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stipulation in place of the ship and freight.'-' The issuance of an injunction

2. Libel by salvage claimants.— The San 5. The San Pedro. 223 U. S. 365, 56 L.
Pedro, 223 U. S. 365, 56 L. Ed. 473, 32 Ed. 473, 32 S. Ct. 275, Ann. Cas. IQISD,
S. Ct. 275, Ann. Cas. 1913D, 1221. 1221, quoting Providence, etc.. Steamship

3. Duty of other courts to suspend pro- Co. v. Hill Alfg. Co., 109 U. S. 57S, 27 L.
ceedings.— The San Pedro, 223 U. S. 365. Ed. 1038, 3 S. Ct. 379, 617.

56 L. Ed. 473, 32 S. Ct. 275, Ann. Cas. 6. Staying or restraining proceedings in

1913D, 1221, approving Providence, etc., other courts. — The Benefactor. 103 U. S.

Steamship Co. v. Hill Mfg. Co., 109 U. S. .239, 26 L. Ed. 351. See Providence, etc.,

578, 27 L. Ed. 1038, 3 S. Ct. 379, 617. Steamship Co. v. Hill Mfg. Co., 109 U. S.

4. The San Pedro. 223 U. S. 365. 56 L. 578, 27 L. Ed. 1038, '3 S. Ct. 379, 617;
Ed. 473, 32 S. Ct. 275. Ann. Cas. 1913D, Butler v. Boston, etc.. Steamship Co., 130
1221. U. S. 527. 32 L. Ed. 1017, 9 S. Ct. 612._

"The appellant, owner of the San Proceedings in state court— Injunction.

Pedro, appears to have proceeded strictly — See Providence, etc., Steamship Co. v.

in compliance with the fifty-fourth ad- Hill Mfg. Co., 109 U. S. 578, 27 L. Ed.

miralty rule. There was a due appraise- 1038, 3 S. Ct. 379, 617; Moran v. Struges,

ment of the San Pedro and her pending 154 U. S. 256, 38 L. Ed. 981, 14 S. Ct. 1019.

freight, and a stipulation entered into. The federal supreme court will refuse

with sureties, for the value so appraised, an application for injunction to stay pro-

and a monition duly issued, requiring all ceedings begun in a state court before the

persons to present their claims and make filing of a libel to obtain the benefit^of the

proof. In that situation, the jurisdiction Limited Liability Act, Rev. Stat., §§ 4283-

of the court to hear and determine every 4-5, when it appears that both courts be-

claim in that proceeding became exclusive. low decided against the petitioner's right

It was then the duty of every other court, to the benefit of the act,_ and _ that no

federal or state, to stop all further pro- cause for granting the petition is shown

ceedings in separate suits upon claims to except the expense consequent upon trials

which the Limited Liability Act applied." in the state court pending the appeal.

The San Pedro, 223 U. S. 365, 56 L. Ed. The Mamie, 110 U. S. 742, 28 L. Ed. 312,

473, 32 S. Ct. 275. Ann. Cas. 1913D, 1221. 4 S. Ct. 194.



4079



LIMITATIONS OF LIABILITY.



§§ 4562-4564



is not necessary to stop proceedings in separate or independent suits upon such
claims. Power to grant an injunction exists under § 4285, Rev. Stat., when
necessary to maintain the excUisiveness of the jurisdiction.'^ The very nature
of the proceeding and the monition has the effect of a statutory injunction.
Indeed, that is the express declaration of the statute.'^

Modification of Injunctional Order. — A court of admiralty, in a proceeding
for limitation of liability, will not modify its preliminary in junctional order,
so as to permit damage claimants to institute suits in other courts. '^

§ 4563, Bar to Subsequent Suit. — Where limited liability proceedings
are properly instituted by shipowner and monitions issued and' published, it
is then the duty of all claimants to appear in such cause, and to contest there
the question w^hether, in the particular case, the owners were or were not
entitled to the benefit of the law.^'^ In such case such proceedings are a bar
to an action for personal injuries resulting from stranding and sinking of the
vessel. ^^

