§ 594. Court where petition for limitation of liability may be filed. "The said libel or petition shall be filed and the said proceedings had in any District Court of the United States in which said ship or vessel may be libeled to answer for any such embezzlement, loss, destruction, damage or injury; or, if the said ship or vessel be not libeled, then in the District Court for any district in which the said owner or owners may be sued in that behalf; when the said ship or vessel has not been libeled to answer the matters aforesaid, and suit has not been commenced against the said owner or owners, or has been com. menced in a district other than that in which the said ship or vessel may be, the said proceedings may be had in the District Court of the district in which the said ship or vessel may be, and where it may be subject to the control of such court for the purposes of the case as hereinbefore provided. If the ship shall have already been libeled or sold, the proceeds shall represent the same for the purposes of these rules."1 It has been said that the proceeding may be instituted in any district where the property to be distributed is located or where the District Court has control thereof.2 It has been held that the phrase, "may be sued in that behalf," refers to suits already instituted; and that the phrase, "district other than that in which the said ship or vessel may be, and where it may be subject to the control of such court for the purposes of the case," must be construed as referring to the time when the proceedings have begun. The filing of the petition for a limitation of liability with an offer of stipulation by the owner, gives the court jurisdiction, which is not lost by subsequent irregu larities in the proceedings,5 nor by the sailing of the vessel into another district. Where a libel in personam has been instituted against a ship-owner in one district, he cannot institute proceedings to limit his liability in any other district. In such a case, the proceedings can be instituted in the district where he is sued, although the action is brought in the State court and the boat is in another district. The residence of the petitioner is immaterial. The benefit of the statute may also be secured by proper allegations in the answer in admiralty,10 or at common law; even in a State court.1 11 In the case of a cor § 595. Privity or knowledge of owner. poration, the privity or knowledge of its president,1 or general manager, or local manager with general powers in the place where his office is situated, or manager of boat, or superintendent, is sufficient to bind the company. It must be that of a managing officer. The privity or knowledge of a master of a vessel, or wrecking master, or a marine inspector who had, amongst other duties, that of going to the assistance of wrecked. and stranded vessels, is not.8 The liability of the ship-owner cannot be limited for a failure to comply with an act of Congress which requires a sufficient to the jurisdiction of the first court and had not instituted his proceedings elsewhere until after a decree against him, from which he had appealed). 8 Gleason v. Duffy, C. C. A., 116 Fed. 298; s. c., 54 C. C. A. 100. 9 Re Leonard, 14 Fed. 53. 10 The Scotland, 105 U. S. 24, 26 L. ed. 1001; The Great Western, 118 U. S. 520, 535, 30 L. ed. 156, 151. 11 The Rosa, 53 Fed. 132. § 595. 1 The Republic, C. C. A., 61 Fed. 109, 9 C. C. A. 386; Weisshaar v. Kimball S. S. Co., C. C. A., 65 L.R.A. 84, 128 Fed. 397. 2 Parsons v. Empire Transp. Co., C. C. A., 111 Fed. 202; Oregon Round Lumber Co. v. Portland & Asiatic S. S. Co., 162 Fed. 912, 921; M'Kie Lighter Co. v. Collins, C. C. A., 255 Fed. 524. 3 Parsons v. Empire Transp. Co., C. C. A., 111 Fed. 202; Re Jeremiah Smith & Sons, C. C. A., 193 Fed. 395; Eastern S. S. Corporation v. Great Lakes Dredge & Dock Co., C. C. A., 256 Fed. 497. The Benjamin Noble, 232 Fed. 382; aff'd C. C. A., 244 Fed. 95, 99; aff'd as Capitol Transportation Co. v. Cambria Steel Co., 249 U. S. 354. 