BRIQGS EXCURSION 00· .". FLEMING.
(Circuit Court, D. New Jersey. November 25,1889.)
A libelant who procures the seizure and detention of vessels for the purpose of enforcing an alleged lien against them, without an order of court, when, on the facts stated in his libel, he has no lien, is liable in damages to the owners, even though ,he acted in good faith, as an attachment issues as of course in such cases on the filing of the libel,and a special order of court is not required.
At Law. On demurrer to replication. Trespass by the Briggs Excursion Company against Walter M. A. Fleming, for alleged wrongful seizure and detention of plaintiff's property. On August 12, 1886, the 'defendant filed a libel in rem, in the United States district court for the district of New Jersey, against the steamer General Sedgwick and the barge Republic, in a cause of damage, civil and maritime, for the breach of an executory contract in the nature of a charter-party. ,On the same day process'of attachment and monition was issued to the marshal, by virtue of which, on the following day, that officer seized and took in custody the vessels named, being the property of the Briggs Excursion Company, the plaintiff in this action, and held them until released on bond. The allegations of the libel were, in substance, that the vessels were owned by the plaintiff corporation, and that the plaintiff and defendant had entered into a contract, which is recited at length in the libel, to the effect that the Briggs ExcursionCompany had agreed to charter the two vessels to the defendant for a day's excursion; that when the day arrived for the fulfillment of the contract the vessels were not ready, and the defendant 'Was compelled to hire other boats, and was put to great loss and damage, amounting, in all, to 81,282. On the return of the writ the plaintiff appeared, by itR proctor, in the district court, only to make exceptions to the libel, and object to the jurisdiction of the court, and after a hearing the libel was dismissed for want of jurisdiction. See The GenfJl'al Sedgwick, 29 Fed. Rep. 606. The plaintiff thereupon brought this action for an illegal seizure. , The defendant has filed two pleas to the declaration: (1) The general issue; (2) justification, in that the writ was issued by the order of the district court. To the first plea there is a joinder; to the second plea there is a replication that the writ was illegal and void, for the reason that the court had no jurisdiction of the matters alleged in the libel. Demurrer to replicatiob, and joinder. Mark Ash, for the plaintiff, cited 1 Wat. Tresp. 391; Id.510; Kerr v. Mount, 28 N. Y. 659; Ohapman v. Dyett, 11 Wend. 31; Smith v. Shaw, 12 Johns. 257; Hayden v. Shed, 11 Mass. 500; Oodrirtgton v. Lloyd, 8 Adol. & El. 449; Parsons v. Lloyd, 2 W. El. 845; Wehle v. Butler, 61 N. Y. 245; MiUer v. Adams, 52 N. Y. 409. Robt. H. McCarter, for defendants, cited Hen. Adm. 337; The Adolph, 5 Fed. Rep. 114; Thompson v. Lyle, 3 Watts. & S. 166; The EvangelismoB, 12 Moore, P. C. 352; The Oathcart, L. R. 1 Adm. & Ecc. 314; The Kate, v.40F.no.l0-38
10 Jur. (N. 8.)444; 'Purnbullv. Strathnaver, L. R.1 App. Cas. 58; 2Add. Torts, § 856; Leigh v.' Webb, &:msp. 165; Wyatt v.White, 5 Hurl. & N. 371; Grove v. Van Duyn, 44 N. J. Law, 661.
