12 F. 891 | U.S. Circuit Court for the District of Eastern New York | 1882
That the steam-ship was wholly in fault in the collision, and responsible for the damages caused to the bark, and that the bark was free from fault, and that the liability of the respondent, unless limited, follows that of the vessel, are propositions entirely clear and not contested.
The respondent contends that he is entitled to the benefit of the limitation of liability provided for by the statutes of the United States. The provisions on the subject in force at the time of this collision are found in sections 4282 to 4285 of the Revised Statutes, which are as follows:
“ Sec. 4282. USTo owner of any vessel shall be liable to answer for, or make good to any person, any loss or damage which may happen to any merchandise whatsoever which shall be shipped, taken in, or put on board any such vessel by reason or by means of any Are happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner.
“ See. 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 ease exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.
“ Sec. 4284. “Whenever any such embezzlement, loss, or destruction is suffered by several freighters or owners of goods, wares, merchandise, or any property whatever on the same voyage, and the whole value of the vessel and her freight for the voyage is not sufficient to make compensation to each of them, they shall receive compensation from the owner of the vessel in proportion to their respective losses; and for that purpose the freighters and owners of the property and the owner of the vessel, or any of them, may take the appropriate proceedings in any court for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties entitled thereto.
“ Sec. 4285. It shall be deemed a sufficient compliance on the part of such owner with the requirements of this title relating to his liability for any embezzlement, loss, or destruction of any property, goods, or merchandise, if he shall transfer his interest in such vessel and freight for the benefit of such claimants to a trustee to be appointed by any court of competent jurisdiction to act as such trustee for the person who may prove to be legally entitled thereto, from and after which transfer all claims and proceedings against the owner shall cease.”
Sections 4282 to 4285 of the Revised Statutes are re-enactments of sections 1, 3, and 4 of the act of March 3, 1851, (9 U. S. St. at Large, 635, 636,) which sections were as follows:
*895 “Section 1. No owner or owners of any ship or vessel shall be subject or liable to answer for, or make good to any one or more person or persons, any loss or damage which may happen to any goods or merchandise whatsoever which shall be shipped, taken in, or put on board any such ship or vessel by reason or by means of any Are happening to or on board the said ship or vessel, unless such firo is caused by the design or neglect of such owner or owners: provided, that nothing in this act contained shall prevent the parties from making such contract as they please extending or limiting the liability of ship-owners.
“ See. 3. The liability of the owner or owners of any ship or vessel for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or merchandise shipped or put on board of such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter or thing, loss, damage or forfeiture done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall in no ease exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel, and her freight then pending.
“Sec. 4. If any such embezzlement, loss, or destruction shall be suffered by several freighters or owners of goods, wares, or merchandise, or any property whatever, on the same voyage, and the whole value of the ship or vessel and her freight for the voyage shall not bo sufficient to make compensation to each of them, they shall receive compensation from the owner or owners of the ship or vessel in proportion to their respective losses; and for that purpose the said freighters and owners of the property, and the owner or owners of the ship or vessel, or any of them, may take the appropriate proceedings in any court for the purpose of apportioning the sum for which the owner or owners of the ship or vessel may be liable among the parties entitled thereto; and it shall bo deemed a sufficient compliance with the requirements of this act on the part of such owner or owners, if ho or they shall transfer his or their interest in such vessel or freight for the benefit of such claimants to a trustee to be appointed by any court of competent jurisdiction to act as such trustee for the person or persons who may prove to be legally entitled thereto, from and after which transfer all claims and proceedings against the owner or owners shall cease.”
The case of Nat. Steam Nav. Co. v. Dyer, (the case of The Scotland,) decided by the supreme court March 20, 1882, 4 Morr. Trans. 277, is authority for the following points:
(1) The act of 1851 applies to owners of foreign as well as domestic vessels, and to cases of collision on the high seas as well as in the waters of the United States, except when the collision occurs between two vessels of the same foreign nation, and it is shown what the law of that nation is, or, perhaps, of two foreign nations having the same maritime laws, and it is shown what that law is.
(2) The maritime law of the United States, as found in the act of 1837, is the same as the maritime law of Europe, and is different from that of Great Britain in this that the former gauges the liability by the value of the guilty
(3) The maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country.
