MEYERV. PACIFIC MAIL STEAMSHIP CO.
the voluntary act of the daimant,-so far voluntary, at least, as to deprive him of the right of objecting to its legality. "The clause in the stipulation by which the party submits to the jurisdiction of the court seems to be taken from the stipulation entered into in libels in personam, in judicio sistendi, or answering to the action, and I think should be held to have the same force and meaning as in that. That required the proInisor to remain in court, and subInit himself to its jurisdiction, so far as he was subject to it when the suit commenced; no further. If, after the service of the process, he acquired a new right of declining the former, that was waived. But it did not deprive him of any right of defense 'he had when the process was served. The object was to preserve the authority of the court as it then was, and not to enlarge it. Any right which the claimant had of objecting to the jurisdiction of the court when the stipulation was entered into, he still retains." I am of the opinion that the original process in this case was void, and so continued notwithstanding the stipulation; that, as all the subsequent proceedings depended on this process, they were coram non judice. Let the warrant of arrest issue on the libel as filed.
MEYER et al. v. PACIFIC MAIL STEAMSmp CO.
(District Court, N. D. California. No. 10,316.
December 6, 1893.)
ADMIRALTY-EQUITABLE DEFENSES-REFORMATION OF CONTRACTS.
Admiralty cannot take cognizance of a defense based on mutual mistake, requiring the reformation of a maritime contract sued on; but the setting up of such defense does not oust the jurisdiction. On the contrary, the defense will merely be considered as Irrelevant, and subject to exception.
In Admiralty. Libel in personam to recover damages for failure to carry and deliver freight in accordance with terms of bill of lading. Answer sets up mutual mistake in the terms of the bill of lading. Exceptions to answer. Sustained. AndrOEl & Frank, for libelants. Ward McAllister, Jr., for respondent.
MORROW, District Judge. The libel alleges that on the 22d day of May, 1891, E. L. G. Steele & Co., of San Francisco, delivered to the Pacific Mail Steamship Company, at the port of San Francisco, state of California, 2,200 gunnies of wheat and 5,000 gunnies of corn, in good order and well-conditioned, to be carried and transported upon the steamer San BIas, or any of said company's steamers, or steamers employed by them, then lying in the port of San Francisco, and bound for Panama, unto the port of Champerico, in the republic of Guatemala. and there delivered in good order to the libelants, who were then and there the owners thereof, for the freight of $3,726.88, to be paid by the said libelants; the said E.
L. G. Steele &; Co. receiving therefor from the said Pacllc Mail Steamship· Company a bill of lading and contract of affreightment, which is annexed to the libel It is further alleged that, although the said freight was prepaid upon said merchandise. the said Pacific Mail Steamship Company did not carry all of said Dlerchandise upon said steamer San BIas, or upon any of said company's steamers, or upon any steamer employed by them, then lying in the port of San Francisco; but, on the contrary. in violation of their said contract of affreightment, only carried a part of said merchandise upon said steamer San BIas, leaving behind 250 gunnies of wheat and 1,433 gunnies of corn, which said merchandise was not shipped or carried forward· as in said bill of lading or contract of affreightment specified, but was delayed and carried forward. by a steamer not in the port of San Francisco on said 22d day of May, 1891, but which arrived subsequently thereto, whereby the libelants lost the market for which said merchandise was destined. to their damage in the sum of $692.30 in United States gold coin. . The answer of the respondents admits the delivery of the bill of lading, but alleges, among other things, that it was made and delivered by the mutual mistake of respondent and E. L. G. Steele &; Co.; that it was the mutual intent and meaning of the respondent and E. L. G. Steele & Co. that no less than 300 tons of the corn and wheat should be carried and transported to the port of Champerico on the respondent's steamer San Blas, and that the balance of the corn and wheat should be carried and transported to the port of Champerico by the respondent's steamer then advertised to sail on June 8, 1891, and it should have been so stated in the contract of affreightment, and it was the mutual intention of the parties to the contract of affreightment that the bill of lading and contract of affreightment made and delivered to E. L. G. Steele &; Co. by the respondent should fully express the contract made, but, through inadvertarice and by mutual mistake of the parties thereto, the bill of lading and contract of affreightment were made and delivered as alleged in the libel, and. failed to state the contract entered into between the parties thereto, and the bill of lading and contract of affreightment should be corrected so as to state the true contract made between the parties. The libelants except to the answer on the grounds that it does not state facts sufficient to constitute a defense, and that it sets up an agreement on a contract of affreightment not contained in the provisions of the bill of lading, and inconsistent with and· contrary thereto, in which particular the libelants insist that the reo, spondent's answer is irrelevant and immaterial. The portion of the respondent's answer excepted to by the libelants sets up an equitable defense, based upon the mutual mistake of the parties. A court of admiralty exercises its jurisdiction upon equitable principles, but it has not the characteristic powers of a court of equity. It cannot entertain a bill or libel for specific performance, or to correct a mistake. The Eclipse, 135 U. S. 599--608,
HEYER fl. PACIFIO HAIL STEAMSHIP CO.