§ 4564, App:ication of Doctrine of Res Adjudicata. — A second trial on
the merits, between the same parties, is not contemplated by the rule.^- Where
a shipowner does not institute proceedings for limitation of liability until
after the damage claimant has recovered a judgment against it in a state court,
it is concluded in such proceedings by the decision of the state court on all the
issues involved in the action before it.^^ In other words a proceeding by a



7. The San Pedro, 233 U. S. 365, 56 L.
Ed. 473, 32 S. Ct. 275, Ann. Cas. 1913D,
1221.

It was urged in Providence, etc.. Steam-
ship Co. V. Hill Mfg. Co., 109 U. S. 578,
27 L. Ed. 103S, 3 S. Ct. 379, 617, that by
virtue of § 720, Rev. Stat. (U. S. Comp.
Stat., 1901, p. 581), the district court had
no authority to issue an injunction. But
as to this, the court said: "This view of
the statutory injunction, and of its effect
upon separate actions and proceedings,
renders it unnecessary to determine the
question as to the legality of the writ of
injunction issued by the district court.
Although we have little doubt of its le-
gality, the question can only be properly
raised on an application for an attach-
ment for disobeying it. As the writ was
issued prior to the adoption of the Re-
vised Statutes, the power to issue it was
not affected by any supposed change of
the law introduced into the revision, liy
the 720th section of which the prohibition
of the Act of 1793 (1 Stat, at L. 334, chap.
22, U. S. Comp. Stat., 1901, p. 581), in re-
gard to injunctions against proceedings in
state courts, has this exception appended
to it: 'Except in cases where such in-
junction may l)e authorized by any law re-
lating to proceedings in bankruptcy.'
Under the rule of expressio unius this ex-
press exception may be urged as having
the effect of excluding any other excep-
tion, though it is observalile that the in-
junction clause in the Act of 1851 is pre-
served without change in § 4285, Rev.
Stat., and will prol)ably be construed as
having its original effect, due to its
chronological relation to the Act of 1793."
The San Pedro. 223 U. S. 365, 56 L. Ed.



473, 32 S. Ct. 275, Ann. Cas. 1913D, 1221.

8. The San Pedro, 223 U. S. 365, 56 L.
Ed. 473, 32 S. Ct. 275, Ann. Cas. 1913D,
1221.

9. Modification of injunctional order. —
The Titanic. 204 Fed. 295, decree modified
204 Fed. 260.

10. Bar to subsequent suit. — Butler v.
Boston, etc.. Steamship Co., 130 U. S. 527,
32 L. Ed. 1017, 9 S. Ct. 612.

11. Butler V. Boston, etc.. Steamship
Co., 130 U. S. 527, 32 L. Ed. 1017, 9 S.
Ct. 612.

12. Application of doctrine of res ad-
judicata. — The Benefactor, 103 U. S. 239,
26 L. Ed. 351.

13. In re Ross, 204 Fed. 248, 122 C. C. A.
516, reversing decree 196 Fed. 921; Glea-
son V. Duffy, 116 Fed. 298, 54 C. C. A.
100.

Where a judgment was recovered in a
state court, against a corporation, owner
of a floating pile driver, for the death of
an employee thereon, in which action the
plaintiff alleged that the death was caused
by the fault and negligence of the defend-
ant in failing to provide a proper and
safe appliance, and evidence was received
on such issue, in a subsequent proceeding
by such defendant for limitation of lia-
bility, the only question to be determined
is whether such fault or negligence was
with its privity or knowledge, and being
a corporation, to entitle it to the benefit
of the statute, it is required to show af-
firmatively that the absence of the ap-
pliance was without the privity or knowl-
of its superintendent, who was charged
with the duty of seeing that the vessel
was properly equipped. Tn re Ross, 204
Fed. 248, 123 C. C. A. 51(;.



