THE MAGGIE HAMMOND, 76 U. S. 435 (1869)

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U.S. Supreme Court

The Maggie Hammond, 76 U.S. 9 Wall. 435 435 (1869)

The Maggie Hammond

76 U.S. (9 Wall.) 435


1. Where a libel was filed against a foreign ship in an admiralty case in an admiralty court of the United States, the libellant and claimant both being foreigners, the place of shipping and the place of consignment being foreign ports, and the whole ground of libel a matter which occurred abroad, this Court considered the question of jurisdiction open for argument here, though it was not raised by the pleadings and had not been suggested by anyone in the court below.

2. The owner of the cargo has a lien, by the maritime law, upon the ship for the safe custody, due transport, and right delivery of the same.

3. Where a lien exists by the maritime law of foreign jurisdictions, our admiralty has jurisdiction to enforce it here even though all the parties be foreigners. Its enforcement is but a question of comity.

4. Semble that by the law of Scotland, the shipper, where the goods have been sold, lost, or injured during the voyage, may have recourse upon the vessel as a guarantee for the personal obligation of the shipowner.

5. Under the statute of 24th and 25th Victoria, commonly known as the Admiralty Court Act, jurisdiction exists in the English courts of admiralty to enforce by proceedings in rem a claim by an owner, domiciled in Canada, of a bill of lading of goods carried into a port of Wales, where the master abandoned the voyage without lawful excuse, improperly entered into a new contract of affreightment, and proceeded on a distant voyage, leaving the goods at the Welsh port and neither carrying them himself to their port of destination nor seeking to forward them in another vessel.

Page 76 U. S. 436

6. Redress may be had in our admiralty courts in the case of a master thus there acting, although the ship have been a foreign vessel, and the shipment made between foreign counties, as Scotland and Canada. And this is so whether the statute be regarded as giving a maritime lien or only a right to sue the ship.

7. The master of a vessel is bound to carry the goods shipped on her to their place of destination in his own ship, unless he is prevented from so doing by the act of God, the public enemy, the act of the shipper, or by some one of the perils excepted in the contract of shipment. When the vessel is disabled in the course of the voyage, and cannot be seasonably repaired to perform it, he is bound to transship the goods and send them forward in another vessel, if one can be had in the same or in any reasonably contiguous port.

On the 23d of August, 1866, the Maggie Hammond, a British vessel, being then at Androssan, Scotland, and owned by a British subject domiciled in Nova Scotia, took on board for Morland & Co., British subjects also, residents of Montreal, Canada, a cargo of iron, to be transported from Androssan to Montreal. The bill of lading was in the usual form. The vessel, in consequence of stress of weather which damaged her considerably, put back after her voyage had been half accomplished, and reaching Milford Haven, on the coast of Wales, anchored there September 18. Surveys were held on the 18th and 25th, the result of which was that the ship, being found unseaworthy, was ordered to Cardiff, about a hundred and fifty miles further along the coast, for repairs, there being no facilities for landing and storing the cargo at Milford. On the 9th October, the master made formal protest at Cardiff, stating that it had been ascertained by surveys that the vessel could not be repaired in time to complete her voyage before the close of the season, navigation in the St. Lawrence being impeded by ice at a comparatively early time in the winter. The vessel was repaired, and on the 3d of November the surveyors certified that she was in a condition to proceed on her voyage. The average voyage from ports of Great Britain to Montreal is from

Page 76 U. S. 437

thirty-five to forty days. The navigation of the St. Lawrence to Montreal, closed as it appeared, in this year, 1866, on the 15th December, and was open in the spring of 1867 on the 22d April. Though of course the navigation was not open in all years alike, and though there was some conflict of testimony, the weight of it went to show that it had not usually, in previous years, closed earlier than this. The first vessel from sea in the spring of 1867 arrived 4th May. The agents of Morland & Co., asserting, on the vessel's putting back and returning, that there was no weather or distress which ought to have compelled her to give up the voyage, and that she could even now resume the voyage, and dispute arising on these points, a compromise was attempted. While, however, negotiations were going on, the vessel loaded and sailed for Baltimore with another cargo on the 21st November, leaving the cargo of Morland & Co. in store at Cardiff. The owners of the Maggie Hammond anticipated, as they alleged, when their vessel sailed, that she would be able to complete the voyage to Baltimore and be back at Cardiff in time for the spring navigation, then to take the iron aboard and sail to Montreal. But tempestuous weather made the voyage to Baltimore one of eighty-seven days. The vessel arrived there only on the 17th February, and was chartered back with an expectation by her owners that she would arrive at Cardiff from the 15th to the 20th of April. This was nearly a month after vessels for Montreal usually leave the English ports. The agents of Morland & Co. accordingly made arrangements with another vessel and forwarded the iron on her. This vessel sailed May 29th, and reached Montreal July 22d.

While the Maggie Hammond was at Baltimore, Morland & Co. libeled her for breach of her contract with them.

The district court, considering that the repairs were made in time to have allowed the Maggie Hammond to get off in the autumn, and that if they were not, the master ought to have foreseen that they would not be and have sent the cargo on by another ship, decreed in favor of the libellants, holding the ship responsible for the difference between the

Page 76 U. S. 438

value of the iron in Montreal on December 15, 1866, when, as the court considered, it ought to have arrived and its value in July, 1867, when it did arrive, with interest &c. The circuit court affirmed the decree. The case being here, the questions argued and in issue were these:

I. One of jurisdiction; a point not raised in the pleadings nor by anyone below, but suggested here by Messrs. Brune and Browne, for the appellants, and ordered by the Court, through MR. JUSTICE CLIFFORD to be argued on these three questions:

1st. Had the libellants a lien upon the ship for the performance of the contract of affreightment at the place where the contract was made or by the law of the place where the contract was to be performed?

2d. Did the act of the master in landing and storing the goods, and accepting new employment for the ship when the repairs were completed, create a lien upon the ship in favor of the libellants at the place where the cargo was landed, stored, and left?

3d. If the libellants did not acquire any lien, either by the law of the place where the contract was made or by the law of the place where the cargo was landed, stored, and left, did the district court have jurisdiction of the libel and of the cause of action therein set forth?

In connection with these questions, it is necessary to state that the British Parliament, in 1861, [Footnote 1] by act of the 24th and 25th Victoria, gave jurisdiction to admiralty courts, to be exercised either by proceedings in rem or proceedings in personam,

"over any claim by the owner or consignee, or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of, or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales. "

Page 76 U. S. 439

II. Assuming jurisdiction to exist.

1st. Whether the master unnecessarily delayed making the repairs? -- a question of fact merely.

2d. Whether at the date (November 4th) when he was certified that his vessel was in a condition to proceed on her voyage, he could safely have set off for a port so far north as Montreal? -- another question of mere fact.

3d. Whether, having believed, as he stated in his protest made at Cardiff on the 9th October that he did, that it had been ascertained that the vessel could not be repaired in time to complete her voyage before the close of the season, he was not bound to have procured another vessel if he could have done so, and forwarded the cargo by it? -- a question of law.

4th. Whether he could have procured such other vessel if he had sought for one? -- a question of mere fact.

This Court assumed, on the evidence, that the master did delay his repairs, that he could have safely set off on the 4th of November, and that he could at an earlier date than this have found other vessels, though he might have had to pay a higher rate of freight than that for which he had himself contracted, and a higher rate of premium for insurance. So that the only questions of law, and the only questions, therefore, for report were:

1. The point of jurisdiction.

2. The obligation of the shipowners in a case where the facts were as the Court here assumed them to be.

Page 76 U. S. 444

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