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lightering service is not deprived of the right to a limitation of liability for
the death of an employee engaged in discharging a cargo of railroad rails from
one of the barges, resulting from the use of defective tongs borrowed by the
master from another boat, where it was shown that such tongs were used in-
frecjuently and were not a part of the ordinary equipment of the barges, but
were supplied to some, and, when needed by others, were borrowed from
them ; that the owner had no knowledge of the defect, and employed compe-
tent masters on whose request tongs were supplied or replaced when out of
repair."'^

§§ 4508-4514. Surrender of Vessel and Pending Freight or Interest
Therein — § 4508. In General. — The real object of the federal Limiting Lia-
bility Act being to limit the liability of vessel owners to their interest in the
adventure, it has been the custom in assessing the value of ship to include all
that belongs to the ship and may be presumed to be the property of the owner,
not merely the hull together with the boats, tackle, apparel and furniture, with
all the appurtenances comprising whatever is on board for the object of the
voyage belonging to the owners, whether such object be warfare, the convey-
ance of passengers, goods, or the fisheries. '^^ In 1875, the federal court for
the first circuit held that the word "ship" as used in the statute would not in-
clude, in the case of a whaler, the "whaling outfit, consisting of whaling gear,
casks, provisions, and supplies for the crew and trading, known as the 'slops.' "
The court found that these were "appurtenances" of a whaling vessel, and be-
cause congress had not used the word "appurtenances," which appeared in
the American Limitation of Liability Act, it was itself evident intention not to
include that which is "not part of the ship" in the language of merchants, but
only appurtenant to it, as is necessary for a special voyage or adventure.^ This
was a narrow construction of the clause. Subsequently the supreme court
held that the word "freight" used in the same clause was not to be given a
narrow or technical definition, and although the precise question was not be-
fore the court, it laid down the general rule as above stated, in efifect that the
clause should be construed broadly to cover what the owners have at risk on
the vessel for the object of the adventure. -

Right of Action Representative of the Ship. — The clear purpose of con-
gress was to require the shipowner, in order to be able to claim the benefit of
the Limited Liability Act, to surrender to the creditors of the ship all rights of
action which were directly representative of the ship and freight.^ Where a
vessel has been wrongfully taken from the custody of her owners or destroyed
through the fault of another, there exists in the owner a right to recjuire the
restoration of his property, either in specie or by a money payment as compen-
sation for a failure to restore the property. Manifestly, if the option was af-

Faxon, 75 Fed. 312, 21 C. C. A. .IfiG. modi- 1. Swift v. Browncll, Holmes 4r.7, Fed.

fyirift- decree GO Fed. .575. Cas. No. 13,095.

98. Failure of agent to inspect or pro- 2. The Buffalo, 154 Fed. 815, S3 C. C. A.
vide suitable machinery. — The Tommy, 531, affirming 148 Fed. 331, following
151 Fed. 570, 81 C. C. A. 50, reversing 142 Obcrton in The Main v. Williams, 152 U.
Fed. 1034. S. 122, 14 S. Ct. 486, 38 L. Fd. 381 and

99. Surrender of vessel and pending distinguishing vSwift v. Brownell, Holmes
freight or interest therein. — ^The Main v. 407, T'\'d. Cas. No. 13,()95.

Williams, 152 U. S. 122, 14 S. Ct. 486, 38 3. Right of action representative of the

L. Fd. 381; The Buffalo, 154 Fed. 815, 83 ship.— O'Brien v. Miller, 168 U. vS. 287, 43
C. C. A. 531, afifirming 148 Fed. 331. L. Fd. 469, 18 S. Ct. 140.



