THOMAS H. NEWELL, Master and the said | part owner, the court ordered that the libel be v. ALEXANDER NORTON, Libelant and Appellee. (See S. C. 3 Wall. 257-268.) Admiralty—amendment of libel in, allowedsureties-how affected by suit of master and owner, for destruction of cargo-weight of testimony not considered on appeal. A libel may be amended in the district court by dismissing it as to the pilot, and sustaining it as against the vessel and the master or owner. A libel in rem against a vessel, and in personam against the owner, may be joined. An allowance of an amendment was not injurious to the sureties in the bond given for the property, where their liability was neither increased nor diminished. The owner and master of a vessel is the bailee of the cargo, and may maintain an action for its de struction. This is an appeal by the master and claimants of the steamboat H. R. W. Hill, and the sureties in the bond given by claimants for the release of the boat from the decree of the circuit court affirming the decree of the district court at New Orleans against them. The libel was for damages which the libelant alleges he has sustained by the sinking of the Western World, of which he was owner, by collision with the H. R. W. Hill on the 14th December, 1852. The items of damage specified in the libel are: First, the value of the Western World ($25,000); second, cash on board, stores, freight, and passage list ($7,000); third, sundry claims transferred to libelant, since the collision, by the underwriters of the cargo lost with the boat, amounting to $25,000; making in all $57,000. The libel concludes with a prayer for a decree in personam against Newell, master and part owner, against Gerard, the pilot, and against the other owners, and in rem against the boat, the H. R. W. Hill. The H. R. W. Hill was seized on the 12th March, 1853, and released on claimants giving bonds in the usual form for the sum of $52,500, her appraised value. The claimants then excepted that there was a misjoinder; that the libel could not be maintained against the vessel and against the owners in personam, or against the vessel and against the pilot in personam; and they pray that the libel be dismissed. The court was of opinion that the action against the owners and the pilot could not be joined with the proceeding in rem; "and that the libelant must be put upon his election as to which remedy he will prosecute, but that the libel cannot be dismssed." The libelant having elected to proceed in rem against the boat, and in personam against Newell, the master and dismissed as to the other owners and to the pilot, and sustained against the vessel and the master. Mr. James Speed, Mr. J. Hubley Ashton, and R. H. Marr, for appellants: The libelant was bound to proceed in personam alone, or in rem alone. See Citizen's Bank v. Nantucket Steamboat Co. 2 Story, 57. The contract of suretyship cannot be extended by implication. The undertaking of be rendered upon the libel filed, under which the surety was to satisfy such decree as might the vessel hal been seized; and no other decree could have been rendered upon the libel in its original form than one of dismissal. When, therefore, the libelant elected to proceed in rem against the vessel, and in personam against the master alone, he attempted to change the obligation which they had assumed into an obligation to respond to a decree to be rendered upon a new libel, freed from the objection which made that with reference to which they had bound themselves void. The undertaking of the sureties could not be thus changed without their consent at the elec tion of the libelant. Sto. Eq. Pl. § 271, et seq. The question presented in this case is not whether the district court had discretionary power to allow an amendment; but whether it had the power to modify the contract of suretyship without the assent of the surety. The assignment of a claim growing out of a maritime contract, does not vest in the assignee the lien which existed in favor of the original creditor, the assignor. The lien arising in favor of a party injured by a marine tort, cannot be transferred so as to give the admiralty jurisdiction of a libel in the name of the assignee. The admiralty has no jurisdiction unless the contract which the libelant seeks to enforce is maritime. An assignment is not, and never can be, a maritime contract; it is always an ordinary civil contract. Liens are strictissimi juris; and they exist only in those exceptional cases in which they are especially established by law. It cannot be pretended that the collision caused any damage to the assignee in respect to the assigned claims; and it is no hardship that there should exist no lien in favor of such an assignment. The assignee was not the owner of the cargo, nor in any way interested in it. It is not shown that he has paid or that he is to pay anything for the claims assigned to him, and it is almost certain that no sane man would give anything more than a mere nominal consideration for a claim for damages resulting from a tort which is doubtful at best, and which cannot be realized without a long, tedious, and expensive litigation. Choses in action, that is, rights based upon contracts, either written or verbal, were not assignable at the common law. The exceptions to this rule depend upon express statutes. Chauvin v. Labarge, 1 Mo. 396. It never was, and it never can be the policy of the law to make the right of action growing out of torts the subject of speculation; and SUPREME COURT OF THE UNITED STATES. DEC. TERM, such claims are in no manner transferable un- | ant could not proceed against all whom he had der the common law system. Gardner v. Adams, 12 Wend. 298, 299; Bl. A reference to the statutes of Mo. will remove Rev. Stat. 1855, ch. 128, art. 11, § 1, p. 1217. As to the second question, it seems to me there can be no doubt. The objection is that no admiralty or maritime cause of action exists respecting the assigned claims; and that this appears from the libel itself, in which part of the complaint is based upon the assignments. It is an objection patent upon the record on mere inspection. Lafon's Ex'rs v. Lafon, 1 Mart. N. S. 703. Whether the objections thus presented be tenable or not, the case, in my opinion, is with the claimants upon the merits. Messrs. J. M. Carlisle, Judah P. Benjamin, and John D. McPherson, for appellee: The defect of the libel was a misjoinder merely, a defect of from within the provisions of the 24th rule in admiralty. This court said in the case of The Schooner Adeline and Cargo, 9 Cranch. 