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31, 1852, chap. 108, § 12 (10 Stat. at L. 99). A master was appointed and testimony was It bears the unusual form of a positive re- taken. At the hearing before him the quirement. "If the decree be against the United States put in the registro, or instruUnited States, an appeal shall be entered to ment of grant, which was in fact the original the Supreme Court of the United States." instrument, although the document of title This is a provision based on a specific policy under Spanish law is a copy delivered to the with regard to a certain class of claims. It grantee, while the registro is retained by the is not a matter of general principle, but a government. It appeared upon inspection special trust. See also act of May 23, 1828, that this instrument had been altered in the chap. 70, § 9 (4 Stat. at L. 284, 286); May date to January 10, from February 20, 1818, 26, 1824, chap. 173, § 9 (4 Stat. at L. 55). the true date making the grant void under It stands on the same ground of peculiar the treaty. Thereupon the petitioners asked importance that is the foundation of the leave to amend by adding an allegation that express grant of certain direct appeals in the grant was made on February 20, 1818, 5 of the act of 1891. Therefore, without but had been altered so that it purported to considering whether the case at bar falls have been made on January 10. The result within the other exceptions, we of of this amendment was that, whereas the opinion that the jurisdiction of this court ground of recovery previously had been the given by § 11 of the act of 1860 remains un- treaty, now it was that the act of 1860 had changed. given a right to recover in a case which the treaty put an end to in so many words. It abandoned the old ground, and that no longer could be relied upon if the amendment was allowed. The amendment, although filed, was not formally allowed before the hearing, and after the hearing the United States filed a suggestion that it had been treated as allowed, and that an order should be made nunc pro tunc that the amendment had been allowed. Thereupon the order suggested was made, and an additional answer was filed, setting up the treaty and the limitation in the statutes. We do not perceive that the United States, by its course, lost its right to maintain that the amendment set up a new cause of action, which was barred by the limitation fixed by the statutes on the matter, and it urges that defense. Union P. R. Co. v. Wyler, 158 U. S. 285, 298, 39 L. ed. 983, 991, 15 Sup. Ct. Rep. 877.
The petition was filed on March 3, 1875, by the heirs of John Forbes. It alleged a grant to John Forbes by the Captain General of Cuba, on January 10, 1818; that is, a grant made in time to escape the 8th article of the treaty with Spain, of February 22, 1819 [8 Stat. at L. 258], declaring all such grants made after January 24, 1818, void. On the other hand, it invoked the earlier part of the same article, by which all grants made by the King of Spain or by his lawful authorities, in the territories ceded to the United States, before January 24, were to be confirmed to the same extent as if the territories had not been sold. On December 14, 1878, an amendment was allowed, by which the grant was alleged to have been made to John Forbes & Company, a partnership consisting of Forbes, James Innerarity, and John Innerarity, and the Innerarity heirs were joined as parties. The rights of the United States, especially under the statute of limitations, were saved, and one question argued is whether this amended under an act of Congress was a bar to a ment could be allowed, when the time for bringing suit under the act of 1860 had expired. We shall not find it necessary to discuss this question, and shall assume, for the purposes of decision, that the amendment properly was allowed. United States v. Morant, 123 U. S. 335, 343, 31 L. ed. 171, 173, 8 Sup. Ct. Rep. 189. We shall assume that the proceeding is to establish the claim and appropriate the land to it, rather than to determine in detail the present holders of the claim. See Butler v. Goreley, 146 U. S. 308-310, 36 L. ed. 984, 985, 13 Sup. Ct. Rep. 84, 147 Mass. 8, 12, 16 N. E. 734; Pam-to-pee v. United States, 187 U. S. 371, 379, 380, 47 L. ed. 221, 225, 226, 23 Sup. Ct. Rep. 142.
It is unnecessary to trace all the vicissitudes of the case or to explain the delays. It is enough for our purposes to say that the parties reached an issue on May 29, 1903.