§§ 4508-4510 CARRIERS. 4048

forded the owner of the ship to receive back his property or its value, he could
not, by electing to take its value, refuse to surrender the amount as a condition
to obtaining the benefit of the act,-* but it does not operate an assignment of the
insurance on the vessel.^

The word "interest," § 4285, Rev. Stat., was intended to refer to the extent
or amount of ownership which the party had in the vessel and freight, and
whatever the extent or character of his ownership may be, the amount or value
of that interest is to be the measure of his liability.^

§ 4509. Particular Vessels and Parts Thereof Which Must Be Sur-
rendered.— Steam Hoist or Derrick as Part of Vessel. — A traveling steam
hoist or derrick, mounted upon a fuel scow specially designed to be used with
such a hoist, and from which, although removable, it had been removed but
once in 14 years, is a part of the vessel, within the meaning of the limitation
of liability statute (Rev. St., § 4283 [U. S. Comp. St., 1901, p. 2943] ).7

Both Vessels in Collision Property of Petitioner.— The purpose of pro-
ceedings for limitation of liability for a collision is to exempt the petitioner
from all personal liability on account of the collision, on whatever ground it
may rest; and where the petition is for the limitation of Hability as owner of a
vessel sunk, but it is found on the hearing, on appropriate allegations in the
answer, that petitioner was also owner of the other vessel concerned, and that
both were in fault for the collision, it is a condition precedent to the granting^
of the relief sought that both vessels and their pending freight be surrendered.*

Tug in Charge of Lighter. — In proceedings for limitation of liability, grow-
ing out of the explosion of a pump boiler on a lighter, a tug which was in
charge of the lighter should also be surrendered by the common owner.^

Other Vessels Employed with Vessel Charged with a Negligent Injury.
— The fact that the owner of a vessel charged with a negligent injury also,
owned other vessels employed in connection with such vessel does not require
their surrender in a proceeding for limitation of liability, where they are not
charged with any fault. ^^

§ 4510. Transfer of Interest to Trustee or Appraisement and Pay-
ment into Court of Value.— This liability of the shipowners may be_ discharged
by surrendering and assigning to a trustee for the benefit of the parties injured,
in pursuance of the fourth section of the act, their interest in the vessel and
freight, or payment of their value into court; although those may have been
diminished in value by the collision or other casualty during the voyage.i^
Rev. St., §§ 4283, 4285 [U. S. Comp. St., 1901, pp. 2943, 2944], clearly give the
owner of any vessel the right to personal exemption from liability for any
damage occasioned by such vessel without his privity or knowledge by trans-
ferring her and her pending freight to a trustee to be appointed by a court of
admiralty, and although admiralty rule 54, prescribing the procedure under
said sections, permits him at his option to retain the vessel by having her ap-

4. O'Brien v. Miller, 168 U. S. 287, 42 8. Both vessels in collision property of
L Ed 469 18 S Ct 140 oetitioner. — Judgment 134 Fed. 749, re-

5. The City of Norwich, 118 U. S. 468, versed in The San Rafael, 141 Fed. 2T0,

l?„i^d"li.?S' t^-^-^^. S°u' Ed: -s'/u,V^4ar,e Of Ugh... ll^^P-

iifio 99 q C\ 927 See oost "Insur- son Towing, etc., Ass n v. McGregor, <iur
1160,^^22 b. Ct. 927. bee post, insur ^^^^ ^^^^ ^^^ ^ ^ ^ ^^^

^"^^- , . , TT o .^o 10. Other vessels employed with vessel

6. The City of Norwich, 118 U. S. 468, charged with a negligent injury.— The
30 L. Ed. 134. 6 S Ct 1150; Hoffeld ^. gunbeam, 195 Fed. 468.

United States, 186 U. b. 273, 46 U lid. jj Transfer of interest to trustee or ap-

1160, 22 S. Ct. 927. praisement and payment into court of

7. Steam hoist or derrick as part of ves- value.— Norwich Co. v. Wright (U. S.), 13^
sel.— Decree 148 Fed. 331, affirmed in The Wall 104, 20 L. Ed. 585; The Benefactor,
Buffalo, 154 Fed. 815, 83 C. C. A. 531. io3 U. S. 239, 26 L. Ed. 351.



