Norwich Company v. Wright
ERROR to the Circuit Court for the District of Connecticut; the case being this:
On the 3d of March, 1851, Congress passed an act  as follows the sections in brackets, i. e., 2d and 5th sections, not being specially important in this case, and inserted only to give a more full view of the act:
'SEC. 1. 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: Provided, That nothing in this act contained shall prevent the parties from making such contract as they please, extending or limiting the liability of ship-owners.
['SEC. 2. If any shipper or shippers of platina, gold, gold dust, silver, bullion, or other precious metals, coins, jewelry, bills of any bank or public body, diamonds or other precious stones, shall lade the same on board of any ship or vessel, without, at the time of such lading, giving to the master, agent, owner or owners of the ship or vessel receiving the same, a note in writing of the true character and value thereof, and have the same entered on the bill of lading therefor, the master and owner or owners of the said vessel shall not be liable, as carriers thereof, in any form or manner. Nor shall any such master or owners be liable for any such valuable goods beyond the value and according to the character thereof so notified and entered.]
'SEC. 3. The liability of the owner or owners of any ship or vessel, for any embezzlement, 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 of 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.
'SEC. 4. If any such embezzlement, loss, or destruction shall be suffered by several freighters or owners of goods, wares, or merchandise, or any property whatever, on the same voyage, and the whole value of the ship or vessel, and her freight for the voyage, shall not be sufficient to make compensation to each of them, they shall receive compensation from the owner or owners of the ship or vessel, in proportion to their respective losses; and for that purpose the said freighters and owners of the property, and the owner or owners of the ship or vessel, or any of them, may take the appropriate proceedings in any court, for the purpose of apportioning the sum for which the owner or owners of the ship or vessel may be liable amongst the parties entitled thereto. And it shall be deemed a sufficient compliance with the requirements of this act, on the part of such owner or owners, if he or they shall transfer his or their interest in such vessel and freight, for the benefit of such claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such trustee for the person or persons who may prove to be legally entitled thereto, from and after which transfer all claims and proceedings against the owner or owners shall cease.
['SEC. 5. The charterer or charterers of any ship or vessel, in case he or they shall man, victual, and navigate such vessel at his or their own expense, or by his or their own procurement, shall be deemed the owner or owners of such vessel within the meaning of this act; and such ship or vessel, when so chartered, shall be liable in the same manner as if navigated by the owner or owners thereof.]
'SEC. 6. Nothing in the preceding sections shall be construed to take away or affect the remedy to which any party may be entitled, against the master, officers, or mariners, for or on account of any embezzlement, injury, loss or destruction of goods, wares, merchandise, or other property, put on board any ship or vessel, or on account of any negligence, fraud or other malversation of such master, officers, or mariners, respectively; nor shall anything herein contained lessen or take away any responsibility to which any master or mariner of any ship of vessel may now by law be liable, notwithstanding such master or mariner may be an owner or part owner of the ship or vessel.'
This statute being in force, the schooner Van Vliet, on the night of 18th of April, 1866, making three or four knots an hour, and the steamer City of Norwich making twelve-the schooner's course being nearly at right angles to that of the steamer collided in Long Island Sound. The schooner sank, and both she and her cargo were lost. The steamer was greatly damaged by the blow, and, taking fire, sank also. Her cargo was lost, but she herself was subsequently raised and repaired at great expense.
Hereupon the owners of the schooner filed a libel in personam in the District Court for the District of Connecticut against the owners of the steamer. The owners of the steamer, by way of defence, stating that the steamer had on board 'a large and valuable freight belonging to various parties, much larger in value than the whole amount of the interest of the defendants in the said steamer and of her freight then pending,' and that the whole of it was lost, set up that they were not in fault; that the night was dark; that the schooner had no lights; that she was seen first by the head of her sails being lighted up by the steamer's lights.
These matters set up, however, were not proved.
On the contrary, although several witnesses who saw the light of the schooner after the collision, testified that the green or starboard light was dim, it was clearly proved that the light was there; and there was very strong evidence to show that it was burning brightly at the time of the collision, having been specially examined both before and after it. It appeared also that the officers of another steamer, the Electra, three-quarters of a mile in the rear of the City of Norwich and directly in her track, had seen the schooner a full mile off, and some time before the occurrence happened; they seeing her, as the pilot of the Electra testified, one point on their port-bow when the City of Norwich was dead ahead. This witness stated that the schooner was a mile off from the Electra when he saw her, and that this was two minutes before the collision; that the City of Norwich blew her whistle immediately after the collision; and that he discovered the schooner two or three minutes before he heard the sound.
