DAVIS v. ADAMS, 102 F. 520

MORROW, Circuit Judge, after stating the case as above, delivered the opinion of the court. A consideration of the evidence in the case fails, we think, to sustain the contention of the appellant, as expressed in his libel, that he was induced by false and fraudulent pretenses to go on board the ship Retriever, and was then forcibly detained there.

It appears from the record that the appellant, who had been a university student, signed shipping articles of the usual and regular form for a voyage on said vessel, and that he thereafter voluntarily went aboard the vessel and performed such duties as were assigned to him during the voyage to the port of destination, Port Hadlock, where he left the vessel. The next question that arises is, was the appellant justified in leaving' the ship? That is to say, under the tacts of this case, was he, in effect, discharged at Port Hadlock?

The circumstances of his leaving the vessel are fully set forth in the foregoing statement. The only testimony on the part of the appellee; in relation to this point is that of Capt. Hogan, who says, referring to the appellant, “He left the ship.” The appellant’s testimony, on the other hand, discloses such treatment, and such a chain of circumstances, that the court below found that he was justified in leaving the ship. This, we think, is correct.

The evidence shows that the majority of the crew were inexperienced seamen, whose services were accepted because of the inability of the master to secure men of experience.

It further appears that, shortly after his departure from the port of San Francisco, the master of the Retriever stated to one of the experienced seamen, in effect, that he intended to discharge; the new men at the port of destination, and “ship some sailors on the return voyage.” And, shortly before' reaching Port Hadlock, the master ordered the appellant and others to “leave the moment the; anchor drops.” It would appear that this intention of the master was carried into effect, as the shipping articles show that four new seamen were secured for the return voyage, and that the only members of the original crew retained were the two Baker brothers, who were acknowledged to be the only experienced seamen on the ship when it left Ban Francisco.

These circumstances, in connection with the acts of the master and mate when the ship reached Fort Hadlock, warranted the appellant in considering himself discharged. Upon making demand of the master at the time for the wages due him, he was not paid anything, nor has he been paid up to this time. The master did not tell him to remain on the ship and fulfill his contract, and that he would then receive the wages agreed upon, but said, according to the appellant’s testimony: “You have got your pay. You had your board,” — clearly indicating á desire on the part of the master to consider the transaction closed.

This testimony was uncontradicted by the appellee, and is, therefore, conclusive upon the matters to which it relates. The court below, after concluding that the libelant was justified in leaving the ship, stated that the cause of action set forth in the libel was for a tort in the nature of false imprisonment, and not upon the contract established by the evidence, and that this variance between the case proven and the cause of action set up in the libel is fatal to the appellant.

Under the strict rules of procedure of the common law, and the civil law, the doctrine of secundum al-legata et probata is conclusive, and upholds the arbitrary rule of proceeding as paramount to all other considerations. But the practice of the admiralty courts of the United States permits of more flexibility of procedure. And, in the endeavor to determine the case submitted to it upon equitable principles, the court will sometimes disregard mere technical rules and forms, and look only to the rules of natural justice;.

In this endeavor, the court uses its reason and discretion as a means of defeating chicanery, rectifying mistakes, supplying deficiencies, and even suggesting to tbe party tbe means of reconstructing Ms case, if necessary, without tbe loss of sucb real progress as be may have already made.

Tbe rule is well stated by Benedict, in bis work on tbe Jurisdiction and Practice of tbe American Admiralty, in tbe following comprehensive language :■ “It has always been the practice of the American admiralty courts to allow every facility to the parties to place fully before the court their whole case, and to enable the court to administer substantial justice between the parties without circuity of action, or turning round in court, and never to allow a party to overcome his adversary by the man traps and spring guns of covert chicanery, or by the surprises and technicalities of mere pleadings or practice.

Therefore, on proper cause shown, omissions and deficiencies in pleadings .may be supplied, and errors and mistakes in practice, in matters of substance, as well as of form, may be corrected at any stage of the proceedings, for the furtherance of justice.” Ben. Adm. (3d Ed.) § 483. This practice is confirmed by tbe United States supreme court in tbe case of The Gazelle, 128 U. S. 474, 487, 9 Sup. Ct. 142, 32 L.

Ed. 500, where tbe court uses tbe following language: “In the courts of admiralty of the United States, although the proofs of each party must substantially correspond to his allegations, so far as to prevent surprise, yet there are no technical rules of variance, or of departure in pleading, as at common law; and if a libelant propounds with distinctness the substantive facts upon which he relies, and prays, either, specially or generally, for appropriate relief (even if there is some inaccuracy in his statement of subordinate facts, or of the legal effect of the facts propounded), the court may award any relief which the law applicable to the case warrants.

Dupont De Nemours v. Vance, 19 How. 162, 15 L. Ed. 584; The Syracuse, 12 Wall. 167, 20 L. Ed. 382; Dexter v. Munroe, 2 Spr. 29, Fed. Cas. No. 3,863; The Cambridge, 2 Low. 21, Fed. Cas. No. 2,334.” In tbe case of Express Co. v. Platten, 36 C. C.

A. 46, 93 Fed. 936, tbe circuit court of appeals for tbe Fifth circuit sanctioned an amendment of tbe declaration after tbe conclusion of tbe plaintiff’s evidence to make it conform to tbe proof, bolding that tbe variance was not a fatal one, as there was no intimation that the defendant bad been misled in maintaining its defense upon tbe merits by this variance, or that it was prejudiced thereby in any respect. In the case at bar no assertion is made that tbe appellee was misled by tbe' character of case made by tbe appellant. Nor could tbe ap-pellee well make any claim to being surprised.