It has been decided that a decree upon a bill to have a patent declared void as forfeit
subsequent bill for the same purpose upon the different ground that the land was excepted from the grant as an Indian reservation. United States v. California & O. Land Co. 192 U. S. 355, 48 L. ed. 476, 24 Sup. Ct. Rep. 266. In that case it was intimated that in general a judgment is a bar to a second attempt to reach the same result by a different medium concludendi. But while such a decision might be persuasive on the question whether the cause of action is the same or different for the purposes of amendment, it has been decided that an amendment could not be allowed in a Missouri district, changing the ground of recovery from the common law to the common law as modified by a Kansas statute, which did away with the defense that the negligence complained of was that of a fellow servant, in actions against railroads.
Union P. R. Co. v. Wyler, 158 U. S. 285, 39 | that what was aimed at was the so-called T. ed. 983, 15 Sup. Ct. Rep. 877. In the present case the change is a change in the allegations of fact, and was most material, because it necessarily was followed by a direct facing about with regard to the law. We shall not dispose of the case on this ground, but we think it proper to say that the difficulties in the way of upholding this amendment under the last-mentioned decision have not been removed from our minds.
disputed territory lying west of the river Perdido, of which a short and clear account is to be found in United States v. Lynde, 11 Wall. 632, 20 L. ed. 230. In the light of that history and in view of the alternative ground of decision kept open in United States v. Morant, if there are no other possible distinctions between that case and this, we also shall leave it open whether the intimation in that case is right, or whether the same justice was more accurate when he said, even with regard to grants of land in the disputed territory, that the intention of the act was to validate them, "subject, of
treaty of 1819 and the supplementary declaration of the King of Spain finally annexed thereto." United States v. Lynde, 11 Wall. 632, 646, 647, 20 L. ed. 230, 234, 235. See McMicken v. United States, 97 U. S. 204, 208, 209, 24 L. ed. 947, 948, 949; United States v. Clamorgan, 101 U. S. 822, 825, 826, 25 L. ed. 836 ("which passed by the Louisiana purchase," in 25 L. ed. 836).
The fundamental questions in the case are whether the petitioners are within the act of 1860, and, if they are, whether they are not met by an exception to which we short-course, to the express exceptions of the ly shall refer. The former we shall not decidc. The statute by § 1 gave a petition to any persons "who claim any lands lying within the states of Florida, Louisiana, or Missouri, by virtue of grant. . . . emanating from any foreign government, bearing date prior to the cession to the United States of the territory out of which said states were formed, or during the period when any such government claimed sovereignty or had the actual possession of the district or territory in which the lands so claimed are situated." And somewhat similar language is used in § 11, allowing a proceeding in the district court. There, however, the words apply only in case of a complete grant or concession and separation from the mass of the public domain prior to the cession to the United States, "or where such title was created and perfected during the period while the foreign governments from which it emanated claimed sovereignty over, or had the actual possession of, such territory."
The petitioners rely upon the words of the act and upon United States v. Morant, 123 U. S. 335, 31 L. ed. 171, 8 Sup. Ct. Rep. 189. That case involved lands in Florida, lying, like the present, east of the river Perdido, of which the grant was made before January 24, 1818, but the survey was not completed until afterwards. The court, while intimating that such a grant well might have been held to be saved by the treaty, pointed out that the treaty was not signed until February 22, 1819, or possession taken until July 1822, and held that the case was within the act.
On the other hand, there must be, and it has been intimated that there are, some limits to the generality of the words of the statute. Certain large grants were expressly excepted from recognition by the King of Spain on his ratification of the treaty. The act was not intended to bring them to life. There is a strong argument that it no more was intended to validate all other grants expressly annulled, but rather
However it may be as to the question upon which we have touched, we are of opinion that this case "comes within the purview of the 3d section of this act" (of 1860) in the words of § 11, in which event the petition is not allowed to be maintained. The 3d section provides for a division of the claims into three classes, numbers one and two containing claims which ought to be confirmed, number three containing those which ought to be rejected, "Provided, that in no case shall such commissioners embrace in said classes number one and number two any claim which has been heretofore presented for confirmation before any board of commissioners, or other public officers acting under authority of Congress, and rejected as being fraudulent, or procured or maintained by fraudulent or improper means." We are of opinion that this proviso excludes the petitioners, for the reasons which we proceed to state.
