THE REPUBJ,IC.
109
in a possessory action, there can be no reason for distinguishing such a case (in this respect) from any other. The only question for eonsideration therefore is: Can he do so? It is difficult to discover a reason why he should not be allowed to do so. There is no occasion in either case for retaining the vessel in custody; and to do so must entail serious loss. Why therefore should it be done in possessory actions? The situation in such cases is precisely the same as in all others. If the respondent can keep possession he should do so; and if he does not his injury is self-inflicted. Justification may, nevertheless, be found for the respondent's contention in the earlier admiralty practice abroad; but that practice does not, in my judgment, prevail to-day, even there. See The Evangelistria, 46 Law J. Adm. 1, 25 Wkly. Rep. 255, and Pritch. Adm. Dig. (3d Ed.) p. 1554. In this country I do not think such a practice ever existed, though there seems to have been some difference of opinion about it. In this judicial district vessels have been released, in repeated instances, without question. Since the acts of 1790, 1792, and 1793, as embodied in section 941 of the Revised Statutes, there can hardly have been room for doubt on the subject. The section reads as follows: "When a warrant of arrest or other process in rem is issued in any cause of admiralty jurisdiction except cases of seizure for forfeiture under the laws of the Unitpd States, the marshal shall stay the execution of such process, or discharge the property arrested if the process has been leVied, on receiving from the claimant a bond or stipulation in double the amount claimed by the libelant, with sufficient surety to be approved by the judge of the court where -the case is pending * * * to answer the decree of the court in such -cause. · · *"
The language leaves nothing for interpretation. All seizures are embraced, without regard to the cause of action, and owners are empowered to retain possession, on giving security, in all such cases. Admiralty rule 11, prescribed by the supreme court, conforms to this view; and the rules of the southern and eastern districts of New York provide for it in express terms. See, also, Ben. Adm. (last edition, 1894) § 498. I need not extend this opinion by commenting on the numerous cases to which counsel have invited my attention, but will file the briefs herewith for the benefit of future reference. In view of the probable extent of the litigation which may occur in this case the security for costs should be increased to $500. An order may be prepared in conformity with this opinion.
THE REPUBLIO. In re MYERS EXCURSION & NAV. CO. (Circuit Court of Appeals, Second Circuit April 18, 1894.) -,SHIPPING--LIMITATION OF LlABII.ITY-CORPORATE SHIPOWNERS-U NSEAWORTHINEBS.
Injuries and death occasioned to excursionists through the inability ot an excursion barge to withstand a thunderstorm of no unusual severity cannot be said to occur "without the privity or knowledge" (Rev. St. §
110 it
FEDERA,L REPORTER,
vol. 61.
4283)ottJl.e t:he barge, so as to limit its liability, when that the president .thereof himself undertook to make an examination of. the barge at the beginning of the season, but faUed to discover rottennesl'l and' weakness of l'arts, whIch a thorough examination would have disclosed. '57 Fed. 240, affirmed.
Appeal frompistrict Court of the United States for the Eastern District of New York. Petition by the Myers Excursion & Navigation Company for limitation of liability in respect to their excursion barge, the Republic. The petition was. dismissed by the court below (57 Fed. 240), and the 'petitioner appeals. WiUg, Shoudy & Putn,ant{on the brief), for appellant. FernlUldp Solinger and Mirabeau L. Towns, for respondents. G. W. Cotterill and Raphael J. Moses, advocates. 'Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. The district court dismissed the petition of the. appellant, the owner of the barge Republic, to limit its liability for the losses, damage, and injury which occurred upon the barge, upon the ground that the losses, .etc., were occasioned by reason of the unseaworthy condition of the barge, of which the owner was chargeable with knowledge, and consequently did not occur "without the privity or knowledge" of the owner, within the meaning of the statute of the United States limiting the liability of shipowners. The appellant insists that the district court erred in its conclusions both of fact arid of law. The Republic was a double-decked excursion barge, 157 feet over all, and 40 feet beam. Above her main deck was a promenade or dancing deck, and 9 feet above this a hurricane deck. The hurricane deck was supported by center posts of yellow pine running down to the keelson, and by outside stanchions, some of oak and some of. yellow pine, and averaging about 5 inches square, extending, some of them frOm, the main deck, and some from the promenade deck. There were two masts, made of white pine, 12 to 14 inches in diameter, which ran from the keelson to about 30 feet above the hurricane decl\:o Attached to the masts were arms, to which were fastened stringers to support the upper deck in the center. The pilot house was forward on the hurricane deck, and was reached by a ladder from the promenade deck. She did not carry sails or motive power. In the afternoon of August 12, 1891, while the barge was at Cold Spring Harbor, L. I., with a party of excursionists on board, to whom the petitioner had chartered her and a tug to convey them from New York to Cold Spring Grove and back, and while just about to leave the wharf On the return trip, she was struck by a severe squall on' the starboard bow, which raised· the hurricane deck on. the starboard sip,e off its fastenings, doubling it over against the two masts and the pilot house. The masts were broken off, and the pilot houseo"terlurned, crushing down the roof, and causing the broken portion to fll;ll .on the port side of the barge. Thirteen passengers on the port side of the promenade deck were killed, and many others were injured, by the falling of the roof.
