Parsons v. Empire Transp. Co.

• Decision Date: 09 September 1901
• Docket Number: 669.
• Parties: PARSONS et al. v. EMPIRE TRANSP. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

111 F. 202

PARSONS et al. v. EMPIRE TRANSP. CO.

No. 669.

United States Court of Appeals, Ninth Circuit.

September 9, 1901

Brady &amp Gay and Edward Brady, for appellants.

Thomas R. Shepard, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This was a proceeding instituted in the court below by the appellee, a New Jersey corporation, to obtain the benefit of the limitation of liability provided for in sections 4283-4285 of the Revised Statutes (embodying provisions of the act of March 3, 1851), and amendatory acts, and in section 3 of the act of February 13, 1893 (27 Stat. 445). The petition sets forth, among other things, that on the 30th day of September, 1899, barge No. 2, of which the petitioner was the owner, was lying in the harbor of St. Michael, Alaska alongside of the steamer Lakme, chartered and operated by the Seattle & Yukon Transportation Company, transferring freight therefrom to the steamer; that the Lakme was to take the barge from St. Michael to Nome, Alaska, but that during the night of the day mentioned a heavy sea prevailed in the harbor, causing the barge to bump so hard against the side of the steamer as to induce the latter's captain to drop the barge astern of the steamer with about 40 fathoms of rope out, and that during the next morning the wind began to freshen and blow hard from the north, for which reason the captain of the steamer, desiring to drop astern of the Lakme the barge Admiral, which was also transferring stores on board the steamer, and had remained alongside of her during the night of the September 30th, ordered the master of barge No. 2 to stand by, an d drop his anchor, as he was going to cast that barge off from the steamer; that barge No. 2 was accordingly cast off, and, after drifting 600 to 700 yards in towards the shore, its anchor was dropped that the storm continued to increase, and the waves began to dash over the bow of barge No. 2 and against its deck house, and that about 9 o'clock in the morning the barge began to settle by the head very rapidly; that the captain and crew of this barge were compelled for their own safety to abandon it, which was done by means of a lifeboat sent out from the steamer Lakme, and that thereafter barge No. 2, together with all her tackle, apparel, boats, and appurtenances, became a total loss; that no freight moneys were earned, paid, or received therefrom; that the accident happened and the loss mentioned was occasioned without fault, privity, or knowledge of the petitioner, and without the fault of any of its officers, agents, or servants, but was solely due to perils of the sea; that, notwithstanding those facts, certain persons (naming them), claiming to have lost their property on board of the barge, have already brought suits against the petitioner, and other suits are threatened, to recover damages for the alleged loss of such property, and for further damages by reason of the loss of work at Nome, Alaska, occasioned by the loss of the property, and that the actions alleged to have been commenced are still pending; that barge No. 2 was in all respects sound, staunch, seaworthy, and properly and efficiently fitted for the voyage upon which she was about to proceed, and properly manned and equipped, and commanded by a careful, competent, and experienced master. In the petition the petitioner, while not admitting, but denying, that it is under any liability for the loss or damage so incurred, and claiming the right to contest any liability therefor, further claims to be entitled to have limited its liability, if such shall be found to exist, to the amount or value of its interest in barge No. 2 immediately after the accident. The foregoing are, in substance, the averments of the petition, followed by the appropriate prayer, to which petition the appellants Parsons & Co. filed an answer and cross libel. By their answer the appellants admit that at the times stated in the petition barge No. 2 was lying in the harbor of St. Michael alongside the steamer Lakme, which was to take the barge from that point to Nome, Alaska, and also admit that the barge became a total loss, as alleged in the petition. But the answer denies all the averments of the petition in respect to its seaworthiness, and also denies that the loss of the barge and its freight occurred without the fault, privity or knowledge of the petitioner or of any of its officers, agents, or servants, and denies that it was due solely or at all to the perils of the sea. By their answer the appellants also affirmatively allege that the loss of the barge and its contents was occasioned by the fault, privity, and knowledge of the petitioner and of its duly-authorized agent and manager, F. G. Patterson; and, further, that at the time of the accident the barge was unseaworthy, and was not properly fitted for the voyage she was about to undertake; was not properly manned or commanded, but was in charge of a watchman, without a master, and without a sufficient and competent crew. The appellants further allege that the petitioner received from them for transportation on the barge from St. Michael to Nome, Alaska, goods, wares, and merchandise of the value of $26,081, which became a total loss by reason of the negligence of the petitioner in the particulars above stated.

It appears from the record that in the year 1898 the appellee engaged in the business of transporting passengers and freight from Seattle, Wash., to Alaska, and for that purpose and as parts of its fleet, had caused to be constructed at Nixon's shipyard at Elizabeth, N.J., under the superintendency of Capt. Peter Bloomsburg, four barges, numbered, respectively, 1, 2, 3, and 4, for carrying freight and coal; four barges for carrying passengers and freight; and two steamers, named, respectively, International and Empire, for towing the barges. Barge No. 2-- the one here in question-- was built of steel, with steel frames entire, two lattice girders running lengthwise inside for strengthening. It was built in 10 sections, each section being 10 feet long longitudinally of the vessel, 35 feet wide, and with a depth of 6 feet 6 inches. Each section had a water-tight bulkhead at each end. They were to be and were bolted together, forming a whole boat of 10 water-tight compartments. Three-inch angle bars were riveted in each end of each section. In that condition the sections were taken on cars from Elizabeth, N.J., to Seattle, Wash., at which place they were placed on the steamer Conemaugh, and carried to St. Michael, Alaska, where they were floated, and there in the water bolted together through the angle bars placed about eight inches apart at the top, bottom and sides. Before being removed from New Jersey, however, the sections were bolted together, thus forming a complete boat, and as such was measured and enrolled in the custom house at New York. The barge was also decked and housed in sections at Elizabeth, but the house was taken apart, and conveyed in sections to St. Michael. The deck was of two-inch Florida pine, bolted together with steel deck beams. The house was built of one-inch pine, dressed, with a sill running the length of the vessel, bolted through the deck, four by six, with a studding tenanted. The siding was then nailed to the top of the studding, three by six plank, mortised also to receive the upper end of the studding, on which the carline running across to support the upper deck was fastened, three 2 1/2 by 5 ridge poles running under the carline force and aft equal distance apart. On that was laid the upper deck, one-inch stuff, dressed, covered with No. 6 canvas, and painted, the forward and aft bulkheads being built of the same material and of the same dimensions as the sides. The extreme length of the house was 85 feet, its height 8 feet, and its breadth the same as the beam of the boat, 35 feet. The draft of the barge was 18 inches, the intention being to load her to five feet, which would leave about 18 inches above water when carrying a full load. It was in this barge th...