The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III, Part 33

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440

USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III > Part 33

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It will be here observed that I consider this to be a case in which the dissentient owners "protest against the voyage" but propose no other employment of the brig. It is true the 'petitioners say that they have offered to send her to sca with a master appointed by themselves, which is imposing a condition on the other owner, un- just and unreasonable, and not to be affirmed by the court, if it had the power to do so. It cannot be held to be a case of a mere difference between part owners about the voyage to be undertaken. The case now to be decided does not appear to me to be such as even un- der the doctrines of Molloy would authorise the court to order a sale of the vessel; and if it were so, I should besitate to affirm a power never exercised by any court of Admiralty in the United States or in England, on an authority so deficient in precision and perspicuity. The ordinances of France will next be the subject of some re- marks.

The 6th article cited and commented upon by Valin, page 564-may be thus translated: "No one can compel his partner to proceed to the public sale of a vessel held in common, unless opinions be equally divided about the undertaking of some voyage" or "of any voyage." I would not appear to be fastidiously critical, but am con- strained to say that this article is not to my mind clear of any ambiguity. Is it absolutely clear whether by the exception "unless opinions be equally divided about un- dertaking (quelque) some or any voyage," we are to understand that the sale may be compelled when the partners differ about some particular voyage proposed by part of them, while the other part propose another, differing therefrom about some voyage, that is, about which shall be undertaken; or does it mean that the sale shall take place when the partners differ about un- dertaking any voyage at all; one proposing to send the vessel to sea, and the other to keep her at home. The commentary of Valin gives us his understanding of the text, which is that the right of compelling a sale exists in two cases; first, when the parties differ about the particular voyage to be undertaken, both, however, de- siring to employ the vessel; and secondly, when the objecting party does not propose any voyage as a sub- stitute for that he opposes, but offers plausible reasons for his opposition. This is very reasonable, but no clue to it is to be found in the text of the ordinance. The cases in which a difference among partners on this subject may happen, seem to be-1. When one partner proposes a voyage and the other refuses his assent to it, but neither proposes another nor gives good reasons for his refusal. To this case the exception of the ordinance, which implies the power to forcing a sale, has no appli- cation, and the dissenting owner cannot be so constrain- ed; because commercial policy, looking only to the em- ployment of the ship, does not require it, inasmuch as the willing partner may send her to sea on giving secu- rity to the other owner for her safe return.

2. When both owners are desirons of employing the ship, but cannot agree about the voyage, then, as nei- ther comes under the interdiction of wishing her "to lie by the walls," the power to order a sale is brought in to settle the difference, and save the property to both of the parties, as well as for the public use. The com- mentator truly remarks, that "under such circumstances, the court cannot take cognizance of the subject of dis- pute;" that is, cannot decide in favour of one or the other voyage, and pronounce which would be the most beneficial and prudent and ought to be preferred: therefore, in the language of Valin, "there is naturally no other mode of putting an end to the dispute or dif- ference of opinion."

3. The third case is when the dissenting partner does not propose another voyage, but offers good reasons for objecting to that proposed: here, under Valin's con- struction of the ordinance, a sale will be ordered for similar reasons to those above given. The court will not send the vessel to sea against the consent of an owner sustaining his dissent by "plausible reasons,"

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nor will it deprive the other owner and the public of drer use by keeping her unemployed, on a difference of opinion which they cannot settle, and may be endless; the court therefore from a sort of necessity cuts the knot by dissolving an injurious and embarrassing con- nection.

