41 F. 109 -

mE BUNGARIl.

109

THE' HUNGARIA.

PINOXNEY

v.

THE llUNGARIA.

(District Oourt, D. South OaroM-no,. November 23,1889.)
1.

ADMIRALTY-JURISDIC'l'ION-TERRITORIAL LIMITS-CIVIL PROCESS.

2.

8.

As the territorial limits of a federal court's jurisdiction in civil causes in admiralty are confined to the territorial limits of the judicial district, its civil process does not run to that frontier or belt of water recognized by thE! law of nations as under the control of the littoral owner, for purposes of revenue and defense. For the purposes of a libel in rem, a vessel canno!; be considered to be c.onstructively in port, within the court's jurisdiction, though it did not· clear when it left port. .
.'

SAME-LIBEL IN REM-CONSTRuoTiVE JURISDICTION.

SAME-JURISDICTION BY. CONSENT-o-POW:HR Oil' MASTER.

When a vessel is outside .the territorial limits of a court's civil process, the court cannot obtain jurisdiction of it, for the purposes of a libel in rem, by thecousent or'stipulation of the master. .. ' .

In Admiralty. LibeUn rem by Charles C. Pinckney; Jr., .against the. British steam.. ship Hungaria; 1. N. Nathana, for libelant. J. P.K. Bryan, for respondent. SIMONTON, J. This is a libel in rem. The steam-ship Hungarill came into the port of Charleston for a cargo of phosphate rock. Owing to her draught, she took part of her cargo on board , and then' crossed the bar and completed her loading from lighters. For this purpose she anchored about R mHeor a mile and a half south-east of the outer bar buoy,. about four or' four and one-half miles from the nearest shore·. Thiem the place at which vessels habitually anchor when they discharge or take in cargo by aid of lighters near this port. She crossed the bar without clearing at the custom-house with the written permission of the collector, and was not finally cleared until 27th August last, at 11:20 A. M. She neverre-entered the port. The libel was filed on 27th August,the ship being at. her anchor at this place, outside of the bar. Underthe warrant of arrest,the mal'flhal boarded and took possession of her at 11: A.· M. She was released on stipulation on 31st August, 1889. . An exceptiqn has been filed to the libel,that when the warrant of·arrest was issued and served the ship was not within the territorial jurisdiction of this court. The territorial limits of the state of South Oarolina are the territoriallimHs of the judicial districts over which the dis-< tnct court of the United 'States for South Carolina has jurisdiction in civil causes in admiralty·. Rev. St. § 546; In re Manufacturing (b., 108 U. S. 405, 2 Sup. Ct. Rep. 894. Its civil. process runs throughout the to its territory.. Toland v. whole lltate, .and is 300.. The easterIl houqqary of the ot South O/l,rolina, by her act of bly, is the Atlantic .ocean, including all thlilislands. Gen. St. S. C. § 1.

Was this ship, when at anchor at the place indicated, within the territoriallimits of the state of Sout4<;JIJ,ToliD..., and so within'the judicial district of this court? This is a very narrow question, The arrest was of his bailiwick made by the marshalof this when he made it? If he did, the arrest was void. The eastern boundary of the state being the Atlanticooean, it must be ascertained in one of two methods: We must either take the line at high onne coast so as to inor low w;:ttern:mrk, following the clude the islands; or we must draw lines between' the most prominent treat these lines .as the assembly, in Its grant to the United States of land for the use of the jetties for Charleston bar, seemed to think the high-water line, was the boundary of exClusive state territory. Gen. St. § 3S.The second method is theone adopted in New York. Manley v. People, 7 Y, 295; Mahler v. Y. 352;',: 'If a line from the mouth of Little river, on the northern ocean boundary, to·Cape Romain, the most prominent headland on the South Carolina coast, and another from Cape Romain to the mouth of the Savannah river, the southern ocean boundary;we will havethl,l boundary line of the state under this second method. The place of the ship on the day of her arrest, as estimated by the testimony of an expert with the use 'of the coast survey chart, was outside of this line. Not: being intra faut:e8, she was not within the territory of the state. But it is urged that under the law of nations a portion orthe sea'adjacent tG the shore is; uuderthe control of the littoral owner, and that the ship was within this Ihnit. There are rights recogllized by the:laws of nations over the sea in the nation whose territoryisnpon it. The extent of these rights, tbatis to say, how much of the sea they cover, has been uncertain. Some nations claim a marine even up to'BO leagues. Perhaps the best way ofstating it is that every l1Rtion has the right to control so much of the seas adjacent to its shores as is necessary for all.pnrpoBe$ of revenue or of delense; lKent, Comm. 28; Queen v. Keyn,L,'R. 2 Exch. Div. 81. What is ihe Dature: and exteritofthis contl1oLhasbeen a disputed question. Is WiS' belt of sea, underthecontl'oloftheexecutive and legmIativedepartmeIits, used solely forpul'poses of revenue:and'defen8e, thai is:to sa..y" for, public p'Jrposes only, (no: is it witF:dnthe ,boundaries of the judicial power,Rud the jnrisdictionof the courts? See Queen v; Keyn, ltUpra. Wheat. Int. Law, §189, discusses' thisiquestion, and, having shown that the jtirdsdictionof a state is exclusive 0ver those por" tiona of the sea which form the ports, harbOrs, bays,aud mouths of rivers, says: , , ' .
u"rt may. perhaps, be :thought that these <!onsideratiotlsdO not apply with tbe,sllnte force to thvse!portions of 'the Si'awhich wash'tilw:coasts of any par.. state withiIl thedilltllnce of a marina leagpe. or liS far:8S a WiH!' re.ch,:fromthe The an exclusive nations, within tli+se t(r!:llts,exist'S to a lJert'am tlegree. ButtnelIiorat power may, perhaps. 8et'lb to'ext"nd no'flitttlerthan to .exclude thea'Ctiotl of other nations to t.he injury of the state by which this right is claimed."

