Great Lakes Towing Co. v. Mill Transp. Co.

• Decision Date: 30 July 1907
• Docket Number: 1,662.
• Citation: 155 F. 11
• Parties: GREAT LAKES TOWING CO. v. MILL TRANSP. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

155 F. 11

GREAT LAKES TOWING CO. v. MILL TRANSP. CO.

No. 1,662.

United States Court of Appeals, Sixth Circuit.

July 30, 1907

H. D Goulder, for appellant.

G. L Canfield, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

The controversy in this case arose upon a petition of the appellee, the Mills Transportation Company, for an order limiting its liability for services rendered by the appellant in endeavoring to rescue the steamer Newago, a vessel belonging to the appellee, which had been stranded upon a reef in that part of Lake Huron, known as the Georgian Bay. The accident to the Newago occurred on November 17, 1903. Prior to this accident, and on July 9, 1903, the appellant addressed to H. McMorran, who was the managing agent for the appellee of the Newago and other of its vessels, as well as of other parties for other vessels, the following proposition 'The Great Lakes Towing Company.

'Cleveland Ohio, July 9th, 1903.

'To H. McMorran, Pt. Huron, Mich.:

'We hereby propose to furnish all the towing and wrecking services required by the boats under your management during the balance of the year 1903, . . . , at points covered by the Great Lakes towing tariff for 1903, on the following terms:

'In consideration of your agreeing to have all of the boats under your management employ the tugs and wrecking appliances owned or specified by us during the balance of the year 1903, . . . , at points covered by The Great Lakes Towing Tariff we will allow the following discounts from said tariff:

'Harbor Towing. At Chicago and Tonawanda 35 per cent. discount from said tariff, and at all other points 30 per cent. discount from said tariff, with a further discount in both cases of 10 per cent. for cash on all bills paid within the month following that in which the service is rendered.

'Wrecking or Bottom Work. A discount of 20 per cent. from said tariff, and a further discount of 5 per cent. for cash if bills are paid within the month following that in which the service is rendered.

'Soo. For landing stern barge at the Soo the rate to be $5.00 flat, without discounts, for each service.

'Lake Towing. When barges are transferred from port to port, where there is a lake tow, no charge to be made for the in tow.

'Maximum Rate. The maximum rate for and in and out tow at any port where only the one cargo is handled shall not exceed seventy-five dollars ($75.00) net each.

'All charges for labor, meals and other items representing cash advances shall be net, and payable on demand.

'These rates only apply to vessels actually engaged in the lumber trade, and refer only to boats of twelve hundred thousand capacity and under.

'We will endeavor to have tugs of suitable power on hand at all times to provide a first-class service, but shall not be held liable for damages in case we are not able at any time to furnish such service. In case, however, at any time, for any reason, we are unable to have tugs on hand to serve your boats, you are at liberty to engage any other tugs to serve you for that time, but without the right to charge us any difference in price.

'The vessels towed shall furnish good and sufficient lines.

'The Great Lakes Towing Company, 'By C. H. Sinclair, G.M.'

This proposition was on its receipt accepted in the following language thereunder written:

'The undersigned, H. McMorran, mang. owner, manager of boats named below, hereby accepts the above proposition, for said boats and for the consideration named therein, agrees to cause said boats to employ the tugs, lighters and wrecking outfit owned or specified by The Great Lakes Towing Company, at points named in said The Great Lakes Towing Tariff, on above named terms, at all times during the balance of the year 1903 when they require such service.

H. McMorran.

'steamers.

'Steamer Gogebic,

'Steamer Newago,

'Steamer Pawnee,

'Steamer Britannic,

'Steamer Mary Groh,

'Steamer M. Ross.

'Consorts.

'Schr. Checotah,

'Barge M. E. Orton,

'Barge J. R. Edwards,

'Barge W. A. Young,

'Schr. Thos. Howland.'

The vessels named in this list belonging to the Mills Transportation Company were the Gogebic, the Newago, and the Checotah.