(4) The courts of every country will administer justice according to its laws unless a different law be shown to apply; and such rule applies to transactions on the high seas; so that when a collision occurs on the high seas between two vessels, controversies arising therefrom will be governed in the courts of this country by our laws, unless the two colliding vessels belong to the same country, or, perhaps, to different countries using the same law. when they will be governed by such foreign law if it be proved.
(5) Ship-owners may avail themselves of the defence of limited liability by answer or plea, as well as by the power of proceeding prescribed by the rules promulgated by the supreme court on the subject; at least, so far as to obtain protection against the libellants in a suit in admiralty to recover for the damages caused by the collision.
(6) If the ship-owners plead the statute in such suit a decree may oe made in it requiring them to pay into court the limited amount fór which they are liable, and distributing the said amount pro rata among the libellants, such proceedings being an “ appropriate” proceeding under the statute.
(7) It is not necessary that the owners of the guilty vessel should surrender and transfer her in order to claim the benefit of the statute, but they may plead their unanimity in such suit, and, if found in fault, may abide a decree against them for the value of such vessel and freight, as found by the proofs.
The answer in this ease alleges that if the claim of the libellants for damages shall be established against the respondent, the liability of the respondent therefor “is limited to the amount or value of his interest in the said steamer Great Western, and herfreight upon the voyage during which such collision occurred, and this respondent’s said interest in' said steamer and freight is of no value whatever.” The answer was sworn to and filed November 25, 1876. The collision occurred March 25, 1876. The answer does not set up that the steamer was stranded or suffered any injury on her voyage after the collision before reaching New York. Still, the allegation in the answer, as to the limitation, of the liability of the respondent, must be held to be adequate to allow him the benefit of such limitation of liability as the statutes of the United States afford to him. The allegation that his interest is of no value may be regarded as surplusage, leaving open the question as to what is the amount or value of his interest for which he is to be held liable.
The bark was a Norwegian vessel and the steamer was a British vessel, and no law of either country is proved as a fact. Therefore the case must be governed by the provisions of the statute of the United States.
In Norwich Co. v. Wright, 13 Wall. 104, the offending steamer, the City of Norwich, was so injured by the collision that she took fire as a direct consequence of such injury and was so burned that she sank. In that case the supreme court said: “By the maritime law, the liability of the ship-owner was limited to his interest in the ship and freight for all torts of the master and seamen, whether by collisions or anything else, and sometimes even for the master’s contracts; and his liability was so strictly limited that he was discharged by giving up that interest, or by the vessel being lost on the voyage.” The court then went on to hold that the act of 1851 covered a limitation of liability in case of injury to another vessel or her cargo by collision. It then proceeded to say that the act of 1851 contained a provision whereby the ship-owner could discharge himself, as in the maritime law, by giving up the vessel and her freight; that such a provision was not found in the statutes of Great Britain, Massachusetts, or Maine, and could not have been inserted without direct reference to the like provision of the maritime codes; and that the act of 1857 intended to adopt the rule of the maritime law on the subject, so far as relates to torts. This was a decision that the owner of the steamer could avail himself of the benefits of the act of 1857 by surrendering the steamer, and any freight that might have accrued, without paying what was the value of the steamer before the collision, and the value of the freight for the voyage.
In the case of In re The Norwich, 17 Blatchf. C. C. 221, the owner of the steamer, the City of Norwich, petitioned for a limitation of its liability growing out of said collision. It was found by the court that within half an hour after the collision the boat took fire and was so burned that she sank in about 20 fathoms of water, and that the fire was a direct consequence of the collision, and inseparable from it. The court (Mr. Justice Strong) said:
“ The limit of liability prescribed by the act of congress is that it shall in no ease exceed the amount or value of the interest of the owner or owners in the offending ship or vessel, and her freight then pending. This presents the question: At what point of time is the value of the owner’s interest to be taken? Is the measure of the owner’s liability or its maximum the value of*898 the ship and her freight before the injury was done? or the value at some time subsequent to the injury, when proceedings may be instituted to ascertain its amount? or is it the value immediately after the fault has been committed; as, for example, in a ease of collision immediately following the collision caused by it ?”
