CHINESE CREWS AND THE WRECKING OF THE "RIO." No. 12368. m THE itatrirt (Enurt af % Ittttfi ^tatpa /W ylA^D FOR THE NORTHERN DISTRICT OF CALIFORNIA. IN ADMIRALTY. In the Matter of the Petition of the PACIFIC MAIL STEAMSHIP COMPANY, Owners of the Amer lean Steamship ** City of Rio de Janeiro,'' for Limitation of Liability ARGUMENT OF WILLIAM DENMAN, FOR THE CLAIMANTS INDEX. Page 1. Negligence in bringing in the ship in the fog, darkness, ebb tide and freshet water 1 2. Testimony showing said negligence 11 3. Authorities that ship is liable for the negligence of the pilot. 15 4. The insufificiency of the Chinese crew supplied by the owners, thus defeating their right to a limitation of liability.... 16 5. Authorities supporting same 18 6. Evidence supporting same 27 7. Summary of occurrences at the wreck 53 THE STAR TRESS— JAMES H. BARRY— S.F. « 5 e> ^ ;\ I.IBRIS •4^;^ SAJJ C^VRLOS 1/09 Point Lobos. Rio's anchorage (i'. miles to Fort). Point Bonita (J' j miles to Fort). The Gate. Fort Point. The Outer Bay looking North. Points Lobos and Bonita uh; "Heads") on the West, ind Foit Point and the Gate on the Ea; IN THE MATTER OF THE PETI- \ TION OF THE PACIFIC MAIL STEAMSHIP COMPANY, OWN- ER OF THE STEAMSHIP '^RIO DE JANEIRO," FOR LIMITA- TION OF LIABILITY. j No. 12368 \ January 20, 1903. Argument of William Dcnman for the Claimants. FIRST ISSUE. THE NEGLIGENCE IN BRINGING IN THE SHIP IN THE FOG AND DARKNESS, IN . THE EBB TIDE AND THE FRESHET WATER. There are two distinct and separate issues in this case. The first is, ' ' Is the petitioner liable for the loss of life and baggage in this disaster?" The second is, ' ' Can the petitioner limit its liability to the value of the ship and the freight pending?" The first issue is that of the ordinary damage suit for loss of life by the negligent wrecking of a ship carrying passengers at sea. The second is something entirely different and arises from an extraordinary relief given to stup owners under certain circumstances by a United States statute. In the discussion of the first issue we shall confine ourselves to the negli- gence of those in control of the ship in bringing the Rio into the Golden Gate, under the condi- tions of darkness, of a heavy fog, of a strong ebb tide, of winter freshets, and of known insufficient marking of threatening rocks. Under the second we will show from the evi- dence that the owners themselves, by failing to comply with a United States statute regulating passenger carriers at sea, actually participated in the negligence which occasioned the deaths by which our claimants have been injured. Judging from awards made by this Court in similar cases, the claimants can show damage amounting to somewhere between $55,000 and $60,- 000. The fund in the registry amounts to about $25,000 with interest. In support of our first issue we shall confine our- selves to the testimony of the petitioner's prize witness, the pilot Jordan. From his testimony it appears that the ''City of Rio de Janeiro, ' ' engaged in carriage of passen- gers by sea and having on board 211 souls, arrived off the coast of California on the afternoon of Feb- ruary 21, 1901. As is quite customary at this sea- • 1 • • .-. '. , ..'••i * > . • < ......... .•••,••- •,♦ '. J VK f^ son of the year, the coast was fog bound and the vessel came to anchor outside this port near the thirteen-fathom buoy, which is about a mile out- side the heads and three and a half miles distant from the Golden Gate. The night continued foggy, he says, at least until 9 o 'clock, when he retired. At a few minutes before 4 on the following morning the pilot was called and went on deck. At that time, according to his testimony (p. 11), the weather was clear IN PLACES. He was able to see the Point Bonita light, at the northwest head of the outer bay, nearly ahead ; the lights on Point Lobos, the south head, lay on his starboard quarter, but he could not see the Fort ^ Point light, which lies between the two heads and en '^ at the eastern end of the outer bay, two and a half 5 miles distant, and at the western end of the Golden , Zi Gate. He could see the bank of fog lying in the g inner bay and coming down to the mouth of the gate itself and obscuring the Fort Point light. The tide was ebbing, as is indicated from the position of the ship as she lay at anchor. It had been rain- ing and it was the season of spring freshets, which, coming down from the watersheds of the San Joaquin and Sacramento, re-onforce the re- turning tide of the bay with a furious current. The almanac shows that the sun rose on that day at 6:40, so that it was now over two and three- C3 C3 3i)2o87 quarter hours before sunrise and quite dark— how dark can best be determined from the fact that an hour later, when the ship sank, it was impossible to distinguish Chinese from white men across the deck. There was no moon, so we can assume that at the lime the pilot came on deck it was as dark as it could be. It was under these conditions that the conversa- tion took place between Captain Ward and the Pilot regarding the bringing in of the ship. Look- ing at the trial of this case from its dramatic stand- point—and every young attorney who loves his profession necessarily must— I feel the keenest re- gret that I was unable to bring out on the stand here the exact words that were then spoken. The deliberation seems to have lasted from 4 o'clock until 4 :35, when the ship finally started ahead ; and in the desultory debate of those thirty-five min- utes hung in the balance the lives of one hundred and twenty-seven human beings. For some reason not given, the pilot is unable to tell us any of the sentences that passed between them. It is not for us here to fix the blame on one or the other of these two ; other tribunals have that jurisdiction. From the testimony of the pilot, they both finally agreed that they would make an attempt to enter that narrow