The District Court, after interlocutory decree in favor of the libellants, and a reference to a master, and a report, decreed for the libellants, $19,975 for the schooner and $1921 for her cargo, with interest from the date of collision. Before the decree was passed, the respondents filed a petition wherein they alleged that proceedings in rem had been commenced in behalf of said parties against the steamer in the District Court of the United States for the Eastern District of New York for the recovery of damages for the loss of the said cargo. They therefore prayed that they might be permitted to show by proper evidence the whole amount of damages sustained by all of said parties, including the libellants, and the value of the steamer and her freight then pending; and that the decree of the court might be so framed as to give the libellants such part or proportion of the amount of damages sustained by them as the value of steamer and freight bore to the whole amount of damages sustained by all parties by the collision. In reference to this last defence the libellants insisted:
1. That the act does not embrace injuries to other vessels by collision, but only injuries to, or loss of, cargo on board the offending vessel; and
2. That if it did embrace injuries by collision, the District Court, in that proceeding, had no power to give the respondents the relief which they sought.
The District Court held that cases of collision were within the act, but deemed the jurisdiction of that court insufficient to give relief. On appeal the Circuit Court held that cases of collision were not within the act. Hereupon the libellants appealed to this court. The appeal brought up all the questions in the cause.
Messrs. R. H. Huntley and C. R. Ingersoll, in support of the ruling below:
The act of 1851 does not apply in any of its sections to a loss that may happen to any other ship or vessel (than the owner's vessel), or to any goods, wares, or merchandise or other thing being on board of any other ship or vessel.
The words 'loss, damage, or injury by collision,' in the 3d section, are to be construed by the context, and relate only to the property to which the other branches of the section relate, that is, property 'shipped, or put on board such ship or vessel.'
The circumstances which led to the passage of the act were notorious. The packet ship Henry Clay, a large, costly, and nearly new ship, lying at the wharf in the port of New York, having nearly completed her lading and being bound for Europe, took fire from some cause and was burned, with a cargo already laden amounting in value to perhaps half a million of dollars. Her owners, being losers to a very large amount by the burning of the ship, were proceeded against by owners of cargo to compel payment to them of its value. It was strenuously insisted, by way of defence, that even without any such statutes as exist in England, the owners could not be charged upon the usual rule of liability of common carriers at common law. No proof of actual fault or negligence, except so far as the occurrence of the fire in the ship might warrant such inference, was given or attempted. The owners were held liable. Pending that action an effort was made to procure some legislation from Congress to soften the rigor of the rule declared in that case.
Some years before the burning of the Henry Clay, and in the night of the 13th of January, 1840, the steamboat Lexington was burned upon Long Island Sound, and the disaster was accompanied by a painful loss of life and the destruction of a large amount of property. Litigation ensued, and the owners were held liable by this court, A.D. 1848, in the New Jersey Steam Navigation Company v. The Merchants' Bank. 
Both of these disasters and the hardships of the law against ship-owners as common carriers were commented upon in the debates which were had upon the act now in question. And an examination of those debates shows that it was the stringent rule of the common law which made common carriers of property liable for all losses (except such as were caused by the act of God or the public enemies), however free from actual fault or negligence, that was the subject of comment; and the apparent purpose, so far as it may be gathered from those debates, was to relax that rule. Nothing is said of injuries to other vessels, or the liability of ship-owners as principals for the tortious negligence of their ship-masters, officers, or crews, as their servants, by which the property of persons in no wise intrusted to them received injury. Nor was the rule of the common law which makes the master liable for the negligence of his servant in his business, the subject of review, criticism, or comment.
But passing to the act itself. It begins with a declaration that ship-owners shall not be liable for loss or damage by fire to any goods or merchandise whatever, shipped, taken in, or put on board, unless such fire is caused by the design or neglect of the owner. This has no other operation than to affect their relations as common carriers. The proviso to that section, that 'nothing in this act shall prevent the parties from making such contract as they please, extending or limiting the liability of ship-owners,' indicates that Congress believed that they were dealing with a question of liability which might be the subject of a contract, not with a liability for tortious negligence to parties who stood, and who could stand, in no relation of contract whatever with such owners. The proviso, though annexed to the first section, applies plainly to the whole act.
It may be conceded that the third section contains terms which, viewed apart from the residue of the act, are broad enough to include injury to other vessels by collision. But in the construction of statutes general words are restricted in their meaning by the subject-matter of the statute, the context and apparent intent; and in an enumeration of particulars followed by general terms, a restriction of the latter to cases or things ejusdem generis is according to settled rule. Thus in construing any particular clause or words of a statute it is especially necessary to examine and consider the whole statute, and gather if possible from the whole the intention of the legislature.
Now in this act other sections have sole reference to the relations of ship-owners as common carriers.
In the fourth section, the terms 'goods, wares, or merchandise, or any property whatever,' are equivalent to the words in the third section, 'any property, goods or merchandise,' and of the words, 'goods, wares, merchandise, or other property' in the sixth section; in each of which they relate solely to property of some kind put on board the vessel. And the phrase is added 'on the same voyage,' to confine the participation in the apportionment to the freighters for a single voyage, and not to permit the ship-owners to bring into the compensation losses sustained on prior or other voyages.
Our view has been affirmed in Massachusetts. 
