210 U.S. 95 (1908), 33, La Bourgogne

Docket Nº:No. 33
Citation:210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973
Party Name:La Bourgogne
Case Date:May 18, 1908
Court:United States Supreme Court

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210 U.S. 95 (1908)

28 S.Ct. 664, 52 L.Ed. 973

La Bourgogne

No. 33

United States Supreme Court

May 18, 1908

Argued November 1, 1907




The decree of the district court in a proceeding for limitation of liability adjudging that the petitioner is entitled to the limitation and declaring that one class of claims cannot be proved against the fund and remitting all questions concerning other claims for proof prior to final decree is interlocutory, and an appeal to the Circuit Court does not lie therefrom, but from the subsequent decree adjudicating all the claims filed against the fund.

This Court will not disturb the concurrent findings of fact of both the courts below unless 80 unwarranted by the evidence as to be clearly erroneous, and a finding that the rate of speed of a vessel on the high seas during a fog was immoderate under the international rules will not be disturbed because based on the conceptions of immoderate speed prevailing in the United States courts and not on those prevailing in the courts of the country to which the vessel belonged.

In a proceeding to limit liability instituted by the owners of a foreign vessel lost on the high seas, the right to exemption must be determined by the law as administered in the courts of the United States.

In a proceeding for limitation of liability, the remedy of claimants against the fund for the failure of the petitioners to produce log books ordered

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to be produced by the court is to offer secondary evidence or ask for dismissal of the proceeding; they cannot proceed and ask the court to decide the case not according to the proof, but on presumption of wrongdoing and suppression of evidence.

Under the circumstances of this case, the fault of the officers and crew of the steamship La Bourgogne resulting in collision and loss of the vessel and its passengers, crew, and cargo was not committed with the fault and privity of its owner, so as to deprive it of the right to a limitation of liability under §§ 4282, 4289, Rev.Stat.

Mere negligence of the officers and crew of a vessel, pure and simple and of itself, does not necessarily establish the existence on the part of the owner of the vessel of privity and knowledge within the meaning of the limited liability act of 1851 as reenacted in §§ 4282-4287, Rev.Stat. The Main, 152 U.S. 122, distinguished.

Under § 4405, Rev.Stat., the regulations of the supervising inspectors and the supervising inspector general when approved by the Secretary of the Treasury in regard to carrying out the provisions of §§ 4488, 4489, Rev.Stat., have the force of law, and the owner of a foreign vessel is required to comply therewith by the Act of August 7, 1882, c. 441, 22 Stat. 346, and, even if such regulations are inconsistent with the statute, compliance therewith does not amount to a violation of the statute and deprive the owner of the right to a limitation of liability on account of privity with the negligence causing the loss.

In the case of a foreign vessel making regular trans-oceanic trips, the freight for the voyage to be surrendered by the owner in a proceeding for limitation of liability when the vessel is lost on the return trip is that for the distinct sailing between the regular termini, and does not include the freight earned on the outward trip.

Notwithstanding that, where a contract of transportation is unperformed and no freight is earned, no freight is to be surrendered, such freight and passage money as are received under absolute agreement that they shall be retained by the carrier, in any event, must be surrendered by the owner of a vessel seeking to limit his liability under the provisions of §§ 4283-4287, Rev.Stat.

An annual subsidy contract made by a foreign government and a steamship company for carrying the mails was held under its conditions not to be divisible, and no part thereof constituted freight for the particular voyage on which the vessel was lost which should be surrendered by the owner in a proceeding for limitation of liability.

Where the law of the state to which a vessel belongs gives a right of action for wrongful death occurring on such vessel while on the high seas, such right of action is enforceable in the admiralty courts of the United States against the fund arising in a proceeding to limit liability, The Hamilton, 207 U.S. 398, and the law of France does give such right of action for wrongful death.

