This extension is entirely gratuitous, for the true and ancient admiralty rule, which the court next lays down, entirely disposes of the case: "The seaman is not allowed to recover an indemnity for the negligence of the master or any member of the crew, but is entitled to maintenance and cure whether the injuries were received by negligence or accident."1 It is seen, therefore, that this doctrine of fellow servant is not necessary in admiralty, for a servant is prevented from recovering against an employer, or the ship, for the negligence of another servant, by the fact that the doctrine of respondeat superior, when properly applied, does not have its full force in the admiralty. In fact, before the last twenty years no case of a recovery of a servant against an employer in personam2 for the negligence of another servant in the employ of the same master, whether coming within the techical definition of a fellow servant or not, can be found in the reports of admiralty cases in the United States, and as Judge Addison Brown says, speaking of seamen: 3 "No authority in the ancient or modern codes, in the recognized text books, or the decisions on maritime law can be found allowing such a recovery, and the absence of any authority holding the owner of the vessel liable is evidence of the strongest character that no liability under the maritime law exists." The same words could have been used at that time with truth of all actions in personam in admiralty by all servants against the employer for negligence of other servants as well as actions by seamen. The first case in which the doctrine of fellow servant was applied by a court of the United States sitting in admiralty is Halverson v. Nisen, where Judge Hoffman applied it in the district court for the District of California, but he cites only common law authorities in support of it. The Supreme Court has overruled in the Max Morris the decisions of many of the lower courts applying in admiralty the doctrine of contributory negligence. In the same way, when the question is fairly presented, it can exclude the doctrine of fellow servant as well from the admiralty jurisprudence and by so doing clear the air. Now, however, by its dictum in the Osceola case, 1 See the Osceola, 189 U. S. 158, 175. 2 In actions in rem the recovery is on a different principle from respondeat supe rior. See Sherlock v. Alling, 93 U. S. 99–108. that the liability of the ship for an injury to one seaman by the negligence of another does not exist because they are fellow servants, it implies that unless the servants are fellow servants in the technical sense of the common law a liability on the part of the employer does or may exist. Accordingly, we shall probably see many such cases of servant against employer or ship, and shall have to determine in each case, as at common law, whether the servants are in a common employment or not; for instance, whether a stevedore, longshoreman, cattleman, seaman, etc., are in a common employment, whether the foreman, stevedore, boatswains, mates, master, etc., are vice-principals, and the whole doctrine is fairly launched into the admiralty law. It is all the more unfortunate at this late day, because the doctrine of fellow servant, first enunciated in England in 1837 in the case of Priestley v. Fowler,1 has hardly been approved, and the legislatures both in England and this country by their employer's liability acts have been gradually paring it down and changing it. It arose in the first place as one of the attempts by the common law courts to mitigate the harshness and injustice of respondeat superior: in admiralty, respondeat superior has not been applied in personam with the same harshness in this particular, and there is no need of such mitigation. It is to be hoped that as this part of the decision of the Supreme Court in the Osceola case, though contained in a solemnly declared and carefully drawn article, is really only a dictum, it may be revised and overruled when the subject is brought to its attention again. 1 3 M. & W. 1. Frederic Cunningham. ALL CASES IN ADMIRALTY IN WHICH THE FELLOW SERVANT DOCTRINE HAS The Chandos, 4 Fed. Rep. 645 (1880), Dist. of Oregon. The Queen, 40 Fed. Rep. 694 (1889), So. Dist. N. Y. The Sachem, 42 Fed. Rep. 66 (1890), E. Dist. N. Y. The A. Heaton, 43 Fed. Rep. 592 (1890), Circ. Ct. Dist. of Mass. The Frank and Willie, 45 Fed. Rep. 494 (1891), So. Dist. N. Y. The Bolivia, 59 Fed. Rep. 626 (1893), So. Dist. N. Y. Red River Line v. Cheatham, 60 Fed. Rep. 517 (1894), C. C. A. 5th Circ. The Transfer No. 4, 61 Fed. Rep. 364 (1894), C. C. A. 2nd Circ. The Ravensdale, 63 Fed. Rep. 624 (1894), So. Dist. N. Y. The Victoria, 69 Fed. Rep. 160 (1895), E. Dist. N. Y. The Antonio Zambrana, 89 Fed. Rep. 60 (1898), E. Dist. N. Y Carlson v. Pilot's Assoc., 93 Fed. Rep. 468 (1899), So. Dist. N Y. The Picqua, 97 Fed. Rep. 649 (1899), So. Dist. N. Y. The Slingsby, 120 Fed. Rep. 748 (1903), C. C. A. 2nd Circ. Memphis, etc., Co. v. Hill, 122 Fed. Rep. 246 (1903), C. C. A. 8th Circ. HARVARD LAW REVIEW. Published monthly, during the Academic Year, by Harvard Law Students. SUBSCRIPTION PRICE, $2.50 PER ANNUM Editorial Board. EDWARD H. LETCHWORTH, President. WM. HALL BEST, FRANCIS W. BIRD, PHILIP A. CARROLL, ROBERT B. DRESSER, CHARLES F. DUTCH, ROGER ERNST, GEORGE H. FERNALD, JR., FELIX FRANKFURTER, WILLIAM C. GRAY, MILLARD