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jacent foreign country, upon a contract of continuous shipment by this water company, partly over railroads and partly over its own water route, and such goods were received in transit on this through rating under a conventional division of charges, such water company must be deemed to have subjected its road to an arrangement for a continuous carriage or shipment within the meaning of the act to regulate commerce. For this purpose the evidence was competent, and we do not think that the objections to it raised in the fifth, sixth, seventh, eighth, ninth, and eleventh reasons for a new trial are well taken. Cincinnati, etc., Railway Co. v. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935.
Fourth. The information charges that this defendant received
"A rebate and concession of and from the full and lawful rates and charges then and before then established and published by the said common carriers, as aforesaid, and filed with the Interstate Commerce Commission, as aforesaid, by the said Baltimore & Ohio Railroad Company, the said Philadelphia & Reading Railway Company, the said Mutual Transit Company, and the said Great Northern Railway Company, and being then and there and at the time aforesaid in full force and effect, to wit, the aggregate rate and charge of forty-nine and one-half cents per hundred pounds."
In order to prove the established and published rate which had been filed with the Interstate Commerce Commission, the government was permitted to offer in evidence the tariff filed by the Baltimore & Ohio Railroad Company and the supplements and amendments thereto, the tariff filed by the Great Northern Railway Company, and the tariff and supplements filed by the Reading Railway Company. It was necessary under the act to prove these allegations, and the evidence offered and admitted was competent for that purpose. The fifth reason, therefore, for a new trial, is overruled.
Fifth. The remaining reasons for a new trial, being 18 in number, are all taken to the charge of the court. They bring practically the entire charge to the jury upon the record. They raise the following questions:
(1) That these iron pipes having been shipped from Camden, in the state of New Jersey, the defendant could not be charged with having taken a rebate on joint tariffs filed and published from Philadelphia, as the initial point, to Winnipeg, as alleged. The information, however, charges Philadelphia as the initial point, and that the pipes were lightered over the river to the point of shipment, which, as the government contends, would be analogous to carting or any method of local transportation from the works to the place of loading on the railway, which I think is the correct view.
(2) All the other questions raised, we think, are fully answered by the charge as a whole, which, after a somewhat patient examination of the law, we think is a correct statement as applied to the facts in this case. It was, however, strongly urged in the argument for a new trial that the court erred in its answer to the jury, when they asked for further instructions, in that the jury were improperly instructed as to the effect of evidence of participation in the rates filed and published. The act provides that:
"Whenever any carrier files with the Interstate Commerce Commission or publishes a particular rate under the provision of the act to regulate commerce or acts amendatory thereto, or participates in any rate so filed or published, that rate as against such carrier, its officers, or agents in any prosecution begun under this act shall be conclusively deemed to be the legal rate, and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this act." Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599].
In a prosecution of a shipper, however, it is urged by counsel for the defense that, because of this provision, evidence of participation on the part of the common carrier who gave the rebate, with the receipt of which the defendant is charged, must be entirely excluded. This we do not think is the proper view. The above provision, quoted from the latter part of section 1 of the Elkins amendment, simply provides the rule as to the effect to be given to evidence of participation when a carrier is being tried for a violation of the act; but it did not in any way affect the admissibility of evidence as to a shipper who is forbidden to receive a rebate under the act. In cases where the shipper is being tried for receiving a rebate, it is necessary to show that the carrier who gave it was at the time subject to the provisions of the act; and in order to do so, in the absence of any express agreement on the part of such carrier to show common control, management, or arrangement for the transportation of property under the rates filed and published, it is necessary for the government to prove such common control, management, or arrangement by any facts and circumstances which would show the carrier giving the rebate was under such control, management, or arrangement at the time; and in order to do that evidence was admissible to show that when such goods were received in transit by the Mutual Transit Company they were received under a conventional division of charges, and, if they were so received, such carrier must be deemed to have subjected its line to an arrangement for a continuous carriage or shipment within the meaning of the act to regulate commerce. Cincinnati, etc., Railway Co. v. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935. So that it would seem to me that evidence of participation on the part of the Mutual Transit Company, in accordance with the tariff rates filed and published, was some evidence, and properly submitted to the jury, upon the question as to whether there was such an arrangement between the railroads and the water company.
