Monongahela River Consol. Coal & Coke Co. v. Hurst

• Decision Date: 07 November 1912
• Docket Number: 2,324.
• Citation: 200 F. 711
• Parties: MONONGAHELA RIVER CONSOL. COAL & COKE CO. et al. v. HURST et al.
• Court: U.S. Court of Appeals — Sixth Circuit

200 F. 711

MONONGAHELA RIVER CONSOL. COAL & COKE CO. et al. v. HURST et al.

No. 2,324.

United States Court of Appeals, Sixth Circuit.

November 7, 1912

Under libels in personam filed May 13, 1910, in the District Court of the United States for the Western District of Tennessee against the appellants, decrees, each in the sum of $10,000 were rendered January 28, 1911, in favor of the respective appellees, for damages on account of the deaths of the husbands of appellees, respectively, occasioned by a collision occurring January 30, 1910, on the Mississippi river near Memphis, between a launch, in which decedents and others were riding, and the steamer Enterprise, owned by the appellant Monongahela River Company, but then under charter by the appellant Huntington Towboat Company. Appeals from the respective decrees were taken to this court February 16 1911; a supersedeas bond being given in each case for $10,000, conditioned that appellants shall 'prosecute their appeal with effect and shall answer and pay all damages, interest, and costs which may be decreed against it including costs and interest on appeal, in case it fails to make good its plea. ' On March 5, 1912, after the appeals had been submitted to this court for decision, appellants filed in the District Court for the Western District of Tennessee a petition for limitation of liability under the federal statutes. Rev. St. Sec. 4283 et seq. (U.S. Comp. St. 1901, p. 2943). This limitation proceeding was not brought to the attention of this court, and on March 13, 1912, the decrees of the District Court were here affirmed. 196 F. 375.

To the libels in the collision cases appellants had excepted, first, because their liability under the federal statute was limited to their respective interests 'in the vessel alleged to have caused the damage averred, whereas the libel contains no averment touching the value of said vessel, nor the quantum of interest therein of each of the respondents', etc.; and, second, because the libel failed to allege a failure by appellants to use due diligence in the respects referred to in section 3 of chapter 105 of the act of February 13, 1893 (27 Stat. 445 (U.S. Comp. St. 1901, p. 2946)), known as the 'Harter Act.' The District Court overruled the exceptions; the opinion stating that appellants were given until a stated date in which 'to file their answers and to take such further steps to obtain the benefit of section 4283 as they may be advised. ' The order merely overruled the exceptions, giving until the date stated in which to answer the libel. Answers were filed to the libels in collision, but no further steps were taken in the collision suits to claim the benefit of limited liability. The overruling of the exception to the libels was assigned as error in this court on the appeal from the decrees in the collision suits, but the assignment was not pressed. These matters, together with the giving of the supersedeas bond on appeal to this court, were pleaded in the District Court in bar of the proceeding to limit liability. The plea was sustained, and the proceedings dismissed, so far as appellees are concerned. The value of the steamer, its pending freight, and its barge and 'flat' in tow at the time of the collision, were appraised in the aggregate amount of $8,500, and bonds were given to that extent for the payment of such amounts as should be awarded by final decree in the limitation proceedings. This court denied a motion for rehearing in the collision cases, but stayed its mandate until hearing and decision upon the appeal in the limitation proceeding. When the proceeding to limit liability was begun, a suit had been brought against appellants, and was pending in a state court, for the recovery of damages for the death of a third occupant of the launch. It was conceded on the argument that recovery has been had in that suit. The amount of the recovery does not appear. There is possibility of another suit by the owner and fourth occupant of the launch.

Frank S. Masten, of Cleveland, Ohio, Charles M. Johnston, of Pittsburgh, Pa., Chas. H. Stephens, of Cincinnati, Ohio, and Holding, Masten, Duncan & Leckie, of Cleveland, Ohio, for appellants.

Wm. R. Harrison, of Memphis, Tenn., for appellees.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge (after stating the facts as above).

Section 4283 of the Revised Statutes (Act March 3, 1851, c. 43, 9 Stat. 635 (U.S. Comp. St. 1901, p. 2943)), provides 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.'