§§ 4564-4567 carriers. 4080

vessel owner for limitation of liability after the recovery against him of decrees
for damages in collision suits does not affect the status of such decrees as
final adjudications both as to liability and amount of damages.^'*

§ 4565. Effect on Course of Appeal.- — The proceedings for a limitation
of liability can not prevent the due course of appeal in the primary cause of
collisions ; though, by the exercise of the court's authority, they may prevent
the parties from attempting, by execution or other process, to collect any
moneys recovered by them beyond the amount awarded in the said proceed-
ings.^^

§ 4566. Pleading. — It is at least questionable whether the benefit of the
statute can be accorded to any shipowner or owners, in the absence of any
claim therefor in the pleadings. ^^

Allegation That Owner Personally in Fault. — Allegations that the owners
themselves were in fault cannot affect the jurisdiction of the court to entertain
a cause of limited liability, for that is one of the principal issues to be tried in
such a cause. ^'^

Allegation of Specific Negligence. — In a proceeding for limitation of lia-
bility for claims for cargo lost, cargo owners are not required to allege any
specific negligence of petitioner in their answers, but make a prima facie case
by proof of the shipment and nondelivery of their goods. ^^

Sufficiency of Claims for Death by Wrongful Act. — Where, in a proceed-
ing to limit the liability of the owners of certain vessels for damages result-
ing from the death of passengers and crew caused by a collision, the statutes
of the state to which the vessels belonged created a right of action for death
in the widow of the deceased person, a claim filed by M., "widow and execu-
trix" of one of the persons killed in the collision, was sufficient ; the allegation
that she was executrix being mere descriptio personse and surplusage. ^'-^

Amendment of Claim. — An amendment of the claim, so as to charge that pe-
titioner claimed as widow, was not erroneous, as permitting the filing of a
new cause of action. ^"^

Petition Where All Liability Contested. — See ante, "Contesting All Lia-
bility," § 4555.

Pleading Limited Liability or Defense to Action. — See ante, "Modes in
Which Limited Liability May Be Claimed." § 4553.

§§ 4567-4570. Evidence — § 4567. Presumptions and Burden of
Proof. — Burden of Proof of Seaworthiness.— The burden of proving that a
vessel was seaworthy and properly manned at the time of beginning the voy-
age, or that due diligence had been used to make her so, rests upon the ship-
owner claiming the benefit of the exemption provided in Harter Act, Feb. 13,
1893, c. 105, § 3, 27 Stat., 445 [U. S. Comp. St., 1901, p. 2946], against errors
of management or navigation, whether or not there is any evidence to the-
contrary. 21

14. Monongahela River Consol. Coal, 19. Sufficiency of claims for death by
etc., Co. V. Hurst, 200 Fed. 711, 119 C. C. wrongful act.— The Hamilton, 146 Fed.
A. 127. 724, 77 C. C. A. 150.

15. Effect on course of appeal.^The 20. Amendment of claim. — The Hamil-
Benefactor. 103 U. S. 239, 26 L. Ed. 351. ton, 146 Fed. 724, 77 C. C. A. 150.

16. Necessity for claims. — The North 21. Burden of proof of seaworthiness. —
Star. 106 U. S. 17, 27 L. Ed. 91, 1 S. The Wildcroft, 201 U. S. 378, 50 L. Ed.
Ct. 41. 794, 26 S. Ct. 467, affirming 130 Fed. 521,

17. Allegation that owner personally in 65 C. C. A. 145; The C. W. Elphicke, IIT
fault. — Butler v. Boston, etc.. Steamship Fed. 279, decree affirmed in 122 Fed. 439,
Co., 130 U. S. 527, 32 L. Ed. 1017, 9 S. Ct. 58 C. C. A. 421; The Fri, 140 Fed. 123, re-
612. versed on another point in 154 Fed. 333,

18. Allegation of specific negligence. — 83 C. C. A. 205.

The John H. Starin, 191 Fed. 800. The casting of the burden of proof on



4081



LIMITATIONS OF LIABILITY.