THE REPUBLIC.
111
We think the proofs fully justify the conclusions of the district judge that the squall was only a violent thunderstorm, such as are frequent in midsummer, and not so extraordinarily violent that it would have done material injury to au ordinarily sound vessel; and we agree with him that the proofs show tbat the hurricane deck was inadequately secured to the stanchions and the deck below, and that the accident was attributable to that cause, and to the unsound condition of the masts, which gave way, and fell upon the upper deck. The barge was an old vessel,-26 or 28 years old,-and had been used for the previous 20 years in carrying ex· cursion parties in the summer, and as a freight or hay barge in the fall and winter. She had been owned by the petitioner since 1877. She had been overhauled, and quite extensively repaired, in the spring of 1890, and some trifling repairs were made upon her in the spring of 1891. Nevertheless, her masts were rotten; many of her stanchions were rotten; some of them were insecurely fastened to the framework of the hurricane deck; and some of her center posts, where they intersected the main and hurricane decks, were rotten. She was well enough adapted for the pleasant-weather · .excursions for which she ,would ordinarily be used, but was too weak to encounter the stress of a severe windstorm. .The district judge did not find, in terms, that the officers of the petitioner were aware of the unfit condition of the barge, but placed his decision against the right to limit liability upon the .ground that there was an implied warranty on the part of the corporation that the barge was reasonably fit for the service for which she was chartered; that it was the duty of the corporation, before dispatching her upon the voyage, to know whether she was in a fit and sea· worthy condition; that a prior examination of the vessel would have disclosed that she was not in such condition; and that the corporation was chargeable with knowledge of what its officers might have known, and were bound to know. Throughout the -summer preceding the accident, as well as for several years previously, the barge had been employed in the immediate business {)f the corporation. The corporation was the lessee of various places of resort near the waters in the neighborhood of New York City, where it had an office; and it owned a number of tugs and barges, and its business was the conveying of excursion parties by its tugs and barges to and from these places of resort. The president of the corporation was personally cognizant, in a general way, with the condition of all the barges of the corporation, including the Republic. Among his other duties, he supervised the repairing of the barges; and he was accustomed to go over them once .a year, to ascertain what repairs were necessary. In the spring of 1891 he examined this barge, and ordered some new stanchions put in. He testifies that he did not discover any unsoundness in the masts, and found no unsound stanchions, except those which he ordered removed and replaced by new ones. Yet at that time, in view of her condition as subsequently revealed, the masts and many of the old stanchions of the barge must have been so rotten that their condition could not have escaped his observation, if he
112
FEI;!ERAL REPORTER,
hadniade a reasonably thoronghexamination. We are constrained to oonClude that he did not do so, and did not cause necessary repairs to be made, because, expecting she would be used in fair weather, for holiday purposes, he thought her to be sufficiently strong and fit for such occasions, and overlooked the contingency that she might be exposed to such a peril as overtook her. We do not ibid it necessary to consider whether a shipowner is denied the protection of the statute whenever the loss has occurred from the unseaworthy or defective condition of his vessel. The warranty of seaworthiness which is always implied on the part. of the shipowner holds him to the obligation of providing a vessel which is in all respects reasonably fit for the voyage and employment in which she is to engage. Yet there may be a breach of this obligation without his knowledge, and without his personal negligence. He may have employed a most competent expert to make all necessary examination of the vessel just prior to the voyage, an expert possessing skill and experience far beyond his own, and the expert may have failed to exercise sufficient care to discover defects which ought to have been found. It would be a hard construction of the statute which would deprive the shipowner of pr()tection under such circumstances. Certainly, this case does not require us to consider whether such a construction of it is necessary. The question we are to decide is whether a shipowner is entitled under the statute to limit his liability when the