THE SAN RAFAEL. THE SAUSALITO. In re NORTH PAC. COAST R. CO. NORTH PAC. COAST R. CO. v. HALL et al. (two cases). NORTH SHORE R. CO. v. McCUE., 141 F. 270

ROSS, Circuit Judge, after making the foregoing statement of the cases, delivered the opinion of the court. It is well settled, said the Supreme Court in Irvine v. The Hesper, 122 U. S. 256, 266, 7 Sup. Ct. 1177, 30 L. Ed. 1175, “that an appeal in admiralty from the District Court to the Circuit Court vacates altogether the decree of the District Court, and that the case is tried de novo in the Circuit Court. Yeaton v. United States, 5 Cranch, 281, 3 L. Ed. 101; Anonymous, 1 Gall. 22, Fed. Cas. No. 444; The Roarer, 1 Blatchf. 1, Fed. Cas. No. 11,876; The Saratoga v. 438 Bales of Cotton, 1 Woods, 75, Fed. Cas.

No. 12,356; The Lucille, 19 Wall. 73, 22 L. Ed. 64; The Charles Morgan, 115 U. S. 69, 75, 5 Sup. Ct. 1172, 29 L. Ed. 316. We do not think that the fact that the claimants did not appeal from the decree of the District Court alters the rule. When the libel-ants appealed, they did so in view of the rule, and took the risk of the result of a trial of the case de novo.

The whole case was opened by their appeal, as much as it would have been if both parties had appealed, or if the appeal had been taken only by the claimants.” The same rule applies here, since this court now has the jurisdiction of appeals in admiralty from the District Court that formerly appertained to the Circuit Court. The Sirius, 54 Fed. 188, 194, 4 C. C. A. 273. The whole of the cases in hand, therefore, were opened by the appeals taken by the petitioner and claimants.

It is unimportant that no appeal was taken by McCue, or by the guardian of the widow and children of Alexander Hall, and we must make such disposition of the cases as the records before us show to be proper. First, then, as to the petition filed by the North Pacific Coast Railroad Company for the limitation of its liability, in the event any should be found to exist. McCue set up in defense of that proceeding, that the' collision that inflicted the injuries upon him was caused by negligence on the part of each of the steamers San Rafael and Sausalito; and the court below so found from the evidence.

Yet that court overruled the point thus made on behalf of McCue, holding then, as later upon the trial, that as the steamer Sausalito was not mentioned in the petition, the petitioner was entitled to a limitation of its liability in respect to the steamer that was mentioned therein, namely, the San Rafael.

In this there was clear error, for, as said by the appellant’s own proctor: “The purpose of the limitation proceeding was to limit the liability of the North Pacific Coast Railroad Company—alleged by libelant to be the owner of both steamers—as to any and all of its liabilities resulting from a collision between the steamers San Rafael and Sausalito.” And it is for that very reason that it is a condition precedent to the granting of such relief that the party seeking it surrender each and every vessel participating in the tort.

It was so distinctly adjudged by this court in the case of The Columbia, 73 Fed. 226, 19 C. C. A. 436. And if it be true, as the court below held, that the evidence shows the fact to be that the collision in question was caused by negligence on the part of each of the steamers, it follows, as a matter of course, that the petition should be denied and dismissed; from which it must further follow that there can be no bar or limitation to whatever rights the libelants may have, by reason of those proceedings, or of any judgment entered therein. All parties concede that there was fault on the part of the San Rafael.

And in respect to the question of negligence on the part of the Sausalito, we agree with what was said by the court below in one of its opinions, to wit: “The facts relating to the collision between the San Rafael and Sausalito, and which the libelant insists show negligence upon the part of the servants of the defendant, in the navigation of both steamers, may be very briefly stated: The San Rafael left San Francisco for Sausalito about the hour of 6:15, on the evening of November 30, 1901, and the Sausalito left the town of Sausalito for San Francisco at about the same time.

The night was dark, and the fog very thick. Just after passing Alcatraz Island, the master of the Sausalito heard the fog whistle of the San Rafael, from y¿ to 1 point off his port bow, and shortly thereafter the San Rafael sounded two whistles, indicating that she was going to port. The Sausalito answered with two whistles, and the wheel of the Sausalito was immediately put hard astarboard, for the purpose of changing her course to port.

The master of the Sausalito testified in substance that he knew the San Rafael was in error in giving the passing signal to port, and that, after answering the same, he at once gave orders to his engineer to stop, and back his vessel, and, at the same time, gave three blasts of his whistle to notify the other steamer that his engines were reversed.

The engines of the San Rafael were also reversed about the same time, and within a very short time thereafter, not more than 2 minutes, the collision occurred, the bow of the Sausalito striking the San Rafael an angling blow on her starboard side, and injuring her to such an extent that she sank in 20 minutes, and became a total loss. The evidence also shows that, just prior to the collision, the Sausalito had swung to port one point.

