The Virginia

• Decision Date: 02 April 1920
• Parties: THE VIRGINIA. Petition of HINES, Director General of Railroads, et al.
• Court: U.S. Court of Appeals — Fourth Circuit

264 F. 986

THE VIRGINIA. Petition of HINES, Director General of Railroads, et al.

United States District Court, D. Maryland.

April 2, 1920

George Weems Williams, of Baltimore, Md., for Baltimore Steam Packet co.

George Forbes, James U. Dennis, John Henry Skeen, Wm. D. Roycroft Eli Frank, Frank, Emory & Beeuwkes, and George T. Mister, all of Baltimore, Md., for claimants.

ROSE District Judge.

In 1905, the steamship 'Virginia' was built at Wilmington, Del., for the Baltimore Steam Packet Company, at a cost of nearly $320,000. Improvements were afterwards made to her, so that in the spring of 1919 she stood on her owner's books at $370,000. Her market value was then much greater. Many years before the packet company became a part of the Seaboard Air Line Railroad. When the government took over the latter, its vessels went along with the rest of its property, and were operated by the federal Director General of Railroads.

At about 6:30 p.m. on the 23d of May, 1919, the Virginia, with passengers and freight, left Baltimore on one of her regular trips to Norfolk. Her engines were stopped when she was about 2 miles north of Smith's Point, to facilitate the flight of her passengers from a fire which had broken out on board. Most of them were saved. A few were not, and some of the survivors suffered more or less serious injuries. The clothes they had on, whatever they carried in their hands, and some of the lifeboats, were the only other burnable things to escape destruction.

Other vessels, then in her vicinity, could not stand by until towing became practicable. Some time after they had left, a fishing steamer, the Chesapeake, belonging to the Seaboard Oil & Guano Company, on its way from Baltimore to Mila, a landing near the mouth of the Wicomico river, and some 3 miles south of Smith's Point, passed the still burning ship. The master of the Chesapeake, on his arrival at his destination, sought and obtained its owner's permission to tow the Virginia in. He got back to her about noon. He says that she had drifted some 4 miles to the eastward of her former position. He thinks, if she had been left alone, she would have shortly gone ashore on Smith's Island. She probably would not have been much hurt if she had, but it would have cost something to have gotten her off again. She was still too hot for any one to go aboard, so a line was made fast to an anchor hanging over her starboard bow. That was easy to do, but there was a chance that those who tried it might be hurt by something dropping from the wreck. By 7 in the evening the Virginia was at Mila. Shortly thereafter, a wrecking tug sent by her owners from Norfolk, arrived. Night and rain had set in. The wreck was within the river's mouth, and the master of the tug concluded to leave her for that occasion where she was. Two days later he came back for her and towed her to Baltimore.

In these proceedings, what is left of her has been appraised at $23,000. The master, owner, and crew of the Chesapeake claim salvage. They are entitled to a moderate award. Six hundred dollars seems ample. Her owner should get three-fourths of it. The remaining quarter should be distributed among her master and crew, in proportion to their wages.

The Director General of Railroads, as well as the packet company seek the protection of R.S. Secs. 4282, 4283 (Comp. St. Secs. 8020, 8021). The claimants contend that he has no right to it. They say that he was neither the owner nor the charterer, and is therefore not within the letter of the statutes, and that he is outside their spirit, as the Congressional purpose to encourage American investment in ships could not be furthered by limiting his liability.

The Director General would seem to be in every substantial sense a charterer, albeit one who fixed his own terms of hire. The government paid for the use of the ships, and promised to return them when its need of them had passed. The language of more than one of the war-time acts confirms the common understanding that Congress wished to change as little as was possible the former relations between the railroads and the ships, on one side, and those portions of the public which came into contact with them, on the other. It would seem that he may avail himself of the Limited Liability Acts to the same extent as a private charterer, and no further.