5 Oregon Round Lumber Co. v. Portland & Asiatic S. S. Co., 162 Fed. 912; The Teddy, 226 Fed. 438; The Erie Lighter 108, 250 Fed. 490; Re P. Sanford Ross, C. C. A., 204 Fed. 248. 6 The Republic, C. C. A., 61 Fed. 109, 113; The No. 6, C. C. A., 241 Fed. 69. 7 The Colima, 82 Fed. 665, 679; The George W. Roby, C. C. A., 111 Fed. 601, where the master failed to station a lookout. See The Lusitania, 251 Fed. 716. 8 Craig v. Continental Ins. Co., 141 U. S. 638, 645, 647, 35 L. ed. 886, 887, 888. crew, or a boiler inspection,10 or when the crew were sufficient in number, but composed of Chinese, nearly all of whom could not understand the language of the officers and who had never been drilled in launching life boats.11 Nor where the President, or other managing officer of a corporation had notice, 12 or through carelessness in a personal inspection had failed to observe that the vessel was not seaworthy; 13 or had seen and did not object to the overloading of the boat.14 Nor where the owner had failed to instruct the watchman of a drill boat to mark the boat in case of a wreck.15 It has been held that owners may obtain limitation of their liability for the negligence of a boiler inspector whom they had employed,16 for a defect in the rigging, of which the master knew before the voyage,17 for a failure to furnish a sufficient supply of life preservers when there was no violation of any act of Congress and the equipment was entrusted to a competent master, 18 for a defect in loading, making the vessel unstable, which was done by the stevedore under the supervision and direction of the master and first officer,19 and when the vessel is not seaworthy, but they employed competent persons to inspect the same.20 It seems that the fact that the master is a habitual 9 Ibid. 'Re Pacific Mail S. S. Co., C. C. A., 65 L.R.A. 71, 130 Fed. 76. 10 The Annie Faxon, C. C. A., 75 Fed. 312, 320; The Annie, 261 Fed. 797. 11 Re Pacific Mail S. S. Co., C. C. A., 65 L.R.A. 71, 130 Fed. 76. 12 Re Reichert Towing Line, C. C. A., 251 Fed. 214. 13 The Republic, C. C. A., 61 Fed. 109; The Annie, 261 Fed. 797. 14 Weisshaar v. Kimball S. S. Co., C. C. A., 65 L.R.A. 84, 128 Fed. 397; The Benjamin Noble, 232 Fed. 382; aff'd C. C. A., 244 Fed. 95, 99; aff'd as Capitol Transportation Co. v. Cambria Steel Co., 249 U. S. 354. 15 Eastern S. S. Corporation v. Great Lakes Dredge & Dock Co., C. C. A., 256 Fed. 497, 503. 16 The Annie Faxon, C. C. A., 75 Fed. 312. 17 Quinlan v. Pew, C. C. A., 56 Fed. 111, 5 C. C. A. 438. 18 The Jane Grey, 99 Fed, 582. 19 The Colima, 82 Fed. 665, 679. 20 Van Eyken v. Erie R. Co., 117 Fed. 712, 716, and cases cited. Contra, Re Myers Excursion & Navigation Co., 57 Fed. 240, 242; aff'd upon another point in The Republic, C. C. A., 61 Fed. 109, 9 C. C. A. 386. See, also, Re Eastern Dredging Co., 159 Fed. 541; The Tommy, C. C. A., 151 Fed. 570, 81 C. C. A. 50; The Longfellow, C. C. A., 104 Fed. 360, 45 C. C. A. 379; Re Louisville, &c., Packet Co., 95 Fed. 996; Memphis, &c., Packet Co. v. Overman Carriage Co., 93 Fed. 246; Quinlan v. Pew, C. C. A., 56 drunkard does not take a case from the operation of the statute, in the absence of evidence that this fact was within the knowl edge or means of knowledge of the owner.21 The limitation will be denied when a loss was caused by the boats leaving port when a dangerous storm was threatened of which the master and the managing owner had notice,22 and because when after being stranded the owner forbad the master to accept aid or salvage until arrangements had been made as to the price of such services.23 The owner is not excluded from the benefit of the statute because the vessel was operated at excessive speed during a fog, in the absence of evidence that he acquiesced therein.24 Fed. 111, 5 C. C. A. 438; The City of Para, 44 Fed. 689. 21 The Anna, 47 Fed. 525. But see Parsons v. Empire Transp. Co., C. C. A., 111 Fed. 202. 