4049 LIMITATIONS OF LIABILITY. §§ 4510-4514

praised and paying her appraised value, and pending freight into court or giv-
ing a stipulation therefor, he still has the right before an appraisement made
on his petition has been accepted, or any order has been made thereon, to dis-
miss that part of his petition, and, instead, to ask for the appointment of a trus-
tee to whom he may transfer the vessel and her freight.^^

Ex Parte Appraisement.— Although some prior notice of the holding of the
appraisement might very weW have been served upon a person named in the
libel and petition as a respondent, even if he was out of the jurisdiction of the
court, yet the appraisement ex parte was not void, because Rule 54 does not re-
quire prior notice of the appraisement to be given to any one, and only re-
quires a monition to be issued after a stipulation has been given or a transfer
has been made to a trustee. ^^ The making of the appraisement ex parte, and
the taking of the stipulation thereupon, are, at most, an irregularity which the
district court can correct. ^^ The stipulation stands in the place of the vessel
and her freight, leaving to the court its usual power to act, on proper applica-
tion, in respect to giving a new or further stipulation.^^

§ 4511. Bond for Payment into Court. — Where the owners of a vessel,
in proceedings for limitation of their liability for a collision, gave bond con-
ditioned for the payment into court on its order of the appraised value of the
vessel "and the interest on the same as provided by law," and thereafter con-
tested their liability, the result being an award against the vessel exceeding
its value, the stipulators are liable for interest on the bond from the date of
its execution at the legal rate.^^

§ 4512. Abandonment to Underwriters. — The right to proceed for a lim-
itation of liability is not lost or waived by a surrender of the ship to under-
writers. i"

§ 4513. Total Loss of Vessel. — If the vessel and her freight be totally
lost, the liability of her owner is thereby extinguished.^^

§ 4514. Effect of Failure to Surrender Pending Freight. — Failure to
surrender pending freight to the trustee does not necessitate a refusal to allow
the limitation of liability for claims arising out of a collision at sea, where
there is an honest controversy as to whether there was any pending freight
to be surrendered, and there is no question as to the insolvency of the owner.^^

Recovery of Amount Not Surrendered. — Under the Limited Liability Act,
U. S. Stat., §§ 4282, 4285, a shipowner who retains the sum of the damages
which have been awarded him for the loss of his ship and freight by collision

12. Ohio Transp. Co. v. Davidson 134, 6 S. Ct. 1150; The Scotland, 118 U. S,
Steamship Co., 148 Fed. 185, 78 C. C. A. 507. 30 L. Ed. 153, 6 S. Ct. 1174; The
319. Great Western, 118 U. S. 520, 30 L. Ed.

13. Ex parte appraisement. — In re Mor- 156, 6 S. Ct. 1172.

rison, 147 U. S. 14, 37 L. Ed. 60, 13 S. 18. Total loss of vessel.— La Bourgogne,.

Ct. 246. 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664;

14. The Benefactor, 103 U. S. 239, 247, Norwich Co. v. Wright (U. S.), 13 Wall.
26 L. Ed. 351; In re Morrison, 147 U. S. 104, 20 L. Ed. 585; The Benefactor, 103 U,
14, 37 L. Ed. 60, 13 S. Ct. 246. S. 239, 26 L. Ed. 351; The Chattahoochee,

15. In re Morrison, 147 U. S. 14, 37 L. 173 U. S. 540, 43 L. Ed. 801, 19 S. Ct. 491;
Ed. 60, 13 S. Ct. 246; The Wanata, 95 U. The Scotland, 105 U. S. 24, 26 L. Ed.
S. 600, 24 L. Ed. 461; United States v. 1001; Providence, etc.. Steamship Co. v,
Ames, 99 U. S. 35, 25 L. Ed. 295; The Hill Mfg. Co., 109 U. S. 578, 27 L. Ed.
City of Norwich, 118 U. S. 468, 30 L. Ed. 1038, 3 S. Ct. 379, 617; Craig v. Conti-
134, 6 S. Ct. 1150. nental Ins. Co., 141 U. S. 638, 35 L. Ed.

16. Bonds for payment into court.— De- 886, 12 S. Ct. 97; The North Star, 106 U.
cree, In re Lakeland Transp. Co., 103 Fed. S. 17, 27 L. Ed. 91, 1 S. Ct. 41.

328, modified in The George W. Roby, 111 19. Effect of failure to surrender pend-

Fed. 601, 49 C. C. A. 481. ing freight. — Judgment, La Bourgogne,

17. Abandonment to underwriters.— The 144 Fed. 781, 75 C. C. A. 647, affirmed in
City of Norwich, lis L'. S. 468, 30 L. Ed. 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664.



