497 itors with preferences that exhaust the fund | charge of a debt held by a citizen of another assigned. state than that where the court is sitting,, But it is said, in answer to this view of who does not appear and take part, or is not the subject, that there is a clause in the in- otherwise brought within the jurisdiction of strument now before us directing that, if the court granting the discharge. In other there shall be a surplus after the payment in words, whatever the court before whom such full of all the creditors who shall release the proceedings are had may do with regard to assignors, it shall be paid over to the latter. the disposition of the property of the debtor, There are two answers to this. If that clause it has no power to release him from the oblior provision is unlawful, and violates the gation of a contract which he owes to a resilaws of the state of Minnesota, or the consti- dent of another state who is not personally tution of the United States, it can be rejected, subjected to the jurisdiction of the court. and the remainder of the assignment permit- Any one who will take the trouble to examine ted to stand. The statute under which the all these cases will perceive that the objecassignment was made does not require that tion to the extraterritorial operation of a state such surplus shall be paid over to the debt-insolvent law is that it cannot, like the bankThe supreme court of that state has held that such a fund may be arrested when proper proceedings are had before it gets to the debtor's hands, and, certainly, wherever that surplus may be found, and however it may be got at by any of the processes of law, it is liable to be taken by the non-releasing creditor. He can pursue all the remedies which the law gives him, as against any fund, property, chose in action, or estate liable to the payment of his demand. ors. rupt law passed by congress under its constitutional grant of power, release all debtors from the obligation of the debt. The authority to deal with the property of the debtor within the state, so far as it does not impair the obligation of contracts, is conceded; but the power to release him, which is one of the usual elements of all bankrupt laws, does not belong to the legislature, where the creditor is not within the control of the court. The Minnesota statute makes no provision for any such release. The creditor who became such after the statute was passed cannot complain that the obligation of his contract is impaired, because the law was a part of the contract at the time he made it; nor can he say that his contract is destroyed, and the debtor discharged from it, which is of the essence of a bankrupt law, because no such decree can be made by the court, neither does the law have any such effect, though the obligation of the debtor to pay may be canceled or discharged by the voluntary act of the creditor who makes such release, for a consideration which to him seems to be sufficient. But it is said that this statute of Minnesota is void under the principles laid down by this court in the cases of Sturges v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 12 Wheat. 213; Baldwin v. Hale, 1 Wall. 223; and Gilman v. Lockwood, 4 Wall. 409. The proposition lying at the foundation of all these decisions is that a statute of a state, being without force in any other state, cannot discharge a debtor from a debt held by a citizen of such other state. One of the best statements of the doctrine is found in the following language used in the latest case on the subject,-that of Gilman v. Lockwood, supra: "State legislatures may pass insolvent laws, provided there be no act The other assignment of error, pressed by of congress establishing a uniform system of counsel for plaintiff in error, that the probankruptcy conflicting with their provisions, ceedings in the circuit court of the United and provided that the law itself be so framed States, in relation to the dissolution of the that it does not impair the obligation of con-attachment, and Bennett's becoming a party tracts. Certificates of discharge, however, granted under such a law, cannot be pleaded in bar of an action brought by a citizen of another state in the courts of the United States, or of any other state than that where the discharge was obtained, unless it appear that the plaintiff proved his debt against the defendant's estate in insolvency, or in some manner became a party to the proceedings. Insolvent laws of one state cannot discharge the contracts of citizens of other states, because such laws have no extraterritorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other state voluntarily becomes a party to the proceeding, has no jurisdiction of the cause." to the suit there pending, are an estoppel of the claim now set up by him, is not, in our opinion, entitled to much consideration. The order of the court in relation to that matter, above quoted, merely gave leave