such a person in good faith, and has delegated to him that branch of its duty, its liability beyond the value of the vessel and freight ceases, so far as concerns injuries from defects of which it has no knowledge, and which are not apparent to the ordinary observer, but which require for their detection the skill of an expert."

It was held, however, in this same case, that the requirement of section 4493 of the Revised Statutes (U. S. Comp. St. § 8269), making exceptions in favor of passengers on vessels, was not affected by the limited liability act, it being an entirely different statute, which, when considered in pari materia with the limited liability act, might be considered. an exception to it.

40

In Craig v. Continental Ins. Co., the injury arose from the negligence of an employé of the insurance company to which the vessel had been abandoned. The employé was attempting to bring her to port in a disabled condition. The court held that his negligence was not the privity or knowledge of the insurance company, which owned her by virtue of the abandonment, and that they could claim the limitation of liability.

The habitual disregard of the rule against immoderate speed in a fog by the navigators of a ship does not deprive the owner of the right to a limitation unless knowledge of such practice is brought home to him.*1

41

The failure of the captain of a ship to follow the directions of his Government in time of war does not defeat the owner's right to a limitation.12

43

On the other hand, in the Republic, a barge belonging to a corporation was being used for an excursion, and while

40 141 U. S. 638, 12 Sup. Ct. 97, 35 L. Ed. 886.

41 Deslions v. La Compagnie Générale Transatlantique, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973; Boston Marine Ins. Co. v. Metropolitan Redwood Lumber Co., 197 Fed. 703, 117 C. C. A. 97.

42 Lusitania (D. C.) 251 Fed. 715.

43 61 Fed. 109, 9 C. C. A. 386.

in such use, with many passengers aboard, was injured by a thunderstorm of no extraordinary severity. The barge had been inspected by the president of the corporation, and its unsafe condition was apparent. The court held that his knowledge was the knowledge of the corporation, and that they could not plead the statute in defense under such cir cumstances.

A superintendent with general control and management of a company's business is an official of such grade that his knowledge is the knowledge of the corporation.**

THE VOYAGE AS THE UNIT

165. The end of the voyage is the time as of which the exemption can be claimed, the voyage being taken

as the unit. If the voyage is broken up by a disaster-as, for example, when the vessel is totally lost-that is taken as the time.

It can readily be understood that the act does not intend to permit the owners an exemption for an indefinite period prior to the accident. As the act of 1884 extended the right of exemption to debts as well as torts, the hardship of such a construction would be patent. Hence the courts have taken the voyage as the unit, and permitted the owner to protect himself simply against the liabilities of the voyage. This may be difficult to apply in many cases, and, in fact, in the case of boats which make very short voyages, may greatly curtail the benefit of the act to the owner; but that is settled as the test.

45

In the CITY OF NORWICH, this was laid down as the rule by the United States Supreme Court. There the vessel was destroyed by an accident.

44 Erie Lighter 108 (D. C.) 250 Fed. 490; Eastern S. S. Corporation v. Great Lakes Dredge & Dock Co. (C. C. A.) 256 Fed. 497.

§ 165. 45 118 U. S. 468, 6 Sup. Ct. 1150, 30 L. Ed. 134. See, also, Americana (D. C.) 230 Fed. 853.

46

In the Great Western, the vessel had one accident, and, proceeding on her voyage, had a second accident, entirely disconnected with the first-the result of the second accident being the wreck of the vessel. The court held that the termination of the voyage was the second accident, and that the owners could limit their liability for everything up to that point on that voyage.*

This means the straight voyage, not the round trip.48

EXTENT OF LIABILITY OF PART OWNERS

166. The part owners are liable each to the extent of their proportionate interest in the vessel, except that a part owner personally liable cannot claim the exemption at all."

MEASURE OF LIABILITY-TIME OF ESTIMATING VALUES

167. The value of the vessel and pending freight is taken just after the accident, or end of the voyage, if the voyage is not broken up by the accident.

