Texas & Gulf S.S. Co. v. Parker

• Decision Date: 05 March 1920
• Docket Number: 3426.
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: TEXAS & GULF S.S. CO. v. PARKER et al. [1]

263 F. 864

TEXAS & GULF S.S. CO. v. PARKER et al. ^[1]

No. 3426.

United States Court of Appeals, Fifth Circuit.

March 5, 1920

Wm. B Lockhart and John W. Lockhart, both of Galveston, Tex., for appellant.

Marsene Johnson and H. C. Hughes, both of Galveston, Tex., for appellees.

Before WALKER, Circuit Judge, and GRUBB and CALL, District Judges.

GRUBB District Judge.

This is an appeal from the decree of the District Court upon a petition filed by appellant against the appellee Clarence Parker for a limitation of liability, and for protection and benefits of the Harter Act (Comp. St. Secs. 8029-8035), and for limitation of its liability as reserved in the bill of lading issued by appellant to appellee Clarence Parker. The other appellee, Hill, Cook & Pope, a corporation, intervened in the proceeding. The final decree of the District Court denied appellant the relief prayed for and awarded the defendant and intervener judgment for the respective amounts claimed by them, with interest from August 18, 1916, the date of the loss of the vessel Pilot Boy, and of its cargo including the shipments owned by the defendant and by the intervener, which are involved in this suit.

The Pilot Boy was a small freight-carrying steamship, plying between Galveston and Corpus Christi, along the Texas coast. The appellee Parker had shipped an automobile, and the intervener, Hill, Cook & Pope, had shipped a lot of groceries on her from Galveston to Corpus Christi. She left Galveston August 17th, at 3:30 p.m., and foundered about 10 miles from Aransas Pass and 5 miles from shore on August 18th, about 9 a.m., with a total loss of her cargo, including the shipments involved. The owners would have been entitled to a decree limiting their liability to the value of the vessel and pending freight, if the loss occurred without negligence on their part, or of which they had knowledge, or with which they were in privity. Under the Harter Act they would not be responsible for loss due to negligence in the navigation or management of the vessel, provided the owners were free from fault in sending her from her home port. Under the bills of lading, the owners would be excused from loss occasioned by the act of God or perils of the sea, unaccompanied by contributing negligence, of a kind for which they would be liable.

The appellees contend that there was negligence for which the owners were responsible, because of their privity or knowledge, and because it occurred while the vessel was in her home port, which prevents the limitation of liability and the application of the Harter Act to the situation, and which excludes the loss from the terms of the exceptions in the bills of lading.

The claimed negligence consisted in the departure of the vessel from Galveston after the master had received information of an from Galveston after the master had received information of an approaching hurricane, or without having received such information through his negligent failure to make inquiry which would have disclosed it to him, and the privity or knowledge of the owners is based upon the presence of their manager, one Guyton, at Galveston, on the occasion of the departure of the ship from that port. The questions presented are: (1) Was the master of the Pilot Boy negligent in leaving Galveston when he did? and (2) are the owners of the Pilot Boy shown by the record to have been in privity with the master's negligence, or to have had knowledge of it? The District Court resolved each question in appellees' favor, as it was necessary to do to render a decree in their favor.

1. The Pilot Boy left the harbor of Galveston on August 17th, at 3:30 p.m., and passed the bar shortly after 5 p.m. It required 18 hours to make the trip between the bar at Galveston and the bar at Corpus Christi. The Pilot Boy could not have expected to reach the bar at Aransas Pass earlier than 11 a.m. on the succeeding day. Was the available information at Galveston, as to the approach of the hurricane, such as to justify the belief that the Pilot Boy would not encounter it on its trip to Corpus Christi, either because of outrunning it, or because of it striking the Texas coast at a point west of Aransas? Warnings of a tropical hurricane were given from Washington August 16th. It was said to be central 200 miles south of Cuba, and moving northwest, and of marked intensity; that hurricane winds were to be expected on the night of the 16th (Wednesday) in the Yucatan Channel; and directed a caution to be given all vessels sailing toward the path of disturbance. On August 17th (Thursday) the office of the local Weather Bureau at Galveston received a warning from Washington via New Orleans:

'Advisory 10 a.m. Tropical disturbance central this morning in Yucatan Channel, passing into Gulf of Mexico, and probably moving a little north of west. Dangerous for vessels to approach its path.'

At 8 p.m., on the 17th, the Galveston local office received the following warning from Washington:

'Tropical disturbance has passed into Gulf; no reports available upon which to base estimates of probable course.'

No storm warnings were hoisted at Galveston until 7:40 a.m., on the...