THE VESTRIS

• Decision Date: 15 September 1931
• Citation: 53 F.2d 847
• Parties: THE VESTRIS. Petition of LIVERPOOL, BRAZIL & RIVER PLATE STEAM NAV. CO., Limited, et al.
• Court: U.S. District Court — Southern District of New York

53 F.2d 847 (1931)

THE VESTRIS.

Petition of LIVERPOOL, BRAZIL & RIVER PLATE STEAM NAV. CO., Limited, et al.

District Court, S. D. New York.

September 15, 1931.

Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (by Van Vechten Veeder, Chauncey I. Clark, Paul Fearson Shortridge, and Stanley R. Wright, all of New York City), for petitioner.

Bigham, Englar, Jones & Houston, of New York City (by D. Roger Englar, Oscar R. Houston, W. J. Nunnally, Jr., and Francis B. Reed, all of New York City), for 27 death claims, 8 personal injury claims, 13 baggage claims, and 550 cargo claims.

Hunt, Hill & Betts, of New York City (by George Whitefield Betts, Jr., George C. Sprague, and Joseph A. McDonald, all of New York City), for Frederick F. Brown, and others.

George Z. Medalie, U. S. Atty., of New York City (by Charles E. Wythe, of New York City).

Haight, Smith, Griffin & Deming, of New York City (by Arnold W. Knauth, of New York City), for Elvira F. Rua, as adm'x of Jose Gonsalves Rua, and others.

Kirlin, Campnell, Hickox, Keating & McGrann, of New York City (by Charles R. Hickox and Clement C. Rinehart, both of New York City), for West India Oil Co., H. C. Johnson, and E. Lever.

Carter, Ledyard & Milburn, of New York City (by Rush Taggart, of New York City), for C. D. Andrews & Co., and certain other cargo claimants.

Rumsey & Morgan, of New York City (by Mark W. Maclay and Ralph W. Brown, both of New York City), for Marion C. Batten, individually and as adm'x of Norman Kirkpatrick Batten.

Choate, Larocque & Mitchell, of New York City, for Mary L. Stone, as adm'x of Charles I. W. Stone.

Lord, Day & Lord, of New York City (by F. J. Clark, of New York City), for Herman Hipp.

Nathan Burkan, of New York City (by Herman Finkelstein, of New York City), for claimant Anne De Vote.

Wise, Shepard & Houghton, of New York City (by Arnold W. Knauth, of New York City), for Otto Willi Ulrich and wife.

Edward J. Leon, of New York City (by Sidney M. Offer, of New York City), for Michael Coriarty.

Kiddle, Margeson & Hornidge, of New York City, for G. H. Halpert.

L. V. Axtell, of New York City, for claimant.

GODDARD, District Judge.

Petition for limitation of liability. Many witnesses have been called in this proceeding and extensive testimony has been presented by experts and others in behalf of the many parties interested, and their proctors have submitted briefs discussing certain questions of law which the court is requested to pass upon preliminary to the preparation and submission of the principal briefs. The questions are

1. Did the British statutory provisions in respect to the load line apply to the voyage of the Vestris from New York to South America?

I find that they did not apply.

2. Are actions brought under section 4 of the statute entitled Death on the High Seas by Wrongful Act of March 30, 1920 (46 USCA sects. 761-768) subject to limitation of liability?

They are not, as I construe this section.

3. Are all the death claims barred upon which action is not commenced within twelve calendar months after death?

My conclusion is that they are.

The following statement includes the facts necessary for the consideration of these law questions:

The Vestris, a vessel of some 10,000 tons gross tonnage, was built in Liverpool, England, in 1912. She was owned by the petitioners, Liverpool, Brazil & River Plate Navigation Company, Limited, and Lamport & Holt, Limited, which are British corporations having places of business in New York City, and was operated between New York and South American ports on a regular schedule carrying passengers and general cargo. She had a load-line mark when she left England, but she had not been in England since 1921, and her English inspection certificate had expired. However, she had been inspected by United States inspectors who had granted her a certificate under which she sailed. On November 10, 1928, the Vestris left New York on her fatal voyage bound for Buenos Aires, Argentina, via Barbados and other ports with passengers and cargo. Early on the morning of November 11, she encountered heavy weather; the storm increased, and about noon she hove to, with her engines operated at reduced speeds. At about 2:30 in the afternoon of November 12, after most of her passengers and crew had taken to lifeboats, she sank. The disaster resulted in the loss of many lives, the vessel, and cargo.

