364
FEDERAL REPORTER,
vol. 44.
signals to the Rose not to take hold. But as the Rose at once gave a line to the Sisson the officer thinks, as he says, that his request was misunderstood. If it had appeared that the Rose had intentionally hold in opposition to the known direction of the officer in charge of the steamer I should have refused her any compensation, but that cannot be found to be the fact upon the evidence. The Rose was the most powerful and valuable ofall the tugs, but the service rendered by her was similar to that rendered by the Niel, for which no claim is made. In so far as the effort of the Rose enabled the Sisson to get into position, it was valuable, but beyond getting the Sisson into position her services were unnecessary. The Niel left when the Carroll was put in position, and the Rose could have left when the Niel did without interfering with the relief of the steamer. Under all the circumstances I allow to the tug Howard Carroll, her officers and crew, the sum of $1,250; to the tug John Fuller, her officers and crew, the sum of $800; to the tug Henry T. Sisson, her officers and crew, the sum of $1,000; to the tug George L. Hammond, her officers and crew, the sum of $650; to the tug A. C. Rose, her officers and crew, the sum of $800.
GOKEY
et al.
t7. FORT
(District Court, S. D. New York. December 24, 1890.) 1, SHIPPING-LIMITATION OF LUBILITy-AOT JUNB 24 1884-PBRSONAL CONTRAOTS.
The act of June 26, 1884, limiting the liability of the owners of vessels "ou account of the same" to their interest in the vessel and the freight peDding, is to be construed . ail in part materia with the act of 1851, (Rev. St. §§ 4283-4285,) and in accordance with the general maritime law, and does not embrace the personal contracts of , such owners, or such as they have adopted as their personal liabilities. Repairs were made on -the schooner P. in her home port, by order ot the managing agent, with knowledge of some of the owners. On the third voyage afterwards, through her fault, a collision claim arose ag-ainst her, exceeding her value. 'l'he owners, upon the surrender of the vessel, and pending freight thereupon ohtained a decree limiting their liability, which decree was pleaded in bar of the claim in this suit against the owners in personam for the bill of repairs. Held, that the decree was not a bar; that the claim was a personal contract of the owners, not . SUbject to limitation, or, if so, only upon surrender of the vessel and freight as they existed at the close of that voyage, free from liens or demsnds growing out of prior or subsequent voyages. SUIE-LIABILITY FOR REPAIRS-COLLISION,-RES ADJUDIOATA.
In Admiralty. Alexander & Ash, for libelants. . J)wen, Gray & Sturgis, for respondents· The libelants sue to recover a bill for repairs upon the Pharo, of New Jersey, in her home port, in May, 1889. The respondents were the owners of the vessel at the time. The amount of the bill is not disputed, but the respondents set up as a defense the proceedings for the limitation of their liability subsequently taken, and . BROWN, J. SChOOll'ef J. J.
GOKEY V. FORT.