There was a strong ebb tide pressing against the side of the San Rafael at the time, and the defendant claims that the Sausalito was not under headway, and the collision was caused solely by the drifting of the San Rafael upon the Sausalito. In the view I take of the case, it is not necessary to determine whether this claim is sustained'by the evidence or not. My conclusion from all of the evidence is that the collision was caused by the mutual fault of the steamers, in attempting to cross courses in a dense fog, when neither could see the other in time to avoid a collision.

It is true the first error was committed by the San Rafael, but it was certainly an error upon the part of the Sausalito to assent to the San Rafael’s proposed change of course, and to starboard her wheel for the purpose of passing to port; and the evidence does not satisfy me that the effect of this error was rendered harmless by the subsequent action of the Sausalito, in stopping and reversing her engines.

She had swung to port one point, and her wheel was still hard astarboard at the time of the collision; and in my opinion, in thus changing her course, she contributed to the cause of the collision.” It results, from what has been said, that neither the libel of McCue against the steamer Sausalito, nor that of Cassidy, as guardian of the widow and children of Alexander Hall, against the North Pacific Coast Railroad Company, can be in any way affected by the limitation proceedings, nor by any judgment entered therein.

There remain for consideration and determination, in respect to the libel brought on behalf of the widow and children of Alexander Hall, only the questions of the sufficiency of the evidence to show that the latter lost his life by reason of the collision, while a passenger on board the steamer San Rafael, whether the sum of $5,000 awarded by the court below was a just compensation for such loss, and the propriety of the distribution of that award made by the court below between the widow and children.

In respect to the libel brought by McCue against the steamer Sausalito, there remain for consideration and determination:

(1) The point made on behalf of the claimant of the steamer to the effect that the court below erred in allowing the libelant to so amend his libel as to proceed against that steamer alone; (2) that it erred in not holding McCue’s cause of action barred by the provisions of

section 813 of the Code of Civil Procedure of California, and by the laches of the libelant; and (3) the question of the amount of damages to which the libelant McCue is justly entitled. As regards Alexander Hall, it is true that there is no direct and positive evidence that he lost his life by reason of the collision in question, nor that he was a passenger on the San Rafael at the time. The case, in that respect, rests upon certain facts and circumstances from which the court below drew the inference that he was such passenger, and went down with that vessel.

The evidence shows that Hall resided near Sacramento with his family of seven minor children, the oldest of whom was then but 17, and the youngest but 3 years of age. His wife was insane, and was then confined in a sanitarium at Livermore. A brother of hers, the guardian ad litem here, was residing at San Rafael. The oldest child, a boy then about 17 years of age, and about 20 at the time of the trial, when asked about his father’s habits, testified: “He was a good father, as far as he treated all of us children. He was always home with us.

We were without a mother, and he was always at home, treated us well, and was always with us. He was not a man of bad habits, staying out, or nothing lilce that—always affectionate to his family.” There is nothing to the contrary in any of the testimony.

It appears that on November 30, 1901 (the day of the accident), Alexander Hall left Sacramento for the purpose of first going to San Rafael, to spend the night with his brother-in-law, Cassidy, and of going the next day to Livermore, to see his unfortunate wife—having taken care to see that the train on which he left Sacramento was scheduled to connect with the Oakland boat that would bring him to San Francisco in time to take the 6:20 boat to San Rafael.

There is testimony to the effect that, before leaving Sacramento, Hall stated, not only to his son Robert, but to an acquaintance, Hallorn, whom he had known for many years, that he was going to San Rafael that night to see his brother-in-law, and the next morning to Livermore to see his wife.

From Sacramento to Oakland he rode in the same seat with another acquaintance by the name of Kenny, to whom he told the same thing, and when the train reached the Oakland Mole, which it appears that it did a little after 5 p. m., Hall and Kenny went together upon the ferry steamer Berkeley, bound for San Francisco, but it was so foggy that Kenny concluded to get off, that witness saying: “It being so foggy, I got off the boat and got to the cars as fast as I¡ could, and got on the cars; and just as I got off, the boat pulled away, to make the trip to San Francisco.” The witness, being further asked if he saw Hall go aboard the Berkeley, answered: “Yes, sir; I shook hands with him.

I said, ‘Sandy, I will not go along; It is too foggy,’ and I got off, just as the boys got the rope off.” This was in ample time for Hall to have reached San Francisco and taken the steamer San Rafael on her 6 :20 trip, which was the fatal one. By several witnesses, Hall was described as being from 5 feet 10j/2 inches to 6 feet tall, stoop-shouldered, with sandy complexion, and a heavy sandy mustache. Hallorn testified that he wore “a black soft hat, with'a brown overcoat, tending to be turning a little bit white; that is, the material was brown, but it had faded, and was turning white.