In
N1CRQL:L

says: .

Casks Of Brandy,.8 Hagg. Adm. 289, Sir JOa:N

"As between nation llnd nation, the territorial right may, by a soft of tacit understanding, be extended to three miles; b.u.tthat rests on different princi. ples. nllmely, that theirowu; subjects shall not be in their fishing, ll,nd particularly in their coasting trade. and,communiclltjolls between place and place, during war. They would be expolled to danger if hostilities were allowed to. be carried on between' belligerents nearer to the shore than three of the body of a county miles. But no person evel' heard of a land j which extended to three miles from the coast;" Judge IIQPKINSOI:!. in U.8. v. Baldw·. 35; says: "The principle nations claim this extension of th«:lir authority and jurisdictional rights for a certain distance beyond their shores is to protect their safetY'J)eace, andbonor from invasion, disturballce, anll insult.ThEly W'illnofhave tMir'strand made a theater of violence' and 'pltJodshed tendingbelligetents.. Some distance must.' be assumed. It vailE;s by differ.ent juristltfromone league to tbil'ty, 'and, again, as far as a cannon will carl'y a ball. Snch lim·its may bewell 61lOugh for tbeirobject. but would, be extrao.rdinarybounclaries of. the judicial powef of.a COl,ut of . 'Sir'RtPinLLIIdORE, 'in Queen "'. Keyn,above quoted, sums 11p the whole . ' matter: ,. ot c1 indeperidentstates has recogniZed a marititrie extension of frontier to the distance of three miles fromlow.:.water mark,because such a frontier or belt of water is necessary for the defense and security of the adjacent state. It is for the attainment of these particular objects that a dominion has been granted over this portion of the high seas. This proposition is materially different from the proposition contended for, namely. that it is competent to a state to exercise within these waters the same rights of jurisdiction and property wbich appertain to it in respect to its lands and its ports." In this court Judge BEE, in Soultv. L'Africaine, Bee, 207, discusses Act Congo 1794. (1 St. at Large, 384,) as applying to a capture at Rattlesnake very near the' location of this ship, and four and one-half miles from the South Carolina shore. The act speaks of the capture of a ship or vessel within the jurisdiction or protection of the United States. He defines "jurisdiction" as relating to captures within the waters of the United States, about which there can be no dispute, and "protection" as applying to captures within the marine league. My conclusion is that the territorial limits within which civil process runs do not extend into this or belt of water" recognized by the law of nations. Nor can we assume that the ship. not having cleared when she crossed the bar, was constructively present in the port of Charleston. Nor can the statement of the master to the libelant, "If you have any claim against my vessel, libel her; there she is, "-give this court jurisdiction. The process was in rem, against the ship, to enforce a maritime lien. When we consider the paramount character of a maritime lien, and that a sale under it divests, not only the title of the owners, but the claim of all persons, we see how powerless the master, who represents the owner, is to create jurisdiction over the rea. The thing itself

J'EDERAL ·REPORTER,

vol. 41.