Before the act of 1860 was passed, an act of May 23, 1828, chap. 70, § 6 (4 Stat. at L. 284, 285), authorized the presentation of certain land claims in Florida to a judge of the superior court of West Florida, subject to the restrictions of the act of May 26, 1824, chap. 173 (4 Stat. at L. 52). This claim was presented by the Inneraritys for themselves and the Forbes heirs, and after a trial the prayer for confirmation of the title was "refused and rejected" for the reasons set forth in an opinion which is in the record before us. The general ground was the unwarranted alteration of the registro, which we have mentioned above. The judge was careful not to implicate the public officer, remarking that it would be
unjust, when he was not a party and had no opportunity of defense. He also stated that it was not intended to implicate the parties in interest. But he pointed out that the inducement for an alteration of the registro a year or two after it was made, when the time became essential in consequence of the treaty, was obvious, and as plainly intimated that he considered the alteration fraudulent, as he could without saying so in words. He simply avoided finding by whom the alteration was made. He quoted the Curia Filipica for the invalidity of a public instrument which does not authenticate alterations by a salvado, and he concluded that the claimants had no legal grant prior to January 24, 1818. He relied upon the absence of a salvado, no doubt, but only as one of the grounds for deciding that the alterations were made without authority of law, and as leading to the further consequence that the instrument was void.
The United States set up this adjudication as a bar under the above-mentioned § 3. The petitioners make several replies. In the first place they contend that if a decision by a judge had been embraced within the proviso of § 3, he would not have been referred to in a slight, subordinate, and alternative way, under the general head of "other public officers acting under authority of Congress," after the specific mention of "any board of commissioners." The reason seems plain enough, however. The whole scheme of the earlier acts was that the claims should be presented to a board of commissioners. Act of May 8, 1822, chap. 129 (3 Stat. at L. 709); March 3, 1823, chap. 29 (3 Stat. at L. 754); February 8, 1827, chap. 9 (4 Stat. at L. 202). The right to present a claim to a judge came in only by way of a late supplement in a limited number of cases. Act of May 23, 1828, chap. 70, § 6 (4 Stat. at L. 284, 285). The judges referred to were judges of a territorial court established by the acts of March 30, 1822, chap. 13, § 6 (3 Stat. at L. 654), and March 3, 1823, chap. 28, § 7 (3 Stat. at L. 750). They were not district judges, and there was a certain ambiguity in their standing which was under discussion when the act of 1828 was passed, and has been discussed since. American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 7 L. ed. 243; McAllister v. United States, 141 U. S. 174, 35 L. ed. 693, 11 Sup. Ct. Rep. 949. It was most natural to use cautious words, but there was no other public officer which the act of 1860 is likely to have had in mind. No further argument seems necessary to justify the conclusion that these judges were embraced within the actual, as well as the literal, meaning of the words used.
In the next place, it is said the claim was not found to be fraudulent or maintained by fraudulent or improper means. With regard to this we think that we have said enough already. The claim was found to be based upon an alteration, the motive for which was pointed out, and to be maintained by a reliance upon the unlawful alteration. The main contention is that the judge had no jurisdiction to reject the claim on that ground, because, the moment that he decided the true date of the grant to be after January 24, he fell within a proviso of the act of May 23, 1828, chap. 70 § 6 (4 Stat. at L. 285), which excluded him from taking cognizance of any claims annulled by the treaty. United States v. Baca, 184 U. S. 653, 46 L. ed. 733, 22 Sup. Ct. Rep. 541. It appears to us that this argument rests on too narrow a view of the statutes and of what was done. The claim as presented was within the judge's jurisdiction. He had authority to inquire whether it was so in fact. The document produced by the petitioner showed a claim which he could decide upon the merits, for the copy did not disclose the alteration. When the registro was put in it appeared that the date had been altered. He still had authority to decide whether the alteration was valid. He decided that it was unlawfully and fraudulently made. It would be an extraordinary refinement to say that he had authority to decide that it was made unlawfully, but not to decide why it was unlawful. The illegality did not follow from the mere fact of alteration. Had there been a salvado it might have been valid. He could not come to his conclusion without some definite ground.
Moreover, while it is true that the limitation in § 6 of the act of 1828 in form provides that the act shall not be taken to authorize the judge to take cognizance of any claim annulled by the treaty, etc., in substance it is addressed to maintaining the invalidity of the excluded claims. The jurisdiction of the judge was no different from what it would have been if the proviso had declared that nothing in the act should be taken to validate or to authorize the recognition of any claim which the treaty declared void. We are of opinion that the judge had authority to find the claim to be fraudulent and maintained by improper means.
