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edge; and they pleaded the first and third sections of the act of congress, approved March 3, 1851, entitled "An act to limit the liability of ship-owners, and for other purposes;” the first section of which provided as follows, to-wit:

“That no owner or owners of any ship or vessel shall be subject or liable to answer for or make good to any one or more person or persons any loss or damage which may happen to any goods or merchandise whatsoever, which shall be shipped, taken in, or put on board any such ship or vessel, by reason or by means of any fire happening to or on board the said ship or vessel, unless such fire is caused by the design or neglect of such owner or owners."

And the third section of said act provided as follows, to-wit:

“That the liability of the owner or owners of any ship or vessel for any em. bezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or merchandise shipped or put on board such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter or thing, loss, damage or forfeiture done, occasioned, or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel and her freight then pending."

The defendants subsequently amended their answer by adding & particular statement of the manner in which the loss occurred, namely, by a fire at New York, which commenced in a building on the wharf or pier at which the steamship lay after her arrival, and was rapidly communicated to the vessel, which was burnt to the water's edge, together with most of her cargo, including not only the goods of the plaintiffs, but a large quantity of goods of other persons, greatly exceeding in amount the value of the defendants' interest in the vessel and her freight then pending. The amended answer further stated, that the defendants having been sued in the present case and in other cases in New York city and elsewhere, for injuries to said cargo by said fire, and desiring as well to contest their liability, and the liability of the steamer, for the loss and damage occasioned by the fire, as also to claim the benefit of the limitation of liability provided for in the third and fourth sections of said act of congress, on May 14, 1875, filed in the proper district court of the United States having jurisdiction thereof, to wit, the district court for the southern district of New York, pursuant to said act and the rules of the supreme court of the United States in that behalf, their libel and petition, setting forth the facts and circumstances on and by reason of which such exemption from and limitation of liability were claimed, and offering to pay into said district court the amount of the defendants' interest in said vessel and freight, or to give a stipulation with sureties for the payment thereof into said court whenever the same should be ordered, praying relief in that behalf, and further praying that said district court would cause due appraisement to be had of the amount or value of the interest of said defendants in said steamer and her freight for said voyage, and would either order the same to be paid into said district court, or a stipulation to be given by the defendants with sure-ties for the payment thereof into said district court whenever ordered, and that said district court would issue a monition against all persons ulaiming damages for the loss, destruction, damage, and injury occasioned by said fire on board of said vessel, citing them to appear before said district court and make due proof of their respective claims at a time to be therein named, and also praying that said district court would designate a commissioner, before whom such claims should be presented, in pursuance of said monition; and that if upon the coming in of the report of said commissioner and confirmation thereof it should appear that said defendants were not liable for such loss, damage, destruction, and injury, it might be so finally decreed by said district court; otherwise, that the moneys paid or secured to be paid into said district court as aforesaid (after payment of the costs and expenses) should and might be divided pro rata among the several claimants in proportion to the amount of their respective claims, and praying that in the mean time, and until the final judgment should be rendered, said district court would make an order restraining the further prosecution of all and any suit or suits against said defendants in respect to any such claim or claims; that upon said libel said district court caused due appraisement to be had and made of the amount or value of the interest of said defendants in said steamer and her freight for said voyage, and duly made an order for the giving by the defendants of a stipulation with suroties for payment thereof into court whenever the same should be ordered.

189.

The answer further stated that the defendants, pursuant to the order of said district court, entered into a stipulation, with two sureties, to pay the value of said interest and freight as so appraised into said district court whenever ordered, which stipulation was approved, and said order having been complied with, a monition was thereupon issued by said district court against all persons claiming damages for the loss, destruction, damage, and injury occasioned by said fire on board said steamer, citing them to appear before said district court and make due proof of their respective claims at or before a certain time named in said monition, to-wit, at or before the fifteenth day of October, A. D. 1872, which time was at least three months from the issuing of said monition; and designating George F. Betts, Esq., a commissioner of said district court, as the commissioner before whom such claims should be presented, in pursuance of said monition, and ordering public and other notice of said monition as therein set forth, and that said notice had been served on the said Hill Manufacturing Company, as well as on all other claimants, pursuant to said monition; and said district court duly made an order restraining the further prosecution of all and any suit or suits against the defendants in respect of any such claim or claims. The answer then referred to a certified copy of the libel and the proceedings thereon, annexed to and made part of the answer, and also made profert of said libel and proceedings, and concluded as follows:

899.