tidal river which, in a metaphor only too grimly true for the poor souls below in their bunks, had been named the Golden Gate. At 4:25, according to Mr. McAllister's state- ment, the anchor was hove short, and then for ten minutes longer, while the ship was drifting in the tide, this same debate continued, until at 4 :35 the captain gave the order, ''Let her go." Now, what was it that made them hesitate for those ten min- utes after they had hauled up the slack of their anchor chain? Let us try to picture something of what was passing through the minds of these men to whom were entrusted the lives of all those pas- sengers. In the first place, there was the Golden Gate it- self, a narrow channel through which they must steer by a course that lay less than a quarter of a mile from the sunken rocks that hedge its southern shore. So short is the distance between the high bluffs on each side of the channel that once in it, in the pilot's own words, he could not "in any safety" turn back to his anchorage. It might be done in clear weather, he says, but not in a fog. Once inside they knew they must go ahead. In the second place, there is the great depth of water inside the heads— so deep that you could not sound for the bottom and thus determine the location of the ship without stopping and drifting with the tide. In the pilot's own words, you could not sound, because "you would have to stop the ship, and then the ship would have been in dan- 6 ger— more danger tlian going ahead." Once in- side the heads, they knew that they must run for two and a half miles where it was impossible to get any bearings, save from the fog horns, whose clamorous echoes in the high cliffs running down from Mount Tamalpais are most deceitful. In the third place, the sunken rocks inside the heads are so dangerous that they are supposed to be marked with bell buoys. Mile Rock has such a buoy, but in the language of the pilot, ''you never can hear it over probably 100 yards or so." And this further menace must have gone through his mind in those ten minutes of hesitation. In the fourth place, there was the darkness of a moonless night. Fog in the day is bad enough, but at night one could not even discern the cliffs that overhang the entrance of the Gate. In the day- light these cliffs loom up through the fog for quite a distance, and in a general way may indicate the course of the channel ; but now it was absolute darkness. Did they think of this also as they drifted those ten minutes in the tide? That will never be known, but if they failed to consider it, that failure also constituted negligence. In the fifth place, there was the ebbing tide, pour- ing through this narrow channel not only the re- turning waters of the entire bay of San Francisco, but also the spring freshets of the Sierras and the Coast Range, collected from the great watersheds of the Sacramento and San Joaquin Valley, over 25,000 square miles in extent. This enoi-mons body of water inishes out of the Golden Gate into the outer bay formed by Point Lobos and Point Bonita, and eddies and swirls in currents and cross-cuiTents of every conceivable character, just as in the pool at the foot of a river cascade. Only here the forces at play are so tremendous that this iron ship, sinking to the bottom of the outer bay, was dragged along the floor of the sea so far from the point of her wi'ecking that the most diligent soundings and diving for several miles around have failed to locate her. In the sixth place, and most important of all, the deterring influences that caused that half hour of debate and hesitation on the part of the captain and pilot was the land fog— "thick like steam," to use the pilot's language— which hung in a great bank over the inner bay, covering the Fort Point light, but not reaching quite out to the heads. Says the pilot, "I hesitated because I thought possibly this fog might come out. Sometimes it does, some- times it only reaches down to the heads, sometimes it comes out altogether." The captain thought it would clear up by daylight, as this was often the case, and the pilot agreed with him. Was it any wonder they hesitated to take these 8 211 human beings into tliat tidal canon, so narrow that once in they cannot turn back if there is a fog ; so deep that they must stop the ship to take sound- ings ; in an ebb tide and freshet water so swift and with such cross-currents that it was more danger- ous to stop and take soundings than it was to go ahead in the fog without them; where they must pass sunken rocks of which the tinkle of the bell buoys gave no warning beyond a hundred yards — and all in the darkness of a moonless night? The wonder to my mind is that the Pacific Mail Steam- ship Company, bidding for the passenger traffic of the Pacific Ocean, dares appear in open court and claim that it was proper seamanship to even con- sider bringing the ship in under these circum- stances. Why! it was negligence to risk the fog in that narrow chaimel at any time, and tenfold indefensi- ble in view of the likelihood of the fog— a land fog —dissipating with the sunrise. It was greater neg- ligence to bring her in, in the fog and darkness combined ; for if the sunrise did not dissipate the fog, it would at least have caused the Marin hills to loom up in it and have given some notion of where they were. But most monstrously negligent of all was the attempt to find that narrow opening in the fog and darkness, in the ebb tide and freshet water with its eddies and cross-currents, when by 9 waiting less than four hours till slack water, be- tween the tides, they would have had a good forty- five minutes, when the current is absolutely stilled, to run the four miles that would have taken them from their anchorage through the Gate and into the inner bay. Leaving aside entirely the question whether or not it was negligence to leave their safe anchorage and to attempt