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.)
SHIPPING-Loss OF CARGO-LIABILITY OF SHIP AND CHARTERER.
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.
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
answer both the petition and libel. 40' Fed.· 836. This' was done, and sUbsequently a final decree was entered against the ship for the amount of the loss, but, as the evidence had failed to clear up the issues'fUlbetween the claimants and charterer, that part of the cause was retained for further proceedings (44 Fed. 685), and there· upon the claimants appealed to this court. John A. Deady, fdr appellants. J. Langdon Ward, for appellee. Before WALLACE, LACO:MBE, and SHIPMAN, Circuit Judges. .SHIPMAN, Circuit Judge. On September 5, 1889, JvanM. Ceballos filed a libel in the district court for the southern district of New York against the Norwegian steamship Alert, in which he .alleged that (IIi. July 16, 1889, he shipped on board said vessel in the port of New ,York, and bound to Progresso, in Mexico,a steam tug· boat, to be qal'ried to the latter port for an agreed freight, which wa,s paid, and bills of lading therefor were received from the agent of the llteamship; that, it was carried toProgresso, but,. owing to the negligent manner tp which it was handled, and the carelessness of the master and mariners, it was dropped overboard, and 1013t in deep water. The libel prayed for the payment of damages. OIiNovember 2, 1889, the owners of the Alert filed their answer, in which they denied the nondelivery of the tugboat; or any carelessness on the part of the vessel or its lllariners, and further alleged that the steamship had been at the tiJ:ne of the shipment of the tug chartered to the New York & Yucatan Steamship Company, and was then in its possession, as the libelant knew; that the master was informed that the tug was to be carried and delivered without risk or respon· sibility on the part of the steamship; arid that her master and crew had nothing to. do with the handling of the tug during her discharge. On November 14, 1889, the claimants filed a petition in the district alleging that the steam tug was shipped on board the steamship at the risk of the charterers, and without liability on the part of the steamship, ,and praying that the charterers be required to an· swer the libeland the petition. The petition having been granted, the charterer filed its answer to the libel and the petition, in which it denied its individual liability. The case having proceeded to trial, the district cqurt entered an interlocutory decree for the recovery by the libelant from the steamer of his damages, and a reference to .a commissioner to ascertain their amount, reserving for further con· sideration all questions between the claimants and the charterer. The reason (or this interlocutory decree was clearly stated by Judge Brown as follows:
"The evidence taken in the cause, while it leaves no doubt that the libelant entitled '1:0 a decree against the Alert, is, notwithstanding, insufficient to clear up the matters In dispute as between the steamer and the steamship company, who, as charterers, were brought into the cause upon the steamer's petition; and may possibly be bound to respond for any judgment recovered by the libelant. After so long a delay, for the purpose of securing all attainable evidence as between the defendants, the libeiant's right to a decree. as it . now appears from the testimony,. should not be longer postponed; and a de'CI'ee may therefore be entered in his behalf as against the Alert, Which is
no doubt responsible to him, and an order of reference taken to compute his damages. The decree will be made without prejudice to the rights of the codefendants as between themselves, or to any further decree that may be taken upon additional testimony as to the liab1l1ty of the steamship company to bear the whole or a part of the same damages, or to indemnify the steamer in respect thereto. Instead of dismissing the steamship the case, as between the two defendants, should, I think, be continued as between them, rather than send them to a new action; not merely in order to preserve the testimony already taken, but that the company may also be bound by the adjudication in regard to the amount of damages in case the company should ultimately be held answerable therefor, it being not improbable that controversy may arise as to the rwe of damages as well as to the amount."