244. merits clearly appear on the record, it is the "When settled practice in admiralty proceedings not to dismiss the libel, but to allow the party to assert his rights in a new allegation." Parsons, in his Admiralty Practice, says: "MoAnd so, tions, petitions, for adding or subtracting parties for distribution, sale, or any incidental purpose, are received by the court with great freedom. The rules of the court seldom interfere with proceedings of this nature; and it may be said that they are always admitted where substantial justice requires them." Pars. Ship. Ins. & Adm. 716; Sto. Eq. Pl. § 885; Atty-Gen. v. Wood, 2 You. & J. 290; The Commander-in-Chief, 1 Wall. 143, 17 L. ed. 609. It is objected that by allowing the libelant to amend or dismiss the bill as to certain parties, injustice was done to the sureties. Precisely the same objection was raised in the case of The Harmony, 1 Gall. 123, 125, and was answered by Mr. Justice Story, in language which could not be made more appropriate to this case. said: "I will only add that the objections He made that it might affect the rights of the sureties in the bond given for the property, have not been considered of weight in any cases at common law. When property is delivered on bond, it is too much to consider that the right of the court over it can be increased or diminished by that circumstance. Every person so bailing property, is considered as holding it subject to all legal disposition by the court. 4 P. R. 457. A fortiori, the objection would, with great difficulty, find support in a court exercising admiralty jurisdiction." The next question was, Who were the proper parties? The district court ruled that the libel 272 The circuit court considered this to amount in ed. 902, and Dan. Ch. 347. proper parties by dismissing the bill as to them, cause was heard on the merits. value of the cargo lost, admitted evidence to The commissioners, after proof made of the prove the assignments to the libelant of claims for that value. It was urged before the circuit court that those assignments were void; or if valid, the district court could not take cogniclaimants, that the libelant was master of the zance of them. It is now answered for the left the boat at Memphis before the collision, boat only for a portion of the voyage, and had and so was the master or bailee at the time of the collision. But this objection mistakes the law and the meaning of the circuit court. As goods generally, the libelant was a common carowner of a steamboat employed in transporting rier and bailee, and liable to the shippers. man, 2 Sumn. 221; 2 Kent, Com. 609; Ang. Car. The Druid, 1 W. Rob. 399; Jencks v. Cole§ 80; The Commerce, 1 Black, 582, 17 L. ed. 110. Chief above cited, this court intimated that In the subsequent case of the Commander-inwhere the libelant was prosecuting for the benefit of other parties not named, as well as his own, it would be more regular that it should be so averred in the libel; still, they overruled the objection for want of such an averment, observing that no inconvenience could result from the protect the rights of shippers, who may interrule, as there was ample power in the court to vene at any time before the fund is actually paid out of the register. 1 Wall. 52, 53, 17 L. ed. 611. outstanding claims of shippers or insurers. the libelant and the insurers or owners of the This defense founded on the dealings between cargo, is fully disposed of by the ruling of this 17 How. 152, 155, 15 L. ed. 68-70, where, in court in the case of The Monticello v. Mollison, "It is true that in courts of common law the reference to a similar defense, the court said: injured party alone can sue for a trespass, as the damages are not legally assignable; and if there be an equitable claimant, he can sue only in the name of the injured party; whereas, in admiralty claim, the person equitably entitled can sue in his own name.' the court: The libel in this suit was originally against by dismissing it as to the pilot, and sustained | showing that the pilot of the Hill failed, for as against the vessel and the master, or owner. want of proper watchfulness, to discover the The allowance of this amendment was within World in time to avoid the collision; that he the discretion of the court, and was very prop- was either ignorant or disregardful of his oblier. The objection that a libel in rem against a gations to obey the signals which he ought to vessel, and in personam against the owner, can- have obeyed, and that he maneuvered his boat not be joined, was properly overruled; as it was with entire want of skill. in conformity with the 15th rule in admiralty as established by this court. It has been objected here, that the allowance of the amendment was injurious to the sureties in the bond given for the property. But this objection is without foundation, as their liability was neither increased nor diminished. "Every person bailing such property is considered as holding it subject to all legal dispositions of the court." The Harmony, 1 Gall. 123, quoting King v. Holland, 4 T. R. 459. 