Does the case of the petitioners fall within the power of ordering a sale as given by this ordinance, explained as it is by the commentator with a very large and liberal interpretation? They propose no voyage as a substi- tute for that they object to; for I repeat that I cannot consider their offer to send the vessel to sea on condi- tion that they have the exclusive appointment of the master to be such a proposal of a voyage as should be regarded on this question. No intimation is given of when or where they would send her; no voyage desig- nated. The remaining case of Valin is when the dissent- ing owner gives good reasons for objecting to the voyage proposed. Now the objection of the petitioners as stated in their petition and offered to be more circum- stantially proved, is not to the particular voyage on which this vessel is about to be sent as being unprofit- able or hazardous, but to be going any where, in the possession; and under the command and control of the defendant. The objection points to him, and not to the voyage he proposes. We fall here into another ambi- guity or difficulty in the meaning of the Commentator; must we take him literally, that the objection must be made to the voyage in question, or may it be extended to the master, the mariners, the condition of the vessel -in short any thing in relation to the vessel or voyage. I shall offer no opinion upon this question of construc- tion, because taking the commentary in its most enlarg- ed sense, I should not feel myself to be bound by it or authorised to adopt it as the law of this Court, unless on another point of this case, I shall find it to have been extended to this country. At present I consider it as a local municipal regulation of the country enacting it, and partaking more or less of the general jurisprudence and policy of that country. If then the objections or reasons set up by the petitioners as the ground of their application, are not of the description alluded to by Va- lin, he stands in the third position of an owner dissenting to an intended voyage; but neither proposing another nor offering "plausible reasons" for his dissent; and in- such case his remedy is not by forcing a sale of the ves- sel, but by requiring security for her safe return.

II. The second point made for the petition on the question of sale is-That the English Conrts of Admi- ralty possessed this power for a long period, and per- haps still possess it. On the first branch of this point, that the English Courts once possessed this power, no authority has been produced, beyond very general ex- positions of Admiralty jurisdiction. Molloy does not propose in his treatise to give the law of England on Ad- miralty jurisdiction, or the contested questions in relation to it; he expressly disavows it, saying, "In the whole work I have no where meddled with the Admiralty or its jurisdiction, (unless by the by as incidentally fall- ing in with other matter) knowing it would have been impertinent and saucy in me to enter into the debate."

rect to the point that the Admiralty has no power to compel a sale of a ship on the application of part own- ers, who object to a contemplated voyage; that it may compel security to be given to the dissenting owners, but cannot force a sale upon them nor require of them to buy the shares of the others. I have not found any objection to this doctrine, either by the Court of Admi- ralty or by any English writer on the Civil and Admiralty law; on the contrary, Browne, no mean advocate for Admiralty jurisdiction, gives the case of Ouston vs. Heb- den, in his well known work, without any hint of dis- approbation. Lord Stowell, in the " Apollo," (1 HIag- gard 306,) after sfating the right of'requiring stipulations in favour of the dissenting owner of a ship for her safe return, adds :- "There is no case cither within the scope of my own inquiry, or which has been discovered by the diligence of the advocates, upon repeated chal- lenges given them for that purpose, in which the court has moved beyond these limits." I feel duly warranted in saying, that a Court of Admiralty in England does not possess or claim the power now contended for.

III. But if the petitioners are right in their third point, they must prevail, to wit: That whatever may be the case in England, our courts hold an enlarged maritime jurisdiction and with it the power now asked to be ex- ercised. The proposition that the Admiralty powers are or ought to be more enlarged in this country than in England is too general to bring us to the specific conclu- sion now required; it must be further shown that the enlargement has comprehended the power in question. The general ground is a good foundation to build on, but the materials of the fabric must be obtained from established principles and precedents.

In the first place, it is not pretended that this power has ever been exercised or directly asserted by any Court of Admiralty in the United States. When I am called upon to wield a power never before used, or di- rectly claimed by any Court of Admiralty in England, or in our own country, the right should be made ex- ceedingly clear from acknowledged principles and un- questionable deductions; and if any difference exists be- tween the law of the United States and that of England on this subject, arising from the nature of our political or judicial institutions, it should be brought home to this question before the court can presume to add such a power to its jurisdiction. The Courts of Admiralty in England may have been at one period too much con- strained by the watchful and rigorous jealousy of the common law; but on the other hand the civilians have not been without ambition to extend their dominion, and having the field very much to themselves on the continent, they may draw us over a wide range if we follow them implicitly. By disregarding the doctrines of the English Courts in favour of the apparent con- venience of the civil law, we shall disturb the harmony of our system of jurisprudence, which has been essen- tially derived from that of England, and follows it in its leading arrangements. Let us be governed by a sincere desire to direct and regulate both jurisdictions by the great ends of public convenience and individual justice, without rashly removing its established limits and land- marks. How have the petitioners proved that the Ad- miralty Courts of this country possess a jurisdiction so enlarged as to embrace the power now expected to be used in their behalf. They have not shown any actual exercise of such a power, nor any direct assertion of it, but have endeavoured to deduce it from some general observations made by most respectable Judges, viz. Judges Story, l'eters, and Winchester. If indeed such names shall be found to support their pretensions, they will be strongly fortified. The general expressions of Judge Peters in 1 Adın Dcc. 7, that "acting in a nation- al and not a dependant capacity, I cannot conceive that weare bound to follow the practice of England more than that of our own or any other nation," furnish nothing by which we can obtain the least hint of his opinion upon the

