# Cutler v. Rae/Dissent Wayne

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* Opinion of the Court
* Dissenting Opinion Wayne
United States Supreme Court
48 U.S. 729
Cutler v. Rae
Mr. Justice WAYNE.
I regret that this case has been sent to this court upon the printed arguments of the counsel in the court below, and still more regret that this court has decided an important constitutional question of admiralty jurisdiction, without either oral or printed argument.
It is the first time in this court that such a result has happened; and it was a sufficient reason, in my mind, to restrain this court from action, until after the point had been argued.
As I gather the facts of the case from the record, the question of jurisdiction was not argued either in the District or Circuit Court; though, in making up the record for this court, the point was suggested by the counsel for the respondents. It is a curious incident in the history of our jurisprudence, that a constitutional point should have been ruled here, which had neither been argued at the bar in this court, nor elsewhere; and I think it will be thought so much so, that it will not occur again. Such a silent and uncontested judicial disposition of a question arising under the Constitution is at variance with the interest hitherto shown by our courts, and by the public, in such matters, and does not partake of that watchful and patient inquiry concerning constitutional powers, which has been so much the characteristic of the American mind, when either of the departments of our government has been called upon to exercise them.
I think, too, that this decision should not have been made at this time; for though a full court was present in our consultation upon this case, one of the judges, Mr. Justice Catron, refused to deliberate with us upon it, stating as his reason for not doing so, that important points, constitutional and otherwise, were involved, and that the case was only before us upon printed arguments upon the latter. I think he did so with great propriety, and I agree with him, that the rule of the court permitting cases to be sent here upon printed arguments was not meant to embrace cases involving constitutional questions. That it was not meant to do so, I infer from this being the first case in which it has been done with the practical acquiescence of this court, and from our use, in having hitherto avoided the decision of such questions, except upon oral argument before a full court.
Mr. Justice Catron's withdrawal left eight of us to act upon the case, and we were for some time equally divided upon this point of jurisdiction. It was ultimately disposed of as it has been by a majority of the court, rather by our acquiescence in what was thought to be English authorities against the jurisdiction, than from a close and searching scrutiny into the practice and jurisdiction of courts of admiralty, and how far they were comprehended within our constitutional extension of judicial power to all cases of admiralty and maritime jurisdiction.
Under such circumstances, with every inclination to carry out without further inquiry the decisions of this court, and with unfeigned respect for all of the judges who have made this decision, I hope I shall not be considered as doing any thing at variance with either, if I shall hear argument upon this point of jurisdiction, should such a case occur before me upon the circuit, or if I shall ask, should it ever arise here again, that we may hear argument from counsel upon a point which we had not an opportunity to hear when it was decided.
But my objection to the ruling of the point is greater than to the circumstances under which it has been made.
I think that the case is within our constitutional admiralty and maritime jurisdiction, and that it has been so decided by this court.
An attempt has been made to take it out of the case of Sheppard v. Taylor, 5 Peters, 675, by making a distinction between cases of absolute and unconditional maritime lien, and such as are now called qualified cases of lien, to which a party is entitled by the maritime law. And it is said, 'in general average, that the party entitled to contribution has no absolute and unconditional lien upon the goods liable to contribute; but that the captain has a right to retain them until the general average with which they are chargeable has been paid or secured.'
Besides, not having been able to find, in the books and cases which I have read, any such distinction, (now, I believe, for the first time made,) I have always thought that a lien given by the maritime law, of whatever kind it may be, is one which can be enforced in a maritime court, for the purpose of consummating, for the benefit of all concerned, the equity which raised or created it. For instance, that if a master of a vessel gets a lien upon the saved cargo, in a case of jettison, or voluntary stranding of his vessel, and he is in any way dispossessed of any part of it, either by a freighter or other person, he may bring a possessory action in a maritime court to regain it, or a petitory libel, if the goods saved have got into the hands of a third person, who claims a right of property in them against the freighter. And further, that if the freighters, in a case of jettison or voluntary stranding of a vessel, disagree as to what should be their respective contributions, and there is no fixed rule for ascertaining it without suit in the country where the said cargo may happen to be, either the captain having the cargo in possession, or the freighters, or either of them, may go into a maritime court, to have it judicially determined. And that a party interested in such a lien may file his libel in personam, in a maritime court, against a freighter for his contribution, if he has got possession of his part of the saved cargo, and has removed it beyond the sovereignty in which the court is, so that it may not be sequestrated or put under arrest, to answer the court's decree. And it matters not whether the freighter's possession of the saved goods has been obtained by the delivery of it to him by the master, or otherwise. A lien, or right given to the master 'to retain the goods, until the general average with which they are chargeable has been paid or secured,' as this court says the master has, has nothing in it of the character of a personal agency, which the master may throw off at his will; for neither in its beginning nor in its continuance has it a voluntary appointment; but it is a trust, which the maritime law casts upon him, from the necessity of the case, in virtue of his official relation to the vessel and cargo, and to those who are the owners of them. It is a lien given to the captain by the maritime law, for the purposes of a high equity, produced by necessity; and it cannot be taken from the jurisdiction of a maritime court by any act of a party interested in it, short of what that equity demands; though the parties interested may themselves determine and receive from each other what they may think that equity gives to each of them.
