BAILEY fl. SUNDBERG.
Oourt, B. D. New
York. June 26,lSIlO.)
JUDGMENT IN REM-RES JUDICATA-QUESTION NECESSARILY INVOLVED.
In a suit inrern, before a court of competent jurisdiction, fairly prosecuted, aU persons having an interest in the subject-matter, and their privies, are deemed parties. and are bound by the decree, both 8S respects the res itself, and the queations necessarily involved in the adjudication.
SAME-LIBEL FOR COLLISION-SUIT AGAINST MASTER IN PERSONAM.
Hence, where owners of a vessel brought suit in rem agaiust a steam-ship, alleging that the steam-ship had negligently col11ded with aud sunk their vessel, and on the trial the court found that there had been no collision between those two vessels, which decillion was aftlrmed by the appellate court, and "subsequently the owners, joining with themselves an insurance company, brought suit against the master of the steam.ship, to recover the same damages, nearly six years after the alleged collision, it was held, that the question of the neglip;ence of the master was res adjudicata, and that the suit should not be entertained.
8. SAM!r"PARTIEs-ALL BAVINIJ LIBN ON RES.
In a suit in. rem for damages caused by collision, all persons having a lien on the res, growing out of such collision, ate deemed parties to the suit, and are bound b;r the decree. .,
In Admiralty. Action against the master of the steam-ship Newport to recover daJ;l1ages for the sinking of the schooner John K. Shaw, alleged to have been caused by collision with the Newport. Goo. A. Black, for libelants. Goqdrich1 Deady &; Goodrich and R. D. Benedict, for defendant.
BROWN, J. On the evening of February 23, 1884, the libelants schooner John K. Shaw was sunk and wreeked off the Jersey coast, and all on board lost. On the 24th of April following the owners of the Shaw filed in this court their libel in rem against the steamer Newport, alleging that the Shaw had been sunk through collision with the Newport, and claiming upwards of $20,000 damages. The case was prosecuted in this court with most elaborate care, and a decree rendered that the Newport did not collide with the Shaw, and the libel was accordingly dismissed. 28 Fed. Rep. 658. On appeal to the circuit court, the case was again elaborately considered, and upon additional evidence for the libelants, and the decree of this court was affirmed. 36 Fed. Rep. 910. A rehearing was afterwards had in the circuit court, and further testimony offered, and the decision reaffirmed. Id. 913. On the 5th of February, 1890, the owners of the Shaw filed the present libel for the recovery ofthe same damages against the defendant, John P. Sundberg, in personam, as master of the Newport, joining with them as co-libelants the insurers of the cargo, who claimed $3,000 more for the loss of coal on board. The defendant pleads res adjudicata. I am of the opinion that the plea of rea adjudicata is good, and must prevail as against both libelants. In a suit in rem before a court of competent jurisdiction, fairly prosecuted, all persons having an interest in the subject-matter, and their priVies, are
lReported by Edward G. Benedict, Esq., of the New York bar.
deemed parties, and are bound by the decree, both as respects the rea itself, and tHe questions'necessarily invdlved in the adjudication. 1 Greenl. Ev. §§ 522, 525. Freem. Judgm. § 615; 2 Smith, Lead. Cas. 750; per Lord KENYON iiJ.(f}eyet v.·Af/autl,r, ,7'Terril .R. 696. In Ge18ton v. Hoyt, 3 Wheat. 246, thll question .was elaborately examined by the supreme . There a vessel had by the col}ectorfor B"suppl'll!ledviolation of the neutrality laws. A suit for her cimdeh1haUOri:wt\s'thereupon ipl;l,titutedln nanie oftbe United States ,in rem against ,the vessel, and, upon the trial it was adjudged that there wl!.s:,ho cittise oU6tfeiture,'$p;d'the vesSelwl:\!lacquitted. Ina subsequent theoollector intiJespass, brought by the owner of the vessel, .,thE! adjudiCation. w,*s beldconclusive was no cause of forfeiture. In pronounomg, judgment, STORY l J", says, (pages 312, 313,3'1'1:) ,." ,.. , It Is conclusive .thata forIS'eIIH,al!,f C?PCluslye against the forfeiture; and. m either caSe, the questIOn cannot be litigated In another foru m. This was the doctrine asserted by this court in the case of Slocum v. MayberrY,,2 Wheat. 1, after very deliberate consideration,8l1d.to .we. adher.e. . The. ,or t,hrs' d?ctrine .results "from the very 'nature of proceedings in "em.' All persons havmgan interest ,in the ,subject-matter, whelihet.ag'seizing·officers or ,informers·or claimant&, are parties, or may be parties. to such s!lits/so far as their iiiterestextends. 'fhe decree of the court acts upon the thing. in, controversy, and !'Jetties the .11ight anq. ,the9.uestion of fOl'feit1ll'e. title of If its decfiie'were not binding 'upon al1 the world. upon the points which it to the. conseq,uencel:\ .would bll most mjschievous to the public. 'In 'case of'condemnatlOn, no' good title' 'to''the property could 'be conveyed. ,and no justitlcation of theseizure"could be' asserted under its protection. In 'Case of $cqnittal, anew might be ,made by any' other persons, toties for the saule. offense, and the be)oaded ;wlth ruinous costs expenses. It. pl:etended tbat, a new seizure :m. igbt·.. after an acqUlttal·.,be iUlid.e for t1)e saine supposed offense; or, if.made, 'that the'formet sentence would not, as evidence, be conclUsive, and, as a bar, be the suit in-'r,em." be