§§ 4514-4516 CARRIERS. 4050

with another vessel which was in fault, has not surrendered "the amount or
value" of his interest in the ship; he has not given up "the whole value of the
vessel, he has not transferred his interest in such vessel and freight." It fol-
lows, therefore, that the shipowner to the extent of the damage paid him
on account of the collision, is liable to the creditors of the ship, and that the
cargo owners can recover by an action in personam against the shipowner
the due average proportion of the expenses at the port of refuge incurred for
the benefit of the ship and freight. ^"^

§§ 451 5-4524. What Constitutes Value of Ship and Freight— § 4515.
Point of Time at Which Value Taken. — The law limits the liability to the
vakie of the ship and freight after the injury has occurred, but not before —
aliter, under the English law.^i The point of time at which the amount or
value of the owner's interest in ship and freight is to be taken for fixing his
liability is the termination of the voyage on which the loss or damage occurs.22
If the ship is lost at sea, or the voyage be otherwise broken up before arriving
at her port of destination, the voyage is then terminated for the purpose of
fixing the owner's liability.-^

§ 4516. Freight and Passenger Money Estimated.— No freight except
what is earned is to be estimated in fixing the amount of the owner's liability ;-•*
and tiiis liability extends to freight .and passage money prepaid at the port of
departure. 25 Where a vessel is lost on a voyage, and thereby contracts of
transportation are unperformed, it may be that there will be no freight earned
and none to be surrendered.^^ But freight and passage money which was re-
ceived for the voyage under an absolute agreement that the sums so paid were,
in any event, to belong to the owner of the vessel, which were tantamount to
stipulations that, although such freight and passage moneys might be only
partially earned, the right to the whole amount was contractually complete,
must be surrendered as freight pending on the voyage under the rule that the
duty to surrender pending freight to entitle to a limitation of liability must be
liberally construed against the shipowner.^" Where a ship, at the time she was

20 Recovery of amount not surrendered. land, 118 U. S. 507, 30 L. Ed. 153, 6 S. Ct.
—O'Brien v Miller, 168 U. S. 287, 42 L. 1174; The Great Western. 118 U. S. 520,
Ed. 469, 18 S. Ct. 140. 30 L. Ed. 156, 6 S. Ct. 1172 _

21 So held in collision cases.— Norwich 25. Passage money and freight prepaid.
Co V Wrio-ht (U S.), 13 Wall. 104, 20 L. —Under the Limited Liability Act, Rev.
Ed 585- The Benefactor, 103 U. S. 239, Stat., § 4283, the liability of a shipowner
26 L Ed 351; The City of Norwich, 118 for the "freight then pending" extends to
U S 468, 30 L. Ed. 134, 6 S. Ct. 1150. passage money, and to freight prepaid at

22 The' City of Norwich, 118 U. S. 468, the port of departure. The Mam v. Wil-
30 L Ed 134, 6 S. Ct. 1150; The Scot- liams, 153 U. S. 122, 38 L. Ed. 381, 14
land, 118 U. S. 507, 30 L. Ed. 153, 6 S. Ct. S. Ct. 486.

1174- The Great Western, 118 U. S. 520, 26. La Bourgogne, 210 U. S. 95, 52 L.

30 L Ed 156, 6 S. Ct. 1172; The Scot- Ed. 973. 28 S. Ct. 664, following Norwich

land, 105 U. S. 24, 26 L. Ed. 1001; The Co. v. Wright (U. S.), 13 Wall. 104, 20

Benefactor, 103 U. S. 239, 26 L. Ed. 351. L. Ed. 585.

