2 Sandf. 379 4 N.Y. Super. Ct. 379

Cashmere v. De Wolf and Croweld.

The courts of common law in the several states have jurisdiction to determine questions of salvage, in cases which, in other respects, are within the scope of their established jurisdiction.

The jurisdiction of the United States courts in admiralty over questions of salvage, is to that extent concurrent, and not exclusive.

A state court having law and equity powers, may entertain a suit to redeem property claimed to be held for a salvage lien, to enforce which salvage no suit is pending in admiralty ; and may restrain the removal of the property by injunction, appoint a receiver for its preservation and for its sale, where perishable, and [ ascertain the salvage liens and decree payment to the parties entitled.

January 27;

March 10, 1849.

The complaint in this cause was exhibited by Abdoolah Cashmere, of Bombay in Hindoostan, against Thomas Crowell and Thomas L. De Wolf. It stated, that in May, 1847, the plaintiff shipped on board a British ship, the Lady Kennaway, one case, containing six long and eleven square cashmere shawls, belonging to him, of the value of $3500 to $4000, to be delivered at the port of London to Forbes, Forbes & Co., as his factors. That during the course of the voyage, and on the 16th of November, 1847, within a short distance of the English coast, the ship was entered upon by the officers and crew of the British barque Reliance, whereof the defendant, Crowell, was master; who with his officers and crew, under pretence of salvage, took from the Lady Kennaway, the plaintiff’s case of shawls, opened it, wantonly damaged the shawls, and proceeded therewith, and with other goods taken from the ship, to the port of New York, contrary to the laws of England applicable to British vessels in such cases, which required the goods thus taken to be carried into England. That on the arrival of the shawls in New York, Crowell, in behalf of himself and his officers and crew, libelled the same upon a claim for salvage, in the district court of the southern district of New York, which libel was dismissed by that court on the 18th of July, 1848. The decree of dismissal recited that the goods were taken from the Lady Kennaway, on soundings, near the British coast, *380abandoned at sea, and the master and erew of the Reliance then took from her, and transported in their vessel to New York the goods claimed ; that when the Reliance fell in with her, another British vessel was lying near her, and had already boarded her, and such vessel was left there by the Reliance j and that the Lady Kennaway was afterwards taken into the port of Portsmouth in England ; that the ship and barque were owned by British subjects, and the' libellants were also British subjects; and the matter having been argued by counsel, the decree declared that it rested in the sound discretion of the court, whether it would take cognizance of the matters in contestation, or would leave the parties to contest the same in their home tribunals. It thereupon decreed that the suit be dismissed, and the goods discharged from the arrest; that on payment of the costs directed, the libellants might take the property out of the custody of the court; and if they did not within twenty days resume its possession, the claimants might take it and carry it to its port of destination.

The complaint further stated, that Crowell and his officers and crew, have left this country, and the defendant De Wolf, claims the right to hold the shawls in their behalf, and is attempting to obtain possession thereof. The plaintiff believes those parties were not entitled to salvage; or if they were, that their right has been defeated by their misconduct in respect of the goods. That the goods are in the possession of the United States marshal, but De Wolf has notified the marshal not to part with the same, because he intends to acquire the possession under the decree of the district court; and the marshal refuses to give them up to the plaintiff or his agents. That De Wolf is now taking measures to obtain possession from the marshal. That De Wolf, Crowell, and the other pretended salvors, are persons of insufficient pecuniary means and responsibility, to answer for the value of the property. That the goods are of very delicate texture, and would be greatly damaged by being handled by persons not familiar with them; are of value as articles of fashion and show only, and will be damaged by being retained by those interested in the sale thereof. That the plaintiff desires to have the claim to salvage thereon determined? *381and to pay the same if any be due, and in the mean time to obtain possession, on giving security for the salvage. He prayed for an injunction, and a receiver, that it might be ascertained by the court whether any salvage be due, and if there were, that he might be allowed to pay the same, and redeem his goods from the lien thereof; and for general relief.

The complaint was verified by Charles Rhind, Jr., the agent of the plaintiff; and thereon an order was made by one of the justices of the court, restraining the defendants from all proceedings to obtain the possession of the shawls from the marshal or from any other person.

