THOMMASEN V. WHIT WILL.
891 and others.
THOMMAS:eN
and another v.
WHITWILL
(Oirtluit Oourt, E. D. Nf/ID York.
1882.)
Where a collision at sea occurred between two vessels of different foreIgn nations, and no law of either country is proved as a fact, the case must be governed by the provisions of the statute of the United States. 2. SAME-LIMITED LIABILITY OB' OWNERS.
The liability of the owners of a colliding vessel for damages caused'1)y a lision is the value of the offending vessel after the collision and at the end of her voyage, with her pending freight. 3. BAME-OF1l'E1mING VESSEL LoST AFTER CoLLISION-MEASURE OB' LIARILITY.
Where a vessel, after colliding with another vessel at S68, was herself lost in the continuance of her voyage, and was abandoned to underwriters, the liability of her owners is limited to the a.mount realized by the sale of the wreck by the underwriters.
Henry T. Wing, O. Van Santvoord, and H. Putnam, for appellants. Foster cI; Thomson and R. D. Benedict, for respondents. In this case I find the following facts: The bark Daphne, of Arendal, Norway, where she was built, left Baltimore, Maryland, in good condition, on the eighteenth of March, 1876, with a cargo of crude petroleum in barrels, bound to Marseilles, France, and passed out to sea on the twentieth of March. On the twenty-fifth of March, from 20 to 30 minutes after midnight, the Daphne was run into by the British steam-ship Great Western, bound from Gibraltar to New York with a cargo of merchandise. The place of collision was on the high seas,175 to 180 miles from Sandy Hook; about 150 miles from the beach near Fire Island light-house, on Long Island. The weather at and before the collision was fine. The night was dark, but. there was no difficulty in seeing lights at a great distance On the water. The wind was about E. S. E. The course of the Daphne was between N. E. and N. E. ! N. She was sailing by the wind, on her starboard tack, and had the usual regulation lights-green on her starboard side and red on her port side-properly placed and burning brightly, and was keeping a good lookout. The white mast-head light of the steam-ship was seen from the bark at about 11 o'clock P. M. at a distance off, as estimated, of about 12 miles. and about four points on the bark's starboard and weather bow, and afterwards the steam-ship's red light was seen from the bark. From the time of the first observation by the bark of the white light of the steamer the bark, with all her sails set, except the main-royal and gaff top-sail, was kept on her course N. E. to N. E. tN., sailing by the wind, making about six miles an hour, and without any change of her course by the action of her helm until the steamer was coming into her, and was within a distance off of about two of her lengths. and angling a little from aft of the bark towards the bark's bow, as on a port helm, when an order was given to the wheelsman of the bark to keep off, and the bark had fallen off a little when she was struck by the stem of the steam-
8\;12
J'EDERAL REPORTER.
ship aft of her fore rigging on her starboard side, the steam-ship cutting into the starboard side of the bark, down from the rail, and into the beam, breaking the water-ways and plank, and doing other damage, which made it necessary for the bark to put back for repairs. The steam-ship was on a course, before the comsion, N. W. by W., crossing that of the bark, and, without sails set, was making between seven and eight knots an hour. The green light of the bark was seen from the steam-ship at a distance off of six or seven miles, bearing W. by S., seven points on her port bow. The steam-ship kept on her course without changing it until she was too close to allow her to go under the bark's stem, and then her helm was ported hard a-port, to bring her around to the starboard and leave the bark on her port hand, in which maneuver she struck the bark aft of her fore rigging, as aforesaid, stem on, after an order was given to stop her engines and reverse full speed, as the bark was falling off. The libellants sustained damages from the injuries to the bark by the collision, as allowed by the district court, in the sum of $17,023.44. The value of the steam-ship at the time of the collision, whether ascertained by reference to her condition before the collision, or to her condition after the collision and before her stranding, was from $140,000 to $150,000. The libellants are, and were at the time of the filing of the libel herein and of said collision, residents of Arendal, in Norway, and subjects of the kingdom of Norway and Sweden, and there domiciled, and owners of said bark. The respondent Mark Whitwill was at the same times a resident of Bristol, In England, and a subject of the united kingdom of Great Britain and