Standard Wholesale P. & A. Works v. Travelers Ins. Co.

• Decision Date: 06 November 1939
• Docket Number: No. 4530.,4530.
• Citation: 107 F.2d 373
• Parties: STANDARD WHOLESALE PHOSPHATE & ACID WORKS, Inc., v. TRAVELERS INS. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

107 F.2d 373 (1939)

STANDARD WHOLESALE PHOSPHATE & ACID WORKS, Inc., v. TRAVELERS INS. CO. et al.

No. 4530.

Circuit Court of Appeals, Fourth Circuit.

November 6, 1939.

John H. Skeen, of Baltimore, Md. (Pearre, Kieffner & Jacobs, Venable, Baetjer & Howard, and Emory, Beeuwkes, Skeen & Oppenheimer, all of Baltimore, Md., on the brief), for appellant.

L. Vernon Miller and G. Van Velsor Wolf, both of Baltimore, Md. (Marbury, Gosnell & Williams and Hewlett B. Cox, all of Baltimore, Md., on the brief), for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and DOBIE, District Judge.

NORTHCOTT, Circuit Judge.

This is an appeal from an order of the District Court of the United States for the District of Maryland, dismissing a libel and petition for limitation of liability filed by the appellant, Standard Wholesale Phosphate & Acid Works, Incorporated, here referred to as the petitioner, as owner of the barge "Maine". The matters in controversy grew out of injuries alleged to have been sustained by the three individual appellees, Charles F. Mack, William Brooks, and Lawrence Blische, while engaged in preparing to load the barge with a cargo of concentrated sulphuric acid.

Upon the filing of the petition for limitation the three individual appellees together with the appellee Travelers Insurance Company, here referred to as the insurer, appeared specially to contest the filing of the petition, and, by leave of the court granted ex parte, filed an exception to the libel and petition for limitation as well as exceptive allegations and a motion to dismiss the petition. The petitioner filed a motion to overrule the exception and the judge below, after a hearing, granted the motion to dismiss and on July 13, 1939, an order was entered to that effect. From this action the petitioner brought this appeal.

The injury to the three individual appellees was alleged to have occurred on September 2, 1938, at the dock of the Baugh Chemical Company, of which company the three were employees.

The three men filed claims for compensation under the Workmen's Compensation Act of Maryland, Code Pub.Gen.Laws Md. 1924, art. 101, § 1 et seq. Compensation was awarded each of them by the State Industrial Accident Commission and the award ordered to be paid by the Baugh Chemical Company, as employer, and the Travelers Insurance Company, as insurer of the Chemical Company.

On September 26, 1938, the insurer wrote three letters to the petitioner, in regard to the injury to each of the three individual appellees, which letters were as follows:

"The Travelers The Travelers Insurance Company The Travelers Indemnity Company The Travelers Fire Insurance Company L. Edmund Zacher, President Hartford, Connecticut. Claim Department W. S. McKay, Adjuster Mercantile Trust Building Baltimore, Md. September 26, 1938. B-4536155 The Baugh Chemical Company and The Baugh & Sons Company Re: — Charles F. Mack 9-2-38 _________________________ Standard Acid Works, Inc. Mercantile Trust Building Baltimore, Md.

Gentlemen:

This letter will advise you that we are the insurance carrier for The Baugh Chemical Company, whose employee, Charles F. Mack, was injured on September 2, 1938, under circumstances which we believe involve your responsibility.

Mr. Mack has made claim for compensation against his employer, The Baugh Chemical Company, under the Maryland Workmen's Compensation Act and, in accordance with the provisions of that Act, we are subrogated to any right which the injured person may have against you and, at the proper time, we shall look to you for reimbursement on account of any payments for either compensation benefits or medical treatment which we may be called upon to make in the case.

Very truly yours W. S. McKay WSM-KH Adjuster."

The other two letters were similar except for the insertion of the appropriate name of the injured employee.

On September 27, 1938, the petitioner sent the following reply to these letters:

"Standard Wholesale Phosphate &amp Acid Works, Inc. Standard Guano Co. Union Acid Works, Inc. Standard Acid Works, Inc. United States Guano Co., Inc. Baltimore, Md September 27, 1938. Mr. W. S. McKay, Adjuster The Travelers Insurance Co. Mercantile Trust Bldg Baltimore, Md.

Dear Mr. McKay:

We are in receipt of your three letters of September 26, in regard to certain of Baugh Chemical Company's men who claim they were injured while on our barge property.

This barge was leased to the Baugh people for the transportation of their material from Baltimore to Norfolk, and they have entire charge of loading such cargo, doing the work with their own men and paying insurance on the cargo to destination. We, therefore, disclaim any responsibility under the lease to the Baugh people, since we simply chartered the boat to them and they did the work with their own men. As a matter of fact, our men would have no right on their property.

Yours very faithfully, Standard Wholesale Phosphate & Acid Works, Inc. (s) George A. Whiting, GAW:ECS President."

On November 16, 1938, three suits were filed by the insurer in the Superior Court of Baltimore City against the petitioner and on May 10, 1939, the libel and petition was filed in this case.

A written stipulation of facts was filed, and the cause submitted upon the pleadings and this stipulation.

The statute immediately involved is a part of an amendment of the limitation of liability law, being Section 4285 of the Revised Statutes of the United States, as amended June 5, 1936, by c. 521, § 3, 49 Stat. 1480, 46 U.S.C.A. § 185, which provides: "The vessel owner, within six months after a claimant shall have given to or filed with such owner written notice of claim, may petition a district court of the United States of competent jurisdiction for limitation of liability within the provisions of this chapter and the owner (a) shall deposit with the court, for the benefit of claimants, a sum equal to the amount or value of the interest of such owner in the vessel and freight, or approved security therefor, and in addition such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of section 183 of this title, or (b) at his option shall transfer, for the benefit of claimants, to a trustee to be appointed by the court his interest in the vessel and freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of section 183 of this title. Upon compliance with the requirements of this section all claims and proceedings against the owner with respect to the matter in question shall cease."

Two questions are involved in this appeal:

(1) Did the court err in permitting the filing of exceptive allegations by the appellees?

(2) Was the petition of the appellant for limitation of liability filed within the time fixed by the statute?

The right of the owner of a vessel to limit liability is wholly...