Argument for Plaintiff in Error.

serviceable ship, and one that has ceased to be a ship by becoming a wreck. It held that while in such a case there was no implied warranty on the part of the insured, that the vessel was seaworthy "in the ordinary sense of the term," either when the policy was written or at the time when, by its terms, the risk commenced, yet there was an implied warranty that the vessel was in existence as a vessel, not lost at the time fixed for the commencement of the risk. It said: If she is at sea; when she has sailed in a seaworthy condition, and is safe, (salvus, not lost,) so as to be a proper subject for a contract of insurance at the time the risk attaches; and if the vessel is in such condition, and the implied warranty to this extent is not broken, the policy attaches and is not void. . But if the vessel was then lost, become a wreck or had ceased to exist as a vessel, or was, if at sea, in a condition or under circumstances in which she could not on her arrival in port be made available by reasonable or suitable repairs and fitting for navigation, then there was no subject for the policy to take effect upon, and the contract would be void.

In Gardner v. Salvador, 1 Mood. & Rob. 116, 117, the court in discussing the question of whether the ship's character was changed by wreck, says: "If the situation of the ship be such that by no means within the master's reach it can be treated so as to retain the character of a ship, then it is a total loss. If the captain, by means within his reach, can make an experiment to save it, with a fair hope of restoring it to the character of a ship, he cannot by selling it turn it into a total loss. If she be in a situation such that, by means which the captain could reasonably use she could not be brought to retain the character of a ship, it is a total loss."

In the case of The Hendrick Hudson, 3 Ben. 419, 421, the court discusses the loss of character of a ship in connection with the question of salvage.

The Hendrick Hudson had been a ship, was capable of floating and being towed, but had been converted into a sort of floating saloon. The court (Blatchford, Justice) says: "The fact that the structure has the shape of a vessel, or had been once used as a vessel, or could, by proper appliances, be

Argument for Plaintiff in Error.

again used as such, cannot affect the question. The test is the actual status of the structure, as being fairly engaged in commerce or navigation."

The status as a ship having rights and liabilities under the law as such may thus be lost by misfortune, as by wreck, or by the voluntary act of the owners. A ship which has become "derelict" by wrecking (and a ship may become derelict by simple abandonment at sea-Judge Story in Rowe v. Brig 1 Mason, 372, 373) is one "where there has been an abandonment by officers and crew, without hope of recovery." The Aquila, 1 Ch. Rob. 32, 37.

In such a case, if the underwriters had not, as in this case, become the salvors, the right of other salvors might have attached.

Are the negligences of any one in and about the retrieving of value from a wreck to be brought within any law relating distinctly and in terms to a "ship" or "vessel"?

Undoubtedly the test as to the wrecked ship must be whether she is capable of navigation by the use of means at hand; if she is not she has lost her character as a ship. And this question is one for the jury, as held in the two cases first above cited. As a matter of fact the evidence was conclusive upon this point. The Enterprise had pounded through many gales, upon the rocks, and had begun to break up so that she perceptibly showed different and independent movements of her bow and stern, of her mast and smokestack; her machinery for steaming was broken up; and she could not navigate or float either by her own means or in tow, as when towed through quiet water, she went to the bottom.

The limited liability act above quoted, stands unaffected for the purposes of this case, by the amendment of June 26, 1884, (23 Stat. 57, c. 121, § 18,) and by the act approved June 19, 1886, extending the provisions of the act to all vessels used on lakes or rivers for inland navigation, etc. 24 Stat. 80, c. 421, § 4.

There is no provision of the act which can be construed as extending the provisions of the limitation so as to include underwriters engaged in salvage.

Opinion of the Court.

Section 4286, Revised Statutes, extends the meaning of owners, as used in the act, so as to include "the charterer of any vessel, who shall man, victual and navigate such vessel at his own expense or procurement."

We submit therefore:

First, That the limited liability act cannot be construed to cover the case of underwriters engaged in saving wreckage; and,

Second, That it would have no application for the benefit of the original owners themselves, except for their protection from liability incurred for the cause of, or in and about the original wrecking; not for any common law liability incurred while engaged about recovering wreckage after the wreck is an accomplished fact, the character as a ship finally lost, and the vessel entirely and properly abandoned by the officers and

crew.