Collision.— The value of the vessel and In respect to the pending freight, which

freight for the purposes of limitation of must be surrendered by a shipowner, in

liability is to be assessed at no later period order to secure the statutory limitation of

than the termination of the voyage during liability, the law is that freight pending

which the collision happened. The is freight earned; and when the voyage is

George L. Garlick, 107 Fed. 542, 46 C. C. broken up by the wrecking of the ship be-

A. 456. fore reaching her destination, there is or-

23. The City of Norwich, 118 U. S. 468, dinarily no freight earned, for, even
30 L. Ed. 134, 6 S. Ct. 1150; The Scotland, though prepaid, in the absence of special
118 U. S. 507, 30 L. Ed. 153, 6 S. Ct. 1174; contract, it may be recovered back by
The Great Western, 118 U. S. 520, 30 L. the shipper. Pacific Coast Co. v. Rey-
Ed. 156, 6 S. Ct. 1172. nolds, 114 Fed. 877, 52 C. C. A. 497.

24. Freight and passenger money es- 27. La Bourgogne, 210 U. S. 95, 52 L.
timated.— The City of Norwich, 118 U. S. Ed. 973, 28 S. Ct. 664, following The Main
468, 30 L. Ed. 134, 6 S. Ct. 1150; The Scot- v. Williams, 152 U. S. 122, 38 L. Ed. 381,



^051



LIMITATIONS OF LIABILITY,



§§ 4516-4517



stranded and the voyage terminated, was carrying passengers, who had prepaid
their passage under contracts providing that in case of the loss of the vessel
the passage money should not be refunded, such passage money must be con-
sidered the same as freight earned, and surrendered by the owner in proceed-
ings for the limitation of liability ; and no deduction can be made because cer-
tain of the tickets were given to the passengers by the shipowners, nor on ac-
count of a sum paid by such owner for the transportation of the passengers
from the place of the stranding to their port of destination. -'«

§ 4517. What Constitutes Earnings of Voyage.— The earnings of the
voyage which a shipowner is required by the statute to surrender in order to
obtain a limitation of liability for losses occurring on such voyage are those
only of the particular voyage which exposed the passengers or property to
risk; and where a steamship was engaged in making regular trips across the
Atlantic from Havre to New York and return, discharging her passengers and
cargo at each terminal port, each of the trips between such ports constitutes a
separate voyage, within the meaning of the statute, and in proceedings for
limitation of liability for claims arising out of the sinking of the ship in colli-
sion while on her way from New York to Havre the owner is not required to
surrender the earnings of the preceding trip from Havre to New York.^o The



14 S. Ct. 486, and O'Brien v. Miller, 168
U. S. 287, 42 L. Ed. 469. 18 S. Ct. 140; La
Bourgogne. 139 Fed. 433, 71 C. C. A. 489,
reversing, 117 Fed. 261.

Sums prepaid for freight and passage on
the voyage, under an absolute agreement
that such sums are, in any event, to be-
long to the owner of the vessel, must be
surrendered as freight then pending on
the voyage, within the meaning of Rev.
St., U. S., §§ 4283, 4284 (U. S. Comp. St.,
1901, p. 2943), in proceedings for the lim-
itation of liability for claims arising out
of the sinking of the vessels as a result
of a collision at sea. Judgment, La Bour-
gogne, 144 Fed. 781, 75 C. C. A. 647,
affirmed in 210 U. S. 95, 52 L. Ed. 973,
28 S. Ct. 664.

By the terms "freight pending" and
^'freight for the voyage," as used in Rev.
St., §§4283, 4284 [U. S. Comp. St., 1901, p.
2943], is meant the earnings of the voyage,
whether for the carriage of passengers or
merchandise, and where passage or freight
money is prepaid under contracts by
which it becomes the absolute property of
the shipowner whether the voyage is com-
pleted or not. it must be regarded as
earned, although the vessel is lost, and
rnust be surrendered by the owner to en-
title him to a limitation of liability un-
der the statute for claims growing out
of such loss. Decree 117 Fed. 261, re-
versed in La Bourgogne, 139 Fed. 433, 71
C. C. A. 489.

28. Pacific Coast Co. z\ Reynolds, 114
Fed. 877, 52 C. C. A. 497.

29. What constitutes earnings of voy-
age.— Decree 117 Fed. 261, reversed in La
Bourgogne, 139 Fed. 433, 71 C. C. A. 489;
S. C, 210 U. S. 95, 52 L. Ed. 973, 28 S.
Ct. 664, affirming 144 Fed. 781, 75 C. C.
A. 647.

