Statement of the Case.

perienced in the navigation of the Enterprise, until 2 o'clock on the morning of the next day, 22 hours after she had started; and then, while off Point aux Barques and Saginaw Bay, she filled and sank and became a total loss, and Carbry lost his life. He was 22 years of age. The declaration alleged that his life was lost through the negligence of the defendants, in particulars which it specified.

The defendants having, in the state court, separately demanded a trial of the matters set forth in the declaration, the action was, after its removal, tried in the Circuit Court of the United States, before the district judge, Judge Brown, (now of this court,) and a jury; and, under the instruction of the court, a verdict was rendered in favor of the three defendants other than the Continental Insurance Company. The trial proceeded against the latter company, and resulted in a verdict against it for $8000. On motion, and in February, 1886, the verdict was set aside, and a new trial was granted. The opinion of the court on the motion, delivered by Judge Brown, is reported in 26 Fed. Rep. 798. The ground assigned for granting the motion was that the liability of the defendant, if any, was destroyed, because it was subject to the provisions of 4283 of the Revised Statutes of the United States, and the Enterprise was totally lost during the voyage on which the death occurred. A judgment was then entered in favor of the three defendants other than the Continental Insurance Company.

The new trial was had before Judge Brown and a jury in March, 1886. There is a bill of exceptions, which states that the court instructed the jury to render a verdict in favor of the defendant, which was done. The plaintiff excepted to the instruction of the court. The bill of exceptions contains all the evidence offered on both sides. A judgment in favor of the defendant was rendered in September, 1887, and the plaintiff has brought the case to this court by a writ of error.

It is stated in the bill of exceptions that prior to the sending of the expedition under Reardon to rescue the Enterprise, she had been abandoned by her owners to the Continental Insurance Company, by which she was insured, and had

Argument for Plaintiff in Error.

become its property; and that, by reason of her being sunk at the time Carbry lost his life, she became and was a total loss.

Mr. Don M. Dickinson for plaintiff in error.

Does the limited liability act apply not only for the protection of the owners of a live ship in case of her wreck and loss, but also after such wreck and loss of this same ship, for the protection against liability of the underwriters, or any one else, from acts of gross negligence when engaged as salvors of anything of value from wreck or cargo?

If her captain and crew were justified in abandoning the Enterprise (a question for the jury) as a total loss, and if with the means at their command (a question for the jury) they could not have restored her to life, then she lost her character and identity as a ship, and became something else, as truly as a man who dies becomes a corpse. No rights or liabilities pertaining to living men attach to a corpse, and none attach to a total wreck at sea; although there are entirely independent bodies of law dealing with the treatment of dead men and the treatment of wrecks.

If she was a total wreck and the limited liability act applies to the case, then it would also be applicable if the underwriters had towed Carbry out to sea upon any remnant of the ship, or any piece of her, whether it be a hull without a bottom, a bottom without the sides or a plank or two that was under him. In the sense that the underwriters are owners by subrogation, they are the owners of every piece of the wreck, but we submit that they are not the owners in the sense contemplated by this act.

"Ships and vessels" are defined by this court to be "all navigable structures intended for transportation." Cope v. Dry Dock Company, 119 U. S. 625, 629.

Capen v. Washington Insurance Company, 12 Cush. 517, was a case involving a question of implied warranty as to the condition of a vessel in marine insurance, taken when the vessel was at sea. The court drew the distinction between a sound,

VOL. CXLI-41

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 Iludson, 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.