to nose into the Gate before the fog caught them, their negligence was established be- yond the slightest question when they continued their course after running into the fog some two and a half miles from the entrance to the Gate. Then the very thing had occurred which the pilot by his own testimony admits had caused him to hesitate even after he had hove his anchor up short. The fog had come out of the harbor. His testimony is that he encountered it when the ship was just about abreast of Point Bonita Light- house, which lies in an air line about two and a half miles from the rock by the Fort on which they were wrecked. Two and a half miles in air line we must note, because at that time the ebb tide carried with it a current which could not have been less than five or six miles an hour. This meant that to reach the rock just off of Fort Point, on which they were finally wrecked, they must travel over four miles of water. Now, it cannot be for a moment contended that 10 this fog came on the pilot suddenly, dropped down from a clear sky as it were, and caught him in this trap before he could retreat, for he stated here on the stand before your Honor that he ran for half a mile in the fog before it became too thick for him to go about and steam to his safe anchorage. Ap- parently he said to himself, "I have taken the chances up to this point and I might just as well risk the whole game." Whatever may have been in his mind, however, he took the chances and if there had been any doubt or any question of his negligence up to this point, it becomes fixed upon him from the moment that he continued on his course after he ran into the fog bank which had obscured the Fort Point light. And what was that course f Without burdening the Court with the consideration of the details of steering on that morning, it is sufficient to say that the course the pilot had chosen carried him within a quarter of a mile of the rock on which he was wrecked. He entered the fog at a point two and a half miles in an air line and four miles of water travel distant from that rock. This means that, if in traveling in the fog, guided only by the treacherous signals of the fog horns reverberating in the Marin hills, he should be carried out of his course by the conflicting and whirling currents of this ebb tide a distance to the south of but one- sixteenth of the distance to be travelled to the 11 Gate, he must of necessity wreck his ship. The course chosen was negligent in itself, and it be- comes a matter of indifference from this stand- point whether or not the gate were a mile or twenty miles wide. They did go ahead in the fog ; they were swung off of their course a quarter of a mile in those four miles. They did strike on a sunken rock, whether or not one of those protected by the bell buoy that did not ring does not appear. The ship was wrecked and has never been found. One hundred and twenty-seven people were drowned. The very thing that they feared would happen as the ship swung in the tide or drifted in it a mile there out- side of the heads, did happen. They took their chances, played in poor luck, and incidentally drowned one hundred and twenty-seven people. I am now going to read, your Honor, in closing my argument on this first issue in the case, a few excerpts from the testimonj^ of Pilot Jordan, which bear out, to the smallest detail, the statements I have just made to you : p. 11. Q. How was the weather when you were called? A. It was clear, CLEAR IN PLACES. * * * pp. 23-24. Q. Was there any condition existing, any climatic condition at that time, or any geological condition existing at that time, that would change the current f A. Outside the heads? 12 Q. Inside. A. There had been heavy rains, that caused the rivers to rise and caused freshets. Q. This was in February, 1901? A. Yes, sir. Q. How long had it been raining before the disaster occurred? A. We had very little rain outside where I was. I do not know how long it had been raining inside. Q. Had it been raining outside? A. Very little. Q. For how long? A. It had been raining one day I think. Q. At this season of the year, is it unusual to have a large flow of fresh water supplementing the tides of the bay and co m ing out the Gate? A. It is not unusual to have a little extra, more than there la in the summer months. Q. Is it unusual to have at various and intermittent periods during the winter large quantities of fresh water supplementing the flow out of the Gates? A. Well, more or less. Q. That is liable to happen at any time during the winter? A. Well, more or less, but not as strong as I found it at that time. Q. It is a thing that is likely to happen at any time during the winter months? A. Of course, the more rain, the more cur- rent. p. 11. Q. You say you started to get under way. Did you stop? A. Yes, I had her hove short and then stopped. Q. Then what happened? A. I stopped because I saw the fog in the bay. Daybreak came and I could see the fog up the bay and I stopped for a few min- utes, and then hove up again and started. * * * p. 20. Q. WHY DID YOU HESITATE after hauling up the anchor. part way before going ahead? A. I THOUGHT POSSIBLY THIS FOG MIGHT COME OUT. Q. What did you say to the Captain about the fog coming out? A. I think I told him the fog was liable to come out, the bay fog. Q. Was that a likely thing? A. Sometimes it does; sometimes, sometimes it only reaches down to the heads; other times it comes out altogether. Q. Is this land fog thicker, or less thick, than the ordinary sea fog? A. Sometimes it is a white fog, something like steam, and it is harder to see through than a regular sea fog. Q. And you warned the Captain that this thick fog was likely to come out of the bay— what did he say to you then? 13 A. I told him it might come out. He thought it would clear up by daylight and I thought so myself. * * « Q. But you didn't wait until daylight