Statement of the Case.

motion the company filed a written reply in which they set up the fact that in pursuance of an order of the court they had entered into stipulation to pay into court the amount of the appraised value of their interest in the ship and freight. They further averred that, in pursuance of a covenant made at the time of their purchasing the said steamship, in the mortgage given for the purchase money, all the insurance procured by them had been assigned and made payable to the vendors and mortgagees, for whose benefit and security the policies were kept on foot; and said parties had collected the insurance money, and applied it in part payment of the mortgaged notes, and the libellants, The Boston and Savannah Steamship Company, had not collected or received any part of it. To this answer the appellants filed an exception in the nature of a demurrer.

Upon these pleadings the parties agreed upon a statement of facts, which, after stating the titles of the two causes, was as follows, to wit:

"STATEMENT OF AGREED FACTS.

"In the above entitled causes the following facts are agreed by the Boston and Savannah Steamship Company and John Haskell Butler, administrator, et al., party excepting to said libel of said company:

"First. All the allegations contained in the eleventh, twelfth, thirteenth, fourteenth, nineteenth, twenty-third and twentyfourth articles of the answer, petition and exceptions of said John Haskell Butler, administrator, et al., in said suit, are true.

"Second. Except as relieved or affected by the Limited Liability Act of 1851 Rev. Stat. 4283-5 and the Rules of the United States Supreme Court thereunder, the libellant, shipowner, is liable for all loss and damage caused by the stranding of said steamship City of Columbus.'

"Third. In respect to the cause of the disaster alleged, the respondents claim, in addition to the concession by libellant, the B. and S. Steamship Company, of negligence on the part of their agents and servants, as above agreed, that at the time of disaster the second mate was in charge of the ship; that he was not a pilot for the waters upon which the ship was then

Statement of the Case.

going, and was not licensed as a pilot by the inspectors of steamboats; and that no pilot was on duty on said ship at the time of the disaster; and, further, that the disaster was owing to the unfitness, gross negligence, or carelessness of the servants or agents of the libellant, who were engaged in navigating the ship at the time of the disaster, so that the case was within 6 of c. 73 of the Public Statutes of Massachusetts. The libellant denies all these allegations, and claims that they are immaterial to the issues of the cause, if true; and that the captain was in charge of the ship at the time of the disaster.

"Fourth. Said loss and damage were without the privity and knowledge of the libellant, the Boston and Savannah Steamship Company, the sole owner of said steamship.

"Fifth. Said steamship was a coast-wise, sea-going vessel, under enrolment, and was, at and before the time of loss, subject to all the laws and rules of navigation applicable to such vessels; and at the time of loss was on a voyage from Boston to Savannah, Georgia, and proceeding through Vineyard Sound, stranding on Devil's Bridge, off and near Gay Head, Martha's Vineyard. And to this extent the respondents, Butler et als., qualify any admission in their answer to the third article of the libel of the company; and the company qualify any averment pertinent thereto in said article.

"Sixth. After the filing of the libel or petition in this cause, the court caused due appraisement to be had of the amount or value of the interest of the libellant, as owner, in such ship and her freight for the voyage, and thereupon made an order for the giving of a stipulation, with sureties for the payment thereof, into court, whenever the same shall be ordered; and upon due compliance with this order the court issued a monition, February 28, 1884, against all persons claiming damages for any such loss, embezzlement, destruction, damage or injury, citing them to appear before the said court and make due proof of their respective claims at or before July 1, 1884, and public notice of such monition was given as required; and thereafter, on the application of said owner, the court made an order to restrain the further prosecution of all and any suit or suits against said owner in respect of any such claim or

Statement of the Case.

claims, all as provided in the admiralty rules of the United States Supreme Court.

"Seventh. The Boston and Savannah Steamship Company is a corporation organized under the laws of the State of Massachusetts, and is located at Boston, in said State."

The following additional statement was agreed to in the action of the appellants, to wit:

"1. Except as relieved or affected by the Limited Liability Act of 1851, (Rev. Stat. §§ 4283-5,) and the Rules of the United States Supreme Court thereunder, the respondent, ship-owner, is liable for all loss and damage caused by the stranding of said steamship 'City of Columbus.'

"2. The respondent claims that the captain was in charge of the ship at the time of the disaster.

"3. Said loss and damage were without the privity and knowledge of the respondent, the Boston and Savannah Steamship Company, the sole owner of said steamship.

"4. Said steamship was a coast-wise, sea-going vessel, under enrolment, and was, at and before the time of loss, subject to all the laws and rules of navigation applicable to such vessels; and at the time of loss was on a voyage from Boston to Savannah, Georgia, and proceeding through Vineyard Sound, stranding on Devil's Bridge, off and near Gay Head, Martha's Vineyard."

