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May 10, 1886


This case arose out of a collision which occurred on Long Island Sound, opposite Huntington, on the eighteenth of April, 1866, between the steam-boat City of Norwich, belonging to the Norwich & New York Transportation Company, the appellees, and the schooner General S. Van Vliet, belonging to William A. Wright and others, appellants, by which the schooner and her cargo were sunk and lost, and the steam-boat was set on fire and sunk, and her cargo lost. The owners of the schooner filed a libel in personam in the district court of the United States for the district of Connecticut, against the owners of the steam-boat, and obtained a decree for about $20,000 for the schooner, and about $2,000 for her cargo, with interest. Before the decree was passed the respondents filed a petition, stating that proceedings in rem had been commenced against the steam-boat in the district court of the United States for the Eastern district of New York, for the recovery of damages for the loss of the cargo on board said steam-boat; and they prayed leave to show the whole amount of damages sustained by all parties, and the value of the steamer and her freight then pending; and that the libelants might have a decree for only such proportion of damages sustained by them as the value of steamer and freight bore to the whole amount of damages sustained by all parties by the collision; this claim being made under the limited liability act of 1851. The district court denied the prayer of this petition, holding that it had no jurisdiction to give relief. On appeal to the circuit court the decree was affirmed, and the petition for limitation of liability was denied, on the ground that cases of collision were not within the act. The case then came to this court, and we held–First, that the act of 1851 adopted the general maritime law in reference to limited liability, as contradistinguished from the English law measuring the liability by the value of ship and freight after, instead of before, the collision; secondly, that the act embraced cases of damage received by collision as well as cases of injury to the cargo of the offending ship; thirdly, that the district courts of the United States, as courts of admiralty, have jurisdiction to administer the law; fourthly, that the proper court to hear and determine the question is the court which has possession of the fund,–that is, the ship and freight, or the proceeds and value thereof. And in view of the want of rules of procedure, and of any uniform practice on the subject, we directed that proceedings should be suspended in the district court of Connecticut, in order to give the respondents an opportunity of making the proper application to the district court of the Eastern district of New York, which had possession of the steamer, or a stipulation for her value in lieu of the steamer itself. We also adopted some general rules of practice for the aid and guidance of the district courts in such cases. 13 Wall. 104. The libel in rem, filed in the district court for the Eastern district of New York, was filed by George Place and Charles Place, (now appellants here,) in August, 1866, after the steam-boat had been raised and carried to the shore of Long Island, and repaired. The Norwich & New York Transportation Company appeared as claimants, and filed an answer, and a petition to have the benefit of the act of 1851 for a limitation of their liability to the value of the steam-boat and freight pending at the time of the collision and fire. Other libels were also filed by other owners of cargo. The steamer as repaired was appraised at $70,000. On the thirteenth day of June, 1872, after the decision of this court was rendered in the case of Norwich & N. Y. Transp. Co. v. Wright, 13 Wall. 126, the company, by leave of the court, filed a new petition in the district court for the Eastern district of New York for the benefit of limited liability under the act of 1851, comformable to the rules adopted by this court. The petition stated the various claims against the vessel arising out of the collision, (amounting to nearly $150,000,) the previous proceedings that had been taken, the libels that had been filed, the circumstances of the loss, the raising and repair of the vessel, etc., and prayed for a new appraisement in accordance with the decision of this court, a monition to claimants, etc., as will more fully appear in the finding of facts made by the circuit court, hereinafter stated. Orders for publication and appraisement were made pursuant to the prayer of the petition, and the commissioner appointed to make the appraisement reported as follows, to-wit: 'In ascertaining the value of the steam-boat City of Norwich, as directed by the order of reference herein, I have followed what I understood to have been the decision of the supreme court of the United States in the case of Wright against the owners of this boat, (13 Wall. 104,) and have ascertained her value in the situation and condition she was in after the collision, and before she was raised; and I find from the testimony taken before me that she was at that time of the value of $2,500. I have arrived at such value by taking the testimony as to her value in New York after she was raised by her owners and brought there, which shows that she was then and there worth the sum of $25,000, and I have deducted from that amount the sum of $22,500, being the sum which, according to the testimony, it had actually cost to raise her and bring her to New York, which leaves $2,500 to be her value, as I have above stated.' Exceptions were taken to the report–First, that the former appraisement of $70,000 was binding on the parties and the court; secondly, that the appraisement should have been for the value of the steamer immediately before the collision; thirdly, that it should have been for the value immediately after the collision, before the occurrence of damage by the fire; fourthly, that there should have been no deduction for the expenses of raising the steamer; fifthly, that the sum of $600 should have been added for the pending freight; sixthly, that the money received for insurance on the vessel should have been added, amounting to $49,283.07. The exceptions were overruled, and a decree was made authorizing the petitioners to pay into court the sum of $2,500, the value of the steamer, and directing a monition to issue, citing all parties interested to appear and prove their claims, restraining the further prosecution of all suits, and appointing a commissioner to take proof of claims. On the subsequent report of the commissioner a final