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THE

ALERT.'

(D£Btriet OO'Ut't, S. D. New York. November, 1889.)

1.

In an action in ,.emagainst a chartered ship for negligent damage to cargo, the cb",rter:ers may, on the qiaimants' petition showing cause therefor, be made parties defendant, on the analogy of the case of The Hudson, 15 Fed. Rep. 162, and of rule 59 in admiralty. 2.
BJ.ME-"PIUOTIOE-NEW REMEDIES.

NINTH RULE.

TO CAlllJO-LmEL IN !tEH-TmRD PARTIES-CHARTERERs-Fren-

It is tbe duty of courts of admiralty, under their inherent and statutory powers, to adapt their practice and proceedings to new emergencies, so as to secure, as far 88 ppSBible, the speedy, oomplete,. and C9nvenient administration of justice. .

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11) Admiraltv. On mQtion that oparterersbe made co-defendants with the ship. · Nor.th, Ward & Wag8tajf, for libelant. Goodtrich, Deady & Goodrich, for claimants. R. D. Benedict, for charterers.
BROWN,'J. The Alert was a eharteredship, and, being-sued in rem for negligent damage to cargo', by .the breaking of her tackle while discharging, under the oharterers! her owners in their answer say that the taokle was furnished either by the shipper or, by the charterers, under a special agreement between them, and not bytheship,.aJ;ld they now move that the :charterers be made o()o.d...fendants. Unless this is done, there may be three independent suits on the same question'. Most of the considerations the case of The Hud8on, 15 Fed. Rep. 162,are applicable;9.nd I· think the'n1otion should be granted upon the analogy of case, of the rule' in. . In instances, wliere the language of that rule was nothterally apphcable, It has been applied by where thesame or similar reasons have existed for its application, and where no substantial harm could arise therefrom to the plaintiff. .The defEmdahts must, . course, give the necessary additional stipulations 'fo.r costs,both to the libelants,and to the new parties brought in.

of

ON REARGUMENT' ON EXCEPTIONS.

. (January 15, The charterers, having,been served 'with process, have appeared specially, 'and· upon exceptions moved to set aside the process issued against them as Subsequent reflection confirms my judgment of the propriety of the order heretofore granted. Its propriety does not depend upon the form of the action, whether it be in contract or in tort, but on the essential reasons for it, viz., the due administration of justice; to prevent circuity of action and a nlllltiplicity of suits upon the samequestionj to secure a thorough hearing upon full evidence as to the factsj to prevent diverse or contradictory decisions upon the same subject, 'Reported by Edward G. Benedict, Esq., of the New York bar.

THE ALERT.