The plaintiff now applies for a receiver, with the usual authority. The defendant, De Wolf, resisted the motion on affidavits. Crowel had not been served with process.

De Wolf stated, that the shawls claimed by the plaintiff were a part of 194 shawls, which were taken by Crowell, his officers and crew, from the Lady Kennaway, which they found derelict and totally abandoned at sea, in the Bay of Biscay, about 200 miles from land, with five feet water in her hold, and her rudder gone. Crowell’s barque was on a voyage from Liverpool to New York. They saved the shawls from the ship, for the owners, and brought them to New York, Some of the shawls were wet with sea-water, when taken from the ship, but that no intentional damage was done to any of them by those in the barque.

On their arrival here, the goods were deposited in the public stores, under the custody of the collector of the port; and Crowell, in behalf of the owner and crew of the barque, immediately libelled the whole of the shawls for salvage, and the same were transferred from his custody to that of the marshal of the United States in this district. Crowell and his vessel and crew proceeded from here to Mobile, and thence returned to Liverpool. And all concerned in the salvage, and all the witnesses, are mariners, British subjects, absent from this country, and ever likely to remain abroad.

Upon the libel being dismissed by the district court, De Wolf, whom Crowell had constituted his agent and attorney, complied with the terms of the decree, so as to entitle him to the re-pos*382session of the goods, and thereupon obtained an order of-the court directing the marshal to deliver the same to the libellants or their agent. The marshal then made an order on the collector of the port to deliver the same to De Wolf. This was the day before the injunction was granted. De Wolf claimed that the goods when they arrived here, were lawfully in Crowell’s possession, and subject to be retained by him by way of lien for the salvage; and on their discharge, were again, and still are in the possession of Crowell by De Wolf as his agent. That this court has no jurisdiction of the matter, it being a case of salvage belonging to the admiralty court; and also because Crowell is a- non-resident, not served with process. That he, De Wolf, has advanced large sums in respect of the goods, for which he claims a lien. That his brother, John S. De Wolf, for whom he is also the agent, is the owner of the barque Reliance, and is worth over $100,000, and he is himself abundantly able to answer for the value of the property in question. He denied all the bad faith and improper conduct charged, and said he intended to ship the property to his brother at Liverpool, there to be libelled for the salvage claimed.

D. Lord, for the plaintiff.

The defendant relies on the opinion of the supreme court in this district, in Frith against these defendants, reversing the decision of Edmonds, J., at the special term. I am compelled to satisfy this court that the decision in Frith’s case was wrong; and will undertake to show that this court may deliver the property to the plaintiff, taking from him security to pay any salvage there may be ; and may then compel a settlement of the question involved.

The plaintiff’s ownership of the shawls is not denied. The goods were taken at sea, on soundings, near the British coast, and another ship which had first boarded the abandoned vessel, was lying near. The defendants took them at sea, under the pretence of salvage. This is not denied. The alleged damages and injury are denied. The United States court refused to take jurisdiction of the case.

Crowell has only a constructive possession, and we have a *383right to prevent his obtaining actual possession. The goods are fashionable articles, and necessary to be in the dominion of the owner. They are of delicate texture, and easily injured. The goods are saved for the benefit of the owner; and he is trying to have the benefit of them, paying all the salvors are entitled to.

I. The plaintiff is entitled on some terms, to the possession and disposal of these shawls, whenever he may deem it advantageous. He is entitled to some specific relief in the suit. The difficulty about the amount and extent of the lien, the peculiar character of the goods, and their situation, are elements of jurisdiction. The lien alone gives jurisdiction, if it be not exclusively maritime.

Then there is the insecurity of the defendants ; the transitory character of the defendants. De Wolf is the mere attorney, and the plaintiff will have no remedy against him after he transmits the property to his principal. On this point of jurisdiction, I refer to Crane v. Ford, (1 Hopk. 114;) Ridgway v. Roberts, (4 Hare, 106;) which was the case of a ship; and Glascott v. Long, (3 M. & Cr. 451.)

We could obtain possession, and mean time have an injunction, if there were no salvage claim; that is very clear. The property is here; we own it. Can the defendant send it to sea, without our consent; we wanting its possession here ?

