Carson v. Jennings , 1 Wash. C. C. 129 ( 1804 )

WASHINGTON, Circuit Justice.

In the argument of this cause, many points were raised, and debated at considerable length. But, as it may be decided upon its real merits, I shall avoid giving any opinion upon the preliminary points. Whether the district court of this state can, under any circumstances, enforce against the owners of the privateer, residing here, the sentence of the old court of appeals, directed to the court of admiralty of New Jersey; the proceeds of the prize being then, and always afterwards, in the hands of the marshal of that court, under its order; and no part thereof having ever come to the possession of the owners of the privateer; is a great question, which it is not, perhaps, absolutely necessary to decide at this time. But, I shall not conceal the opinion I at present entertain, that the district court of this state cannot, in such a case, grant relief against the person of the owner. Prize causes are always in rcm,1 against the vessel and cargo, or one of them; or quasi in rein against the proceeds, wherever they are. But, when the object of the libel is to execute the decree of the court, the proceedings of 1 he court are limited by the decree, to be enforced against the thing directed to be restored.

I shall now consider the case upon its merits; and the question will be, whether, under the peculiar circumstances attending this, the appellees are entitled to relief against the owners of the privateer. At the threshold, we are at once struck with the antiquity of the demand. The sentence of the court of appeals was pronounced on the 23d of December, 17S0, ordering restitution of the George, and her cargo, but without damages; and directing the admiralty court of New Jersey to issue all proper process for executing that sentence. The cause appears to have slept from that period until the year 1700; when it revived, in the form of a libel, for the value of the vessel and cargo; filed in the district court of Pennsylvania, against the owner of the privateer, and afterwards against the present appellants, his executors. The privateer, and her cargo, had been sold under an order of the court of admiralty of New Jersey, in the year 177S, and the proceeds remained in the hands of the marshal; or, at least, they were never called out by any order of that court. It was fairly asked by the appellants’ counsel, why this delay had taken place? and, if no substantial injury had resulted to the appellants by the delay; it might have been well answered, that it was unimportant to account for it. But, the counsel for the ap-pellees have endeavored to account for it, in a manner by no means satisfactory to me. They say, that the states of Pennsylvania and New Hampshire, denied the right of the old court of appeals to take cognizance, by way of appeal, of the decrees of the courts of admiralty of these states. Admit the fact; yet, it does not appear that this point was ever controverted by the state of New Jersey. It is true, that the representatives of that state in congress, voted against the exercise of this right, in the case of the sloop Active; but that vote was overruled by a majority of congress; and, I presume, the vote of the majority was submitted to. But, if the objection I am now considering, be attached to the substantial merits of the case, it is incumbent on the party who would repel it, to show, by clear proof, that an attempt had been made, to have the sentence of the court of appeals executed, by the admiralty' court of New Jersey; or. that such an attempt would have been ineffectual. This is not stated in the record, and has only been mentioned in argument. I do not notice the objection with a view to a bar of the remedy, from length of time; but does it materially affect the interest and rights of the appellees? What would have been the situation of Carson, if an application had been made to the admiralty court of New Jersey, to execute the sentence of the court of appeals, as soon as it could have been done? Most clearly, the former would have directed the marshal to pay over the proceeds of the vessel and cargo, then remaining in his hands, to the appellees. If the money for which the vessel and cargo had been sold, had, in the meantime, been diminished in value by depreciation, could that court have gone into any calculations to ascertain the loss; and to fix it upon the shoulders of the captors? I think, clearly not. By what rule could they have graduated the scale of depreciation? Congress had established none at that time; nor do I know that the state of New Jersey had. The loss had resulted from the circumstances of the revolution; which it would have been as invidious, as it would have been mischievous and unpatriotic, for a court of justice to have admitted, as the consequences of depreciation. Besides, the duty of the court of admiralty was to execute the sentence of the court of appeals; not to new model, and totally to vary it, by decreeing damages, or, an additional sum, in nature of damages, against the captors; which the court of appeals, knowing of the sale, and consequently of the depreciation, had not thought proper to award.

NOTE [from original report]. TFrom this decree libelants appealed, and] in February 1807, this decree was affirmed in the supreme court. [Jennings v. Carson] 4 Cranch [8 U. S.] 2. The supreme court of the United States determined, in this case; 1. That the district courts of the United States, as courts of admiralty jurisdiction, have authority to enforce a decree of the federal court of appeals. 2. The district courts of the United States, are courts of admiralty: and. as no law has regulated their practice, they proeeed according to the general rules of the admiralty.

The loss, then, by depreciation, took place either before the sentence of reversal, or aft-erwards. If before, it was a loss which the appellees must have borne; if they had, as it was their duty to do, applied to the court of admiralty, to carry the sentence of the court of appeals into execution. If so, can they by any act or omission of their own, shift the loss from their own shoulders to those of the appellants, who had no control over their actions? If the loss by depreciation happened afterwards, then the argument against the appellees is still stronger; because they might have obtained the money, of its then value at least; and it would be monstrous to contend, that they could claim all the subsequent loss from the captors, by neglecting to do what they not only might, but what it was their duty to have prevented. If a loss must be sustained by one of these parties, does it consist with the principles of equity, or even strict justice, that he who has caused it, shall fix it upon another; who neither caused it, nor had it in his power to have prevented it? For, it is to be remarked, that it was in the power of the appellees, at any time after the sentence of the court of appeals, to have compelled the payment of the proceeds of vessel and cargo; but the appellants could exercise no power whatever over the subject. It is therefore of no consequence, at what period the loss by depreciation took place. When I consider the object of this libel, as being to enforce execution of the sentence of the court of appeals; I view it in a light most favorable to the strict right of the-appellees. The case is too entirely destitute of equity, to stand upon the ground of an original claim for damages.

Upon the whole, I am of opinion, that the-decree of the district court should be reversed, and the libel dismissed with costs.