to the assignee to become a party to that suit, at the same time overruling the other branch of the motion, asking for a dissolution of the attachment. It does not appear by the record. that Bennett ever did make himself a party to that suit, and of course could be bound by no judgment rendered in regard to it. Even if he can be supposed to be a party, so far as the motion to dissolve the attachment is concerned, we concur with the supreme court of the state of Minnesota (Bennett v. Denny, 33 Minn. 530, 24 N. W. Rep. 193,) in holding This is conceived to be a clear and accurate that "it was merely a decision of a motion or presentation of the doctrine of the preceding summary application, which is not to be recases, and it will be seen that the substance garded in the light of res adjudicata, or as of the restrictive principle goes no further so far conclusive upon the parties as to prethan to prohibit, or to make invalid, the dis-vent their drawing the same matters in ques tion again in the more regular form of an ac-[attachment, levy, or garnishment, in which tion. "" For this they cite the decisions of case any such attachment, levy, or garnishtheir own court. In aid of this view of the ment shall inure to the benefit of all the said subject, we may also refer to the opinion of creditors, and may be enforced by the asJudge NELSON in deciding the motion to dis-signee by his substitution in the action as solve. After reciting the circumstances un- such, in the same manner as the plaintiff der which that motion was made, he said: might have enforced the same had such as"It is by virtue of this seizure that the mar-signment not been made: provided, however, shal holds the property. On this statement that this section shall not apply to cases of the facts, I shall not decide on this motion where an execution has been issued upon a who has the better title and right to the pos- judgment in an action where the complaint session of the property taken. * * *The has been filed in the office of the clerk of the writ of attachment properly issued in this court twenty days prior to the entry of the suit against the debtor, and, if the marshal judgment. "This statute did not operate to has seized the property which belonged to dissolve the attachment which issued from Bennett, he is certainly liable in an action of the circuit court of the United States in fatrespass for the damages thereby sustained." vor of Lapp & Flershem; for it applies only Lapp v. Van Norman, 19 Fed. Rep. 406. See to writs or process issued out of "a court of Buck v. Colbath, 3 Wall. 334. It is there-record of this state, "-that is, a court of recfore clear that the order of the judge refusing ord established under the constitution and to dissolve the attachment was not predicated upon any decision as to the right of the possession of the property, but that he intended to leave the marshal liable to the present action, if the facts justified the claim of the assignee. Apart from this, we are not at all satisfied that the effect of this action of the circuit court on the suit afterwards brought by the assignee in the state court is a question of federal cognizance. Its decision, as shown by the opinion of Judge NELSON, was not based upon any law or principle of federal jurisprudence, and must have rested upon the general rules which govern the conclusiveness of former judicial proceedings when called in question in another case. The judgment of the supreme court of Minnesota is affirmed. laws of Minnesota. If intended to embrace writs of attachment from a court of the United States, so as to vacate levies under such writs, without an order to that effect by the court under whose authority they were made, it would be inoperative. No state enactment can, proprio vigore, work the dissolution of an attachment issuing from a federal court. A different construction is inadmissible upon other grounds. By the tenth section of the statute it is provided that "no creditor of any insolvent debtor shall receive any benefit under the provisions of this act, or any payment of any share of the proceeds of the debtor's estate, unless he shall have first filed with the clerk of the district court, in consideration of the benefits of the provisions of this act, a release to the debtor of all claims other than such as may *HARLAN, J., (dissenting.) I cannot as- be paid under the provisions of this act, for sent to a judgment of affirmance in this case. the benefit of such debtor, and thereupon the 1. The statute of Minnesota of 1881, upon court or judge may direct that judgment be which the defendant in error rests his suit entered discharging such debtor from all for damages, provides, among other things: claims or debts held by creditors who shall "Whenever the property of any debtor is at- have filed such releases." If this act is to tached or levied upon by any officer, by vir- control the rights of the parties in the prestue of