Judge Story (in 2d Gallison 400) says, "What was originally the nature and. extent of the jurisdiction of the Admiralty cannot now with actual certainty be known." I assuredly will not attempt to illustrate what was hidden from him; nor do I think that a knowledge of what was the constitution of this court centuries ago, should govern us at this day, under all the changes that have taken place, in commerce, national intercourse, and municipal jurisprudence. Whether the power now claimed for the Admiralty was formerly possessed by that court in England or not, I must leave it in the un- certainty and obscurity in which ages of darkness have involved it. But it seems to me to be sufficiently clear, that the suggestion that the Admiralty in England still possesses it, is altogether without foundation. The case of Ouston vs. Hebden, 1 Wilson, 101, is full and di- | question. In the case of Willings and others, es. Blight,

116

LAW CASE.

[FEBRUARY

2d Adm. Dec. 288, a petition was preferred to permit the majority of owners of the brig Amelia to proceed on a voyage, after giving stipulations for the value of the recusant owner's share. The court clearly thought the cause was one of Admiralty jurisdiction. It is stated that the recusant owner would rather sell at reasonable appraisement or make advances for the outfit. The judge says, that "Whether a minority, (the case of equality is not given) shall or shall not be compelled to sell, has not been here judicially decided." He then quotes the passages already noticed from Molloy, taking them from the "Treatise on the Sea Law," and Beuwe's Lez Mercatoria, into which they are carried from Mol- loy. The Judge, however, is so far from intimating an opinion that this compulsory sale is the proper remedy for the obstinacy of a recusant part owner of a ship, that in conclusion he says-"a privation of freight, the fruit and crop of shipping. seems therefore to be an appro- priate mulct on indolent, perverse, or negligent part owners." He adverts to no distinction of majori- ties or minorities. Nor can I discover in the labo- rious and learned investigation of Admiralty juris- diction, by Judge Winchester, given in 1' Adm. Dec. 233, 4, 5, any thing which warrants us in concluding that he maintained that jurisdiction to the extent now claim- ed. He says, that "a dispute between part owners whether a ship should be sent to sca, is cognizable in the Admiralty;"-and assuredly so it is, but the manner in which the Court may interfere in such cases is not suggested by the Judge; and we must suppose he al- ludes to the usual and unquestioned mode of demanding security for those who dissent. The subsequent gene- ral view of Admiralty jurisdiction, and the matters sub- ject to it, is equally unsatisfactory to guide us to his opinion on the particular point here in dispute.

To show the approbation of Judge Story of the doc- trine of the petitioners, we are referred to the celebrated opinion in the case of De Lovio vs. Boit, in 2 Gall, 398.

I have carefully perused this profound and extensive investigation of the nature and extent of the Admiralty rights and powers., which is certainly conducted with the most liberal disposition towards them, but I have seen nothing in it from which I can conclude with the coun- sel for the petitioners, that if this application was made to that learned Judge, he would not hesitate to grant the prayer of the petition. In page 463 of the above cited case, Judge Story says, that the Admiralty exercises un- disturbed jurisdiction and entertains suits: 1. For the possession of ships. 2. Upon controversies among part owners as to the employment of ships. The distinction taken by the counsel of the defendant is here recog- nized. No intimation is given of such power in the Admiralty to take a ship from one owner, and deliver her to another, nor to compel an unwilling partner to sell his share at an appraisement to be made by others. The court will take care that she shall be employed, and when the party desirous of employing her offers to his associate, the usual security, both the policy of the law, and the interest of the individual, are sufficiently re- garded and protected. I must confess that I do not see how this policy or this question can be affected by ma- jorities or minorities of ownership, except so far as they may influence the judgment and discretion of the judge. The doctrine of Valin is, that where there is a ma- jority against the voyage, it shall not proceed, by rea- son of the respect paid to the majority; and yet this ma- jority are to be made to submit to the stronger compul- sion of a forced sale of their interest. The reason which is the foundation of this extraordinary interference of the court, applicable to no other joint property but ships, is to prevent the obstruction of navigation and commerce in which the whole community have an inte- rest; but this reason cannot be applied to a case like the present, where the whole dispute between the owners is for the possession of the vessel, and the party actually in possession is desirous to send her to sea, and is will-