decree was made in January, 1879, distributing the fund in court, and discharging the petitioners from further demands. The case was appealed to the circuit court, and argued before Mr. Justice STRONG, who, in October, 1879, affirmed the decree of the district court, but the decree of affirmance was not entered until July 3, 1882. That decree is now before us for review. The finding of facts by the circuit court is substantially as follows: (1) It states the fact of the collision, and that 'it was caused by the negligence of the steam-boat's officers or hands, without any design, neglect, privity, or knowledge of her owners. Very soon, within half an hour after the collision, the boat took fire, her deck and upper works were burned off, and she sunk in about twenty fathoms of water. The fire was the direct consequence of the collision, and inseparable from it. It was caused by the rushing of the waters through the broken hull of the boat, whereby the fire was driven out of the furnaces upon the wood-work, and the boat sank by reason of her filling with water. (2) At the time of the disaster the boat had a cargo of merchandise on board belonging to different freighters, all of which was totally lost. The freight then pending amounted to $600, but none of it was earned or received by the ship-owners. (3) Some time after the steam-boat was sunk, and her cargo destroyed, she was raised by salvors, and taken to the Long Island shore, within the port of New York, where she was repaired.' (4) It states the suit by Wright & Co., in the district court of the United States for the district of Connecticut, and the decision of the supreme court in that case. (5) It states the proceedings upon libel filed by George and Charles Place in the district court for the Eastern district of New York, the appraisement at $70,000, and the release of the vessel to the complainants, (the Norwich & New York Transportation Company,) upon their giving stipulation therefor, adding: 'The stipulation purported to be for the security, not only of the Messrs. Place, but also for the benefit of all persons who might, by due proceedings in said court, show themselves entitled to liens upon the vessel by reason of said collision. The appraisement was of the value of the vessel as it was after she had been raised and repaired. It was returned into the court on the eleventh of March, 1867, and the stipulation in the amount of the appraisement was filed on the twenty-ninth day of the same month. On the twentieth day of December, 1869, the district court ordered decrees to be entered in favor of the libelants in all the suits commenced against the steamer as aforesaid. (6) Such was the condition of the litigation when the present petition was filed in July, 1872, after the rendition of the judgment by the supreme court in the case of the libel of William A. Wright et al. in the district court of Connecticut. The petition prayed that, in conformity with the act of congress, the decision of the supreme court, and the admiralty rules made in pursuance thereof, the court would cause an appraisement to be made of the value of the interest of the petitioners in the steam-boat, and her freight for the voyage in which she was employed, for which they were liable, and that an order should be made for paying the amount of such valuation into court, or for giving a stipulation therefor, with sureties. It prayed, further, for a monition against all the persons claiming damages arising out of the said collison and fire, citing them to appear and make proof of their claims; and it prayed also for a restraining order against the further prosecution of all or any suits against the steam-boat or the petitioners for any damage caused by the collision, fire, and loss. There was also a prayer for general relief. The monition was issued, the appellants appeared, and an order was made for an appraisement of the amount of value of the interest of the petitioners as owners, respectively, of said steam-boat and her freight, pending for the voyage upon which she was employed, for which the petitioners were liable. a restraining order, as prayed for, was also made. Pursuant to the direction of the court an appraisement was made. The appraiser ascertained and reported the value of the steamboat as she lay immediately after the collision and fire, and before she was raised, to have been $2,500; and the district court confirmed the report, and ordered the amount to be paid into the registry, which was accordingly done. (7) The value of the interest of the petitioners in the steam-boat, as she was immediately after the disaster, was $2,500, and no more. (8) The value of that interest immediately before the collision was $70,000. (9) When the collision occurred the steam-boat was insured against fire, (not against marine disaster,) and upon the several policies the petitioners, as owners, have recovered from the underwriters the sum of $49,283.07; that part of said sum was recovered by the petitioner herein in an action brought by it in the circuit court of the United States for the district of Connecticut, on one of said five policies, against the Western Massachusetts Insurance Company. One of the defenses in that action was that the loss and damages were occasioned by the collision, (which is the same mentioned in these proceedings,) while the petitioner herein claimed that the greater part of the loss was by fire. The court held in that case that there were two classes of losses: one, the damage done the steamer by the collision itself, and the other caused by the fire. The damages caused by the collision were proved at $15,000. The damages caused by the fire were determined to be $69,000. The said insurance company moved for a new trial, but the motion was denied. (10) The steam-boat itself has never been surrendered or transferred to a trustee for the persons injured by her fault.' The conclusions at which Justice STRONG arrived upon these facts were (1) that the value of the steam-boat immediately after the collision and fire, as she lay at the bottom of the Sound, with her pending freight, was the measure of the owners' liability, and the amount to be apportioned; (2) that insurance is not an interest in the vessel, within the meaning of the third section of the act of 1851, or section 4283 of the Revised Statutes; (3) that the limitation of the owners' liability under the act is as applicable when the proceeding is in rem, as when it is in personam, so that if the owner's liability is only the amount of the vessel's value when at the bottom of the Sound, the vessel's liability, after being raised and repaired, is no greater.

