Warn v. Easton — 17 N.Y. St. Rep. 855

Majority

p. 855

David Warn, Pl’ff, v. The Easton and McMahon Transit Co., Def’t.

(City Court of New York, Chambers,

Filed July 28, 1888).

Headnote

1. Jurisdiction—Of City Court in marine cases—Code Civ. Pro.,§ 817.

The jurisdiction of the city court of New York in cases in personam, under section 317 of Code of Civil Procedure, is concurrent and co-equal with that of the admiralty courts and the New York supreme court in such cases.

3. Same—Action for wages for services on cañad boat—Not a MARINE CAUSE.

A canal boat is designed to make a transit over the artificial waters of a canal, from port to port. Such boat is not a vessel in the merchant service, performing voyages, and an action against a corporation to recover for alleged wages due plaintiff for services as master of said corporation's caoal boat is not a marine cause under section 817, Code of Civil Procedure.

3. Same.

The authorities reviewed, and the operation of section 817 defined.

This action was commenced by personal service of the summons within New York city on the defendant (a foreign corporation .doing business in said city), and is specially brought to recover for alleged wages due the plaintiff for his services as master of defendant’s canal boat, Joseph

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Hagen. The plaintiff, at chambers, moved this case for' immediate trial there as a marine cause, to which the defendant objected, denying the alleged power of the chambers judge, in summer vacation or at any other time, to try . the case, and claiming that the action was not a marine cause under section 317, Code Civil Procedure, and that defendant could not be subjected to an immediate trial without the case at all going on the general calendar.

John M. Jones, for pl’ff; Hyland & Zabriskie, for def’t.

The question is whether this case is a marine-cause and properly triable forthwith at the chambers branch of the court without going upon the general calendar.

The jurisdiction of this court extends to all kinds of’ actions wherein the complaint demands judgment for a sum of money only (Code Civ. Pro., § 315), among them being the actions styled in the Civil Procedure Code, § 317, “marine causes,” of which latter this court possesses th& same jurisdiction as the supreme court, and hence the recovery therein may be for any amount. In the other actions for money only, excepting suits on bonds or undertakings given to this court and suits for breach of promise: to marry, the judgment rendered cannot be for more than $2,000, exclusive of interest and costs. Code Civ. Pro., § 316.

This court, in money cases, proceeds upon an actual or implied contract or for damages for a personal tort or injury to property committed. See McCabe v. Doe, 2 E. D. Smith, 64. The court has, however, no admiralty jurisdiction.

The actions known as marine cases (Code, § 317, subds. 1 and 2), are common law cases. Seamen, and others belonging to ships and vessels, may sue at common law, in personam, for their wages and services. Abbott on Shipping, 493 ; The Salacia, 32 L. J. Adm., 41. Seamen have amaratime lien on the vessel for their wages and services, i. e., in admiralty, but the owners or charterers are also personally liable for such wages and services, i. e., by suit at common law, or in the admiralty court in personam. The Virgin v. Vyfhius, 8 Peters, U. S., 552, 553 ; The International, 30 Fed. Bep., 375, 376. Also, as well as cases for services at sea are actions for injuries to the person committed abroad maintainable here, without proof in the first instance of the lex loci, which is on the presumption that-the right to compensation for such services and injuries is recognized by the laws of all countries. McDonald v. Mallory, 77 N. Y., 551 .

The vessel, while at sea, is constructively part of the territory of the state to which the vessel belongs, that is where-she is registered and her owner resides. And the rule is, the laws of the state to which such vessel belongs follow her until she comes within some other jurisdiction. McDon

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aid v. Mallory (supra), 553 ; Crapo v. Kelly, 16 Wallace,. 623, 624, 631, 632.

As well as in seamen’s cases for wages and services, the jurisdictions (by way of action) of the various states and the United States, in matters of personal torts committed at sea (such as assaults by a master on his crew, injuries to passengers and the like) are concurrent, although proceedings in rem can be pursued thereon only in the admirality courts. McDonald v. Mallory (supra).

The legislature could confer what jurisdiction it pleases on the city court of New York (formerly marine court), except that its character as a local court must be preserved. Anderson v. Reilly, 66 N. Y., 189 ; N. Y. Const., art. 6, sec. 19. For in every respect, except as to those powers and attributes of sovereignty transferred by and under the national constitution to the government of the United States, this state is an independent sovereign state, unconnected with the other states of the union. McDonald v. Mallory (supra), 552, 546, 547 . The federal courts, therefore, would have exclusive jurisdiction only as to the vessel’s relations with foreign governments or crimes committed thereon, cases of supplies or repairs to the vessel en route, maritime liens and like matters. McDonald v. Mallory (supra).

The right to prosecute all common law civil remedies in each state has been specially preserved, and irrespective of the foundation of the right of action. And if the common law is competent to give a remedy, the suitor has the option to sue in the state court, whether the action is to enforce a common law right, or is based on a statute, either of the state or federal. Dougan v. Champlain T. Co., 56 N. Y., 5 ; Cook v. Whipple, 55 id., 164, 165.

