Enterprise (Propeller), 4 Feb 1892

In the only decision of, a maritime nature handed down by the supreme court of the United States for some time past, Judge Brown, formerly of Detroit, and now justice Brown of the supreme court, is upheld. The case is that of Craig vs. the Continental Insurance Company. It dates back to 1883 when James J. Reardon, now of Crosby & Macdonald, Chicago, represented Crosby & Dimick, insurance agents of Buffalo. Mr. Justice Blatchford delivered the opinion of the court in which the case is stated as follows:
"This is an action at law brought by Thomas Craig, administrator of the estate of John Carbry, deceased, against the Continental Insurance Company of New York and three other insurance corporations, to recover under a statute of Michigan $25,000 as damages for the death of Carbry, it being alleged that he lost his life through negligence of the defendants in, December, 1883. It was commenced in the superior court in the city of Detroit and was removed by the defendants into the circuit court of the United States for the eastern district of Michigan. The defendants were insurers against marine risks of a steamer called the ENTERPRISE. She was stranded Nov. 20, 1883, at Green island, Lake Huron, and had on board a cargo of merchandise and a crew of ten or twelve men . Her owners abandoned her to the insurers and she became the property of the latter. The general agent of the Continental Insurance Company was Mr. Dimick of Buffalo, who was also a member of the firm of Crosby & Dimick, who were general agents for several other companies. James J. Reardon was employed by Crosby & Dimick as a marine inspector. Among his other duties was that of going, when notified, to the assistance of wrecked and stranded vessels insured by the companies represented by Crosby & Dimock, and getting them to a port of safety. On Nov. 29, 1883, Reardon was notified by Crosby & Diniock in regard to the ENTERPRISE and went with a steam tug called the BALIZE, with steam pumps and engineers to the assistance of the ENTERPRISE. One of the steam pumps was in charge of Carbry. Soon after their arriving at the place where the ENTERPRISE was, her crew being still on board and in charge of her, the steam pumps were set up and she was pumped out and pulled off from the place where she had stranded. This was done under the supervision of Reardon. She was towed in deep water, and although she leaked, she was kept free by the use of one pump for about 66 hours, from 10 o'clock Thursday morning until 4 o'clock the following Sunday morning. Part of her cargo had been removed but it was replaced. Her machinery was disabled and it was necessary that the BALIZE should take her. in tow, to remove her to a port where she could be repaired. She started in tow astern of the BALIZE, bound for Detroit, at 4 o'clock Sunday morning, Dec. 9, with a crew of thirteen men, including four who were in charge of two steam pumps, one of which was in the care of Carbry. Her mate was in command and Reardon was aboard the BALIZE. No trouble was experienced until 2 o'clock 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. 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 United States circuit court before the district judge, judge Brown (now of this court) and a jury; and under the instructions 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 $8,000 on motion and in February, 1886, the verdict was set aside and a new trial was granted. 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 the statute limiting the liability of the owner of the vessel, 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 defendants, which was done. The plaintiff excepted to the instructions 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 bad 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."
The principal contention on the part of the plaintiff was that the statute limiting the liability did not apply to the case because the vessel had been wrecked and abandoned to the underwriters; that they could not 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. The court held, first, that the propeller was still a "vessel" within the meaning of the statute. Second, an underwriter to whom a stranded vessel has been abandoned is an "owner" within the meaning of the statute, Third, the statute applies to cases of personal injury and death as well as cases of loss or injury to property. Fourth, the restriction of the statute limiting the liability of vessels not "used in rivers or inland navigation" does not apply to a vessel used on the great lakes. Fifth, the "privity or knowledge" of a wrecking master employed by the agent of the underwriter is not the "privity or knowledge" of the owner, within the meaning of the statute limiting the liability so as to charge the owner with responsibility for the negligence of the wrecking master beyond the value of the vessel.
      The Marine Review
      February 4, 1892