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January 1, 1849


THIS was an appeal from the Circuit Court of the United States for the District of Massachusetts. It was a libel filed in the District Court, as a court of admiralty and maritime jurisdiction, by Rae, the owner of a vessel called the Zamora, against Cutler, in a cause of contribution or general average, civil and maritime. The facts in the case are set forth by Mr. Chief Justice Taney, in delivering the opinion of the court, to which the reader is referred. The District Court decreed that Rae should recover $2,500 from Cutler, which decree was affirmed in the Circuit Court. It was submitted upon printed arguments in this court by Mr. Loring, for the libellant below, and Mr. Fletcher and Mr. Curtis, for the respondent and appellant. The Reporter would be gratified if he could insert the whole of these arguments, but want of room forbids it.

The opinion of the court was delivered by: Mr. Chief Justice Taney delivered the opinion of the court.

This is a proceeding in admiralty, and the point first to be considered is the question of jurisdiction.

The appellee filed a libel in personam against the appellant, in the District Court of the United States for the District of Massachusetts, setting forth that he was the owner of the bark Zamora, which sailed from New Orleans for Boston, on the 6th of November, 1845, with an assorted cargo, a part of which consisted of 154 bales of cotton, consigned to the appellant; that she was overtaken by a storm in Massachusetts Bay, and was run on shore by the captain, in order to save the lives of those on board, and for the preservation of the cargo, which, together with the vessel, were in imminent danger of being totally lost; that by this voluntary stranding, the vessel was totally lost, but the cotton was saved; and that the appellant had saved the value of it, to wit, $5,400; and that the appellee is entitled to contribution from the owners of the cargo and the appellant, to indemnify him for the loss of his vessel.

The appellant answered, admitting the ownership of the vessel as alleged in the libel; that she was wrecked in Massachusetts Bay, and that the cotton had come to his hands in a damaged state; but denies that the appellee is entitled to the general average he claims, and insists that he is not liable to contribute on account of the cotton, to indemnify the owner for the loss of his bark.

Upon this libel and answer, the parties proceeded to take testimony to show the circumstances under which the vessel had been stranded; and upon the hearing, a decree was passed in the District Court in favor of the appellee for $2,500, which was affirmed in the Circuit Court, and from which last-mentioned decree the present appeal to this court was taken.

Upon the face of the proceedings, therefore, the question arises whether the District Court had jurisdiction, as a court of admiralty, to try the matter in dispute. And it is unnecessary to state more fully the pleadings and testimony until this question is disposed of.

It is true, the counsel for the appellant has waived all objections on that score. But the consent of parties cannot give jurisdiction to the courts of the United States, in cases where it has not been conferred by the Constitution and laws. And if the proceedings show a case which the District Court was not authorized to try, it is the duty of this court to take notice of the want of jurisdiction, without waiting for an objection from either party.

The court of admiralty undoubtedly has jurisdiction in cases where the vessel or cargo is subject to a lien created by the maritime law. And where the lien is attached to the vessel or cargo, it will, until it is discharged, adhere to the property in the hands of third persons, and will follow the proceeds, in certain cases, in the hands of assignees. And in such cases, the lien may be enforced in a court of admiralty, by a proceeding in personam, against the party who holds the property or proceeds. This doctrine was recognized in this court in the case of Sheppard v. Taylor, 5 Pet. 675. In that case, the holders of the proceeds of a ship which had been condemned in a Spanish tribunal, and the value of the vessel afterwards paid to the owners by the Spanish government, were held liable for seaman's wages, in a proceeding in personam, although they held them as assignees of the owners in payment of a bon a fide pre-existing debt. And in deciding that case, the court said, that, in cases of prize, bottomry, and salvage, as well as seaman's wages, the party entitled to the lien may proceed in admiralty in personam against the party holding the proceeds of property to which the lien had attached.

But in the cases mentioned by the court, the maritime law attaches an absolute and unconditional lien upon the property. The possession is not necessary to its validity. Indeed, in cases of seaman's wages and bottomry, the party entitled to the lien never has possession; and the same is most commonly the case where salvage services are rendered.

But it is otherwise in general average. The party entitled to contribution has no absolute and unconditional lien upon the goods liable to contribute. The captain has a right to retain them until the general average with which they are charged has been paid or secured. And as he may do this for the security of the party entitled, he must be regarded as his agent in this respect, and exercising his rights. This right of retainer, therefore, is a qualified lien, to which the party is entitled by the maritime law. But it depends on the possession of the goods by the master or ship-owner, and ceases when they are delivered to the owner or consignee. It does not follow them into their hands, nor adhere to the proceeds. This is the doctrine not only in England, but on the Continent also. It is unnecessary to refer to the various authorities on this point, as the principal ones are collected in Abbott on Shipping, 507, (margin,) Perkins's edition, and 3 Kent's Com. 244.

In the case before us, the goods, with the bill of lading, were delivered to the consignee, and not to the owner. We do not, however, propose to inquire, whether, upon the facts stated in the libel, the consignee would be liable for the contribution in any form, but whether a court of admiralty can try the question. And treating the case as if the consignee stood in the place of the owner, and was liable to the same extent, we think it was not within the jurisdiction of the court of admiralty. The owner is liable, because, at the time he receives the goods, they are bound to share in the loss of other property by which they have been saved; and he is not entitled to demand them until the contribution had been paid. And as this lien upon his goods is discharged by the delivery, the law implies a promise that he will pay it. But it is not implied by the maritime law which gave the lien. It is implied upon the principles of the common law courts, upon the ground that in equity and good conscience he is bound to pay the money, and is therefore presumed to have made the promise when he received the goods. Indeed this case seems, in its principles, to be nothing more than the common law action for money had and received, brought in a court of admiralty.

It is very much to be regretted, that the jurisdiction of the court of admiralty in this country is not more clearly defined. It has been repeatedly decided in this court, that its jurisdiction is not restricted to the subjects over which the English courts of admiralty exercised jurisdiction at the time our Constitution was adopted. But there is no case, nor any principle recognized by this court, that would justify us in extending it to a subject like the one now before the court. Whether the court of admiralty might not have proceeded in rem to enforce the maritime law before the goods were delivered, is a question which does not arise in this case, and upon which, therefore, we express no opinion. But the case, as presented in the record, we think, is not within the admiralty jurisdiction, and the judgment must therefore be reversed, and the case remanded to the Circuit Court, with directions to dismiss the libel.

Mr. Justice WAYNE.

I regret that this case has been sent to this court upon the printed arguments of the counsel in the court below, and still more regret that this court has decided an important constitutional question of admiralty ...

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