GHEN t1. RICB.
(District Oourt, D. MaB8achU8etts. Apri123, 1881.)
WHALE FISHERY. ' In the earlyspIing months the; 64stlJrly part of Massachusetts is frequented by fin-back whale. :l!'ishermen from Provincetown pursue them in open, bqats from the shore, and with bomb-lances fired from guns expressly for the When killed they sink once to the bottom, but in 'the course 'If from one to three days they rise andfioat on the surface. The person who hatlpims to find theri16n the beach uBultllysends word to Provfor his serVices. The business is 'Of incetown, and he receives a small considerable extent, but· is engaged iii by' but few people. Each boat's crew engaged in the business has its peculiar mark or device on its lances, and thus it is know;n byw;hom a whale is killed. .The usage on Cape Cod, for many years, has been that,the person who kilJ,sl;\. whale, in the manner l;\.nd under tJ;le circumstances. described, ow:ns it; Held, ,tpat the usage is reasonable and v"li4.
.1'E:R&' N ATURlE-,APPROPRIATION-,TITLE. Qumre, whether the first taker of an.anima1ferm naturlB, who performs t;JJ.e
only act of appropriation that is thereby acquire title to it.
in the nature' of the case, does .not '
, 'On the morning of April 9, 1880, in Massachusetts bay, near the end of Cape Cod, the lihellant shot and ill.stantly killed, with a bomb-lance, the whale in question. It sunk at once, and on'the morning of the 12th was found stranded on'tlie beach in Brewster; within tlJ.e ebb and flow of, the tide, by one Ellis, 17 Diiles from the spot where it was 'kined, who 'advertised it for sale at auction, and sold it to the respondent, who shipped off the blubber and tried out the oil. On the morning of the 15th, the libellant heard' that the whale had' been found, and at once sent his men to claim it. Neither the respondent nor Ellis knew that the whale had been killed by the libellant, but they knew, or might have known if they had wished, that it had been shot and killed with a bomb. lance, by some person engaged in this species of business. Held, that the re, spondent was liable for a conversion. . 4.
The rule of damages in such a case is the market value of the oil obtained from it, less the cost of trying it out and preparing it for the market. wi th interest on the amount so ascertained from the date of conversion.
H. M. Knowlton, for libellant. H. P. Harriman, for respondent. NELSON, D. J. This is a libel to recover the value of a fin-back whale. The libellant lives in Provincetown and the respondent in Wellfleet. The facts, as they a.ppeared at the hearing, are as follows:
In the early spring months the easterly part of Massachusetts bay is frequented by the species of whale known as the fin-back whale. Fishermen from Provincetown pursue them in open boats from the shore, and shoot them with bomb-lances fired from guns made expressly for the purpose. When killed they sink at (mee to the bottom, but in the course of from one to three they lise .a.nd float on the surface. Some of ,them are picked up by ves-
sels and towed into Provincetown. Some float ashore at high water and au left stranded on the beach as the tide recedes. Others float out to sea. and are never recovered. The person who happens to find them on the beach usually sends word to Provincetown, and the owner comes to the spot and removes the blubber. The finder usually receives a small salvage for his services. Try-works are established in Provincetown for trying out the oil. The business is of cdnsiderable extent, but, since it requires skill and experience, as well as some outlay of capital, and is attended with great exposure and hardship, few persons engage in it. The average yield of oil is about 20 barrels to a.whale. It swims with great swiftness, and for that reason cannot be taken by the harpoon and line. Each boat's crew engaged in the business has its peculiar mark or device on its lances, and in this way it is known by whom a whale is killed. · The usage on Cape Cod, for many years, has been that the person 'who kills a whale in the manner and under the circumstances described, owns it, and this right has never been disputednntil this case. The libellant has been engaged in this business for ten years past. On the morning of April 9, 1880, in'Massachusetts bay, near the end of Cape Cod, he shot and instantly killed with a bomb-lance the whale in question. It sunk immediately, and on the morning of the 12th was found stranded on the beach in Brewster. within the ebb and flow of the tide, by one Ellis, 17 miles from the spot where it was killed. Inste3.d of sending word to Princeton, as is customary, Ellis advertised the whale for sale at auction, and sold it to the respondent, who shipped off the blubber and tried out the oil. The libellant heard of the finding of the whale on the morning of the 15th, and immediately sent pne of his crew to the place and claimed it. Neither thf' respondent nor Ellis knew the whale had been killed by the libellant, but they knew or might have known, if they had wished, that it had been shot and killed with a bombla,nce, by SOme person engaged in this speCies of business.