any writ or process issued out of a ent case, the result is that the prior right accourt of record of this state in favor of any quired by Lapp & Flershem under their suit creditor, or garnishment made against any and attachment in the federal court is taken debtor, such debtor may, within ten days from them, and they are denied all interest after the levying of such attachment, process, in the proceeds, as well of the property ator garnishment shall have been made, make tached for their benefit as of the property asan assignment of all his property and estate, signed to Bennett, unless they give a release not exempt by law, for the equal benefit of in full to their debtors. Such a result is not, all his creditors, in proportion to their re- in my judgment, consistent with the rights spective valid claims, who shall file releases secured by the constitution of the United of their debts and claims against such credit-States to the plaintiffs in error. ors as hereinafter provided; * * * and, 2. There is some misapprehension as to the upon the making of such assignment, all at-time when the assignment to Bennett was tachments, levy, or garnishment so made shall be dissolved upon the appointment and qualification of an assignee or receiver; and thereupon the officers shall deliver the property attached or levied upon to such assignee or receiver, unless the assignee shall, within five days after such assignment, file in the office of the clerk of the court where such attachment was issued or judgment was rendered a notice of his intention to retain such actually made. But it is clear from the evidence that the marshal levied before he acquired any right in the property attached by that officer. In the brief filed in behalf of Bennett in the circuit court, in support of his application to be made a party in the suit of Lapp & Flershem against Van Norman & Bro., in order that he might assert his claim, as assignee, to the goods seized by the marshal, and in support also of his motion to dissolve 009. ⚫502 the attachment sued out by Lapp & Flershem, | the property until it had adjudicated Ben-which brief is part of the record before us, nett's claim. If Bennett had intervened in -it is said: "The court will bear in mind the suit in the federal court, and if that that the assignment was not made and filed court had dismissed his intervention, or aduntil some three hours after the levy of the judged his claim to be subordinate to that of attachment by the plaintiffs, [Lapp & Flersh- Lapp & Flershem under their attachment, he em.]" And in the opinion of the supreme could have prosecuted an appeal to this court. court of Minnesota in this case it is said: Gumbel v. Pitkin, 113 U. S. 545, 5 Sup. Ct "It seems that prior to the making of the Rep. 616. A marshal who levies an attachassignment in question the defendant, as ment from a circuit court of the United United States marshal, by virtue of process States, in a suit of which it has complete juof the circuit court, had attached the assigned risdiction, upon goods subject at the time to property." As the federal court had juris- such attachment, is not, I think, liable in diction of the suit in which was issued the trover and conversion for their value, upon attachment that came to the hands of the his refusal, in the absence of any direction of marshal, the goods seized by the latter were, the court under whose writ they were seized, from the moment of such seizure, in the cus- to surrender possession; especially to one tody of that court, so far, at least, as to pre- whose right, if any, accrued subsequently to vent the possession of the marshal from be- his levy. To hold him, under such circuming disturbed by an action of replevin in stances, liable to a suit in a state court for behalf of Bennett. Freeman v Howe, 24 damages, is to invite those conflicts between How. 450; Buck v. Colbath, 3 Wall. 334; courts of different jurisdictions and their reKrippendorf v. Hyde, 110 U. S. 276, 4 Sup. spective officers which the former decisions of Ct. Rep. 27; Covell v. Heyman, 111 U S. this court have sought to prevent. 176, 4 Sup. Ct. Rep. 355; Gumbel v. Pitäin, 124 U. S. 145, 8 Sup. Ct. Rep. 379. It was said in Lammon v. Feusier, 111 U. S. 19, 4 Sup. Ct. Rep. 286, that even where a marshal takes the property of a person not named in the writ, "the property is in his official custody, and under the control of the court whose officer he is, and whose writ he is executing;" and that "according to the decisions of this court the rightful owner cannot maintain an action of replevin against him, nor recover the property specifically in any way, except in the court from which the writ is issued." (128 U. S. 474) THE GAZELLE. (November 26, 1888.) 