was asserted'in the of The Apollon, 9 a similapuit in trespass was brought by the n1asOOr ,of a v,eEls!ll aglilinst .the. anc,l the court again 1lli114 that the acquittal in the. was. conclusive evidence in every inquiry b'ilfore every other: that there was no cause of seizure· to.me applicable to the ,present case, asrespects . "tpe,adjudicationthat th,ere was no collision with. the Newport. The cpnclusiyeu!lss ofa fqrn}eradjudication mlty apply to the whole ,of action, or question ,arising on ,the trial. In the .adjudi.catioll, that, there, w.as no collision; with .th;e,Newport,· if binding: upon tge libelants, leaves them no. possible of action. .. CromweU .,., 90unty of Sac, 94 ,U r S. 351. If there ':wa.s a,ny. s,?cp.;,;cpmsi0tlbythe faulh the libelants had a direct legal interest in the rea, which was the subject of the former 8uit, because all a, lien upon the ship for theirdamnges. That suit T4e same general
J; 1 ,Ji1AILEY
"being ,in remj allpersqns bllving "such an" interest are pa:t:ties to the suit, and are Qound by it·. All, under 'practice in admiralty causes, had a righttocomein and be heard upon the trial. Had the vessel been condemned in 'iPe former suit, and sold, either before or after decree, and the proceeds brought into court, the present insurers, if they came in before a final decree, would have shared equally in the distribution of the fund; or, if after adecree, they would have beep. entitl"d to claim any surplus remaining. In either of such proceedings by the insurers, neither the question of collisiol). nor of the Newport's fault, after an adjudication against her in the. suit in rem, could have been again litigated.. .The former adjudication would have been binding in their favor, both as to the fact of collision and as to. her fault; and, if conclusive iJ;ltheir favor, it must be equally conclWlive against theIl?- that there was no collision, when. such was the former· adjudication. The insurers are therefore collcludedas much as the fOfmer libelants. in. persO'nam does The fact that the present suit is against the former adjudication any the less bindip.g. As respects not render responsibility to third persons for collision, the relation of the master to ship is not merely a relation ofordinary but one of sub.. stantial identity. The owners might not be liable, t1wugh the Ship were held; for tbe ship might have been sailed by charterers. But the of the ship and of the master is identical;· they are convertible tenus. That is probably why bptbship and master, under rule 15 of the supreme court. may be co-defendants in colliE/ion cases. By the practiqe of most maritime countries in admiralty the naming of the ship alone as a defendant is unknown. The suit in proceeding against foreign ships is against the master also, in his. character as mabter. Ord.,etc., 1681, Jib. 1, tit. 14. arts. 2,3; Code, etc., Commerce, .§§ 200, 201; 1 Valin, Com. Sur. VOrd. 343; 345. A judgment in such a suit binds the ship, whenever the sllip is legally held for the master's acts. Sowllen, un<,ler our practice, the ship is seized in reTn, and taken from the master's, possession for alleged pegligent navigation by the master, and the master had knowledge of the suit, and is.a witness in the cause, as in this case, bow can it be said that he is not in privity with the ship, or witb the 'suit in which the ship is sought to be held solely for his acts 8S master ? He. is at liberty to defend equally with the owners. Ina foreign port,be is bout;ld to defend. He is tre.atcd by the maritime law, not as an agent only, but, says Story, (Agenc)', § 1.16,) as "in some sort and to some ex- . tent clothed with the character of a special employer 9rowner of tlle ship, and as having a special" property in it. " There is no reason, therelore, why the.master should not be bound by such an adjudication in rem,as reepects .hisacts which invQlye the ship as much as the owner ie bound. 'l'here is no question that thegeneralowner in this case, who defended the former suit, would be protected by that adjudication against any in as this. See TheJ.easW Williarnson, Jr., 108 U. ·S. 305, 311,2 Sup. Ct. Rep. 669. It is immaterial whether the defense to suit is made as the Qwner, ol,"by the,
general owners, when both' have knowledge of the litigation and the rneana.()ftaking part in: it. In the court of errors, in Gelston v. Hoyt, 13 Johns. 