The two causes were argued together upon the pleadings and these statements of fact; and on the 10th of April, 1885, the following decrees were made, to wit:

In the suit of the appellants the following decree was made: "This cause was heard upon libel and respondent's exceptions thereto, and upon agreed facts; and it appearing to the court that the record alleged in said exceptions exists, it is thereupon ordered, adjudged and decreed that the exceptions be sustained, and the libel dismissed with costs."

In the limited liability cause the following decree was made: "It is found and decreed by the court that the libellant is entitled to the limitation of liability for loss of life, and other damage, as claimed in said libel; and that evidence tending to establish the facts, claimed by the respondents in clause three

Argument for Appellants.

of the agreed facts on file, is immaterial, and therefore inadmissible, and that the allegations in the libellants' answer to respondents' motion that insurance money be paid into court are true; and it is thereupon ordered, adjudged and decreed by the court that the said respondents' exceptions to the libellants' answer to said respondents' motion that insurance money be paid into court, be overruled, and their said motion denied; and that the exceptions of said respondents to the libel be overruled, and their petition be dismissed."

These decrees were affirmed by the Circuit Court, and from the decrees of the latter court the present appeal was taken.

Mr. Eugene P. Carver and Mr. Frank Goodwin for appellants.

I. The limitation-liability act, Rev. Stat. §§ 4282-4287, does not apply to a claim for loss of life of a passenger, or for injuries suffered by him through negligence.

The law has a special regard for the rights of passengers carried by common carriers. It holds the carrier to the highest possible degree of care, and requires him to make good all damages suffered through want of it. Pennsylvania Co. v. Roy, 102 U. S. 451. A statute in derogation of this fundamental principle should be so expressed as plainly to show that this great rule is in terms and purpose departed from. This act does not in terms apply to passengers: and when the object of its enactment is considered, viz.: the diminution of the risks of ship-owners engaged in the transportation of cargoes, it is plain that it applies only to loss of property, and does not apply to persons at all.

Neither by the civil law nor the common law was there or is there a limitation of liability. The principle of such limitation appears to have arisen in the Middle Ages, and the origin thereof is set forth by Judge Ware in the case of The Rebecca, 1 Ware, 187; and Judge Ware's exposition has been accepted by the Supreme Court in Norwich Co. v. Wright, 13 Wall. 104. That the courts of the United States, down to the act of 1851, did not recognize the rule of the ancient or general

Argument for Appellants.

maritime law, but refused to adopt it either in admiralty or common law, see Del Col v. Arnold, 3 Dall. 333; The Amiable Nancy, 1 Paine, 111; Pope v. Nickerson, 3 Story, 465; Hall v. Washington Insurance Co., 2 Story, 176; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 435.

The history of the subject shows that the scope of the act of Congress is confined to advancing the interests of commerce and trade, the transportation of merchandise.

The first act on the subject was the Massachusetts act of 1818, derived from the English statute 7 Geo. II, c. 15. This was followed by a statute of Maine. The continuity between the acts of Massachusetts and Maine and the act of Congress, forming one chain in a system of legislation, is also recognized and enforced by the Supreme Court of the United States in Norwich Co. v. Wright, 13 Wall. 104.

This limited liability act is not to be extended, even in respect to goods, by construction. Mr. Justice Curtis held that it does not protect a vessel when the fire, which had burned up the goods, destroyed them after they had been landed from the vessel, and were on the wharf, in a case where there had been no delivery to consignee. Its application, in respect to fire, is only to goods lost or damaged through fire happening to or on board of the vessel. Salmon Falls Manf. Co. v. The Tangier, 6 Am. Law Reg. 504; King v. Am. Trans. Co., 1 Flippin, 1; The Egypt, 25 Fed. Rep. 320; The Mamie, 5 Fed. Rep. 813; S. C. 105 U. S. 773; S. C. 110 U. S. 742; Gibson v. Shufeldt, 122 U. S. 27, 32.

In Carroll v. Staten Island Railroad, 58 N. Y. 126, the Court of Appeals of New York hold that the steamboat act of February 28, 1871, 16 Stat. 440, c. 100, is not to be construed in the light of the limited liability act of 1851; that "a narrow construction, in favor of ship-owners, of a statute enacted to secure the safety of passengers, is not justified on the ground that their common law liability as carriers of goods had, by a prior statute, made for the purpose of assimilating our legislation on the subject to that of England, been to some extent limited." See also Dougan v. Champlain Transportation Co., 56 N. Y. 1; Chamberlain v. Western Transportation