1. SHIPPING-CHARTER-PARTY-CONSTRUCTION SAFE PORT. Under a charter-party for a voyage "to a safe, direct Norwegian or Danish port, or as near thereto as she can safely get, and always lay and discharge afloat," the vessel cannot be ordered to a port situated in an inlet, having a bar across its mouth, which it is impossible for the vessel to cross, either in ballast or with cargo, and where the only anchorage outside the bar is not reasonably safe as an anchorage, or a place to lie and discharge. 2. SAME-APPEAL-REVIEW-FINDINGS. A positive finding that the port to which the vessel was ordered was such a port, is not controlled by recitals of evidence that large English steamers habitually, and several American vessels, had in fact discharged their cargoes at anchorage without disaster. 3. SAME-CUSTOM AND USAGE. A custom, found by the circuit court to exist in the Atlantic ports of the United States, of ordering vessels similarly chartered to any safe port within the range, where commerce is carried on, whether the vessel could get into it or not, provided there was an anchorage, customarily used and reasonably safe for discharge, has no bearing on the case, as the anchorage near this port was not found to be reasonably safe. REVIEW ERRORS NOT AP 3. If Bennett's right to the possession of the property covered by the assignment to him had accrued before the marshal made his levy, the latter might have been liable in trespass, or in trover and conversion, in any court of competent jurisdiction as to parties. Here, however, the attachment which came to the hands of the marshal was lawfully issued, and was rightfully levied. That is conceded on all sides. Was it for that officer to pass upon the validity of a claim which accrued, if at all, subsequently to his taking the goods into his possession? His writ commanded him to take the goods of Van Norman & Bro., and he did so. He was also commanded to safely keep them to satisfy the demand of Lapp & Flershem. Could he be discharged from his obligation to so keep them, except by an order of the court under whose direction he had proceeded? Indeed, 4. SAME-FINDINGS if he had surrendered possession, without leave first obtained from the federal court, he could have been proceeded against for contempt in having parted with the possession of goods in the custody of that court. Bennett asked leave to intervene in the suit in the federal court, and such leave was granted; but he declined to exercise the privilege accorded to him. He moved, at the same time, to dissolve the attachment, and that motion was denied; the federal court thereby plainly indicating to the marshal a purpose to hold 5. PARENT. Nor can it be assigned for error that the cir cuit court failed to make a distinct finding upon the issue that, by the custom of trade between the Atlantic ports and Denmark, the port to which the vessel was ordered, was recognized as being within the charter-party; the record not showing any proof of such custom, and the custom of recognizing as safe a port which was not in fact reasonably safe, being incompetent to directly contradict the charter-party. SAME - BREACH OF CHARTER MEASURE OF Upon the refusal of the charterer to order the vessel to a safe port, the master filed successive 503 $475 6. SAME-ADMIRALTY-PRACTICE-PLEADING AND Appeal from the Circuit Court of the United States for the District of Maryland. libels for demurrage, until a cross-libel was filed | sels of deeper draught than the Gazelle are for breach of the charter-party, when the mas- habitually dispatched under charter-parties ter proceeded to unload. The circuit court found that the time required to make the voyage was of like terms with that in controversy; and about the same as elapsed before another char- further alleging that, by the established ter was obtained, which was done as soon as pos- and uniform usage and custom of trade besible, and that the expenses of the vessel in port tween Baltimore and other Atlantic ports of were not less than on the voyage. Held, that the measure of damages was the freight that the the United States, and ports of Norway and vessel would have earned, less the cost of earn- Denmark, the port of Aalborg is recognized ing it. as being, and understood to be, a safe, direct port of Denmark, within the terms and provisions of such a charter-party, denying that there is no safe place or anchorage outside that port where the vessel could always lay afloat and discharge her cargo, or that there had been any detention of the vessel by their default; and alleging that the entire delay and the damages, if any, resulting therefrom, were due solely to the default of the master. On August 20th, the charterers filed a cross-libel against the vessel, alleging *This was an appeal from a decree in ad- the same matters as in their answers to the miralty on cross-libels for breaches of a char- other libels, and claiming $8,000 damages for ter-party of the Norwegian bark Gazelle, by|breach of the charter-party, and general rewhich, on June 16, 1881, Herman Brun, her lief. The master filed an answer to the crossmaster, chartered her to Meissner, Acker-libel, presenting the same issues as the other mann & Co. for a voyage from Baltimore libels and answers. "to a safe, direct Norwegian or Danish port, The district court sustained the libels of as ordered on signing bills of lading, or as the master, and dismissed that of the charnear thereunto as she can safely get, and al- terers, and entered decrees accordingly. 