If it is asked, what then do the words 'for any loss, damage, or injury by collision,' 'or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or suffered,' mean? the answer is, that having the responsibility of carrier at the common law in view, a responsibility which subjected the ship-owner for every loss not caused by the act of God, or the public enemies, some such words were necessary to cover all the grounds of their liability as carriers. It was not enough to specify 'embezzlement, loss, or destruction by the master, officers, mariners, passengers, or other persons' Collision and many other acts and things might occasion loss or injury to property intrusted to them as carriers, for which but for these words they would be responsible to the full amount. The collision in the case now under consideration furnishes an illustration: for the City of Norwich having on board a valuable cargo, that cargo was lost by the collision, and that loss would be within the terms of the section. Not only so, collision and many other acts, matters, things, losses, damage, and injury might happen, be 'done, occasioned, or incurred,' without any fault or negligence either of the ship-owners or their masters or mariners, and be due solely to the fault or negligence of other persons, or be an accident in such sense that faulty negligence could be imputed to no one, and yet the ship-owners would be liable. These classes of cases are therefore provided for, and are clearly within the design and object of the statute. There is, therefore, a large field for the operation of all the words of the third section, without extending their meaning to an injury to another vessel or goods on board thereof.
II. The act is made up from the English statutes of 7 George II, 1734, 26 George III, 1786, and 53 George III, 1813, and from a Massachusetts statute of 1818, and a Maine statute of 1821. Many of its provisions are taken bodily from those statutes, and their language cannot be interpreted without recurring to the history of that legislation.
Now the decision in Boucher v. Lawson,  that the ship-owner was answerable for an embezzlement of the cargo by the master, occasioned the statute 7 George II. This statute limited the owner's liability in respect of the wrongful acts of the master and mariners, such as 'embezzlement or other malversation.' 'This act,' said Buller, J., in Sutton v. Mitchell,  'is as strong as possible, and was meant to protect the owner against all treachery in the master or mariners.' It was passed for the protection of the ship-owner as a carrier. Freighters, and owners of property on board his vessel, but no one else, were affected by the limitation it placed on his liability.
The statute of 26 George III, 1786, followed the decision in Sutton v. Mitchell. By it the ship-owner's liability was now further limited, when his freighters lost their goods by robbery or fire on board his vessel. But if his vessel had by negligence set fire to another vessel and her cargo, the statute did not relieve him from his common law responsibility. It is also certain that his liability was not limited by this act in case of any loss happening, even to his own freighters, by collision.
The statute 53 George III, 1813, which was next passed, made important innovations. It specifically contemplated two descriptions of losses, one to the cargo laden on board the ship, and the other to a disconnected ship and her cargo. It also, for the first time, contemplated acts omitted to be done, 'neglects,' as well as acts to be done, without the fault or privity of the owner. Its main provision was as follows:
'That no person or persons who is, are, or shall be, owner or owners, a part owner or part owners, of any ship or vessel, shall be subject or liable to answer for or make good any loss or damage arising or taking place by reason of any act, neglect, matter, or thing done, omitted, or occasioned, without the fault or privity of such owner or owners, which may happen to any goods, wares, or merchandise, or other thing laden or put on board the same ship or vessel after the 1st of September, 1813, or which, after the said 1st September, 1813, may happen to any other ship or vessel, or to any goods, wares, or merchandise, or other thing, being in or on board of any other ship or vessel, further than the value of his or their ship or vessel, and the freight due, or to grow due, for and during the voyage, which may be in prosecution or contracted for, at the time of the happening of such loss or damage.'
No language can be clearer than that which it was here deemed necessary to employ in extending the limitation to other property than that on board the ship. It was not until after, and in full view of all this legislation by Great Britain, that any act was passed in this country limiting the common law liability of the ship-owner to any extent.
Stanutes of Massachusetts and Maine comprise all the legislation in the United States before the act of Congress of 1851. The act of 1851 is copied largely from them.
The statutes of Massachusetts and Maine ignore the act of 53 George III. Both relate only to the loss by embezzlement or other malversation of the master or mariners of the property on board the ship. The words which are copied into both of them from the English statute, 'any act, matter, or thing, damage or forfeiture done, occasioned or incurred by the said master or mariners without the privity or knowledge of such owner,' can relate, as they manifestly do in the English act, only to acts done affecting the property on board the ship.
III. But if our view in all this matter is wrong, and the act of 1851 has the scope claimed for it on the other side, there remains the point made by the District Court, to wit, that that court cannot give relief. It is obvious that the action asked for is the action of a court of equity. But our District Courts are not courts of equity.
Moreover this proceeding is not an 'appropriate proceeding' to enforce an apportionment. The defendants do not prove that they have paid or offered to pay to any one the value of their vessel; but only that certain undertermined claims for damages subsist against them. Where is the power to convert this simple proceeding between two persons into a proceeding for the condemnation of property and the apportionment of a fund in which many other persons living in various jurisdictions may be interested?
Messrs. G. B. Hibbard, E. H. Owen, and J. Halsey, contra.
Mr. Justice BRADLEY delivered the opinion of the court.
^1 9 Stat. at Large, 635.
^2 6 Howard, 344.
^3 Walker v. Insurance Company, 14 Gray, 288.
^4 Reports Temp. Hardwick, p. 85.
^5 1 Term, 20.