t A. It was daybreak when we came in. Q. It was clearing up then? A. No, sir; it shut down afterwards when we got in between the heads, but all of this time you could see land. » • ♦ p. 13. Q. Did the fog shut down on you very heavy? A. It shut down very heavy when we got down in the narrow part. * * * p. 7. Q. Captain; this fog that you met as you came in, was it a land fog or a sea fog? A. It was a land fog. It came out of the bay. We had a sea fog the night before. * * * p. 26. Q. This point you now indicate is about on a direct line be- tween Point Lobos and Point Bonita? A. Yes, sir. Q. How far from Fort Point when you struck? A. About 2y2 miles. Q. At that time the fog began to settle down? A. Yes, sir; we began to get into the fog some. We did not get in a real dense fog until we got further along. » • * p. 27. Q. YOU PROCEEDED HALF A MILE IN THE FOG WHEN YOU COULD HAVE TURNED AROUND AND GONE BACK TO YOUR ANCHORAGE? A. YES, SIR. IF I SAW ANY NECESSITY FOR IT. * * * p. 12. Q. At that time after you had been running about fifteen min- utes from your anchorage in thirteen fathoms, in what depth of water were you, after a run of fifteen minutes? A. About twenty-five or thirty fathoms, maybe. Q. Could you anchor with any safety in thirty fathoms? A. No. Well, it could have been done in case of necessity, but I did not see any occasion to anchor. IT WOULD HAVE BEEN DANGEROUS TO HAVE ANCHORED THERE IN THAT TIDEWAY. * * * p. 24. Q. After you got in the fog what soundings did you take? A. Did not sound at all. ■» » » 14 p. 25. Q. So that on this foggy morning, you were coming into the harbor of San Francisco on a course that was only a quarter of a mile from a rock on which you might have been wrecked, at a season of the year when heavy freshets are likely to reinforce the returning tide of the bay, and you were proceeding in that fog without taking soundings, is that true? A. Yes, sir. It would have done no good to take soundings. You could not have got bottom at any kind of length there. Q. How do you know? A. Because you would have had to stop the ship, and then the ship would have been in danger, MOEE DANGEE THAN IN GOING AHEAD. Q. Could you not have turned about and gone back to your an- chorage ? A. Not with any safety after we once got inside the Golden Gate. Q. You could not have done that? A. No, sir; not in safety. Q. Why would it not be safe? A. Because the place is narrow. You might do it in clear weather but not in fog. SECOND OFFICES COGHLAN (p. 39 of Eecord). Q. You say it would take about three-quarters of an hour for the ship to proceed from the point where she raised anchor to the point where she was wrecked? A. Yes, sir. Q. And that she ran into the fog about twelve or fifteen min- utes after she started? A. About that. Q. How far was this from the point where she struck. A. About 2% miles, I should judge, or maybe a little more than that. Q. You say that the Eio minded her helm well? A. Very well. Q. Could you have come about in 2^^ miles and gone back to a safe anchorage if the Captain had so desired? A. You mean would it have been possible? q. Yes. A. In clear weather it would have been possible; yes, sir. Q. Would it have been possible under the weather conditions as they were? A. It would have been possible; yes, sir; it is just as possible in the fog as it would be in clear weather. 15 The ship is liable for injuries caused by the negligence of a pilot, even though compelled to accept him by a State or Federal Statute. In the case of the China, 7 Wallace, 53, the injury complained of arose from the negligence of a pilot which the ship was compelled to employ under a statute of the State of New York similar in its nature to that of California. It was held that the ship was liable for the damages, although the neg- ligence was not participated in by any other mem- ber of the crew. In Sherlock vs. Allen, Administrator, 93 U. S. 105, the owners were held liable for the negligence of a pilot which they were compelled to take by Statute, the negligence causing the death of de- fendant's intestate. The law has been recently summarized and au- thorities collected in the recent case of Homer Ramsdell Company vs. La Com. Gen. Trans-At- lantique, 182 U. S. 406, in which it is held that the ship is liable in Admiralty and probably the own- ers also, though the owners are not liable at com- mon law, where they are compelled to employ the pilot. 16 SECOND ISSUE. THE INSUFFICIENCY OF THE CHINESE CREW FURNISHED BY THE OWNERS, WHICH DEFEATS THEIR APPLICATION TO LIMIT THEIR LIABILITY. We now approach the second issue raised by the pleadings in this case, which is, ''Can the peti- tioner avail itself of the Statute of Congress to limit its liability, which would amount to some $55,000.00 or $60,000.00 on the claims which have been filed here, to the sum of $25,000.00, or thereabouts, constituting the value of the ship after she was wrecked, and the freight pending?" On this issue the petitioner is the moving party and necessarily on him falls the burden of proof. This Statute of Congress affords an extraordinary remedy whereby the ship owner may escape his liability for the negligence of his servants by pay- ment of a very insignificant sum. It is a statutory remedy and hence must be strictly construed against the party desiring to avail himself of it. Were there any doubt at all about the burden of proof falling on petitioner that doubt would loe dispelled when we consider that by the practice of insurance, which was in vogue at the time that the Statute was passed, the ship owner is enabled by insuring his vessel and the freight pending 17 to escape scot free from any liability at all for damages arising from the total loss of bis sbip by the negligence of his sei-vants. The Courts have uniformly held that the ship owner may retain his insurance for the ship and the freight pending; all he is compelled