73 F. 846 | D. Or. | 1896
In December, 1889, the steamship Oregon collided with the ship Olan Mackenzie. John Simpson, sis master of the Mackenzie, and on behalf of (.hat ship, began suit against the Oregon for damages resulting from the collision. The Oregon was thereupon arrested on process, and a monition lo ail persons interested was published. On January 2, 1890, the Oregon Short Line & Utah Northern Railway Company, as charterer of the Oregon for 99 years from January 1, 1887, riled a claim to the steamship, which was delivered to the claimant, on a stipulation in the sum of $2(50,000, to abide and perform the decree of the court. After the discharge of the steamship from arrest, libels of intervention v ere filed by Simpson in behalf oí himself and wife for loss of personal effects, in which were joined some 18 of the crew having like claims, and by James'Laidlaw, British vice consul at this port, its administrator of the estates of Charles Austin and Matthew Reed, whose deaths were caused by the collision, and by James Joseph, another of the crew of the Mackenzie, injured by the collision. Exceptions wrere taken by the claimant to these libels of intervention upon the ground that the discharge of the Oregon from arrest precluded the parties from proceeding by intervention in the original suit. As to the intervention of Laidlaw, the further objection was made that the right of action for the deaths of Austin and Reed did not survive to the administrator. These exceptions were overruled in the district court, and the claimant was ordered to pay
“The decree of the circuit court must therefore he reversed, with costs to the original libelants as against the steamship Oregon, and with costs to the Oregon as against the interveners, and the case remanded to the circuit court for further proceedings in conformity with this opinion; without prejudice, however, to the right of the court below, or of the district court, in its discretion, to treat the intervening petitions as independent libels, and to issue process thereon against the steamship Oregon, her owners or charterers, or to take such other proceedings thereon as justice may. require.” The Oregon, 158 Ü. S. 211, 15 Sup. Ct. 804.
In pursuance of tbe mandate of the supreme court on this order this court entered its order permitting tbe libels of intervention to stand as original libels from tbe date of their filing, and directing process to issue for the seizure of the Oregon. Exceptions are filed to the libels of intervention upon the ground that the claims made therein are stale, and are barred by the laches of each of said libel-ants; and that as to tbe claim of Laidlaw, administrator, the facts relied upon are not sufficient to entitle the administrator to the relief prayed for.
In support of Laidlaw’s right to recover in this proceeding, as administrator, two sections of the Oregon statute are cited as follows:
“Sec. 371. When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action had he lived against the latter, for an injury done hy the same act or omission.”
“See. 3690. Every boat or vessel used in navigating the waters of this state * * * shall be liable and subject to a lien * * * for all * * * damages or injuries done to persons or property by sucb boat or vessel.”
It was held, when the case was first in this court, that the lien given hy section 3690 accompanied the right of action given by section 371 to the representatives of deceased persons. This part of the opinion of Judge Deady is confined to a mere statement of the right of lien in favor of the personal representatives of the deceased persons, which it is assumed necessarily follows from the statute creating liens in favor of persons injured hy boats and vessels. The Oregon, 45 Fed. 77. In The Corsair, 145 U. S. 344, 12 Sup. Ct. 949, the court refers to this case as one where “a lien was given by the state statute, and was enforced in the admiralty.” A similar reference is made to this decision in The City of Norwalk, 55 Fed. 109. In the case of The Premier, 59 Fed. 800, Judge Hanford held, under a statute like that of this state, upon the authority of the decision
It is claimed that the decision thus made in this case is not conclusive of this question, since the decree as to the interveners was reversed in the supreme court. It is also contended that the principle of the decision in the case of The Corsair is against the right of die representatives of deceased persons to avail themselves of the lien of the statute. In that case the court says:
“As we are to look, then, to the local law in this instance for the right to take cognizance of this class of cases, wo are bound to inquire whether the local law gives a lien upon the offending thing. * * * The Louisiana act declares, in substance, that the right of action for every act of negligence which causes damage to another shall survive, in case of death, in favor of the minor children or widow of the deceased; and, in default of these, in favor of the surviving father and mother, and that such survivors may also recover the damages sustained by them by the death of the parent, child, husband or wife. Evidently nothing more is here contemplated than an ordinary action according' to the course of Hie law as it is administered in Louisiana. There is ño intimation of a lien or privilege upon the offending thing, which, as we have already held, is necessary to give a court of admiralty jurisdiction to proceed in rem.”
The court cites at some length several cases under the English acts, among them the case of Seward v. The Vera, Cruz, 10 App. (las. 59-73, and it says that;
“While these cases turn upon the construction of the English acts, the courts have been guided in such construction by principles which are of general application both in this country and in England.”
These cases arose under what is known as “Lord Campbell's Act,” (9 & 10 Viet. c. 93), which is “An act for compensating the families of persons killed by accident.” The Oregon statute in question (section 371) is derived from Lord Campbell’s act, and is substantially like it. By the English admiralty court act of 1861, jurisdiction was given to the high court of admiralty over “any claim for damage done by any ship,” and it was provided that this jurisdiction might be exercised either by proceedings in rem or by proceedings in personam. The question arose whether this right to proceed in rem under the admiralty act was available to the representatives of deceased persons under the act (Lord Campbell’s act), which allowed such representatives to maintain an action for injuries resulting in death, where the deceased might have maintained such action had he survived. It was held that Lord Campbell’s act was for the general case, and not for particular injury by ships, and that this pointed to a common-law action, to a personal liability, and was absolutely at variance with the notion of a proceeding in rem. Ir is contended for The Oregon that, if the right to proceed in rem under the admiralty act was not within the act which gave a right of action to the representatives of deceased persons, the right to proceed in rem to enforce the lien of section 3690, upon the same; prin
The state statute which gives to the representatives of deceased persons a right of action provides that such action shall be commenced within two years after the death, and this limitation is held to operate as a limitation of the liability itself as created, and not of the remedy alone (The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140); and it is therefore to be distinguished from the limitation by a state statute of the remedy in a matter of which, owing to its maritime character, admiralty has jurisdiction. It is contended for the intervention of Laidlaw that the filing of his libel of intervention within two years was the commencement of an action within the mean
As to the other interveners, no such fixed and arbitrary period of time in bar of their right is established; and while courts of equity, as a general rule, in determining the question of ladies, proceed upon the analogy of statutes of limitation, yet the court will always adopt a shorter or longer time, if the circumstances of the particular case require it. The delay that has taken place in the prosecution of these claims is due to the erroneous belief of the interveners that the stipulation filed by the claimant for the release of
It is argued that if the interveners had caused the arrest of the Oregon at the time of the interventions the lessee company would have provided security for the claims, and that, such lessee having-in the meantime become insolvent, the owners of the Oregon are prejudiced by the fact that such security was not given. But this result is in no way attributable to the delay that has taken place. The owners were at all times advised of the liability of the leased property for damages of this character. If they did not secure themselves against it, they might have done so. The nature of the claims was made clear in the proceedings had upon the interventions. They knew that such claims were being prosecuted in good faith, and were enforceable against the Oregon in a proper proceeding; and the circumstances were such as to advise them that such a proceeding would be resorted to if the decision should be in favor of the sureties on the stipulation under which the ship was released.
The exceptions are sustained as to the intervention of Laidlaw and overruled as to the other interveners.
Hill’s Am. Laws, §§ 14, 15.