Ireland, and there domiciled, and one of the owners of the said steam-ship. After the said collision and on the same twenty-fifth of March, while still on said voyage, and before reaching New York, the said steam-ship was stranded and wrecked on the southern coast of Long Island, from a cause in no way growing out of or connected with said collision, and not directly from aIllY peril at sea, or without the act of man mingling with it, but by the careless navigation and fault of those in charge of her. No freight is shown to have been received on said voyage. The owners of the said steam-ship, on the twenty-eighth and twenty-ninth of March, 1876, duly made an abandonment of the said steam-ship to the various underwriters who had insured her. Before and at the time of said stranding the said steam-ship was under insurance effected by the owners thereof to the amount of £34,000, which they realized from the insurance companies by the payment to them of that sum as for a total loss, after tender of an abandonment. After said abandonment, and on various dates down to the twelfth of May, 1876, the wreck of the said steamship and the materials saved therefrom were duly sold at public auction for account of whom it might concern. Such sale was dUly and publicly advertised in the city of New York, but no notice of it was otherwise given to the libellants. It was made for the account of the said underwriters, and was pursuant to the directions from the owners, and after paying the expenses of saving and selling the property it realized the sum of $1,796.14. On the twenty-seventh of March, 1876, the master of the saiu bark, acting as agent for the libellants, who were not then in this country, commenced thIS action in their names. The respondent Whitwill was not in this country.
THOMMASEN
v.
WHIT WILL.
893
A process of foreign attachment against the property of the respondents was issued, under which the steamer Cornwall, in which the'respondent Whitwill had any interest, was attached, and he appeared generally and answered in the cause. On the trial in the district court, and also on the trial in this court, his answer was ordered to be amended, by adding at the close of the seventh article thereof the words" and he hereby surrenders the same to the libellants. " On the trial in the district court, and also on the trial in this court, the counsel for the respondent Whitwill tendered to the other side,in open court, a paper ot which the,following is a copy, and asked the court to note the fact, and also put in evidence the said paper, subject to objection then made by the libellants, counsel: "Know all men by these presents, that I, Mark Whitwill, of Bristol, England, heretofore part owner of the steam-ship Great Western, do hereby surrender to Jem'! Thommasen and Julius Smith, of Arendal, Norway. owners of the bark Daphne, all my interest in the said steam-Ship· Great Western and her freight, as of the date of March 25, 1876· .. In witness whereof I have hereto set my hand this nineteenth day of April, 1877. MARK WHITWILL, .. by W. D. MORGAN, Agent. ·In presence of CRAS. F. WELLS.
"Oityand Oowntll 01 New York-ss.: .. On this nineteenth day of April, 1877, before me personally came William
D. Morgan, to me known, and known to be the same person described in and who executed the foregoing instrument as the agent of Mark Whitwill, therein named, and to me known to be such agent, and he to me acknowledged that he executed such instrument as and for the act and deed of the said Mark WhitwilL CHARLES F. WELLS, Notary Public, New York." Such paper was executed by the duly-authorized agent of the said Whitwill, and its execution was thereafter ratified by said Whitwill. On the trial in this court the counsel for the respondent Whitwill offered to produce a paper, to be signed by said Whitwill, by said Morgan, as his attorney, in all respects like the one above set forth, dated April 19, 1877, except containing a transfer to a· trustee for the benefit of the libellants, under the provisions of section 42851 of the Revised Statutes of f1}e United States, if the court should be of opinion that such transfer to a trustee, and not a surrender to the libellants. is necessary, and asked that in such event the answer be amended accordingly.
On the foregoing facts I find the following conclusions of law: (1) The steamer was wholly in fault for the collision, and the bark was not in fault. (2) The liability of the respondent in this suit is limited to the value of his interest in the steamer in the condition in which she and the remnants of her were after her stranding and wreck, and he is liable in this suit to _ _ for such value, which on the present proof is the sum of $1,796.14, and for nothing more. SAMUEL BLATCHFORD,
Circuit Justice.
