In re New York & P. Railroad Steamship Company/Opinion of the Court

In his return to the rule, the learned district judge, in elucidation of the grounds on which his order rested, refers to The Hudson, 15 Fed. 162, and The Alert, 40 Fed. 836. In The Hudson it was held that where several vessels are alleged to be in fault in causing a collision, by which the property of a third person is injured, in a libel by the latter to recover his damages, all the vessels should be proceeded against as defendants, to avoid multiplicity of suits, and to enable the damages to be justly apportioned among those liable according to the law in admiralty, and that if, in such suit, the libelant proceeds against one vessel only, it is competent for the district court to award its further process in the cause, upon the petition of the vessel sued, for the arrest of the other vessels to answer for their share of the damage. The question of the right to pursue this course was discussed at large by the learned judge, and the conclusion reached that it was competent for the district court, in cases not provided for by the rules in admiralty of this court, to regulate its own practice, and to allow remedies according to the analogies of admiralty procedure, as new exigencies arose, which the court might deem necessary for the due administration of justice, and that it was essential and expedient in collision cases, in admiralty, that the liability of all persons or vessels involved should be determined in a single action, rather than in successive, independent suits. The decision was announced February 7, 1883, and on March 26, 1883, rule 59 in admiralty was promulgated by this court. 112 U.S. 743, Append. This rule provided for procedure through which, in a suit against one vessel for damage by collision, process might be issued in the same suit against any other vessel charged with contributing to the same collision, or any other party, and for proceedings thereon.

In The Alert the district court decided that in an action in rem against a chartered ship, for damage to cargo, the charterers might, on the claimants' petition showing that the damage arose from the charterers' fault, be made parties defendant on the analogy of The Hudson, and of rule 59. Afterwards, the court, having no doubt, upon the evidence taken in the case, that libelant was entitled to a decree against the Alert,-while it did not clear up the dispute between the codefendants, held that the libelant might take adecree against the Alert, and the case be retained for subsequent determination as between the defendants. 44 Fed. 685. The claimants thereupon appealed to the circuit court of appeals for the Second circuit, because the district court had not decided the whole case, and determined the rights of all the parties thereto, but the decree of the district court was affirmed. 9 C. C. A. 390, 61 Fed. 113.

The opinion of the district judge on the motion to set aside the process against the charterers, as unauthorized (40 Fed. 836), is an able and exhaustive discussion of the question involved.

The Alert was sued in rem for damage to cargo by the breaking of her tackle while discharging under a charter, and her owners, in their answer, averred that the tackle was furnished either by the shipper or by the charterers, under a special agreement between them, and not by the ship. The learned judge said: 'The papers on which the present order against the charterers was issued show that the contract sued on was the charterers' contract. The libel is for damages upon the breach of this contract, through a negligent delivery of cargo. The charterers were in possession of the ship; they were the owners pro hac vice; they were the principals in the contract. The bill of lading was their obligation, not that of the master, who protested against such cargo, and no fault appears in the ship or master. The owners of the ship, who have been obliged to interpose as claimants to prevent the sacrifice of their property, and the master, are under no personal responsibility. They are strangers to the contract sued on, and without any certain means of ascertaining the facts, or producing the evidence of them. Upon the case, as thus far presented, if the ship is liable, the charterers are also liable, and bound to indemnify the claimants. Yet the claimants, if defeated in this suit, when they sue the charterers for indemnity, may be again defeated, through the difference in the proofs; and the libelants, if defeated here, may again sue the charterers. If the charterers admitted their obligation to indemnify the claimants for the results of the present action, or if there were any express contract imposing this obligation on them, the need of such an order as the present would be less, since notice to the charterers of the pendency of this action, and an opportunity to defend it, would bind them by the result, * *  * though this would not prevent the injustice to the shipowners of being compelled to pay the damages on the charterers' contract before the latter were called on for payment.

'The charterers, however, do not admit their liability to indemnify the shipowners. There is no express contract covering the point. The obligation of the charterers to indemnify is directly involved in the question to be tried in this suit, viz. whether the charterers agreed to supply the tackle, and depends on the same evidence. The charterers, if not made parties now, might litigate the same question anew in any subsequent suit. * *  * Under the former practice in equity, the charterers would be brought in as defendants, as a matter of course. Under the present practice in England, since 1873, the introduction of third persons in such cases is in the ordinary course of procedure, even in common-law suits.'

Many cases under the English judicature act were cited, and the practice in countries deriving their procedure from the civil law examined in the light of authority.

In the case at bar the bill of lading under which the cargo described in the libel was transported was the contract of the New York & Porto Rico Steamship Company, and not the contract of the shipowners. It was issued in virtue of authority conferred by the charter party, and the charter party was alleged in the petition to be the basis of the claim made by the shipowners to receive indemnity for any sum they might be compelled to pay by reason of the charterers' negligence in and about the transportation of the cargo.

The district court had jurisdiction over subject-matter and parties, so far as the libel was concerned, and if, after decree thereon against the shipowners, the latter had brought suit against the charterers to recover from them under the provisions of the charter party, the damages the shipowners had been compelled to pay, or if libelants had originally proceeded against the charterers in personam, for breach of the implied or expressed obligations of the bill of lading, the district court would have had jurisdiction.

In this instance the district court saw fit to adopt the practice which would have obtained in equity,-of bringing all the parties in, and trying the whole matter at once,-and we are asked to prohibit that court from so proceeding on the ground of want of jurisdiction thus to implead the charterers.

We have recently thus stated the principles applicable to the issue of the writ of prohibition, in Re Rice, 15 Sup. Ct. 149: 'Where it appears that the court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset, and has no other remedy, is entitled to a writ of prohibition, as a matter of right. But where there is another legal remedy, by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary. Nor is the granting of the writ obligatory where the case has gone to sentence, and the want of jurisdiction does not appear upon the face of the proceedings. Smith v. Whitney, 116 U.S. 167, 173, 6 Sup. Ct. 570; In re Cooper, 143 U.S. 472, 495, 12 Sup. Ct. 453.'

Without reviewing the action of the district court on its merits, it certainly cannot be said that that court was clearly without jurisdiction, or that petitioners were without other remedy, for, in the event of a decree against them, they could appeal directly to this court on the question of jurisdiction, or to the circuit court of appeals upon the whole case, and that court might certify the question to this court for decision. In re Morrison, 147 U.S. 14, 26, 13 Sup. Ct. 246; United States v. Jahn, 155 U.S. 109, 15 Sup. Ct. 39.

And the case is far from being one in which we should regard it as a proper exercise of discretion to interfere with the orderly progress of the suit below by the issue of this writ. The district court, having general jurisdiction over the subject-matter and over the parties, should be allowed to proceed to decision; and, if error has been committed in entertaining the claimants' contention against the charterers in the same suit with the libel against the ship, it may be corrected on appeal. In re Fassett, 142 U.S. 479, 484, 12 Sup. Ct. 295; Moran v. Sturges, 154 U.S. 256, 286, 14 Sup. Ct. 1019.

Writ of prohibition denied.