The opinion of the court was delivered by: Bradley, J.

J. Langdon Ward, R. H. Huntley,

[Argument of Counsel from pages 475-479 intentionally omitted] J. W. C. Leveridge and Jeremiah Halsey, for appellee, Norwich & New York Transp. Co.

[Argument of Counsel from pages 479-483 intentionally omitted]

C. R. Ingersoll, and Saml. W. Bower, for appellants, George Place and others.

[Argument of Counsel from pages 483-489 intentionally omitted]

The first ground of error which we shall notice is the alleged want of jurisdiction in the district court to allow a reappraisement of the steam-boat for the purpose of fixing her value as the limit of the owners' liability, after her value had once been appraised at $70,000, and she had been delivered to the claimants upon their stipulation for that amount. This ground cannot be maintained, because the question had not then been decided what particular time was to be taken for fixing the value of the vessel in reference to the limited liability of the owners. They wished to have possession of her, and were willing to give a stipulation for her full value at that time in order to obtain such possession. Had the vessel remained in custody until the final petition for a limited liability was filed, the court would have been at liberty then to determine the time at which the value of the vessel should be taken for that purpose, and to order a new appraisement if necessary. The stipulation given merely stood in place of the vessel itself, and did not deprive the court of any of its power. The subsequent trial on the merits, the interlocutory decree in favor of the libelants, and the report of the commissioner showing the amount of their damage, did not preclude the claimants from exercising their right to proceed for a limitation of their liability under the rules of procedure adopted by this court. The trial on the merits resulted in determining which vessel was in fault, and in liquidating the amount of damage sustained by the libelants, to be used as a basis of their pro rata share in the fund which might ultimately be decreed subject to their claim and the claims of other parties. It did not settle the amount of that fund, nor the extent of the liability of the owners of the steamer. In the case of The Benefactor, 103 U. S. 239, this matter was fully considered, and we held that 'the amount recovered, whether before the limitation proceedings are commenced or afterwards, and whether in the court of first instance or an appellate court, will stand as the recoveror's basis for pro rata division when the condemned fund is distributed. In all other respects the proceedings for obtaining a limitation of liability may proceed in the ordinary course.' In view of the want of any settled practice on the subject, this court, in its opinion in the case of Norwich & N. Y. Transp. Co. v. Wright, suggested the precise course which was taken by the petitioners. 13 Wall. 126. We think it was the proper course, and that the district court had jurisdiction to entertain the petition, and to order a new appraisement.

The next question to be considered is, at what time ought the value of the vessel and her pending freight to be taken, in fixing the amount of her owners' liability? Ought it to be taken as it was immediately before the collision, or afterwards? And if afterwards, at what time afterwards?