II. The fact that the lien is for salvage, does not oust the jurisdiction of equity, or of a common law court. The salvor may retain the property for his lien, and put the owner to a tender, and then try it in the ordinary courts. He is not bound to go into Admiralty. (Hartfort v. Jones, 1 Ld Raym. 393.)

In Baring v. Day, (8 East, 57,) the amount of salvage was the sole question. Newman v. Walters, (3 Bos. & Pul. 613;) was an action by a salvor for his salvage. And see Abbott on Shipping, by Story & P., 556, 662. The difficulty arises in making a tender; because if it be one dollar too little, in the estimate of a jury, the plaintiff must fail in a suit at law for the goods. Blake v. Patten, (15 Maine, 173,) was an action by a sailor for his share of salvage against the master pf the vessel, who had received it

*384Thus the common law courts have jurisdiction of questions of salvage, and they are not of exclusive admiralty jurisdiction. If prize be the question, there is no jurisdiction at common law. (Dougl. 594; and Norion v. Hallett, 16 Johns. 328, following that case.) Political questions are involved in a question of capture.

The case of a marine trespass, is one of admiralty jurisdiction ; clearly so. Yet the state courts have jurisdiction also. (Percival v. Hickey, 18 John. 291.) Courts of equity have jurisdiction of suits for contribution to a general average. They always had it formerly. So admiralty has it concurrently, on the ground of lien. So of seamen’s wages. So as to the catchings, &c., of a whaling voyage ; the parties may proceed in equity for the distribution.

Claims on charter party, and for freight, in this country, are enforced in admiralty. It was not so in England. In Merchants Bank v. N. J. Steam Nav. Co., (6 Howard, 389,) this point was examined and considered.

The jurisdiction is concurrent in innumerable cases. This is not the case of a vessel touching while on her voyage j or of a seaman on board a foreign ship, and returning to his own country.

it is said, the constitution and the laws of the United States prohibit the common law courts from the jurisdiction claimed. But the Judiciary Act of 1789, expressly saves the common law remedy to suitors, the same as it existed in England at the revolution. The master of the vessel represents all the salvage claims.

If it were an exclusive jurisdiction, the United States court could not decline it. If it does decline it, most certainly, it is not exclusive in that court.

This court may retain the property, and direct the question of salvage to be settled in the admiralty court, or elsewhere. We are willing to give any security, so that we be not deprived of our goods. We are not bound to tender this salvage blindfold. The lien is not one arising from contract. It is vague and indeterminate. If this court have no jurisdiction, our goods are effectually taken from us, without any remedy.

*385 J W. Gerard, for the defendant, De Wolf.

I. The question at issue in this cause, being purely one of the right and amount of salvage, for salvage services performed on the high seas, this court has no jurisdiction of the case; but the jurisdiction of the district court of the United States is exclusive of that of the state courts.

We concede that in England, the courts of common law have jurisdiction of such questions in certain cases. It is made exclusive here in the admiralty courts, fey the difference in the governments.

The constitution of the United States conferred this jurisdiction on the federal courts exclusively. There is no case or dictum to be found, either in the state or national decisions, to the effect that the state courts have any such jurisdiction. The contrary is fully established. (1 Peters’ Admiralty Decisions, 81, 93 ; 1 Peters’ R. 545; 1 Sumner, 400 ; 16 Johns. 327 ; Abbott oii Shipp, by Story & Perkins, 663, note.)

The courts of common law are not competent to give the relief. They have not the adequate machinery. They cannot make all the necessary parties, or effect the distribution. Here were 194 shawls, and as many different owners might sue us for them, if the plaintiff is right in admiralty the salvors may be witnesses for each other. Not so a.t common law. (Abbott on Shipp. 682, note.)

The prayer of this complaint, is to take away the salvor’s lien, and substitute a bond—a mere personal remedy.

The counsel also cited 1. Wheaton, 304, 335 : 1 Kent’s Com. 318,319; 18 John. 392. .

II. The plaintiff is estopped by his acts and allegations in the salvage suit in the United States district court, from now asserting the jurisdiction of the state court. (14 John 134; l Cowen, 543.)

