UNITED STATES '11. THE COLUMBTA.
(cCrcuu Court of Appeals, Second OirC'WI.t. February 16, 1899.)
PENALTIES-FoRFEITURES-PASSENGER ACT-OVERLOADING-SEOTION 4465, REV. ST.
On the evidence the court found that the steamboat Columbia, libeled by the government for carrying passengers in excess of the number stated in her certificate of inspection, and held in fault by the district court, did not, on the trip in question, carry more passengers than her certificate allowed, and that the decree of the district court should therefore be reversed, and the libel dismissed. 89 Fed. Rep. 617, reversed.
In Admiralty. Libel by the United States against the steamboat Columbia for violation of section 4465, Rev. St. The Columbia was allowed to carry 3,000 passengers, and no more. The libel alleged that on one trip she had carried 677 in excess of the number stated in her certificate of inspection. The district court decreed for the libelant, (39 Fed. Rep. 617;) and the claimant appealed to the circuit court for the eastern district of New York, which affirmed pro forma the decree of the district court, and claimant appealed to this court. Reversed. Blair &; Rudd, (Benjamin F. Blair, of counsel,) for appellant. Jesse Johnaon, U. S. Dist. Atty. Before WALLACE and LACOMBE, Circuit Judges. LACOMBE, Circuit Judge. The circumstances under which the count was made by the two passengers at Far Rockaway were such as to make absolute accuracy impossible. It did not need the testimony of the government inspectors, whom the claimant called as experts, to show that a count of a crowd moving rapidly in a mass over a wide gang plank, and moving away from the observer, could be but an approximation only. Besides errors likely to result from displacement of positions as some one turns back to return, there is the highly probable error that some will pass whom the observer does not count, and the error resulting from a -consciousness of that fact on the part of the observer, and his effort, perhaps unconsciously, to correct it. Manifestly, it cannot be 88accurate as a count of articles that can be handled and sorted, when that count is conducted under circumstances which admit of its being done -deliberately. It appears from the evidence that the company running the Columbia had issued complimentary season tickets to the number of nearly 300. Holders of such might have been on the Columbia that day, and left no tangible evidence of their presence. But such tickets were issued almost entirely to persons in a similar line of business,railroad men and others more or less closely affiliated in business with the company. Very few of such tickets would be shown on anyone trip. It also appeared that the president or general agent of the company, the master, or purser migh t pass a friend on board without a ticket,and sometimes did so; but there would be very few such instan-
ces on anyone trip, and the evidence does not show that there were more than four on this partip>J.lUf trip,; It'must be presumed that the passengers who presented money instead of tickets when they came aboard would purser, as he testifies they did; for otherwise they would be without the coupons entitling them bareturntrip"'j Except",then, for the very few who held season tickets or were passed as personal friends of the four officers above ll;ti\ied,;every passeJ1 get,the ColuDlbia'carried that day left aboard hera tangible,evidence presence. ,A count of these' tickets, if deliberwould entitled. tbAAthe:tally,mage"pyJhe two at Far Rqckaway. 'rhe count of tickets before Jewell's wharf was reached was evidently made in haste, so that the number on board might be known before the boat .......the purser, !lssistant purser, and superirttend'eni-'-bunched'ithetiekets; and 'they each testify that they put 100 iti :eacb bunch, (SRVe one, containing 14.) The superintendent and ot&el'S eoul'lted the 'bunohes, and, assuming each to contain 100, made oU,t thij number of tickets toba 2,214'. Of course, this did not account fot sueh"passengers as 'had paid 'CRsh, but had not yet obtained their tidkets'frortl' the purser, The connMrs at Jewell's wharf, whose enumeration was made under more favorable circumstances than the one at Far Rockaway,and which seems to have'commended itself to the district judge, showed 650 to 680. This would make the totaL number 2,864 to 2,894. There was, how.ever, another count made of the tickets. The purser is required to make a return to the company of each round trip, showing; not only how many passengers were carried, ,but what they where they came from. This is not begun tiUafter the boat has last landing, and all pMsengeraare aboard. To do it the tickets tnust be all separately, under. their separate classeS.' The return of thjs round trip is. in evidence, and testified to by the pUlser and purser, who blade it up. The . district judge discredited,this returnbeoause he foUnd it "itnpossible to' conclude from ,the purser's testimony that there is. any. certainty that the tickets counted by ,him when making his return were all the tickets that bad, been taken in,on,that day:." We think he must have overlooked the evidence given ·by purser. It abundantly appears from the testimony that 1Clmly ,the pul'ser and the assistant purser took tickets from incorningpassengers, and both testify positively that they turned· in all the tickets they,took,whioh' werefiri3t deposited in a heap on the desk in the purser's office, and su.bsequently bunched. It is no doubt true, as the distmctjudge suggests, that the officers of ,the boat were biasedin favor of the boat, just as the comp1llining witnesses .\\lere biased against it,by rea,sonofthe discomfort induced their counting, and the knowledge ,iheyhad when:they mitc1e'"theircomp]aint that they would be entitled to share in any: where .the testimony 'of witnesses is reasonable in-itself,and is gillen without any indication of untruthfulness, mere bias doesnnt seem to us sufficient for ooncluding, as the district attorney suggests in hiB brief, .that they deliberately retained 600 tickets,