to stipulate for is the value of the ship after the ivreck, which is nominal, and the freight pending for the voyage. As a result of this Statute the unscrupulous owner is able to say to his captains, ''Of course you are to use every care to protect your passen- gers, and you are not to take unnecessary risks in bringing in your ship, but of course you un- derstand that if you do take risks and the ship is completely wrecked and the passengers are drowned, we lose absolutely nothing, for we may retain all the insurance money for the vessel and we are compelled to pay by way of damages only the insurance money for the pending freight. Do not take chances on bringing your ship in, but remem- ber that the more voyages made a year the greater the dividends of the company. True, there is a risk of loss of life, but there is no risk of loss of money, though the ship be absolutely lost by your negligence." I repeat that when we consider the power that this Statute places in the hands of ship owners to escape their liability, there cannot be the slightest doubt that uimn them 18 must be the burden of proving that they have com- plied with the requirements of the Statute. Now, the Revised Statute of the United States, Section 4463, provides that "No steamer carrying passengers shall depart from any port unless she shall have in her service a full complement of licensed officers AND FULL CREW, SUFFI- CIENT AT ALL TIMES TO MANAGE THE VESSEL, including the proper number of watch- men. ' ' In order to limit his liability the petitioner has resting upon him the burden of proving that the "damage or injury done, occasioned or incurred" shall be done "without the privity or Imowledge of such owTier or owners" (U. S. R. S., 4283). The issue presented by the pleadings in this case denies that the petitioner complied with 4463 R. S. above mentioned, as is set forth in para- graphs VI, VII, VIII, IX and X of the answers of the Estate of Henshall, the Estate of Dodd and the Estate of Guy on. In paragraphs VII and VIII, the sufficiency of the crew is denied in the following language: ' * That at no time subsequent to the 10th day of December, 1900, did petitioner provide the said steamship so engaged as a common carrier of pas- sengers by sea, with a full crew, sufficient at all times to manage the vessel, but that the crew pro- 19 vided by petitioner was insufficient in this, that all the members of said crew comprising the sail- ors of her deck department, the firemen and the coal passers were Chinamen, and, saving only the boatswain and the first fireman, were nnable to speak or understand any European language, or any language spoken by the officers of the said steamship, and that the officers of the said steam- ship were none of them able to speak any lan- guage intelligible to the said Chinamen, and that the only course which the said Chinamen could receive orders from the said officers was through the two Chinamen above mentioned, to-wit, the boatswain and the first fireman ; and that the only persons on the said steamship who were convers- ant with the lowering of her life boats, and who understood both the language of her officers and of her said Chinese crew, were the said boatswain and first fireman. ''That there were upon the said steamship, at all times subsequent to the 10th day of December, 1900, and at the time of her wreck and founder- ing hereinafter set forth, eleven life boats, and that the number of persons on the said steamship at the time of said foundering was more than two hundred and ten; and that it was necessary to lower all the said life boats to carry safely from the said steamship all the said persons, and that 20 the said Chinese were necessary to properly lower and man the said life boats and place the passen- gers therein at such time as the wrecking and foundering of said steamship as hereinafter de^ scribed, and that at no time within one year prior to the wreck of said vessel had there been a drill in the lowering of the said life boats from the said steamship, and that at the time of her wreck and foundering there were but eighteen members of the crew, to-wit, the members of the deck depart- ment, who had at any time within a year prior thereto lowered or assisted in lowering any life boats from the side of said steamship. ' ' Some question may be raised as to whether or not the word "sufficient" appearing in Section 4463 of the R. S. means anything more than that the owner shall supply a crew sufficient IN NUM- BER to man the ship. Such an interpretation was suggested to me by one of the older practitioners in the State Courts as a conceivable one. In Ad- miralty, however, we find that the word "suffi- cient" is used universally as including many qual- ifications other than mere number, and its juxta- position to the word ' ' full ' ' shows that those other qualifications are intended to be designated. A crew must not only be full in number but sufficient in experience and other qualifications at all times to manage the ship. We find on examining the English and American Admiralty decisions that 21 the ship itself is repeatedly spoken of as "suffi- cient" in the sense of being efficient for the pur- pose of the voyage. Judge Seawell says, in Kim- hall vs. TucUr, 10 Mass., 195, "If a vessel SUF- FICIENT at the commencement of the voyage is entirely lost," etc. Judge Clifford, in The Lady Pike, 21 Wallace, 13 and 14, says, "Applied exclusively to the num- ber of steamer 's company, the complaint contained in the first assignment of errors would not be well founded, as the crew was sufficient IN NUMBER, and the proof shows that the steamer had on board two pilots and two master mariners ; but the grava- men of the complaint is that neither the master in charge of the deck nor the pilot had any SUF- FICIENT knowledge of the craft under their com- mand, nor of the dangers of the navigation in