IN RE MYERS EXCURSION & NAVIGATION CO.
BENEDICT, District Judge. The barge Republic was hired, under an excursion contract made on March 2, 1891, to convey an excursion party to Cold Spring grove and back to New York on August 12, 1891, for the sum of $260. The barge, in pursuance of that contract, on that day took on board the excursion party, and was towed to Cold Spring grove by the steamboat Crystal Stream, owned by t1he same owners. Early in the afternoon the barge reached a wharf on the east side of the harbor at Cold Spring grove, where she was made fast to the end of the wharf, the port side of the barge being next to the wharf, and the Crystal Stream being fast to her upon her starboard side. Just as the barge was about to leave the wharf on the return trip, the excursionists being on board, but the lines not cast off, a thunderstorm came up from the we£:ltward, striking the barge on her starboard side. By the force 'of the wind, the ropf of the hurricane deck on the starboard side was raised off its fastenings and doubled over against the two masts of the barge and tlJ:J.e pilot house. The pilot house turned over, the two masts broke, and these masts, together with the broken portion of the hurricane deck, fell upon the other side of the hurricane deck, which was thereby crushed down upon the passengers collected underneath it, and 13 of the passengers were in this way killed. The owners of the barge, being sued for the injury to these passengers, filed their petition in this court to have their liability limited, and surrendered the barge to the custody of the court, In their petition they set up that the injuries to the passengers alluded to were not caused by any negligence on the part of those owning or in charge of the Republic, but to unavoidable accident. The following objections are raised to the granting of the relief l"rayed by the petitioners: FIrst. That the Republic was not a vessel intended to be embraced in the limited liability acts. In my opinion, this objection is not well founded. As I understand the limited liability acts, they were intended to relieve from liability barges engaged in any kind of navigation, and they cover the barge in question. The next objection taken is that the tug Crystal Stream, being the motive power of the barge Republic, should also have been surrendered. This objection is without foundation. The petitioners do not seek to limit any liability they may be under as owners of the Crystal Stream, and there is nothing in this proceeding to prevent the parties injured from proceeding against the Crystal Stream or her owners, if so advised. The third objection is that the Republic was unfit for the em· ployment in which she was engaged, and that the injuries sustained by her passengers were due to her unseaworthy condition. Upon this question a mass of testimony has been taken, both in regard to the force of the wind and the construction and condition of the barge. After a careful consideration of the testimony relating to the effects of the wind on other objects near the place where the barge was when struck by the wind, and the evidence tending v.57F.no.l-16
show that the hurricane deck;was not properly fastened to the tltancmons and deck below, and the evidence in regard to the condi· lion of the masts which fell, and which are clearly pr6ved to have been unsound, and in, regard to the, condition of the stanchions, and the method of fastening the deckto them,-the effect of which testimony does not seem to 00' overthrown by the testimony upon these points produced'm behalf of thepetitioners,-my conclusion is th'at the objection under consideration is well taken. Undoubt· edly the law requireil that a barge engaged in the occupation of carrYing excursion parties around and about the llarbor of New York sha.ll be sufficient, to endure without serious injury-certainly without such injury as was done to the hurricane deck of this wind that may be naturally anticipated in the course of such' It voyage. It is conceded on all hands that the accident in question was not" caused by any fault in navigating or mooring the barge.' It was entirely due to the wind that struck the hurricane Violeht thunder' storms are frequent in and about this harbor. Wind Of great force is to be anticipated in this navigation; and inhiy opinion the Wind that struck the barge 'On the occasion in question was no greater than is to be anticipated in this locality. No doubt there are wbldsthatnothing can withstand, and against which tlieownerS' of 'such vessels cannot be expeCted:to, be prepared';btit my concluSion is that the wind that struck this barge, while: violent, did' not exceed in' violence any that might be reasonably expected in these waters. A vessel not strong enol1gh to endure'ill gafety such a wind as this barge encountered is, in my opinion; iunseaworthy; and the injuries d()ne to her passengers must be held 'to have arisen from the unfit and unseaworthy condition of :the barge. :: ' But the limited "liability statutes of the United, States the owners' of the oarge' from liability' beyond the value of the barge and her freight then pending for loss and damage resulting as abQv.e'stated, provided such loss occurred I'withont the privity or kno,*ledge of the oWners;" and the question arises whether loss and injurrresulting from the unfit 'condition of the ,barge at the time she started upon the voyage in question occurred without the privity or knowledge of her owners, within the meaning of these statutes. The barge was owned ;by a' corporation, so it was the duty':oil this corporation, before dispatching the vessel upon the voyage in question, to know by the examination of some 'duly-appointed officer whether the vessel was ,in a fit and seaworthy con· dition for the intended voyage. A proper examination of the ves· sel surely *ould ihave the unsound condition of the masts, which, :by. fitlling under'the weightof.the portion of the hurricane deck;wmch ,firBtgave wayjlargely contributed to the loss oflife that ensued.8ueh' an examination would have disclosed the fact that the fastenings of the hurricane deck' were insufficient.' The petitiOners cannot, therefore, 'be held to be ignorant of what such an examinMibn would have disclosed. They are chargeable with knowledge 'of what they might have known, and what they were
IN RE HARRIS ·.
bound to know, because of their obligation to provide a vessel fit for the employment to which it is put. An owner of a ship cannot be permitted to free himself from an obligation of this character by remaining in ignorance of what it was within his power to know. My decision, therefore, is that the petition must be dismissed, and the injunction dissolved.
In re HARRIS et aI. (Circuit Court of Appeals, Second Circuit. August 1, 1893.)
LIMITATION OF LIABILITy-GIVING OF BOND-STIPULATION FOR
In .u procel>ding for limitation of liability, where a. bond is taken for appraised value of the vessel, pursuant to admiralty rule 54, it proller for the court to require that such bond shall include a stipulation for interest from the date thereof. Where, in a proceeding for limitation of liability, the owners of the vessel unsuccesKfully litigate the question of any liability on her part, they are chargeable wth the costs of such litigation. The Wanata, 95 11. S. 600, followed.
ESTOPPEL-PAYMENT OF INSURANCE POLICY POLICy-EFFECT OF·
. An insurance company having paid a loss callSed by the stranding of a lighter in charge of a tug, through the negI!igence of the latter, t(>ok an assignment of the. claim of the insured, and libeled the tug for the loss. Held, that the Insurance company was not estopped from alleging neglion the part of the tug because of an exemption in its policy against liability for all loss arising from want of ordiinary care and skill in nangating' the Insured Ycssel. Nor was the company estopped because of a statement in a receipt gj.!Ven by the assured that, at the time of loss, the lighter was in charge of the tug, nor because of a protest by the muster·of the tug, among the proofs of loss, stating that the stranding was due solely to the extraordinary and irresistible force of fue flood tide, and ought not to be attributed to any default in navigation.
Appeal from the District Court of the United States for the Eastern District of New York. In Admiralty. Petition by Charles F. Harris and others, owners of the steam tug Howard Carroll, under the act of March 3, 1851, limiting the liability of shipowners. From a decree for libelants, petitionel'S appeal. Affirmed. E. D. McCarthy, for appellants. J os. F. Mosher, f()ll' the insurnnce company. Before WALLACE and LACOMBE, Circuit Judges. LACOMBE, Circuit Judge. On December 26, 1889, a loaded car float, belonging to the New York, New Haven & Hartford Railroad Company, in tow of the steam tug Horward Carroll, was · stranded upon a rock in the East river, causing damages to the float and its cargo. On March 19, 1890, the Aetna Insurance Company, of Hartford, Conn., insurers of tile railroad company on the cars