267*] *It has been contended, also, that the right of the libelant to sustain this action ceased by his abandonment to the underwriters. The circuit court was very properly ruled, that as the libelant was the owner and master of the Western World he was the bailee of the cargo, and so responsible to the shippers or insurers for the safe transportation and delivery thereof, and to fulfill his obligations and secure his reward, he was entitled to possession, and might maintain an action for its destruction. The Commerce, 1 Black, 582, 17 L. ed. 107. "The respondent is not presumed to know or bound to inquire as to the relative equities of parties claiming the damages. He is bound to make satisfaction for the injury he has done. When he has once made it to the injured parties, he cannot be made liable to another suit at the instance of any merely equitable claimant. The Monticello v. Mollison, 17 How. 152, 15 L. ed. 68. The occurrence out of which this suit arose was the collision between the H. R. W. Hill and the Western World, in a bend of the Mississippi river below the town of Princeton, on the morning of December 14, 1852. The Hill received no material injury; the World was instantly found to be in a sinking_condition. The Hill came alongside and took off the crew and some passengers from the World; but before all could be save the World sunk, carrying down with her about thirty persons. The account of the occurrence given by the libelant's witnesses is briefly this: The World was descending the river in the ordinary channel, when the Hill, which had been running up on the Mississippi side, came porting out from that side and attempted to cross the river in front of the descending boat; but, being a little too late, ran into her and sank her. The libelant accounts for the accident by See 3 WALL. U. S., Book 18. The respondent's witnesses admit an attempt of the Hill to cross the river, but say it was effected in safety, and that after the Hill had gained the Arkansas side, the World came square across the river directly towards the Hill, struck her, inflicting, however, no damage, but was herself, by the blow, stove in and sunk. During the five years in which this case was pending in the district and circuit courts, more than a hundred depositions have been taken. In these there is the usual conflict of testimony which always attends such cases. The issue is one entirely of fact, and depending on the credibility of witness. The district and circuit courts, after patient investigation of the testimony, concur in the opinion that the libelant has fully established his case. The record contains the opinion delivered by the learned judge of the circuit court, which fully vindicates the correctness of his decree. It would be a very tedious as well as a very unprofitable task to again examine and compare the conflicting statements of the witnesses in this volume of depositions. And, even if we could make our opinion intelligible, the case could never be a precedent for any other case, or worth the trouble of understanding. It is enough to say that we find ample testimony to support the decision, if believed; and that we again repeat, what we have often before decided, that in such cases, parties should not appeal to this court with [*268 any expectation that we will reverse the decision of the courts below, because counsel can find in the mass of conflicting testimony enough to support the allegations of the appellant, if the testimony of the appellee be entirely disregarded; or by attacking the character of his witnesses when the truth of their testimony has been sustained by the opinions of both the courts below. Parties ought not to expect this court to revise their decrees merely on a doubt raised in our minds as to the correctness of their judgment, on the credibility of witnesses, or the weight of conflicting testimony. In the present case we see no reason to doubt the correctness of the decision of the Circuit Court, which is accordingly affirmed, with costs. END OF VOLUME 70. The Extra Annotation here following is arranged in the order of the cases in the original reporter's volume which precede it. At the upper outside corner of the page is given the volume and pages of the cases to which the Annotation refers. After the official reporter's volume and page in the heading of each case is given book and page of the present edition, the abbreviation L being used for Lawyers Edition, or Law. Ed. for brevity, as it is throughout in the duplicate citations of cases from the Supreme Court. ABBREVIATIONS. F. C. appended to a citation from the regular reports of the U. S. Circuit and Distarct Courts refers to the series of reprints called the Federal Cases and gives, as its publishers do and recommend, the number of the case in that series. Fed. Cas. is used when the case is contained in the series of Federal Cases but is not reported in the regular series of U. S. Circuit and District Court Reports. and the citations of such cases is to the volume and page of Fed. Cas., not to the number of the case. Fed. or Fed. Rep. refers to the well known series Federal Reporter, containing reports of the Circuit and District Court decisions since 1880. L. R. A. will be readily recognized as the abbreviation for the Lawyers Reports Annotated, and particular attention should be given to these citations, as in a large proportion of cases the citing case will be found accompanied by a note on its principal point absolutely exhaustive of the authorities thereon. Am. Dec., Am. Rep. and Am. St. Rep. will be readily recognized as the abbreviations for the well known trinity of selected case reports, The American Decisions, American Reports and American State Reports. Pennsylvania State Reports (Pa. St.) The New Jersey Law Reports (N. J. L.) and Equity Reports (N. J. Eq.) are distinguished by the number of the series. not by the name of the reporter, while the North and South Carolina Reports, Law and Equity, are cited by the name of the reporter where the reports are so titled and it has been the universal custom. Duplicate citations are given to the National Reporter System where cases are therein contained, and to the Reporter System alone of cases not, at the date of the preparation of the annotation, officially reported. The usual abbreviations are used, as follows: Atl. Atlantic Reporter, Pac. Pacific Reporter, N. E. Northeastern Reporter, N. W. Northwestern Reporter, So. Southern Reporter, S. W. Southwestern Reporter, We think that in all other respects the abbreviations used are clear and familiar to all who are accustomed to the use of legal reports and text-books. U. S. Notes 3 Wallace, 18 L. ed. 274-114 p. EDITOR. |