Turner v. United States

• Citation: 27 F.2d 134
• Decision Date: 11 June 1928
• Docket Number: No. 319.,319.
• Parties: TURNER v. UNITED STATES. BRITISH & ARGENTINE MEAT CO., Limited, v. SAME. BRITISH BOARD OF TRADE v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

27 F.2d 134 (1928)

TURNER v. UNITED STATES.

BRITISH & ARGENTINE MEAT CO., Limited, v. SAME.

BRITISH BOARD OF TRADE v. SAME.

No. 319.

Circuit Court of Appeals, Second Circuit.

June 11, 1928.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (W. H. McCrann, of New York City, of counsel), for appellant.

Charles H. Tuttle, U. S. Atty., of New York City (Charles E. Wythe, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

On April 20, 1920, the American steamship Aseolus, the property of the appellee, and the British steamship Zero, under charter to the appellant, collided, and the latter, with her cargo, sank and became a total loss. The managing owner of the Zero and his co-owners filed a libel for damages for the loss of the hull and on behalf of the crew for their loss of personal effects. The British Board of Trade, as owner of part of the cargo of frozen meats laden aboard the Zero, sued for its loss, and the appellant filed a libel for loss of the value of the charter, its cargo, and as owner of the refrigerating machinery and insulation installed in the Zero. The only question presented upon this appeal is the one involving the loss of the refrigerating machinery and insulation installed on the Zero. The other claims have been disposed of.

The final decree entered provides that the damages of the libelants Turner et al., as owners of the Zero, and the appellant, as owner of the refrigerating plant, are offset by damages sustained by the appellee. The appellant contends that it should have been allowed full recovery for its damages as owner of and for the loss of the refrigerating plant, without deduction or offset. The Zero was under time charter to the appellant for many years. She had been operated as a refrigerating vessel, and was engaged in carrying meat cargoes from South America to British ports. The refrigerating plant was installed in 1896, and remained in the vessel until the time of collision in 1922. It consisted of refrigerating machines, pump installation, pipe line, and was physically attached to the vessel. Under the terms of the charter, the machinery and insulation were to remain the property of the charterer, and to be removed by it and the vessel restored to its original condition under the termination of the charter. It is obliged to share the losses, because the Zero was at fault, and the refrigerating system and the vessel are claimed to be one. Its value was wholly incident to the ship and for its use, and it was a necessary appurtenance to the ship's business. There is no evidence of any other value.

Appellant argues that it is not chargeable with negligence contributing to the collision damage, and therefore, as owner of the refrigerating plant or as charterer, damages may not be recovered as against it. It says that the liability of the ship in rem exists only by virtue of the liability of the owner in personam, and that the liability in rem is really the enforcement of the personal liability of the owner in a proceeding in rem against the ship. In The China, 7 Wall. 53, 68, 19 L. Ed. 67, it was early established that there can be liability of the ship wholly apart from the liability of its owner. The ship can be the offending thing, for it is said:

"The maritime law as to the position and powers of the master, and the responsibility of the vessel, is not derived from the civil law of master and servant, nor from the common law. It had its source in the commercial usages and jurisprudence of the middle ages. Originally, the primary liability was upon the vessel, and that of the owner was not personal, but merely incidental to his ownership, from which he was discharged either by the loss of the vessel or by abandoning it to the creditors."

In Homer Ramsdell Transp. Co. v. La Compagnie Generale Transatlantique, 182 U. S. 406, 411, 21 S. Ct. 831, 833, 45 L. Ed. 1155, the court said: "At common law, no action can be maintained against the owner of a vessel for the fault of a compulsory pilot." The pending of a libel in rem is not a bar to a suit in personam arising out of the same facts. Proceedings in rem and proceedings in personam are permitted to be joined in one cause of action, where the admiralty rules do not prohibit it. If the right against the...