Upon the commissioner's report a final decree was entered for the recovery by the libelant from the claimants of $4,659.85 damages and costs. From this decree the claimants have appealed. No exceptions were taken to the amount of damages, and no attempt was made upon the appeal to show that the steam tug was not lost through negligence, or that the contract of affreightment was complied with, or that there was any agreement with the shipper by which the ship was to be freed from responsibility to him for the safety of the tug. The three points which the appellants did make were: First. That the court did not decide the whole case, and determine the rights of all the parties thereto, and that, therefore, the cause should be remitted to the district court for the purpose of a complete adjudication as to the rights of the codefendants as between themselves. Second. That the charterers, being deemed to be owners, were alone responsible. Third. That, if there was a liability on the part of the ship, the decree should have provided that the libelant collect of the charterers in the first instance, and that the deficienr.y, if any, should be collected from the ship. Reliance was principally placed upon the first point. An attempt was made to support the second and third points, and to assert that a chartered vessel was not liable upon contracts of affreightment made by a special owner, but, in view of the law upon the subject as stated by Mr. Justice Curtis in The Freeman v. Buckingham, 18 How. 182, that branch of the case requires no further comment. The facts which have already been stated are a sufficient answer to the appellant's first position. The decree was a final one, as between the libelant and the claimants. It directed the payment of a specified sum of money to the libelant by the claimants, and ordered its immediate execution. Forgay v. Conrad, 6 How. 201; Thomson v. Dear,7 Wall. 342. The retention of the libel in the district court for the purpose of an ascertainment of the right of the claimants to an indemnity from the codefendant does not prevent the decree which was made from being a finality, and presented no adequate reason for delaying its execution. The fact that the claimants have brought the charterer into the case, so that the questions between them, as to the amount of the damages which each may ultimately bear, can be adjudicated in one suit, does not call upon this court to remit a final decree as between the parties thereto to the district court for further delay. . The decree of the district court is affirmed, with costs of this court.
THE PRINCETON. HOBOKEN FERRY CO. v. THE PRINCETON. (District Court, S. D. New York. March 26, 1894.)
COLLISION__STEAU VESSELS-FOG-SIGNALS-FERRYBOAT INSIDE OF PIER LINE.
A fel;Tyboat; in a fog, which had made her trip across the Hudson river, and arrived inside of the line of the New York piers, and was there maneuvering to get into her slip, was held not bound to continue the fog signals which she had stopped on getting inside of such line, nor liable for damages by collision to another ferryboat, which, through lack of proper caution and watchfulness, had got within the pier lines.
Stewart & Macklin, for libelant. Robinson, :Biddle & Ward, for respondent. BROWN, District JUdge. On the 11th of August, 1893, at about quarter past 6 in the morning, the ferryboat Orange, from Hoboken, in making her trip to the Barclay Street ferry, during a thick fog, came in collision with the ferryboat Princeton, near the latter's slip at Desbrosses street. The place of collision was nearly half a mile above Barclay street, and was so near the Desbrosses Street slip as to be within a line running from the end of pier 41, just above, to the end of the pier just below the ferry racks. There is considerable difference in the testimony of the witnesses as to the distance at which objects could be seen. But if, as the pilot and other witnesses for the Orange testify, the masts of vessels in the slips above could be seen shortly before reaching Desbrosses street, there was no sufficient reason why pier 41 should have been approached SO near without being 'perceived, or at such speed as the Orange was evidently making. It is clear that the Orange was intentionally brought near to the New York shore in order to make· her way down towards Barclay street ; but in that situation, and in SO thick a fog, she was bound to proceed with the greatest caution. I cannot credit the testimony of her witnesses, that she was going so slowly as they claim; nor that she was moving backward in the water at the time of collision. I am obliged to find that through a speed excessive for such a fog, and through a lack of proper caution arid proper watchfulness in approaching the New York piers, she got inside the line of the piers, and that this was the primary cause of the collision. As respects the Princeton, which was embarrassed in making her slip by a tug and tow that crossed ahead of her, the only question is whether, while maneuvering inside of the line of the piers, she was bound to continue sounding her fog signals, which had been stopped from the time she got inside that line. She first got across her slip, and was unable to enter it. Up to that time she had continued her fog signals. After that she was· simply maneuvering within the line of the piers sufficiently to get inside of the lower ferry rack, but did not again before collision go outside of the piers. The evidence shows that objects within these limits could be seen. There was no need of whistles for the benefit of any vessels maneuvering within