Bain v. Sandusky Transp. Co.

SEAMAN, District Judge (after stating tbe facts). A question of jurisdiction is raised at tbe threshold of this inquiry; and, if it is determined that the alleged cause of action is not of admiralty cognizance, the further interesting questions argued at the hearing — including that of liability of the owners for torts of the master - — -will not require consideration. The gravamen of the action is the wrong or tort alleged to have been committed in the imprisonment of the libelants. It is not founded upon any breach of contract, for the libelants had repudiated any contract, and had quit the service. There was no disturbance or interference by the master with contract rights. The fact that the measure of damages may refer to the contract does not change the subject of the action. Jurisdiction over torts, in admiralty, is clearly limited to maritime torts, of which the test is locality; and the tort must; be committed on the water, and not on land. The Plymouth, 3 Wall. 20; Leathers v. Blessing, 105 U. S. 626; Ex parte Phenix Ins. Co., 118 U. S. 610, 7 Sup. Ct. 25; Thomas v. Lane, 2 Sumn. 1, Fed. Cas. No. 13,902; The Mary Stewart, 10 Fed. 137; The C. Accame, 20 Fed. 914 642; Milwaukee v. The Curtis, 37 Fed. 705. The alleged wrongs in this case were commenced and consummated upon land. There does not appear even to have been an altercation on shipboard between the master and the libelants. The only grounds asserted for admiralty jurisdiction are the relationship of master to the vessel and crew, and the fact that the libelants had been seamen on the vessel, and were charged, as such, as deserters. These are elements for establishing a contract relation as maritime, but do not serve to establish a tort as marine, because that depends entirely upon the locality,— whether or not the wrong was committed upon water. The cases cited in behalf of libelants as supporting jurisdiction are all founded upon contract, either express or implied, and not applicable here. Sheppard v. Taylor, 5 Pet. 675, is the leading decision relied upon, and there the seamen had contracted for a legal voyage, were carried on one which was illegal, and thereby subjected to imprisonment in a foreign port. It was held that they were entitled to their wages up to the time of their return to this country, less intermediate earnings. Decisions holding the right of seamen to wages, and expenses back to ports of shipment, where the voyage has been interrupted, or where wrongfully discharged, and to wages when refused admission to the vessel after contracting to ship, are all aside from the question here. There is no pretense that the libelants offered or wished to return to the vessel, and it is undisputed that they refused to do so, both before and after arrest. It must be held, therefore, that a court of admiralty is without jurisdiction in the premises, and that remedy for the injury suffered by the libelants belongs wholly to the courts of common law. The evidence presents a case of great hardship, but, in the view here taken, it is unnecessary, and perhaps improper, to comment upon the merits, or consider any questions of liability. Counsel for libelants suggests that they are at least entitled to wages up to the time they left the service, deducting advances made to them. If the power rested with the court to permit this libel for .tort to be turned into one for enforcement of contract, it could not avail the libelants here, for the reason that they left the vessel before completion of their contract, which unmistakably called for a return to a Lake Erie port. This contract holds for forfeiture of wages in case of abandonment, under the general maritime law, without regard to the statute or its form. The Crusader, 1 Ware, 437, Fed. Cas. Mo. 3,456; Jameson v. The Regulus, 1 Pet. Adm. 212, Fed. Cas. Mo. 7,198; Cloutman v. Tunison, 1 Sumn. 373, Fed. Cas. Mo. 2,907. The libel is dismissed, for want of jurisdiction, and without costs.