Taking up for consideration, first, the question of whether the British load-line statutes apply to the Vestris on her voyage from New York to South American ports: The pertinent portion of the British Merchant Shipping Act of 1894, part V, known as the Load-Line Statute, as amended by the Merchant Shipping Act of 1906, reads as follows:

"438: (1) The owner of every British Ship proceeding to sea from a port in the United Kingdom (except ships (a) under eighty tons register employed solely in the coasting trade, (b) ships employed solely in fishing and pleasure yachts) shall, before the time hereinafter mentioned, mark upon each of her sides, amidships within the meaning of the last preceding section, or as near thereto as practicable, in white or yellow on a dark ground, or in black on a light ground, a circular disc twelve inches in diameter, with a horizontal line eighteen inches in length drawn through its centre.

"(2) The centre of this disc shall be placed at such level as may be approved by the Board of Trade below the deck-line marked under this Act and specified in the certificate given thereunder, and shall indicate the maximum load-line in salt water to which it shall be lawful to load the ship."

"439: If a ship is so loaded as to submerge in salt water the centre of the disc indicating the load line, the ship shall be deemed to be an unsafe ship, within the meaning of the provisions hereafter contained in this Part of this Act, and such submersion shall be a reasonable and probable cause for the detention of the ship."

Subdivision 5 of section 440: "When a ship to which this section applies has been marked with a disc indicating the load-line, she shall be kept so marked, or, if the mark has been altered abroad in accordance with regulations made by the Board of Trade for the purpose, marked with the mark as so altered, until her next return to a port of discharge in the United Kingdom."

"442: (1) If —

"(a) any owner or master of a British ship fails without reasonable cause to cause his ship to be marked as by this Part of this Act required, or to keep her so marked, or allows the ship to be so loaded as to submerge in salt water the centre of the disc indicating the load-line; or

"(b) any person conceals, removes, alters, defaces, or obliterates, or suffers any person under his control to conceal, remove, alter, deface, or obliterate, any of the said marks, except in the event of the particulars thereby denoted being lawfully altered, or except for the purpose of escaping capture by an enemy, he shall for each offence be liable to a fine not exceeding one hundred pounds.

"(2) If any mark required by the Part of this Act is in any respect inaccurate so as to be likely to mislead, the owner of the ship shall for each offence be liable to a fine not exceeding one hundred pounds."

"457: If any person sends or attempts to send, or is party to sending or attempting to send a British ship to sea in such an unseaworthy state that the life of any person is likely to be thereby endangered, he shall in respect to each offence be guilty of a misdemeanor, unless he proves either that he used all reasonable means to insure her being sent to sea in a seaworthy state, or that her going to sea in such an unseaworthy state was, under the circumstances, reasonable and justifiable, and for the purpose of giving that proof he may give evidence in the same manner as any other witness.

"If the master of a British ship knowingly takes the same to sea in such an unseaworthy state that the life of any person is likely to be thereby endangered, he shall in respect of each offence be guilty of a misdemeanor, unless he proves that her going to sea in such an unseaworthy state was, under the circumstances, reasonable and justifiable, and for the purpose of giving such proof he may give evidence in the same manner as any other witness."

"459 (which by section 462 is made applicable to foreign ships in British ports): Where a British ship, being in any port in the United Kingdom, is an unsafe ship, that is to say, is by reason of the defective condition of her hull, equipments, or machinery, or by reason of undermanning, or by reason of overloading or improper loading, unfit to proceed to sea without serious danger to human life, having regard to the nature of the service for which she is intended, such ship may be provisionally detained for the purpose of being surveyed or for ascertaining the sufficiency of her crew, and either finally detained or released as follows: * * *"

Sections 1 to 8 of the Merchant Shipping Act of 1906 state that the British load-line provisions shall apply to foreign vessels while in ports. In section 438 the load-line mark is specified and its application described; sections 439-442 prescribe the penalties or remedies in the event of a violation. It is well settled that remedies as distinguished from rights acquired under a foreign statute are controlled by the law where the action is brought, Northern Pacific Railroad v. Babcock, 154 U. S. 190, 197, 14 S. Ct. 978, 38 L. Ed. 958, and the enforcement of a penal law is a matter for the state or country enacting it, Huntington v. Attrill, 146 U. S. 657, 13 S. Ct. 224, 36 L. Ed. 1123.

The section which creates the requirement of a load-line mark expressly states that it applies to "every British ship proceeding to sea from a port in the United Kingdom," and I do not think that the language of the first clause of the section merely indicates the period allowed in which the ship must secure her marks, for a...