The effect of section 4284 (U.S. Comp. St. 1901, p. 2943) is to provide a general average of loss in case the value of the vessel and freight is insufficient to make full compensation to all sustaining loss. Butler v. Boston, etc., S.S. co., 130 U.S. 527, 551, 9 Sup.Ct. 612, 32 L.Ed. 1017. Under section 4286 (U.S. Comp. St. 1901, p. 2944) a charterer is given the benefit of the statute in case he mans, victuals, and navigates the vessel at his own expense or by his own procurement (Thorp v. Hammond, 12 Wall. 408, 416, 20 L.Ed. 419); the owner retaining the benefit of the statute notwithstanding such chartering (Quinlan v. Pew (C.C.A. 1) 56 F. 111, 119, 5 C.C.A. 438). The effect of the statute is to leave the owner and charterer liable without limit for their own negligence, and liable only to the extent of their interest in the vessel and freight for the negligence of the master and crew. Liverpool, etc., Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 440, 9 Sup.Ct. 469, 32 L.Ed. 788; Great Lakes Towing Co. v. Mill Transportation Co. (C.C.A. 6) 155 F. 11, 18-19, 83 C.C.A. 607, 22 L.R.A. (N.S.) 769. The statute applies to death claims (Butler v. Steamship Co., supra), and, by express amendment of 1886, to vessels used on navigable rivers (Rev. St. Sec. 4289 (U.S. Comp. St. 1901, p. 2945)); In re Garnett, 141 U.S. 1, 14-15, 11 Sup.Ct. 840, 35 L.Ed. 631). Under admiralty rules Nos. 54 to 58 (29 S.Ct. xlv, xlvi), the benefit of the statute can be had under libel filed by the owner in a District Court, appraisement of such owner's interest in the vessel and pending freight, and the bringing of the amount of such appraisal into court, by either (a) actual payment into court; or (b) giving stipulation for such payment when ordered; or (c) the transfer by libelant of his interest in the vessel and freight to a trustee appointed by the court, as provided by section 4285 (U.S. Comp. St. 1901, p. 2944).

The proceeding to limit liability will not affect the status of the appellees' decrees in the collision suits. Those decrees are final adjudications, both as to liability and amount of damages. Norwich Co. v. Wright, 13 Wall. 104, 122, 20 L.Ed. 585; The Benefactor, 103 U.S. 239, 26 L.Ed. 351; The Scotland, 105 U.S. 24, 36, 26 L.Ed. 1001; Providence, etc., S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 3 Sup.Ct. 379, 617, 27 L.Ed. 1038; Gleason v. Duffy (C.C.A. 7) 116 F. 301, 54 C.C.A. 100. But if appellants' liability shall be limited, only a small portion of appellees' decrees can in fact be paid.

It is clear that appellants' action in respect to their exceptions to the libels in collision was not a waiver of the benefit of the statute. As to the second exception, it is enough to say that the Harter Act concerns only the relations between the vessel and her cargo, and so has no application here. The Delaware, 161 U.S. 459, 470, 16 Sup.Ct. 516, 40 L.Ed. 771.

As to the first exception: While it is true that appellants had the right to take the benefit of the limitation of liability directly in the collision suits (The Scotland, supra, 105 U.S. 31, 26 L.Ed. 1001; The Great Western, 118 U.S. 520, 525, 526, 6 Sup.Ct. 1172, 30 L.Ed. 156), they were not bound to do so. They had the right to first contest liability for the collision in any court, state or federal, in which action therefor might be brought, including the appellate court of last resort, without raising the question of limitation, and without thereby waiving the right to take the benefit of the statute. The Benefactor, supra, 103 U.S. 244, 26 L.Ed. 351; The City of Norwich, 118 U.S. 468, 489, 6 Sup.Ct. 1150, 30 L.Ed. 134; The San Pedro, 223 U.S. 365, 372, 32 Sup.Ct. 275, 56 L.Ed. 473; Gleason v. Duffy, supra, 116 F. 298, 301, 54 C.C.A. 100. The first exception did not amount to a claim of the benefit of the statute. It did not allege lack of personal fault on the part of vessel owner or charterer. It was addressed only to the sufficiency of the pleading. It was properly overruled, and the assignment of error thereon was without merit. The giving of time to appellants to take steps to get the benefit of the statute was permissive only. The court could not have required, and did not attempt to require, appellants to take advantage of such permission at the peril of losing the right of limitation.

The question, however, of the effect of giving the supersedeas bond presents more difficulty. While the mere appeal to this court from the decision in the collision suit was not a waiver of the limitation statute, yet the bond was not necessary to such appeal, but only to effect a stay of proceedings pending appeal. Rev. Stat. Secs. 1000 and 1007; ^[1] S.Ct. Rule No. 29 (3 S.Ct. xvi); Stafford v. Union Bank, 16 How. 135, 139, 14 L.Ed. 876; Sage v Railroad Co., 93 U.S. 412, 417, 23...