The libellant claims title to the whale under this usage. The respondent insists that this usage is invalid. It was decided by Judge Sprague, in Taber v. Jenny, 1 Sprague, 315, that when a whale has been killed, and is anchored and left with marks of appropriation, it is the property of the captors; and if it is afterwards found, still anchored, by another ship, there is no usage or principle of law by which the propeny of the original captors is diverted, even though the whale may have dragged from its anchorage. The learned judge says:
" When the whale had been killed and taken possession of by the boat of the Hillman, (the first taker,) it became the property of the owners of that ship, and all was done which was then practicable in order to secure it. They left it anchored, with unequivocal marks of appropriation."
In Bartlett v. Budd, 1 Low. 223, the facts were these: The first officer of the libellant's ship killed a whale in the Okhotsk sea, anchored it, attached a waif to the body, and then left it and went ashore at
GHEN tI. BICH.
Mme distance for the night; The next morning the boats of the respondent's ship found the whale adrift, the anchor not holding, the cable coiled round the body, and no waif or irons attached to it. Judge Lowell held that, as the libellants had killed and taken actual possession of the whale, the ownership vested in them. Inhis opinion the learned judge says:
"A whale, being !er(i naturce, does not become property until a firm possessionhas boon established by the taker. But whim such possession has become firm and complete, the right of property is clear, and has the charaCteristics of property."
. He doubted whether a usage set up but not proved by the respondents, that a whale found adrift in ,the ocean is the property of the finder, unless the first taker should appear and claim it hM6re it is cut in, would be valid, and remarked that "there would be great difficulty in upholding a custom that should take the property of A. and give it"to B., under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and Both the cases cited were decidl;ld without reference to usage, upon the ground that the property had been acquired by the first taker by actual possession and appropriation. In Swift v. Gifford, 2 Low. 110, Judge Lowell that acustom among whalemen in the Arctic seas, that the iron, holds the whale, was reasonable and valid. In that case a from the respondent's ship pursued and struck a whale in the Arctic ocean, aI\d the harpoon and the line attached to it remai.ned in the whale, but did not remain fast to the boat. A boat's crew from the lant's ship continued the pursuit and captured the whale, and the master of the respondent's ship claimed it on the spot.. It was held by the learned judge that the whale belonged.to the respondents. Ii was said by Judge Sprague, in Bourne v. Ashley, an unprinted case referred to by Judge Lowell in Swift v. Gifford, that the usage for the first iron, whether attached to the boat or not, to hold the whale was fully established; and he added that, although local usages I)f a particular port ought not to be allowed to set aside the general maritime law, this objection did not apply to a custom which embraced an entire business, and had been concurred in for a long time by every one engaged in the trade. In Swift v. Gifford, Judge Lowell also said:
"The rule of law invoked in this case is one of very limited application. The whale fishery is the only branch of industry of any importance in which
it is likely to be muc}iused, and,if to prevail generally in that business, itwill not be open to ,the 'Qbj'¥JtfRn t,hat it is likely to disturb of. mankind by the hlterposition of an arbitrary the
I see ,no reason why the usage proved in this case is not as reaas that su'stained in' the cases cited. Its application must 'but a few persons. necessarily be extremely limited, and can Xtluisbeen recognizedandacquieaced in for many years. It requires in taker t4,eilonly act of appropriation that is possible in the nature of the case. Unless it is sustained, this branch of industry for nO would engage in it if the fruits. of, hIS lapor could by any chance finder. It gives salvage for reporting the property. That the rule works 'V'ell in practice is shown by the extent of the industry -whIch has grown up under it, and the general acquiescence of a whole' community interested to dIspute it. It is by no means clear that withoutrElg;fl,rd to usagEdhe common law would not reach the same result., That seems to 'be the effect of the l1ecisions in Taber v. Jenny anddBartlett v. Budd. If the, fisherman do'esall that it is possible to do to make the anitnalhis own, that would seem to be sufficient: might well be applied in 'the interest of trade, there being Such no ,usage pr, custom to the contrary. Holmes, Com. Law, 217. But be that a's may, I hold the usage to be valid, and that the property in the whale was in the libellant. ' rule pf damages is the market value of the oil obtained from the, whale, less the cost of trying it out and preparing it for the ma.l'ket" with'interest op. the amount so ascertained from the date of conAs the question i,s new and important, and the suit is conteElted on both sides, more for the' purpose of having it settled than for the amount involved, I shall give no costs. Decree for libellant f,or $71.05, without costs.