The court then held that by the maritime law all that'the sufferers by the misconduct of an offending vessel were entitled to was the vessel itself after the injury had been committed, together with her freight; that that was the measure of the liability adopted by the act of 1851; that the owners of the steam-boat were not liable to the extent of the value of the steam-boat immediately before the collision ; and that such was the decision in 13 Wall. 104. The steam-boat had been raised and repaired, and had become of the value of $70,000, before the petition for a limitation of liability was presented. It was urged that that valué must be taken as the measure of the owner’s liability. As to this the court said:
“ To hold that the owners are liable to the extent of that valuation would be substantially to require them to surrender not only the ship and her freight, but also a sum of money equal to all they expended upon her in raising and repairs. Such, I think, would be a departure from the obvious meaning of the statute, and not required by the maritime law. * * * I cannot doubt that the measure of liability recognized by the maritime law, and by the act of congress, is the value of the offending ship in the condition in which she was immediately after the disaster, adding the freight. Then the claims of the persons injured arose, the claims which the statute limits. The extent of the limitation is not a shifting one, varying with the times when the protection of the act may be sought, any more than it can be enlarged or diminished by the choice of the mode of obtaining that protection. Certain it is that if, immediately after the collision, the steam-boat owners had surrendered the vessel and freight, or transferred them to a trustee, they would have been discharged. Her value and her freight then pending were then all that they were liable for. That was then the extent of their loss. I cannot see that their liability can be increased by anything that may have occurred thereafter. It is the vessel, as she then was, that could have been transferred in satisfaction of all claims, if the owners liad elected that mode of obtaining their discharge. And it is the value as it then was, which is the equivalent of the vessel, that might, then, have been paid in pursuance of an apportionment made by the court. Had the vessel'proceeded on her voyage after the collision, and had she met with another disaster, occasioned by the fault of the master, by which her value had been greatly reduced, could she then have been surrendered or transferred in full satisfaction of the claims against her, or her owners, arising out of her first fault? Would her value, after the second disaster, have been the measure of the owner’s liability ? I cannot think such a position can be maintained. Surely, such is not the spirit of the statute. And, if not, it seems equally plain that the*899 liability of the owner is not enlarged by the fact that, after the collision, tho boat has been raised and repaired by them at largo expense, or, in other words, has increased in value. * * * The liability of tho owner is discharged either by transferring the vessel and freight, or by paying their equivalent; that is, the value of what they might have transferred in discharge, according to the apportionment of the court. The owners have their option of these two modes. They may give up the vessel and freight, or they may retain them and pay their value. But the measure or limit of liability in each ease is the same. Yery plainly, it is not intended that the creditors shall obtain more when one mode of proceeding is adopted than when the other is followed. But, as I have said, all that the owners are required to transfer is tho ship in her damaged condition, as she was immediately after the injury was inflicted. Equivalent to that, is her value at that timé.”
The court held that the value of the boat immediately after the collision and fire, as she then was, lying at the bottom, which value was $2,200, together with her pending freight, was the extreme measure of the owner’s liability and was the amount to be apportioned. There was $600 of pending freight, hut as it was wholly lost, and not earned, it was held to have been of no value immediately after the collision, and the owner was held not to be liable for it.
In The Benefactor, 103 U. S. 239, 246, the court said:
“ The counsel for the appellees is mistaken is supposing that the value of the offending vessel at the time of the collision furnishes the only criterion of the amount for which her owners are liable. In Norwich Co. v. Wright, 13 Wall. 104, we held that the owners of the offending vessel could, under the statute, discharge themselves from personal liability by surrendering the ship and freight. This would imply that the value of the ship at the time of surrender, with the addition of tho pending freight, if the surrender is made in a reasonable time, would furnish a proper criterion of the amount of liability. In the case cited it was also said (p. 124) that ‘if the vessel were libeled and either sold or appraised, and her value deposited in court, this sum, together with the amount of the freight, (when proper to be added,) would constitute the res or fund for distribution. Tn England, the value of the vessel immediately before the collision was regarded as the trae criterion of liability. But the English law is different from ours. It makes tho owners liable to the extent of the value of tho ship at the time of the injury, even though tho ship itself he lost or destroyed at tho same time; whereas our law, following tho admiralty rule, limits the liability to tho value of the ship and freight after tho injury has occurred, so that if the ship is destroyed the liability is gOTie; and, whether damaged or not damaged, the own ers may surrender her in discharge of their liability. What may be tho rule if, after tho collision have occurred, the offending vessel should mee., with other disasters, greatly impairing her value, is a question which may require further consideration when the case arises. JSbthing of the kind is alleged in the present ease.”
