QUINLAN v. PEW et al., 56 F. 111

PUTNAM, Circuit Judge. The proceedings in the district court for limiting the liability of the owners of the vessel concerned in this case were based entirely on the claim of Patrick Quinlan, the appellant, who had brought a suit at common law against them for a personal injury alleged to have been caused by a defective dead-eye. While the statute touching this matter does not permit any court of common law to question the proceedings in the district court, the whole record is open to re-examination in this court in all particulars.

The appellant maintains that the case does not meet the requirement of the statute covered by the words “without the privity or knowledge of such owner or owners.” If the owners are not entitled to limitation of liability as against Quinlan, then, inasmuch as the only claim appearing is his, and the proceedings in the district court rest exclusively on it, they must be reversed. We understand that the expressions in Butler v. Steamship Co., 130 U. S. 527, 552, 9 Sup. Ct.

Rep. 612, are not inconsistent with this proposition, and that they merely hold that' a district court has jurisdiction to entertain a cause of limited liability for the very purpose of examining whether or not the misfortune was without the privity or knowledge of the owners. It seems to us that, if the district court finds they are not entitled to the benefit of the statute, it has no power to bar the claimant from any portion of his demand, and, especially when there is no other apparent claim, the proceedings must be dismissed, to enable him to prosecute the owners in such tribunal as he may justly elect.

This conclusion is recognized by admiralty rule 54, providing that owners claiming a limitation of liability may file a libel or petition setting forth the facts and circumstances on which such limitation is claimed. Although the rule does not specifically provide for maintaining the allegations of the petition, and passes at once to another subject-matter, yet it follows, as a matter of course, that what must be alleged must be proved.

This is emphasized also in' role 56, repeating the language cited from rule 54, and providing in terms that the persons claiming damages may answer the libel or petition, and contest ihe right of the owners, either to an exemption from liability or vo a limitation, or both. Touching the matter of “privity or knowledge,” we are not ¡shown that; the precise question involved here has ever been settled by the supreme court. Prom ihe standpoint of the appellant, the cause of his injury was a structural defect, existing when the vessel sailed from her home port on a new voyage.

The alleged defect would have been discovered on an extremely careful scrutiny of the vessel and her top hamper, although quite likely to be overlooked on an ordinary examination. It also appears that all the owners lived in the home port»

The propositions of law which ¡lie appellant buses on these facts, are that under these circumstances the risk was on ihe owners to completely examine the vessel, and put her in orden for sea, and that., failing this, they are chargeable with privity or knowledge, — not actual, but with that presumed privit.v or knowledge which for many purposes take ihe place of the actual, it will at once be seen that, in the eyes of the law, the conditions may he different from what they are in the case's ordinarily before the court s, wherein the injury comes from something supervening after Ihe voyage has begun, or irons something arising from an omission io properly repair or fit a shirs between her arrival at, and departure from, a 'port; where the owner does not reside.

At. such, üines it is not, expected the owner will be personally present, and the law permits him io act through his agent, who, when the ship is at sea, is she master, or, when in a. disiant harbor, is cither ¡he master, or some other suitable per.'.on designated to perform the duties ordinarily incumbent on himself in a home port.

It has been held that under some circumstances the owner may be liable to mariners for faults of the master at sea, — a proposition •which we do not now ibid it necessary to consider; yet, even if he were, such liability would be limited by the statute, as was serried by ¡he ¡supreme court in ihe opinions which we will hereafter cite. It can hardly be doubted that, alike in the case of a «hip at; sea and in that of one in a distant ■port, the statute applies, provided Ihe owner has used reasonable care in selecting his master, consignee, or oilier agent.

It is set Med that the srafuie limbing liability applies to cases ’of personal injury. Butler v. Steamship Co., 130 U. S. 527, 9 Sup. Ct. Rep. 612, and Craig v. Insurance Co., 141 U. S. 638, 12 Sup. Ct. Rep. 97. It was also settled in those cases that Ihe owner is not deprived of ihe benefit of the statute by reason of the privity or knowledge of the master. Also, in Providence & New York Steamship Co. v. Hill Manuf'g Co., 109 U. S. 578, 602, 3 Sup. Ct.