them from- the purser's room, and then perjured themselves to hide their fraud. It is a suggestive fact that these witnesses were not on this point.·. Apparently,' there was nothing in .the manner in which they gave their' evidence to excite suspicion. A trial judge has the opportunity, which an appellate court has riot, of hp,aring and seeing the witnesses; but in this case, for all that appears, district judge because the pursthe purser's retlArn was'discredited by er's testimony, standing by itself, did not establish the fact that such return included all the tickets. As he does not refer to the very positive testimony of the assistant purser, which, wheIrtaken in connection with the purser's, does establish that fact, we must conclude that he overlooked it. It being established that the purser and assistant had before them tickets representing all passengers on board, except the very few holding season tickets or "passed" as friends of the officers, it is only necessary tl:) .see whatthey did with them. The bimched tickets taken in at the different landings were kept in different places on the purser's desk. They werefii'St counted to determine how many were taken aboa:rd at each landing, and the result minuted on the back of the return, which is the usual custom. It was conceded on the trial that by an error 92 elevated railroad. tickets wel'e put under the heading of Jewell's wharf, instead of pier 6. Correcting this error, the back of that paper shows the number of passengers as follows: Taken at West Twenty-Second street 884 Taken at West Tenth street 559 Taken at pier 6 '191 Taken at Jewell's wharf 671 2.855 All the tickets were also assorted and recounted under different classes, viz., those sold by the boat, the various connecting railroads, etc., with this 'result: Passengers paying cash 93 Passengers baving ordinary round·trip tickets 2,529 Passengers having single tickets up 50 Passengers having tickets from railroads M26 2,998 This corresponds exactly with the figures on the back of the return made before the, reassortment, because the back does not contain 50 "single up".tickets which were sold by the agent at Rockaway for the return trip, nor 93 purser's tickets, representing cash. Adding these items (143) to the aggregate by landings, the result is 2,998. The evidence indicates that the passengers down, who! did 110t return by boat, were more in number than those who boarded her at Far Rockaway for the first time to make the up trip only; and as we see no reason to assume tbat those who held season tickets or came aboard on "pass"exceeded 50 (the return shows there were 4 only) the return indicates that
she did notcar,ry inexCe$s of 3,000 ,p!!.ssengers on the day in question. Of the two enpmerations, presented respectively by the libelant and the steamboat, opinion that the clear preponderance of proof is in favor of the latter. Tl1edecree is reversed,and case remanded to the, circuit court with, instructions to dismiss the libel.
TSE WILLIAM CRANE. MERRYMAN
fl. THE WILLIAM CRANE.
, Cotton stowed ontha main deck'of a large coasting steamship for a voyage from Savannah to Baltimore, under ,the upper deck. in a space between the main deck and the, upper deck, ,J;ly:t\lelronbulwll.rks and by strong shutters and bulkheads, to be properly stowed, although not under the hatches of the main deck. Held that, the stowage bein'g'in a protected place, and customary and proper. the cotton CQulLnot be said to be "on deck,» and the steamship was not. liable far damages from sea water, llaused by an unusual storm, which flooded the decks, and broke down,the bulkhead,andtore away theprotectioDs.
(SyHabU$ by the, Oourt.)
In Admiralty. Libel by Merryma,n & Co. against the steamer Wil· liam Crane for damage to cargo. Fisher, Bruce & Fisher, for libelants. Wm. P. Whyte,for respondent.
MORRIS, District Judge. This is a libel to recover for damage by sea water to 80 bllies of cotton shipped on the steamer WilliamCrlllie, to be carried from Savannah to Baltimore. The decision of this case de· pends upon whether the cotton was stowed in a place on the steamer where, under the bill of lading, it might rightly be placed. The Wil· liilm Crane is a large iron stell,W pJ,'opeller, intended for" the coastwise trade, and above her main deck has an upper deck, on the top of which are structures containing pilot house; officers' quarters, and staterooms for passengers. Along the sides of the ship this upper deck is not altogether permanently inclosed, but may be inclosed when required for carrying cargo. The space' between the :tnain and upper decks is seven feet in height. ,Four feet of this height i,s permanently deflmded by the irclO bulwarks,and rail of the ship, and the remaining three feet between the rail and the upper deck has wooden shutters, which can 'be tightly fitted in, and made fast between theperm(tnent uprights which support the upper deck, thus inclosing the:entire space. The middle of the ship between the main and the upper' deck i$ occupied by permanent structures containing the engine room and quartersfor, the engineers and others. an alleywayon each side. The forward end of each alleyway is closed by a heavy bulkhead with doors. was i:a these alleyways that the cotton involved