365
a decree of this court therein, exempting them, in accordance with the provisions of the Revised Statuies,§§ 4283-4285, and the act of June 26, 1884, (23 St. at -Large, p. 57, § 18.) The libelants claim that they are not within the provisions of either act, and are not affected by the decree. In the proceedings to limit liability, the vessel was sold, and the proceeds were deposited in the registry of the court. The vessel was in the coasting trade, and on the 31st of July, 1889, by her own fault, came into collision with the brig Kaluna, inflicting damages that exceed the proceeds of the vessel deposited in the registry, and the decree was founded upon those claims. The vessel had been run u]Jon shares by the master. He acted as ship's husband and managing agent, transacting all her business, and reporting to the owners. The repairs in question were incurred in the yearly overhauling of the ship. They were ordered by the master, under his authority as managing agent, in the home port, with the knowledge also, at the time, of some of the owners. The collision was about two months after the repairs were made, llnd upon the third voyage after their completion. 1. In the case of The Alpena, 8 Fed. Rep. 280, it was held by Judge BLODGETT, in construing the act of 1851 and the provisions of the Re-: vised Statutes, that each voyage or trip"Must be treated as a sl'parate venture. involving its own particular hazards. losses, and eal'llings; and that, when each such voyage is ended, it is for th.e owner to decide whether the losses have been such as to make it expedient for him to invoke the protection given by this act of congress. * * * The language as well as the evident reason of the statute shows that this proceed'ing can only be had for the purpose of apportioning the owner's interest be, tween several persons who have suffered losses on the same voyage." Claims arising out of prior voyages were therefore held excluded from the limited liability proceedings, and not to be bound by the decree therein. I concur in theconclusion reached by Judge BLODGETT in that case, although the practice seems to be that liabilities for torts arising out of a prior voyage, unliquidated and undefined in amount, and orten wholly unknown, may be limited upon a surrender of the vessel or her value after a subsequent voyage; the value and freight being determined according as they existed at the close of the prior voyage. See The Benefactor, 103 U. S. 239, 245, 9 Ben. 44, 47; The Oity of Norwich,(Place v. Tran8portation Co.,) 118 D. S. 468, 491, 6 Sup. Ct. Rep. 1'150; The Great Western, 118 U. S. 525, 6 Sup. Ct. Rep. 1172; The Doris Eckhoff, 30 Fed. Rep. 140. I think the act of 1884 is doubtless to be treated as in pari materia with the act of 1851, (Rev. St. §§ 4233, 4285,) and de-: signed to extend the act of 1851 to cases of the master's acts or contracts, and thus to bring our law into harmony with the general maritime law on this subject. Butler v. Steam-Ship Co., 130 D. S. 527,553,9 Sup. Ct. Rep. 612; The Amos D. Carver, 35 Fed. Rep. 669; Force v. Imurance Co., Id. 778; Miller v. O'Brien, Id. 779; 783. The act of 1884, like the act of 1851, limits the owner's liability to the ltvalue of such vessel and freight pending." But there is no "freight pendirig," except Upon the current voyagej and this shows that the debts of the last voyage only are
366.
FEDERAL REPORTER ,vol.
44.
Cannot ,.priordeQts are to· he incladed but not intended. prior eAf!lUags... '1'he Oityof Norwich, v,t8upra. In the case of debts con.tra.pted fprJlll:l benefit of ship of her owner.s,which are known, are'fo;rkIlown or ascertainable, amounts, and ofwhich the owners reap in the improvement of the ship, and in the freights su bearned.. there may be sufficient reason to hold that the owners, bayiIlg!ltnowledge of such debts, adopt them as their own personal liabilities,# the vessel is sent out upon subsequent voyages, and that by so doingtlley lose their right to lilllit their liability in respect to such benc()ntracts,even if they were not at first personally liable therefor. the respondents. were individually liable for the contracts of agent, made in the homtl port, in the ordinary rppair of the these repairs being known and approved by some of the owners. ;'fh,eTwo Mary8, 10 Fed. Rep. 923j Scull v. Raymona, 18 Fed. Rep. 54.9. " It. has been held that the limitation provided by ,the act of 1884 upQn of the owners" on account of the ship" does not extend to their personal contracts, but only to the debts and liabilities that ofthe navigation or business ()fthe