§ 4567



Privity or Knowledge of Owner of Negligence of Servants. — The right
of a shipowner to Hmit its liabiHty for a casualty is dependent on its want of
complicity in the acts causing the disaster, and the burden of proof is there-
fore on it to show affirmatively that it had properly officered and equipped the
vessel for the contemplated service."- But the claimants in proceedings by
a steamship company to limit its liability for claims arising out of a collision
are charged with the burden of proving that the regulations promulgated by
the steamship company for the conduct of its business, which exacted com-
pliance by the captains of its vessels with the international rules, were not
promulgated in good faith, or that a willful departure from their requirements
was indulged in, and was brought home to, or was countenanced by, the com-
pany.-" Privity and knowledge of the habit of running its vessels at an im-
moderate speed in a fog can not be imputed to a steamship company so as to
defeat its right to limit its liability for claims arising out of a collision in a
fog, from the provisions of the contract for subsidy with the French govern-
ment, which requires vessels, which are only obliged to develop, under forced



one party or the other in a given case
does not destroy the presumptions in
favor of a party which exist under the
general law of evidence. So a shipowner,
claiming exemption from liability for
cargo damage under section 3 of the
Harter Act (Act Feb. 13, 1893, c. 105, 37
Stat. 445 [U. S. Comp. St., 1901, p. 2946]),
has the burden of proving the seaworthi-
ness of the vessel; but, in the absence of
evidence to the contrary, such burden is
met prima facie by the presumption that
he performed his duty in making her sea-
worthy at the commencement of the voy-
age. The Wildcroft, 130 Fed. 521, 65 C.
C. A. 145, affirmed in 26 S. Ct. 467, 201
U. S. 378, 50 L. Ed. 794.

Sufficiency of Refrigerating Apparatus.
— The burden of proof which rests upon
the shipowner to show the discharge of
his initial duty under the Harter Act (Act
Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S.
Comp. St.. 1901. p. 2946]), to use due dili-
gence to provide a refrigerating apparatus
in good order and repair, competent for
the safe transportation of a cargo of
dressed beef which he has undertaken to
carry, is not sustained by evidence of a
superficial inspection shortly, before sail-
ing, which disclosed no defect, where the
testimony also shows that the machinery
broke down very shortly after leaving
port, and after being repaired broke down
again, and during the voyage did not re-
duce the temperature sufficiently to pre-
serve the meat, and tends to show that
the proper temperature had not been pro-
duced when the cargo was received, and
that the Ijreakdown occurred in an at-
tempt to reduce it to the proper degree.
Judgment The Southwark, 108 Fed. 880,
48 C. C. A. 123. reversed in 24 S. Ct. 1,
191 U. S. 1. 48 T.. Ed. 65.

Damage by leakage from steam valves.
— Cargo stowed in a hold was damaged
on a voyage from London to New York
by steam which escaped into the hold
through valves placed in an iron box on the



deck above for use in case of fire. These
valves were located on one branch of a
steam pipe, the other branch of which led
to a winch and a windlass. The admis-
sion of steam into the main pipe was con-
trolled by a valve in the engine room,
which was closed shortly after the ship
sailed, and remained closed until she was
nearly to Xew York, when it was opened
for the purpose of testing the windlass
preparatory to its use in discharging
cargo. It was conceded that the damage
occurred thereafter. The box in which the
three fire valves were placed was locked
before the ship sailed, and it was sup-
posed that the valves were closed. The
admission of the steam to the valves in
the box was further controlled by another
valve in the branch pipe leading to them,
and after the presence of steam in the
hold was discovered such valve and two
of those in the box were found to be par-
tially open. Held, that such facts made
it incumbent on the ship, in order to es-
cape liability, to show that such valves
were properh^ and thoroughly inspected
and closed before the voyage began, and
that, in the absence of direct and credible
evidence establishing such facts, the leak-
age must be attributed to the unsea-
worthy condition of the ship in that re-
spect at the beginning of the voyage, and
she was not exempt from liability under
the Harter Act. The Manitou, 116 Fed.
60, affirmed in 127 Fed. 554, 63 C. C. A.
109.

22. Privity or knowledge of owner of
negligence of servants. — Decree, In re
A'lichigan Steamship Co., 133 Fed. 577, re-
versed in McGill V. Michigan Steamship
Co., 144 Fed. 788, 75 C. C. A. 518.