“In the case of Norwich Co. v. Wright, 13 Wall. 116, we had occasion to state that the general maritime law of Europe only charges innocent owners to the extent of their interest in the ship for the acts of the master and crew, and that if the ship is lost their liability is at an end. * * But while this is the rule of the general maritime law of Europe, it was not received as law in England nor in this country until made so by statute. The English statutes, indeed, have not yet adopted to its full extent the maritime law on this subject. They make the owners responsible to the value of the ship and freight at the time of the injury, — that is, immediately before the injury,— although the ship be destroyed or injured by the same act, or afterwards in the same voyage, while our law adopts the maritime rulé of graduating the liability by the value of the ship after the injury as she comes back into port and the freight actually earned, and enables the owners to avoid all responsibility by giving up the ship and freight if still in existence, in whatever condition the ship may be, and without such surrender subjects them only to a responsibility equivalent to the value of the ship and freight as rescued from the disaster. But while the rule adopted by congress is the same as the rule of the general maritime law, its efficacy as a rule depends upon the statute, and not upon any inherent force of the maritime law. * * * Therefore, while it is now a part of our maritime law, it is, nevertheless, statute law, and must be interpreted and administered as such. In that case the Scotland, the offending steamer, suffered so severely from the collision that she sank and was totally lost before she completed the voyage she was on at the time of the collision, and only some strippings were saved from her.”
The question to be determined in the present case is whether the respondent is freed from the liability he would have been under if the steamer, uninjured by the collision, had safely reached New York, by reason of the fact that she, after such collision, was herself lost during the same voyage from a cause not growing out of such collision.
An examination of section 4283 shows that the limitation of liability is applied to three distinct cases: (1) Loss of property shipped on the vessel; or (2) damage by collision to other vessels and their cargoes ; or (3) any other damage or forfeiture done or incurred. Each is independent of the other. The occurrence of any one is sufficient ground for a limitation. The liability exists to the extent not affected by the limitation, and exists because of the happening of the event, the character of which is such that the liability is made to cease when it reaches such extent. The liability in each case comes into existence by the happening of the event, and goes on until it reaches, in each case the amount or value of the interest of the owner in the vessel, if that is not greater than the loss or damage. If section 4283 stood alone, it might be said that it intended to give the value of the
These views are supported by the provisions of section 4285, under which the ship-owner may make the required compensation and discharge his' liability by transferring his interest in the vessel' and freight to a trustee to be appointed by a court. This he cannot do till an opportuntity is given to do so. When he does it, the interest to be transferred is the interest as it stands at the time of the transfer, if that is made in a reasonable time, and nothing has intervened amounting to a waiver or forfeiture of the right to make the transfer. These views are in accordance with what has been held to be the general principle of the statute of the United States, namely, an adoption of the maritime law of Europe in respect to a limitation of liability for torts of the master and crew.
It is declared in Norwich Co. v. Wright that by the maritime law the ship-owner was discharged by the loss of the vessel on the voyage, or by giving up what was left of her after a disaster to her on the vogage.
Again, in Nat. Steam Nav. Co. v. Dyer, the rule of the maritime law is stated to have been only to charge innocent owners to the extent of their interest in the ship for the acts of the master and crew, and to regard their liability as at an end if the ship was lost, and it is there said that our statute adopts such maritime rules. The reservation made in the case of The Benefactor, that a question like that in the present case may require further consideration when it arises, must be accepted as only an expression of that properjudicial caution which leaves open in form, questions that are not sub juclice.