Rep. 379, 617, attention is called io (he <1 is fine lion in' the expressions used in the first .and third sections of the original act of 1851, limiting 'liability of owners of vessels, in that (he first; section, in case of lire, relieves the owner only when he is free from “design or neglect.” The opinion observes that when the OAvners may not he able, under the first section,- to show absence of neglect, they may be very confident of Elbowing, under tbe third section, absence of privity or knowledge.

Apparently the supreme court understood that privity or knowledge may be less than neglect, and that therefore it does not always follow that owners are chargeable with privity or knowledge, even if legally chargeable with the other. There is ground for maintaining from this expression that the owners in the case at bar might be entitled to the benefit of the statute, although they had been somewhat personally negligent with reference to fitting the vessel for sea; but we are not required to pass on this precise proposition.

The expressions found in the opinions of other courts are mainly dicta, and are in no event of sufficient authority to guide us, except only the conclusions in The Warkworth, 9 Prob. Div. 20, 145. It appears from the statement of this case (page 146) that the cause of injury was a structural defect, occurring through the negligence of persons on shore employed by the owners of the vessel to superintend putting her machinery in order.

Whether or not this was at the home port is not stated, but it appears (page 20) that there was a periodical inspection of the machinery every six months, which was presumably at that port. Certainly, neither the divisional court nor the court of appeal deemed it necessary to distinguish the case on that account.

However, the various opinions in that suit, which are very high authority, establish the proposition that owners may, under some circumstances, receive the benefit of the statute limitation as against the negligence of their agents to properly inspect the ship when in port, or to prepare her for sea, as they may for the negligence of the master in navigating her. Under the British statute (25 & 26 Viet. c. 63, § 54) it was necessary for the owners of this ship to meet two conditions in order to obtain the benefit of the limitation.

One was that the defect was “without their actual fault or privity,” and the other arose from the term, “improper navigation.” The former words, the probate division said, show an intention to relieve the shipowner when damage has been caused by the fault of his servants, and he himself has not been in any way to blame. No notice was taken of this in the court of appeal, but there such was assumed to be the law, as the discussion in that court related entirely to the words “improper navigation,” and the decision was in favor of the limitation.

This case is summarized in Marsden’s Collisions at Sea, (3d Ed., p. 172,) as follows: “The effect of the words is to protect the shipowner, not only as against the legal consequences of negligence in his servants or agents, hut also from any imperfections in his ship which cause collision.” That in the case at bar the owners had no knowledge of the existence of the alleged defect is stated by the commissioner, and reaffirmed by the district court, and there are no facts in the record which will enable this court to find otherwise. Therefore this word drops out from our further consideration.

The word “privity” is evidently not used in the statute under consideration in any technical sense, especially in any of the technical senses of the common law. Therefore we find in the law dictionaries no definition of it which aids us in the pending case. The word “privy,” which undoubtedly is the root of the common word “privity,” is defined by Bouvier as follows: “Privy.

One who is a partaker, or has any part or interest, in any action, matter, or thing.” The ordinary sense of the word “partaker” implies activity; and, clearly, the owners in this case were not in that sense partakers in the cause of the appellant’s misfortune. The remaining portions of Bouvier’s definition are so general and indefinite as to require us to look further. The Century Dictionary, after giving several

definitions of the word “privity’' not pertinent here, contains the following: “

(5) Private knowledge; joint .knowledge with another of a private concern, which is often supposed to imply consent or concurrence.” As illustrating this,.the dictionary cites the following sentence: “This marriage brought upon Garcilasso, in consequence of his privity, the displeasure of the emperor.” We believe this correctly expresses the meaning of the word as used in this statute. Webster’s International Dictionary, among other