And the foundation of this jurisdiction of a court of admiralty in such cases, both in rem and in personam, is not on account of the locality of the jettison or stranding, or that it is a thing done at sea; but because, happening at sea, the peril producing it makes new and involuntary relations between the freighters, where there were none before, and for which the interests of commerce require a tribunal, into which, by the law of its creation, all the parties interested may be brought together for settlement. Of course, in what I have said, I have had no reference to the admiralty jurisdiction in England since the time of Charles II., but to that of the maritime courts upon the Continent, and as the practice in them continues to be, and also to what had been the ancient practice and jurisdiction in England on admiralty, until the reign of James I., notwithstanding the statutes of 13 Richard II., ch. 5, and 15 Richard II., ch. 3; for we know historically, that, until the time of James, the statutes of Richard operated, rather to restrain the usurped jurisdiction of the Court of Admiralty in England, than to limit it, in what rightfully belonged to its cognizance.
When, then, we are referred to Abbott on Shipping and to Kent's Commentaries, and to the cases cited by them, in support of the conclusion to which this court has here come, concerning the want of jurisdiction, in an American court of admiralty, of a libel in personam to enforce a right in a maritime lien which cannot be enforced in rem, in consequence of the removal of the subject-matter of the lien beyond the reach of the court's monition and attachment, it will be found, by a perusal of Abbott and Kent upon General Average, and the cases cited by those writers, that neither of them is discussing at all the jurisdiction of a court of admiralty, even in England; but that each only states-and one from the other-what are the remedies in England for the recovery of the contributions of a general average. The language in Abbott is:-'In case of dispute, the contribution may be recovered, either by a suit in equity only, or by an action at law, instituted by each individual entitled to recover, against each party that ought to pay for the amount of his share.' (§ 14, p. 610.) And it is admitted that the English jurisdiction in admiralty was not meant by the framers of the Constitution, when the judicial power was extended 'to all cases of admiralty and maritime jurisdiction.' The language of the court now is,-'It has been repeatedly decided in this court, that its jurisdiction is not restricted to the subjects of which the English courts of admiralty exercised jurisdiction at the time our Constitution was adopted.' We must, therefore, in all cases, whether or not there has been an occasion in our courts for the exercise of jurisdiction in a particular case, look to the maritime courts on the Continent, and to works on admiralty jurisdiction, to determine whether the case in hand is embraced by our constitutional provision.
Nor can I partake of the regret just expressed, that the jurisdiction of the court of admiralty in this country is not more defined.
I know at one time it was thought so, but subsequent investigations of it by our judges and jurists, I believe, have given a very general impression to American lawyers, that the constitutional clause, 'all cases of admiralty and maritime jurisdiction,' is as well and as definitely expressed, for the purpose meant, as it can be, and that it leaves nothing doubtful, except as to some cases of which the admiralty court in England took jurisdiction, which had been there exclusively within the cognizance of the courts of common law, and also of other cases in the Continental maritime courts, which did not relate to 'things done upon the sea, or to contracts, pleas, and quarrels which were not maritime.' Among the latler is certainly not a case of general average, and, except in England, I believe, the jurisdiction of the maritime courts has always embraced, both in rem and in personam, 'all cases of freight, charter-parties, mariners' wages, debts due to materialmen for the building and repairing of ships,' and all accidents upon the sea, affecting the rights of those having any interest in the cargo of a vessel, or who are in any way connected with her. I do not think that there is any thing doubtful in the terms used in the Constitution. 'To all cases of admiralty and maritime jurisdiction,' means all cases arising or happening on the sea, growing out of war or commerce, and all cases strictly of maritime contracts,-admiralty jurisdiction meaning originally those cases of which the admiral took cognizance in virtue of his office upon the sea, and maritime, these also, with all others arising out of the perils or accidents upon the sea; trespasses upon it of all kinds; contracts relating to commerce in which a sea service was to be rendered; contracts for building and repairing of ships, and for money loaned upon bottomry. Now, it having been repeatedly ruled by this court, that its admiralty jurisdiction was not limited by what was the jurisdiction in England when the Constitution was adopted, the principal difficulty in the way of interpreting the words of the Constitution relating to it has been overcome. And if we will but rid ourselves of those doubts in respect to what are cases for a maritime court caused by the limitation of them in England, I do not think we shall ever be at a loss to determine what cases are within the admiralty jurisdiction of the courts of the United States; and I believe the whole of them will be found to make no trespass upon, or interference with, the jurisdiction of the other courts of the United States, or with those of the States, either as to the modes of proceeding in them, or as to the suits of which they have cognizance.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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