The evidence as a whole was uncontradicted, and the defense was technical throughout, excepting as to the question as to whether the amount received by the defendant was a rebate or repayment of an overcharge. The government contended it was a rebate. The defense claimed that it was simply a mistake or overcharge in freight, which was properly returned. This was submitted to the jury, and their verdict establishes the fact that it was a rebate. In fact, I do not see how they could have come to any other conclusion. There was nothing in the evidence to warrant the jury in finding in favor of the defendant's view by the most strained and forced construction that could have been put upon the facts in the case. All the questions
raised by the defendant were properly submitted to the jury, and the verdict of guilty is amply sustained.
The motion in arrest of judgment and for a new trial should be overruled; and it is so ordered.
(District Court, D. South Carolina. January 31, 1907.)
There is no admiralty jurisdiction under the general maritime law authorizing the maintenance of a proceeding in rem against a vessel for the death of a person injured as the result of negligence.
[Ed. Note. For cases in point, see Cent. Dig. vol. 1, Admiralty, §§ 285, 218, 219.
Admiralty jurisdiction of torts, see notes to Campbell v. Hackfield & Co., 62 C. C. A. 279.]
2. INJUNCTION-ACTION IN STATE COURT-SHIPPING-LIMITING LIABILITY.
Rev. St. § 4283 [U. S. Comp. St. 1901. p. 2943], provides that the liability of the owner of any vessel for injury by collision, or for any other act, damage, or forfeiture done, etc., without the privity or knowledge of such owner, shall not exceed the value of his interest in the vessel and the freight then pending; and section 4284 declares that, if the value of the vessel and freight is not sufficient, the claimants shall receive pro rata compensation only, etc. Held, that where there was only a single claimant against a vessel for death alleged to have resulted from neglìgence, and an action therefor was brought against the owner in the state court, he was entitled to set up his limited liability as a defense in such court; and the fact that the extent of his liability had been determined in an ex parte proceeding in a federal court did not authorize an injunction restraining the claimant from the prosecution of his action in the state court to recover, the amount of such limited liability.
[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 72: vol. 13, Courts, § 1418.
Federal courts enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]
3. SHIPPING-TORTS-DEATH-LIABILITY-LIMITATION-ADMIRALTY - JURISDIC
Whether an action against the owner of a vessel in a state court for wrongful death is one of limited liability, under Rev. St. §§ 4283, 4284, et seq. [U. S. Comp. St. 1901, p. 2943], is a question of admiralty and maritime jurisdiction, which must be determined by the federal courts. [Ed. Note. For cases in point, see Cent. Dig. vol. 44, Shipping, § 646.]
W. Turner Logan, for the motion.
Mitchell & Smith, for the Lotta.
BRAWLEY, District Judge. The question for decision is whether this court will enjoin the prosecution in the state court of a suit there pending, brought by Vose, as administrator, against the owner of the steamboat Lotta for the recovery of damages for the death of his son. The Lotta is a small steamboat owned in Charleston, and is engaged in the transportation of passengers in and about the harbor and the adjacent waters, on which the intestate was a passenger May
6, 1906, and the complaint in the state court alleges such fault and negligence as renders the owner liable for damages for his death. Section 2851 of the Civil Code of South Carolina provides as follows: "Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person or corporation who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony."
Subsequent sections provide for the manner and time in which such suits shall be brought. It was held in The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358, that, in the absence of an act of Congress or a state statute giving a right of action therefor, a suit in admiralty could not be maintained to recover damages for the death of a human being caused by negligence; and subsequently, in The Corsair, 145 U. S. 347, 12 Sup. Ct. 949, 36 L. Ed. 727, it was said that the courts of admiralty will look to the local law for the right to take cognizance of this class of cases. "If it merely gives a right of action in personam for a cause of action of a maritime nature, the District Court will administer the law by proceedings in personam. *** But, unless the lien be given by the local law, there is no lien to enforce by proceedings in rem in the court of admiralty."
