OF MILWAUKEE "'.THE CURTIS, THE CAMDEN, AND THE WELCOME"
(District Court, E.,.D. Wisconsin. February 5, 1889.)
AnMffiALTy-JURIBDICTION-'!'ORTS-INJURY TO BRIDGE-STATE LIENS.
A court of admiralty has no jurisdiction of a libel in rem against vessels nav· igating a river, for damage, negligently caused by them to a swing-bridge resting on a pier, constructed on the bed of the river; nor can a state statute creating a lien for all injuries done by vessels to persons or property confer such jurisdiction.
In Admiralty. Libel in rem by the city of Milwaukee against the steam-barge Curtis, the schooner Camden, and the steam-tug Welcome, for injuries to a bridge. Eugene S. Elliott, for libelant. Alfred H. Bright and M. O. Krause, for respondents.
, JENKINS, J. The libelant, a municipal corporation, lawfully constructed and maintained a bridge spanning the navigable waters of the Milwaukee river. The structure was a swing-bridge, its center resting upon a stone pier constructed upon the bed of the river. On the '18th of October, 1888, the bridge was damaged by the alleged negligent conduct of the vessels, respondents, then navigating the river. The libel is in rem to recover the damages incurred. It is objected, for the respondents that the court is without jurisdiction of the subject-matter. In cases of tort locality is the test of jurisdiction in the admiralty. The ultimate judicial authority has determined the principle that the true meaninll; of the rule of locality is that, although the origin of the wrong is on the water, yet, if the consummation and substance of the injury are on the land, a court of admiralty has not jurisdiction; that the place or locality of the injury is the place or locality of the thing injured, and not of the agent causing the injury.- The Plymouth, 3 Wall. 20; &parte Insurance Co., 118 U. S. 610, 7 Sup. Ct. Rep. 25. Within this settled principle a tort is maritime, and within the jurisdiction of the admiralty, when the injury is to a vesselafloat ,,although the negligence causing the injury originated on land. The Rock Island Bridge, 6 Wall. 213; Leonard v. Decker, 22 Fed. Rep. 741. In the former case it was ruled that an action in personam would lie against the owners of the bridge, because the injury was consummate upon navigable waters, being inflicted upon a movable thing engaged in navigation; but that a proceeding in rem against the bridge was not maintainable, because a maritime lien can in navigation, or upon things only exist upon movable things which are the subjects of commerce on the high seas or navigable waters. And so an injury happening through defimlt of the master to one upon a vessel discharging cargo at a wharf to which she was securely Inoored, is within the admiralty jurisdiction, (Leathersv. Blessing, 105 U. S. 626;) but otherwise, if the injury occurred to one. upon the wharf, (The Mary Stewart, 10 Fed. Rep. 137.) In the latter case there is an. inv.37F.no.13-45
advertent remark to the effect that both the wrong and the injury must oecur,upon the proposition notsustailled by autbol'ity. It, suffices if the damage-the substantial cause of action arising out of the wrong-is complete upon !navigable waters. The Plymouth, supra. It is insistedfor thE) libelant because.this injury happened in the midst of,· or in space above, the ,water j it must bf'l held to have occurred upon ' !he water, and the be held to, h,e personal property .on .nav19ablewa,tets,! Thllt cannot be upheld. In legal slgmfication land includes not only the surface of the earth, but all under it or over it. It is otherwise with respect to the sea. A suspension bridge is not upon the water, because sustained in space above the water.' Nor in: any jusferlienSp. is abridgeupori the water, becausesupport¢d upon 1rlasonry resting upon the' oodof a river. Bridges are .merely prolongatiolls over waters of highways upon land.. They are not afloat. Like wharves and piers, they are connected with the shore.. Unlike wharves and piers, they are obstructions,uot:',aids, to navigation. They concern commerce upon land, not upon the sea. Within the intendment of the maritime law: they are--equally with wharves and piers-structures upon or :Connected with the shore. They pertain to the land, not to the sea; and so are without. the cognizance of the admiralty jurisdiction. An injury thereto cannot be said, to have occurred upon water. The cause of, the injury W8.i8 a movabhHhing navigating the waters; but the Ifintion olthe wrong was-upon an immovable structure above the waters, attached to the land, and not afloat. rThe absence of admiralty tion over .injuries to such 'structures is sustained by an overwhelming weight of authority. As to s, bridge: The Neil Cochran, 1 Brown, Adm. 162; The Savannah, (U.S. D.C. CADWALLADER; J., not reported, but referred to in 1 Pars. Shipp. & Adm. 532.) As toawharf: TM Plyrll;outh, 3Waill. 20; The·Ottawa, 1 Brown, Adm. 356; The, C. Accame, 20 Fed.;Rep. 642. As to a derrick resting on the soil at the bottom,and in the midst of the water: The Maud Webster, 8 Ben. 547. As to a ma,.., nne railway: The Profe88or MorRe, 23 Fed. Rep. 803. As to a boom of logS, anchored or fastened to the Qity of Erie v. 0.tnfield, 27,Mich. 479. The latter is perhaps an extreme case, and seems opposed upon principle to the case of The Cerea, (E. D. Pa.) 7 Wkly. Notes Cas. 576, to the effect that the admiralty has jurisdiction of an injury bya tug boat to 'a dry dock floating on a navigable river and moored to a wharf. To denyjurisdictioh for injuries to such structures by vessels, while assertingit with 'respect to. injuries to vessels by such structures-;-as in The Rock 18land Bridge,8Upraj Etheridgey. Philadelphia, 26 Fed. Rep. 43; Atlee v.PacketiCo., 21 Wall. 389-....may seems narrow construction of. the 'admiralty judsdiction. It is likened to the refusal of the admiralty . at' onetimeto assert jurisdiction ofcontraots of maritime insurance Ifiade on:land and to be performed ohland, but touching the perils of the sea, n()wheld to be within the jurisdiction of the admiralty, (insurance Co. v.Dunham, 11.Wall.,il;.) .or of contracts ofaffreightmtlDt, made on land, but to be performed uponwater,nowof undoubted titiD, (Navigation Co. v. Bank, 6 v. EnequiBt, 23
