269 F. 334 | 6th Cir. | 1920
The Patton-Tully Company was the owner of what was called a derrick boat, used in loading logs upon the
The question of liability centers around the fusible plug in the crown sheet of the boiler. This boiler was provided, as is quite common, with four devices which pertained to safety from explosion. Two were for the information of the fireman, through his observation or use of them in the performance of his duty. These were the glass water gauge, which indicated the height of the water in the boiler, and gauge cocks in a vertical row shortly above the crown sheet, hy trying which he could ascertain where the water level was, as to each one which he tested. The other two safety devices were intended to be automatic. One was the usual safety valve, which normally comes into frequent use during operation, and without any attention by the fireman relieves the steam pressure, if it becomes too high. The last was the fusible plug. A hole was drilled and suitably threaded in the crown sheet in its center and highest point. Into this was screwed a threaded plug of a metal which would melt as soon as the water disappeared from the upper side, and the steam in the boiler would be blown down through the opening, extinguishing the fire. It was familiar knowledge that, as soon as all the water above the crown sheet was turned into steam, the crown sheet could and would become overheated, perhaps red hot, and if then water were pumped into the boiler and came into contact with this hot metal it would flash into steam, making an increase of steam pressure which might be too great and too sudden for the safety valve to take care of, and an explosion would follow. Prior to this accident, the master and the fireman had inserted in this crown sheet opening an iron or steel plug, and the absence of the fusible plug which had formerly been in position was undoubtedly one of the efficient causes of the explosion.
The question wheth.hr this derrick boat, situated as it was, should be treated as appurtenant to the land or to the navigable water impresses us as close. In Cope v. Vallette Dry Dock Co., 119 U. S. 625, 630, 7 Sup. Ct. 336, 30 L. Ed. 501, it was held that a floating dry-dock was not within the admiralty jurisdiction, though doubtless it was capable of being towed from place to place and might be used for transporting the apparatus and appliances which constituted its permanent cargo. In The Blackheath, 195 U. S. 361, 25 Sup. Ct. 46, 49 L. Ed. 236, it was decided that admiralty had jurisdiction over an injury by a floating vessel to a permanently fixed beacon. Many of the cases are cited and reviewed by Judge Cochran in Barnes Co. v. One Dredgeboat (D. C.) 169 Fed. 895, and by Judge Rellstab in Berton v. Dry Dock Co. (D. C.) 219 Fed. 763. The derrick which this boat carried was a loading apparatus, and especially intended to take logs from the bank and deposit them upon an adjacent boat. The machinery was of the type commonly found upon permanent wharfs. From the cases cited, we assume (without expressly deciding) that a wharfboat or floating wharf, carrying this type of loading machinery, but firmly moored to the land, would be outside the maritime jurisdiction, even though it was contemplated that it might, on occasion, be towed to another location; and we likewise assume that a barge carrying similar machinery, but customarily moved about a harbor and transferring cargo from one vessel to another, would be within that jurisdiction. It is at least not clear in which class this particular derrick boat should be placed, considering what the record shows and fails to show as to its capacity and uses; but we think the question suggested becomes immaterial in this case. The derrick boat was, at this time, undoubtedly in service as an instrumentality of interstate commerce, and if the Limited Liability Act is intended to reach such a boat, constitutional basis for that result is found in the commerce clause, even if it might not be in the admiralty and maritime clause. Providence Co. v. Hill Co., 109 U. S. 578, 589, 3 Sup. Ct. 379, 617, 27 L. Ed. 1038. Is, then, a boat like this within the intended scope of the Liability Act?
Section 4283 reaches “any vessel.” It was the theory of the act that always when a vessel was on a voyage between ports, and commonly until its return to the home port, the owner would have scant opportunity for personal control, and therefore ought to be relieved from the full effect of the respondeat superior rule. This theory applied with lessened force to ordinary vessels upon inland lakes and rivers, and with little, if any, force to the class of quasi vessels which often remain in or about one harbor and have no propelling power—barges, lighters, etc. Accordingly, section 7 of the original act of 1851 (R. S.
This derrick boat was not a canal boat, nor, in the ordinary sense, a barge. It did at least closely approximate a lighter. A lighter often has lifting means for elevating cargo, though it commonly transfers cargo from the shore to itself, and then from itself to the ship, instead of directly from the shore to the ship, as here. There is not much inherent distinction, nor apparent reason for excluding this from the statute and including ordinary lighters. Both are directly essential to the transportation of freight by water, while the connection therewith of (e. g.) a dredge, is more indirect and remote.
Upon the whole, we conclude that the lack of jurisdiction to proceed under this statute as to this derrick boat is not so clear that we ought, practically on our own motion to decline to proceed. See In re Eastern Dredging Co. (D. C.) 138 Fed. 942; The Sunbeam (C. C. A. 2) 195 Fed. 468, 115 C. C. A. 370.
The first reading of section 4283, as now printed, suggests doubt whether a boiler explosion is an “act, matter or thing, lost”; but the explanation found in Butler v. Boston Co., 130 U. S. 527, 549, 550, 9 Sup. Ct. 612, 616 (32 L. Ed. 1017), makes it clear that there is a misprint, and that it should be construed as if it read “act, matter or thing, loss, damage,” etc.