The Circuit Court of Appeals of this circuit, in The Glendale, 81 Fed. 633, 26 C. C. A. 500, said that the Virginia statute, which expressly gave to the party injured a right to maintain an action or to proceed in rem against a ship or vessel, gave jurisdiction to the court of admiralty; but, as there is no such right given by the South Carolina statute, it seems that this court would be without jurisdiction in rem, as no such jurisdiction exists under the general maritime law. The action in the state court is in personan, and the owner of the Lotta, after the commencement of such suit, filed her petition in this court for a limitation of liability under the act of 1851 (Act March 3, 1851, c. 43, 9 Stat. 635), and by an ex parte proceeding has had the Lotta appraised, and has paid the appraised value thereof into the registry of the court and obtained an order of injunction restraining the prosecution of the suit in the state court. This was without notice to the plaintiff in the state court, who now moves to dissolve that injunction. The judiciary act (section 563, subd. 8, Rev. St. [U. S. Comp. St. 1901, p. 457]) expressly saves to suitors in all cases the right of the common-law remedy where the common law is competent to give it. As the right of action here was created by a state statute enacted subsequent to the passage of the judiciary act, it might be contended that the saving clause above cited should be limited to such causes of action as were known to the common law at that time; but, although not directly decided, it seems to be fairly inferable from Steamboat Company v. Chase, 16 Wall. (U. S.) 532, 21 L. Ed. 369, that this saving clause is applicable in all cases where the action in the state court is in form a common-law action against the person, without any of the ingredients of a proceeding in rem to enforce a maritime lien.
If this conclusion is correct, then it follows that the plaintiff in the
state court has the right to pursue his remedy in the forum selected, unless the act of 1851 providing for a limitation of liability clearly deprives him of it. This act is now contained in sections 4282-4289 of the Revised Statutes [U. S. Comp. St. 1901, pp. 2943-2945]. The great object of this law, as set forth by Justice Bradley in Norwich & N. Y. Transportation Company v. Wright, 13 Wall. (U. S.) 104, 20 L. Ed. 585, was to encourage shipbuilding and to induce capitalists to invest money in this branch of industry. They would not be likely to do so if, in addition to exposing their property to the hazards of the sea and to the management of seafaring men, they were to be made liable beyond the value of their vessels to losses and damages to an indefinite amount. To subserve that object the statute should be liberally interpreted, and the owners of ships should not be subjected to the payment of any damages beyond the value of their property; but a liberal interpretation does not demand such a construction as would enable parties invoking it to serve another and different purpose to that for which it was intended. The plaintiff in the state court is within his rights in asking to be allowed to pursue the remedy which the statute gives him to have his case tried by a jury, as is usual in common-law proceedings; and unless the statute for the limitation of liability, by its terms or by necessary implication, is intended to or does take away that right, the law which gives to this court its jurisdiction in "all civil causes of admiralty and maritime jurisdiction" expressly reserves to all suitors the rights of the common-law remedy.
Section 4283 of the Revised Statutes [U. S. Comp. St. 1901, p. 2943] provides:
"The liability of the owner of any vessel for any embezzlement, loss or destruction, by any person, of any property, goods or merchandise, shipped by him on board of such vessel, or for any loss, damage or injury by collision, or for any act, matter or thing lost, 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, and of such vessel and her freight then pending."
This is the section declaring the limitation of liability.
"Where any such embezzlement, loss or destruction is suffered by several freighters or owners and the whole value of the vessel, etc., is not sufficient to make compensation to each of them they shall receive compensation in proportion to their respective losses, and for that purpose the freighters and owners and the owner of the vessel may take the appropriate proceedings in any court for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties entitled thereto."
Section 4285 [U. S. Comp. St. 1901, p. 2944] provides:
"The owner, etc., may transfer his interest in such vessel for the benefit of such claimant to a trustee to be appointed by any court of competent jurisdiction, to act as such trustee for the person who may be proved to be legally entitled thereto, from and after which transfer all claims and proceedings against the owner shall cease."
Rule 54 (11 Sup. Ct. iv) of the Supreme Court, promulgated May 6, 1872, and amended January 26, 1891, provided for the carrying into effect of the above-mentioned statute. Obviously, when there are