pass- ing down the river," etc. This case, which cites many authorities, decides that from lack of this knowledge of the craft and of the dangers to be encountered, the crew was insufficient. The duty to properly man the ship of course ex- ists entirely apart from any statutoiy require- ments; and i3roj)er manning consists in much more than the mere x)lacing of a large enough number of men on board the ship to handle her. The men must be fitted for the service, and this duty rests on the owners even in a foreign jjort. We find in The Gentlemen, Olcott 115, that the 22 owners were held liable for furnishing an inade- quate crew, which they shipped at the Gambia river, West Africa, large enough in numbers but sick with fever. A'^Tiere a captain did not know the coast and en- tered the enemies' port and was captured, it was held that the vessel was " incomioetently fitted out" because there was no proper master for the pur- pose of the voyage. Tait vs. Levy, 14 East., 482. In the G. H. Ross, 111 Federal 208, the Circuit Court of Appeals for this circuit held that where the owners appointed an incompetent suj)erinten- dent to manage ships in Alaska, they could not limit their liability from loss arising from sending out a barge at the wrong time of the year. Judge Hawley has said, in the case of In re Meyer, 74 Federal, 885, ''It is the duty of the own- ers of a steamer carrying goods and passengers not only to provide a seaworthy vessel, but they must also provide a crew ADEQUATE IN NUM- BERS AND COMPETENT FOR THEIR DU- TIES with reference to all the exigencies of the intended route." There is a further point of law that I desire to call at this time to the attention of the Court. If the owner of a shij^ fail to comply with the affirm- ative requirements of the U. S. Statute, such as the requirement for a sufficient crew made by Sec- tion 4463, it will be presumed in the case of dam- 23 ages arising to tlie passengers that the injuiy was caused by that failure. This has been the re- peated holding of the Supreme Court in a ver>^ large number of cases. Of this rule the Court in The Pennsylvania, 19 Wallace, 13G, has said, "When, as in this case, a ship at the time of col- lision is in actual violation of a statutory rule in- tended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was a contributary cause of the disas- ter ; in such a case the burden rests upon the ship of showing, not that her fault might not have been one of the causes or that it probably was not, but THAT IT COULD NOT HAVE BEEN. Such a rule is necessary to enforce obedience to the man- date of the Statute. ' ' In Richelieu Navigation Company vs. Boston In- swance Company, 136 U. S., 415, 423, the Supreme Court sustains the following instruction : "As the Spartan was violating statute laws of Canada in running at full speed in a dense fog, the plaintiff must show affirmatively that neither the speed of the steamer nor the defects of the compass could have caused or have contributed to cause the stranding of the steamer, (p. 415.) " In the Guild Hall, 58 Federal, 800, it was held that where a master was habitually drunk the ])ur- den was on the owner to show that the collision 24 COULD NOT HAVE BEEN AVOIDED even if a competent master had been supplied. The same rule has been applied by our own Cir- cuit Court of Appeals to a case arising under this Statute to limit liability. In the case of The Annie Faxon, 75 Federal, 319, the owners had applied for limitation of liability, which the heirs of the de- ceased contested on the ground that the boiler of the ship had not been inspected by the local in- spector before being used, as required by Section 4418. Judge Gilbert said, ''There is in the record, it is true, no distinct or positive evidence that the failure to inspect the boiler after the repairs was the cause of the explosion and that an inspection at that time would necessarily have disclosed the im- perfections and weakness which resulted in the accident. * * * Probably it could never bei proven in any given case of explosion that the ac- cident occurred through a failure to inspect the boiler. There would be little or no protection in holding that after an explosion an injured passen- ger, in order to recover under 4493, must prove that, notwithstanding the absolute failure to com- ply with the inspection law, there were in the boiler defects that would necessarily have been detected if an inspection had been made before using the same. * * * The failure to comply with the inspection law may, in our judgment be invoked to prove that the owner is not entitled to the ben- 25 efit of the limitation of liability law as claimed in the libel and petition." (The excerpts from Judge Gilbert's opinion are from pages 319 and 320 of the Report.) Now, the case of the Rio is, in its essential fea- tures, identical with that of The Annie Faxon. It appears that the Rio left the port of Honolulu with a crew consisting of 84 Chinamen, officered by white officers. It appears that none of these offi- cers could speak Chinese and that none of the Chinese, with the exception of the boatswain and one fireman, could speak English. It appears that all the orders from the officers had to travel from the officers to the crew through the medium of these interpreters, or be communicated to the Chi- nese by gestures. It appears further that there was on board of the ship 11 life boats and that there were 211 persons to be taken off in those boats, making 19 persons per life boat, so that in any emergency which might arise in the voyage from Honolulu to San Francisco it would require the launching of all of the life boats to get off all of the passengers on the ship in an expeditious manner. It is quite true that the life boats would have held, if crowded, a larger number of persons than 19; perhajjs they could have been crowded to have held 30 persons each ; but