WALES, J. The question raised by the demurrer is whether a libelant and det!'lntion of vessels fo1' purpose of enwho proQures forcing the payment ofan alleged lien against them, when. on the facts stated by him il\ his Ii bel he had no lien, is liable to respond in damages to the owners of the property as for a trespass. The positions taken in support of the demurrer depend on the theory that the process of attachment was issued by the special order of the distriot court, which had' 8. gerieral jurisdiction of the su.;bject-matter of the libel, although in this instance the court may have acted in excess of that jurisdiction. ,It is conceded that the writ W8S hhpl'operly issued, but, at the same tilne,thedefelldant claims that this was the error of the court, and not his own. The record ·of the ,distnct' court, and the practice ·of the admiralty courts in this circuit; d(),not sustain the defendant in, this contention. That practice and the:admitalty rules do not,require a special order ofthecoul't for the issuing,of'writs of attachment'on libels in rem. The ordinary practice is for the libelant to file his libel with. the clerk ··of the court, with,astipulationtor.,costs, and the writ is issued by that 'officer, in moBtcal3es, as'a IDl!-ttel'of course. Ben. Adm.§415. Butin ,.libels in po .,warrant foo: tpe. arrest of the person or property of .adefendllnt ,witt,be issued' for, Bt SJ..1m exceeding $500, unless by the spe. ci," of: iQourt; 'upon flffidav;it or proof showing the Adm·.Rule :7, :, Such writll ve been issued of in this circuit", the' manner:according to the ,practice jUllt :Sta.te<ll·fOr many· Y¢!lrS past; and anypersonw.ho conceived lienor obtain,a by,fj.1ing his Jibelinrf1ll! :Qll, aethe ciroulllljltances pfhis case ,mr,em, ,the. wl,'it,would be i!!sued by :the:cmrk,af a .Q.r(1er .of the of the, court;' prpceedingwas arr\*lt defenqant9r his P'l-'Q:Pert3n th,eallow8J.lce .of the, wrjt by! court .",ou111, be.· req "It: therefore, ". t46t the of the.plai,ntiff'1'l Y6l?sels, was ordered or dtrected by fact; th,e,!1ttention,Qf the ,for the first .. wh;eutheexceptions to the were hea:rd, and .[J(P!ln. it admitted. by defendant that he had Jnistaken the form are not of his remedy.' Analogies drawn. ,frqID criminal; ,. :4 ;person affidavit beforp!;&"magistrate; who , a warrant 'of arrest,fqr 1'1-, felonYi 'when' facts sworn a felonious'offE!nse, wilL not, ,in, ,the, .absence of colto <10 not . or wa,Ilce, be liable. tp pll;rty. arrested imprisonment. But this does not resemble a in .whicha libelant obtains a ,:'Wi'it .the lor, of the yase, the pal'ty,acts9n his own rellPonsibilitYiln ,.. fQqner1 the W,agistrate judgQ1!:lI)t,. and his e1'1'or , will not be imputed to the party who makes
It is also insisted by the defendant that the declaration does not charge him with bad faith or malicious motives .in attaching the vessels, and that so long as he acted in good faith, and without evil intent, he cannot be held liable for the erroneous order:of the court. But this proposition, like the o,thers, assumes what is not true, namely, that the attachment. was ordered by the court. If the def¢ndant was honestly mistaken in adopting the course he did, it may affect the quantum of but does not justify the wrong done to the A void writ taints with illegality all that may be done under it. In O'Brien v. Roosevelt the plaintiff was hldebted to the defendants in the sum of $400 for repairs to the plaintiff's vessel. The defendants caused tqe vessel to; be libeled and seized by process issuing out of the United for want States district court. The libel was subsequently of jurisdiction, on the ground that the repairs had been made in the home pol't of the vessel. On an action brought for damages in the court below, the jury found' for the plaintiff, and the verdict was. sustained. In The Margaret Jane, L. R. 2 Adm. & Ecc. 345, the suit was brougl;1t to recover £2,500 for salvage service rendered to the arrested vessel arid·cargo, the value of which had been reported by. the receiver of wreck to be £746. Bya provision of the merchant shipping act (25 & 26 Viet. 0.63, § 49) the court had no jurisdiction of salvage causes in which tbevalue of the property saved was under £1,000. The plaintiffs eventually abandoned their suit, and, on motion to condemn the plaintiffs in costs and damages, the court decided that, "although tho servlces. of the plaintiffS ara of considerable merit, yet as the vessel had. been detained after they knew, or had the means of knowing, that the report of the receiver was substantially correct, the motion should be granted. n In The Cathcart plaintiffs in admiralty were condemned in damages, on the ground that, with adequate knowledge of the Circumstances, they had arrested the ship when no money was due to them. The court there said "the plaintiffs had fun knowledge of the facts, and must be held to the legal effect of their own engagements. If they had regarded the terms of those engngements, they would have known they had no right to arrest the vessel." These authorities exhibit the legal of impropedy causing the arrest of vessels by admiralty process. The Bvangelismo8 is an exceptional case, and the reasoning of the court on the facts is not above criticism. Besides, tha.t'case is not directly applicable,' as there was a disputed fact before the court, but here the facts were ascertained and known before the attachment was issued. To enforce tbe payment of liens and the recovery of maritime claims, in, admiralty, it is often necessary to use SUJDmllrt means, and the fact tha.t proceE"dings in rem require the attachment of property should make suitors cautious iIi causing the arrest and detention of vessels the which are actively engaged in business, and especially in a present one,where the defendant, by the 'exercise of a littlefdrethought, known that he had no right to seize and hold the properLy of the pl1iintiff'. The demurrer is overruled.