It was an overcoat that I had known him to have for three or four years.” On the trial, it was admitted that Judge Lennon, of the superior court of Marin county, would, if present, testify that he “was on the San Rafael at the time of this collision; that he was in the restaurant just immediately preceding the collision, where he saw Mr.

McCue, and at another table were sitting two gentlemen, one of whom was quite a tall man, with a soft Stetson hat, sandy complected, with a sandy mustache, and, to the best of his recollection, a light appearing overcoat.” McCue testified that he saw two men sitting in the restaurant on, the boat, “over at this counter near the stove—near the cook’s range,” and that “one of whom was a tall man, sandy complected; the other appeared to be a stout-built man.” Being asked to state the position of these men “as to their ability to get out of there after the accident,” the witness answered: “From the way the boat laid on the other boat, there was only one place for them.

If they were not knocked out in front of the boat when the accident occurred, they must have been under the boat.” The evidence shows that Hall has never been seen or heard of or from since the accident, and. although at the time of the trial seven years had not elapsed, but only about three—from which fact no presumption of his death could be indulged in, but on the contrary, the presumption that he was still alive—yet, “if it appears in evidence that the absent person, within the seven years, encountered some specific peril, or within that period came within the range of some impending or immediate danger, which might reasonably be expected to destroy life, the court or jury may infer that life ceased before the expiration of the seven years.” Davie v.

Briggs, 97 U. S. 628, 634, 24 L. Ed. 1086. The question is one of fact to be determined on all relevant facts and circumstances disclosed by the evidence, and the inference of death may arise from disappearance under circumstances inconsistent with a continuation of life. Fidelity Mutual Life Ass’n v. Mettler, 185 U. S. 308, 22 Sup. Ct. 662, 46 L. Ed. 922, which case will be found an instructive one on the subject.

It is certainly highly inconsistent with the continuation of the life of Alexander Hall that he should have suddenly deserted, and thereafter kept in utter ignorance of his existence, his family of minor children, all of whom were dependent upon him, and to whom, the evidence shows, without conflict, he had been habitually kind and affectionate. He was, according to the evidence, a man of good habits, staying closely at home, and not only looking carefully after the welfare of his young and dependent children, but also after the needs of his unfortunate wife.

The sudden and continued disappearance of such a man, under such circumstances, is entirely inconsistent with the continuation of his life; and the inference of his death therefrom is greatly strengthened by the facts that he left his home with the declared intention of going to San Rafael to spend the night with his brother-in-law. on his way to see his wife; that, when last identified, he was carrying out that intention by going from Sacramento to the Oakland Mole and there getting on the ferryboat bound for San Francisco, in ample time to have taken the steamer San Rafael for the city of San Rafael on her fatal trip; and by the further fact that a man answering his description quite closely was seen on board that steamer just prior to the collision, and was never seen at any time after she sank.

We are of the opinion that the court below was right in its conclusion that Alexander Hall was a passenger on the steamer San Rafael, and met his death by reason of the collision between her and the steamer Sausalito. To do so is not, as contended by the proctor for the appellant, basing presumption upon presumption, but it is the drawing of the proper and logical inference from all the facts and circumstances disclosed by the evidence in the case.

The objections on the part of the appellant to the declarations of Hall in respect to his intention to go to San Rafael, are not well taken. “Whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that intention would be.

After his death there can hardly be any other way of proving it.” Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706. See, also, Insurance Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437; Shailer v. Bumstead, 99 Mass. 120. We therefore not only think that the court below was right in awarding the libelant Cassidy, as guardian, judgment for the death of Alexander Hall, but are of the opinion that the amount of damages allowed by the court below therefor—$5,000—is too small.

That amount should and must be increased to $7,500, which sum should, in view of the circumstances and condition of the widow, and the condition and ages of the children, be, in our opinion, distributed as follows: To the widow7, Catherine Hall, $2,500; to Robert A. Hall, $419; to Maggie J. Hall, $503; to Mary C. Hall, $588; to Lillie A. Hall, $672; to Alexander M. Hall, $789; to Teresa R. Hall, $926; and to Cecelia L. Hall, $1,103. There is no merit in the suggestion that the court below erred in allowing the libelant McCue to so amend his libel as to proceed against the steamer Sausalito alone. Newell v.

Norton, 70 U. S. 257, 18 L. Ed. 271; The Mabey, 77 U. S. 420, 19 L. Ed. 963; O’Connell v. 1002 Bales of Hemp (D. C.) 75 Fed. 408; Benedict’s Admiralty (3d Ed.) §§ 483-485, 488. Nor is there any merit in the point that the court erred in not holding McCue’s libel barred by the provisions of

section 813 of the Code of Civil Procedure of California, and by laches.