“And these defendants further say that said fire, and the injury thereby caused or occasioned, was without the privity or knowledge of these defendants. And these defendants, further answering, say that if the plaintiffs have any claim by reason of any injury to said cotton cloth, it cannot be enforced in this action, but can only be enforced in said suit in said district court, and then and there only under and pursuant to said act of congress. And these defendants, further answering, say that said steamer Oceanus was not a canal-boat, barge, or lighter, and was not used in rivers or inland navigation, and that said voyage from Providence to said city of New York was not in rivers or inland navigation; and that an injunction has been issued by said district court against said Hill Manufacturing Company, restraining and enjoining them from the further prosecution of this suit, and that said injunction has been duly served on said Hill Manufacturing Company; and further that said Hill Manufacturing Company sued in this court the Boston & Lowell Railroad Company for the alleged loss and injury complained of in the declaration in this cause to the cotton cloth therein mentioned, and recovered therein a judgment against said Boston & Lowell Railroad Company for said alleged loss and injury, which judgment was settled, paid, and satisfied."

Upon the filing of this answer the case was opened to a jury, but before any verdict was taken the case was reserved, upon the report of the judge who presided at the trial, for the consideration of the full

In September term, 1875, it was ordered by the supreme judicial court that the case do stand for trial. Whereupon the defendants filed the following objections, viz.:

“And now, with the view of having this action taken to the supreme court of the United States upon a writ of error, if the final judgment there in in this honorable court shall be against the defendants, and for the purpose of saving the rights of the defendants, and so that their going to trial shall not be construed a waiver of their rights or of the objections herein, said de:'end. ants come and object to and protest against the ruling and decision of this honorable court ordering and directing said action to stand for trial, and also the ruling of this honorable court that if the loss complained of by the plaintiff was occasioned by the neglect of defendants it must have been with their privity or knowledge, and was not within the act of congress limiting the liability of ship-owners; also, the ruling that the proceedings in the district court of the United States did not affect the jurisdiction of this honorable court.”

In April term, 1876, the cause came on for trial, and the defend. ants, by leave of the court, further amended their answer by setting forth, among other things, the final decree of the district court of the United States for the southern district of New York, made on the sixteenth of October, 1872, by which it was adjudged and decreed that the Hill Manufacturing Company, (the plaintiffs in the present suit,) among other parties, be forever debarred from prosecuting any claims for damages for any loss, damage, or injury occasioned by the fire on board the steamer Oceanus on the twenty-fourth of May, 1868. Thereupon the trial proceeded, and the evidence showed that the plaintiffs' goods were delivered to the defendants at Providence to be transported to New York, and were thus transported in the steamer Oceanus upon Long Island sound, and that the vessel safely arrived

