ACT OF GOD.
See ADMIRALTY, 12.
1. When a libel in admiralty is ordered to stand dismissed if not
amended within a time named, the prosecution of an appeal within
that time is a waiver of the right to amend, and the decree of dis-
missal takes effect immediately. The Three Friends, 1.
2. In admiralty cases, although the decree of the Circuit Court of Appeals
is made final in that court, this court may require any such case to be
certified for its review and determination, with the same power and
authority as if it had been brought here, directly, from the District or
Circuit Court; and although this power is not ordinarily to be exer-
cised, the circumstances justified the allowance of the writ in this
instance. Ib.
3. The forfeiture of a vessel proceeded against under Rev. Stat. § 5283,
does not depend upon the conviction of the person or persons charged
with doing the acts therein forbidden. Ib.
4. Demurrage is a proper element of damages, but it can only be allowed
when profits have either actually been lost, or may be reasonably sup-
posed to have been lost, and their amount is proven with reasonable
certainty. The Conqueror, 110.
5. The best evidence of damage suffered by detention is the sum for which
vessels of the same size and class can be chartered in the market; but
in the absence of such market value, the value of her use to her owner
in the business in which she was engaged at the time of the collision
is a proper basis for estimating damages for detention, and the books
of the owner showing her earnings about the time of her collision are
competent evidence of her probable earnings during the time of her
detention. Ib.
6. Testimony as to value may be properly received from witnesses who
are duly qualified as experts, but the jury, even if such testimony be
uncontradicted, may exercise their independent judgment; and there
is no rule of law which requires them to surrender their judgment, or
to give a controlling influence to the opinions of scientific witnesses.
Ib.
7. The testimony in this case falls far short of establishing such a case of
loss of profits as entitles the claimant to recover the large sum awarded
to him for the detention of his yacht. lb.
8. Whether the other charges were proper or not, was a matter for the
courts below to determine, in the exercise of their best judgment; and,
as the commissioner found that they were proper, and as both the
District Court and the Court of Appeals affirmed his action in that
regard, this court is not disposed to disturb their finding, although the
amount seems large. Ib.
9. Torts originating within the waters of a foreign power may be the sub-
jects of a suit in a domestic court. Panama Railroad v. Napier Ship-
ping Co., 280.
10. The facts in this case, as detailed in the statement of the case, do not
show a negligence on the part of the railroad company and its agents,
which makes it responsible to the shipping company for the damage
caused by the accident to the Stroma. Ib.
11. By printed contract the Oceanic steamship company agreed with the
libellants, in consideration of the passage money paid, to land them
with their luggage in New York. The contract ticket had attached to
it a "notice to passengers," printed in fine type, that the contract
was made subject to "conditions," among which were the following:
"3. Neither the Shipowner nor the Passage Broker or Agent is respon-
sible for loss of or injury to the Passenger or his luggage or personal
effects, or delay on the voyage, arising from steam, latent defects in the
Steamer, her machinery, gear or fittings, or from act of God, Queen's
enemies, perils of the sea or rivers, restraints of princes, rulers and
peoples, barratry or negligence in navigation, of the Steamer or of any
other vessel. 4. Neither the Shipowner nor the Passage Broker or
Agent is in any case liable for loss of or injury to or delay in delivery
of luggage or personal effects of the Passenger beyond the amount of
£10, unless the value of the same in excess of that sum be declared at or
before the issue of this Contract Ticket, and freight at current rates for
every kind of property (except pictures, statuary and valuables of any
description upon which one per cent will be charged) is paid." "7. All
questions arising on this Ticket shall be decided according to English
law, with reference to which this Contract is made." The ticket was
purchased for libellants by their father, was not examined by him, was
not examined by them, and neither he nor they knew of these conditions,
nor was their attention called to them. On the voyage the luggage of
libellants was flooded with water, which came in through a broken port-
hole, from causes described by the court in its Statement of the Case
and opinion, which are held not to be an "act of God," necessarily
exempting the company from liability. Held, (1) That by the rule in
England the "conditions" were notices, and nothing more; and that it
could not be held as matter of law that, whether they were regulations
for the conduct of business, or limitations upon common law obligations,
they constituted any part of the contract; (2) That the rule was not
otherwise in this country; (3) That on the evidence the court cannot
conclude that the libellants should be held bound, as a matter of fact,
by any of the alleged conditions or limitations, as they were not in-
cluded in the contract proper, in terms or by reference. The Majestic,
375.
12. The "act of God," which would exempt from liability under such
circumstances, is limited to causes in which no man has any agency
whatever. Ib.
13. The Umbria, a passenger steamer carrying the mails, coming out from
the harbor of New York at full speed about midday in a fog which
was at times dense and at times intermittent, collided with the Iberia
about eleven miles from the entrance to the harbor and sank her.
Held, that the Umbria was gravely at fault in the matter of speed, and
that this fault was not lessened by the fact that passenger steamers
carrying the mails run at full speed in a fog in order to pass the
foggy belt. The Umbria, 404.
14. Accepting, in the absence of other evidence, the testimony of the officers
and crew of the Iberia as conclusive, the court, while of opinion that it
would have been more prudent not to have changed her course in man-
ner as set forth in the Statement of the Case, is unwilling to say that
the doing so was necessarily a fault on her part. Ib.