The decree "rejected" the claim upon the grounds which we have stated, and an opinion was expressed that the grant was not merely annulled by the treaty, but void under Spanish law. But the objection remains to be answered that even if "reject" was a proper term for the decree in such a case, and even if the jurisdiction to reject included authority to find that the claim
had been saved from the treaty by fraud, still there was no jurisdiction to pass upon its validity apart from the treaty, and that, therefore, the claim now may be set up since the act of 1860 has brought it to life. The proviso in § 3 of the act of 1860, it may be said, refers to claims rejected on their merits, when all the merits as admitted by that act were open. We are of opinion that there is no reason for thus artificially narrowing words that on their face include all cases. They include as well any claim which previously had been rejected as fraudulent or or maintained by improper means, when the fraud addressed itself to avoiding the treaty, as when it related to some other fact material to the validity of the claim at the time when it was created. The fraud went to the merits of the case. For, by the meaning of the act of 1828, as just explained, the date of the grant was as material to the validity of the claim as the authority of the Captain General of Cuba to convey on behalf of the King. Therefore it is our opinion that the claim is barred by the decree, even if it could escape from the other objections upon which we have found it unnecessary to pass. Decree reversed.
Mr. Justice Holmes delivered the opinion of the court:
This case comes before us on a certificate from the circuit court of appeals. It is a libel brought by the owners of a steamer against the members of the Virginia Pilot Association, and seeks to hold them all liable for the alleged negligence of Guy, one of their number. For the proceedings in the district court see 127 Fed. 228, 135 Fed. 429. The negligence occurred when Guy was acting as pilot of the steamer and led to a collision, for which the owners of steamer paid damages to the other vessel in order to end a suit. The questions certified are (1) whether the members of the association are partners on the facts set forth; (2) whether, if partners, they are liable to owners of piloted vessels for the negligence of each other; (3) whether, if not technically partners, they nevertheless are so liable.
The facts appear in the third article of the libel, which was excepted to, and in answers to interrogatories. They are as follows: The defendants are a voluntary, unincorporated association. By their agreement they take turns in boarding vessels required by law to take a pilot, and the fees, which otherwise would be paid to the pilot that boarded the vessel, are paid, except in cases of national vessels and disputed bills, to the association upon bills made out by
FRANK W. GUY, W. T. Stanworth, et al. it, and go into a common fund, from which
JOHN A. DONALD.
Pilots-liability for each other's negligence. Members of a voluntary, unincorporated pilot association, which, under the state laws, could neither select nor discharge its members, nor control or direct them in the performance of their duties as licensed pilots, whether technically partners or not, are not liable to the owners of piloted vessels for the negligence of each other because, instead of taking their fees as they earn them, such fees go into a common fund, and, after deducting expenses, are distributed to the several members according to the number of days they respectively were on the active list.*
the association pays the expenses of the business, including office rent. At the time of the accident the net profits were divided according to the number of days the several pilots were upon the active list. The constitution and by-laws of the association are exhibited and will be referred to. It is proper to add here a few words as to the Virginia law. By the Code of 1887 a board of commissioners is instituted to examine persons applying for branches as pilots; and the commissioners are given "full authority to make such rules as they may think necessary for the proper government and regulation of pilots licensed by them." § 1955. There are details as to the qualification and classification of pilots and their duties, including a requirement as to boats, of the
Argued November 8, 1906. Decided Decem- pilot "or the company to which he belongs."
ber 3, 1906.
A CERTIFICATE from the United States Circuit Court of Appeals for the Fourth Circuit, presenting questions as to the liability of members of a pilot association for the negligence of each other. Answered in the negative.
The facts are stated in the opinion. Messrs. D. Tucker Brooke and R. Marshall for Guy et al.
Mr. Robert M. Hughes for Donald.