In determining whether claims for wrongful death are enforceable against the fund in a limited liability proceeding, notwithstanding the right to

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enforce such claims is based on the right of action given by the law of the country to which the vessel belongs, the question of whether the vessel was in fault and the fund liable must be determined by the law of the United States courts. The duty to enforce the cause of action given by the foreign law does not carry with it the obligation to give the proof the same effect as it would have in the courts of that country if the effect is different from that which such proof would have in the courts of the United States.

Where there is an honest controversy as to what the pending freight for the voyage includes, and in the absence of contumacious conduct, a limitation of liability should not be refused because the petitioner has not, pending the determination of such controversy, actually paid over to the trustee the entire amount of the pending freight as finally adjudicated.

Where, on writ and cross-writ of certiorari, the judgment is affirmed, neither party prevails, and each must pay his own costs in this Court.

144 F. 781 affirmed.

The facts are stated in the opinion.

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WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

On July 4, 1898, in the Atlantic Ocean, about 60 miles off Sable Island, as the result of a collision between the British ship Cromartyshire and the French steamship La Bourgogne, bound from New York to Havre, La Bourgogne was hopelessly injured, sank in a short time, and most of her passengers, her captain, other principal officers, and many of the crew, went down with the ship. Numerous suits in admiralty and actions at law were brought in various federal and state courts against La Bourgogne or her owners to recover damages for loss of life, loss of baggage, and other personal effects. These claims aggregated a very large sum. In May, 1900, La Compagnie Generale Transatlantique, a French corporation, the owner of La Bourgogne, petitioned the United States District Court for the Southern District of New York, seeking to obtain the benefit of the laws of the United States limiting the liability of shipowners. It was averred that the collision was caused solely by the fault of the Cromartyshire, but, even if there was fault [28 S.Ct. 666] on the part of La Bourgogne, it was without the privity or knowledge of the company. The interest of

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the company in the steamship and her pending freight was alleged to be only about $100, the value of articles saved from the wreck. A list of the pending suits was annexed. It was prayed that a trustee be appointed, to whom the interest of the company in the steamship and her pending freight might be transferred. A monition warning all persons having claims by reason of the collision to prove the same within a time to be fixed was asked, as also that a commissioner be appointed to take such proof, and that the prosecution of all other actions because of the collision be restrained. Finally, it was prayed that the company be decreed not to be liable for the loss of La Bourgogne, or, if responsible, its liability, in conformity to the statute, be limited to the property surrendered.

The court directed the company to transfer to a named trustee its interest in the steamship and her pending freight, and, following this order, a formal transfer was executed. There were, however, actually surrendered to the trustee only certain lifeboats and life rafts. A monition and a preliminary injunction were ordered, and a commissioner was named to take proof of claims within a time fixed. In conformity with a rule of the court relating to the procedure to limit liability, which is in the margin,1 the commissioner in a short while

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reported that claims aggregating more than $2,000,000 had been presented. Most were for losses occasioned by death, and the others were for personal injuries and for loss of baggage or other personal effects.

Disregarding the technical attitude of the parties on this record, we shall speak of La Compagnie Generale Transatlantique, owner of La Bourgogne, as the petitioner and the adverse parties as claimants.

Without stating details, it suffices to say that the petitioner challenged the validity and amount of the claims reported. The claimants traversed the petition for limitation of liability, charging that the collision had been solely caused by the fault of La Bourgogne in going at an immoderate rate of speed in a dense fog, and that such fault was with the privity and knowledge of the petitioner. This latter was based on averments that the petitioner had negligently failed to make and enforce adequate regulations to prevent its steamers being run at an immoderate speed in a fog, that it had knowledge that its steamers were habitually so run, and because La Bourgogne was not fully manned and equipped as required by law, had no watertight bulkheads, and was not furnished with boats or proper disengaging apparatus, as required by the laws of the United States. It was further charged that the petitioner was not entitled to a limitation of liability, because it had not actually surrendered...

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