The Erie Lighter 108

• Decision Date: 16 April 1918
• Parties: THE ERIE LIGHTER 108.
• Court: U.S. District Court — District of New Jersey

250 F. 490

THE ERIE LIGHTER 108.

United States District Court, D. New Jersey.

April 16, 1918

Collins & Corbin, of Jersey City, N.J., for petitioner.

Alexander Simpson, of Jersey City, N.J., for claimant.

HAIGHT District Judge.

This is a proceeding, instituted pursuant to Admiralty Rules 54-57 of the Supreme Court (29 S.Ct. xxxi, xxxii), to procure the benefits of the limitation of liability provided for in sections 4283-4289 of the Revised Statutes, as amended by the Acts of June 26, 1884, and June 19, 1886 (23 Stat.L. 57; 24 Stat.L. 80; U.S. Comp. Stat. 1916, Secs. 8021-8028). There is but one claimant. The claim is based on personal injuries which resulted in death. Several jurisdictional questions were disposed of when the matter was previously before the court on exceptions to the petition. The additional questions which have arisen on final hearing can be better stated after the general facts have been outlined.

On December 23, 1914, one Theodore Thomassen was, as he had been for some time, employed by the petitioner as the captain of one of its lighters, known as 'Erie Lighter 108,' which was used in transporting freight in and about the harbor of New York. On the date last mentioned, while loaded she was pulled from alongside a dock in Weehawken, in the state of New Jersey, where she was moored, by one of the petitioner's tugs, known as the 'Waverly,' to be towed to Pier 6, Bush Dock, in the city of Brooklyn, state of New York, where she was to discharge her cargo. When she was clear of the dock and out in the Hudson river, the hawsers that had been used in pulling her out were released. Thereupon one end of a spliced loop of rope, about 6 fathoms in length and 1 3/4 to 2 inches thick, known as a 'strap,' was placed over the forward bit of the tug and the strap, so fastened at one end, was then thrown to the captain of the lighter. It was his duty to place the other end over the forward starboard bit of the lighter. It was intended, as soon as one end of the lighter had thus been made fast to the forward end of the tug, to permit the lighter to drift with the tide until it had assumed a position parallel with the tug, and then to pass another strap from the afterbit of the tug to a corresponding bit on the lighter, so that the lighter could be towed alongside of the tug. When the first-mentioned strap was passed to the captain of the lighter, he immediately placed it over the proper bit of the lighter; but, there then being some slack in the strap, a part of it slipped down over the starboard corner of the lighter. Suddenly, due to the action of the tide (the lighter being in the act of drifting and the tug being held stationary against the tide), the slack in the strap was violently taken up, and the cornerpiece of the cap which was mounted on the log rail of the lighter, was thereby wrenched from its fastenings, and struck the captain of the tug on the head, inflicting a wound from which he subsequently died.

The administrator of his estate instituted a suit in one of the state courts of New Jersey against the petitioner, under the federal Employers' Liability Act of 1908 and supplements (35 Stat.L. 65; 36 Stat.L. 291 (Comp. St. 1916, Secs. 8657-8665)), to recover, for the benefit of his widow and children, the damages which they suffered through his death. The petitioner thereupon filed a petition in this court to limit its liability, alleging that the injuries which deceased received occurred without its privity or knowledge. It also, pursuant to Admiralty Rule 56 of the Supreme Court (29 S.Ct. xxxii), denied any liability for the accident. The claimant, after his exceptions were overruled, filed an answer and claim, the effect of which was to put in issue both the petitioner's right to limited liability, and its claim to exemption from any liability.