894
. F.EDERAL REPORTER. " . :' "
BLATCHFORD, Justice. ThatJhe steam-ship was wholly in fault in the collision, and tesponsible for the damages causedtp the bark, and that the bark was free from fault, and that the liability of the reo spondent, unless limited,. follows that of the are propositions entirely clear and not contElsted. " 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 fonnd'in sections 4282 to 4285 of the Revised Statutes, which are as follows:
"Sec. No owner of any shall be liable to answer fol'; 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" of any fixe happening to or on boardthe vessel, linless such fire is caused by the desijpl'pr neglect of such owner. I' Sec. 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,' oc,casioned, or incurred without the privity or knowledge of such owner or owners, shall in no case 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 is not sufficient to make compensation to each of them, freight for the 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 relatlng 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 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 ie-enactments of sections 1, 3, and 4 of the act of March 8, 1851, (9 U. S. St. at Large, 630, 636,) which sections were as follows:
WHITWlf,L.
, 895
Il:Section ownetor owners of any ship or'vessel ahai! bellubject or liable to answer for,' oi'make good to anyone or more person Or persons, any l<>ssordamage which' may happen to any go<Yds or merchandise whatsoever which shall be shipped, taken in, or put on board any such ship·or'.'Vessel by rea.son or by means of any fire happening toor on board the said ship:Or 'vessel, unless such fire 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 ,Il Sec. 3. The liability of the owner or owners of any shtpor vessel for any embezzlement, loss; Or destruction by the master, officers, mariners; passengers, or any'otherpersGn or persons, of any property, gOOdS:, or merchandise shipped or put on board of sncb ship or vessel; or for any loss, damage, or injurY by COllision, Or for' a.nY' act, matter or tbing,. loss, damage or forfeiture done, oeaasioned, or incurred, without the privity 'Or knowledge of such owner or owners, shall in no case exceed the amount or value of theitlterest of such owner or 'owners respeCtively in such ship or vessel, and ber freight then pending. USee. 4. If any ldSs,or destructibilshall be suffered by several freighters or owners of goods, wares, or merchandise;ot any property whatever,on the same voyage,and the whole value of the ship or vessel and her freight for the voyage shall not be td make compensation to each of them, they shalt receivecompensat1on' from the owner or owners of the ship or ve$sel' inprbportion to their respective losses; and for 1Jb:at purpose the sa,id 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 maybe liable among the parties entitled thereto; and it shall be qearned a sutlicient compliance with the requirements of this act on the part of such owner or ownllrs, if he or they shall transfer his or interest in such yessel or freight for the benefit of such claimants to a trustee to he appointed by any court of competent jurisdiction to act as such trustee for the person or persons who niay prove to be legally entitled thereto, from and after which transfer all claims' anilproceedingsagainst the owner or owners shall cease." .
The case of Nat. Steam No/v. Co: v. Dye,., (the case of The Seotland;) decided by the supreme court March 20, 1882,4: Morr. Trans.·271, 18· authority for the following points: ' (1) The act of 1851 applies 'to owners of foreign as well as domestic vessels, and to cases of collisi,on 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, per· two foreign nations having the same maritime and it is shown ') . what that law is. '. United States, as foundin thl:jact of 1837, is the same as the marltirile 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
896
FEDERAL REPORTER.
sWp and her freight after the loss or injury caused by the collision, and the latter by their value before such loss or injury, not £15 per ton. (3) The maritim.e 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 lustice 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 liabUity 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 for 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 case 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 2.5, 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.
'lHOMHASEH t7. WHITWlLL.