THE CLATSOP CHIEF.
(District OOU'i't, D. OTego1/>. '. August 9,
1. JOINDER OF CLAIM mREM AND mPERSONAM,
in p6rBOnOlm caunot be joined in one l i b e l . : '
BEMBLE., " '
Under admiralty rule 15, ill a suit for damage by collision, a: claim in rem and .
. That but for said rule they SO joined, and that ecuting the claim would thereby be promoted.
Exception to libel for injUry to a fireman on a steam-vessel cause.d 1:)y the negligence of the master, on the ground that they were fellow ser\Tants ofa common employer,and that Buch·lI.reman was aware of theinconipetence of the master, overruled, upon the impression that the fireman and master were not ,fellow servants in the sense which. excuses the common employer from·liability for an injury suffered by one in coiJ.'sequence of the misconduct or negligence of the other, with leave to raise the question upon final hearing.
The national colJ,rts have jurisdiction of a tort commit,ten anywhere,\lpon the navigable waters of the United States. The ruling inHolmeB v. o. !b.0. BU. 00. Ii FED. REp. 75, followed. '
w. Debee and Sidney Dell, for libellant. David Goodsell and D. P. Kennedy, for the owner.
DEADY, D. J. The libel alleges that on February 28, 1881, the Clatsop Chief, fl, steam-tug, duly enrolled and licensed at Portland, in the district of Wallamet, and engaged' in towing on the Columbia and Wallamet rivers, was proceeding down the Columbia,at 15 min. utes after 8 P. M., opposite to Willow bar, with a large scow in tow, when, by reason of the want of skill and care of the master of said steam-tug, she collided with the. steam-sb,ip Oregon, the,11 asce:t;lding said river, whereby Andrew Kay, then serving aa fireman on board said Clatsop Chief, was "precipitated" into said river and drowned; that said collision was caused by the violation of the rules of navigation owing to the gross ignorance and incompetence of the master of the Chief, who was wholly incompetent and unfit for the duties of said employment, all of which was well known to the owner thereof at the time of his employment and afterwards; that the lant is the widow of said Andrew Kay, and the "sole distributee'; of his estate, and on April 15th was duly appointed administrator of said estate, wherefore she brings this suit against said vessel and her owner to recover the Bum of $5,000, "according to the statute of the state of Oregon in such case made and provided, and under the general admiralty law.".
Upon an interlocutory order of May 18th the vessel was sold for $1,850, and the proceeds, less the.fees and expenses of the marshld. ($168.29,) were paid into the of the court to await the result of the suit and the intervention of sundry material men whose claims have since been confessed for near$3.000. The owner, B. F. Jones, appe8.rs and excepts to the libel, for that(1) It appears therefrom that there is a misjoinder therein of a suit in rem andiiipel'sonam; (2) that the deceased was a fellow servant of the master of the Chief, and therefore neither the vessel nor her owner is 'liable for the iI\jury cl).us\ld by the latter's negligence or want of skill; (3) that said Andrew Kay had due notice of the alleged incompetence of said master; and.(4) that the matter is not within the admiralty jurisdiction of the United States, and of this court.
