Shipowners' & Merchants' Tugboat Co. v. Hammond Lumber Co., 218 F. 161

Shipowners' & Merchants' Tugboat Co. v. Hammond Lumber Co.

218 F. 161 | 9th Cir. | 1914

GILBERT, Circuit Judge

(after stating the facts as above). In the court below the motion to dismiss was based on two grounds: (1) That only one claim was made against the tugs; and (2) that the amount thereof was much less than the appraised value of the tugs, and that for those reasons there was no occasion for limitation of liability, and no reason for depriving the claimant of its common-law remedy of trial by jury. On the latter ground the motion was allowed. The decision in White v. Island Transportation Co., 233 U. S. 346, 34 Sup. Ct. 589, 58 L. Ed. 993, may be accepted as establishing the rule that the limited liability acts of Congress authorize a proceeding for limitation of liability “whether there be a plurality of claims or only one.”

[ 1 ] But it is urged that the court below erred in holding that both the tugs, being engaged in the same venture, were equally liable, if liable at all, though the Dauntless was the only one directly attached to the raft, and in holding that, since the value of the two tugs greatly exceeded the amount of the claim, there was no occasion for limitation of liability. The appellant, while not contending that the test question in determining whether the value of a vessel should be included in the fund is whether it is itself liable in rem for the injury done, asserts that the ultimate inquiry is limited to the question whether or not the vessel, or her officers or crew, are at fault, and it argues that there is nothing appearing in the record to indicate that the Hercules was at fault, and that, in any event, it was error to dismiss the petition without having heard testimony as to whether there was any fault, and upon which tug, if either, the blame should he placed

We think that enough is alleged in the appellant’s petition to show' that if either tug was liable to surrender, both were. It appears therefrom that both tugs were engaged in a common venture, that both were exerting a strain upon the hawser when it parted, and that the *164Hercules, as the leader of the tandem of tugs, must necessarily have participated in the selection of the' route and the direction of the movements of the tugs and tow. For instance, it is alleged that "the tugs proceeded with the raft,” that “the tugs were unable to make headway,” and that “despite the efforts of the tugs” the raft was turned and swept broadside, etc.

The appellant relies upon the decision of the Circuit Court of Appeals for the Second Circuit in The W. G. Mason, 142 Fed. 913, 74 C. C. A. 83. That was a proceeding in rem against two tugs, the Mason and the Babcock, belonging to the same owner, and which had been engaged in towing a steamship under a contract made with the owners. The Mason did the towing, and her master directed the movements of the ship. The evidence, as found by the court, was that, while both tugs were cooperating in the same joint undertaking, each was acting independently of the other in doing a distinct part of the work; the office of the Mason being to- tow and to signal to the steamship, and the office of the Babcock being to operate the stern line of the steamship, so as to turn her course when required. The Mason was exonerated, for the reason that she had nothing whatever to do with the signaling to the tow.

But the- same court, in The Anthracite, 168 Fed. 693, 94 C. C. A. 179, in a proceeding in rem, held that where two tugs acted jointly in towing a barge, which was brought in contact with a rock by negligent steering, both tugs were responsible, although one of them was acting only as a helper, and the master thereof submitted himself entirely to the commands of the master of the other tug. The decision in that case is in point .in the case at bar, as is also Thompson Towing & Wrecking Ass’n v. McGregor, 207 Fed. 209, 124 C. C. A. 479.

The question involved in this case has also been decided by this court adversely to the appellant’s contention in The Columbia, 73 Fed. 237, 19 C. C. A. 436. In that case it was held that where the owner of a barge, which had no motive power, had undertaken to transport freight upon the barge, such barge and a tug, belonging to the samé owner, by which the motive power was supplied, became one vessel for the purposes of the voyage, and that, without surrendering both, the owner’ was not entitled to limit his liability for damages caused by the negligence of the crew of either the barge or the tug. In so holding this court followed The Bordentown (D. C.) 40 Fed. 683, a leading case, in which Judge Brown-held a tug liable which was under the control of another tug, where both belonged to the same owner, and in the opinion said:

“Where all the tugs employed belong to the same owner, and are under one common direction, and are engaged in the service at the time when the fault is committed, they are in the same situation * * * as a single vessel, as respects responsibility for the negligence of the common head. The words ‘such vessel,’ in section 4283, embrace all such tugs.”

[2] The question remains whether in a case where, as here, there is but a single claim, and the value of the tugs largely exceeds the amount of the claim, the proceeding should be dismissed, in a case *165where an action had already been brought in a state court to recover judgment for the claim. The object of the acts of Congress for limitation of liability apply only to cases where liability may be limited. Except for that particular purpose it clearly was not the intention of Congress to oust the jurisdiction of other courts. In The Defender (D. C.) 201 Fed. 189, 191, the, court said:

“The proceeding is intended for the purpose of limiting liability' and this presupposes that the liability to be limited might exceed the limit; that is, that there might be personal liability beyond that of the res involved.”

The appellant argues that it is not necessarily true that there will be but one claim against the fund. But upon its own statement of the facts as alleged in the petition it is inconceivable that any claim other than that of the owner of the raft can possibly arise. So far as the petition advises us, there was no -personal injury to any one engaged m the venture, and no property was involved therein, other than the tugs and the raft. It was for the petitioner to set forth facts showing the peculiar and exclusive jurisdiction of the court of admiralty. This it has failed to do.

The decree is affirmed.