STATEMENT BY MR. JUSTICE BROWN.
This was an appeal from a decree of the circuit court dismissing a libel, for damages sustained by the death of Ella Barton, against the steam tug Corsair and her owners. Suit was begun on April 5, 1888, by the filing of a libel by Edward S. Barton and Elizabeth Barton, his wife, against the steam tug Corsair, upon two distinct causes of action, viz., one for damages for the pains and suffering endured by Ella Barton, a daughter of the said Elizabeth Barton, in a collision caused by the said tug Corsair, on which the said Ella Barton was at the time a passenger, running at full speed into the right bank of the Mississippi river, on the 14th of April, 1887, at a point about 10 miles above Algiers, (which is opposite the city of New Orleans,) in consequence of which said tug filled with water and sank in 10 minutes. The other cause for action was for damages sustained by the said Elizabeth Barton in the loss of the life of her said daughter, alleged to have been caused by the negligence of the officers and crew of the tug.
The right to bring this libel was alleged to have accrued under article 2315 of the Revised Civil Code of Louisiana, as amended in 1884, which reads as follows:
'Article 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive, in case of death, in favor of the minor children or widow of the deceased or either of them, and, in default of these, in favor of the surviving father and mother, or either of them, for the space of one year from the death. The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife, as the case may be.'
By virtue of an attachment issued upon this libel, the vessel was arrested April 5, 1888, and was released upon a stipulation given by Samuel S. Brown and Harry Brown, by their duly authorized agent, 'claimants and owners of the steam tug Corsair.' Upon the same day they filed their claim as owners, averring that 'no other persons have any interest therein,' and subsequently filed exceptions to the libel, upon the ground that it set forth no cause of action cognizable by proceedings in rem in admiralty. Upon the hearing of these exceptions, the court, 'considering that no action in rem lies in this case,' 'ordered that the exception be sustained to the extent of releasing the tug Corsair from the seizure made under the admiralty warrant issued in the cause, the court being of the opinion that the statute of Louisiana creates no lien upon the vessel.' It was 'further ordered that libelants be allowed to amend their pleadings and proceed in personam against the owners of the vessel within ten days if they see fit.' On the following day an amended libel was filed against Samuel S. Brown and Harry Brown in personam, as 'owners of the steam tug Corsair,' adopting and reiterating all the allegations contained in the original libel, and praying for a citation against the owners, and for an attachment, in case they should not be found, against their goods and chattels, credits and effects, wherever found.
Processes of arrest and attachment, in the form provided for by Admiralty Rule 2, was allowed by the district judge, and returned served by the marshal, by seizing and taking into his possession the steam tug Corsair, and placing a keeper in charge, and taking another bond from W. H. Brown & Sons with a surety, conditioned that if 'said owners of the tug Corsair, William H. Brown & Sons, Samuel S. Brown, and Harry Brown, shall abide by all orders,' etc. On the same day a claim was filed by Samuel S. Brown and Harry Brown as sole owners of the tug Corsair, etc. Exceptions were filed to the amended libel by the claimants upon the ground that process had not been served upon them; that a warrant of arrest ought not to have issued, under Admiralty Rule 7, without affidavit or other proper proof showing the propriety thereof; that proceedings in rem and in personam could not be joined in the same libel; that 'there was no power in the court to allow the libelants to change this suit from a suit in rem to a suit in personam; and that the cause of action was barred by the prescription of one year, according to the law of the state.'
The cause was heard upon these exceptions, and the court 'being of the opinion that the suit and the amended libel is an action under a special statute of the state of Louisiana subjecting the owners to liability, whereas the action under the original libel sprang from the general liability of ships arrested as offending things under the admiralty law; that the amendment introduced a new party, and since, at the time of the amendment being made, more than a year had elapsed,'-the exception was allowed, and the suit dismissed.
On appeal to the circuit court, this decree was affirmed, and an appeal taken by the libelants to this court.
Richard De Gray, for appellants.
[Argument of Counsel from pages 338-341 intentionally omitted]
Joseph P. Hornor and Guy M. Hornor, for appellees.
Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.