580. Chancellor KENT held that the officers by whose procurement the original seizure was made were not strangers, but privies to the subsequent suit in rem to enforce a forfeiture brought by the United States. The privity here is much closer; for it is the master's acts alone that are concerned; and, as I have said, the liability of ship and of mashe is bound to indemnify the owners. I have no ter is identical, doubt, therefore" that the master would have been bound by an adjudication in the former suit that he did collide with the Shaw, and he is consequently entitled to the benefit of the adjudication of acquittal. In the present case, the owners of the Shaw have had their day in this court, and upon appeaI.The maxims that no one shall be vexed twice in the same matter, and that it is the interest of the state that there shall be an end of litigation, apply with special emphasis. The policy of theadh1iralty law and practice, sanctioned by the supremecourt in its adoption of the 59th rule in admiralty, (see The Hud8on, 15 FecI. Rep. 162,) furnishes an additional reason why this court should refuse to ehtertain What, in substance and effect, is but a new adjudicated issue. If, after such full and exhaustive trial of' an hearings in a suit in rem as have been had in this case; any other person who may claim to have been damaged by the same collision, such as any part. owner of the vessel injured, not an actual party to the recurd in the former case, or anyone of a score of owners of different parts of the cargo, could bring a new suit, and try the whole question of the collision de novo, there would be no end to trials and retrials of the same issue short of'the period of limitation, if there were any such definite period ,in l:\dmiralty. There is no such definite period of limitation in admiralty causes, but only that full and reasonable opportunity for the enforcement; of demands that common justice and equity require. The Neator, 1 SUm. 85; The. Bristol, 11 Fed. Rep. 163, and cases there cited. Upon the merits of the present case, there is no pretense that there has opportunity for the presentment of the insurers' claim, not been the asthatofthe ownerS of the Shaw, in the former litigation. The insurers doubtless voluntarily awaited its result; and in that case they are equitably ,as well as legally, concluded by it. So far as I apprehend the nature of the new evidence desired to' be offered, it does not differ in kind from what was previously produced. There'is no peculiarity in the case that can be taken to distinguish it from so' marty others in which the defeated party finds, after one or more hearings, that there is additional evidence on one or more points, which might be produced. No precedent in the admiralty is cited for such a suit as the present after such a previous adjudication. To entertain this suit would evidently involve, not merely a great change in the practice hitherto as to collision causes, but greatly extend the scope of litigation, which it has been the aim of. the courts to diminish. ' Rule 15 of the supreme court' in admiralty, which states against what parties suits for collision may· be' brought, permits libels against the ship and master,
THE aTY OF RICHMOND. '
against the ship alone, or against the master alone, or the owne1'8 alone. Though under this rule contemporaneous or successive different Buits may be brought against the different defendants named, so far as may be necessary to procure satisfaction of a legal demand, (The Normandie, 40 Fed. Rep. 590, and cases there cited,) in my judgment it was not the intent of this rule to admit of any such successive suits against the different defendants named after an adjudication in rem, upon a full and impartial hearing, that there was no such collision liS alleged; but the opposite intent should rather be inferred. On these several grounds the exceptions to the plea of res adjudicata are therefore overruled.
UNION TEL. CO. v. INMAN & 1. S. S. CO., Limited. INMAN &
r. S. S.Co., Limited, V.WESTERN UNION TEL. Co.
(District Oourt, B. D. New York. June 24, 1890.)
OBSTRUCTION TO NAVIGATION-TBLEGRAPH COMPANy-SUBMARINE CABLBB-NAVIGABLJI MUD.
A telegraph company, wb,ose submarine cables are laid in the soft mud or sUt at the bottom of a navigable river, in such 8 manner as to interfere with vessels, Which' are accustomed 'to plow through the mud in'their movements about the docks, thereby obstructs navigation, contrary to the provisions of Rev. St. U. S. § 5263, which authorizes any telegraph company to lay telegraph lines "over, under, or'across the navigable streams and waters of the United States,." 'provided they are "so constructed and maintained as not to obstruct the navigation of such streams or waters, II and is answerable for damages thereby caused to vessels.
In Admiralty. Action by the Western Union Telegraph Company to recover for dam'fl.ges to its submarine cable8. Cross-action by the owner of the City of Richmond to recover for injury to the propeller of that steam-ship, damaged by cont,act with the submarine cables of the telegraph company. Dlllon Swayne, for respondents. Biddle Ward, for libelants. BROWN, J. The above cross-libels were filed to recover the damages sustained by the respective parties through the fouling of the propeller blades of the steamer City of Richmond with the submerged telegraph .cables of the Western Union Telegraph Company a little outside of the end' of the pier of the Dutch Steam-Ship Company at Jersey City, in the North river, on the 19th of August, 1887. The telegraph company had 21 cables running under the North river at Cortlandt street, New York. connecting with the wires at Jersey City. The cables were run under the stringers .of the pier. and made fast to several spiles under the pier at about l(Jw1Reported by Edward G.Benedict, Esq., ofthe New York bar.