Burden of Proof of Want of Privity or
Knowledge. — See ante, "Application of
Doctrine of Res Adjudicata," § 4564.

23. Judgment, La Bourgogn^, 144 Fed.
781, 75 C. C. A. 647, affirmed in 210 U. S.
95, 52 L. Ed. 973, 28 S. Ct. 664.



§§ 4567-4569



CARRIERS.



4082



draft, on their trial, a maximum speed of 17^ knots, to maintain a mean
average annual speed of 15 knots, with a premium for exceeding that speed,
and a penalty for a failure to maintain it.-'* And privity or knowledge by a
steamship company of the fault of its servants in maintaining an excessive rate
of speed in a fog is not to be presumed from a failure to comply, in proceed-
ings to limit liability, with an order for the production of certain log books,
where the claimant made no attempt to introduce secondary evidence, and did
not ask a dismissal of the proceedings or such other action for the alleged
contumacy as the case required.-'

Time and Place of Death. — The burden rests on a claimant of damages for
a death in ])roccedings for limitation of liability to prove the time and place
of the death where such facts are material.-^'

§ 4568. Admissibility of Evidence. — Evidence Taken in Suit against
Vessel or Owner.- — If suit against the vessel or the owners has been commenced
and evidence has been taken, though no trial had, it will be in the discretion of
the court to require that such evidence shall be received and used in the
limitation proceedings. The flexibility of admiralty proceedings will enable
the court, in most cases, so to shape their course as to attain justice between
the parties.-"

§ 4569, Weight and Sufficiency. — Instances in which the evidence was
held sufficient to show that the hatches were sufficient and securely closed,-®
that a manhole joint was a good, tight joint, ^^ that the owners had actual



24. Judgment, La Bourgogne, 144 Fed.
781; 75 C. r. A. 647, affirmed in 210 U. S.
05, 52 L. Ed. 973, 28 S. Ct. 664.

25. Judgment, La Bourgogne, 144 Fed.
781. 75 C. C. A. 647. affirmed in 210 U. S.
95. 52 L. Ed. 973, 28 S. Ct. 664.

26. Time and place of death. — Thomp-
son Towing, etc.. Ass'n v. McGregor, 207
Fed. 209, 124 C. C. A. 479.

27. Reception of evidence taken in suit
against vessel or owner. — The Benefactor,
103 U. S. 239, 26 L. Ed. 351.

28. Hatches sufficient and securely
closed. — A new steel steamship, admittedly
firstclass in construction and equipment
in every other respect, can not be held
liable for damage to a cargo of wheat Iw
water, on the ground of unseaworthiness
at the beginning of the voyage, because
of the insufficiency of the hatch coverings,
under § 3 of the Harter Act (Act Feb. 13,
1893, c. 105, 27 Stat. 445 [U. S. Comp. St.,
1901, p. 2946]), where the wooden covers
were tight and well fitted, and over them
were fastened two canvas covers of No. 1
hard duck — one new, and the other nearly
so — such as were usually considered a
sufficient covering, and which were spe-
ciiically approved by the underwriter's sur-
veyor under whose inspection the loading
was done, and where shortly after sailing
the vessel encountered a three-days hur-
ricane, during which the seas broke over
her. dismantling her steering gear and
producing a general straining and leak-
age, resulting in injuries which it cost
"$14,000 to repair. Under such evidence,
the damage must be attributed to perils



of the sea. Decree 118 Fed. 85, affirmed
in The Hyades, 124 Fed. 58, 59 C. C. A.
424.

