The Columbia

• Decision Date: 10 February 1896
• Docket Number: 172.
• Citation: 73 F. 226
• Parties: THE COLUMBIA. v. THE COLUMBIA et al. SHORT et al.
• Court: U.S. Court of Appeals — Ninth Circuit

73 F. 226

THE COLUMBIA.

SHORT et al. v. THE COLUMBIA et al.

No. 172.

United States Court of Appeals, Ninth Circuit.

February 10, 1896

Page Eells & Wheeler and Andros & Frank, for appellants.

W. W Cotton, for appellees.

Before McKENNA, GILBERT, and ROSS, Circuit Judges.

ROSS Circuit Judge.

The motion to dismiss the appeal is first to be disposed of. The contention in support of this motion, which was sustained by this court on the former hearing of this cause, is based upon the theory that the decree entered in the court below is a joint decree, in which all of the respondents there have a common interest, and that, as two of them, namely, William Boyce and Anna C. Larson, did not join the appeal, and no request was made of them to join therein, and no order of severance was made by the court below, and no notice of appeal was served on them, the appeal must be dismissed.

By the amendatory act of congress of June 19, 1886 (24 Stat. 79 80), the provisions of what is commonly known as the 'Limited Liability Act,' originally enacted March 3 1851 (9 Stat. 635), and the provisions of which have been substantially incorporated into Rev. St. Secs. 4282-4290, are made applicable to all vessels used on lakes, rivers, or in inland navigation, including canal boats, barges, and lighters. Sections 4283 and 4284 of the Revised Statutes are as follows:

'Sec. 4283. The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, or 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 (loss), 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.

'Sec. 4284. Whenever any such embezzlement, loss or destruction is suffered by several freighters or owners of goods, wares, merchandise, or any property whatever, on the same voyage, and the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of them, they shall receive compensation from the owner of the vessel in proportion to their respective losses; and for that purpose the freighters and (owner) (owners) of the property, and the owner of the vessel, or any of them, may take the appropriate proceedings in any court, for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties entitled thereto.'

To facilitate and further the proceedings authorized by the act of March 3, 1851, the supreme court promulgated certain supplemental rules of practice in admiralty, numbered, respectively, 54, 55, 56, and 57, which are found in 13 Wall. xii., xiii., and the validity of which has been judicially determined. Providence & N.Y.S.S. Co. v. Hill Manuf'g Co., 109 U.S. 578-590, 3 Sup.Ct. 379, 617; Norwich Co. v. Wright, 13 Wall. 104. Those rules provide, among other things, that owners of vessels, making suitable allegations for the purpose, shall be at liberty to contest their liability, or the liability of the vessel, to pay any damages, as well as to show that, if liable, they are entitled to a limitation of liability. Rule 56; Providence & N.Y.S.S. Co. v. Hill Manuf'g Co., supra. And that is what the petitioners in the court below sought to do.