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involving, necessarily, injustice to some of the parties. The difficulties in the way of such a procedure as the present, in cases arising on contract, where the third parties brought in may be liable to indemnify the others, are less than in cases of tort, where, for the most part, there is no right to compel contribution. The case of The Hudson, ffUpra, was based upon the existence of such a right upon the facts as stated in the petition. The papers on which the present order against the charterers was issued show that the contract sued on was the charterers' contract. The libel is for damages upon the breach of this contract, through a negligent delivery of cargo. The charterers were in possession of the ship; they were the owners pro hac vicej they were the principals in the contra'Ct. The bill of lading was their obligation, not that of the master, who protested against such cargo, and no fault appears in the ship or master. The owners of the ship, who have been obliged to interpose as claimants to prevent the sacrifice of their property, and the master, are under no personal responsibility. They are strangers to the contract sued.on, and without any certain means of ascertaining the facts, or producing the evidence of them. Upon the case, as thus far presented, if the ship is liable, the charterers are also liable, and bound to indemnify the claimants. Yet the claimants, if defeated in this suit, when they aue the charterers for indemnity may be again defeated through the dif- · ference in the proofs; and the libelants, if defeated here, may again sue the charterers. If the charterers admitted their obligation to indemnify the claimants for the results of the pref1cnt action, or if there were any express contract imposing this obligation on them, the need of such an order as the present would be less. since notice to the charterers of the pendency of this action, and an opportunity to defend it, would bind them by the result, (Ohicago City v. Robbins, 2 Black, 418; Clark v. Oarrington, 7 Oranch, 308; Village of Port Jervis v. Bank,96 N. Y. 550, 557; Heiser v. Hatch, 86 N. Y.614j Duboiq v. Hermance, 56 N. Y. 673; Konitzky v. Meyer, 49 N. Y. 571 i) though this would not prevent the injustice to the ship-owners of being compelled to pay the damages on the charterers' contract before the latter were called on for payment. The charterers, however, do not admit their liability to indemnify the ship-owners. There is no express contract covering the point. The obligation of the charterers to indemnify is directly involved in the question to be tried in this suit, viz., whether the charterers agreed to supply the tackle, and depends on the same evidence. The charterers, if not made parties now, might litigate the same question anew in any subsequent suit. Ohicago City v. Robbiw, 2 Black, 418, 423. Under the former practice in equity, the charterers would be brought in as defendants as a matter of course. Under the present practice in Eng'land, since 1873, the introduction of third persons in such cases is in the ordinary course of procedure, even in common-law suits. Beneckev. Frost, L. R; 1 Q. B. Div. 419; FlYWler v. Knoop, 36 Law T. R. (N. S.) 219; Coles V ·. A88ociation, L. R.26 Oh. Div. 529; Carshore v. Railroad Co" L. R. 290h. Div. 344; The Cartsburn,L. R. 5 Prob. Div. 35, 39. fhe could not arise in England, since no suit i1\ rem lies

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tb,ere for: l:>rl'1ach of a of fl.£freightment. ,: '1'l1e. remedy. }Vould 1:>e ()Q1y. !l-gaip.st the personally.. In France nopl'ivilege on a. oharteredship fOI1 breach of a· contnl.ct eitlffir·With the ,master or owners, .put,mll-de with kn.own charterers ill possession of thQ spip. 1 Valroger, DrQitMar. 281; .Court of-Cassation, Dall., 1845, Part 1.;: ;And, aside froOl that, where, a Olaritimeclaim is sought to. be enforced thrpugh a suit ,against the waster. (ttS in Europe generllilly not, as' with us, by a suiUn rem dir,ectly against the ship alone,) if the principals are not made co,defendants in the first instance, they may be brought in, if within Jurisdiction, lJpon the master's sug.. gestion. 1 Rev. Int. du. Mar. 118, 556; The Gyptis, 2 Id. 182, 664; Blondiaux v. Pavot,.4,Id. 22. :AI;ld, more broadly:stUl;in the en.. forcemerit of civil rights, generally I in. ,the majority of European coun.. tries, the practice by wqat is termed," L'a&ignation en declaration de juge.. ment .commun,)l or I more briefly, pa8sive ou forcee" or "La mise en caUBe," permits the defendant, in. the absence even o£ any express pro.. visions of the Codes, to bring into the cause any third pel'son who might afterwards· litigate the same question with the defendant, and who ought but who"if not in the case, might dispute to be bound by the its validity as to him. 3 Carreet Chauv. Proc. Civ. Qu. 1271, and .note;,1 Berriat St. Prix Cours de prpc. Civ. p. 293. Dalloz says this right is inqontestable, and founded. on necessity and,the ruj-ture of things. Repertoire, Vo. "Intervention," § 3, No. 142; Bonnier, El.em. Proc. No. 723; Italian Civil Code,§§ 203-205; Sebire et Carteret, Biblioteca del Diritto, "Intervento." art. 2, § 38. See 17 Revue Critique de Leg. (N.S.) 462. In present case the. charterers, as Ihave said, are the principals. If there is any liability, they are liable, and Hable to indemnify the ship; and whether there is any liability cannot be determined as to them without their presence. If the maritime law and the practice of this country allow It suit in rem on: the contract of known charterers solely, there is no lack of power in the court to regulate its procedure so as to promote speedy and substantial justice. Both the statutes and the admiralty court rules, in cases 110t providedJor, authorize th'ecourt "to regulate its practice as is fit and necessary for the advancement of jug.. tice." :Rev. St. §§ 913, 918. rule. 46; The Hudson, 15 Fed.. Rep. 175. This autb,ority is a power held in trust for the benefit ()flitigants, and it is the duty of the court to exercise Hin proper cases, by adapting its . procedure to the practical needs of justice. 011 this point, BENEDICT, J., in the case. of The Epsilon, 6 Ben. 378, 389. says: "The admiralty creates its own forms of proceeding. and adapts methods of its own; to, the varied necessities which present themselves to its considera.. tion. The power to do thili is part. and the important part, of the jurisdic.. tionof the admiralty.. ·The principles,rules. and usagl;lS which belong to courts admiralty' (Process Act 1792)ena1>le these courts ,to work justice between man and man celerity anll.economy. They aCl,lompUsh this by ways .unknown to other courts, and for many of which it were vain to look in any statute; Stripped of the power to pUrsue these methods, there would be W of admiralty from a court of eg,uityor of law.