§ 1960. Acting as pilot without authority is punished. § 1963. Certain vessels are required to take the first pilot that offers his services or to pay full pilotage. § 1965. See § 1976. The amount of pilotage is fixed. § 1969. A personal liability is imposed for the amount, and it is to be noticed that it is a liability to the individual pilot employed. § 1978. The pilot's right to collect C. his account is fortified by a penalty. § 1979. The board of commissioners is authorized to decide any controversy between licensed
*Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pilots, § 19.
pilots or between a pilot and the master, | but who would have prevented it if they owner, or consignee of a vessel, and to enter judgment, which, if for money, may be collected by a sheriff, etc. § 1980. But a judgment of suspension against a pilot is limited in general to between one and twelve months. § 1981. And the board cannot decide upon the liability of "a pilot" to any party injured by his negligence. § 1982. Pilots demanding or receiving more or less than their lawful fees are subjected to a forfeiture. § 1985. And certain further duties are prescribed.
could, and who have done what they could to prevent it, so far as the qualifications and employment of the pilot were not taken out of their hands by law. Why they should have to pay is the problem recurring through agency in all its forms, and whatever may be thought of some of the reasons that have been offered when the obligation has been imposed, it is certain that something more and better must be found than that the defendants divide the pay for the work that they have done, or that it is a convenience to the party aggrieved to discover a full purse to which to resort.
The rules of the board of commissioners provide for the appointment by them of a supervisory board from the pilot association, Whether the ground be policy or trato report to the president of the board of dition, such a liability is imposed, as we all commissioners all cases of insubordination, know, in many cases. When a man is carrybreach of rules, etc., or any misdemeanor, ing on business in his private interest and afloat or on shore, on the part of any mem-intrusts a part of the work to another, the ber of the association. A pilot desiring to world has agreed to make him answer for go off duty for five days or longer is re- that other as if he had done the work himquired to apply to the board of com- self. But there is always a limitation. It missioners. Suspensions, by whomsoever is true that he is not excused by care in ordered, are to be reported within twenty-selection or orders sufficient to secure right four hours to the president of the board, conduct, if obeyed. But when he could not and are to be acted upon by the board. All pilots are required to look out for their turns, and each pilot is held responsible for whatever turn he may hold upon the list, officers being prohibited from having anything to do with the swapping of turns. It will be seen that the rules of the board, made under the authority of this statute, recognize the association, as does the Code, more vaguely, in § 1960, quoted above. The rules also recognize the substitution of turns for the free competition of which there are traces in the Code. The rules tacitly assume that every pilot is a member of the association. All punishment and suspension is in the hands of the board, except, as may be added here, that the by-laws of the association impose a fine of $10 for a first violation of the rules of the association, of $20 for a second offense, and provide that a third shall be reported to the board of pilot commissioners. Thus substantially the whole government of the association is in the hands of the board.
The questions certified very properly go beyond the question of the existence of a partnership. As long as the matter to be considered is debated in artificial terms there is a danger of being led by a technical definition to apply a certain name, and then to deduce consequences which have no relation to the grounds on which the name was applied. The substance of the case is this: A man who is responsible before the law is alleged to have committed a tort. It is proposed to make other men pay for it who not only have not commanded it or any act of which it was the natural consequence,
select, could not control, and could not discharge, the guilty man, he does not answer for his torts. As a familiar instance, the servants of an independent contractor are not the servants of the contractee. The liability of a vessel when in the hands of a compulsory pilot is not put upon the ground that the pilot is the agent or servant of the owners, and therefore does not bear upon the question. The China (The China v. Walsh) 7 Wall. 53, 19 L. ed. 67. Now, we are not curious to inquire what form of test shall be accepted as the most profound for the existence of a partnership when considering liability for debts; but it is plain that when we are considering a liability for torts under the circumstances supposed no stricter or different criterion ought to be applied than in those cases where agency is the admitted ground. The rule, however stated, presses to the verge of general principles of liability. It must not be pressed beyond the point for which we can find a rational support.
So far as appears, the Virginia Pilot Association had no one of the three powers which we have mentioned. Seemingly it could neither select nor discharge its members, as certainly it could not control or direct them in the performance of their duties as pilots. To take the last first, it is quite plain that the Virginia Code contemplates a bond of mutual personal liability between the master of a vessel and the pilot on board. If we imagine such a pilot performing his duties within sight of the assembled association, he still would be sole master of his course. If all of his fellows passed a vote on the spot that he