75 F. 312 | 9th Cir. | 1896
On August 14, 1893, the boiler of the steamer Annie Faxon exploded, while she was navigating the Snake river, in the state of Washington. The appellees, as owner and lessee, respectively, were at the time operating the steamer, as common carriers of freight and passengers. The appellants were the passengers and employes of .the steamboat who were killed or injured by the explosion. On September 19, 1893, the appellees filed their petition in the court below for the purpose of obtaining a limitation of their liability under and by virtue of section 4283 of the Revised Statutes. The facts and circumstances on which the limitation of liability was claimed were set forth, and it was alleged that in or about the month of December, 1892, the boiler and engines of the steamer were tested and inspected by the United States inspectors of hulls and boilers, and by the officers, employes, and agents of the petitioners, and that at the time of such inspection the boiler and engine were found to be in good order and condition, and that the United States inspectors of hulls and boilers thereupon authorized the carrying of 135 pounds steam pressure; that at the time of the explosion the employés of the petitioners in charge of the boat were in the active, careful, and skillful performance of the duties required of them, and were exercising care and diligence for the safety of said boat, and of the persons and freight thereon; “that said accident and explosion happened, and the loss, damage, injury, and destruction above set forth were occasioned, done, and incurred without the fault, privity, or knowledge of your petitioners, or eilher of them, and without the fault, privity, or knowledge of any of its or their officers, agents, or servants, but were due solely to causes over which neither of your petitioners had any control of any kind whatsoever.” Pursuant to the practice in such cases prescribed by admiralty rules 54 to 59, inclusive, an appraisement of the wreck of the steamer was had, fixing her value at $3,520; and a monition and citation were issued out of the district court, directing and requiring all persons claiming damages by reason of said explosion to present and file their respective claims therefor. Thereupon the appellants made answer to said petition, denying the facts which were therein alleged to limit the liability of the petitioners, and filed their respective proofs of claims. Upon the testimony and evidence taken upon the issues so raised, it was held that the petitioners were liable for the injuries, but that they were entitled to limit their liability to the value of the boat and her freight. From the final decree thereafter entered this appeal is taken.
The assignment of error principally relied upon is that the court held that privity or knowledge of the defective condition of the boiler, and of the fact that it was not inspected as required by law, either in December, 1892, or after the repairs of June, 189¿, could not be imputed to the petitioners. We are unable to perceive how there can be imputation of privity or knowledge to a corporation of defects in one of its vessel’s boilers, unless the defects were apparent, and of such a character as to be detected by
*316 “The barge was owned by a corporation. So it was the duty of this corporation, before dispatching this vessel upon the voyage in question, to know, by the examination of some duly-appointed officer, whether the vessel was in a seaworthy condition for the intended voyage. A proper examination of the vessel surely would have disclosed the unsound condition.”
• In Quinlan v. Pew it is said:
“We therefore conclude that the word ‘privity,’ as found in this statute, includes at least as much as the word ‘knowledge’; but we, of course, do not overlook the fact that there is, in law, imputed knowledge, and therefore there may be imputed privity.”
In ttie Case of Myers Excursion & Nav. Co., the decision is placed on tlie ground tliat it was the duty of the corporation, before sending the vessel on the voyage in question, to know, by the examination of some proper officer, whether the vessel was fit for the intended voyage. But the court did not hold, nor is it implied in the decision, that, if a proper and competent officer had been appointed by the corporation to make such examination, the knowledge acquired by him would have been imputed to the company. The same case was taken to the circuit court of appeals. 9 O. O. A. 386, 61 Eed. 109. And in the opinion of that court it is stated that the president of the corporation made the examination of the vessel, and the court held that, in view of her condition as subsequently revealed, her defects were so obvious as that they could not have escaped his observation if he had made a reasonably thorough examination; and the court concluded, therefore, that such examination was not made, and that such neglect on the part of the president of the corporation constituted knowledge and privity on the part of the corporation itself. In Quinlan v. Pew the injury occurred by reason of a defect which was known to the master of the vessel before she sailed from her home port, where the owners resided. It was nevertheless held that the knowledge of the master, who had been charged by the owners with the duty of repairing the vessel, was not the knowledge of the owners, and that the owner may delegate to another the duty of suitably fitting out his ship, and thereby relieve himself from full liability, although such agent may have been negligent. Said the court:
“We are also constrained to tbe belief that this statute, which the supreme court directs shall be interpreted broadly, has regard for the usual necessities of the occupations of life, and, in that respect, intends that owners may avail themselves of.the proper facilities common to business men. and be relieved, so far as it is concerned, whenever and so far as they have appointed a suitable representative, be he master, consignee, or other agent, to supervise the ship, either at sea or at the home port, or otherwise, and either for fitting her away, or navigating her after she is so fitted away.”
These decisions accord with the views of the supreme court as expressed in Walker v. Transportation Co., 3 Wall. 150; Butler v. Steamship Co., 130 U. S. 527, 9 Sup. Ct. 612; Craig v. Insurance Co., 141 U. S. 638, 12 Sup. Ct. 97. And we find nothing in the holding of the trial court concerning the imputation of knowledge or privity not in harmony therewith.
It is urged that the court erred in holding as a conclusion of law,
“It is not pretended that any managing officer of the petitioning- corporations did have actual or personal knowledge of the defective condition of the boiler, or of the failure to inspect the same after the alterations were made.”