v. SM:ITH.

When cases arise which have .not been provided for in the rules prescribed by the supreme court, the district courts, as the only courts of original jurisdiction in admiralty, have the power, and are bound, to devise modes of proceeding which shall enable them to carr)' into effectual execution any law which they are called to administer." '
II: ...

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The case of The Hudson, supra, and the fifty-ninth rule in admiralty, though not literally applicable, furnish also an analogy for this order. A similar practice has been occasionally followed, where necessary, in cases not literally within the rule. TIw Oity of Lincoln, 25 Fed. Rep. 835; The John Cottrell, 34 Fed. Rep. 907; The DoriJJ Eckhoff, 32 Fed. Rep. 555; Joice v. Oanal-Boats, Id. 553. This case is one in which the libelants may proceed in rem and in personam in the same action, under the long-standing practice of. this circuit. The Monte A., 12 Fed. Rep. 336, 337, and cases there cited; Joice v. Canal-Boats, 32 Fed. Rep. 554. He might, therefore, originally have made both the ship and the charterers' defendants. He should not be suffered to proceed capriciouly against. one only; to the certain prejudice of the other. This can be remedied by the joinder of the charterers as defendants now; and this will 'create no material embarrassment or inconvenience to the libelant. It is the oharterers who have brought the ship into this situation. It is their contract that is sued on. It is they who have the means of defense,' if there· is any defense; and it is they who ought to pay, if there is anything to be paid. I have no doubt of the authority of the court to bring in the charterers as defendants. To refuse to do 80, under such circumstances, would, it seems to me, be a denial of justice. The motion to set aside the additional process is therefore denied. The process should require the defendant to answer the libel and petition, and the petition should set forth all that is needed in connection with the libel to constitute a cause of action against the'charterers.

BOUKER. tI. SMITH,

(two cases.)

(Dlstrict Court, S. D. Nuw York. December 31, 1889.,
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TOWAGB-STRANDING-IMPRUDENT START-INCOMPETENT HELMSMAN.

. The respondent bired the libelants' scows to be used in movin/r the Rockaway life-saving 8tation about two and a half miles to the eastward. along the beach. Tn coming out from the inlet into the open sea, the tug grounded on a falling tidehand. could not be got olf; and before the next tide the scows, with the house upon t em, haVing been anchored in the inlet, were driven by a storm on t,he ahore, and were lost. The start was made about 5 P. M., the water being smooth at the time; but the wind fOr some time' previous had been to the north-east, and there were other indications of a coming 8torm. The tug, incoming out of the inlet, the immediate charge of a helmsman who was not acquainted with the handling of tugs, had not to steer' her before that day. Held that, the navigation out , of the inlet witI/.. such a tow being l\ttended with .known difficulties, and with liability to stranding, it was negligence in the rellpondent's agents to start on the eve of an approacihing storm, which.would prevent'extricating the tow inoase of stranding; that. ,helmsman was iI\competent at the tjme of grounding; and that for ' both reasons the respondent was answerable for the loss·of the scows.