THE ALOHA

• Decision Date: 21 October 1929
• Docket Number: No. 5877.,5877.
• Parties: THE ALOHA. GREEN v. LANGNES.
• Court: U.S. Court of Appeals — Ninth Circuit

35 F.2d 447 (1929)

THE ALOHA.^* GREEN v. LANGNES.

No. 5877.

Circuit Court of Appeals, Ninth Circuit.

October 21, 1929.

Winter S. Martin and Samuel B. Bassett, both of Seattle, Wash., for appellant.

Ira Bronson, H. B. Jones, and Robert E. Bronson, all of Seattle, Wash., for appellee.

Before DIETRICH and WILBUR, Circuit Judges, and LOUDERBACK, District Judge.

WILBUR, Circuit Judge.

Appellant brought an action against the appellee in the superior court of the state of Washington for the recovery of $25,000 damages for the loss of his eye as a result of an injury by a fish hook, alleged to have been due to appellee's negligence while the appellant was a member of the crew of the Aloha on an expedition fishing for halibut on the banks off the coast of British Columbia. The appellee is the owner and master of the Aloha, and as such had control of the fishing boat at the time of the accident. The appellee thereafter filed this libel in admiralty to limit his liability for such injury as owner of the Aloha, under section 4283 et seq., Rev. St. (46 US CA § 183 et seq.), to the value of the boat, about $5,000, and to enjoin the further prosecution of the suit in the state court.

The appellee alleged in his libel "that petitioner desires to claim the benefits of sections 4283, 4284, and 4285 of the Revised Statutes of the United States, and the acts amendatory thereof and supplemental thereto, and in this proceeding, by reason of the facts and circumstances hereinbefore set forth, petitioner further desires to test its liability and the liability of said M. S. Aloha to any extent whatever for any and all loss, destruction, damage and injury caused by and resulting from the occurrence aforesaid or other casualties of said voyage." He also alleged that his vessel was seaworthy, that the injury to the appellant was entirely due to his own negligence in handling the fish lines, and that the appellant knew of the danger involved in reeling in the ground line with fish hooks attached, and assumed the risk of the operation in which he was engaged, and that the expedition was a joint venture.

The petition did not set forth that the alleged negligence for which the appellant was seeking to hold the appellee liable in the state court, or otherwise, was without the knowledge or privity of the appellee, but, on the contrary, disclosed that the appellee, as owner, furnished the Aloha for this fishing expedition, and was in actual charge thereof as master at the time of the injury. While a petitioner is not required to admit the fact of negligence in his subordinates, in order to secure the benefit of the law limiting the owner's liability, his petition for the limitation of such liability should at least allege sufficient facts to show that the law he invokes applies to him. The insufficiency of the petition was reasonably and appropriately brought to the attention of the court. However, as the court overruled these objections, and the cause proceeded to trial and judgment, we will deal with the situation as developed by the pleadings and the evidence.

If the injury occurred from negligence without the privity or knowledge of the owner of the vessel, he was entitled to limit his liability for the injury to the value of the vessel, although there was only one claimant. 46 USCA § 183; White v. Island Transportation Co., 233 U. S. 346, 34 S. Ct. 589, 58 L. Ed. 993; Flink v. Paladini, 279 U. S. 59, 49 S. Ct. 255, 73 L. Ed. 613.

Upon filing the petition, the lower court enjoined further proceedings in the state court during the pendency of this matter, and at the conclusion of the trial held that there was no negligence whatever on the part of the appellee or his employees; that the Aloha was seaworthy and that the injury resulted from the negligence of the appellant; and that the accident was the result of the ordinary hazards of the task being performed by the appellant. Throughout the proceeding the appellant made timely objection to the jurisdiction of the court. Appellant claims that, inasmuch as the owner of the vessel was in actual charge thereof at the time of the accident, had furnished the vessel for the expedition, and was responsible for her seaworthiness, there was no basis for limiting the liability of the owner of the vessel, because the owner was not "without knowledge or privity" of the conditions responsible for the accident.