They commenced the proceedings by the filing in the district court for the district of Oregon of a petition by the Oregon Railway & Navigation Company and the Oregon Short Line & Utah Northern Railway Company, which set forth, among other things, the ownership by the Oregon Railway & Navigation Company of a certain barge known as the Columbia, used and operated upon the Columbia and Willamette rivers, and that the Oregon Short Line & Utah Northern Railway Company is engaged in operating steamboats and other vessels, and in owning and operating lighters and barges between Portland and Astoria, in the state of Oregon, and elsewhere, and during the times mentioned in the petition was lessee, from the Oregon Railway & Navigation Company, for a period of 99 years, from the 1st day of January, 1887, of the barge Columbia, and was at all times mentioned in the petition operating that barge under the terms and provisions of the lease, and had the sole possession and control thereof; that on or about October 21, 1892, the barge Columbia left Portland with a cargo of wheat, for transportation to Astoria, the wheat being part of the cargo of the British ship Westgate, and destined to be transported by means of the barge Columbia and the ship Westgate from Portland, Or., to Liverpool, England; that the barge was seaworthy, and that the wheat was properly loaded thereon, and that all went well until the barge, on the night of the 21st of October, 1892 reached Astoria, at which point the barge intended to tie up alongside the dock of the Oregon Railway & Navigation Company; that, lying in front of the dock, and floating nearly level with the water, and designed for the purpose of preventing ships from chafing against the timbers of the dock, was a pontoon, consisting of 12x12-inch timbers, securely fastened together, and being 60 feet long, 1 foot thick, and 4 feet wide; that the barge was towed by the steamboat Ocklahama, and that the darkness of the night rendered it impossible for the crew and captain in charge of the Columbia to see the pontoon, and, in attempting to make a landing at the dock, the barge ran against the pontoon with sufficient force to break the stem and forefoot of the barge, and to start her timbers to such an extent that she commenced leaking; that those in charge of the barge deemed it necessary and advisable to remove her into shallower water, in order that the barge and her cargo might be more conveniently saved, and thereupon the barge was taken behind the dock, and placed alongside the rear portion thereof; that, after an examination had been made by the men in charge of the barge, it was found that she would probably float if the pumps were used, and thereupon the men in charge of her commenced using the pumps, and kept the leak in control, so that the barge did not continue to make water faster than it was pumped out of her; that the cargo upon the barge was entirely loaded upon her deck, as is customary and proper in vessels of her character, and that, at the time the pumps were working, no part of her cargo in the barge was injured in any manner, but that the cargo was injured in the manner afterwards stated; that the men in charge of the barge undertook to stop the leak by building a bulkhead, intending to place between the bulkhead and the bow of the barge sacks of wheat, for the purpose of stopping the leak; that, in order to aid in the work of building the bulkhead, three men, among others, entered the hold of the barge, namely, Marshal Short, the captain of the Ocklahama, William Boyce, a deck hand on the Ocklahama, and one Gus Peterson, who was a deck hand either of the barge or of the Ocklahama; that the tide was at this time ebbing, and, while the men named were in the hold of the barge, the latter touched ground; that an examination was thereupon made by the men in charge of the barge as to her condition and position, and they thereupon concluded to continue the work of undertaking to stop the leak, believing that the barge would sink into the mud and remain upright; that, as the tide continued to flow the barge suddenly listed to one side, away from the dock, and partially turned over; that, as Short and Peterson undertook to escape from the hold of the barge, they were caught by the falling cargo, consisting of wheat in sacks, piled in tiers upon the deck of the barge, and were crushed and killed; that a large amount of the cargo was thrown into the water, and the barge subjected to such a severe strain that her house was carried away and her hull damaged; that Boyce claims to have been thrown down and injured as a result of the listing of the barge; that the accident happened, and the loss, damage, injury, and destruction set forth were occasioned, done, and occurred without the fault, privity, or knowledge of the petitioners or either of them, and were due solely to the perils of the sea; that, nevertheless, the administrators of Short and of Peterson, and the firm of Balfour, Guthrie & Co., threaten to and will, unless restrained as prayed, commence actions against the petitioners, or one of them, to recover damages claimed to be suffered by the accident; that on or about November 15, 1892, Boyce commenced an action in the circuit court of the state of Oregon for Multnomah county, against the petitioners, to recover damages in the sum of $15,000 for injuries alleged to have been suffered by him, which action is pending; that the claims so made by the person mentioned, and each of them, are largely in excess of the value of the barge in the condition in which she was after the accident and damage on the 22d of October, 1892, when her voyage was completed; that there was no freight money due or owing to the barge or either of the petitioners on account of the transportation of the cargo of wheat, and that there was no freight then pending in connection with the barge; that the petitioners, and each of them, desire to contest their liability for the loss, destruction, damage, and injury occasioned by the accident, and also to claim the benefit of the limitation of liability provided by the acts of congress, and, to that end, desire an appraisement be made and had of the amount or value of the interest of each of said persons, and of the barge in the condition in which she was after the accident and...