so :as to impair the purchaser's title. Elliott v. Peirsol, 1 Pet. 328, 340; Lavin v. Emigrant Bank, 1 FED. REP. 657, 666; and, if within the jurisdiction of the court, then it is competent to amend the proceeding. The libel in this case, for a breach of contract of affreightment, might have been framed both against the owner in personam and against the vessel in rem. It was the practice in this court, long before the adoption of the supreme court rules in admiralty, to con. join these· remedies i:n eases of charler-party and affreightment. Those rules, while providing for the joinder of remedies in regard to various .other subjects, do not provide for this ;snd under rule 46 ib is, therefore, left subject to the regulation of the several district and

THE

A.

337

-,

circuit courts; and the former practice of joiuing these remedies in this class of cases exiBts in this district, as well as in other districts, the same as before. The Zenobia, 1 Abb. Adm. 48; The Shand, 10 Ben. 294; The Keokuk, 9 Wall. 517; The Clatsop Chief, 8 FED. REP. 164. The pleadings in this case contain all the requisite allegations for the full hearing and determination upon .the merits of the owner's liability as in a suit in personam. The only thing wanting is a prayer in the libel for a monition and personal judgment against hi:m. An amendment to this is no change in the substantial cause of action, but only in the relief demanded. As both modes of reliefmight have been sought in the same libel,,it seems to me that it is clearly within the powllr of the' courttopermitll.n amendment by adding such & prayer for relief in personam,and fbr a. monition against the owner. In the case of The Zenobia, above cited, Betta, J., says:
"The party directly liable upon the claim· chargeable upon the vessel may in this court be joined with the ship in one suit, and a decree may be prayed and taken against him in uno flatu with that against the vessel. .Or, for want of a prayer to· that effect at the initiation of the suit; the lipel may be amended by inserting it, even after decree in 'Fem rendered, if that decree proves fruitless to the libellant, and if the party sought to be personally charged has lj,ppeared and contested the suit. The expense and daiay of two or three actioris, requiring to be disposed of upon identically the same pleadings and proofs, are thus saved the creditors, and the association of remedies promotes the simplicity and celerity so much sought for and favored in admiralty procedure."

In his work on practice, also, (Betts, Adm. Pr. 99,) he says:
"The practice of 'this court is not to render a decree in personam on a libel

in 1'em, but if the case proved shows a clear right toa recovery·against the person, whether the action in rem is sustainable or not, the libellant will be
permitted after decree to introduce the proper allegations in personam, and proceed thereon. Care will, however, be taken that no surprise or advantage is allowed against the defendant, by means of such change of the direction of the action. Full notice must be given him ot'the change of proceedings, and although his appearance in the action in rem places him so within the jurisdiction of the court as to authorize it to mould the action conformably to the justice of the" case, his stipulators will notbeb.ol1nd for any act or proceedings out of the suit in rem. So, also, if the defendant does not appear to anproceedings must swer or contest the action in its direction in be taken to bring home notice to him, as on an ·original institution of a Buit. After such steps have been taken the court will hear and IWjudicate tb,e matter upon the proofs already before it, or upon tlle hearing of such further evidence as either party may be allowed,on motion or petition, to introduce."

v.12,no.3'--':22

i.

888

FEDERAL REPORTER.

And this practice seems to be approved by Curtis, J., in the case of The Enterprise, 2 Curt. 817, 819. Such an amendment could not, however, be aJ.lowed in cases whEJre, under the admiralty rules, both remedies could not be conjoined in the same libel, (The Zodiac, 5 FED. REP. 220, 228;) nor where the subject-matter of the original libel is wholly beyond the jurisdiction of the admiralty. The S. q. [ves, Newb. 205, 214; Ward v. Thomplion, ld. 95; 22 How. 880. The practice above indicated by Judge Betts is not inharmonious with the decisions in the cases of The Hope and The Volant, above cited. It does not permit judgment in personam upon a mere citation in rem, but it permits an amendment to the libel by adding a prayer for judgment against a contesting owner, and it preserves the proofs already taken for subsequent use in the cause. This m1ty often be a consideration of great importance to the parties, and should lead the court to preserve this practice in cases where circumstances make it desirable. This libel should, therefore, be dismissed as against the vessel, but without costs, as the objection to the want of any lien should have been taken 'at the outset of the action, (Wms. & Br. Adm. Pro 67,) and the sureties upon the bond given upon her release should be discharged; but without prejudice to any by the libellant, within 10 days, to amend the libel by prayingj'udgment against the owner, who has heretofore appeared and answered herein, and for the usual citation against him; and after due service thereof, or his voluntary appearance, the cause to be heard upon the proofs already taken, and such additional proofs as either party may desire to add.
See The Alida, post, 343.

THE MILLIGAN.THE BRAZIL.-

.District Oourt, B. D. penrMlIlfJania. February 17, 1882.)
ADMIRALTY:-:COLLIBION-ANCHORING IN CHANNEL-MuTUAL FAULT.

A sloop anchored I).ear the range of range lights, and in a narrow channel, leaving only about 80 .feet' for passing vessels. A bark, in tow of a tug, while endeavoring' tb pass, collided with the sloop. Held, that the sloop was negligent in anchOring in the channel, but that, as it appeared that the bark could have pasaed,in s3fetyby the exercise of proper care, the damages should be equally divided.
*Reported by P. Pricbard. Esq., of tbe Pblladelphia bar.