The Fortitude

9 F. Cas. 479, 3 Sumn. 228

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1838
• Docket: Case No. 4,953
• Status: Published

Opinions

STORY, Circuit Justice.

The question now submitted is, whether the master of the ship, it being a suit on a bottomry bond, and the necessity of the repairs being denied by the answer, is a competent witness to establish the necessity of the repairs. The suit is in rem; and indeed no personal suit would lie against the owner. If the master is admissible to prove the necessity of the repairs, then it is plain, that, if a decree is obtained by the libellant, the master is discharged from all further resjjonsibility. So that he has a direct interest in the event of the suit under this aspect, and will by his own testimony exonerate himself from all liability to the libellant. Then, does he stand indifferent from an opposing -interest? Certainly he does not, if the decree in rem will exonerate him also from all liability to the owner of the ship. The question, then, arises, whether the decree in rem will be conclusive as to the necessity of repairs, in a suit brought by the owner of the ship against the master? I think it will, for two reasons; (I.) A decree in rem. as to the direct point decided in it, (and here the necessity of the repairs must be directly decided,) is conclusive in all other cases. In case of asserted forfeiture, the decree of acquittal or condemnation is conclusive, not only as to the property, but as to the point of forfeiture, or not. So it was adjudged in Rose v. Himely, 4 Cranch [8 U. S.] 241, and in Gelston v. Hoyt, 3 Wheat. [16 U. S.] 246. (2.) In the next place, the owner cannot found any claim against the master, but upon producing the proceedings and the decree in admiralty, for his loss and damage grew out of that. If so, the decree is evidence not merely of the fact of the decree of sale, but of the validity of the bottomry bond, and the necessity of the repairs. I do not say, that it is conclusive; that is not necessary to say in the point of view in which I am now looking to the case. It is sufficient if it be prima facie evidence in the case, in favor of the master. If it be the latter only, can he be a witness, thus to create evidence in his own favor in such a suit? I think not. But if it be evidence at all in such a suit, (and that it is cannot be doubted), then it seems to me, that it must be conclusive as to the very hinge of the controversy.

Now I find, that in another class of cases, far less imposing and clear, a very able admiralty judge, (the late Judge Peters), decided, that the master is not a competent witness against the seamen. I mean in cases of libels for seamen’s wages, brought by a suit in rem against the ship; or in per-sonam against the owner of the ship. He gave, as a reason, that the decree in rem would be evidence in favor of the master in a suit brought in personam against him by the seamen for the same wages. And he applied the same reasoning to a suit in per-sonam against the owner. In Malone v. Bell [Case No. 8,994], which seems to have been a suit in personam against the owner, the master was offered as a witness by the owner, and the learned judge said; “If a decree passes against the seamen in a procedure in rem, or against (it should be for, and is an obvious mistake) the owner, it may be given in evidence to repel a suit against the master.” And he accordingly rejected the master’s testimony. In Jones v. The Phoenix [Id. 7,489], the learned judge recognized the same doctrine in a suit in rem. In Atkyns v. Burrows [Id. 618], the same learned judge rejected the master as a competent witness for the owner, to prove that he had rightfully displaced the mate, (the libellant), from his station; and stated, that he was liable over in damages to the owner for his misconduct in discharging the mate, if improper. The same doctrine was admitted at the bar, and acted upon by the court, in Galloway v. Morris. 3 Yeates, 445. In Robinett v. The Exeter, 2 C. Rob. Adm. 261, the master, under the like circumstances, was rejected as a competent witness. These cases are certainly far less cogent in favor of the rejection of the testimony of the master, than the present In short, the whole merits of this controversy turn upon the master’s conduct. If this suit were upon a policy of insurance by the owner against the underwriters, and the defence were bar-ratry. or deviation by the master, he would not be a competent witness for the owner to establish the contrary fact. So, if a suit were brought against the owner, founded upon his misconduct or negligence, he would not be a. competent witness for the owner to disprove his negligence or misconduct.

I am aware of the cases cited at the bar at common law. One answer is, that they are all suits in personam, though I confess, that I do not well see how all of them can be supported on that distinction. The case of Evans v. Williams, 7 Term R. 481, note c, may possibly have turned upon another point; not the necessity of borrowing, but the misapplication of the money when borrowed. Milward v. Hallett, 2 Caines, 77, and Rocher v. Busher, 1 Starkie, 27, proceeded on the same ground as Evans v. Williams, and indeed was very similar in its circumstances. If these cases are not reconcilable with the principles which -I have already stated, I shall still adhere (at present) to the doctrine, that, in proceedings in rem turning upon the very point of the necessity of the repairs, the master is not a competent witness. At the same time, I am ready to confess, that I am not confident, that this opinion rests upon grounds so clear, that it ought not to yield to a settled course of practice; and I greatly fear, that there is no authority, which directly sustains it. Deposition rejected.