Where a steamship was engaged in mak-

4 Car— 60



ing regular trips across the Atlantic from.
Havre to New York and return, each trip
between the two terminal ports consti-
tutes a "voyage," within the meaning of
the statute providing for limitation of lia-
bility of owners to their interest in the
vessel "and her frei.ght for the voyage"
(Rev. St., § 4284 [U. S. Comp. St., 1901, p.
2943]); and the owner, in instituting pro-
ceedin.gs thereunder for limitation of lia-
bility for claims arising out of the sinking
of the ship in collision while on her way
from New York to Havre, is not required
to deposit the freight earned on the pre-
ceding trip from Havre to New York.
La Bourgo.gne, 117 Fed. 261, reversed in
139 Fed. 433, 71 C. C. A. 489.

"As §§ 4283, 4284, Rev. Stat. (U. S.
Comp. Stat., 1901, p. 2943), are in pari ma-
teria, the two must be considered to-
gether, and therefore the freight then
pending, referred to in § 4283, is freight
then pending for 'the same voyage,' or
'for the voyage,' as these words are used
in § 4284." La Bourgogne, 210 U. S. 95,
52 L. Ed. 973, 28 S. Ct. 664. See ante,
"Construction," § 4498.

"In common parlance, each of these
trips was -a separate voyage. Undoubt-
edly the word 'voyage' may have different
meanings under different circumstances,
depending on the subject to wliich it re-
lates or the context of the particular con-
tract in which the word is employed.
This is illustrated by the use of that word
in the subsidy contract, where the word
is used as signifying a sailing from Havre
to New York and the return trip to
Havre." The meaning of the word in
§§ 4283, 4284, Rev. Stat., "must be ascer-
tained by considering the context of the
.sections and the remedy which they were
intended to afford; in other words, their
obvious intent and purpose. The intimate



§§ 4517-4521 CARRIERS. 4052

construction of the statute as applied to such case cannot be affected by the
fact that in a contract for carrying mails, between the ship and the French
government, a round trip was designated as a voyage. 2*^

§ 4518. Ship Subsidy Money.— No part of the annual subsidy paid to a
steamship company by the French government in consideration of the opera-
tion of a weekly steamship service between Havre and New York need be sur-
rendered as freight pending for the voyage, within the meaning of Rev St U
S., §§ 4283, 4284 (U. S. Comp. St., 1901, p. 2943), in proceedings for the lim-
itation of liability for claims arising out of the loss of one of the vessels of
such steamship company in a collision on a voyage from New York to Havre. ^^
In proceedings by a French steamship company under Rev. St., § 4284 [U. S.
Comp. St., 1901, p. 2943], for limitation of liability for claims arising out of the
sinking of one of its ships while on a voyage from New York to Havre, the
"freight for the voyage" which the petitioner is required by the statute to sur-
render can not be construed to include any part of an annual subsidy paid to
the company by the French government, in consideration for which the com-
pany agreed to build and maintain a weekly steamship service between Havre
and New York, the vessels to be built in France and to be of a character, size,
speed, and equipment specified, and subject to the use of the government in
case of war or other extraordinary political circumstances, and to transport
gratuitously all mails and specie for the use of the state. In such case it is im-
possible to determine what part of subsidy is to be considered as compensa-
tion to any single vessel for transportation of the mails on a single trip.^s

§ 4519. Freight Earned by Other Vessels on Through Shipment. —

Under Rev. St., § 4283 [U. S. Comp. St., 1901, p. 2943], which provides that
the liability of the owner of a vessel for loss or damage to cargo occurring
without his privity or knowledge "shall in no case exceed the amount or value
of the interest of such owner in such vessel and her freight then pending,"
pending freight is limited to that due to or to be earned by the particular ves-
sel through whose fault the loss occurred, and the fact that goods when lost
or injured were being transported under through bills of lading upon different
vessels of the same owner does not require a surrender of the freight earned
by a different vessel in the course of such shipment. ^^

§ 4520. Damages for Loss of Vessel in Collision. — Damages recovered
by the owner for the loss of his vessel by collision stand in the place of the



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