ship, or from the contracts of .under his general powers .in the course of the vo)'age. The Amo8 D. Carver, supra; McPhailv. Williams, 41 Fed. Rep. 61. Such has 10Ilgbee,n ,the construptiop of the 1?r0ll.dprovisions of the ordinance of LOllis wella89f the similar provisions of section 216 of the Code ofCommerce, (1 Valin, Comm. 568;) Emerigon, Cont. a la Grosse, c. 4, § 11j2 Desjardin, Droit, Com. Mar. §§ 283-286; .2Valroger, Corn. d'1i Code de Corn. § 256. And, in general, repairs made in the home port by the owners, or by their authorized agent, are treated as the personal debts of the owners,' and cannot be discharged by a surrender of the vesse1. It is the same with the captain's foreign contracts from the time they are ratified by th!=l owners. Several of tbe maritime codes thus expressly; provide. See Italian Code Mar. § 491; 3 Revue, InterI)at. <Iu Droit Mar. 316,818; 4 Revue Internat. du Droit, Mar. 337-339j and Desjardin, .'ltt suIJra. Valin says: "There are cases, however, in whioh the owneJ1 cannot free himself by making this abandonment. * * * reason is,: because these debts are .his own persOl!al debts, as much as if he had .contmcted them himself." "It is universally recognized in modern law," says Desjardin, (section 283,) "that the right of abandonment cannot be invoklld by the owner in order to limit his own personal qbligation. The right of, abandonment also if the obligation at first contracted by tne captain is ratified by the ownerj it is the sume as if :the. owner hall acted himself. (Section 284.) All legislations that pennit tbeowner to lim.tthis obligation' by aballllonment .disallow this rig,bt from the tjme he translormedthe captain's engagement into his own. ·personal obJigation." (Section 286.) In the case of Norwich CO. V.' Wright, 18. Wall. 104. 120, and of The. Scotland, 105 U. S. 24, 2R, 29, BRAPLEY, in q.elivering the opinhm o{ the supreme court, states that "the, act of congress seems .to, have been drawn with direct reference to.t4ese previous laws," nnq that "the rule adopted by congressisthilsameas the rule ofthe.generalmaritimtl law." The City oj.
THE LAGONDA.
Norwich, 118 U. S. 468, 490,6 Sup. Ct. Rep. 1150. The general purpose of both isthe same. The objeotof both was to encourage ship-building and commerce, and to enable persons having a moderate capital to engage in commerce without becoming liable for an indefinite amount beyond what was invested in the enterprise, through ,the faults or contracts of others. This principle becoming, early in the middle ages, a rule of the maritime law, secured, to a considerable extent, for persons in commerce, the same beneficent results that the municipal law educed by other means; namely, by the formation of corporations, and, inore latterly, by ations by which individuals may engage intmde without ing liable beyond the amount of invested capital.' Construing the acts oft 884 and 1851 in the light of these decisions, and of the general maritime law whicb it was their purpose to introduce into our jurisprudence, I must hold that the decree set up in ,the answer, limiting, the liability of the respondents, ,as a decree 'based on claims growing out of a subsequent: voyage, does not affect tbelibelant's 'prior demand, and that this prior demand was from the first a personalliability oNhe respondents, and not subject to limitation at all; and that, if it ,were; it eould only be thus limited upon the surrender of thEivessel, or her value and the freight as they stood at the end of that voyagel'free from all demands or liens growing out of. any' oCher other voyages pnor or- subsequent. ' " ' · for libelants, with costs., i:: .,.;,\ 'I
!ll
THE THE (DIBt'IicC
LAGONDA. 1 ,
JAMES
A.
GARnELlk
MA.'1'HIESlllN t1.
THE JAMFilA. GARFIELD. 17,,189(1.)
Court, E. D. New York. ,
L
recovered for the detention of a 'yacht, caused by a. act, at the market rate (If such craft, though the yacht was never let for hire, atld no was employed during the time of lIuch de,tention. . SAME-AMOUNT Oil' DEMURB4GII-EXPERT TESTIMONY..
2.
Theli.mount of demurrage to be recovered by a pleasure yacht may be shown by the testimony of those chartering yachts, as to what, iIi their opinioD, t¥ could haye obtained for her use the period of detention.
.
.'
In· Admiralty. On exceptions 'to, commissioner's report. ,,;S:&942 Fed; Rep: 304. R.'D. Benedict, for libelant. · i., Goodrich, Deady &: Goodrich, for claimant.
J. This case comes before the court upon etcepti01i8, to the comtnissioner's report. The action isbtought ,to recover , "
"
by EdwardG. Benedict, Esq., of the NewYark'bar.