ITT. The decision of the United States district court is res adjudicate upon the questions, whether it is proper for the courts of this country to entertain jurisdiction of the matters in controversy, and upon the rights of the defendant to the possession and custody of the goods to be carried to England for adjudication, as is also the recent decision of the supreme court *386as to the question of jurisdiction, in Firth v. Crowell, on other goods taken from the same ship.

IY. If the propriety of the entertaining jurisdiction in these cases were an open question, and the court were to exercise their discretion upon it, they would not entertain their jurisdiction under the circumstances of this case, for the following among other reasons:

1. The plaintiff’s representative defeated the adjustment of the whole controversy in the district court, by objecting to the jurisdiction of the courts in this country.

2. He is now taking exactly the opposite ground, and asserting what he there denied.

3. This court has not the machinery adapted to the determination of a salvage suit. It is not a matter of account; but the proportions in which the salvage is to be distributed between owners, masters and crew, and even between different members of the same crew, rest in the discretion of the judge, and cannot be properly adjusted in this court. (Novion v. Hallett, 16 Johns. 327; Percival v. Hicksy, 17 Johns. 257; Johnson v. Dalton, 1 Cowen, 543; Gardner v. Thomas, 14 Johns. 134.)

. Y. The defendants were proceeding with due diligence to have the claim for salvage adjudicated. The question whether this court would not interfere or not, if they did not so proceed, therefore does not arise. But it is further insisted, that when the salvors should lie by, and thus detain the property from the owners, the remedy of the latter would be by action in the court of admiralty to recover possession of the property, or by tendering at their peril enough to cover the claim for salvage, and bringing an action of replevin.

YI. This being in effect an action to recover the possession of the shawls in specie, and in the nature of an action of replevin; the plaintiff was bound to proceed in the form pointed out by the code of procedure, where the delivery of personal property is claimed; and not having done so, the action must be dismissed.

YII. The action cannot be sustained, without making all the members of the crew of the Reliance, who are living, parties; and they not being parties, no order affecting their rights can *387be made by the court, (1 Sumner’s R. 400; Abbott on Ship- ' ping, 678.)

YIII. The court has not jurisdiction of the persons of the defendants, one being a non-resident, and never having been served with process ; and this not being an action for an injury to personal property, within the meaning of the code of procedure.

Lord, in reply.

There is nothing to oblige the defendants to take the goods to England. The plaintiff was not represented in the Unitéd States court. The counsel does not represent owners. He intervenes to preserve the property for the owners.

This court cannot decline jurisdiction, if it be concurrents a'nd its machinery is quite adequate to dispose of all the questions' and rights involved. The constitution of the United States does not give exclusive jurisdiction in admiralty to the federal courts. It gave no specific maritime jurisdiction, and congress expressly reserved all that belonged to the state courts.

By the Court. Sandford, J.

The defendant contends that this court has no jurisdiction, because the lien claimed by Crow-ell and his associates, is for salvage of a cargo, derelict at sea; and th.e jurisdiction is exclusively in the court of admiralty. It is not denied that in England, the courts of common law have concurrent jurisdiction with the admiralty, courts, in determining questions, of salvage; but it is claimed to be otherwise here, by force of the constitution of the United States and the Judiciary Act of 1789.

In determining this point, the relative convenience of the respective tribunals is not important. Jurisdiction depends on other and higher considerations.

Section nine of the Judiciary Act of Congress, which declares the authority of the district courts of the United States, clothes them with “ exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including-all seizures under laws of imposts,” &c., 11 saving to suitors, in all cases, the right *388of a common law remedy, where the common law is competent to give it.”

It is difficult to perceive why, under this important exception; when we had in this state in full operation, the same common law that governed in England, and like courts of law and equity,- administering the same remedies, and in the same forms, of proceeding, which were administered and used by the courts of law and equity there ; the courts of this state did not retain precisely the same jurisdiction which the courts of common law in England exercised, concurrently with the admiralty court, prior to the American Revolution.

