In re Old Dominion S.S. Co.

• Decision Date: 07 May 1902
• Citation: 115 F. 845
• Parties: In re OLD DOMINION S.S. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

115 F. 845

In re OLD DOMINION S.S. CO.

United States District Court, E.D. North Carolina.

May 7, 1902

Wm. H White and Donnell Gilliam, for petitioner.

Thos J. Jarvis and Jas. H. Pou, for respondents.

PURNELL District Judge.

On September 21, 1899, the old Dominion Steamship Company filed in the district court a petition and libel to limit its liability under the act of 1851 and acts amendatory thereof (section 4282 et seq., Rev. St.). Stipulations were filed, a trustee was appointed to whom the lighter or flat was transferred, appraisers appointed, and other proceedings had in accordance with the statute and practice. The freight paid in advance has been refunded, and the unpaid freight has not been collected. All proceedings are regular; whereupon a monition and injunction issued as provided in admiralty rule 54. Answers were duly filed by the Thames & Mersey Marine Insurance Company, Limited, and the British Foreign & Marine Insurance Company, Limited. Subsequently the following agreed statement of facts was filed:

'First. That the petitioner, the Old Dominion Steamship Company, is a corporation chartered and existing under the laws of the state of Delaware, and is thereby authorized to engage in interstate and intrastate commerce; that at the time hereinafter mentioned the petitioner was engaged in operating lines of steamships, as common carriers of freight and passengers, from Tarboro, and from Washington another steamer performed the service to Belle Port or Belle Haven, in said state; that at Belle Port or Belle Haven said steamers connected with the Norfold & Southern Railroad, and their freight and passengers transported thereby to the city of Norfolk, in the state of Virginia, and from Norfolk the said petitioner operated lines of steamboats to New York, Boston and other Eastern cities; that formerly the said petitioner operated a line of steamers from the said town of Washington to the city of Norfolk, but this line had been abandoned, and the arrangement above mentioned substituted therefor, at the time of the loss in question.

'Second. That Tar river is a navigable stream from Washington to Tarboro; that at Washington it takes the name of Pamlico river, which empties into Pamlico sound, which latter body of water is connected with the Atlantic Ocean by Ocracoke and Hatteras Inlets. The tides ebb and flow in Pamlico sound and river, but do not ebb and flow in Tar river above Greenville.

'Third. That the steamer R. L. Myers of the petitioner plies regularly between Washington and Greenville, a distance of twenty-five miles, at all seasons of the year, but for several months of each year during the late summer and part of the fall the water of the river is too low to enable said steamer Myers to operate above Greenville; that when this is the case the company uses a lighter draft steamer above Greenville, and when the water is too low for this lighter draft steamer, which it is for several months of each year, the company uses a flat or lighter hereinafter described with which to take the cargo from steamer at Greenville to points above and from points above Greenville to the steamer at Greenville; that during the entire period that the petitioner has been operating its steamer on said river it has been customary for the petitioner to use the flat or lighter in use at the time of the loss in question for the purpose of transporting freight from points on the river above Greenville to the steamer Myers at Greenville whenever and during the time the water of the river would not admit of navigation by said steamer; that the use of said flats for such purpose was well known to the shippers of the cotton in question, and also that said cotton was so to be transferred in this particular instance, but such was not known to the consignees of said cotton or to the insurance companies.

'Fourth. That the flatboat or lighter in use at the time of the loss complained of was about 80 feet long, 18 feet wide, 4 feet deep, with a flat deck on which the cargo was loaded; that at one end there was a part set off for a cabin for the crew, and the covering of this cabin was somewhat higher than the flat deck of the other part; that both ends of the flat were square, and it was propelled by men by means of poles, and was guided by means of a large oar which could be adjusted at either end of the flat; that this flat had no special name, but was known and called the 'Old Dominion Flat,' and was not registered.

'Fifth. That the cotton in question was loaded upon said flat at Falkland and Center Bluff, two points on said river above Greenville, on the 10th of November, 1897, and was destroyed by fire the same day, while being transported to Greenville for delivery to the steamer Myers.

'Sixth. That the Thames & Mersey Insurance Company is a corporation duly licensed and empowered to do a general insurance business, and that 29 bales of the cotton upon the flat was insured in said company, and that the said cotton was entirely destroyed, and was of the value set forth in the answer of said company herein; that the British Foreign & Marine Insurance Company is a corporation duly licensed and empowered to do a general marine insurance business, and that the 113 bales of cotton upon said flat was insured by and in said company; that said cotton was entirely destroyed by said fire, and was of the value set forth in the answer of said company herein.

'Seventh. That the testimony taken on the trial of the suit of the Thames & Mersey Insurance Company against the Old Dominion Steamship Company, tried at April term, 1899, of Pitt superior court, as set out in the printed copy now on file in the supreme court, together with this statement of facts, shall be taken as the evidence upon which the two causes pending in this court shall be heard. Either party shall have the right to file herewith a printed copy of the above-mentioned evidence as now on file in the supreme court of the state.'

The value of the cotton referred to in section 6 of the facts agreed, set out in the answer of the Thames & Mersey Insurance Company, is $706.59, and in the answer of the British Foreign & Marine Insurance Company $2,022.45, the insurance on which the said companies have severally paid, and been substituted by assignment to the rights of the shipper and owners thereof.

The testimony referred to in the seventh section of the agreed facts shows the defendant in the state court, libelant here introduced all the testimony as to the origin of the fire, and this does not account therefor; there is no evidence tending to show design or neglect, privity, or knowledge of the owners of the vessel. The facts as gathered from the record do not show how the fire originated. When the lighter had proceeded about three miles on the voyage down the river an explosion, or a noise resembling an explosion, was heard as coming from under the cotton was in flames. There was no fire on or about the lighter. The lighter was not equipped with any fire apparatus. There was nothing of...