99 F. 582 | D. Wash. | 1900
Mr. John G. Pacey, as owner of the American schooner Jane Grey, which foundered at sea on the morning of May 22, 1898, and certain of his business associates, commenced this proceeding in this court, pursuant to the provisions of the statutes limiting the liability of owners of vessels for damages resulting from marine disasters. In their petition they aver that the Jane Grey idled with water and sank in the Pacific Ocean, and became a total loss, and that 34 of the passengers and 3 of the crew on hoard were drowned, and that “said accident happened, and the loss, damage, injury, and destruction above set forth were occasioned, done, and incurred without: fault: or privity or knowledge of your petitioners, or any of them, and was due solely to the perils of the sea.” The petition also avers as the reason for joining other persons with the owner of the schooner in the petition that a number of actions to recover damages have been commenced, in which all the petitioners are charged as being joint owners of the Jane Grey, and jointly liable for damages alleged to have been sustained. The object of the petitioners in this proceeding is to obtain an injunction to prevent the prosecution of the several damage suits which have been commenced as aforesaid, and to have a decree declaring the petitioners to he entirely exempt from all liability, or, if the court shall determine that any legal liability exists to render compensation for losses or injuries on account of said disaster, that the petitioners, and each of them, after paying into court for the benefit of persons entitled to such compensation the amount of pending freight, may he exempted from further liability. Pursuant to tlie rules governing such proceedings, the court appointed an appraiser, who, after receiving evidence, ascertained and reported to the court that the amount of pending freight for the voyage was the sum of $4,392.18, that being the gross amount of freight and passage money for the voyage; and in his report to the court
First. Whether the petitioners, other than Mr. Pacey, are liable as owners.
■ Second. Whether the loss of the vessel and the resulting injury happened in consequence of any fault in the vessel, or neglect of duty on the part of her owners, master, or crew'.
Third. Whether the losses and injuries were occasioned or incurred without the privity or knowledge of the owner or owners, within the meaning of the terms used in section 4283, Rev. St. U. S., which reads as follows:
“Sec. 4283. The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped, or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, lost, damage, or forfeiture, done, occasioned, or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.”
Pburth. Whether the owner or owners exercised due diligence, before the Jane Grey started on her voyage, to make said vessel in all respects seaworthy, and properly manned, equipped, and supplied within the meaning of the terms used in the third section of the act of congress commonly called the “Harter Act” (2 Supp. Rev. St. U. S. p. 81), which reads as follows:
..“Sec. 3. That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due ■diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses ai'i'Sing'from-dangfers of the sea or other navigable waters, acts of God,*585 or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods,'his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service.”
Fifth. If there is any legal liability, and if the owner or owners are entitled to the benefit of the limitations prescribed by the statutes, whether any deductions shall be made from the gross amount of freight and passage money for the voyage on account of the expenses of the voyage.
1. It is certainly established by a fair preponderance of the evidence that Mr. Pacey was, in law and in fact, the sole owner of the Jane Grey. Mr. Pacey was, however, a stockholder, trustee, and one of the managing officers of a mercantile corporation, and with his knowledge and consent, and the knowledge and consent of the other trustees and managing officers, said corporation advertised extensively through the daily newspapers and other mediums, and by a sign conspicuously displayed on the rigging of the Jane Grey while she was at the dock receiving her cargo, at and before the time of the sale of passage tickets to the passengers who went upon her, that said corporation was operating said vessel, and would dispatch her as a carrier of freight and passengers from Seattle to Kotzebue Sound. The evidence is direct and positive that the corporation did not, in fact, control the operation of the vessel, and was not interested in the venture, and that the representations made to the public by means of said advertisements were merely intended to attract public attention to the corporation as a dealer handling large stocks of general mérchandise. The advertisements certainly were calculated to influence people to take passage on the Jane Grey in preference to other vessels bound for Kotzebue Sound, and it may be presumed that all of her passengers were to some extent influenced, as they would naturally be, upon being solicited by. or on behalf of a large and flourishing business house; and it is, therefore, too late, after sending the vessel upon the very voyage- which she was advertised to make, with a large company of passengers, who were thus influenced to go upon her, for the advertiser to change to a more favorable position with respect to its liability by offering true information at variance with representations previously made. I hold, therefore, that the corporation is estopped, and it cannot be permitted to dispute liability as an owner of the vessel for the; voyage. There'is no evidence upon which to base a finding that the other petitioners were, as individuals, interested in the venture, nor that any of the passengers were induced to go on the Jane Grey by any representations from which it might have been inferred that said petitioners were individually responsible in any way for the operation of the vessel. Therefore Mr. MacDongall and Mr. Southwick are entitled to have a decree exempting them from personal liability.