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at New York with the goods on board, and was moored in a slip or dock on the North river side on a Sunday morning; and while lying there on that day, ready to be discharged, the fire occurred whico caused the loss in question, commencing in a building on the wharf, or pier, which was used by the defendants in their transportation business. The plaintiffs adduced evidence tending to show that this building was not properly constructed and managed to avoid the risk of fire, and that the defendants were guilty of negligence in that behalf; and they contended that if the jury believed that the defendants were guilty of such negligence, they could not claim the benefit of the act of congress, but were liable to respond for the loss of the goods. The defendants adduced counter proofs, tending to show that they were not guilty of any negligence; and also put in evidence the record of proceedings upon their libel and petition in the district court of the United States for the southern district of New York, corresponding to the statements of their answer; and it was admitted that process and the restraining order issued in said suit had been duly served upon the plaintiffs. The record of proceedings in said suit is set forth in the transcript, but it is unnecessary to describe them in detail. They appear to be in conformity to the act of 1851, and to the orders made by this court relating to proceedings under said act for securing the benefit of limited liability provided for therein. They were instituted in the proper court, namely, the district court of the United States for the southern district of New York, in which district the steamer was found, or so much as remained of her after the fire. The libel and petition set forth the proper facts and made the proper allegations as well to show that neither the libelants nor the steamer were liable for the injury caused by the fire, as to show that, if there was any liability, the libelants were only liable to the extent of their interest in the vessel and freight; and upon this libel and petition, the proper proceedings were had, and the proper monition and process were issued, published and served, to ascertain the amount of the libelants' interest in the steamer and freight, and to bring all parties before the court who had any claims arising from the injury caused by the fire; and the said district court, on the thirteenth day of May, 1872, made an order restraining the further prosecution of the suits which had been cohomenced against the libelants in New York, which was duly served upon the respective parties concerned; and after the amount of the libelants' interest in the vessel and freight had been duly appraised, on the eighth of July, 1872, a further order was made that a monition issue against all persons claiming damages for the loss and injury occasioned by the fire on board of said steamer, citing them to appear before said district court and make due proof of their respective claims at or before the fifteenth day of October, 1872; and that the monition be published, and personally served on the attorneys, proctors, or solicitors of the plaintiffs or libelants in each of the suits brought and pending in any court in the United States against the libelants, or against the said steamer Oceanus, to recover for any such damages. A monition was duly is. sued in pursuance of this order, and was served on the attorney of the plaintiffs in this suit, on the thirtieth day of July, 1872. On the second day of September, 1872, the district court made a further order against the different plaintiffs and libelants by name who had brought suits for damages, etc., and, among others, against the plaintiffs in this case, ordering them to refrain from the further prosecution of their respective suits, or any suit whatever, against the libelants (the defendants in this suit) to recover for any loss of cargo by the afore. said fire on the steamship Oceanus; and that any further prosecution of such suits be and the same was by said order restrained. A certified copy of this order was served on the plaintiffs' attorney in this suit at Boston, on the seventh day of October, 1872, and upon their treasurer at the same place, on the ninth of the same month. On the sixteenth of October, 1872, default was taken against the plaintiffs in this case, and divers other persons, for failing to appear and present their claims before the district court, according to the monition in that behalf, and a decree was made forever debarring them from presenting, filing, or prosecuting any claims for damages for any loss or injury occasioned by said fire. After the evidence was closed, the defendants asked the court to rule that upon the whole evidence in the case the plaintiff could not maintain its action, and that the jury must find for the defendant; but the court refused so to rule. The defendants then asked the court to instruct the jury, among other things, as follows:

“(1) That under the proper construction of the act of congress entited •An act to limit the liability of ship-owners and for other purposes,' (St. 1851, c. 43,) the libel and petition of the defendant filed in the district court of the United States for the southern district of New York, and the proceedings had thereon, the record of which has been put in evidence, are a bar to the plaintiff's action.

“(2) That under the proper construction of said act of congress the plaintiff is precluded from maintaining its action by said proceedings in said district court.

“(3) That by the decree of said district court, made upon said libel and petition, and the subsequent proceedings thereon, it has been adjudged as between the parties to the present suit that the fire which caused the damage, for which the plaintiff seeks to recover, was not caused by the design or neglect of the defendant within the meaning of said act of congress."

The court refused to give these instructions; but left it to the jury to find for the plaintiffs if they were satisfied from the evidence that the fire was caused by the negligence of the defendants, either in respect to the construction and equipment of the vessel, or in respect to the construction and management of the pier or buildings thereon. To all the rulings of the court the defendant excepted; and the jury having found a verdict for the plaintiffs, the exceptions were argued before the supreme judicial court and were overruled, and judgment was entered for the plaintiffs. To that judgment this writ of error is

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