ing to secure the rights of his associate. On what prin- ciple can we compel a sale of the vessel in such a case, even if it were admitted, that abstractedly the power cxists in the Admiralty.

Too much time has already been occupied by me on this occasion, or it might have been useful to have exa- mined the various parts of Judge Story's opinion, which have been supposed to support the present application. It is not necessary, or I should not have omitted it, how- cver prolix. The Judge certainly does not reject de- cidedly, in which I concur with him, any binding au- thority of the common law decisions in England on this subject. I agree with him that "we are at liberty to re- examine the doctrine and to construe the jurisdiction of the Admiralty upon enlarged and liberal principles." --- But we are not to conclude from this that we are to set no limits to it, or that we may do under it any thing that may seem to be convenient in any particular case. Nor yet that we should not cautiously respect the English decisions by great and learned men, tainted perhaps but not blinded or corrupted by prejudice. . We must look to established principles and precedents to guide us, and when the wisdom and experience of legislators and jurors have found it good and expedient for public convenience, and the due administration of justice, to establish different tribunals for different subjects of con- troversy, and give to each its boundaries, it is the duty of those who are called upon to administer the law, to do it in the manner prescribed to them, to keep within the allotted sphere of their operations; and not to be- lieve that because what is required may be convenient or just in itself, it may therefore be done by them.

What would be the opinion of the learned Judge on this case can only be conjectured from past adjudica- tions, and in them there is nothing that directly or by in- ference bears upon it. It is worthy of remark that in his edition of "Abbott on Shipping," the case of Ouston vs. Hebden is twice referred to as authoritative law, and Judge Story does not intimate any disapprobation of- the decision, or make a suggestion that a different law prevails, or ought to prevail in the United States. Nor can this be attributed to inadvertence, as he has a note on the subject, in which he refers to the case of Wil- lings vs. Blight, and the 2d vol of Browne's C. and A. L. 131.

A few words will suffice for the second or alternative prayer of the petitioners, viz. That they shall be per- mitted to send the vesselto sea with a master appointed by themselves, that is, that the defendant, an equal part owner with themselves, in full and lawful possession of the vessel, shall be wholly dispossessed of her both as owner and master, and that she shall be put under the exclusive control and power of the petitioners. This has not been and could not be strongly insisted upon .- It would be an exercise of power beyond even the sale of the vessel, and for which no principle or precedent has been shown. In the case of sale the proceeds would come into the hands of the court for those concerned- but this application would deprive the defendant of pro- perty clearly his own, and a possession certainly lawful, to put both into the hands of those whose interests and rights are no greater than his, and from whom he can have no better security than he is willing to give them. In such circumstances his possession must prevail, and I know of no power in this or any other court to deprive him of it and transfer it to his co-partners.

I mean to decide only the case in hand. On the ques- tions, whether a minority shall or shall not be compelled to sell, mentioned as undecided by Judge Peters; whe- ther a majority refusing to fit out shall be so compelled; or an equal owner refusing to give stipulations, I am not called upon to give any opinion.

On this case it is my opinion and decree, that neither of the prayers of the petitioners can be granted, and that the petition be dismissed.

[National Gazette.

1829.]

DELAWARE AND RARITAN CANAL.

117

DELAWARE AND RARITAN CANAL.