The first question has been repeatedly answered by the decisions of this court. We held in Norwich Co. v. Wright, and have held and decided in many cases since, that the act of congress adopted the rule of the maritime law as contradistinguished from that of the English law on this subject; and that the value of the vessel and freight after, and not before, the collision is to be taken. But at what precise time after the collision this value should be taken has not been fully determined so as to establish a general rule on the subject. That is a question which deserves some consideration. In the case of The Scotland, 105 U. S. 24, the collision occurred opposite Fire Island light, and the steamer being much injured, put back in order, if possible, to return to New York; but was unable to get further than the middle ground outside and south of Sandy Hook, where she sunk, and nothing was saved but a few strippings, taken from her before she went down. We held that these strippings were all of the ship that could be valued, although she had run 30 or 40 miles after the collision. The value was taken, not as it was, or as it might have been supposed to be, immediately after the collision, but as it was after the effects of the collision were fully developed in the sinking of the ship.

An examination of the statute will afford light on this subject. Section 4283 declares that the liability of the owner of any vessel (for various acts and things mentioned) shall 'in no case' exceed the value of his interest in the vessel and her freight then pending. When it says 'in no case,' does it mean that for each case of 'embezzlement, loss, destruction, collision,' etc., happening during the whole voyage, his liability may extend to the value of his whole interest in the vessel? Twenty cases might occur in the course of a voyage, and all at different times. Does not the provision made in section 4284, for compensation pro rata to each party injured, apply to all cases of loss and damage happening during the entire voyage,–happening, that is, by the fault of the master or crew, and without the privity or knowledge of the owner? Pending freight is of no value to the ship-owner until it is earned, and it is not earned, if earned at all, until the conclusion of the voyage. Does this not show that every 'case' in which the principle of limited liability is to be applied means every voyage? We think it does. It seems to us that the fair inference to be drawn from section 4283 is that the voyage defines the limits and boundary of the casus or case to which the law is to be applied.

This is rendered certain by the language of section 4284, which is: '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 freight for the voyage, is not sufficient to make compensation to each of them, they shall receive compensation from the owner of the vessel in proportion to their respective losses.' There may be more than one case of embezzlement during the voyage, and more than one case of loss and destruction, and they may happen at different and successive times, yet they are to be compensated pro rata. This shows conclusively that it must be at the termination of the 'voyage' that the vessel is to be appraised, and the freight (if any be earned) is to be added to the account for the purpose of showing the amount of the owner's liability.

This conclusion is corroborated by section 4285, which declares that it shall be a sufficient compliance with the requirements of the law if the owner shall transfer his interest in the vessel and freight to a trustee for the benefit of the claimants. In most cases this cannot be done until the voyage is ended; for, until then, the embezzlement, loss, or destruction of property cannot be known. And this was manifestly the maritime law; for by that law the abandonment of the ship and freight (when not lost) was the remedy of the owners to acquit themselves of liability, and, of course, this could only be done at the termination of the voyage. If the ship was lost, and the voyage never completed, the owners were freed from all liability. Boulay-Paty, Droit Com. Mar. tit. 3, § 1, pp. 263, 275, et seq.; Emerig. Contrats a la Grosse, c. 4, sec. 11, §§ 1, 2; Valin, Com. liber 2, tit. 8, art. 2; Consolato del Mare, cc. 34, (141,) 186, (182,) 227, (194,) 239; 2 Pardessus' Collection; Cleirac, Nav. de Rivieres, art. 15.

If, however, by reason of the loss or sinking of the ship, the voyage is never completed, but is broken up and ended by causes over which the owners have no control, the value of the ship (if it has any value) at the time of such breaking up and ending of the voyage must be taken as the measure of the owners' liability. In most cases of this character no freight will be earned; but if any shall have been earned, it will be added to the value of the ship in estimating the amount of the owner's liability. These consequences are so obvious that no attempt at argument can make them any plainer.

If this view is correct, it follows, as a matter of course, that any salvage operations, undertaken for the purpose of recovering from the bottom of the sea any portion of the wreck, after the disastrous ending of the voyage as above supposed, can have no effect on the question of the liability of the owners. Their liability is fixed when the voyage is ended. The subsequent history of the wreck can only furnish evidence of its value at that point of time. And it makes no difference, in this regard, whether the salvage is effected by the owners, or by any other persons. Having fixed the point of time at which the value is to be taken, the statute does the rest. It declares that the liability of the owner shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending. If the vessel arrives in port in a damaged condition, and earns some freight, the value at that time is the measure of liability; if she goes to the bottom, and earns no freight, the value at that time is the criterion. And the benefit of the statute may be obtained either by abandoning the vessel to the creditors or persons injured, or by having her appraisement made, and paying the money into court, or giving a stipulation in lieu of it, and keeping the vessel. ...

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