The provisions of § 4283 of the Revised Statutes relieving the
owner of a vessel from liability for a loss occasioned without his
privity or knowledge apply to an insurance company to which, as
insurer, a vessel has been abandoned, and which was charged with
negligence in causing the vessel to be so towed that she sank and
became a total loss, and the life of an employee on board of her
was lost.
The identity of the vessel was not lost, she being officered and
manned and having on board a cargo.
The provisions of § 4283 apply to cases of personal injury and
death.
The extinguishment of liability may be availed of as matter of
law, on the facts, in a suit to recover for the death of the
employee.
The provisions of the statute apply to a vessel used on the
Great Lakes, she not being "used in rivers or inland navigation"
within the meaning of § 4283.
The insurer being a corporation, the privity or knowledge of a
person who was alleged to have been guilty of the negligence, and
who was not a managing officer of the corporation or employed
directly by it, and whose powers were no greater than those of the
master of a vessel, was not the privity or knowledge of the
corporation.
The Court stated the case as follows:
This is an action at law brought by Thomas Craig, administrator
of the estate of John Carbry, deceased, against the Continental
Insurance Company of New York, a New York insurance corporation,
and three other insurance corporations to recover under a statute
of Michigan (2 Howell's Annotated Statutes of Michigan §§ 8313,
8314) $25,000, as damages for the death of Carbry, for the benefit
of his mother and his three minor sisters as next of kin and
distributees of his estate, it being alleged that he lost his life
through negligence of the defendants in December, 1883. It was
commenced in the Superior Court of the City of Detroit, Michigan,
and was removed by the defendants into the Circuit Court of the
United States for the Eastern District of Michigan.
Page 141 U. S. 639
The defendants were insurers against marine risks of a steam
propeller called the
Enterprise. While on a voyage on the
lakes, she was stranded November 20, 1883, on rocks at Green
Island, in the northern part of Lake Huron. She had on board a
cargo of merchandise and a crew of 10 or 12 men. After the
stranding, her owners abandoned her to the insurers, and she became
the property of the latter. The general agent of the Continental
Insurance Company for the lake region was Mr. Dimock, of Buffalo,
New York, who was also a member of the firm of Crosby & Dimock,
of that place, who were general agents for several other companies.
James J. Reardon, of Buffalo, was employed by Crosby & Dimock
as a marine inspector. Among his other duties was that of going,
when notified, to the assistance of wrecked and stranded vessels
insured by companies represented by Crosby & Dimock, and
getting them to a port of safety. On November 29, 1883, Reardon was
notified by Crosby & Dimock in regard to the
Enterprise, and went with a steam tug called the
Balize, with steam pumps and engineers, to the assistance
of the
Enterprise. One of the steam pumps was in charge of
Carbry. Soon after their arriving at the place where the
Enterprise was, her crew being still on board of her, and
in charge of her, the steam pumps were set up, and she was pumped
out and pulled off from the place where she had stranded. This was
done under the supervision of Reardon. She was more or less injured
by the stranding, but when she was got off, she was towed into deep
water and, although she leaked, she was kept free by the use of one
pump for about 66 hours -- from 10 o'clock Thursday morning until 4
o'clock the following Sunday morning. Part of her cargo had been
removed, but it was replaced. Her machinery was disabled, and it
was necessary that the Balize should take her in tow, to remove her
to a port where she could be repaired. She started in to astern of
the
Balize, bound for Detroit at 4 o'clock on Sunday
morning, December 9, 1883, with her cargo on board, and a crew of
13 men, including 4 who were in charge of 2 steam pumps, one of
which was under the care of Carbry. Her mate was in command of her.
Reardon was on board of the
Balize. No trouble was
experienced
Page 141 U. S. 640
in the navigation of the
Enterprise until 2 o'clock on
the morning of the next day -- 22 hours after she had started --
and then, while off Point aux Barques and Saginaw Bay, she filled
and sank, and became a total loss, and Carbry lost his life. He was
22 years of age. The declaration alleged that his life was lost
through the negligence of the defendants in particulars which it
specified.
The defendants having, in the state court, separately demanded a
trial of the matters set forth in the declaration, the action was,
after its removal, tried in the circuit court of the United States
before the district judge, Judge Brown (now of this Court) and a
jury, and, under the instruction of the court, a verdict was
rendered in favor of the three defendants other than the
Continental Insurance Company. The trial proceeded against the
latter company, and resulted in a verdict against it for $8,000. On
motion, and in February, 1886, the verdict was set aside and a new
trial was granted. The opinion of the court on the motion,
delivered by Judge Brown, is reported in 26 F. 798. The ground
assigned for granting the motion was that the liability of the
defendant, if any, was destroyed because it was subject to the
provisions of § 4283 of the Revised Statutes of the United States,
and the
Enterprise was totally lost during the voyage on
which the death occurred. A judgment was then entered in favor of
the three defendants other than the Continental Insurance
Company.
The new trial was had before Judge Brown and a jury in March,
1886. There is a bill of exceptions, which states that the court
instructed the jury to render a verdict in favor of the defendant,
which was done. The plaintiff excepted to the instruction of the
court. The bill of exceptions contains all the evidence offered on
both sides. A judgment in favor of the defendant was rendered in
September, 1887, and the plaintiff has brought the case to this
Court by a writ of error. It is stated in the bill of exceptions
that prior to the sending of the expedition under Reardon to rescue
the
Enterprise, she had been abandoned by her owners to
the Continental Insurance Company, by which she was insured, and
had
Page 141 U. S. 641
become its property, and that, by reason of her being sunk at
the time Carbry lost his life, she became and was a total loss.