If the lower court had jurisdiction of the matter, for the reason that it was a proper case for limiting the owner's liability, it could proceed in the exercise of that jurisdiction to adjudicate the merits of the action, and in so doing might arrive at the conclusion that there was no liability whatever. The Benefactor, 103 U. S. 239, 26 L. Ed. 351; The Erie Lighter 108 (D. C.) 250 F. 490, and cases therein cited; Providence & N. Y. S. S. A. v. Hill Mfg. Co., 109 U. S. 578, 592, 3 S. Ct. 379, 617, 27 L. Ed. 1038; Butler v. Boston & S. S. Co., 130 U. S. 527, 9 S. Ct. 612, 32 L. Ed. 1017. The trial judge declined to pass upon the jurisdictional question, except by formal order, until all the evidence concerning the accident was before the court, and then announced at the conclusion of the trial that he found no evidence of negligence whatever on the part of the owner or his employees. The final decree appealed from was in part as follows:

"(1) That the accident described in the libel and petition herein and the loss, destruction, damage and injury arising therefrom, was not caused by the design or neglect of the petitioner, Axel Langnes, and did not occur with the privity or knowledge of said petitioner.

"(2) That the said petitioner be and he is hereby forever exempt and discharged from all loss, damage, destruction or injury arising from or growing out of the said occurrence happening on board said vessel, Aloha, on or about said 13th day of May, 1928; and * * *

"(4) That claimant's exceptions to the petition grounded upon alleged want of facts and alleged want of jurisdiction filed herein on the 22d day of January, 1929, be and each of said exceptions is hereby overruled."

The appellant having elected to pursue his common-law remedy in the state court, the jurisdiction of the admiralty court depended upon the right of the owner to limit his liability to the value of the ship and cargo. Section 4283, Rev. St. (Comp. Stat. § 8021; 46 USCA § 183). That right in the case at bar was dependent upon the question as to whether or not the negligence upon which the appellant's claim is predicated was without the knowledge or privity of the owner of the vessel. This question is in a measure independent of the question of whether or not in fact there was negligence, and of the affirmative defenses thereto, and must therefore depend on the nature of the negligence alleged by the injured party as a basis for his recovery, and on the relation of the owner thereto. That question we will now consider.

In the case at bar the claim of the appellant is based upon the fact that the metal chain plates of the Aloha, to which the back stays were attached extending from the rail downward for about two feet, were not flush with the side of the vessel, and were not covered by a metal plate, and that therefore the hooks were liable to momentarily catch in the side of the metal chain plates and be snapped loose by the pull of the winch. The defect, if it was a defect, was perfectly obvious to the owner and to the crew. Its proximity to the roller on the rail of the ship over which the ground line was being drawn to the winch was obvious. It appears from the evidence, not only that the owner of the vessel was on duty in the pilot house, but also that he had directed the appellant to tend the ground line as it came over the side of the vessel, and had observed him in that work. Whether the hook which injured the appellant's eye actually caught on the chain plate, or whether it caught in the soft wood of the ship's side, is a matter of inference to be drawn from the evidence. The appellee contended, and the court found, that the risks, such as they were, were obvious, and were assumed by the appellant. They were, of course, as obvious to the owner as to the appellant. If, as a matter of fact, the vessel was unseaworthy for the purpose for which it was being used, by reason of the failure to cover the chain plates with sheet metal, so as to diminish the chance that the hooks would catch while coming aboard, the owner of the vessel, who had prepared it for the service and who was fully advised, by reason of his long experience, as to the character of the operations to be performed and as to the dangers thereof, was necessarily in privity with and had knowledge of the conditions.

The only persons involved in the accident to the appellant were the owner and master of the vessel, who furnished the appliances and who controlled the vessel at the time of the accident, and the appellant himself, who was operating the instrumentalities by which he was injured. Under these conditions, if the owner was liable to the extent of the value of the vessel, he was also liable for the entire damage suffered by the appellant. It is argued in the briefs and suggested in the testimony that there may have been some negligence in the manner in which the vessel was placed with reference to the ground...