This is laid down by the Supreme Court in the case of the SCOTLAND,50 and marks a material difference between the American and English act. Our act fixes the value of the vessel just after the accident, so that, if she is totally lost, the liability of the owner is practically nothing. The English act, on the other hand, takes a tonnage

46 118 U. S. 520, 6 Sup. Ct. 1172, 30 L. Ed. 156.

47 See, also, Gokey v. Fort (D. C.) 44 Fed. 364; Geo. L. Garlick, 107 Fed. 542, 46 C. C. A. 456.

48 Deslions v. La Compagnie Générale Transatlantique, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973.

§ 166.

49 Whitcomb v. Emerson (D. C.) 50 Fed. 128; Giles Loring (D. C.) 48 Fed. 463.

valuation just before the accident, so that, in case of total loss, under the English act the owner must make up to the creditors of the vessel substantially the value of the vessel uninjured.

In the CITY OF NORWICH,51 it is settled as the law of this country that the value is taken as of the end of the voyage, if not lost, but at the accident if the vessel is totally lost, and the voyage thereby broken up.. Hence, if a vessel is partially injured, and subsequently raised and repaired, the owners can have the cost of raising and repairing taken into consideration, and receive credit for them in the valuation of the vessel.

The voyage itself may be rather an indefinite expression. For instance, it has been held in the case of a vessel used during a fishing season that the entire fishing season ought to be treated as one voyage, and that, therefore, the owners must account for the entire season's earnings in order to obtain the benefit of the limitation.52

SAME PRIOR LIENS

168. The res must be surrendered clear of prior liens.

In fixing the value, the owner must account for the value of the res, clear of all liens or claims prior to the voyage.

The res, in the sense of this statute, may consist of more than one vessel. In the Bordentown,58 several tugs belonging to the same owner were towing a large tow of many barges. After the towage commenced, one of the tugs was detached, but the two remaining tugs were guilty of an act of negligence, causing great loss. The court held

51 118 U. S. 468, 6 Sup. Ct. 1150, 30 L. Ed. 134. See, also, Abbie C. Stubbs (D. C.) 28 Fed. 719; Mauch Chunk (D. C.) 139 Fed. 747; Id., 154 Fed. 182, 83 C. C. A. 276.

52 Whitcomb v. Emerson (D. C.) 50 Fed. 128.

§ 168. 53 (D. C.) 40 Fed. 682.

that the owner, in order to claim the benefit of the statute, must surrender the two tugs that participated in the negligent act, but not the one which had been detached before the act occurred.

54

In the Columbia, a barge without means of propulsion was being towed by a tug, and a large quantity of freight was on the barge. When exemption was claimed against an accident, including large claims of personal injury, it was held that the owner was required to surrender both the tug and the barge.

The rule is that the vessels at fault must be surrendered, not those who are innocent instruments. For instance, in case of tug and tow, the question whether tug or tow should be surrendered would depend on the question which was liable, neither being responsible for the acts of the other.55

As stated above, the owner must also surrender the vessel clear of prior liens. If this were not so, he might, by mortgaging the vessel to her value, withdraw all funds from the creditors of the boat. Accordingly, in the Leonard Rich

ards, the court says:

"The first question suggested by counsel for the owners of the tug is as to the proper construction to be put upon the words 'value of the interest of the owner,' as used in the limited liability act. The section of the act in point, or so much of it as is necessary to quote, is as follows: The liability of the owner of any vessel, for any loss, damage, or injury by collision, * done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of

54 73 Fed. 226, 19 C. C. A. 436.

*

55 Eugene F. Moran v. New York Cent. & H. R. R. Co., 212 U. S. 466, 29 Sup. Ct. 339, 53 L. Ed. 600; Transfer No. 21, 248 Fed. 459, 160 C. C. A. 469; Erie Lighter 108 (D. C.) 250 Fed. 490; O'Brien Bros. (D. C.) 252 Fed. 185.

56 (D. C.) 41 Fed. 818. See, also, Gokey v. Fort (D. C.) 44 Fed.