C. HUMSTONE, WALDRON M. JEROME, JAMES G. SWAN, Treasurer. HUGH MCLEAN, PHILIP L. MILLER, ROBERT N. Miller, EDMUND M. MORGAN, JR., CARL M. OWEN, ROY V. REPPY, SAMUEL J. ROSENSOHN, ELIHU ROOT, JR., ROBERT P. STEPHENSON, FREDERICK W. TILLINGHAST, CLIFFORD P. WARREN. SPECIFIC PERFORMANCE AT LAW. A contract of purchase imposes a liability for the price conditional upon the receipt of the chattel; and even though the buyer by refusing to accept makes performance impossible, the vendor cannot recover the price.1 Courts, to be sure, have held that a tender of performance is equivalent to performance,2 but this can be true only for the purpose of grounding an action, not as a basis for computing damages. The failure to make this distinction caused the court in Bement v. Smith to allow the vendor to recover the price without delivery of the chattel. The title is regarded as in the vendee the moment the chattel is set aside for him. As this in effect allows specific performance at law, some courts limit it to those cases where the chattel is specially manufactured." Kinkead v. Lynch, 132 Fed. Rep. 692 (Circ. Ct., Dist. of Nev.). In either case there are three objections to allowing specific performance at law. First, consent, which is necessary for the transfer of title, is not obtained by mere appropriation to the buyer. In fact the courts would not 1 See opinion of Holmes, J., in White v. Solomon, 164 Mass. 516. The learned justice further adds that since payment was to be made upon delivery but before title passed, the plaintiff could recover the entire amount. (Field, C. J., Morton and Allen, JJ., dissented.) A recent North Carolina case makes the same distinction. National, etc., Co. v. Hill, 48 S. E. Rep. 637. The difficulty in such cases is that it is stretching the facts thus to interpret the contract. 2 See Bement v. Smith, 15 Wend. (N. Y.) 493, and cases cited. 3 See Shannon v. Comstock, 21 Wend. (N. Y.) 457, 460. ▲ Supra. 5 See to the same effect, Ballentine v. Robinson, 46 Pa. St. 177. Salmond, Jurisprudence 376. always hold that the title has passed, since a bona fide purchaser from the vendor would probably be protected. This suggests the second objection. Since the vendor could thus cut off the vendee's interest, leaving him only an action at law which insolvency would render worthless, it is unjust to compel payment without more adequately securing his interest in the property. Lastly, it may be urged that the vendee, on default of the vendor, has no similar right to demand delivery of the manufactured article; and surely his right should not be inferior to the seller's. A court of law cannot order the vendor to transfer; nor can the vendee bring replevin. These difficulties encountered by common law courts because of their procedure are overcome by allowing an action in equity should specific performance in such cases be advisable. This remedy obviates the first difficulty, since equity will force the defendant to take the title. Nor can the second objection be urged, since a court of equity will grant relief by compelling concurrent performance by the seller and the buyer. Finally, the vendee by coming into equity could force the vendor to transfer the property and thus overcome the last objection. The first two of these objections apply equally where rescission of an executed contract is allowed for breach of warranty. Moreover, there are objections to allowing this, even in equity. It has been urged that mercantile custom and justice demand such a remedy. While admittedly goods are often returnable, it is only on the understanding that the vendee will receive goods of the proper kind in their place, for the vendor would hardly be willing that he return the goods absolutely, and thus escape a bad bargain. Under such circumstances there is an actual contract of rescission, which would seem to be the custom of merchants; but the rescission allowed by the Massachusetts courts would not permit the vendor to offer proper goods in exchange.1 Again, it is urged that it is unjust of the vendor to insist upon his bargain when he has not furnished the proper goods,11 but is it not more inequitable for the vendee to use this breach of warranty to avoid the consequences if the contract is unprofitable? It is not so unjust on the part of the vendor, since he is ready to respond in damages which adequately recompense the vendee. 12 10 ADMIRALTY JURISDICTION OF TORTS. - The jurisdiction of the admiralty court in England as set forth in the ancient royal grants was sufficiently broad in scope to comprehend all maritime affairs. But after a struggle against the jealousy of the common law courts, particularly in the sixteenth 1 7 For necessity of change of possession, see Williston, Cas. Bankruptcy 169, n. 1. 8 See Langdell, Brief Survey of Equity Jurisdiction 46-47; I HARV. L. REV. 361, 362. Professor Williston in 16 HARV. L. REV. 465-475, where all the authorities are collected. See also articles by Professor Burdick and Professor Williston in 4 Columbia L. Rev. 1, 195, 265. 10 This must follow. Since it has been decided that the buyer cannot also bring an action for damages, it would hardly be just to allow a seller in default an option to offer goods of the proper kind. See Professor Williston's Draft of Sales Law, sec. 54 (2). This is not the case where the contract is executory. 16 HARV. L. REV. |