29. Manhole joint good tight joint. —

Sugar cargo stored in a hold was dam-
aged during the voyage by sea-water,
which entered from a water ballast tank
through a manhole. The ship's carpenter,
who made the manhole joint some three
weeks before the vessel was loaded, testi-
fied without contradiction that he made a
good tight joint, and that it was tested
several times before sailing by the filling
of the tank, and did not leak. The top
of the tank was some 17 feet below the
water line, and it was shown that shortly
after sailing the sea cock was opened for
the purpose of filling the tank, and negli-
gently left open for 7>4 hours, although
2 hours was sufficient to fill the tank, by
reason of which the tank was subjected
to great pressure. As to whether or not
such pressure was sufficient to cause
the packing to blow out of the manhole
joint if properly constructed there was a
conflict of testimony. Held, that it was
not incumbent on the owners to test such
joint by a pressure greater than it would
be subjected to under conditions of good
navigation, and that the evidence was not
sufficient to show that the ship was un-
seaworthy at the beginning of the voy-
age, but rather showed that the leakage
was caused by leaving the sea valve open,
which was a fault in the management of
the ship, for the consequence of which the
owners were exempted from lialiility by
§ 3 of the Harter Act (Act Feb. 13, 1893,
c. 105, 27 Stat. 445 [U. S. Comp. St., 1901,



4083



LIMITATIONS OF LIABIUTY.



4569-4573



knowledge of the illegal carriage of gasoline, etc., on the vessel,^" and an
instance in which the evidence was held insufficient to show that a port was
securely covered and closed ^i before the commencement of the voyage are
given in the footnotes.

. § 4570. Cross -Examination of Petitioner.— In a proceeding for limita-
tion of liability for claims for cargo lost, wdiere cargo owners who are not
required to allege any specific negligence of petitioner in their answers, make
a prima face case by proof of the shipment and nondelivery of their goods;
and the petitioner undertakes to excuse such nondelivery on the ground of
perils of the sea, they are entitled to cross-examine as to the seaworthiness
of the vessel, and also to offer proof on the subject. ^2

§§ 4571-4574. Decree— § 4571. In General.— Decrees of a district
court in lirnited liability proceedings in cases subject to its jurisdiction are
valid and binding in all courts and places. ^^

If the owners plead the statute, a decree may be made requiring them to
pay into court the limited amount for which they are liable, and distributing
said amount pro rata amongst the parties claiming damages. Such a proceed-
ing in a court of admiralty would be an "appropriate proceeding" under the
statute. ^^

§ 4572. Reopening Decree to Permit Other Claimants to Come in.—

Where proceedings in a court of admiralty by a shipowner for limitation of
liability have been terminated, so far as the parties before the court are con-
cerned, by a final decree, the court has no power to reopen the proceedings
for the purpose of allowing other claimants, who have not appeared therein,
to come into the case and prove their claims. If for any reason the decree
is not binding on such claimants, their remedy is by an independent suit.^^

§ 4573. Allowing Interest on Appraised Value.— In cases of limited



p. 29461). Decree, American Sugar Refin.
Co. V. Rickinson, 120 Fed. 591. reversed in
124 Fed. ISS, .59 C. C. A. 604.

30. Knowledge of illegal carriage of
gasoline. — A vessel owner held, while not
having actual knowledge of the illegal
carriage of gasoline, etc., on the vessel,
which exploded and killed and injured a
number of stevedores, and therefore en-
titled to a limitation of liability, charge-
able with such negligence in the premises
as to render it liable for the death and
injurv claims. Union Steamboat Co. v.
Chaffin, 204 Fed. 412, 122 C. C. A. 598.

31. That port security closed. — After a
vessel had been out of port only four or
five days, and had encountered no severe
weather or known accidents, both covers
of one of her ports were found to be open,
and water had entered and damaged cargo
in the compartment into which the port
opened. Neither the covers nor the sur-
roundings of the port were iniured, and
the hatches had been battened down since
the l)eginning of the voyage. Held, that
neither evidence that the vessel was in-
spected the day before sailing and the
port believed to be closed, nor even the
positive testimony of witnesses that the
covers were closed and screwed fast when
the vessel sailed, was sufficient to cstab-

4 Car— r,2



lish such fact, but that, under the rule
laid down in The Silvia, 19 S. Ct. 7, 171
U. S. 462, 43 L. Ed. 241, the condition of
the port did not render the vessel unsea-
worthy, and the failure to close it before
the injury was received by the cargo was
a fault or error in the management of the
vessel during the voyage, for which the



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