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210 U.S. 95 (1908)
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U.S. Supreme Court
La Bourgogne, 210 U.S. 95 (1908)
Argued November 1, 1907
Decided May 18, 1908
210 U.S. 95
The decree of the district court in a proceeding for limitation of liability adjudging that the petitioner is entitled to the limitation and declaring that one class of claims cannot be proved against the fund and remitting all questions concerning other claims for proof prior to final decree is interlocutory, and an appeal to the Circuit Court does not lie therefrom, but from the subsequent decree adjudicating all the claims filed against the fund.
This Court will not disturb the concurrent findings of fact of both the courts below unless 80 unwarranted by the evidence as to be clearly erroneous, and a finding that the rate of speed of a vessel on the high seas during a fog was immoderate under the international rules will not be disturbed because based on the conceptions of immoderate speed prevailing in the United States courts and not on those prevailing in the courts of the country to which the vessel belonged.
In a proceeding to limit liability instituted by the owners of a foreign vessel lost on the high seas, the right to exemption must be determined by the law as administered in the courts of the United States.
In a proceeding for limitation of liability, the remedy of claimants against the fund for the failure of the petitioners to produce log books ordered
to be produced by the court is to offer secondary evidence or ask for dismissal of the proceeding; they cannot proceed and ask the court to decide the case not according to the proof, but on presumption of wrongdoing and suppression of evidence.
Under the circumstances of this case, the fault of the officers and crew of the steamship La Bourgogne resulting in collision and loss of the vessel and its passengers, crew, and cargo was not committed with the fault and privity of its owner, so as to deprive it of the right to a limitation of liability under §§ 4282, 4289, Rev.Stat.
Mere negligence of the officers and crew of a vessel, pure and simple and of itself, does not necessarily establish the existence on the part of the owner of the vessel of privity and knowledge within the meaning of the limited liability act of 1851 as reenacted in §§ 4282-4287, Rev.Stat. The Main, 152 U. S. 122, distinguished.
Under § 4405, Rev.Stat., the regulations of the supervising inspectors and the supervising inspector general when approved by the Secretary of the Treasury in regard to carrying out the provisions of §§ 4488, 4489, Rev.Stat., have the force of law, and the owner of a foreign vessel is required to comply therewith by the Act of August 7, 1882, c. 441, 22 Stat. 346, and, even if such regulations are inconsistent with the statute, compliance therewith does not amount to a violation of the statute and deprive the owner of the right to a limitation of liability on account of privity with the negligence causing the loss.
In the case of a foreign vessel making regular trans-oceanic trips, the freight for the voyage to be surrendered by the owner in a proceeding for limitation of liability when the vessel is lost on the return trip is that for the distinct sailing between the regular termini, and does not include the freight earned on the outward trip.
Notwithstanding that, where a contract of transportation is unperformed and no freight is earned, no freight is to be surrendered, such freight and passage money as are received under absolute agreement that they shall be retained by the carrier, in any event, must be surrendered by the owner of a vessel seeking to limit his liability under the provisions of §§ 4283-4287, Rev.Stat.
An annual subsidy contract made by a foreign government and a steamship company for carrying the mails was held under its conditions not to be divisible, and no part thereof constituted freight for the particular voyage on which the vessel was lost which should be surrendered by the owner in a proceeding for limitation of liability.
Where the law of the state to which a vessel belongs gives a right of action for wrongful death occurring on such vessel while on the high seas, such right of action is enforceable in the admiralty courts of the United States against the fund arising in a proceeding to limit liability, The Hamilton, 207 U. S. 398, and the law of France does give such right of action for wrongful death.
In determining whether claims for wrongful death are enforceable against the fund in a limited liability proceeding, notwithstanding the right to
enforce such claims is based on the right of action given by the law of the country to which the vessel belongs, the question of whether the vessel was in fault and the fund liable must be determined by the law of the United States courts. The duty to enforce the cause of action given by the foreign law does not carry with it the obligation to give the proof the same effect as it would have in the courts of that country if the effect is different from that which such proof would have in the courts of the United States.
Where there is an honest controversy as to what the pending freight for the voyage includes, and in the absence of contumacious conduct, a limitation of liability should not be refused because the petitioner has not, pending the determination of such controversy, actually paid over to the trustee the entire amount of the pending freight as finally adjudicated.
Where, on writ and cross-writ of certiorari, the judgment is affirmed, neither party prevails, and each must pay his own costs in this Court.
144 F. 781 affirmed.
The facts are stated in the opinion.