We cannot say that there was error in this finding, or that in arriving at that conclusion the court was not guided by a proper view of the rules of evidence applicable to the testimony.
In behalf of the injured passengers, and the representatives of
“This is only declaring in the particular case what is true in all, — that, if the injury or loss occurs through the fault of the owner, he will be personally liable, and cannot have the benefit of limited liability.”
We are unable to concur with the ruling of the trial court that section 4493 of the.Revised Statutes is repealed by the act of June 26, 1884, entitled “An act to remove certain burdens on the American merchant marine and encourage the American foreign carrying trade, and for other purposes.” 1 Supp. Rev. St. (2d Ed.) 440. The eighteenth section of that act provides as follows;
“That the individual liability of a shipowner shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessels and freight pending. Provided that this provision shall not affect the liability of any owner, incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action; nor shall the same apply to wages due to persons employed by said shipowners.”
We fail to find in the language of tbe eighteenth section of the act of June 26, 1884, a purpose to repeal the provisions of any pre-existing statute. While its terms are vague, it would appear that the sole object of the act was to fix the liability of shipowners among themselves, and extend their right to limit their liability under the provisions of section 4283 to ail cases of debt and liability under
“There are no words in it which signify that it was intended to be a repealing statute. .It appears to be another section, intended to take its place at the end of the act of 1851, as that act is given in the Revised Statutes, it is another section extending the exemption of shipowners to all or any debts and liabilities of the ship, except seamen's wages, and liabilities incurred before the passage of the act of 1884. Where a subsequent statute can be so construed as not to bring it in direct conflict with an antecedent law, it will not he held by the courts to repeal the former statute. Repeals by implication are seldom allowed, and to do so in ibis instance would he to do violence to the intention of congress, which appears clearly to have been to extend the act of 1851 to exempt shipowners from liabilities not embraced in that act.”
in Gokey v. Fort, 44 Fed. 364, Brown, J., said:
“1 think the act of 1884 is doubtless to be treated as in pari materia with the act of 1851 (Rev. St. §§ 4233-4285), and designed to extend the act of 1851 to cases of the master’s acts or contracts, and thus to bring our law into harmony with the general maritime law on this subject.”
Having readied the conclusion that: section 4493 remains in full force and effect notwithstanding the subsequent enactment of 1884, the question arises in the present case whether a liability has been incurred under its provisions. The trial court found as follows:
“After giving the testimony full consideration, 1 lind that the boiler was made of iron, and it had been in use many years. It had been cracked and blistered in several places, and had been patched a. number of times. In June preceding the explosion, one of the important sheets of the boiler, known as the ‘mud ring.’ was replaced by a new one, and some patching was done. In making these last repairs the old iron was broken by hammering, showing that it had become brittle from crystallization. I conclude, therefore, that the explosion occurred because the boiler was defective, and that there was negligence on the part of some one in the service of the libel-ants, in continuing the use of a boiler so old as the one in question, and without having it properly tested and inspected after the last repairs were made. Section 4418, Rev. St., requires that the boiler of every steam vessel shall he inspected by the local inspector, before being used. Manifestly, to comply will! this law according to the intent thereof, every sheer of which a boiler is composed must be inspected, and subjected to the prescribed test. And the law was violated by using the boiler after the new mud ring liad been put in without an official inspection. Posey v. Scoviile, 10 Red. 140.”
There is in (lie record, if: is true, no distinct or positive evidence that the failure to inspect the boiler after the repairs of June, 1883, was the cause of the explosion, or that an inspection at that time would necessarily have disclosed the imperfections, and the weakness which resulted in the accident. It can only be said that if a proper inspection had been made at that time the weakness of the boiler would probably have been detected. As we construe the statute, it was as much the duty of the owner of the steamship to cause an inspection of a boiler that had been repaired in a substantial part, as it was to cause an inspection of a new boiler, before using the same. The repaired boiler was, lo all intent, a new boiler. If, in this case, the explosion had been of a new boiler that had never been used, it could scarcely be contended, we think, that: the owner would not be liable for the full extent of the injuries to the pas
“Perhaps,- if It should appear that the requirements of the steamboat inspection law were not complied with by him, he would not obtain a decree for limited liability. That is all. We say ‘perhaps,’ for it has never yet been decided, at least by this court, that the owner cannot claim the benefit of limited liability when a disaster happens to a coastwise steamer without his fault, privity, or knowledge, even though some of the requirements of the steamboat inspection law may not have been complied with.”
The construction which we have given to the statute seems to us just and reasonable, and consonant with the purposes for which the law was made. It is true that in the pleadings no reference is made to the failure of the railway company to inspect the boiler after it was repaired, and no ground of liability is charged against the company, under the provisions of section 4493, by any of the injured passengers, or their representatives. On the contrary, they all seek to recovér on the ground of the negligence of the company in continuing the use of a boiler known to be old and defective. But we do not regard these facts as material. The failure to comply with the inspection law may, in our judgment, be invoked to prove that the owner is not entitled to the benefit of the limitation of liability law, as claimed in the libel and petition. As to Lewis T. Lawton, Daniel H. Bechtol, Mary A. McIntosh, administratrix of the estate of John McIntosh, deceased, and Susan E; McIntosh, widow and heir at law of Thomas McIntosh, deceased, the decree is reversed, at the appellees’ cost, and the cause is remanded for further proceedings in the court below not in conflict with this opinion. As to the other appellants the decree is affirmed, with costs to the appellees.