891
The respondent contends that his liability cannot exceed the Bum of $1,796.14, as being the value of his interest in the' steamer and her freight at the end of her voyage, after her loss by stranding. The question as to the proper rule in a case like the present has not been decided by the supreme court, no such case having been before it. Norwich 00. v. Wright, 18 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 tha.t the act of 1851 contained a provision whereby the ship-owner eould discharge himself, 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 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'()f ita 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 insepa.ra.ble from it. The court (Mr. Justice Strong) said: ,. The limit of liability prescribed by the act of congress is that it shall in no case 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 tllbn? Is the measure of the owner's liability or its maximum the value of v.12,no.10-57 '
898 the shipand!herUeigbt injury was at some may be,1nstituted to time sUbsequent.t9 th,e illjUry, tain its lWlount? or is it the immediately after' the limIt has been. committedi. as, for example, in acase of collision immediately following the caused; by it ? " " " . ,
The court tpenheld py,the,maritime law all tha.t the sufferers 'by the misconduct, pf an were. entitled to was' ,after. 'jlljury 'had been togetli,Elrwith 'lrl'1igAt; . the measu,re'of the liability adopted'hy the act Gf 185lj thll,tthe owners of the steaJ,ll-boat were not liable to the qtt4e extent of the \!rnd that suchwas the. decision in 18 Wall. 104·. ' .The steam-boat had h.adhecome of thevalueof $70,000, been of-liability was It was before t.he, petip.on urged that th.at value must be takenastbe measure 6ft,he. owner's li!tbility" As to this. the. court said; , . .. To hold ;thEloymeI;S, are to the extent of that valuation wou,l,d be substantially npt 01).1)' t,he ship and her freight, but alsC) a.sumof. they expended upon her in raising imd repairs. Such, I think,. wQuldbe toe' obvious meaning of the statutll, and not 're"quired by th'etn'8:ritime law. '.... ... lit lcannot doubtthat the !measure Oflilibility'recogniied by toe maritime law, and by the act:of congress,isthe value Ql, the' offending ship in the .condition inwhicb She i,mmedifl,t(lly, after ,the freight, ,Then the cla.b:ns,of th.epersl;lUs injured ,arose, claims the statute limits. extent of the liInitation is not a 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 &btainirig that protection. Certain it is that if, inurtediately after the collision, the steam-boat owners had snrrendered the vessel and :£reight, or transferred them to a trustee,thllY would ,3,?-d. her freight thell' pending were then have been dis,charged. ,Her all tb.at they were liable for. That. was then the of their loss, 1 cannot see that their liability can be Increased by anything that may have occurred thereafter. It is the v,essel, as she then was, that could have been transferred in satisfaction. Of alFclaims; 'if the owners 'had >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 tbeY,essel proceeded ()n her voyage after the collision, and had she met with another. disaster, occasioned bY' the fault of tha· master, by 'which her value had been greatly reduced, couldshe'thenha'Ve Men surrendel'ed t1r tranSferred in fUll satisfaction of the claims against her, or her ovvners,'arising'out of her ,first faUlt? Would hervalue, after the second disaster,ha've been the of the owner's liability? 'I cannot think such a posItidnLcan be maintained. Surely, sucl:i is not the spirit of the statute. And, if not, it seems equally plain that the
'899 liability of the owner is noten:'l3rgetlby the fact that, aftet·, tlle CQllistonl 7tho boat has been raised and repaired by them at large expense, or, in other words, has increased in valne. , ," .. .. The, liability of the Qwner is discharged either by transferring the vessel and freight, or by paying' their equivalent; that is, the value of what they might have transferred"fn dis. charge, according to the apportionment of, the court.. The owiiers have'their option of these two. modes. 'fhey tnay give up thevesseI and freIght, or they may retain them and pay their' vaHle. But the measure or limit of liability in each case is the same. 'Very plainly, it is notintendecl that the creditors shall obtain more When ODe mode of proceeding i$ adopted than when the other is followed. But, as I have said, all that the' ownetsare rEjquired to transfer is the ship llS she waiimmediately. after theinjury was inflicted. Equivalent to that, is her value that time." . . .
at
The court held that the value of the boat imme.diatelyafter the eollision and fire, as she then was, lying at the'bottom, which ,vallie was $2,200, with her pending freight, was the extreme measure of the owner's liability and was the amount to beapportion.ed. There was $600 of pendin,g freight, but as it. was lost" and not earned, it was held to have been of no vl;Llue 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 wlly criteri()n of the amount for which her owners are liable. In N01'Wtch 00. v. Wright, 13 Wall. 104, we held that the owners of the offending vessel could, under the statute, discharKe themselves from personal liability by the ship and freight. This would imply that the value oUhe ship at the.time ot surrender, with the additi<m of, the pending freight, if the surrender is' made in a reasonable time, would furnish a proper criterion of the amomiti of liability. In the case cited it was also said (p. 124) that 'if the vassei 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. In England, the value of the vessel immediately before the collision was regarded as the terion of liability. But the English law is different from ours. It illlikes the owners liable to the extent of the value of the ship at the time of 'the injury, even though the ship itself be lost or destroyed at the same time; whereas our law, the admiralty rule, limits the liability to the value of the ship and freight after the injury has occurred,so that if the ship is destroyed the liability is gone; and, whether damaged or not ,damaged, the own ers may surrender her in diSCharge of their liability. What may be the rule if, after the collision have the offending vessel should mee" with other disasters, greatly impairing her value, is a question which may reqUire further consideration when the case al'ises. Nothing of the kind is alleged in the present' case."