Section 813 of the California Code of Procedure declares that “all steamers, vessels, and boats are liable” for certain specified services) supplies, etc., and “(5) for nonperformance or malperformance of any contract for the transportation of persons or property between places within this state, made by their respective owners, masters, agents, or consignees; (6) for injuries committed by them to persons or property in this state,” and further declares that “demands for these several causes constitute liens upon all steamers, vessels, and boats, and have priority in their order herein enumerated, and have preference over all other demands; but such liens only continue in force for the period of one year from the time the cause of action accrued.” Courts of admiralty do not get their jurisdiction from state statutes.

Roach v. Chapman, 63 U. S. 129, 16 L. Ed. 291; 19 Am. & Eng. Enc. Law, p. 1084. That state Legislatures cannot restrict or extend the admiralty jurisdiction exclusively vested in the federal courts, said the court in the case of The H. E. Willard (D. C.) 53 Fed. 600, “has been often decided and conclusively settled. * * * It follows, necessarily, that a lien given by a state statute is not the test of jurisdiction.

If it were, a state Legislature might at pleasure modify the jurisdiction of the courts of admiralty by creating or abrogating liens not given by the maritime law.” The lien sought to be enforced in the present case is one given by the general maritime law, and is within the exclusive jurisdiction of the federal court, and to be governed by the rules and principles here applicable. The Moses Taylor, 71 U. S. 411, 18 L. Ed. 397. It is true that when there is nothing exceptional in the case, courts of admiralty govern themselves by the analogies of common-law limitation. The Queen (D. C.) 78 Fed. 155.

In the present case, the injury out of which the lien sought to be enforced arose did not accrue until November 30, 1901, and McCue’s libel was filed January 21, 1903—with-in two years thereafter. If, therefore, by way of analogy, we look to the California statute, we find a period of two years there prescribed within which an action for damages for such injuries as were suffered by the libelant may be brought. Code Civ. Proc. Cal. § 339. But the case shows that McCue was prompt in bringing suit for the damages sustained by him.

Before the filing of the petition by the North Pacific Coast Ráilroad Company in the court below for the limitation of its liability, he had commenced two suits in the courts of the state to recover such damages—one for the personal injuries sustained by him, and the other for the loss of his property. Indeed, the existence of those suits was made the basis, in part, of the petitioner’s application for the limitation of its liability; and the prosecution of those suits in the state courts was stayed by the court below by process issued in those proceedings.

And in those proceedings McCue was also prompt to assert his claim for the damages sustained by him. There is, therefore, no just ground for the assertion of laches against this libelant. Equally without merit is the suggestion that the enforcement of the lien against the steamer Sausalito would work a wrong upon an innocent purchaser. In the first place, the lien for a maritime tort, according to the maritime law, accompanies the vessel into the hands of even a bona fide purchaser. Vandewater v. Mills, 60 U. S. 89, 15 L. Ed. 554; The Rock Island Bridge, 73 U. S. 215, 18 L. Ed. 753; The Avon, Fed. Cas.

No. 680; Bruce v. The American, Fed. Cas. No. 2,046; 19 Am. & Eng. Enc. Raw, pp. 1082-1117. In the next place, the claimant North Shore Railroad Company was not an innocent purchaser of the steamer Sausalito, for the record shows it purchased during the pendency of the limited liability proceedings, which proceedings disclose the libel-ant’s demands. The court below allowed the libelant McCue the sum of $1,500 only for the damages sustained by him.

The case shows that he lost $400 in money, a suit of clothes estimated by him to be of the value of $50, a watch valued at $20, and that he paid $30 for medical attendance;' so that the court below awarded him only $1,000 for his personal injuries. We are of the opinion that such allowance was altogether too low. It is not denied that one of his arms was broken, one of his hands mutilated and partially disabled, and that a part of one of his ears was cut off. He also testified that he was rendered permanently deaf in one ear by reason of the collision, and that he suffered other serious personal injury.

Considering all of the facts and circumstances of the case, including the age of the libelant, we are of the opinion that his damages should be, and hereby are, fixed at the aggregate sum of $5,000.

It results from what has been said that in case No. 1,175 the judgment must be and hereby is reversed, and the cause remanded, with directions to the court below to dismiss the petition at the petitioner’s cost; case No. 1,176 is remanded, with directions to the court below to so modify the decree therein as to award the libelant McCue damages in the sum of $5,000 and costs, and to strike from the decree the provision that the same may be satisfied upon the payment of any less sum than the full amount so awarded; and case No. 1,177 is remanded, with directions to the court below to so modify the decree therein as to award the libelant Cassidy, as guardian ad litem of the widow and children of Alexander Hall, damages in the sum of $7,500 and costs, apportioned as hereinbefore indicated, and to strike from the decree the provision that the same may be satisfied, upon the payment of any less sum than the full amount so awarded.