2. The cause of the loss of the Jane Grey cannot be determined with certainty. Probably the truth as to the cause of the disaster will never be known until the great ocean shall reveal the secrets buried in its depths. The vessel was comparatively new, and yet
The Jane Urey was designed for a whaler. Her model was medium sharp below the water line, but she was tender sided; that is, intended to roll easily, to facilitate the work of hoisting on board whale blubber from the sea. Her natural crankiness was increased by her- deck load and the new house, but she was not top-heavy. The deck load consisted of two steam launches placed upon her quarter-deck, the weight of which, with the machinery therein, amounted in the aggregate to a little less than 1} tons; 18 barrels of water, weighing a little more than 3£ tons; 1 ton of coal, and a boiler weighing about ■} ton; and 1 crate of cabbage weighing 100 pounds, — all of which were placed on the main deck a mid-ship, or-nearly so; one ship’s boat hung on the davits at the stern, and on top of the forward house one ship’s boat, a dory, and lumber and materials for fohr other boats, weighing in the aggregate less than half a ton; two cases coal oil, weighing about 100 pounds;
• The argument made on behalf of the petitioners is based upon the theory that the heavy cross seas which the Jane Grey encountered strained her. timbers so as to cause a large opening to be made in her planking below deck, so that she filled with water rapidly, and that her loss is due to that cause. This theory is inconsistent wilh the testimony showing that the vessel was staunch, sound, and. ■newly-caulked; and also inconsistent with the fact that she did not go' straight down, but laid over on her side, which a vessel loaded and ballasted as she was would not have done if she had become waterlogged through an opening below her deck. The theory of the cross libelants is that the vessel was capsized by reason of having, insufficient ballast, and being loaded on deck so. as to make
3. The evidence is direct and positive to the effect that neither Mr. Pacey, nor any of the managing officers of the MacDougall & Southwick Company, knew, or had reason to suspect, that the vessel was not as she appeared to be; that is, sound and seaworthy throughout, properly ballasted, stowed, equipped, and manned for the voyage.. They do not know what caused the disaster, and they cannot be blamed for not knowing, because, after studying the voluminous testimony, and giving due heed to the arguments of counsel, and considering all the facts brought to my attention, I do not know what caused the disaster, and the witnesses do not pretend to know. In the argument the owners are censured for neglecting to provide life-boats, rafts, and life-preservers. I find from the evidence that it would have been nearly, if not quite, impossible for the Jane Grey to have carried a better supply of boats." It is true that the two launches were owned by passengers, but the objection to their being considered part of the equipment of the vessel for the voyage is a mere quibble. As a matter of fact, the survivors who were actually rescued by the use of one of those steam launches did not, at the time of extreme peril, stop to inquire who owned the boat, nor refuse to seek safety in her because she had not been provided by the owners of the Jane Grey specifically -for use as a lifeboat. The seaman Carlson testifies that the ship’s boats were in such a bad condition as to be unfit for use, but he is contradicted in this regard by other witnesses, and his testimony in other respects is certainly inaccurate. For instance, he fixes the day of departure of the Jane Grey from Seattle on Tuesday, and says that she sailed out of the Straits the following Saturday night, and that she went down on Monday morning; while the truth is, she left Seattle Thursday, sailed out of the Straits Saturday morning, and went down on Sunday morning. And again, he testifies that the captain was on deck one hour before the vessel began to sink, while it is proved by all the other testimony bearing on the point, including the captain’s own admissions, that he went to bed at 9 o’clock and did not again come out of the cabin until the vessel was in a helpless condition. I therefore reject the testimony of Mr. Carlson as to the condition of the boats. If there was any neglect to furnish the boats with oars and rowlocks, that is a mere matter of detail in the manner of the use of the equipments which were furnished by the owners. The testimony shows that there were plenty of oars on board the schooner, and rowlocks; and, if they were not placed convenient for use in an emergency, the captain and crew.alone are to blapie for such neglect.
4. Having employed men of experience and skill in such work to overhaul the vessel, make what repairs were found to be needed, and supply and equip her for the voyage and stow the cargo, and there being no evidence of neglect or mistake in these particulars on the part of the owners or their employes, I must find that they did exercise due diligence to make the vessel seaworthy, and properly manned, equipped, and supplied. Therefore there is no liability for loss of property. The Harter act exempts the vessel, her owners, agents, and charterers from all liability.
5. All that is available for distribution to compensate the sufferers by loss of the Jane Grey is the amount of pending freight, the vessel herself being a total loss. The phrase “freight then pending,” as used in the statute, has been construed to include freight prepaid for the carriage of merchandise, and passage money, and it has been decided by the highest authority that the phrase should not be taken in a narrow sense as meaning only the freight to be earned by a successful conclusion of the vovagé. The Main v. Williams, 152 U. S. 122-133, 14 Sup. Ct. 488, 38 L. Ed. 384. The