It is admitted that section 4282 (Comp. St. Sec. 8020) has no application to claims for deaths, personal injuries, or the destruction of passengers' baggage. The Marine City (D.C.) 6 F. 413. It is argued that, notwithstanding sections 4283, 4493 (sections 8021, 8269), require their payment in full, because it is said they had their origin in the negligent failure of the petitioners to comply with the provisions of the steamboat inspection laws, and the regulations made thereunder. All the claimants unite in the contention that their right of recovery is not limited by 4283, as in their view what happened was the natural result of causes of which the petitioners had privity or knowledge. The questions to be passed upon are therefore:

(1) Did the default of the officers and crew cause or contribute to the injury to the passengers, or the loss of their baggage? If so, the petitioners are in any event answerable to an amount equal to the value of the wreck.

(2) Was the fire or the failure to extinguish it before harm was done, the result of the negligence of the petitioners? If it was, the cargo owners may share in the distribution of the amount the petitioners can be required to pay.

(3) Were the inspection laws and regulations obeyed, and, if they were not, did such disobedience have its part in causing the hurt to the passengers or their baggage? If it did, was such disobedience the result of the negligence of the petitioners; and, if it was, are they entitled to limit their liability under section 4283?

(4) Was the disaster the proximate result of something of which the petitioners had privity or knowledge?

At the time of the fire the ship was in Maryland waters, and the rights of the death claimants depend upon its law. The fire, which broke out on this large and costly steamer, with its freight of human lives and valuable merchandise, did its work without let or hindrance. Statutory enactments and official regulations required that the ship should be equipped with an elaborate and expensive fire-fighting apparatus, and that the crew should be kept well drilled in their use. The machinery and its appliances were all there. They were in good order, if we are to believe the testimony for the petitioners, uncontradicted as it is by anything except their utter failure on the one occasion in which there was any need for them. Weekly fire drills had been duly, if perchance perfunctorily, held; yet, when the fire came, everything and everybody would have been every whit as well off if there had been no pumps, fire lines, or hose on board, and if the crew had never seen or heard of them before. She had lifeboats and liferafts sufficient to have carried safely every soul on board. After the fire was discovered, there was far more than ample time to have lowered and launched all of them, with the possible exception of two or three. There were men enough in the crew to have manned most of them. Only half of them in fact got away from the ship, and one of these subsequently capsized-- in truth, because there was on her no one of the ship's company who, either by official position or personal force of character, was capable of maintaining order on board.

Although wind and sea were both in their most amiable mood, there would, in all probability, have been an appalling loss of life, had not the fire broken out at the very hour at which the upbound vessels from Norfolk met those coming down from Baltimore. From the time the Virginia left her Baltimore wharf until midnight, or thereabouts, no one noticed anything which has any significance to the inquiry now on hand. A good deal of testimony was taken as to the doings of a couple of colored women of loose character, and of the men of divers complexions who visited their amidship stateroom on the starboard side of the main saloon deck. All of this may be ignored. The witness who thought the fire might have originated in that room was almost certainly mistaken, and, if he was, the degree of disorder which had previously existed in or about it, and the vigilance, or the reverse, of the ship's officers in dealing with it, have no bearing upon anything which need be here passed upon.

Signs of fire were first seen on the freight deck, and there is reason to believe that it there originated. After smoke and perhaps flame had made passage from one end of it to the other impossible, it was still easy to move freely about the hold below and the saloon above. The trouble apparently began near the amidship freight gangway, close to the starboard side of skin of the ship. Passengers from starboard stateroom windows above, the first assistant engineer, with his head out of the after gangway on the starboard side, and persons on other vessels testify to seeing flames before they were visible to those who were on the freight deck itself.

The testimony of the officers and crew of the ship leaves an abiding impression that there had been little watchfulness for possible outbreaks of fire. It is not easy to understand how the deck watchman could have been so long in learning that something was wrong. The record establishes that the fire was discovered by the Virginia's people, or at all events should have been, earlier than they are willing to admit. The time they give is shown to be too late, by the evidence of passengers, who looked at their watches, and by the statements of the quartermasters of the City of Norfolk...