definitions of this word., gives the following: “

(2) Private knowledge; joint knowledge with another of a private concern; cognizance implying consent or concurrence,” — and illustrates by a quotation from Swift: “All the doors were laid open for his departure, not without the privity of the Prince of Orange.” The basis of the word is said to be the French “privante,” which this dictionary makes the equivalent of extreme familiarity. Worcester’s Dictionary is to the same effect. No one can read these

definitions of privity without understanding that its ordinary use implies knowledge and something more, and in no event anything less. They convey the idea of a private or other special or particular knowledge, or of such cognizance as implies active consent or concurrence. We therefore conclude that the word “privity,” as found in this statute, includes at least as much as the word “knowledge;” but we of course do not overlook the fact that there is in law imputed knowledge, and therefore there may he imputed privity.

Each of these arises where the owners give an order for the doing of a particular thing in a particular way, and assume that it is done, or do not inquire whether or not it is afterwards accomplished. Under such circumstances the word “privity” is even more pertinent than “knowledge,” because, while the conduct of the owners would in law impute knowledge, they would also actively partake. Each is also imputed to those who refuse to see, or who are guilty of perverseness, or of such crass negligence as amounts to it.

We have seen that the supreme court holds that the owners are not chargeable as with privity or knowledge for the acts or defaults of a properly selected master, while the ship is at sea; and that, in the view of the courts of probate division and of appeal, they are not ordinarily so chargeable for the doings or omissions of an agent in port, — certainly, at a port which is not tlie Rome of the owners.

We are also constrained to the belief that this statute, which the supreme court directs shall be interpreted broadly, has regard for the usual necessities of the occupations of life, and in that respect intends that owners may avail themselves of the proper facilities common to business men, and be relieved, so far as it is concerned, whenever and so far as they ■ have appointed a suitable representative, be he master, consignee, or other agent, to supervise the ship, either at sea or at the home port, or otherwise, and either for fitting her away, or navigating her after she is so fitted away.

The law, for the purposes of this case, cannot make, a distinction between the owner who has but one vessel, and time and opportunity to give it his personal attention, and the owner who has many vessels, or whose necessities call him long distances from his residence, or whose infirmities, sickness, inexperience, or sex renders him or her incapable of attention to affairs of this nature.

Therefore we establish uniformity of application of the law, and fulfill the spirit of the expressions of the supreme court to which we have referred, when we hold that, even if the owner is chargeable under the statute with privity or knowledge, who permits a ship to sail from the home port without making provision for inspection or proper fitting away, yet he may rest his duty upon any suitable agent, and, when be has done this, he may be relieved under the statute, although the agent may be negligent in some particulars.' Whether, where the owner undertakes personally to do this duty, he is to be charged for the lack of the extremest care possible, or takes the hazard of overlooking some things which the utmost scrutiny might discover, or whether, acting with ordinary good faith, he will be relieved, provided the defect in question did not come to his attention, we are not now required, to determine.

The commissioner found that he was not able to report positively -whether the owners in this case examined the vessel to ascertain what repairs were needed. It is not clear from this whether he had reference only to personal examination by the owners, or intended to include that by the master. There is enough here, however, to suggest a question of the burden of proof.

While perhaps, in the admiralty courts, this question does not take the sharp form which it does at common law, still the underlying principles touching, it are'recognized; and as, in this case, the owners were obliged to allege, in order to maintain the privilege of limitation, that they Were without privity or knowledge, and as this proposition is one peculiarly within their own cognizance, a certain burden rests on them. 1 Gfreenl. Ev. §§ 78-80, and 3 Greenl. Ev. § 401.

It is true that the-admiralty courts will administer this rule with large regard-to the convenience of proof, as is-apparent from passages in Butler v. Steamship Co., 130 U. S. 527, 554, 555, 9 Sup. Ct. Rep. 612, indicating presumptions in favor of the owners on various propositions touching this particular expression of the statute.

