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NEWELL V. NORTON AND SHIP, 70 U. S. 257 (1865)

U.S. Supreme Court

Newell v. Norton and Ship, 70 U.S. 3 Wall. 257 257 (1865)

Newell v. Norton and Ship

70 U.S. (3 Wall.) 257


1. A libel in rem against a vessel and personally against her master may properly under the present practice of the court be joined. And if the libellant have originally proceeded against vessel, master, owners, and pilot, the libel may with leave of the court be amended so as to apply to the vessel and master only in the way mentioned.

Page 70 U. S. 258

2. Such an amendment, neither increasing nor diminishing their liability, will not discharge the sureties to the usual bond given on release of a vessel seized by process of the admiralty.

3. A person who is master and part owner of a vessel in which a cargo has been wrongly sunk by collision from another vessel may properly represent the insurer's claim for the loss of the cargo, and proceed to enforce it in rem and in personam through the admiralty.

The court, seeing no reason to doubt the correctness of a decision below, again declares what it has often before decided, that it will not reverse from doubt where the issue is one entirely of fact, depending on the credibility of witnesses who differ in their statements, and where the district and circuit courts have concurred in viewing the merits. And it announces emphatically that in cases where both courts below concur, parties need not bring appeals here with the expectation of reversal because they can find in a mass of conflicting testimony enough to support the appellant's allegation if the testimony of the other side be wholly rejected, or by attacking the character of witnesses and so raising a mere doubt as to what justice required.

This was an appeal from a decree of the Circuit Court for Louisiana affirming a decree of the district court in admiralty in a case of collision between the steamboats Hill and World.

The owner of the World filed his libel in the district court March 12, 1863, setting forth that his vessel, sailing down the Mississippi and laden with a valuable cargo, had been lost by collision with the Hill and solely through the fault of the Hill.

The collision out of which the proceeding came took place in a bend of the Mississippi below the town of Princeton, Mississippi. The Hill received no material injury. The World sank almost immediately, carrying down with her about thirty persons. The wreck and cargo were soon afterwards abandoned to the underwriters, who subsequently assigned their claims to the libellant.

The account of the catastrophe, as given by the libellant, was briefly this: that the World was descending the river in the ordinary channel when the Hill, which had been running up on the Mississippi side, came quartering out from that side, attempted to cross the river in front of the descending boat, but, being a little too late, ran into her and sank her.

The libellant accounted for the accident on the ground

Page 70 U. S. 259

that the pilot of the Hill failed, for want of proper watchfulness, to discover the World in time to avoid the collision; that he was either ignorant or disregardful of his obligations to obey signals which he ought to have obeyed; and that he maneuvered his boat with entire want of skill.

The respondent admitted an attempt of the Hill to cross the river, but asserted that 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.

The district court, in accordance with the prayer of the libel, issued process in rem against the Hill and citations in personam against the captain, owner, and pilot. The 15th rule in admiralty of this Court, of the Rules of 1845, [Footnote 1] it should be said, allows a libellant, in all cases of collision, "to proceed against the ship and master, or against the ship alone, or against the master or the owner alone, in personam."

The owners of the Hill, of whom the master was one, put in a claim, and on the same day the boat was released on a bond conditioned that the claimants and sureties should abide by all the orders of the court and pay the libellant the amount awarded by the final decree. The claimants immediately afterwards filed an exception to the libel for misjoinder of owners and pilot in a proceeding against the vessel and master, and prayed that the libel be dismissed. The court ruled that an action against the owners and pilot could not be joined with the proceeding in rem, and that the libellant must elect which remedy he would pursue, and he having elected to proceed in rem against the steamboat and in personam against the master, it was ordered that the libel be dismissed as to the owners and pilot and sustained against the steamboat and master. Proofs were then taken.

The testimony was voluminous and conflicting. With the documents, it filled a book of three hundred and ten pages of long primer, "solid." One hundred and ten persons, first

Page 70 U. S. 260

and last, and through a term of five years that the case was in the courts below, were examined. It embraced a number of questions, as whether a sufficient watch had been kept -- sufficient and proper signals given -- whether the engines had been rightly worked when the boats approached -- whether certain officers of the World were or were not intoxicated -- what was the character of the pilots for sobriety and skill -- and whether Henry Evans, "a flatboat pilot" on the Mississippi, who saw the collision and testified strongly that the Hill was to blame for it, was worthy of faith -- seven persons swearing that he was not, and twenty-two that he was. And finally, whereabouts exactly in a bend of the river the collision took place, and what topographical inference could be made from the hydrographical fact that portions of the World's cargo had floated to a particular spot of the shore, and that cattle which had been on the boat were found the next morning walking contemplatively in the State of Mississippi, and not in the opposite one of Arkansas.

The district court decreed for the libellants ($52,500), a decree which the circuit court, on full consideration and after giving an opinion at large, which the record contained, affirmed with interest and costs.

After the decree in the circuit court, a motion was made for a rehearing, "upon the ground that the court had erred in its view of the evidence and that the damages ought to be apportioned." This motion was refused, Campbell, J., who gave its opinion, saying:

"I have considered the evidence with much care; it is very conflicting, and an opinion founded upon one portion of it must necessarily be hostile to conclusions which have their support in another portion. I think it is a case in which men may naturally form different conclusions, and that an appeal is a very proper remedy for the party who is aggrieved. A rehearing of the case would not speed the cause to its final determination, and upon the suggestions that the decree is erroneous, I do not think I should be authorized to allow a rehearing."

The case was now here on appeal.

Page 70 U. S. 266

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