90(1
In Nat. Steam Nav. Co. v. Dyer, 4 Morr. Trans. 277, the court said: "In the case of Norwich 00. v. Wright, 13 Wall. 116, we had occasion to state that the general maritime law of Europe only charges innocent O,wners 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,-4hat 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 rule 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, ll.nd 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 ma.ritime law. '" '" '" Therefore, while it is now a part of our maritime law, it is, nevertheless, statute law,. and must be interpreted and a4ministered as such. In that 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 Btrippings 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.. of section 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 anyone 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, interest of the owner in the vessel, if that is not greater than the loss or damage. If section 4283 atood alone, it might be said that it intended to give the value of the
WMTWILL.
901
interest in each case as it stands immediately a.fter the incurring of the liability, as soon as all direct effect of the event creating the liability upon the physical condition of the vessel has been suffered by the vessel. But no such view can be maintained when the proVisions of sections 4284 and 4285 are considered in connection with those of 4288. By section 4284, whenever any loss is suffered by several owners of property 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, they are- to receive compensation from· the Ship-owner in proportion'to their respective losses, The whole '\Talue of the vessel and her freight is to be applied to all the losses named in section 4283, though there may be a loss of each of two or of all of said three kinds on the same voyage. Thus there may be the loss or destruction of the property shipped on the vessel, creating at the time a liability, and afterwards on the same voyage she may negligently collide with and damage another vessel, creating thereby another liability. There is, then, under section 4284, a loss suffered by several owners of. property on the same voyage. If the value of the vessel and her freight for the voyage is not sufficient to compensate eaoh owner,-that is, all the owners suffering loss,-the ship-owner is.with such value to compensate all in proportion to their respective losses. After the happening of the event which caused the loss or destruction of the property shipped, which may have been an explosion or a lea,k" age of liquids, the vessel may have been left of sufficient value to compensate fully for such loss or destruction, but she may .have' been so· damaged by the collision as to make' her value as left inadequate to compensate fully for the loss of the property shipped, and also for the damage caused to the other vessel by,the collision; In such case the owner of the property shipped cannot claim full compensation. His loss must be put in with the other losses on the voyage, and he must be satisfied with his pro rata share .of the value of the vessel and freight. The statute is express in section 4284 in including all losses on a voyage. What the losses are cannot be told till the vay.. age is fully ended. The "wholevalne of the vessel" mentioned in seation 4284 means her value at the close. of the voyage. If there be two or more losses during the voyage, for which the Ship-owner is liable, and the vessel, after the accruing of the liabilities and during the same voyage, is lost herself, the clear meaning of the statute is that no one shall receive compensation for his whole loss. No different rule can be applied under the statute where the offending vessel is lost after the accruing of Qne liability, and only one claim for loss is
902 made by one owtl'6r aftha pJ'opertylost. The proceedings for apportionment provided Jor by section 4284 may be taken whete there is but one claim made, and the value of the vessel and her freight is not sufficient to.ma,ke compensation fully for' Buch claim. This is pro- . vided fbr by :rule 54 in admiralty. These views. are .supported by .theprovisiolls of section 4285, under ship-owner ,m,ay make the required compensation and discharge his,Jia.bility by transferring. his interest in the vessel and freight toa tr,ustee to·beappointed by a couJ;'t. This he cannot do till an opportnntity·isgiven to do so. When he does it, the interest to be traQsferred is the interest as it stands at the time of the transfer, if that is made in a reasonable time, and nothing has intervened amounting1io a waiver or forfeit.ure of the right to make the transfer. These views axe. in accordance with what has been held to be the general principle of the statute· oftha United States, namely, an adoptionof the ma.ritime law of Europe in respect to. a limitation of liability for torts of the master and crew. It is declared in Norwich. 00. v. Wright that by the maritimelaw the ship-owner was discharged by the loss of the vessel on the,voyage, br .by giving up what w.as left of her after a disa.ster to her on the vogage. Again, m Nat. Steam Nav. 00. v. Dyer, the rule of the maritime law is stated to have been only to charge innocent owners to the ex:tent 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 isth,ere 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 ma.y require further consideration when it arises, must be accepted as only an expression of that proper judiciai caution whichJeaves open in form, questions· that are not Bub judice. No 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 la.w 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 vesse11 only,theproperty them, andean free himself from
THOMiUSEN tI.WHIT'Wl'LL.