Np effect can arise from the fact that the Great Western was stranded by the negligence of her master and crew. The collision with and sinking of the bark were caused by the negligence of the master and crew of the steamer; yet the ship-owner’s liability is subject to limitation. If the subsequent loss of the offending vessel destroys his liability, it must do so whether the loss be caused by the negligence of the master and crew, or by a peril of the sea without such negligence. The general principle of the maritime law and of our statute is that the ship-owner-exposes to loss, resulting from the faults or neglects of the master and crew to whose care he intrusts his vessel, only the property intrusted to them, and can free himself from
Attention is directed by the libellants tó the fact that the cases of The City of Norwich and The Scotland arose under the act of 1851, while the present case arose under the Revised Statutes, and to certain differences of language between the two enactments. In section 3 of the act of 1851 it is said that the liability of the “owner or owners” shall not exceed the amount or value of the interest of “such owner or owners respectively” in the vessel. In section 4283 of the Eevised Statutes it is said that the liability of “the owner” shall not exceed the amount or value of the interest of “such owner” in the vessel. In section 4 of the act of 1851 it is said that “such owner or owners” may transfer “his or their interests.” In section 4285 it is said that “such owner” may transfer “his interest.” On these differences of language it is contended that the Eevised Statutes exclude a limitation of the liability of a part owner to the value of his interest in the vessel and freight, and do not provide any limitation short of the interest of the owner or owners collectively in the whole vessel. There is no force in this contention. By section 1 of the Eevised Statutes it is provided that in determining the meaning of the Ee-vised Statutes words importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular. It was undoubtedly because of this general provision that the language of the act of 1851 was condensed in the Bevision. Bead by the light of such general provision, and in view of the principles on which the Bevision was made, it must be held that the new language in sections 4283 and 4285 is the result merely of revision, simplification, rearrangement, and consolidation, with a view to the re-enactment of the same substance and meaning. Murdoch v. City of Memphis, 20 Wall. 590, 617; Smith v. Fisk, 23 Wall. 374; U. S. v. Claflin, 14 Blatchf. C. C. 55; The L. W. Eaton, 9 Ben. 289, 298-303. The abosre re
It follows from these considerations that the respondent is entitled to have his liability to the libellant limited to the value of his interest in the steamer as such interest existed after she was stranded and wrecked, with the addition of her pending freight. But the respondent contends that under section 4285 the libel must be dismissed because he has made the transfer provided for by making the transfer to the libellants dated April 19, 1877. Under the statute, the transfer, to be effective, must be a transfer of an existing interest in the transferrer, and he must not before have transferred his interest voluntarily to some other person. By the abandonment to the underwriters, and the subsequent sale of the wreck and of the materials saved therefrom for account of the underwriters, and pursuant to directions from the owners before any transfer to the libellants was made, such right of transfer was lost, and the attempted transfer was nugatory. The abandonment to the underwriters transferred to them the property. Whether, under the maritime law, there could or could not have been a surrender after an abandonment to underwriters, it is plain that our statute requires a transfer which will carry title, so that under rule 55 in admiralty the transferee may realize the proceeds for the benefit of the person or persons e'ntitled to damages.
It is contended by the libellants that the transfer which did not include the insurance money could be effective in this case, and that the amount for which the respondent is to be held liable must include such insurance money. On the other hand, the respondent contends that the libellants have no interest in such money.
In Norwich Co. v. Wright, 13 Wall. 117, a remark of Pardessus (Droit Comm, part 3, tit. 2, e. 3, § 2) is quoted as follows: “The owner is bound civilly for all delinquencies committed by the captain within the scope of his authority, but he may discharge himself therefrom by abandoning the ship and freight, and if they are lost it suffices for his discharge to surrender all claims in respect to the ship and its freight.” The court adds, “such as insurance,” etc. On the basis oí this remark it is recited in Dyer v. Nat. Steam Nav. Co. 14 Blatchf.
The question as to the value of the steamer and her pending freight after her wreck seems, in the evidence, to have been gone into to an extent sufficient to show, on the evidence as it stands, that such net value -was only $1,796.14. But the libellants are at liberty, before a decree is entered on this decision, to apply to this court, on notice, on special cause to be shown by affidavit, for an order of reference to a commissioner to assess such value on the present evidence and on further proofs.
The amount decreed against the respondent by the district court was $17,023.44 damages, with interest on $14,371.44 from May 6, 1876, as an average date, to the date of the decree, and $762.62 costs.
The respondent alone has appealed. He is entitled to his costs in
See 9 Ben. —