Page 141 U. S. 644
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
The principal contention on the part of the plaintiff is that §
4283 of the Revised Statutes does not apply to the case. That
section is as follows:
"SEC. 4283. The liability of the owner of any vessel for any
embezzlement, loss, or destruction, by any person, of 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."
It is contended that the statute does not apply, because the
vessel had been wrecked and abandoned to the underwriters; that
they cannot be relieved, under the statute, from their liability
for negligence while engaged in saving the wreck or the cargo, and
that she had lost her identity as a vessel.
Page 141 U. S. 645
But we are of opinion that her identity was not lost. She was
still a vessel. She had lost her own power of locomotion, but she
was capable of being towed as a vessel, and was so towed for 22
hours, and until she had accomplished a large portion of her
voyage. She was officered and manned, and had on board a cargo. If,
during the 22 hours, through the negligence of those on board of
her and in charge of her, she had done damage by coming into
collision with another vessel and survived, she could have been
libeled as a vessel, and she could have been libeled for salvage.
She was in the same condition as any vessel which at sea loses her
means of propulsion and has to be towed into port. The fact that,
as between her former owner and the insurance company, she had been
abandoned as a total loss does not affect the question. She was
abandoned as a total loss to her owner for the purposes of the
policy of insurance, but, as in numerous other cases of
abandonment, she was abandoned with the privilege to the insurance
company of treating her as a vessel and repairing her if it could.
Her ownership by the insurance company, resulting from the
abandonment, was of the same character as would have been her
ownership by any person who had purchased her in her then condition
from the former owner. After her abandonment, she entered upon a
new career and a new voyage, and § 4283 applies to the liability of
the owner of her on such voyage, for damages for the death of
Carbry.
It was held by this Court in
Butler v. Boston & Savannah
Steamship Co., 130 U. S. 527,
that the provision of § 4283 applies to cases of personal injury
and death as well as to cases of loss of or injury to property.
Whatever liability there was on the part of the defendant was
extinguished by the loss of the
Enterprise, and the
extinguishment of such liability may be availed of in this suit, as
matter of law, on the facts of the case.
The Scotland,
105 U. S. 24;
Providence & N.Y. Steamship Co. v. Hill Mfg. Co.,
109 U. S. 578,
109 U. S. 594.
The restriction of the statute by § 4289 to vessels not "used in
rivers or inland navigation" does not apply to the
Enterprise, because she was used on the Great Lakes.
American
Page 141 U. S. 646
Trans. Co. v. Moore, 5 Mich. 368;
Moore v.
Transportation Co., 24 How. 1.
The only question remaining is as to whether the loss of
Carbry's life occurred with the privity or knowledge of the
insurance company, it being contended that the knowledge and
privity of Reardon were those of the company. But it was held by
this Court in
Walker v. Transportation
Co., 3 Wall. 150, in regard to the statute Act
March 3, 1851, § 1, 9 Stat. 635, now § 4282 of the Revised
Statutes, which provides as follows:
"No owner of any vessel shall be liable to answer for or make
good to any person any loss or damage which may happen to any
merchandise whatsoever which shall be shipped, taken in, or put on
board any such vessel by reason or by means of any fire's happening
to or on board the vessel unless such fire is caused by the design
or neglect or such owner,"
that, in order to make the owner of a vessel, in case of loss by
fire, liable for negligence, it must appear that the owner had
directly participated in the negligence. It was there said that as
the object of the act was "to limit the liability of owners of
vessels," and the exception was not, in terms, of negligence
generally, but only of negligence of the owners, it would be a
strong construction of the act to hold that the exception extended
"to the officers and crews of the vessels, as representing the
owners;" that section 6 of the act (now § 4287 of the Revised
Statutes) showed that it was the purpose of the preceding sections
to release the owner from some liability for the negligence and
fraud of the master and other agents of the owner, for which those
persons were themselves liable and were to remain so, and that, in
reference to fires occurring on the vessels to which the statute
applied, the owner was "not liable for the misconduct of the
officers and mariners of the vessel, in which he does not
participate personally." The same rule is applicable to the words
"privity or knowledge," in § 4283.
When the owner is a corporation, the privity or knowledge must
be that of the managing officers of the corporation. In
Hill
Manufacturing Co. v. Providence & New York Steamship Co.,
113 Mass. 495, 499-500, it was said that the object
Page 141 U. S. 647
of the statute was to exempt the owners of ships from the
onerous liability to which they were held by the common law, as
common carriers or otherwise, for the acts or neglect of their
servants or agents or of third persons, without their own knowledge
or concurrence, not to diminish their responsibility for their own
willful or negligent acts, and it was added:
"If a loss by fire is caused either by the design of by the
neglect of the owners of a ship, the first section of the statute
does not limit or take away their common law liability. If the
owners are a corporation, the president and directors are not
merely the agents or servants, but the representatives of the
corporation, and the acts, intentions, and neglects of such
officers are those of the corporation itself."
The corporation in the present case was protected by the statute
from loss or damage arising from the fault or negligence of the
mate or any of the crew or other employees who were on board of the
Enterprise, and
a fortiori it was protected from
loss or damage arising from the fault or negligence of Reardon. The
only negligence alleged in the case is that of Reardon in
attempting to tow the
Enterprise, in the condition in
which she was, to Detroit. But he was not an officer of the
corporation or employed directly by it, but was employed by Dimock,
or Crosby & Dimock, the agents at Buffalo. He was at most a
mere employee of the corporation. He was not its general agent,
nor, so far as appears, had it any knowledge of his appointment. If
he was an agent at all, his powers were no greater than those of
the master of a vessel, for whose negligence the owner is not
liable even though the privity or knowledge of the master exists.
The knowledge of Reardon was not the private knowledge of the
corporation.
It is unnecessary to consider any of the other questions
discussed at the bar, and the judgment is
Affirmed.