ttlllst beseiied, must be within the jurisdiction, and must'go into the lawfulpossession ofthemarshal. TheRioGTande, 23 Wall. 458; Hen. Adm. :356; Desty" Fed. Proc. 83; The Qnnmerce,1 Black, 581. No one can consent for it. There can be, in the very nature of things, no such thing as constructive presence within,and actual absence without, the jurisdiction: .At all. events, when the marshal passed the territorial boundary oOhe state he lost his official character, and could not .exercise any official function. For similar rel1:aons, the act of the Illaster in stipulating for the ship cannot give the court jurisdiction which it did not have. Railway Co. v.Swan, 111 U.S. 379, 4. Sup. Ct. Rep. 510.,. But we have direct authority that the mere act of stipulating does not give jurisdic.tion:iRen. Adm. §123;The Fidelity, 16 BIatchf. 569; 'The Norma, 32 Fed. Rep. 411. .... . ' . '.. · . '. The !l-rguIllI#: .ab inconvienti has been pressed, and it affects me sensi.bIy.; ·But.tPejuriEldiction9ftbis court, and the territoriaJlimits within whichitsprocess runs, are .fixed .by congress. The remedy is with congress aIohe; Sheldon v. SiU, 8 How. 441; U. S. v. RailrMid Co., 98 U. S. ,603; The exception is 's1lstained, and the libel for want of j:urisdipti,on. "The court can make nq decree as to .J Railway Co. v. Swan, 111 U. S. 387, 4 Sup. Ct..Rep. 510; Doolittle v. Knobeloch, 39 Fed. ll,ep. 4Q.,. ;Each party is responsible the officers oft1;lEl court for serv,ices them", ' .,
\,;,;

.:'1,

r t,,'

'.:

BIPLEY ,. CITY OF IlUPERIOR,

113

. RIPLEY

et

aC t7. CITY OF SUPERIOR.

(Circuit Court, D. Nebraska. February 1, 1890.)
I'JIDElU,L COURTS-JURISDICTION-As8IGNEES.

Defendant city, haviIlg voted bonds for the erection of water-works, contracted for the WithF. & Co. Plaintiffs furnished the pipes for the works, and an agreement was made betweer. plaintiffs, defendant, and the contractors by which plaintiffs were to be paid for the material furnished 800n after the works were comIlleted. Upon the completion of the works, the oontractors drew an order on the, city in faof plaintiffs for the amount due. which order was dulY,accepted by defendant. Held, that the order and acceptance constituted a direct agreement between plaintift's and defendant, and was not an assignment of the contraotors' claim, within the ,nleaning of Act Congo Aug. 18, 1888. providing that an assignee cannot bring suit " in the circmit court unless the assignor might have done 80 had no assignment beeD 'niade.

At Law.

Curtis « Keysor, RoweU « Ferris, and John A. GilJiam, for plaintiffs. Woolworth « Ragan, for defendant.

DeOlurrerto petition.

DUNDYj J. The city of Superior, the defendant, voted bonds under the laws;of tbesta,te, for the purpose of erecting water-works for the use of the city, and the inhabitants thereof. A contract WllS made between the city find S. K. & Co. to build the works. Ripley & Brannon, the plaintiffs, furnished the principal part of the piping with which the contractor completed the work. An agreement was made between the contractors, Felton & Co., and the plaintiffl:l and defendant, by which plaintiffs were to be paid for the material furnished, soon after the completion of the work, as provided by the contract. The work was completed according to the contract, and the contractor, Felton, drew his order on the city, in favor of the plaintiffs, for the sum of 85,750. This done on the 24th day of December, 1888. On the same day the city accepted the order in a proper way, and Felton & Co. at the same of the acceptance, all of which was done in writing. It is admitted that the contract for the erection of the water-works was fully complied with by Felton & Co., but nevertheless the city declines to pay the plairitiffs the sum represented by the acceptance before described, or any part thereof, and this suit is brought to enforce the payment of the same. Demurrer to the petition was filed, fully argued at the bar and in briefs filed, with the understanding that the defendant would stand on its demurrer, and rely wholly on its defense as stated in the demurrer. The principal question relied on arises under Jurisdictional' Aqt Congo Aug. 13, 1888. The first section of that act defines the jurisdiction of the circuit court. It is provided therein that an assignee I}annot bring a suit in a circuit court, unless the assignor might have done so had no assignment been made. But it seems to me that that provision does not apply to this case. ' It may be that the giving of the written order by 'Felton & Co. for the $5,750 operated as an assignment of that part of their claim for work done. If there had been no other or further agreement between any the parties to the .transaction, then I think v.41F.no.3-8

of