loss arises from a defecttve condition of his ship; of which he was ignorant because of his own negligent examination of the vessel. The statute was principally taken from the' English statutes of 26 & 53 Geo. m. These statui;es, instead of the words "privity or knowledge," use the words "privity and knowledge," or "fault or privity," to express the exception. In the later English statutes (the merchants' shipping acts of 1854 and 1862) the phraseology was varied so that the exemption was limited to losses occurring without the "actual fault or privity" of the shipowner. There is no reason to suppose that the diverse phraseology of these acts was employed for the purpose of expressing different rules of exemption, as there were no decisions of the English courts which indicated that the terms were not synonymous. The English courts have always construed the acts as intending to exempt the shipowner when he himself has not been in any way to blame, and to deny him the limitation of his liability only when blame is attributable to him. The Warkworth, 9 Prob. Div. 20, 145; The Spirit of the Ocean, 34 Law J. Adm. 74. Undoubtedly, by our statute, as by the English statutes, the commonlaw liability of the shipowner is not restricted in cases where his personal neglect has been an inducing cause of the loss. It was the intention of congress to ,relieve shipowners from the consequences of all im.putable culpability by reason of the acts of their agents or servants, or of third persons, but not to curtail their responsibility for their own willful or negligent acts. Moore v. Transportation Co., 24 How. 1; v. Transportation Co., 3 Wall. 150; Craig v. Insurance Co., 141 U. S. 638, 12 Ct. 97; Quinlan v. Pew, I)
THE ALERT.
113
C. C. A. 438, 56 Fed. 111; Hill Manuf'g Co. v. Providence & N. Y. Steamship Co., 113 Mass. 495. A loss is not occasioned without the knowledge or privity of the shipowner, when it arises from his per· sonal neglect to inform himself of the defective condition of his vessel, the vessel being under his immediate personal supervision. Where the shipowner is a corporation, the privity or knowledge which precludes the statutory right must be that of the managing officers. Craig v. Insurance Co., supra. In the present case the privity or knowledge of the corporation 'consisted in the negligence of its president, who, by his omission of proper care in his examination of the vessel, failed to discover her defective condition. We do not understand it to be seriously argued that section 18 of the act of congress of June 26, 1884, displaces the liability of shipowners for losses occasioned by their own negligent acts. The section does not purport to repeal any pre-existing law, but is legislation in nari materia with the act of 1851. The scope and object of the section are pointed out in Force v. Insurance Co., 35 Fed. 778; The Amos D. Carver, rd. 669; and Gokey v. Fort, 44 Fed. 364. It has no application to the present questions. The decree of the district court dismissing the petition is affirmed, with costs. THE ALERT. BERGH et aI. v. CEBALLOS. (Circuit Court ot Appeals, Second Circuit. April 19, 1894.) NQ.101.
1.
SHIPPING-Loss OF CARGO-LIABILITY OF SHIP AND CHARTERER.
a
A ship chartered so that the charterer is deemed to be the special owner is nevertheless not freed from liability on his of affreightment; and a decree for loss by negligence may be made directly against the ship, and need not provide that collection shall first be made from the charterer, and only the deficiency, if any, from the ship. The Freeman v. Buckingham, 18 How. 182, followed.
SAME-FINAL DECREE-ApPEAI.-PRACTICE.
A ship was libeled for loss of freight shipped under contract with her charterer. The owners filed a petition, alleging that the charterer was alone responsible for the loss. The charterer answered both the libel and petition, and, after hearing, the court entered a decree for the full amount against the ship, but, as the question of responsibility as between owners and charterer had not been cleared up by the evidence, retained the cause as between them for further proceedings. Held. that the decree was final and appealable as between libelants and the ship, and the appellate court could properly affirm the same, and allow the remainder of the cause to proceed in the district court as there determined.
Appeal from the District Court of the United States for the Southern District of New York. This was a libel by Juan M. Ceballos against the steamship Alert, of which Olaf Bergh and others were claimants, to recover for loss of cargo. At the time of the loss the ship was in possession of the New York & Yucatan Steamship Company as charterer; and on the petition of the claimants, alleging that the charterer alone was liable for the loss, that company was made a defendant, and required to v.61F.no.1-8