it would have been impossible in any emergency requiring rjuick action to have lowered those 30 persons one by 26 one into the boats. It further appears that there never had been a single boat drill on this ship for the lowering of these boats for more than six months prior to the wreck. It further appears that but one of the two interpreters on board of the ship was conversant with the lowering of boats. Such was the condition of affairs on that dark morning when the ship struck the rock in the fog just outside of the port. Now, this insufficiency of the crew was an or- ganic one ; the crew when it was shipped was or- ganically imperfect. It may be asked, How was it jDOSsible to run the ship as far as they did with such a crew? and the answer is that the China- man is an excellent imitator, easily trained, and that he quickly learned through his interpreters how to do all the necessary things in the ordinary management of the ship. We do not for a moment desire to be placed in the position of condemning the Chinese race as sailors. We are not trjHng to defeat this limitation of liability on the ground merely that this crew was a Chinese crew. We are defending on the ground that THIS PAR- TICULAR CREW WAS NOT SUFFICIENT TO COPE WITH THE EMERGENCY in which the ship was placed, an emergency most likely to arise, and one against which the ship had made all prop- er preparations in the way of life-sa\dng appli- ances; had provided everything except the crew 27 which was to make the appliances efficient. Now, the crew, when it left the port of Honolulu, did not comply with the requirements of Section 44G3 of the R. S. If they had been trained between Honolulu and San Fracisco in the lowering of boats so that with their Chinese imitativeness they had been able to lower them under the direction of their fellow-Chinamen, without the command of their white officers, the organic insufficiency might have been remedied, but the evidence is ab- soluteh'' conclusive that they had never been so trained. The insufficiency existing at the time of leaving the port, never having been remedied up to the time of the disaster, the owners come within the rule laid down in The Annie Faxon and must find themselves deprived of the right to limit their liability by their failure to comply with the U. S. Statute. It would be sufficient for us to rest our argument at this point and to say that the burden resting on them as petitioners had not been sustained be- cause, in the language of Judge Clifford, they have failed to show "that the fault could not have been one of the causes of the loss of life." Although we might rest here, we are able to go a step fur- ther than we are required to do and to show from the evidence that the captain was informed by the pilot as soon as the ship struck that they were go- ing to sink; that he immediately gave the sign;d 28 to the boats, that it took twenty minutes tor the ship to sink, that it took but five minutes for a properly trained crew to lower all the boats, two minutes some of the officers testified, and that at the end of the twenty minutes but three of the eleven boats had been put over the side of the ship ; that two of them were swamped in a smooth sea; that the third, which was successfully launched, was launched by two of the white offi- cers and that when it got away it had but three pas- sengers and two white members of the crew, and no Chinamen. The evidence sliows that in these twenty minutes, during which the ship sank on an even keel, with a list at no time greater than ten degrees, in a smooth sea, with boats perfectly equipped for the saving of the passengers, with all the bearings oiled, the blocks and tackle in per- fect condition, but three passengers were taken from the ship in boats by the time she had gone down. The evidence shows that there was no con- fusion on the part of the passengers which in any \'7aj interfered with the lowering of the boats, and it further shows that the Chinamen as a matter of fact did come to many of the boats and make such futile attempts to lower them as they could. Every element that possibly could have contributed to the successful lowering of those boats and getting those passengers off existed, with the single excep- tion of a crew that had been trained to handle the - 29 appliances, and which could understand the com- mands of the officers in such an emergency. We will show from the evidence the following facts : 1. That the members of the crew in the deck de- partment (sailors), of the .engineers' department, and of the fireroom, were Chinese who could not understand English, and that the officers could not speak Chinese, nor any language that the Chi- nese could understand, and that all the commands were either by gesture or through two interpreters. 2. That the men were so widely separated from their officers that the second officer in charge of the deck depai-tment did not know the names of anv one of the sailors under his immediate com- mand, and that a quartermaster could not name four out of the eighty-Jfive Chinamen on the ship. 3. That there never had been a boat drill for the crew, that the boats in the chocks had not been lowered for many months, and that the only drill in the ship was fire drill, where the crew merely assembled by the boats and did not touch them. 4. That at the time of the sinking of tlie ship it was dark, that the ship sank on an even keel, and that the water was smooth. 5. That the apparatus for launching the boats was in perfect condition, and that there was no 30 panic on the part of the passengers to interfere with the crew. 6. That it would not have taken more than five minutes to lower these boats from the chocks ; the majority of the officers estimating that it would have taken from two to four minutes. 7. That the signal to lower boats was given as soon as the ship struck. 