It is, hence, clear under section 317 aforesaid, that this court has the fullest jurisdiction of the actions styled marine causes in said Civil Procedure Code, both as to those for the value of or agreed compensation for services rendered or to be rendered upon a merchant vessel during its voyage, and those to recover damages for assault, battery or false imprisonment on board such a vessel without the United States—in every way co-equal and co-extensive with that of the supreme court of this state in such cases.

A marine cause, under said section 317, subd. 1, is limited to the case of a plaintiff belonging to a vessel in the merchant service who seeks to recover for services rendered or to be rendered on board during its voyage. This, of course, is intended to describe a case in which the admiralty courts of the United States have concurrent jurisdiction, for otherwise the case is sufficiently. delineated and expressed by section 315.

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The United States admiralty jurisdiction covers the entire navigable waters of the Union; but the state courts have, as above stated, full concurrent jurisdiction in suits in personam, and may even institute the latter by attachment of sufficient maritime property, subjecting the personal defendant's interest in the vessel, etc., to a sale in the state court, or the actions may be directly prosecuted in the ordinary way in personam simply. For in these cases there is always a personal defendant. Steamboat Ad. Hine v. Trevor, 4 Wallace, 555. And see, The Genesee Chief, 12 How., U. S., 443, 453; Waring v. Clarke, 5 How., U. S., 467. And so long as free navigation is not impaired, the respective states may also control such waters until congress enacts otherwise. County of Mobile v. Kimball, 102 U. S., 691 .

At common law the natural channels or avenues of commerce are public highways, and the right of passage is open to every one, free and unobstructed. Browne v. Scofield, 8 Barb., 243 . All admiralty jurisdiction thereon was surrendered to the Union by the states.

A ship or vessel is a locomotion machine for transportation over rivers, seas and oceans, and it is the purpose and business of the craft, and not its form or its means of propulsion, that determines whether it is a “vessel.” Under the U. S. statutes, all vessels intended for foreign trade must accordingly be registered, while vessels engaged in the coasting trade must be enrolled and licensed. See Gibbons v. Ogden, 9 Wheat., 195 , 211, 212, 215.

A canal boat is not built for the purpose of traversing the waters of the union. The Ann Arbor, 4 Blatchf’d R., 205.

Thus says, in Jackson v. The Magnolia (20 How. U. S., 296), Justice Grier, who delivered the opinion of the court: “The conferring of exclusive admiralty jurisdiction as to navigable waters was completely within the constitutional powers of congress, unless fresh water lakes and rivers were necessarily within the category of those that are not navigable and which, consequently,, could not be subjected to .admiralty jurisdiction—any more than canals and railroads.” This plainly implies and holds that the internal canals of a state are not among the navigable waters of the union, but are the state’s own arteries. See also Rathbun v. Payne, 19 Wend., 400 ; Dygert v. Bradley, 8 id., 469 ; Farnsworth v. Groot, 6 Cow., 699 .

A canal is an artificial trench for transportation, and originates under state statutes and charters. Canals are constructed, owned and managed either by the state itself or by a company incorporated by state law. And their use may be made subject to state tolls (see Perrine v. Ches, and Del. Can. Co., 9 How.U.S., 180,184,189), which cannot be done by any state or under a state law with regard to navigable waters. Gibbons v. Ogden, 9 Wheat., 1 .

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It is clear beyond a doubt, therefore, that in the United States no admiralty jurisdiction over a canal or its navigation and vehicles of transportation could be conferred on the federal courts, and, hence, a marine cause, under said section 317, wherein this court, the Hew York supreme court, and the admiralty courts are intended to have concurrent and co-equal jurisdiction in personam, would not lie or be maintainable at the instance of a plaintiff belonging to a canal boat—but the action must be prosecuted in the ordinary and limited way.

In common parlance a canal boat is not a ship or vessel, which means those navigating the ocean or such as go coastwise, from one port to another, and require a coasting license under United States laws. Many v. Noyes, 5 Hill, 35 .

It is only where an enactment speaks distinguishingly of seagoing and other vessels that the phrase other vessels should be received in its largest sense and as including aE craft navigating any of the waters or canals of the state. Crawford v. Collins, 30 How. Pr., 398 ; otherwise, when only a ship or vessel is mentioned (as in said section 317), the same must be confined to its ordinary signification of seagoing or coastwise craft, including of course that for river navigation. Further, said section 317 is expressly only applicable to cases where the craft referred to before the court is a vessel in the merchant service {i. e., a merchantman), and the same performed, or was intended to perform, a voyage. But a canal boat performs no voyage. A voyage is the passage of a ship over and upon the seas, from one port to another or to several ports (Bouvier Law D., 793). A voyage is when a vessel quits her mooring in complete readiness for sea. Bowen v. Hope Ins. Co., 20 Pick., 278 .

A canal boat, however, is designed to make a transit over the artificial waters of a canal, from port to port, similar to the vehicles on a railroad between two ports.

The boat mentioned in the complaint herein, of which plaintiff is the master, was, therefore, not a vessel in the merchant service, performing voyages; and the present case is, hence, not a marine cause under said section 317, Code Civil Procedure. The action must be put on the general calendar, for trial in its regular order with other ordinary issues.

Ordered accordingly.