Were lilis a caso of generally -worn-out sails or top gear, the burden would plainly rest on the owners to show, by very strong evidence, that it was without their privity or knowledge; but relating, as it does, wholly to a matter very likely to escape attention on a fairly good inspection of the vessel, very slight evidence is sufficient at the outset to cover this negative allegation.

The case shows that the master received a compensation for looking after the vessel, and was aboard her long enough before she sailed to notice this defective dead-eye, and to have informed the owners of it in season for repair, had he desired so to do.

The court below expressly finds that the owners were not guilty of any failure of duty in not discovering the defect, and had no knowledge of it; and the brief for ¡he appellant in one place admits that the duty of supplying a vessel according to (he contract was delegated to the master, and continues as follows: “'In so far as lio represented the owners in looking after the vessel, and seeing that she va?, in proper eondiiion before putting to hoc, he acted in tlic capacity of vico principal, and was not a fellow servant of the appellant.” We cite this for the purpose of covering the fact in question, and not of rediscussing what the sentence claims with reference to the law.

On (his branch of the case we therefore hold that there is sufficient to meet (he requirements of the statute, that the owners of the vessel were without privity or knowledge of the defect in question. It is also claimed by the appellant that, the statute does not apply, because, on the basis of (he owners’ position, they had let the vessel in such way 1 hat Ike charterers became the owners pro hac vice, and so only ¡lie la tier could apply for its protection. A literal construe ¡ion of the stalme musí, gire way to good cense.

It would be at odds with iis main pin pose to exclude the general owners from the benefits of so useful a law. Hoiwii ¡islanding the charter, the general owners may Tie liable to serious consequences, arising out of ike charter itself and the implied warranty which it contains, and may need to be proieefed. It would be an unjust application of (his statute to eject the owners from the admiralty courts on the ground that they had let the vessel, and allow a jury to charge them with personal liability on a finding that they had not.

The proiision on -which the appellant relies is one of Inclusion, and not of exclusion. Heiiher can the proposition of the appellant he maintained, Unit (he statute does not apply, because there was in this case a personal contract on the part of the owners, either express or in the form of an implied warranty, that the vessel was seaworthy.

In nearly all the instances which the statute expressly enumerates as those to which the limitation of liability applies, there is necessarily an implied warranty, and frequently an express agreement in the form of a bill of lading; so that, if the contention of the complainant is correct, the wings of the statute would be effectually clipped.

That there may be certain contracts, relating not so much to the navigation of the ship as to fitting her for sea, by which the owners charge personally their own credit, and which do not come within the statute, may be well contended, without at all touching the principles here involved. The appellant also objects that it appears from the proceedings that the claim of Quinlan is the only outstanding one against the vessel, or owners as owners, and that this fact brings the case within The Rosa, 53 Fed. Rep. 132, where it was held that the statute limiting liability does not apply under such circumstances.

As already said, the state of the record is as claimed by the appellant; yet this court cannot accept the rule laid down in The Rosa. The statute right to surrender the vessel to a trustee appointed by any court of competent jurisdiction, which in maritime matters necessarily includes the admiralty courts, and to be thus relieved from liability, is protected both by the letter of the statute and by its reason, whether there are numerous claims outstanding or but one; and the right to have the vessel appraised under admiralty rule 54 is necessarily coextensive with the right to surrender.

Indeed, under admiralty rule 56, the owners may bring the entire contest into the admiralty court, even though they'finally establish a contention that there are no valid claims whatever. The rule in The Rosa is quite impracticable, as it is frequently impossible for the owners of vessels navigating foreign seas, remote from their personal control, to be assured as to the extent to which they may be subject to liens and claims of various kinds.