11 ways lay and discharge afloat," on the terms, Fed. Rep. 429. The charterers appealed to among others, that the charterers should fur- the circuit court, which consolidated the nish a full cargo of refined petroleum in bar- cases, and made the following findings of rels, and pay freight of three shillings and fact: "On June 16, 1881, the bark Gazelle, three pence sterling a barrel; that the vessel a sailing vessel of 571 tons burden, then in should be loaded by July 6th; and that demur- the port of Baltimore, Md., was chartered by rage of eleven pounds sterling should be al- Herman Brun, her master, to Meissner, Acklowed for each day's detention by their default. ermann & Co., of New York, for a voyage, On July 11th, and August 1st, 9th, and 22d, as stated in the charter-party, 'to a safe, dithe master filed successive libels against the rect Norwegian or Danish port, as ordered cargo, setting forth the making and the prin- on signing bills of lading, or as near therecipal provisions of the charter-party, and an- unto as she can safely get, and always lay and nexing a copy thereof; and further alleging discharge afloat.' Exhibit accompanying the that the vessel was duly loaded by July 6th, libel is the said charter. Cargo of 3,131 barand on that day the charterers tendered to rels of refined petroleum was put on board the master for signature bills of lading or- by charterers at Baltimore, and on July 6, dering her to the port of Aalborg, in Den- 1881, the charterers tendered the master bills mark, as the port of discharge, "to be landed of lading ordering the vessel to the port of at Aalborg, or as near thereto as the vessel Aalborg, on the eastern coast of Denmark. can safely get;" that the master refused to The master refused to sign the bills of lading, sign the bills of lading, for the reason that on the ground, as stated by him to the charAalborg was not a safe port, and it was im- terers, that Aalborg was not a safe port for possible for a vessel to enter it with cargo, a vessel of the tonnage of the Gazelle, and or to land her cargo at the port, or at any that no vessel of such tonnage could enter anchorage or landing place near it, so as*al- the port, even in ballast, and that there was ways to lay and discharge afloat; and that he no anchorage near the port where he could expressed to the charterers his willingness to with safety lay and discharge. The charterperform the charter, and requested them to ers refused to order the vessel to any other name a safe port, but they refused. Each of port. Conversations and correspondence took those libels claimed demurrage according to place between the master and charterers and the charter, amounting in all to $2,070.20; their agents. In all these the master insisted the fourth libel claimed also $400 for the ex- that he could take the cargo to the port of penses of taking out most of the cargo; and Aarhus, which he said was the only safe each libel contained a prayer for general re- Danish port for a vessel of such tonnage as lief. The charterers filed answers, admit- the Gazelle, but he could not discharge at ting the making of the charter-party, and Aalborg, or convey the cargo there. The the refusal of the master to sign bills of lad- charterers, on the contrary, insisted that he ing; alleging that the port of Aalborg is a could and was bound to discharge at Aalborg. safe port, well known to commerce, especially During this discussion between the parties, in the petroleum trade, and one to which ves-and on one day, the master said he would sign where it is reasonably safe for the ship to lay and discharge. The port of Aalborg and the Limfiord inside the bar are safe for vessels that can get into them and lay afloat. The water inside the bar in the Limfiord is deep, the said anchorage outside the bar in the Cattegat is not a reasonably safe anchorage, nor a place where it is reasonably safe for a ship to lay and discharge. The amount of freight under the charter for the cargo loaded was $3,285.60. The master incurred expense of $507.03 in removing and storing the petroleum cargo after the refusal of the charterers to order the vessel to any other port than Aalborg, and $17.50 for wharfage, and $16 for necessary towing. The time required to perform such a voyage as that stated in the charter would have been about the same time as elapsed before the vessel procured another charter, which other charter was procured as soon as could have been done; and on Sep under the recharter, and the expenses of the vessel in port were not less than on the voy. age. The circuit court