Imágenes de páginas
PDF
EPUB

Syllabus.

255. No interest on these costs, therefore, can be claimed up to the date of our decree. The new departure then taken by the libellants in claiming the insurance, opened the matter so as to postpone a final decree in the case in the Circuit Court until the decree now appealed from was made. This decree adjudges to the libellants their costs in the District Court precisely in accordance with our mandate. All delay in entering the decree was caused by the libellants themselves. If any interest was allowable on the costs in question, it would only have been that accruing from the date of our decree, March 20, 1882, to the time of rendering the decree appealed from, September 22, 1884. In view of the circumstances of the litigation which took place in that period, we do not think that the decree of the Circuit Court is open to objection.

Decree affirmed.

Mr. JUSTICE MATTHEWS, with whom concurred Mr. JUSTICE MILLER, Mr. JUSTICE HARLAN, and Mr. JUSTICE GRAY dissented. Their dissenting opinion will be found at page 526 post, after the opinion of the court in The Great Western.

THE GREAT WESTERN.

THOMMESSEN & Another v. WHITWILL.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK.

Argued October 19, 20, 1885.-Decided May 10, 1886.

The decision in The City of Norwich, ante 468, in relation to the time when the value of the owner's interest in the ship is to be taken for fixing the amount of his liability, applied to a case where the offending ship did not sink in consequence of the collision, but was afterwards sunk and wrecked in the same voyage by the negligent navigation of those in charge of her; this sinking being held to be the termination of the voyage.

Argument for Appellee.

The decision in the same case as to insurance repeated.

Limited liability may be claimed, 1st, merely by way of defence to an action; or, 2d, by surrendering the ship or paying her value into court. The latter method is only necessary when the shipowner desires to bring all the creditors claiming damage into concourse for distribution.

The case is stated in the opinion of the court.

Mr. C. Van Santvoord, Mr. Harrington Putnam, Mr. Henry T. Wing and Mr. James K. Hill for appellants, cited, in adto the authorities cited in the brief filed by Mr. Putnam and Mr. Hill in The Scotland, ante, 514 the following: 1 Parson's Adm. and Mar. Law, ed. 1869, 525; The Scioto, 2 Ware, 359; The Woodrop Simms, 2 Dodson, 83; Reeves v. Ship Constitution, Gilpin, 579; Wilson v. Dickson, 2 B. & Ald. 2; Cannan v. Meaburn, 1 Bing. 465; The Benares, 7 Notes of Cases, 538; The Benefactor, 103 U. S. 239; Norwich Co. v. Wright, 13 Wall. 104; United States v. Claflin, 97 U. S. 546; Butler v. Russell, 3 Cliff. 251; Heckman v. Pinkney, 81 N. Y. 211; People v. Gold Stock & Tel. Co. 98 N. Y. 76.

Mr. James Thomson (Mr. E. C. Henderson was with him. on the brief) for appellee, cited The Scotland, 105 U. S. 24; The Phebe, 1 Ware, 265; Norwich Co. v. Wright, 13 Wall. 104; The Rebecca, 1 Ware, 187; Wattson v. Marks, 2 Am. Law Reg. 157; Petition Norwich & N. Y. Trans. Co., 17 Blatchford, 221; S. C. 8 Ben. 312; Walker v. Boston Ins. Co., 14 Gray, 288; Lynch v. Dalzell, 4 Bro. P. C. 431; Sadlers Co. v. Badcock, 2 Atk. 544; Pothier, Traité d'Assurance, C. 1, §§ 1, 2, pl. 10, 11. Dalby v. India & London Life Assn. Co. 15 C. B. 365; Columbian Ins. Co. v. Lawrence, 10 Pet. 512; Carpenter v. Prov. Wash. Ins. Co. 16 Pet. 496; Prov. & N. Y. Steamship Co., v. Hill Mfg. Co., 109 U. S. 578; The C. H. Foster, 1 Fed. Rep. 733; In re Long Island & Trans. Co., 5 Fed. Rep., 599; The Benefactor, 103 U. S. 239; Ex parte Slayton, 105 U. S. 450.

On the question of the origin and construction of the statute of 1851, Mr. Thomson urged the following further considerations:

English legislation on this subject prior to the act of 1851, was embraced in the three statutes, 7 Geo. II. ch. 15, 26 Geo.

Argument for Appellee.

III. ch. 86, and 53 Geo. III. ch. 159; and its history has been related in Norwich Co. v. Wright, 13 Wall. 104, in Walker v. Ins. Co., 14 Gray, 288, and by Mr. Lathrop, in his article in 1 Am. Law Rev., 598.

The limit of liability prescribed by all these acts, whether in the case of a part owner or of an owner of the whole ship, is the same, the value of the vessel and freight. The phrase, interest of the owner in vessel and freight, does not appear, because it would have no application.