We are however referred to the recent decision of the supreme court in this district, in Frith v. Crowell, reversing an order of one of the justices of that court, appointing a receiver of goods taken by the same parties, at the same time, and under the same circumstances, with those in question here. That court refused to entertain jurisdiction, for the reasons, that it is not a proper tribunal to try a question of salvage, its forms.of proceeding are inadequately adapted to it, it has never exercised such a jurisdiction, and the court of admiralty is the proper tribunal for that purpose.

This decision is not placed distinctly on the ground urged at the bar, that the admiralty court has exclusive cognizance of the matter; but rather on the novelty of the appeal to the supreme court,- and its inadequate machinery to deal advantageously with such a case.

After carefully considering the question, we are constrained to differ from that learned tribunal, which we never can do without regret. And this unfortunate disagreement impels us to give our views more at large than we are wont on interlocutory applications. “

The constitution of the United States, does not determine the point. It authorizes congress to create inferior courts and confer on them admiralty jurisdiction. Until congress exercised the authority, there was no interference with the state courts; and when the U. S. district courts were created, and their cognizance defined, their jurisdiction became exclusive, only so far as it was made exclusive by the act of congress. In all other cases *389where the courts of common law provided an adequate remedy before; it seems to be plain that the judiciary act, at most, gave only a concurrent jurisdiction to the admiralty.

The great argument against the jurisdiction of this court, to decide a question of salvage, was founded upon the decisions respecting prize causes. As to this argument, the common law courts in England, never had any jurisdiction of questions of prize of war. This was most elaborately adjudged in the great case of Le Caux v. Eden, Dougl. 694; and it was there shown to have been the settled law for more than a century. Of course there could be no pretence that our state courts had a maritime jurisdiction, which the English common law courts had not; and it has never been claimed. In the case of Hallett v. Novion, 14 Johns. 273, (reversed in 16 ibid, 327,) the supreme court maintained the suit, as establishing merely a marine tort, against the opinions of Spencer and Yates, justices, that it was a case of prize; and the court of last resort, reversed the judgment, on the sole ground, that the captors claimed to have seized the vessel as prize of war, which involved a question not determinable in a count of common law.

The jurisdiction in cases of prize, rests upon the law of nations, and is peculiar, in England, as well as in the United States. In England the admiralty court, acting upon those questions, is called a prize court; when acting upon all others it is an instance court. It not only has different names, but the two courts differed essentially; because the appeal was to a different tribunal in the instance court, from that provided in the prize court. In the latter, the questions arising were political; in the former, they were the ordinary questions of municipal and commercial law.

Moreover, the prize court only exists in England by force of a commission issued on the breaking out of hostilities ; and a new commission is requisite to provide for each new war. The judge of the instance court of admiralty, it is true, is uniformly clothed with the prize jurisdiction under such commissions; but there is no legal obstacle to its being conferred on another and distinct judge. (See Lindo v. Rodney, Dougl. 623.) This being the constitution of the prize court of admiralty in En*390gland, it was stoutly denied, in the origin of our constitutional government, that the act of congress creating the district courts conferred any jurisdiction upon them in cases of prize. It was not till after conflicting decisions on the point, in two district and two circuit courts, that it was finally decided by the supreme court of the United States, that the district courts possessed the powers of a prize .court of admiralty. (Glass v. The Schooner Betsey, 3. Dallas, 6 ; and see 3 ibid. 54.)

Thus it will be seen .that, on the only subject, which in England was beyond and exclusive of the jurisdiction of the ordinary courts of law and equity; it was not until after serious doubts and contestation, that our courts of admiralty were held to possess jurisdiction, by a decision of the national court of last resort.

There was subsequently a struggle relative to the instance powers of the district courts of admiralty, touching seizures for forfeitures provided by acts of congress, in laws other than those regulating trade, imposts and navigation; but the jurisdiction was fully maintained.

Next came the effort to bring all marine contracts within the admiralty powers .of the district courts. To the extent which the English admiralty took cognizance of such contracts, there' was no difficulty; but the attempt to exercise in our courts of admiralty, the large powers which were claimed for that tribunal several centuries ago, and which were so zealously and súccessfully resisted by the common law judges in England, was inflexibly opposed in the supreme court of the United States. The same is true of the subsequent claim of jurisdiction in the district courts, in cases of marine torts occurring on our inland waters, and within the limits of counties.

