32. Both engines had passed the 'starting point'. This is the time at which the danger of explosion is greatest.
33. Any gas vapors which were present after the passing of the starting point would have been consumed by the operation of the engines, and the atmosphere would have been renewed.
34. Coast Guard Inspector Maguire found no objective evidence which would warrant the taking of disciplinary action against the master.
The pertinent statutory provisions are contained in 46 U.S.C.A. §§ 183-185. These provide in substance that an owner of a vessel may limit his liability for damage where the loss was occasioned without his privity or knowledge.
Petitioner Bogan, since he is the owner of the Paramount III, is clearly entitled to bring this proceeding.
We first proceed to an inquiry as to whether there is liability, for without liability there would be nothing to limit. See Petition of Liverpool, Brazil & River Plate Steam Nav. Co., 2 Cir., 1932, 57 F.2d 176. The burden of proof as to the existence of this element rests upon the claimants. See The Vera III, D.C.E.D.N.Y., 1938, 24 F.Supp. 421. However, it is contended that in a case of this type the doctrine of res ipsa loquitur applies, and thus on proof of an explosion of extra-ordinary character, occurring out of the ordinary course of events, while the vessel was in the exclusive control of the petitioner, an inference of negligence is warranted. See Austerberry v. United States, 6 Cir., 1948, 169 F.2d 583.
This doctrine has been held to apply in admiralty cases. See Austerberry case, supra; Leathem Smith-Putnam Navigation Co. v. Osby, 7 Cir., 1935, 79 F.2d 280. Particularly has it been applied in situations where there was an explosion and a fire in a confined space, caused by the ignition of gas fumes. See Austerberry and Leathem cases, supra.
In the instant case the fact of the explosion has been established. The explosion was extraordinary in character, out of the ordinary course of events, and occurred while the vessel was in the exclusive control of the master. Therefor master. Therefore the application of res ipsa is justified and warrants an inference of negligence on the part of the master.
The burden of proof now shifts to the petitioner and places upon him the duty of proving his right to limit his liability. See The Vera III, supra. This right exists only where the damage was occasioned without the privity or knowledge of such petitioner-owner. See 46 U.S.C.A. § 183(a).
In the case of an individual owner, privity or knowledge used in the statute means some personal participation of the owner in the fault or negligence which caused or contributed to the loss or injury. See Coryell v. Phipps, 1943, 317 U.S. 406, 63 S. Ct. 291, 87 L. Ed. 363. It therefore becomes the duty of the Court to see whether the petitioner participated in the negligence of the master.
The evidence shows that the petitioner was not at the scene of the explosion until after it happened. He testified to having made daily personal inspections of the Paramount III for leaks and also to having given specific instructions to the master for the conduct of inspections. In addition there was testimony that the master was a licensed operator, fully competent and with a fine reputation.
Where such facts are established, and in the absence of further pertinent statutory pronouncement, it is generally held that the owner may limit his liability. See Coryell case, supra; Petition of Tracy, D.C.S.D.N.Y. 1950, 92 F.Supp. 706; The Trillora II, D.C.E.D.S.C. 1947, 76 F.Supp. 50; The Spare Time ii, D.C.E.D.N.Y. 1941, 36 F.Supp. 642. Of course where the owner has knowledge of the condition, he cannot secure limitation even where he has properly delegated his duty. See The Silver Palm, 9 Cir., 1937, 94 F.2d 776.
However, the statute also provides that in the case of 'seagoing vessels' the privity or knowledge of the master at or prior to the commencement of each voyage, shall be conclusively deemed to be the privity or knowledge of the owner. See 46 U.S.C.A. § 183(e). Under this subsection our first inquiry is whether Paramount III is a 'seagoing vessel'. Section 183(f) provides that '* * * the term 'seagoing vessel' shall not include pleasure yachts, tugs, towboats, towing vessels, tank vessels, fishing vessels or their tenders, self-propelled lighters, nondescript self-propelled vessels, canal boats, scows, car floats, barges, lighters, or nondescript non-self-propelled vessels vessels * * *.' See 46 U.S.C.A. § 183(f).
The Paramount III was, in common parlance, a party fishing boat. As such her berth was in the Manasquan River and her normal operation was down the River and some eight to ten miles out into the Atlantic Ocean. She was never out overnight but spent the nights tied up to her berth.
It is the contention of the petitioner that Paramount III was a fishing vessel within the meaning of the statute and thus not included within the term 'seagoing vessel' as used in section 183(f). The statute refers, in plain words, to fishing vessels. If Paramount iii is a fishing vessel, then it should not be included within the meaning of 'seagoing vessel' if we are to give effect to the statute as it stands. If the boat is not a 'seagoing vessel', then section 183(f) has no application in this matter.
First of all rises the question of what constitutes a seagoing vessel. vessel. Patently any vessel which is engaged in foreign, coastwise or intercoastal commerce is a seagoing vessel, no matter where she may be located or berthed at any particular time, or in what limited harbor or river traffic she may be engaged on specific occasions. And it would seem entirely logical that any vessel which regularly sailed 'outside the headlands or fauces of a harbor, or * * outside the boundaries of 'inland waters' as established by a competent authority, * * *' is seagoing. See Benedict on Admiralty, 6th Ed., Vol. 3, p. 405.
If this question were to be settled by the conclusion that the Paramount III is a 'seagoing vessel', the next matter for determination would be the question of whether she was a fishing vessel within the comprehension of R.S. § 4283, 46 U.S.C.A. § 183. She was licensed for the coasting trade and mackerel fishery. At first blush, this would seem to indicate that she was within the excepted classification of subsection (f), 46 U.S.C.A § 183. But the vessel was actually used, not for commercial fishing, but rather for carrying enthusiastic amateur piscators to available fishing grounds off the Jersey Coast, outside Manasquan Inlet. Indeed, when the vessel was originally licensed in 1939, she was licensed for coasting trade, with the specific indication that it was for passenger service. It would seem that Congress in excepting 'fishing vessels', had in mind those vessels engaged in catching fish as a regular business and for purposes of commerce and trade.
Having in mind the findings of fact arrived at, and the statutory provisions above referred to with their logical connotations, the Court arrives at the following
Conclusions of Law
1. The explosion on board the Paramount iii was such an accident as warrants an inference of negligence on the part of the master.
2. The Paramount iii was a seagoing vessel.
3. It was not a fishing vessel within the meaning of the statute.
4. There was privity or knowledge on the part of the owner.
5. Petitioner, therefore, is not entitled to limit his liability.
Let an order be submitted in conformity herewith.
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