The first exception appearst6bewell taken. By the admiralty rule 15 it is provided that, "in all suits for damages by collision, the libellant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone in personam." It is a contested point whether, independent of or antecedent to this rule, a party who was entitled to a remedy in rem and also in personam might piIrsue the same either against the vessel and master 01' the Adm. § 397) is of vessel and owner in one suit. Mr. Benedict the opinion that he could, while Judge Conkling (2 Conk. U. S. Adm. 42) thinks it "extremely questionable," In the N. O. Bank v. N. 8. 00.'2 Story 16, decided (1841) before the promulgation of the admi. raltytules,·'Mt.Justice Story said'd "In cases of collision the injured party may proceed in Tem or in personam,
or successively in each way, until he 'has full satisfaction; but I do not underst,tnd how the proceedings can be blended in one libel."
See, also, The Ann, 1 Mass. ;512; The Oassins, 2 Story, 99. My own impression of the matter is with Mr. Benedict, when he says (section 397, 8upra)"That whenever the libellant's cause of action gives him, at the same time, a lien or privilege against the thing, and a full personal right against the owner, then· he may by a libel, properly framed, proceed against the person and the thing, .and compel the owner to come in and submit to the decree of the court against him personally in the same suit for any possible deficiency."
It is a question simply of procedure, and should be determined mainly, if not altogether. upon considerations of fitness and convenience; and evary argument drawn from this source is in favor of the jpinder of the remedies in rem and in personam, whoever the son ml;ty be,· and pursuing them in one libel as one suit. The case is analagous to that of a debt arising out of the personal
THE :CLATSOP CHIEF.
obligation of the debtor, and secured by a pledge' mortgage of&pecific property. In modern procedure, at least;' the remedy against the person and the property is had in one suit, wherein there is 'first a .judgment establiShing the the debtoNtnd theliabflity of the property, and that the lat,ter be sold 'tt) satisfy the debt, and that the remainder of the judgment; if any, be enforced against the , defendant personally; But whatever might have been the c6rreot pra.<Jtice before' the adoption of the admiralty rules by the supremecQurt, (January term, ,1845,) I '. think that the, fifteenth of these rules, fairly construed, does prohibit the joinder of the proMeding for collision agaillst the vessel and the owner,when it provides that the libellant may proceed against ·the ship and master or the ship alone, or against the master oTbwIler alone. As Judge Conkling (2 Conk. Adm. 43) says: "Suchwould seem to be the reasonable and sound view of the subject." In 2 Par. S. & A. 378, it is said that unde;: the :rule' "no suit will lie against an owner in personam jointly with a suit in rem again,st the vessel." In Newell v. Norton et Ship, 3 Wall. 257, it appears to 'have been 80 held in the district and circuit courts for Lotiisiana and' practically affirmed in the supreme conrt, althonghMr. Justice Grier, in -delivering the opinion of the court, (page 266,) is erroneously made to say that a libel in rem and in personam against the owner was in conformity with admiralty rule 15, and therefore an objection in the lower such libels "cannot be joined was properly overruled," when in fact it was sustained and the libel dismissed as to the owner, and the ruling affirmed in the supreme court. ' In The Richard Doane, 2 Ben. 111, (1868,) it was held by Mr. Justice 'Blatchford that admiralty 15 excludes' any other mode of procedure, in suits for damage by collision, that specified in, and allowed by the rule; and that therefore a suit for a collision cannot be maintained against a vessel in rem and her owner in personaln unless her owner is also master. To the same effect is the ruling in The Zodiac, 5 FED. REP. 223, and The Sabine, 101 U. S. 386. So far this exception has been considered on the theory that this isa case of damage by collision within the purview of rule 15, and that the libellant has a lien for the claim, and may therefore sue in rern or in personam, and upon this assumption it was argued by counsel. But is'this true? The claim of the libellant is to recover damages under section 367 of the Civil Code for the death of a human being, caused, it is alleged, by the misconduct of the owner of the Chief. By rule 16 a suit for a direct injury to the person-an assault or