8. That the ship was twenty minutes in sink- ing. 9. That the Chinese were known to have de- serted at least one of the boats. 10. That but one boat was successfully launched, the starboard after-quarter boat, and that by the carpenter and Officer Coghlan personally, and with their own hands. 11. That but two other boats were gotten over the side of the ship, one of which was swamped in a smooth sea by the unpracticed handling of the falls by a Chinaman, and the other gotten off so tardily that it was swamped as the ship went down; and finally, 12. That but three passengers were taken from the ship in the life boats. In support of our main proposition that the Chinese could not understand the language of their officers, and that there was no medium of commu- 31 nieation between officers and men sufficient to cope with an emergency requiring the lowering of the boats, we offer the very highest testimony obtain- able. On this point we have the depositions of nineteen of the survivors of the Chinese crew. Eight of these were members of the deck de- partment, called on board the ship sailors, and half the total number in whose special charge were supposed to be the launching of the eleven life- boats. The remainder are firemen and coal pass- ers, each of whom had a necessary function to per- form in the launching of the boats. Their testi- mony was interpreted by Soo Hoo Fong, the in- terpreter of the Pacific Mail Steamship Company, and John Conception, who acted for the claimant, Sarah Guyon. The witnesses were sequestered and examined separately, and there is not a ma- terial discrepancy in the entire nineteen deposi- tions. These are the same Chinamen that we peti- tioned your Honor to have examined before your- self acting as Commissioner. We have since learned to our regret that this was perhaps an im- propriety, though we feel an equal regret that your Honor did not see with your own eyes how hopeless a task it would have been to have at- tempted the launching of those eleven life boats on that dark morning with men who could not un- derstand the simplest question concerning the ship, whether addressed in English or that pigeon Eng- 32 lish with which we of this coast are more or less familiar. Not only is the Chinese testimony absolutely convincing in itself, but it is not contradicted by a single white officer of the "Rio." Second Officer Coghlan, the highest surviving officer of the ship; Third Officer Holland, the next in command ; En- gineer Herlihy and Quartermaster Lindstrom, all testified at length as to the condition of the vessel and crew, and not one of them denies these asser- tions of the Chinamen. In view of the fact that this was the very question at issue in the case, the exact ground set forth in our several answers for contesting the limitation of the company's liability, this silence of the company's own officers and wit- nesses, must be regarded as an admission that the Chinamen's testimony portrays accurately the con- dition of affairs on the ship on that dark morning when the whistle was blown to man the boats. 33 I. The members of the crew of the deck department (sailors), of the engineer's department and of the fireroom, constitut- ing all the crew, save the cabin boys, were Chinese who could not understand English. The officers could not speak Chinese nor any language that these Chinamen could understand. All the commands were either by gesture or through two interpreters. FUNG PING (Deposition, p. 13). C^. Were you employed on the Eio when she sank? A. Yes, sir. Q. "What is your business? A. Sailor. Q. Do you speak English? A. No, sir; I do not. Q. Do you understand English? A. No, sir. Q. How did you get your orders on the Eio? A. The boatswain gave me the orders. (p. 14.) Q. Do any of the rest of the sailors other than the boatswain speak English? A. The boatswain is the only one who speaks English. Q. Do you live with the sailors on board of the ship? A. Yes, sir. Q. Did you ever hear any one of them speak English? Other than the boatswain? A. No, sir. LOW YOW (Deposition, p. 16). Q. Do you understand English? A. I do not understand it. Q. Do you understand pigeon-English? A. No, sir; I do not. Q. Were you on the Rio when she sank? A. Yes, sir. (p. 17.) Q. How do you get your orders on the ship? A. The boatswain gives me the orders. Q. DID YOU EVER TAKE ANY ORDERS DIRECTLY FROM THE WHITE PEOPLE SPOKEN IN ENGLISH? A. HE HAS GOT TO DIRECT HIM BY HAND, BY SIGNS. BUT I COULD NOT UNDERSTAND WHAT THE WHITE OFFICER WOULD TELL ME. I GENERALLY GOT MY OR- DERS FROM THE BOATSWAIN. HOE SING (Deposition, p. 19). Q- Do you understand English? A. No, sir. Q. Were you employed on the Rio at the time she sank? 34 A. Yes, sir; 1 was on the Eio. Q. What was your employment there? A. Sailor. Q. How long had you been on the Eio? A. Just from Hongkong here the last trip. Q. Did the boatswain speak English? A. Yes, sir. Q. Do the rest of the sailors speak English? A. Only the boatswain, he is the only one who knows how to speak English; the rest don't know how to speak it. Q. How do you get your orders on the ship? A. The boatswain gives us our orders. Q. Did you ever get any orders from the white officers? A. The white officers never gave us any orders except through the boatswain. (p. 21.) Mr. McAllister (through Ms own interpreter) — Q. Did you not tell me that some of the crew could speak a lit- tle English? A. These three men, the chief men— the boatswain and the fire- men and the cook— they talk English, but those that are at work in the different departments, they understand a little. Mr. DENMAN— Q. Can those who understand a little, under- stand IF THEY ARE NOT ASSISTED WITH GESTURES? A. IT IS DONE BY GESTURES MORE THAN BY SPEECH. WONG HEY (Deposition, p. 22). (After asking questions in English.) Q. Do you understand English? A. I know a few words. Jl f- Jl 1 z » .-.r) c -p. 1 , =^§ m !P i : [Universitj Southej Libra] I