The act of 1851 was principally drawn from the Act 26 Geo. II., ch. 86, and from either the Revised Statutes of Maine, Revision 1840, ch. 47, § 8, et seq., or the Revised Statutes of Massachusetts, Revision 1836, ch. 32, § 1, et seq.; probably the former, since there are verbal agreements which point to this conclusion, and Mr. Hamlin, of Maine, took charge of the bill in the Senate.

Section 8 of chapter 40 of the Revised Statutes of Maine, which was apparently the source of the third section of the act of 1851, is as follows:

"88. No shipowner shall be answerable beyond the amount of his interest in the ship and freight for any embezzlement, loss or destruction by the master or mariners, of any goods or merchandise, or any property put on board of such ship or vessel, or for any act, matter or thing, damage or forfeiture done, occasioned or incurred by said master or mariners, without the privity or knowledge of such owners."

This is substantially the provision of the Revised Statutes of Massachusetts, Revision 1836, ch. 32, § 1, and the phrase, “interest in the ship and freight," in both revisions, is taken from the act of Massachusetts, Laws 1819, ch. 122, which constituted the earliest legislation in the United States on this subject, and was almost literally copied in the Maine statute, Laws 1821, ch. 14, the phrase, of course, on well settled principles, retaining in the revisions the meaning which it had in the statutes revised. Bishop on Written Laws, §§ 98, 144; United States v. Bowen, 100 U. S. 568, p. 573.

The material provisions of the Massachusetts act were as follows:

Opinion of the Court.

"§ 1. Be it enacted, &c., that from and after the passing of this act, no person or persons who is, are or shall be owner or owners in part or in whole of any ship or vessel, shall be subject to answer for, or make good to any one or more person or persons any loss or damage by reason of any embezzlement, secreting or making away with, by the master or mariners, or any of them, of any goods, wares or merchandise, or any property whatsoever, which shall be shipped, taken or put on board any ship or vessel, or for any matter or thing, damage, or forfeiture, done, occasioned or incurred by the said master or mariners or any of them, without the privity or knowledge of such owner or owners, further than the value of the interest which such owner or owners have or had at the time of such shipment in the ship or vessel, with all the appurtenances and the full amount of his interest in the freight due or to grow due for and during the voyage, wherein such embezzlement, secreting or making away with, as aforesaid, or other malversation of the master or mariners shall be made."

That these statutes were based on the 26 Geo. III. ch. 86, is apparent from the narrow scope of the protection afforded; but even a cursory examination shows that the American statutes introduce a different limit of liability in the case of a part owner, and that the construction and object of this phrase in these acts is beyond doubt.

They restrict the gross liability of the owners to the value of the vessel and freight, and the liability of any part owner to the value of his share in the vessel and freight, adopting in this respect no new principle, but the well settled rule, amongst others, of the Consolato del Mare, ch. 141, 182; Holland, Ordinance of Rotterdam, Arts. 126, 127, 167, 2 Magens, 101, 102; and Hamburg; 1 Valin, 569.

Mr. JUSTICE BRADLEY delivered the opinion of the court.

This case grew out of a collision which occurred on the 25th of March, 1876, on the high seas, 150 miles from Sandy Hook, between the Norwegian bark Daphne, belonging to the appellants and bound to Marseilles, and the British steamship Great Western, belonging to the respondent and

Opinion of the Court.

others and bound to New York. The Daphne was injured about $7000 worth, and the court below found that the Great Western was in fault, and was worth $150,000, both before and immediately after the collision; but that after the collision, and on the same day, the steamer, while still on her voyage to New York, was stranded and wrecked on the south coast of Long Island by the careless navigation and fault of those in charge of her, and from no cause connected with the collision. No freight was received by her owners. On the 29th of March they abandoned her to the underwriters, and received from them insurance to the amount of £34,000 as for a total loss. After this the wreck and materials saved were sold for account of the underwriters and by direction of the owners, and realized $1796.14. On the 27th of March, 1876, the libel was filed in this case on account of the owners of the Daphne, and Whitwill, the respondent, appeared and answered, denying that the Great Western was in fault, and claiming that if she should be found in fault, the owner's liability was limited to the amount or value of his interest in the vessel and her freight; and that this interest was of no value whatever, and to this he added by leave of the court during the trial, the following words: "And he hereby surrenders the same to the libellants." He also during the trial tendered an assignment of his interest to the libellants, and offered to give another assignment to a trustee for the benefit of the libellants under section 4285 of the Revised Statutes of the United States. The court below held that the owners of the Great Western were only liable for the proceeds of the wreck, amounting to $1796.14, and gave a decree for that amount and interest, and for the costs of the libellants in the District Court.

The errors assigned for the reversal of this decree are substantially as follows, to wit: First. That the limitation of the respondent's liability to the value of the ship and freight in the condition in which they were after the stranding and wreck is contrary to the rule contained in section 4283 of the Revised Statutes. Secondly. Because the insurance received by the owners was not included in the value of their interest in the

« AnteriorContinuar »