bea.ting-within the- admiraltyjurlsdiction must be in personam. The of a death resl11ting from such injury or the negligence of another is not providEld for in .the rules. In The Self Gull, Chase's Dec. 146, which was. a s1J.it in rem by a husba.nd for the death of his wife, a stewardess on the LearY, caused by: a collision with the Sea Gull, it was held that the remedy,,might be ·in rem as well as in personam, upon the ground that. in principle, there is no distinction in this respect between wfongto persons and things. But in The IIighland Light, ld. 151, which was a suit in rem by the widow for the death of her husband, employed at the time as a "hand" on the Light, caused by the collapsing of her steam chimney, it was held that under section 30 of the steam-boat act of. 1852, (10 St. 72,) sinc.e section 43 of the act of 1871, (16 445,) now section 4493, Rev. St., that the remedy in rem for an i.Jljury caused bya neglect to comply' with the law governing the navigation of steam-vessels was confined to passengers, and therefore persons employed thereon and injured in consequence of such neglect were limited to the remedy in personam. This case apparentlycomes within that ruling, as the deceased was employed on the Chief. and lost his life, as is alleged, by the neglect of the master to oboy the rules governing the navigation of said vessel in passing the Oregon. A collision and his death was the consequence of this neglect. As to the second and third exceptions they are disallowed. It does not appear from th,e libel, as assumed by the latter, that the was aware of the alleged incompetence of the master; and, if it did, it does not necessarily follow that such knowledge is a defence to the action. And while it does appear that the deceased was in the service of the same person as the master, and engaged in the same general employment, it does not follow from this that he was a "fellow servant" of the master in that sense which would exonerate the common employer from liability for an injury to one of them caused by the negligence or misconduct of the other. , The deceased was merely the fireman on the Chief, and as such subject to the orders of the master. He was an inferior servant, injured by the misconduct of a superior one, for which injury there is much authority and more reason for holding the common employer liable. Packet Co. v. McCue, 17 Wall. 513; Railway Co. v. Fort, ld. 557; Bera Stone Co. v. Craft, 31 Ohio St. 289; C. d; N. W. By. Co. v. Morando, 34 Am. Rep. 168; S. C. 93 Ill. 302; Devany v. Vulcan Iron Worles, 4 Mo. Ap. Rep. 236; Brabbits v. C. d; N. W. By. Co. 38
TIlE HUDSON',' "
Mo. 289; Gormly v.Vulcan Iron Work8,61 Mo.· 492; ,The Ohando8, 4 FED. REP. 649. Besides, it is alleged in the libel that the incompetence of the master was well known to the owner at the time of his employment, and, if this be the case, the owner is liable for an injury caused by such incompetence, even if the master and fireman were fellow servants in any sense. 2 Thomp. Neg. 970. The defence sought to be made upon these exceptions can be made on the final hearing, on proper allegations and proof. The fourth exception is disallowed: The question raised by it was decided in this court in. Holmes v, O. It O. By. 00. 5 FED. REp. 75,'in which it was held that a marine tort is one that occurs on any navigable water of the United States, and that damages given by a state statute for such a tort may be recovered in the proper district court in admiralty.
(District (Jourt, W. D. PennsulfJania. --',1881.) 1.
TERlIs. Where there arc no shipping articles" and no express understanding to the contrary, it is the that deck hands sllipped on an Ohio river packet engaged in the Pittsburgh and Cincinnati trade are to be returned to their several ports of shipment. A packet in this trade shipplld hands at Cincinnati and other points above, in Ohio, Kentucky, and West Virginia, and proceeded to Pittsburgh, and there ,the hands were put off the boat, the river having then frozen over and navigation, by reason of ice, remainmg suspended for eight days, ' Held, that the boat should either have kept the hands on board and furnished them with food until navigation was resumed, or provided them with means to reach their ports of shipment. Held,!,urther, that the hands were entitled to a decree for traveiing costs and expenses, as of the date of their discharge, from Pittsburgh to their several ports of shipment, by the ordinary routes of travel then open, and also wages at the contract rate during the time required to reach said points.
In Admiralty. George O. Wilson, for libellants. IB(UJ,c S. Van Voorhis, for respondents. ACHESON, D. J. The libellants, who are 16 in number, were hired, some on the 28th and o.thers on the 30th and 31st days of January last, as deck hands upon the steamboat Hudson, a weekly packet in the Pittsburgh and Cincinnati trade. Two of the libellants