10 Sup. Ct. 873. It has jurisdiction over maritime contracts when executed, but not over contracts leading to the execution of maritime contracts. Andrews v. Insurance Co., 3 Mason, 6--16. This principle of admiralty jurisdiction is not controverted by counsel for respondent, but he contends, as the court has jurisdiction of the action, it must determine the case upon the equity involved in the defense, or dismiss the libel without prejudice, that the party may bring his suit in a forum which would have jurisdiction to settle the matter upon the issues raised by the pleadings. When the original libel in a court of admiralty seeks to reform a maritime contract, it is the practice to dismiss the libel for want of jurisdiction over that particular action. Andrews v. Insurance Co., supra; Williams v. Insurance Co., 56 Fed. 159. But in this case the court has jurisdiction over the cause of action, as stated in the libel, and no case has been cited where the libel has been dismissed because the answer sets up an equitable defense. Reference to the numerous cases in which the scope and character of admiralty jurisdiction has been discussed would be out of place here. It is sufficient to say that the jurisdiction of United States courts in admiralty over maritime contracts has been established .in the most explicit and comprehensive terms, and, while the precise question raised in this case does not appear to have been determined by the c()urts, nevertheless there are certain general principles of jurisdiction which warrant the conclusion that a court of admiralty is not ousted of its jurisdiction over a cause of action based upon a maritime contract, because one of the parties to the contract contends it should be reformed. If we admit this defense in an action in personam, we must admit it in an action in rem, and the result will be to withdraw the admiralty jurisdiction and its remedies from such contracts upon the mere allegation of an answer that there is an equitable defense. This practice would, in my judgment, be wholly inadmissible. The remaining question is as to the relevancy or materiality of the matter set up in the answer as a defense to the action on the bill of In the case of The Delaware, 14 Wall. 579, the Oregon Iron Company shipped iron on board the bark Delaware at Portland, Or., to be carried to San Francisco. The iron was not delivered, and on a libel filed by the iron company the defense set up by the owner of the vessel was that by a verbal agreement between the parties the iron was stowed on deck, and that the whole of it, except a small quantity, had been jettisoned in a storm. On the trial the owner offered proof of this parol agreement, but the libelant objected to the evidence as repugnant to the contract set forth in the bill ()f la(iing, and the decree was for the libelant, which was equivalent to a decree that the evidence offered was incompetent. The respondent contends that this case has no application to the question now under consideration because the claim made for equitable relief had not been raised by the pleadings. Admitting this to be so, nevertheless the supreme court has here declared a rule with respect to such a transaction as the one at bar
that the evidence of a verbal agreement, and under this authority I am of the opinion that the evidence is irrelevant and immaterial. It follows that the exception should be sustained, and it is so ordered.
THE MARY SANFORD. MITCHELL v. THE MARY SANFORD. (District Court, E. D. South Carolina. November 25, 1893.)
SEAMJ!lN-IMPLIED WARRANTY OF FITNESB-DIBABILITY-WAGES.
There is an implied warranty that a seaman is bodily fit for the sta· tion for which he contracts, and if at the time of engaging he has a dis· ease, though unknown to himself, progressive and fatal in character, which disables him for service during the whole voyage, he is not entitled to wages.
In Admiralty. Libel by William Mitchell against the schooner 1'I'fary .sanford to recover wages. Dismissed. F. J. Devereux. for libelant. J. N. Nathans, for respondent. .sIMONTON, District Judge. The libel is filed by the cook of the :Mary .sanford for his wages. He shipped at Boston 3d August, 1893, fora voyage from Boston to Charleston, .s. C., thence to Kingston, Jamaica, and such other ports and places in any part of the world as the master may direct, and back to a final port of discharge in the United .states, for a term of time not exceeding six calendar months; wages, $40 per month. After the v()yage began, Mitchell for a day or two attended to his duties. but thenceforward did no work at all until the schooner reached Charleston. . On arriving at that port, the master got him in the Marine Hospital, where he still is. He suffered from intense pain in his chest and side, nausea, and a pain in his bones. The surgeon of the Marine Hospital examined him on his admission. He is of the opinion that at that time, and for some time previous, he was suffering from tuberculosis, and in his opinion he still suffers from the same complaint. This disease, in the opinion of this medical expert, incapacitated Mitchell for work, and still incapacitates him. The question is, is he entitled to his wages? His claim is for the wages $240, the whole voyage. The rule. without doubt, is that, if a sailor is prevented without his default from performing full services, still he is en· titled to the stipulated hire for the whole period for which he con· tracted to serve. The Harriet C. Kerlain. and cases quoted, 41 Fed. 223. But when a seaman enters into his contract of service, there is always implied as a warranty that he is fit, bodily and mentally, for the station for which he contracts. Curt. Merch. .seam. 29; The Richmond. Pet. Adm. 263. Indeed the liberality of the rule as to wages requires strictness in enforcing this war· ranty. The libelant says that he had been sick, from time to time,