22 Texas & Gulf S. S. Co. v. Parker, C. C. A., 263 Fed. 864. 23 The Santa Rosa, 249 Fed. 760. 24 Re La Bourgogne, 117 Fed. 261; s. c., La Bourgogne, C. C. A., 139 Fed. 433, 440; s. c., 210 U. S. 95, 52 L. ed. 973. In the Titanic, U. S., D. C., S. D. N. Y., before Mayer J. which was settled before a decision, Roger Foster argued that the corporation which owned the steamship was in privity with the negligence of the master in operating the boat at excessive speed in the vicinity of icebergs, with one of which the Titanic collided; because the managing director Bruce Ismay who was on board and who escaped on one of the boats after orders had been given to exclude male passengers therefrom, knew that the Titanic was approaching the ice region at the rate of speed that was used and did not interfere. "The loss of The Titanic is a case in which the owner of a steamboat cannot shield itself by the contention that it is a matter of technical skill in which its president was justified in relying upon the captain's judgment. If such were the case, then the captain would be the alter ego of the company and his employer consequently responsible. But this is not a matter of technical skill. It is no more such than the driving of a wagon through a storm, and, in the latter case, it has been held that a passenger on the vehicle seated by the driver's side is responsible for the latter's negligence in driving rapidly through a snow storm towards a railroad crossing without stopping to look for approaching trains, and this even when the driver was not the passenger's servant." Citing: Brickell v. New York, C. & H. R. R. R. Co., 120 N. Y. 290. "We have proved that Ismay had knowledge of the negligence. had privity as well." Mere privity also without active concurrence in some offenses is a crime, but the criminality may be greatly reduced by the passive part which the persons thus privy take in the affairs. ***It is understood that the petitioners may rely on obiter dicta in some cases to the effect that a captain has the control of persons on board the ship. But a lack of He When the master is a part owner, the other owner may claim the benefit of the statute, in spite of the former's fault.25 A master who was a part owner was himself allowed the benefit of the statute when he had served out his watch and was asleep during the night when the negligence occurred.26 It was held that the judgment of a State court holding that the injury was due to the negligence of the superintendent, who was alter ego of the owner, was a conclusive adjudication that the defendant was in privity therewith and a bar to a proceeding for the limitation of his liability.27 § 596. The libel or petition for limitation of liability. The Admiralty Rules provide that the proceeding must be instituted by a libel or petition, filed by the owner in the proper District Court of the United States, setting forth the facts and circum It power to control the commission of Story, as well as by the Supreme Court of the States of New York and Maine, the Circuit Court of Appeals for the Fourth Circuit and a number of Federal judges. "It rests upon reasons of public policy." Citing: Montgomery v. Wharton, 2 Peters Adm., 397, Fed. Cas. No. 9737; Childs v. Gladding, Fed. Cas. No. 2678; Clayton v. Schooner Eliza B. Emory, 4 Fed. 342; S. C. below, 3 Fed. 241; Lombard S. S. Co. v. Anderson, C. C. A., 134 Fed. 568, 569; Woodbury v. Brazier, 48 Maine 302, 304; Ward v. Ruckman, 36 N. Y. 26, 37, 38; Williams v. Hays, 143 N. Y. 442, 453; The New Draper, 4 Rob. Adm. Rep. 235, 287. As to what is sufficient notice to the owner, see Eastern S. S. Corporation v. Great Lakes Dredging & Dock Co., C. C. A., 256 Fed. 497. 25 Re Leonard, 14 Fed. 53, 55; The Obey, L. R. 1 A. & E. 102; The Star of the Ocean, 34 L. J. Adm. 74; The Cricket, 48 L. T. 535. 26 The Maria & Elizabeth, 12 Fed. 627, 630. 27 The Teddy, 226 Fed. 438. |