Tbe substantial controversy in this case is as to whether tbe appellant is entitled to recoyer from tbe appellee. This is clearly indicated in the libel, even though tbe libel asks for damages sustained for forced detention under false pretenses, while tbe proofs only show that tbe appellant is entitled to compensation for services under contract. Tbe court below, in its opinion, states, in effect, that tbe appellant has a meritorious case upon tbe facts proven, but denies bis right to recover because of tbe character of bis pleading.

This is a technical defect merely, and under tbe authorities above cited tbe court should not allow mere technicalities to overthrow tbe principles of equity, and defeat tbe ends of justice. It is assigned as error that after tbe court bad rendered its opinion tbe appellant moved tbe court to be permitted to amend bis libel to conform to tbe findings of tbe court.

This motion does not appear in the record, but the opinion of the court is peremptory in its conclusion that the libe’ will “have to be dismissed, as there is a fatal variance between the case proven and the canse of action alleged in the libel”; and the decree, following the language of the opinion, peremptorily dismisses the libel. The libel being in personam, and the facts proven tending to establish a cause of action which might be prosecuted in personam, there does not appear to be any good reason why the libelant should not be permitted to amend his libel to conform t.o the facts of the case.

Upon the subject of amendment, Benedict further says, in

section 483: “Where merits clearly appear on the record, it is the settled practice in admiralty not to dismiss the libel, but to allow the party to assert his rights in a new allegation. ⅜ » ⅞ Amendments may be made on application to the court at any time, as well after as before decree: and at any time before the Anal decree new counts or articles may be added, and new and supplemental allegations may be filed; and this may be done after the cause is in the appellate court, if the new allegations be confined to the original subject of controversy.” In Richmond v. Copper Co., 2 Low. 315, 20 Fed.

Cas. 738, the court, speaking of the power of courts of admiralty to allow amendments of pleading, said: “So far have they carried the power to allow amendments that it has been laid down by the highest authority that an action can never fail for want of proper allegations if merits clearly appear on the record. And several eases have been sent back from the supremo court with orders to permit amendments and then proceed to a decree. I am not speaking of amendments to introduce new facts, but those of either form or substance to conform to evidence.” The Adeline, 9 Cranch, 244, 3 L.

Ed. 719; The Caroline, 7 Cranch, 496, 3 L. Ed. 417; The Anne, 7 Cranch, 570, 3 L. Ed. 442; The Edward, 1 Wheat. 261, 4 L. Ed. 86; Newell v. Norton, 3 Wall. 257, 18 L. Ed 271 In Wiggins Ferry Co. v. Ohio & M. Ry. Co., 142 U. S. 396, 12 Sup. Ct. 188, 35 L. Ed. 1055, the circuit court, in a suit for the foreclosure of a mortgage upon the property of a railway company, had dismissed an intervening petition claiming compensation for the use and occupation by the company for a number of years of certain lands owned by the petitioner.

Tt appears that the original occupation and use of the premises was by the predecessor of the railway company under a contract with the petitioner, and that the railway company was not the formal assignee of its predecessor under the contract. It appears further that by reason of certain actions in the state court between the petitioner and the railway company the former, under a misapprehension as to its rights, deemed itself prevented from claiming under the contract as against the railway company. The intervention was accordingly prosecuted for rent for use and occupation.

The supreme court was, however, of the opinion that in a court; of equity the railway company would be considered as having adopted the contract between its predecessor and the petitioner, and had made Hie contract its own. Under this doctrine the petitioner was entitled to recover damages for a breach of tbe contract, but not upon the claim for rent for use and occupation of the premises.

In commenting upon this aspect of the case, the court said: “The most serious obstacle in the way' of doing substantial justice in this case arises from the attitude assumed by the petitioner throughout the entire proceedings in the circuit court, that it was entitled to recover the rental value of the premises in question.” .After referring to the facts in the case, the court says further: “In view of these facts, and of the persistency with which it [the petitioner] has pressed its claim for rent, and repudiated its right to recover under the contract, it would have no just cause of complaint if this court refused to permit a change of front, and affirmed the decree of the court below.

Did this disposition of the case involve anything less than a total and linal denial of any right whatever to compensation for the -use of this property, it might be proper to do this.

There is much to be said, however, in favor of the equity of petitioner’s claim to an equivalent for the benefit the defendants have received from the use of this property, and we do not consider it beyond the power of this court, upon broad principles of justice, to refer this cause back for such further proceedings as are permitted by the rules and practice of courts of equity.” The court then refers to a number of cases authorizing such a practice, and concludes with this statement of the rule applicable to the facts of that case: “A mistaken view of one’s rights or remedies should not be permitted wholly to defeat a claim founded upon principles of equity and justice, and, if the pleadings can be so amended as to admit proof of such claim, and such amendment does not introduce a new cause of action, though it may set up a new measure of damages, or work a real hardship to the party defendant, it is within the discretion even of the appellate court to permit such amendment to be made.” We are of the opinion that under the authority of these cases the appellant should have an opportunity to amend his libel to conform to the facts as established by the evidence, and upon such facts a judgment should be entered by the district court The judgment of the district court is therefore reversed, and the cause remanded for further proceedings in accordance with this opinion.