Andrews v. Wall

THIS was an appeal from the Court of Appeals in Florida, and grew out of the following circumstances:

There were two vessels, one called the Globe, and the other the George Washington, engaged in the business of assisting vessels which were wrecked, or in danger of becoming so, on the coast of Florida. Between these two there existed the agreement of consortship, which will be spoken of presently.

For assistance rendered by the Globe to the ship Mississippi and cargo, an amount of $5522.49 was decreed as salvage. Andrews, the appellant, was part owner of the Globe, and Wall and Geiger, the defendants in error, were part owners of the George Washington.

Wall and Geiger filed a petition in the Superior Court for the southern district of Florida, (being the same court which decreed the salvage,) as follows: 'To the Honorable WM. MARVIN, Judge of the United States Superior Court, southern judicial district of Florida, in admiralty.

'Your petitioners respectfully represent, on oath, to your honor, that they, with J. A. Thouron, are the only owners of the schooner George Washington; that said schooner has for some time past been consorted with the sloop Globe, in the business of wrecking upon this reef, and was so consorted with said sloop when that vessel performed the services to the ship Mississippi, which have resulted in the payment of salvage to said sloop by your honor, in admiralty, on the 31st day of May, 1841; that a portion of said salvage is justly due and owing unto your petitioners from said consortship, and that the master and agent of said sloop Globe, J. B. Andrews, positively refuses to pay to them any portion of the same. They therefore respectfully represent this matter, and pray the interference of your honor, that you may order the clerk of your honor's court to retain such portion of said salvage, now about to be paid to said sloop, as to your honor may appear equitable under said consortship, due to said petitioners as owners of schooner the George Washington. And they are ready to show to your honor the exact sum due to them under said consortship. And will ever pray.

W. H. WALL,

JOHN H. GEIGER,

S. R. MALLORY, Proctor.'

In conformity with this petition the judge directed the sum of $2,455.64 to be retained, which Wall and Geiger claimed by a subsequent petition.

Andrews answered it as follows:--

'The answer of James B. Andrews, part owner of the sloop Globe, would respectfully represent, that a notice of a petition filed by Wm. H. Wall and John H. Geiger, who claim as part owners of the schooner George Washington, claiming a part of the salvage decreed to Thomas Greene, master of the sloop Globe, in the case of Thomas Greene et al. v. Ship Mississippi and cargo, and has been served upon him. To which he comes into court, and says, that -

'1. The petitioners have no right to come into your honorable court in this summary way, and obtain a decree against the earnings of the master and crew of the sloop Globe, who were libellants in the above case.

'2. That if there is anything due by the Globe, her crew and owners, it must be by some contract existing at the time the services for which salvage has been decreed were rendered, and that if such contract exists, it was not made with petitioners by your respondent.

'3. Your respondent admits that there was a consortship or agreement entered into previously to the services rendered to the ship Mississippi, by him, as master of the sloop Globe, and _____ Russel, master of the schooner George Washington, by which they agreed to divide their respective earnings or gain between each other, their crews, and the owners of the respective vessels, in a certain proportion, viz.: the Globe was to be rated at sixty-three tons, and the George Washington at fifty-three tons, and the number of men each vessel might have on board at the time that any money might be earned. But he alleges that such contract was made between him and Captain Russel for an indefinite time, and considered that it only remained in force so long as they both remained on board of their respective vessels and earned salvage; and that at the time the money in dispute was earned, that Thomas Greene, the mate of the Globe, was master, and in that capacity rendered services to the ship Mississippi, and filed a libel in his own name, as such, and being recognized as master by this court, salvage on the said ship was decreed to him in his own name.

'Whereupon your respondent prays that your honor will dismiss the said petition, and that the amount of the money retained from the salvage decreed to Thomas Greene be paid over to him, together with his costs in this behalf expended. And your respondent, &c.

JAMES B. ANDREWS,

W. R. HACKLEY, Proct. for Resp.'

After the cause had been argued, the court gave the following order:--

'Ordered, That the clerk ascertain the number of men on board the sloops Globe and George Washington respectively at the time of the earning of the salvage by the Globe for services rendered the Mississippi and cargo, and that he divide the salvage in that case decreed the Globe, between the Globe and the George Washington, man for man, and ton for ton, taking the Globe at sixty-three tons, and the George Washington at fifty-three tons, and that he pay to Wm. H. Wall and John H. Geiger the George Washington's portion for and on behalf of all persons interested therein.

'Ordered, That each party pay his own costs in this suit.'

The result of the order was an apportionment of the fund between the two vessels as follows:--

To the Globe, $3,066 85

To the George Washington, 2,455 64

Total salvage, $5,522 49

From this decree Andrews appealed to the Court of Appeals of Florida, which affirmed the sentence, and from this affirmance he appealed to this court.

Clement Cox, for the appellant.

C. J. Ingersoll, for the defendants.

Cox made the two following points:--

1. That the record shows no subsisting contract of consortship at the time of the salvage service.

2. That a court of admiralty has no jurisdiction of the case.

In support of the first point, he said, that he had not been able to find any judicial exposition of the contract of consortship. The court below decided on two grounds: 1st. That the Globe was a wrecker, and, 2d. That contracts of consortship were usual. But the record shows no evidence of these facts, and the court was not warranted in assuming them. 8 Gill & J. (Md.), 449, 456.

Upon the second point, he said that he had not found a case where a court of admiralty had taken such jurisdiction, and it ought not to have been assumed. 12 Wheat., 611, 613; 3 Pet., 433; Baldw., 544; Bee, 199; 1 Pet. Adm., 223; Gilp., 514, 184; Dunlap Adm. Pr., 29; 1 Hagg., 306; 13 Pet., 175.

C. J. Ingersoll, for defendants, said, that he could scarcely add anything to the reasoning upon which the court below founded its opinion, which was inserted in the record. The contract was one of an admiralty character, and the case was like that of joint captors, the rules relating to which were familiar to the court. It was a daily practice in a court of admiralty to distribute funds which were brought into court. The answer itself admitted the contract.

Mr. Justice STORY delivered the opinion of the court.