Mr. Justice Story contended for the enlarged jurisdiction for enforcing marine contracts, in De Lorio v. Boit, (2 Gall. 398,) and Peele v. The Merchants Insurance Co., (3 Mason, 27;) while the opposite view Was maintained with equal zeal, by Mr. Justice Johnson, in Ramsay v. Allegre, (12 Wheat. 614.) In Bains v. The Schooner James and Catherine, (1 Baldw. C. C. 544,) Judge Baldwin delivered an able judgment against the existence of jurisdiction in the district courts, to enfórce con*391tracts regulated by the common law, though made concerning maritime subjects. The discussion was renewed in the Merchants Bank v. The N. J. Steam Nav. Co., (6 Howard’s Rep. 344,) no longer ago than last year; when Mr. Justice Daniel contended against the jurisdiction, in a powerful and elaborate opinion; and it may be considered an open question at this moment, whether our courts of admiralty have, as a concurrent jurisdiction, cognizance of. any class of marine contracts, which were not, at the revolution, within the jurisdiction of the English admiralty.

In Waring v. Clarke, (5 Howard, 441,) a majority of the supreme court of the United States, decided that the district court in admiralty could entertain a libel as for a marine tort, for damages sustained by the collision of two steamboats on the Mississippi river. Judge Wyne delivered the prevailing opinion, which was met by a full and very, able dissenting opinion from Judge Woodbury, in which two of his associates concurred. The great point of the argument in the majority opinion, was to show that the district court had concurrent jurisdiction of the tort, with the courts of common law.

In The American Insurance Co. v. Carter, (1 Peters’, 511, 546,) to which we were cited by the defendant’s counsel, Chief Justice Marshall says, the exercise of admiralty jurisdiction in the states, can only be in those courts which are established in pursuance of the third article of the constitution of the United States. This observation of the learned judge, has no application to the point before us, because he was not speaking of common law courts at all; and he was arguing to show, that the legislature of a territory might establish a salvage court, for the reason that such legislature combined the governmental powers of both the state and the general governments ; it being contended that the power conferred on congress by the constitution, to establish admiralty courts in the states, did not extend to the territories of the United States.

We were also referred to Brevoor v. The Ship Fair American, (1 Peters’ Admiralty Rep. 81,) and to a note, founded on that case, in Story’s Abbott on Shipping, 557. The case itself was a libel for salvage, and among other objections to the juris*392diction of the court, it was shown that the ship had been delivered to the owners, the salvors could no longer proceed in rent,, and the lien was gone. Judge Peters upheld his jurisdiction, and decided that admiralty could proceed in personam for salvage ; also, that the lien was not gone. He said further, that no case is produced in a common law court of a suit for salvage on the high seas, and the reason for there being no such jurisdiction is, that the common law courts cannot proceed in rem. This, it will be observed, is not a decision; and the reason assigned, while it is inapplicable to courts of equity, does not apply to cases in the courts of law, where salvage comes in question incidentally.

We have thus briefly reviewed the history of maritime jurisdiction, under our national constitution, to show that it is essentially without change from the English system. The admiralty court is held to have the same powers as an instance and a prize court, that the same tribunal possesses there ; exclusive, as a prize court, and concurrent in its other jurisdiction, in all cases where the common law courts gave a competent remedy, and the admiralty was not made exclusive by law. The great struggle in the United States courts has been, to extend admiralty jurisdiction to cases which in England were exclusively confined to the courts of law and equity ; not to exclude from the concurrent jurisdiction here, any cases that were concurrent there.

We can find no reason for excluding questions of salvage ' from this concurrent authority, if parties choose to call for its exercise, and the cases are, in other respects, within the scope of our established jurisdiction. The authority in the English courts of common law was conceded, and many cases are reported where it was applied, both at law and in equity.

In this country we find one case, that of Blake v. Patten, (15 Maine R. 173,) where an action was maintained by a sailor against the master of a vessel, for his share of a salvage received by the latter. (And see Abbott on Shipping, by Story & Perkins, [556] 662.) The principle of Percival v. Hickey, (18 Johns. 291,) is decisive, although that was a marine tort, and not a salvage. A military salvage, arising upon a re-capture, is *393a case of prize, (The Schooner Adeline, 9 Cranch, 244,) and does not affect the question.