stated, as conclusions of law, that the master was entitled to recover, for breach of the charter-party, damages in the sum of $3,826.13, with interest from September 2, 1881, and that the libel of the charterers should be dismissed, and that they should pay the costs in both courts, and entered a final decree accordingly; from which the charterers appealed to this court. S. T. Wallis and Henry C. Kennard, for appellants. A. Stirling, Jr., for appellee. bills containing the words 'as near thereunto as the vessel can safely get, and always lay and discharge afloat;' but on the same day, upon the charterers assenting to this, he refused, saying, in effect, that as he knew the fact to be that there was no place near Aal-except at or near the town of Aalborg, but borg where he could safely lay and discharge, and as he knew beforehand that he would have to go to the nearest safe port, he would not sign any bills of lading which might in any way commit him to anything else. The charterers all this time insisted that he should discharge at Aalborg, and did not agree to any receding from this in assenting to add the above words on the bills of lading, but still insisted on their right to have the vessel discharged at Aalborg. Nothing was done in consequence of this proposition of the master, or of his subsequent refusal as aforesaid, which in fact altered the position of the parties in any way. The tonnage of the Gazelle was 571 tons, and she drew, when loaded, sixteen feet three inches, and in bal-tember 2, 1881, the vessel was ready to load last, twelve feet. The port of Aalborg is in Denmark, on the south bank of the Limfiord, about seventeen miles from its mouth, at the Cattegat sea. At the mouth there is a bar about 2,000 feet wide, on which there is ordinarily ten feet of water, and never more than eleven feet. Off the mouth of the Limfiord there is no sheltered bay, nor any indentation of the coast, but the coast runs in a straight north and south line. It was not possible for the Gazelle to pass the bar, either in ballast or with cargo, and the only place of anchorage for a vessel which cannot cross the bar is in the Cattegat sea, off the mouth of the Limfiord, and the only mode of discharge * Mr. Justice GRAY, after stating the facts at said anchorage is into small sailing coast- as above, delivered the opinion of the court. ers, which can pass the bar to the port of Aalborg, and carry the cargo. A considerable commerce has been carried on with the port from time immemorial, by vessels of small draught, able to cross the bar when loaded. Some steamers of larger draugh | have in late years traded regularly with the port from England. These have lighters expressly made for their purpose, which they take in tow going out, receiving from them part of their cargo when over the bar, and in returning discharge into them sufficiently to lighten to ten feet, and then tow the lighters in with them. Thirty-one cargoes of petroleum and grain have been exported to Aal-court against repeated attempts to escape borg from the United States since 1876; none before that time. Many of these were in vessels of such size as to be able to cross the bar after lightening a reasonable amount. Of these thirty-one vessels, two or three in all, of large size, have discharged their whole cargo outside. There existed at the time of the making of the charter a general custom in the Atlantic ports of the United States, with reference to charters similarly worded, that a ship may be ordered to any safe port within the range where commerce is carried on, whether she can get into it or not, proIvided there is an anchorage near the port, customarily used in connection with it, and The jurisdiction and authority of this court, in passing upon this appeal, are defined by the act of February 16, 1875, c. 77, § 1, by which the circuit court, in deciding admiralty causes on the instance side, is required to state its findings of fact and its conclusions of law separately; and a review of its decrees by this court is "limited to a determination of the questions of law arising upon the record, and to such rulings of the circuit court, excepted to at the time, as may be presented by a bill of exceptions prepared as in actions at law." 18 St. 315. The limit thus prescribed has been steadfastly upheld by this from it. The Abbotsford, 98 U. S. 440; The Benefactor, 102 U. S. 214; The Annie Lindsley, 104 U. S. 185; The Francis Wright, 105 U. S. 381; Insurance Co. v. Insurance Co., 107 U. S. 485, 1 Sup. Ct. Rep. 582; The Adriatic, 107 U. S. 512, 2 Sup. Ct. Rep. 355; The Connemara, 108 U. S. 352, 2 Sup. Ct. Rep. 754; Merchants' Ins. Co. v. Allen, 121 U. S. 67, 7 Sup. Ct. Rep. 821. The record in this case consists of the pleadings, the findings of fact, the conclusions of law, and the final decree. By the express terms of the charter-party, the charterers were bound to order the vessel "to a safe, direct, Norwegian or Danish |