We have received the report of the committee to the Assembly of New-Jersey, on this Canal-which being a subject of interest to the citizens of Philadelphia, we make some extracts from the Report, shewing an csti- mate of the trade which it is expected will pass that way. After inquiring into the practicability of forming the Canal, the Committee proceed to show that the State ought to undertake it for several reasons: They make the estimate cost of the Canal, (per Canvass White's calculations, three years since, ) to be, on the largest dimensions, $1,142,741; and shew that the re- sources of the State, from its credit, are sufficient for the purpose. They next proceed to calculate "the reven- ue of the Canal," and say:

An important consideration presents itself at the threshold of this inquiry, to which the committee would invite attention. This is, the location of the proposed Ca- nal relatively to the other great inland navigations of the country.

On the north-eastern side of the Raritan we have:

1. The East river navigation to Providence, Rhode Ist- and. Into which flows: 1. The East coasting trade. 2. The trade of the Middlesex Canal, extending from Bos- ton to Concord in the centre of New-Hampshire. 3. That of the Blackstone Canal from Providence to Wor- cester in Massachusetts, 38 miles. 4. The Farmington Canal leading through a rich agricultural country to New Haven-together with the trade of the navigable rivers of New-England, which empty into the East river, or Sound-and

2. The New-York Canals: Connecting Lake Erie and Lake Champlain with the Hudson, embracing a trade, the tolls from which have amounted during the past year to $833,000-a trade constantly increasing with the progressive improvement of the country, and which will speedily be swelled to an immense amount by the com- pletion of the numerous additional Canals contemplated by the legislature of that great and enterprising state.

By these mediums the immense trade of a population of several millions of our most enterprising citizens, scattered over a large agricultural and manufacturing country, embracing seven states, have access to the Rar- itan. But its progress is bounded by the southern shores of that river-thus far it can go and no further. It is still 28 miles from the Delaware.

Passing over this narrow strip of land to the shores of the Delaware-we have

1. The Lehigh Canal, opening an outlet from the in- exhaustible fields of coal at Maunch Chunk into this riv- er; with the certain prospect of a continuation of this navigation to the Susquehanna, and Lake Erie, in rever- sion.

2. The central Pennsylvania Canals, uniting the Del- aware and Susquehanna with the Allegheny and Lake Erie, connecting the various navigable streams of Penn- sylvania, and opening an avenue by which her immense agricultural and mineral trade will flow into the Dela- ware.

3. The Chesapeake and Delaware Canal, connecting the Delaware with, 1. The Chesapeake Bay and its trib- utary rivers and populous cities-The Susquehanna, Pa- tuxet, Rappahannock, Potomac and James-Baltimore, Annapolis, Norfolk, Petersburg, Fredericksburg, Rich- mond, Alexandria, Washington, &c. 2. The Dismal Swamp Canal, now on the eve of completion, and soon to become navigable to Newbern, in North Carolina. And 3. The splendid Canal and Rail road projects, now in progress, uniting the Ohio river with the Chesapeake.

Such is the brief view of the two great sections of country and their internal navigations, which the Dela- ware and Raritan Canal is to unite. It is to form a

junction between the East river navigation and its Canals, and the New-York Canals on one side; and the Lehigh, central. Pennsylvania, and Chesapeake naviga- tions and Canals on the other. - A view before which, in the opinion of the committee, the mere fact that this proposed Canal will open a navigation between Phila- delphia and New-York, sinks almost into insignificance.

But we proceed to the inquiry-what will be the prob- able revenue of the contemplated Canal?

This must arise from tolls for merchandize, &c. trans- ported on the Canal, and passengers. And we will consider,

1. The trade of the East river, its tributaries, Canals and Cities. And here it is proper toremark with refer- ence to the investigations which follow, that while the data which the committee have been able to obtain, may be generally relied on as correct; yet in no instance has it been found possible to arrive at any thing like the full amount of trade between the different points examined. And this circumstance while it prevents the committee from presenting a full view of the advantages of the Ca- nal in point of revenue, will satisfy the house, they trust, that their estimates are not too large. They will confine themselves to facts as far as they have been able to become acquainted with them.

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The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III, Part 33

Author: Hazard, Samuel, 1784-1870 Publication date: 1828 Publisher: Philadelphia : Printed by W.F. Geddes ; Number of Pages: 440

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440