8JcABBOOX ". RAFT OJ' RAILROAD
(DI,sWict COUrt, D. South. CaroUna. November 6, 1889.)
Rev. St. U. S. § 8, defines "vessel" as including "every description of water-craft or other artificial contrivance used, or oapable of being used, as a means of transportation by water." HeZd, that a raft made of cross-ties, used as a convenient mode of bringing them to market, manned by a pilot, crew, and COOk, who lived and had shelter thereon during the voyage, whioh lasted many days. and propelled by the tides and by poles and large oars, was a vessel, so 8S to give jurisdiction to admiralty of a libel in Tern against it for a collision on navigable waters.
A dredge 20 feet wide by 60 feet long, having a lighter 40 feet long and U feet beam on one sidE!>,and a smaller one on the other"was at anchor at night in a navigable river not less than 1,000 feet wide, and lay two-fifths of the width of the ohauJ;lel from one shore. ,She carried the legally required light t,o indicate that she was at anchor, and the river was straight f,or about half a mile., She 1:J.ad out 6 anchors, and no 11I'1ans of locomotion.' There were no range or 'shore lights. A pilot square,Jloating down the stream, Yilho had ba!J, 'lqng experience, on a raft 100 saw the lights on the dredge long before he reached her, but having never seen a vessel at anchor there, and thinking'she was in motion, took no precautions until within 150 yal,'ds. He then went promptly to work, and nearly escapedcol1ision; , but, owing to having another raft attached, collided with tlledredge. The raft had no regulation light. but had a large'Are on it. The evid'ence was conflicting' as to whether, the raft's crew and the men on the 4redge were. !'Sleep. T1:J.e. raft had beenon that side of the river nearest Which the dredge lay, but when the latter was disCovered to be at anchor it was pushed to the other side. The river was' 61 a uniform dePth 018 feet, shoalillg towards the shore., Oneenc} of ,the raft took bott<!m, and the current swung tbe other end around, causing the collision. Held, that the dredge waS hot in defaUlt, but that the pUot's misreading tbesignala Wall negligence, rendering the raft in defallit. ., '
Damages for such collision include cost of repairs, compensation for loss' of time Within which repairs should have been made, and reimbUrsements for 'u.pensel incurred in saVing property, but not punitive damages.
Libel for collision.
I. N. NatAans, for claimant.
W. H. Parker, Jr., for libelant.
SIMONfON, .J.' The libelant is the owner of a steam-dredge'lsed in mining phosphate rock from the' bed of navigable streams. While at anchor in the stream of Stono river, a navigable river, on. 13th September last, his dredge was run. into by a raft floating down the stream with the tide,. and injured. He brings, this libel irl rem., An exception is taken to the jnrisdiction. Will a libel in remJie aga,inst a raft for collision on navigable waters? The precise question hns,nQt been decided in any case reported. Chief Justice TANEX , of Lwm1>er, Taney j was of the opinion that rafts, anch()reQ;in Ii although it be a public, naviga1;>leriver, are, not the of ,admiralty jurisdiction, when the right of property or,possessi()n, alone is: concerned. In that case, herefused to allow JlsJ'l'age for!lRviJilg tafts. But his decis,oQ went oft'on the custom, of the (Jhas!.l\ ,', ;See ,[ilifly Thousand ]i'eet: of Timber. 2 Low. In i 3 Wall. Jr. 53, - a libel for GRpl;R rel!pect to coal-barges: "Mere open chests or boxes of smaIl comI