Upon the happening of the accident to the Newago, her captain forthwith telegraphed to his principal, the Mills Transportation Company, that the Newago was ashore on Devil's Island Shoal leaking badly, and asking that a wrecking outfit be sent. The Mills Transportation Company were aware of the contract of the appellant with McMorran, and on receipt of the telegram above mentioned communicated with McMorran, who was then at Washington, but had left subordinates in his office at Port Huron. Through these subordinates, the request for the assistance of a tug and other wrecking outfit was made to the appellant, which thereupon dispatched the Favorite and wrecking apparatus to the scene of the disaster; and the appellee notified the captain of the Newago by telegram that this had been done. On arrival the Favorite found the Newago difficult of access, being in a place of great danger. But the Favorite stood by and endeavored for several days to rescue the steamer. Its efforts were unsuccessful, and the Favorite was finally discharged from further service. The Newago was lost and only about $156 in value of her remnants were saved. Subsequently the appellant presented to the appellee a bill for the services thus rendered as follows:

Dec. 3, 1903.

Steamer Newago, to the Great Lakes Towing Co., Dr.

For tug services at port of . . . , Str. Favorite.

1903 From to Tug

Favorite.

Nov. 17 to 27 inclusive. to services rendered while steamer was ashore Devil's Island Shoal 10 days at $350.00 per day . . . $3,50000

To use 2-12' steam pumps 10 days each, 20 days at $50 per day . . . 1,00000

$4,50000

But the personal liability of the appellee for the bill was not admitted. We do not understand that the bill itself was objected to, but it was contended that there was no personal liability of the owner therefor, and that recourse was available only against the vessel of which the remnants above mentioned were the only parts in esse.

In this state of affairs the appellee filed its petition for the limitation of its liability. The remnants were appraised and a bond given by the petitioner for the sum of $250. The appellant appeared and filed its answer in opposition to the limitation prayed for in the petition, and its claim with a prayer for a decree for payment of the same. The court below held and decreed in favor of the petitioner that its liability be limited as prayed. Upon these facts we think the court below was in error.

By Act March 3, 1851, c. 43, 9 Stat. 635 (section 4283, Rev. St. (U.S. Comp. St. 1901, p. 2943)), it was enacted that:

'The liability of the owner of any vessel, for any embezzlement loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, lost, damage, or forfeiture, done occasioned, or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.' And by section 18 of the act of June 26, 1884 (23 Stat. 57, c. 121 (U.S. Comp. St. 1901, p. 2945)), it was further enacted that:

'The individual liability of a ship-owner, shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessel and freight pending: Provided, that this provision shall not affect the liability of any owner incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action; nor shall the same apply to wages due to persons employed by said ship owners.'

In a number of cases it has been held, and we have no doubt correctly, that these two provisions, relating as they do to the same class of persons and to the same subject, should be regarded as regulations in pari materia, and should be construed as parts of an entire scheme. We refer to this rule of construction of statutes in pari materia, because, as will be noticed, the words 'done, occasioned or incurred without the privity or knowledge of such owner or owners,' which are contained in the act of 1851 are not employed in the act of 1884; and from this circumstance counsel for the appellees argues it was intended by the use of the words 'debts and liabilities' in the later act to mean all debts and liabilities incurred on account of the vessel, whether with or without the privity or knowledge of the owner; whereas, if the act of 1884 were put to follow the act of 1851, so as to further provide for the application of the provision of the act of 1851, to the case of each individual shareowner of the vessel, and then sum up by declaring that all the liabilities of the owners on account of the vessel shall not exceed the value of the vessel and pending freight, the result would be that the condition of privity or knowledge of the owner would be carried along into the subsequent section. Another reason for thinking that the eighteenth section of the act of 1884 was intended as an extension merely of the relief provided by the act of 1851 is found in the fact that the act of 1851 contains provisions for the procedure in applying the limitation. One of these is by paying into court the appraised value of the ship and pending freight, the other by surrendering the vessel and freight. The...