liability for such faults or neglects by surrendering such in'the: shape in which it comes bac-k tohiID from their 'ha.nds,solong's.sno privity or knowledge on his part attaches to' any suah fa.uUOl"neglect, or to any disaster, which hasbefallim thevElssel, dliring:the voyage;, In accordance with this prineiple the statiIte allows an' opportunity fol' such surrender. ItcMId not be made in this'oase between ,the time of the collision and, the time ofthestranding;J.The :risk of the loss of the offending vessel is !thrown, for the benefit of ebmmerce; bn the owner olthe property damaged by h\3'r,Bothat if lost in the sea; her value'shall not again be: lost to . : , 'Attention is directedbyt'helibellants to the fact tUt!the cases of The Oity Of Norwich and :Ths'8cotlana: arose under the 'act of 1851, while the present ease arose"tmder the Re:visfid lStatutespmd to certain differences of languageb'etween the two .ehactltJ.enls,' dIn section of: the "owner or 31 of the aet of 1851 it is: said' that OWilets"shall not exceed amountorv:alue 'Gf!th'einterest: of,,"such owner Or owners in' the' veSsel; 'f Ii>. section,:,4283' of the not Revised Statutes it is: said that'ihe liability of, "the.owner"'. eiceed the 'atri.ountor '\Talueof :the interest, of "suoh: iowinir"in the vessel. In section 4 olthe act of 1851 it is saidthak"such owner or owners" may transfer ,"his or their interests;" , Ili:seotion 42S5 it is saiidthat "such owner" mll!y'trausfet-' "his interest'!! "On'thesedifferof language it is contended that the Revised'Statntesexclude a 'limitation of theliabilityoLapill't owner 'to the: value of! his interest in the vessel and freight, :and.,do not provideiany limitation ·short Of the interest of owner Oll owners' collectively vessel. There is no force in this conteniion. By section 1 QNlhe' Revised Statutes it is provided that in determining the meaning'of theRevised Statutes wordsimpoding 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 tha.tthe languageiof the;aet of 1851 was condensed in the Re'\"ision.'.Rtlad by the light of such gen· eral provision, and in view:ofthe principles on'whiep.. the Revision was made, it mUBtbe held that the new language'insectioDl! 4283 and 4285 is the result merely of revision, simplifioation, rearrangement, and coDsoljdationjwith a view to the're-enactment of the Same substanoe and meaning. Murdoch v. Oityof Memphis, 20 Wall. 590, 617; Smith v. Fisk, '28 Wall. 374;U. S. v.Olaflin, 14 Blatohf. (lJ C.55; The L. W. Eaton, 9 Ben. .298...308., , The abovere-
904:·
J"EPElU.L REPORTER.
marks apply also to the suggestion on the part of libellants, that section 4285 differs from section 4: of the act of 1851 in that it limits the operation of an abandonment to a discharge of the ship-owner's liability arisipg from the particular disaster in respect of which .the abandonment is authorized, while under section 4: of the act of 1851 a transfer had the effect to discharge the Ship-owner from liability for all torts of the master during the voyage. 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 .4:285 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 ttansfer 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 Jaw, there could or could not have been a surrender after an abandonment to underwriterB, it is plain that our statute requires atraJisfer 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 entitled 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 beheld 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, c. 8, § is quoted as follows: "The owner IS bound civilly for all delinquencies committed by the captain within 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 ot this remark it is recited in Dyer v. Nat. Steam Nav. Co. 14 Blatehf.
THOMMASEN V. WHITWILL.
