(аfter stating the facts). Upon the facts as stated there can be no doubt, since the decision in the Daniel Ball, 10 Wall. [77 U. S.] 565, that the steamer Ventura was engaged in both inter-state and foreign commerce; and, as an instrument of such commerce, was subjeсt to the regulating power of congress, notwithstanding the fact that the particular goods in question were passing only from port to port within the state of California, and constituted a portion of its domestic commerce. In the case cited thе supreme court, in relation to the vessel then in question, says:
“So far as she was employed in transporting goods destined for other states, or goods brought from without the limits of Michigan, and destined to places within that state, she was engaged in commercе between the states; and however limited that commerce may have been, she was, so far as it went, subject to the legislation of congress. _ She was employed as an instrument of that commerce; for whenever a commodity has begun to move, as an article of trade, from one state to another, commerce in that commodity between the states has commenced. The fact that several different and independent agencies are employed in transporting the commodity — some acting entirely in one state, and some acting through two or more states — does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation it is subject to the regulation of congress.”
The vessel, then, was an instrument of inter-state and foreign commerce, and as such was within the regulating power of congress. But does this power extend to a limitation of the liability of the owner as to those goods shipped upon her from one port to another, in the same state, and constituting a part of the domestic commerce of such state? This seems to be a new question, as I find no case in which it has been decided, or even discussed.
In order to provide better security for the lives of passengers, and the safety of merchandise shipped, congress in 1838 [5 Stat. 304], passed an act requiring all vessels propelled, in whole or in part, by steam, to be inspected, and forbidding their employment in commerce without first being licensed upon such inspection, and without complying with many prescribed conditions as to the manning and equipment of the vessel. It provided that a sufficient number of skillful engineers should be employed; also, for safety-valves, the number and charaсter of boats to be carried, iron tiller-rods. hose, signal-lights, etc. In 1S52 [10 Stat. 01], an amendatory act was passed, adding many other conditions, such as providing for pumps, safety-plugs, life-preservers, means of access to decks; limiting the amount of steam to be used, and the number of passengers to be' carried; excluding carriage of dangerous goods; requiring license of engineers, masters, pilots; prescribing kind and quality of boiler-iron to be used, etc. These and many other onerous conditions are imрosed upon owners — some as conditions precedent to the use of the vessel at all, and the observance of the others enforced by forfeitures, fines, liabilities and severe penalties, civil and criminal. All these precautions arе taken for the safety and better security of life and property embarked in commerce. As a counterpoise, in some degree. to these severe and onerous conditions, and as an encouragement to citizens to build ships and engаge in commerce, some limitations, also, were subsequently placed on the common-law liabilities of ship-owners, by the provisions of the statute in question, first adopted in 1S31, and which, with the other provisions cited, have been carried into the present Revised Statutes. One means of security is to a certain extent substituted for the other, and it cannot reasonably be doubted, I think, that, upon the whole, the security afforded by the provisions of the statute, if properly enforced, notwithstanding the limitation of the personal liability of owners provided for, is far greater than it would be under the full common-law liability of owners without the security provided by congress. However this may be, a vessel engaged in inter-state or foreign commerce, as an instrument of such cоmmerce, is brought within the regulating power of congress; and congress has seen fit to make these provisions, together with the changes in the responsibilities and liabilities of the owners of such vessels. Congress deals with the vessel as an instrument of commerce, and the rights and obligations of the owners as related to such instrument. The vessel, being engaged in inter-state or foreign commerce, must conform to the regulations prescribed; and any party using it for the purposes of domestic commerce, enjoys all the benefits afforded by these regulations, for they inhere in the vessel and cannot be separated from it. If a party avails himself of these benefits by the use of the vessel, he must also suffer the inconveniences inci
The next question is, what is meant by a loss “occasioned or incurred without the privity or knowledge of such owner?” These words, as related to this subject, seem to have been first used in the statute of Geo. 11., in 1734, where there was a restriction prоvided as to the liability of the owner in certain specified cases happening without the “knowledge or privity” of such owner, ling. Adm. St. 107. The restriction was extended to other cases by statute 26 Geo. 111., 1780 (Eng. Adm. St. 44S). The restriction was again extended to other casеs by the statute of 53 Geo. III., 1813. And in the statutes of 18 & 19 Viet., the words “privity or knowledge” were changed to “actual fault or privity.” Macl. Shipp. 704. These statutes seem to form the basis of our own; ■ and an examination of these statutes, with their preambles, will afford no little aid in arriving at a proper construction. The policy of the act is well stated in Norwich Co. v. Wright, 13 Wall. [80 U. S.] 121, and Moore v. American Transp. Co., 24 How. [65 U. S.] 39. It is quite apparent that it was intended to exonerate owners from liability beyond the value of the ship and freight рending, for losses resulting from many causes for which they were before liable; and. among them, from mere negligence or carelessness of the master or crew of the vessel — from mere general negligence of employees. So much is already determined by the. supreme court in Walker v. Western Transp. Co., 3 Wall. [70 U. S.] 153, wherein the court says: “We are, therefore, of opinion that in reference to fires occurring on that class of vessels to which the statute applies, the owner is not liable for the misconduct of the officers and mariners of the vessel in which he does not participate personally.” Privies, as defined by Bouvier, are “persons who are partakers, or have an interest in any action or thing, or any relation to аnother.” One of Webster’s definitions of privity is: “Private knowledge; joint knowledge with another of a private concern; cognizance implying consent or' concurrence.” And one definition of privy, as an adjective, is: “Admitted to the participatiоn of knowledge with another of a secret transaction; secretly cognizant; privately knowing.”' As a noun, “A partaker,” etc. As used in the statute, the meaning of the words “privity or knowledge,” evidently, is a personal participation of the owner in somе fault, or act of negligence, causing or-contributing to the loss, or some personal knowledge or means of knowledge, of which he is bound to avail himself of a contemplated loss, or of a condition of things likely to produce or contribute to the loss, without adopting appropriate means to prevent it. There must be some personal concurrence, or some fault or negligence on the part of the owner himself, or in which he personally participates, to сonstitute such privity, within the meaning of the act, as will exclude him from the benefit of its provisions.
When thе owner is a corporation, the privity or knowledge of the managing officers of the corporation must be regarded as the privity and knowledge of the corporation itself.
[Yerdict rendered for the defendant.]
Notes
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