1. It is necessary, primarily, to determine whether the petitioner is entitled to limit its liability. If it is, this court may undoubtedly proceed to determine whether it is liable at all, and, if so, to fix and assess the damages that should be awarded the claimant. That is what the Supreme Court rules sought to accomplish. The Benefactor, 103 U.S. 239, 26 L.Ed. 351; Providence & N.Y.S.S. co. v. Hill Mfg. Co., 109 U.S. 578, 592, 595, 602, 3 Sup.Ct. 379, 617, 27 L.Ed. 1038; Butler v. Boston S.S. Co., 130 U.S. 527, 552, 9 Sup.Ct. 612, 32 L.Ed. 1017; White v. Island Transportation Co., 233 U.S. 346, 34 Sup.Ct. 589, 58 L.Ed. 993; The Annie Faxon (D.C. Wash.) 66 F. 575, 577, affirmed 75 F. 312, 21 C.C.A. 366 (C.C.A. 9th Cir.); Quinlan v. Pew, 56 F. 111, 5 C.C.A. 438 (C.C.A. 1st Cir.). On the other hand, if the petitioner may not avail itself of the limited liability statutes, it would seem, both on authority and reason, that, at least without claimant's consent, this court is without jurisdiction to proceed further, but must dismiss the proceeding, leaving the claimant free to pursue his remedy in the courts of New Jersey. It was expressly so held by the Circuit Court of Appeals of the First Circuit in Quinlan v. Pew, 56 F. 111, 5 C.C.A. 438. Such also is the necessary conclusion to be drawn from the disposition which was made of such proceedings, when the owners were held not to be entitled to limit their liability, in Weisshaar v. Kimball S.S. Co., 128 F. 397, 63 C.C.A. 139, 65 L.R.A. 84 (C.C.A.9th Cir.); Parsons v. Empire Transp. Co., 111 F. 202, 49 C.C.A. 302 (C.C.A.9th Cir.); In re Myers Excursion & Navigation Co. (D.C.S.D.N.Y.) 57 F. 240, affirmed sub nom. The Republic, 61 F. 109, 9 C.C.A. 386 (C.C.A.2d Cir.). It was also held in The Dauntless (D.C.N.D. Cal.) 212 F. 455, affirmed sub nom. Shipowners' & Merchants' Tugboat Co. v. Hammond Lumber Co., 218 F. 161, 134 C.C.A. 575 (C.C.A.9th Cir.), that, where there is but a single claim and the value of the vessel exceeds the amount of the claim, the petition for limitation of liability should be dismissed and the claimant permitted to prosecute his action in the state court. A person who has cause of action of admiralty cognizance has always been entitled to seek his remedy in either the common-law courts, where they are competent to give it, or in the admiralty courts (Judiciary Act of 1789, Sec. 9, 1 Stat.L. 76; Judicial Code of 1911, Secs. 24, 256 (Comp. St. 1916, Secs. 991, 1233)).

It is not to be presumed, therefore, that the Supreme Court, in adopting the rules of practice for limited liability cases, intended to override the provisions of the last-mentioned statutes in cases where there was no right in an owner to limit his liability. The purpose of the rules is set forth in Providence & N.Y.S.S. Co. v. Hill Mfg. Co., supra, 109 U.S.at 594, 3 Sup.Ct. 379, 617, 27 L.Ed. 1038. It is true that rule 56 permits an owner to assert, not only his right to limitation of liability, but also his exemption from all liability; but this was incorporated, as pointed out in that case and in The Benefactor, supra, to overcome the hardship of the English rules of practice which required an owner, seeking the benefit of the limited liability law, to first confess general liability. The only ground for an owner to come into admiralty is because of his asserted right to limit his liability. If it is found that he is not entitled to that right, for the court to go further and determine general liability, etc., would be to deprive a claimant of the choice of forums given to him by the statute and deprive him of his right to trial by jury. This is an important consideration, as a great many limited liability cases, since the decision in White v. Island Transp. Co., 233 U.S. 346, 34 Sup.Ct. 589, 58 L.Ed. 993, deal only with a single claim arising out of personal injury.

Whether the petitioner is entitled to a limitation of liability, of course, depends upon whether the damages which the claimant seeks to recover were done or occasioned without the petitioner's 'privity or knowledge,' within the meaning of the Limited Liability Act. As the petitioner is a corporation, its 'privity or knowledge' must be that of its managing officers. Craig v. Continental Ins. Co., 141 U.S. 638, 646, 12 Sup.Ct. 97, 35 L.Ed. 886. While ordinary agents and servants, including a master of a vessel, are not within that category, a 'managing officer' is not necessarily one of the head executive officers, but is any one to whom the corporation has committed the general management or general superintendence of the whole or a particular part of its business. The Colima (D.C.S.D.N.Y.) 82 F. 665; Parsons v. Empire Transp. Co., 111 F. 202, 49 C.C.A. 302 (C.C.A.9th Cir.), certiorari denied 183 U.S. 699, 22 Sup.Ct. 935, 46 L.Ed. 396; Oregon Lumber Co. v. Portland & Asiatic S.S. Co. (D.C. Or.) 162 F. 912; Sanbern v. Wright & Cobb Lighterage Co. (D.C.S.D.N.Y.) 171 F. 449, affirmed 179 F. 1021, 102 C.C.A. 666 (C.C.A.2d Cir.); In re Jeremiah Smith & Sons, Inc., 193 F. 397, 113 C.C.A. 391 (C.C.A.2d Cir.); Boston Marine Ins. Co. v. Metropolitan Redwood Lumber Co., 197 F. 703, 117 C.C.A. 97 (C.C.A.9th Cir.); The Teddy (D.C.W.D.N.Y.) 226 F. 498. The petitioner, long before the accident in question, had committed the general management and superintendence, including maintenance and repair of its vessels, to a superintendent of its marine department. The latter was therefore clearly a managing officer of the corporation within the before-mentioned rule, and his 'privity or knowledge,' if any, is chargeable to the petitioner.

It is also entirely well settled that an owner, and, in the case of a corporation, the managing officer or officers (in this case the superintendent of the marine department), may employ others to perform the duties ordinarily imposed by law upon the owner, such as equipment, examination, repairs, etc and, if due diligence is exercised in selecting...