after stating the case, delivered the opinion of the court.
This сase raises two questions: (1) as to whether, under Revised Statutes, § 4283, the liability of a ship owner for the “freight then pending” extends to passage money; and, (2), whether it extends to freight prepaid at the port of departure.
1. By the common law, as administered both in England and America, the personal liability of the owner of a vessel for damages by collision is the same as in other cases of negligence, and is limited only by the amount of the loss and by his ability to respond.
Wilson
v. Dickson, 2 B.
&
Ald. 2;
The
Dundee, 1 Hagg. 109, 120;
The Aline,
1 W.
The earliest legislation in England upon the subject is found in the act of 7 Geo. 2, c. 15, passed in 1734, which enacted that no ship owner should be responsible for loss or damage to goods on board the ship by • embezzlement of the master or mariners, or for any damage occasioned by them without the privity or knowledge of such owner, further than the value of the ship and her appurtenances, and the freight due or to grow due for the voyage, and if greater damage occurred it should be averaged among those who sustained it. By subsequent acts this limitation of liability -was extended to losses in which the master and mariners had no part, to losses by their negligence, and to damage done by collision, while there was an entire exemption of liability for loss or damage by fire or for loss of gold and jewelry, unless its nature and value were disclosed. In all these statutes the liability of the owner was limited to his interest in the ship and freight for the voyage.
By section 505 of the Merchants’ Shipping Act of 1854, 16 and 17 Yict. c. 131, freight was deemed to include the value of the carriage of goods,
scaá passage money.
Owing, probably, to some difficulties encountered in determining at what point of time the value of the ship should be taken, and to establish a more uniform and equitable method of limiting the liability of the owner, the Merchant Shipping Act Amendment Act of 1862, extended the provisions of the prior acts to foreign
The earliest American legislation upon this subject is found in a statute of Massachusetts passed in 1818, and revised in 1836. This was taken substantially from the statute of George II. It was followed by an act of the legislature of Maine in 1831, copied from the statute of Massachusetts.
The attention of Congress does not seem to have been called to the necessity for similar legislation until 1848, when the case of
The
Lexington, reported under the name of the
New Jersey Steam Navigation Co.
v.
Merchants Bank,
By section 4283, upon the construction of which this case depends, “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 еxceed the amount or value of the interest of such owner in such vessel, and her freight then pending.”
Our attention has not been called to any express adjudications upon the question involved here, but, so far as the courts have been called upon to consider the subject, they have usually given to the word freight the same definition. Thus in
Flint
v. Flemyng, 1 B.
&
Ad. 45, which was an action upon an insurance pоlicy upon freight, it was held that plaintiff could recover freight upon his own goods, Lord Tenterden holding that the word “freight,” as used in policies of insurance, imported the benefit derived from the employment of a ship. So, in
Brown
v. Harris,
It is true that in the case of
Lewis
v. Marshall, 7 Man.
&
Gr. 729, it was said that freight was a term applicable to goods only, but this was said with reference to a contract
The real object of the act in question was to limit the liability of vessel owners to their interest in the adventure; hence, in assessing the value of the shiр, the custom has been to include all that belongs to the ship, and may be presumed to be the property of the owner, not merely the hull, together with the boats, tackle, apparel, .and furniture, but all the appurtenances, comprising whatever is on board for the object of the voyagе, belonging to the owners, whether such object be warfare, the conveyance of passengers, goods, or the fisheries. The Dundee, 1 Hagg. 109; Gale v. Laurie, 5 B. & C. 156, 164. It does not, however, include the cargo, which, presumptively at least, does not belong to the owner of the ship.
There is no reason, however, for giving to the word “ freight ” а narrow or technical definition. The fares of the passengers are as much within the reason of the rule as the freight upon the cargo. It would be creating a distinction without a real difference to say that a transatlantic steamer laden with passengers should be wholly exempt from the pаyment of freight, while another, solely engaged in the carriage of merchandise, should be obliged to pay the entire proceeds of her voyage. The words “ freight pending,” in section 4283, or “.freight for the voyage,” section 4284, were copied from the English statute of George II, which, in turn, had taken them from the Marine Ordinance of 1681, and the prior Continental codes; but in both cases they were evidently intended to represent the
earnings
of the voyage, whether from the carriage of passengers.or merchandise. If these words were used
2. Nor by the use of the word “pending” was it intended to limit the recovery to the uncollected freight, or such as had not been completely earned at the time of the disaster. As the object of the statute was to curtail the amount that would otherwise be recoverable, it should not be construed to abridge the rights of the owner of the injured vessel to a greater extent than its language will fairly warrant. This is the view taken in Wilson v. Dickson, 2 B. & Ald. 2, 10, in which the court held the words “freight due or to grow due” included all the freight for the voyage, whether paid in advance or not.
It is worthy of remark in this connection that the codes of the Netherlands, of Chili, and of the Argentine Republic, in the sections above quoted, extend the liability for freight to such as is earned and yet to be earned.
The English courts have held, very properly we think, that these statutes should be strictiy construed. As observed by Abbott, C. J., in Gale v. Laurie, 5 B. & C. 156, 164: “Their effect, however, is to take away or abridge the right of recovering damages, enjoyed by the subjects of this country at the common law, and there is nothing to require a construction more favorable to the ship owner than the plain meaning of the word imports.” To the same effect are the remarks of Sir Robert Phillimore in The Andalusian, 3 P. D. 182, 190, and in The Northumbria, L. R. 3 Ad. & El. 6, 13. Speaking of this statute, Lord Justice Brett, in Chapman v. Royal Netherlands Nov. Co., 4 P. D. 157, 184, remarked: “ A statute for the purposes of public policy, derogating to the extent of injustice, from the legal rights of individual parties, should be so construed as to do the least possible injustice. This statute, whenever applied, must derogate from the direct right of the ship ownеr against the other ship owner. ... It should be so construed as to derogate as little as is possible consistently with its phraseology, from the otherwise legal rights of the parties.”
"While, from the universal habit of insuring vessels, the application of the statute probably results but rarely in an
We are satisfied with the conclusions of the court below upon both of the points involved, and its decree is, therefore,
Affirmed.