Our conclusion on the case, as made by the complaint, was declared on a former occasion. (Cashmere v. Crowell, 1 Sandf. R. 715.) It exhibits a tort committed at sea on the plaintiff’s goods, commencing with an alleged salvage. The defence is a claim for salvage of the goods; not denying that they are the property of the plaintiff, or of some stranger, but claiming a lien for salvage services. The supreme court, in Frith v. Crowell, admit the general jurisdiction of a court of equity, to interfere to ascertain the extent of a lien, in aid of a party who must pay it before he can obtain possession of his property; and we suppose it is unquestionable.

This is a court of equity, and the plaintiff seeks to redeem his goods. But it is said the lien is a salvage claim, and this court has not the machinery properly to dispose of such a claim. Why not ? The court of chancery, to which all our forms of procedure are now assimilated, has ever used the same civil law forms, which distinguish admiralty proceedings j and in a vast number of cases, growing out of corporations, joint stock companies, whaling adventures, the administration of estates, and the like; have entertained suits far more complicated and involved, and requiring more parties, than any salvage case to be found in the books. The libel in admiralty is the bill in chancery. Both courts proceed in rem, and both make decrees affecting numerous parties who do not appear, and who have no actual notice of the proceedings.

Assuredly, we feel no disposition to invite into this court cases involving questions of salvage; but we cannot say with truth, that the court is inadequate to investigate them. In this suit, if the plaintiff’s motion be entertained, the course will be to place the property in the hands of a receiver; and, being perishable, he will be directed to sell it at once. The proceeds will remain in court until the claims can be determined. If there are not sufficient parties, the defect will be supplied ; and on a reference, either with further parties, or by a notice to all persons interested, such as is given in partition cases and admin*394istration suits, the referee will proceed to investigate the claims of all persons entitled to share in the salvage.

The propriety of our entertaining jurisdiction is also questioned, and the declension of the district court to take cognizance is cited, as adjudging its impropriety. The decree of that court gives the reason of its course, which was, that the property was taken- by the salvage claimants on the British coast, within soundings, all the parties concerned were British subjects, and both ships were British vessels. The British Consul, interposing for unknown owners, made the objection to the court’s taking cognizance of the matter; and the court, holding that it could exercise a discretion, declined to proceed.

The facts which influenced the United States district court, do not confer any discretion upon us. The case before this court shows sufficiently to require its action, that the property which is now here, if actually salved, was wrongfully brought here ; and that parties who are foreigners and irresponsible, are seeking to carry it away, without any security to the owner that it will be taken to Great Britain, or to any country where he_ will ever hear of it again. He is willing to pay such salvage as the claimants ought to. have, and he desires to have his property protected till their claim can be ascertained.

If there were a suit pending in the admiralty court, we might and should decline jurisdiction ; but we have no right to refuse it, when required to act in a case within our proper cognizance, which is not in litigation elsewhere. If we err in our view of the jurisdiction of the common law courts, to decide upon salvage questions, we ought nevertheless to interfere for the protection of the plaintiffs property, until the question can be properly settled ; but we entertain no doubt on the principal point.

As to the objection that the plaintiff brought upon himself the necessity for the salvor’s removal of the goods, by opposing the proceeding in the district court; we find no sufficient evidence that he was an actor at all in that court. ' The British Consul interposed to protect the property belonging to subjects of his government, as he had a right to do ; but he could not, as Consul, receive restitution, or even obtain a decree to that *395effect. (The Bello Corrunes, 6 Wheat. 152 ; The Antelope, 10 ibid. 66.)

This is not an action in the nature of the former action of replevin. It is more in the nature of a hill for redemption of chattels retained for a lien.

There must be a receiver appointed with the usual authority.

Cashmere v. De Wolf
2 Sandf. 379 4 N.Y. Super. Ct. 379

Case Details

Cashmere v. De Wolf
Decision Date
Mar 10, 1849

2 Sandf. 379

4 N.Y. Super. Ct. 379

New York



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