905
C. C. 483, 487, as the rule of the maritime law, that if vessel and freight were lost the ship-owner could not discharge himself "without surrendering all claim's in respect ofvessel and freight, such 'as insurance," etc. When the case of The Oity of Norwich came before this court on the petition of her owner for a limitation of liability,' (17 Blatchf. C. C. 221,) it appeared that at the time of the collision she was insured against fire, not against marine disaster, and that her owner had received from the underwriters, as insurance money, some $49,000. The question arose whether it should account for that money to the claimants for loss and damage by the collision, in addition to the value of the as she lay sunk after the collision and the fire. The court held that under. the ,statute tb,.e ,lil,tbility extends only to what woulll pass to a trustee, andwhat,waiuequired to be transferred as a condition of discharge was only the interest in the vess,el and freight; that nothing said insurance; that a transfer of property insured does illsurance; and that a policy of insurance is no interest in the thing insured. The court also ex.amined the authorities and concluded that the maritime measure .of did not extend to' the vessel, and that there is nothing in our statute to enlarge such measure of liability. I think it is sufficient to rest the question on the plain language, of the statute. '.fhe "interest".in which is the measure of the liability under section 4283, anda"tran,sfer of which, if made under section 4285, operates to discharge the clai:t;n for loss or damage, does not extend to' what is not an interest in the vessel. It was easy for the statute to have provided for transfer of claims for insurance. It fails to do so, whether the I;llaritime law did so or not. The question as to the value of the steamer and her pending freigbt after her wreck seems, in the evidence, to have been gone into to an sufficient to show, on the evidence as it stands, 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 cour(oh 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, interest on $14,371.44 froI:\l' 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 ,hisaosts in )\" ('"
l
906 thilJ c0lll:h ',A;S ,he contE;sted the question:pf .fault ,and negligence" ill the dist:rict court" by: his fl,nl'lwe.r, he is,,p.ot entitled to costs in that court" but the libellants are,entitled to in that court. , ,
See 9 Ben.':;;'" ,
,
'VIM, etc. ; "
fuLLOWELL
v. THE SAME. 1882.)
(Distriot Court, ,8. D. , Net» York.
L
TO How COURSE-RULllI 23-LrCHlTB. In na¥igationiI1 the night.time, and in of lea-room. the obligllrtion upon a ,,«!Sse! tp ,keep l,J,er CQU:\,S6. ullder rule 23. (Rev. St. § 4233., arises from the li"ghts the pther are seen.cir ought to be seen. 'bya time proper lookout; within the lilnits Of twO'milesj prescribed by rule 3, at' which " , , distance IfgJ1ts' should be 'visible. f, , , ,
2.&YE.
B.,ln the 'Long Isl"nd in the c11annel course W. B. W., changed two ppiJ,lts tothe southward, toB. W" thet-ellY: iieii.dlng' 'nearly directly for asteam-tug;'about a mile distant, whose
, lights viSible, but were notinoticedi......the captain being diverted by a discussionwith pilot. ;W.q had just boardec;l,:\I.lll'.....and there being plenty of ,have biscourse, held, that the S. ,was within distance subjectingher to the twenty-third rule, SlId tJiat she: mrl.stbe held in fault and respo'llslbIe for: the ocHllsion which followed. ' . S.SAJolE-""'NEGLECT OiUSE 0'8' :M:E.ul'sTO:Avom; COLLISION. V. ,having previquslyshaped her cours!l to pass to the right, and h!irtng; the ,sch?oner's change of ,c9urse when about a !Dile dist.ant. and having ,still s'ea"IOOm and time to pass on either side, held, aZB(},re· sponsiblel'drtbe oollision, far not having used promptll the means: within her power to avoid it. 4. S.um__ -+-NP BACK. '." It being claimed by'the tug that the sehooner's change of course showed her green light;' that: shl'i "appeared to be croSilitlg the V. 's OOUfse to the statooard'side; (the'schooner'sredlight being possibly obscured by her jib,) held, that tl).{} not justified,:nnder this appearance of, the green Hlfiht only,in continl1in!1 her course t,o starboll,rd, but was bound to go to port, or to stop and back if necessary; ." 5. TO KEEP :OU'r' Oll" i'HE W AT. A, ateamer bound to keep ,out of theway of a sailing-vesse) , is not relieved from this duty by a previous fault of the latter, but remains bounp. to use withpr0Q,lptp.1'!1jJ! /l>pd all.,remaining means reasoilably",ithin ,her power to collision, and to make such practicable changes in 'her own ,navigation as mat bo rendered necessary by the faulty changes of. the other.:
a
.
i'
i\,
'
Collision..
, I "