How. 493.) The distinction grows out of the peculiar and restricted nature of the admiralty jufisdiotion lfS touching things" pertaining to the sea." In The Arkansas, 17 Fed. Rep. 383, 386, it is asserted that an injury to a bridge would be. a. marine tort, and that a proceeding in rem would lie against a boat causing the injury. No authority is cited in support, and I find'Iione justifying the' statement;::prQbably because the case in the language of the" in The Plymouth, in answer to similar outside the acknowledged limit of adargument respecting wharves, miralty cog9iza,nce over torts, among which it hqs been sought to be classed." ThestatElIilEmf by Judge LoVE is obiter dietYim, and is dif. ficult to be reconciled with his argument elsewhere in his opinion (PQ-ge 389) in support of the cases denying jurisdiction. Notwithstanding my learned predecessor in the eaSe of The F. &;0 P. lIf. No.2, .33 ll'ed.Rep. 511, 515, spealcing obiter, approved the obiter dictum in 'fhe Arkansas, I R,m ill1pelledto say with Judge NIXON in The ProjeiJ8OT 23lred. Rep. 803, 807, that "however much I might beillclined, if the question were an open one, to follow this obiter dietum of the learned. judge, IaUl: cdnstrained bytbe authority of The Plymouth, 3 WalL 20, to hold in the present case. that the libehlnts have mistaken their court, and that' the remedy for the injury complained of is to be found only in the courts of If it be expedient to clothe the admiralty withjurisdictlon of all torts committed by vessels, whether theresrilting damage occur upon land or water, as now it hath jurisdiction over to vessels whether the wrongful act' 'causinK damage originate on land or water, the object mnst be promoted....".8./! it has come to pass in :EriglaQd""7' through the legislative,not the judicial, power. Courts sit dicereet non dare legem. prinqiples of jurisdiction may not be. changed to meet individual notions of right. Nor can the jurisdiction be aided by the statute of the state creating a lien for all injuries done by vessels to Qt property. ,Rev. St. Wis. § 3348, subd. 4. A state statute cannot confer jurisdiction upon c9urts of admiralty. :It is only when the subject is maritime, and so within the jurisdiction of the admiralty, that a lien graJ;1ted by IO(la.l law will be recognized. The libel will be dismissed for want of jurisdiction.
SAME 'lJ. THE
(District Court, B. D. New York. 1.
February 6, 1889.)
SHIPPING-CARRIAGE OF GOODS-SlllIZURE BY LEGAL PROCESS-DUTY OF CAR' mER. . A carrier by sea, whose cargo >:\ attached by legal process, is bound to in-
terpose in the suit, and to protect the interest of a foreign cargo-owner, by all necessary and appropriatemeans under the local law, until the consignee is properly informed, and has reasonable opportunity to take on himself the burden of litigation; and to give prompt notice of the attachment, and any other necessary information. . .
Bills of Jading were issued for cargo taken on board two vessels. Drafts were drawn by the consignor against the goods, which were negotiated, and accepted on the faith of the bills of lading. The goods were afterwards attached at the port of loading in a suit against the consignor, and removed from the vessels against the master's protest: but prompt notice of the attachment was not given to the consignee. nor were such means taken as the state laws specially provided to defend the goods or to secure the consignee's interests. which means. if taken, might have averted the seizure. Held, that the vessels were therefore liable to the consignees for non-delivery of the goods.
OF LADING-IMPLIED EXCEPTIONS.
Semble, under the decision in Stiles v. Davis, 1 Black. 101, a seizure by judicial process of goods in the posllession of a carrier. not brought about by laches or connivance on the part of the carrier. and of which he gives prompt notice to the owner, is one of the implied exceptions in the carrier's contract, limiting, pro tanto, the rule of the common law that the carrier is liable for non-delivery under the bill of lading through any causes not excepted therein: but this does not absolve the master of a vessel from his maritime duty to tervene for the protection of Ii foreigJ;1. owner's interests.
In Admiralty. Libel fo1' cargo attached under legal process. In August, 1888, P. M. Kane, at Eastport, Me., shipped upon the above-named schooners three lots of sardines, consigned to the libelants in this city, for sale on commission; one lot on board the Trigg on August 9th, and two lots on board the Chase on August 13th and 16th. Bills of lading were delivered to the shipper on the same dates, making the goods deliverable to the libelants at this port. Kane, on the same days, respectively, drew upon the libelants against the goods consigned, notified them thereof by letter, inclosing the bills of lading, and on the same day got the drafts cashed at the Frontier National Bank, at Eastport. The drafts were each payable at five days' sight to the order of the cD.shier of that bank. They were presented in due course, and, upon the faith of the bills of lading previously received by the libelants,
Reported by Edward G. Benedict, Esq., of the New York bar.