THE RIO GRANDE, 90 U. S. 458 (1874)

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U.S. Supreme Court

The Rio Grande, 90 U.S. 23 Wall. 458 458 (1874)

The Rio Grande

90 U.S. (23 Wall.) 458


1. In a proceeding in rem, a valid seizure and actual control of the res by the marshal gives jurisdiction, and an improper removal of it from his custody, as by an order of court improvidently made, does not destroy the jurisdiction. Hence, where, on a libel in rem in the admiralty for repairs, a vessel had been seized, and, on hearing, the libel was dismissed, but on the same day an appeal to the circuit court was moved and allowed, a motion made on the next day by the claimants, and improvidently granted, to restore the vessel to them, does not divest the circuit court of its jurisdiction to hear the appeal, if within due time the appeal is perfected by giving bonds in the way prescribed by statute.

2. In such a case as that above described, a decree by the circuit court that the vessel was a foreign vessel -- an issue whether it was so or not having been raised in the pleadings -- if pleaded or put in evidence in the district and circuit courts of another circuit, to which the case finally gets on a new libel in rem by the original libellants against the vessel, which, on a subtraction of it from the first district and circuit, they have pursued into a new district and circuit, and seized anew, is conclusive of the foreign character of the vessel. chanrobles.com-red

Page 90 U. S. 459

In October, 1866, one Williams, a steamboat captain, purchased in New Orleans a steamboat called the Rio Grande, and took her to Mobile, Alabama. He there mortgaged her to Stewart and Ross, and employed her in running between certain towns at the upper and lower parts of Mobile Bay, he, Williams, and not the mortgagees having possession. While she was thus employed, Otis and others, in November, 1867, libeled her in the District Court for Alabama for repairs. The libels alleged that the steamer was owned by persons out of the State of Alabama, and belonged to some port in the Republic of Mexico, and that the repairs had been made on the credit of the vessel.

Williams as owner, and Ross and Stewart as mortgagees, intervened, denying that the repairs had been made on the credit of the vessel. They asserted, contrariwise, that the repairs had been made on the credit of Williams. They denied also that the vessel was a foreign vessel, or had been at any foreign port after her arrival at Mobile, asserting, contrariwise, that she was a domestic vessel engaged in running in the internal waters of the State of Alabama.

In point of fact, the evidence tended to show that the vessel had been originally a vessel of war (then named the Susanna), built for the rebel Confederacy; that she had been captured during the rebellion by a vessel of the government, sent into Philadelphia and there condemned and sold as prize to one Hazard, an American citizen, on the 13th of January, 1865; that Hazard sent her to Matamoras in Mexico under the command of one Tyler, and had given him power to make sale of her; that for commercial purposes, she was put under British colors with a temporary British registry which expired while she was at Matamoras; that while there she could leave the port in no other way than by obtaining a temporary Mexican registry, which was done by putting her in the name of Francisco Alcala, a citizen of Mexico residing in New Orleans, under which Tyler brought her to New Orleans; that all this was done for special chanrobles.com-red

Page 90 U. S. 460

purposes, but that the vessel all the while was in reality the property of an American citizen; that after Williams brought the vessel to Mobile he was not allowed to register her there as his own vessel, she being held under a Mexican registry; and finally, that the collector gave her a temporary permit and license, on the 12th day of June, 1867, to run in Mobile Bay and River, and referred to Washington for settlement the question whether she should be enrolled.

The court referred it to a master to determine whether there had been a credit to the vessel, and if so whether the vessel was a foreign one.

The master recapitulated leading facts as he conceived them on both sides, bearing on the national character in law of the vessel, some of which are above given -- adding that several of the witnesses swore that Captain Williams had told them repeatedly that the vessel was bound for their wages; that she was a foreign vessel, having Mexican owners; but that Williams himself swore that he never told the libellants that they had a lien, and never represented the vessel as being in point of fact owned by anyone but himself; though he had spoken of her Mexican registry.

The District Court for Alabama, on the whole case, was in favor of the claimants, that is to say, it considered that the debts set forth in the libels did not constitute a maritime lien so as to give the court jurisdiction, and dismissed the libel. This was on the 11th of May, 1868.

At the time that this decree of dismissal was rendered, and within a few minutes thereafter, a motion was made to the judge holding the court, that an appeal from the decree be allowed. The motion was granted, and an order was then and there made fixing the amount of the bonds to be given on the appeal.

On the next day -- that is to say, on the 12th of May -- the vessel being still in the custody of the marshal, owing to the fact of some clerical irregularity about the motion for the appeal, the proctor of Stewart and Ross asked for and obtained from the court an order of retention of the vessel to them, and the marshal having surrendered her to chanrobles.com-red

Page 90 U. S. 461

them accordingly they immediately carried her out to sea, and went off with her. The libellants, nevertheless, on the 14th and 15th of the month gave their appeal bonds in form, and they were duly accepted by the clerk.

On the case's being heard by the circuit court, that court reversed the decree of the district court and decreed for the libellants, holding thus both that the credit had been given to the vessel and that the vessel was to be regarded as a foreign one. But the vessel was no longer in the marshal's possession to answer. The res had departed.

However, she was soon heard of at New Orleans, and the libellants instantly sent, and, libeling her there, seized and held her anew. To their libel they appended the record of the proceedings in the District of Alabama.

The Ocean Towboat Company now intervened -- a company which, in September, 1869, had acquired the right of the old owner, Captain Williams, and of his mortgagees, Stewart and Ross, the right of whom had passed in some way to a Mrs. Price.

This company set up in answer to the new libel,

1st. That at the time the libellants took their alleged appeals from the decree of the District Court for Alabama dismissing their libels, as also at the time the circuit court for the state just named rendered the decree now invoked, the steamer Rio Grande, proceeded against in rem, was neither in the actual nor in the constructive possession of either the district or the circuit court, but that, on the contrary, the vessel had prior thereto been restored to the claimants, Ross and Stewart, by virtue of the decree of the district court.

2d. That from the circumstances of the case, the claimants could have nothing to urge against the libels in the said District Court of Alabama, their ownership of the Rio Grande having accrued long after the proceedings in that court had terminated, to-wit, in September, 1869, and outside of the jurisdiction of the said court, to-wit, in New Orleans.

3d. That all the proceedings had in said Circuit Court for chanrobles.com-red

Page 90 U. S. 462

Alabama, in the matter of the said alleged appeals, were ex parte, irregular, and in violation of the rules, usages, and laws of the admiralty, regulating the subject.

That as the libellants had failed to move that court to set aside the decree of restoration heretofore mentioned or to appeal from the same, and as by reason of their laches in this regard they had suffered the decree to be carried into effect by the marshal, they must be taken, notwithstanding their form and show of an appeal, as having acquiesced in the execution of the judgment of the district court dismissing their libels for want of jurisdiction.

4th. That the vessel was a domestic vessel, and, therefore, not liable to a lien for repairs done to her in her home port, whether credit was given to her or not.

The district court dismissed the libel filed there, as the District Court of Alabama had done by the libel filed in it. On appeal, however, the circuit court reversed -- as the Circuit Court of Alabama had done by the decree of the district court for that district -- the decree of the inferior court, and decreed in favor of the lien. The Ocean Towboat Company appealed.

It may be well here to say that the judiciary and subsequent acts enact, in regard to appeals in admiralty from the district court to the circuit court, that upon sufficient security and service of notice being given, within a certain time, to prosecute them with effect, the appeal shall be a supersedeas and stay execution. The security and notice, it seemed plain, had been duly given in this case.


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