15. The general consensus of opinion in this country is that in a fog a
steamer is bound to use only such precautions as will enable her to
stop in time to avoid a collision, after the approaching vessel comes
in sight, provided such approaching vessel is herself going at the
moderate speed required by law. Ib.
16. The damages should not have been divided by the court below.
majority of this court think that the Iberia was not in fault under the
circumstances set forth in the Statement of the Case, and the other mem-
bers of the court are of opinion that her fault, if any, did not contribute
to the collision. Ib.
17. In cases of total loss estimated profits of a charter party not yet entered
upon are always rejected; and there is nothing in the facts to take this
case out of the general rule. Ib.
CASES AFFIRMED OR FOLLOWED.
Bank of Aberdeen v. Chehalis County, 166 U. S. 440, affirmed, followed and
applied to the several facts in these respective cases. Bank of Com-
merce v. Seattle, 463.
The judgments in these cases are reversed on the authority of American
Publishing Co. v. Fisher, 166 U. S. 464; Springville v. Thomas, 707.
See DECISIONS WITHOUT OPINIONS; PROHIBITION;
HABEAS CORpus, 2;
PRACTICE;
TAX AND TAXATION, 1, 3, 15.
The case of Burgess v. Seligman, 107 U. S. 20, distinguished from this case.
Forsyth v. Hammond, 506.
Runkle v. United States, 122 U. S. 543, again questioned, as it has not been
approved in subsequent decisions. In re Chapman, 661.
1. So long as the transcript of the record in the Circuit Court is in the
Circuit Court of Appeals, the fact that a mandate from it has gone
down to the Circuit Court, affirming its decree, does not affect the
right of this court to issue a writ of certiorari to the Court of Appeals,
to bring the record here. The Conqueror, 110.
2. An application for a writ of certiorari to bring here for review a record
and judgment entered after the final adjournment of this court, made
at the next term and within a year after the original decree, is made
within time. Ib.
See JURISDICTION, B, 2, 7, 8, 9.
CLAIMS AGAINST THE UNITED STATES.
See INTERNAL REVENUE TAXES ;
COMMON CARRIER.
See RAILROAD, 8.
1. After a person had been convicted in a state court of murder, he sued
out a writ of error from the Supreme Court of the State. On the day
assigned for its hearing it appeared from affidavits that the accused
had escaped from jail, and was at that time a fugitive from justice.
The court thereupon ordered the writ of error dismissed, unless he
should within sixty days surrender himself or be recaptured, and
when that time passed without either happening, the writ was dis-
missed. He was afterwards recaptured, and resentenced to death,
whereupon he sued out this writ of error, assigning as error that the
dismissal of his writ of error by the Supreme Court was a denial of
due process of law. Held, that the dismissal of the writ of error by
the Supreme Court of the State was justified by the abandonment of
his case by the plaintiff in the writ. Allen v. Georgia, 138.
2. Act No. 225 of the legislature of Louisiana of March 15, 1855, exempt-
ing the hall of the Grand Lodge from state and parish taxation, "so
long as it is occupied as a Grand Lodge of the F. & A. Masons,” did
not constitute a contract between the State and the complainant, but
was a mere continuing gratuity which the legislature was at liberty
to terminate or withdraw at any time. Grand Lodge F. & A. Masons
v. New Orleans, 143.
3. If such a law be a mere offer of bounty it may be withdrawn at any
time, although the recipients may have incurred expense on the faith
of the offer. Ib.
4. The prohibitions of the Fourteenth Amendment refer to all the instru-
mentalities of the State, to its legislative, executive and judicial au-
thorities, and, therefore, whoever by virtue of public position under a
state government deprives another of any right protected by that
amendment against deprivation by the State, violates the constitu-
tional inhibition; and as he acts in the name and for the State, and
is clothed with the State's power, his act is that of the State. Chicago,
Burlington & Quincy Railroad Co. v. Chicago, 226.
5. The contention that the defendant has been deprived of property with-
out due process of law is not entirely met by the suggestion that he
had due notice of the proceedings for condemnation, appeared, and
was admitted to make defence. The judicial authorities of a State
may keep within the letter of the statute prescribing forms of pro-
cedure in the courts and give the parties interested the fullest oppor-
tunity to be heard, and yet it might be that their action would be
inconsistent with that amendment. Ib.
6. A judgment of a state court, even if authorized by statute, whereby
private property is taken for public use, without compensation made
or secured to the owner, is, upon principle and authority, wanting
in the due process of law required by the Fourteenth Amendment
of the Constitution of the United States. Ib.
7. The clause of the Seventh Amendment of the Constitution of the
United States declaring that "no fact tried by a jury shall be other-
wise reexamined in any court of the United States than according to
the rules of the common law" applies to cases coming to this court
from the highest courts of the States in which facts have been found
by a jury. Ib.
8. In a proceeding in a state court for the condemnation of private prop-
erty for public use, the court having jurisdiction of the subject-matter
and of the parties, the judgment ought not to be held in violation of
the due process of law enjoined by the Fourteenth Amendment, un-
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