It is equally clear that there is liability if the injuries result from lack of original seaworthiness (s. c., 247 U. S. 381, 38, Sup. Ct. 503 [62 L. Ed. 1171]); and we think it is the proper inference from the prin
It is not very important where the burden of proof technically rests, •because, where the ship was in good condition when last under the owner’s personal control, there is the common presumption that such condition continues until the contrary appears. Save surmise from the fact that they put in a permanent plug, there is nothing to show that the supply of fusible plugs on board had been exhausted, and this surmise is not persuasive. There is nothing tending to show knowledge by the manager of the lack of fusible plugs, if there was a lack, or that -a permanent one had been inserted, or that the injector was not working well. There was evidence tending to show a letter saying that the boiler was leaking, and asking that some one be sent to fix it; but this did not suggest tire lack of fusible plugs, which is to be taken as the essential element in constituting unseaworthiness, and it does not appear that there should have been any apprehension of explosion from the mere fact that the boiler was leaking to an extent so slight as not to prevent its use.
The Supreme Court early laid down the. proper rule for the application of this limiting liability statute. It said, in Providence Co. v. Hill Co., 109 U. S. 578, 588, 3 Sup. Ct. 379, 386 (27 L. Ed. 1038):
“If tlie courts Raving the execution of it administer it in the spirit of fairness, with a view of giving the shipowners the full benefit of the immunities intended to be secured by it, the encouragement it will afford to commercial operations will be of the last importance; but if it is administered with a tight and grudging hand, construing every clause most unfavorably against the shipowner and allowing as little as possible to operate in his favor, the law will hardly be worth the trouble of its enactment.”
We conclude that there was neither privity nor knowledge, on the part of the owner, as to the lack of the fusible plug, and hence that the owner is entitled to limitation of liability.
On the other hand, it may be contended that, in the Jensen Case, the state compensation act was rejected, because, as between master and servant—owner and seaman—there was an existing code of maritime law, which denied indemnity for negligence, with which code the compensation act was inconsistent, and so, by analogy, that a death act is also inconsistent with the maritime code of duties and liabilities of the ■owner and seaman—even more inconsistent than the compensation act —because it imposes an extreme liability where there was none, instead of a greater liability where there was already some. However, we are not satisfied to limit the application of The Hamilton in this way. The whole theory of a cause of action for death was foreign to admiralty, by The Hamilton a state death act was recognized, and the reason suggested why there should be one rule when the offending ship was the seaman’s own, and another when it was not his, does not appeal to us as convincing. In Thompson Co. v. McGregor, 207 Fed. 209, 124 C. C. A. 479, we enforced in admiralty a death act in favor of a seaman (tnough the question just suggested was not raised and the Jensen Case had not been decided).
Since this explosion took place within the state of Mississippi, and the boat belonged in Tennessee, and both states have death acts, it follows that the court below might lawfully award damages for the death of a seaman, if the facts justified.
The master carried the responsibility for the insertion of this plug. Either he directed it, or, having power to prevent, he permitted it. It must be treated as if it were his.act; but there cannot be liability by the owner to the master to keep the boat safe against the master’s own negligence. The same act by the master, which made the boat liable to the seamen because his act was the owner’s act, cannot make the boat or the owner liable to him. As .between him and the owners, his act is his, not theirs. No liability reaches the owners in favor of the seamen, except through the master as a conduit; and he cannot be the conduit of his own wrong for his own benefit. In the common relation of master and servant, we cannot suppose that the rule of respondeat superior makes the master liable to the servant for whose negligent act the master must (as to others) respond.
Eiability as to the fireman might well be denied on the same theory as that just stated with regard to the master; but more controlling is the fact that the fireman’s carelessness in operation was surely the primary cause of the explosion. He knew of whatever. degree of un safety there was, he knew of the added duty thereby put upon him to watch the water, and he failed in that duty. On him, more than in any other one place, rests the blame for the ensuing death and destruction. He cannot be heard to say that a boiler defect, consisting only in the lack of a safeguard against his carelessness, and which defect would have been harmless, except for his negligence, was, as to him, an efficient contributing cause of the explosion.
We are not able to distinguish Thompson v. McGregor from the present case. The facts are, for this purpose, identical, except that the conflict of laws there suggested was between Michigan and Canada, while here it is between Tennessee and Mississippi. Whatever force there is in this difference tends to confirm the adoption of the Tennessee law, since, in the Thompson-lVlcGregor Case, the boat was, for many purposes, subject to the Canadian jurisdiction, while in the present case it is not easy to see in what substantial respect the Mississippi jurisdiction had attached so as to supersede the admiralty jurisdiction of the United States, in other words, the case is not as strong for the application of the law of the place of the accident as was the ThompsonMcGregor Case.
Whenever the boat was outside of Tennessee, it was engaged in interstate commerce. Going up or down the river, it would be crossing state lines constantly. It might be difficult, if not impossible, to know in what state the boat was when some accident on board happened. It would be unfortunate if the liability of the owner to a seaman for death, or the measure of damages, changed whenever a state line was crossed.
It follows that all awards for death were made upon the basis of the statute of the wrong state, and therefore the commissioner’s award upon these claims and the decree of the court thereon must be set aside and a new assessment of damages had. Under these conditions, it would not be worth while to discuss some troublesome questions presented by the attempt to interpret and apply the Mississippi statute.
The decree is reversed, and the case remanded for further proceedings.