The original act of 1851 (section 4) uses both the plural and singular; and there is no such change found in the Revised Statutes as would justify the court in holding that congress intended any substantial innovation. Indeed the Revised Statutes (section 4285) use both the plural, “claimants,” and the singular, “person,” thus bringing forward the plural and singular of the original act. The statute was intended for the encouragement of commerce, and would not receive its full effect, to the extent given bv the supreme court in Providence & New York Steamship Co. v. Hill Manuf'g Co., 109 U.

S. 578, 588, 589, 3 Sup. Ct. Rep. 379, 617, if the owner of a vessel or wreck, under the circumstance of there being but a single claim outstanding, large enough to absorb the entire vessel or her salvage, could be compelled, on the verdict of a jury, to pay perhaps vastly more than her real value, or be forced to the trouble and expense of litigating any issue of that character. The appellant treats the jurisdiction to be exercised under the statute as though governed exclusively by the principles applicable to courts of equity.

But with these neither the statute nor the proceedings under it, so far as concerns the admiralty courts, have any relation, except merely incidentally, whenever it happens that the claims are in excess of the value of the vessel or her salvage. In that event the rules of equity procedure come in, not for the purpose of determining the jurisdiction of the court, but only as they relate to proceedings in bankruptcy, or any other proceedings, when marshaling of assets becomes incidentally necessary.

Therefore we hold that the owners of this vessel are entitled to a decree limiting their liability, so that the district court had jurisdiction to adjudicate ilie merits of the appellant’s claim.

On this latter branch of the case, while perhaps it could be justly maintained that injuries arising to seamen under the exact circumstances of the case at bar are the ordinary incidents of the voyage, which the seaman assumes when he ships, and cannot form the basis of an action, yet, without discussing that proposition, or conceding that the decree of the district court might not be affirmed on that ground alone, we leave the case where the learned judge of that court left it. The commissioner found that the vessel was under charter to the master and sharesmen, of whom the appellant, Quinlan, was one.

The words used by the commissioner in this particular, “lease, let, or charter,” were not merely formal, but were intended to cover an actual transaction, by which the charterers became the owners pro hae vice, as is clear from the fact that the commissioner after-wards said that the owners reserved the right “to retake possession of the vessel at any time.” It is possible, and indeed probable, that there are many things in the agreement between the owners and the master and shares-men set out in detail by the commissioner, which would suggest that the commissioner might well have found otherwise than he did; hut as his conclusions of fact were not challenged in the court below, nor in the only method in which they properly could he, they cannot be reviewed here.

The defective dead-eye, of which complaint was made, was known to the captain before the vessel sailed, and in time to notify the owners in season to have had the same repaired," so that, as the captain voluntarily sailed under these circumstances, it is clear that he waived whatever rights he otherwise would have had, if any, on account of this defect. As the sharesmen were joint charterers with him, they were, at least so far as concerns the matter here involved, in no better position than he.

The appellant has cited many cases in which it was plainly the view of the courts that the sharesmen were not cocharterers; but by the findings of the commissioner this case is sui generis, and perhaps wholly exceptional. So, also, the discussion touching questions of partnership are not in point, as the relations of the shares-men and the master were not of that character in any view of the case. The defect being in fact known to the master, it is not important whether the general obligations of the owners to mariners are governed by the rules of express warranty, implied warranty, or only reasonable care.

Neither need we discuss propositions based on the claim that the master was negligent in ordering the appellant forward to put on the preventer, as there is no finding to that effect by the commissioner, and the proofs laid before him are not in the record. And, in conclusion, the results reached by us render it unnecessary to consider whether the appellant had knowledge of the alleged defect, or should have had knowledge of it, or whether it constituted unseaworthiness, or to consider any other question which has been suggested.

The decree of the district court is to. be amended by adding that petitioners, namely, the owners of the schooner Essex, and the said vessel and her proceeds, are forever exempt from any liability for or on account of the claim of said Patrick Quinlan, in every form of proceeding and in every jurisdiction, and that such claim is held invalid and is disallowed; and the decree, when thus amended, is affirmed, but without costs in either court for either party.