Mr. F. H. Canfield for defendant in error.

MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court.

The principal contention on the part of the plaintiff is that 4283 of the Revised Statutes does not apply to the case. That section is as follows: "Sec. 4283. The liability of the owner of any vessel, for any embezzlement, loss or destruction, by any person, of any property, goods or merchandise, shipped or put on board of such vessel, or for any loss, damage or injury by collision, or for any act, matter or thing, lost [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 in such vessel, and her freight then pending." It is contended that the statute does not apply, because the vessel had been wrecked and abandoned to the underwriters; that they cannot be relieved under the statute from their liability for negligence while engaged in saving the wreck or the cargo; and that she had lost her identity as a vessel.

Opinion of the Court.

She

But we are of opinion that her identity was not lost. was still a vessel. She had lost her own power of locomotion, but she was capable of being towed as a vessel, and was so towed for 22 hours, and until she had accomplished a large portion of her voyage. She was officered and manned, and had on board a cargo. If, during the 22 hours, through the negligence of those on board of her and in charge of her, she had done damage by coming into collision with another vessel and survived, she could have been libelled as a vessel; and she could have been libelled for salvage. She was in the same condition as any vessel which at sea loses her means of propulsion and has to be towed into port.

The fact that, as between her former owner and the insurance company, she had been abandoned as a total loss, does not affect the question. She was abandoned as a total loss to her owner for the purposes of the policy of insurance, but, as in numerous other cases of abandonment, she was abandoned with the privilege to the insurance company of treating her as a vessel and repairing her if it could. Her ownership by the insurance company, resulting from the abandonment, was of the same character as would have been her ownership by any person who had purchased her in her then condition from the former owner. After her abandonment, she entered upon a new career and a new voyage, and § 4283 applies to the liability of the owner of her on such voyage, for damages for the death of Carbry.

It was held by this court, in Butler v. Boston & Savannah Steamship Co., 130 U. S. 527, that the provision of § 4283 applies to cases of personal injury and death, as well as to cases of loss of, or injury to, property. Whatever liability there was on the part of the defendant, was extinguished by the loss of the Enterprise, and the extinguishment of such liability may be availed of in this suit, as matter of law, on the facts of the case. The Scotland, 105 U. S. 24; Providence & N. Y. Steamship Co. v. Hill Mfg. Co., 109 U. S. 578, 594.

The restriction of the statute by § 4289 to vessels not "used in rivers or inland navigation," does not apply to the Enterprise, because she was used on the Great Lakes. American

Opinion of the Court.

Trans. Co. v. Moore, 5 Michigan, 368; Moore v. American Trans. Co., 24 How. 1..

The only question remaining is as to whether the loss of Carbry's life occurred with the privity or knowledge of the insurance company, it being contended that the knowledge and privity of Reardon were those of the company. But it was held by this court, in Walker v. Transportation Company, 3 Wall. 150, in regard to the statute (Act of March 3, 1851, § 1, 9 Stat. 635, now § 4282 of the Revised Statutes) which provides as follows: "No owner of any vessel shall be liable to answer for or make good to any person any loss or damage which may happen to any merchandise whatsoever, which shall be shipped, taken in or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner," that, in order to make the owner of a vessel, in case of loss by fire, liable for negligence, it must appear that the owner had directly participated in the negligence. It was there said, that, as the object of the act was "to limit the liability of owners of vessels," and the exception was not, in terms, of negligence generally, but only of negligence of the owners, it would be a wrong construction of the act to hold that the exception extended "to the officers and crews of the vessels, as representing the owners;" that § 6 of the act (now § 4287 of the Revised Statutes) showed that it was the purpose of the preceding sections to release the owner from some liability for the negligence and fraud of the master and other agents of the owner, for which those persons were themselves liable and were to remain so; and that, in reference to fires occurring on the vessels to which the statute applied, the owner was "not liable for the misconduct of the officers and mariners of the vessel, in which he does not participate personally." The same rule is applicable to the words "privity or knowledge" in § 4283.

When the owner is a corporation, the privity or knowledge must be that of the managing officers of the corporation. In Hill Manufacturing Co. v. Providence & New York Steamship Co., 113 Mass. 495, 499, 500, it was said that the object