Ex parte Phenix Insurance Company

On the fourteenth of January, 1886, the Goodrich Transportation Company, a Wisconsin corporation, filed in the district court of the United States for the Eastern district of Wisconsin a petition for a limitation of its liability as owner of the steamer Oconto, claiming the benefit of the provisions of sections 4283 and 4284 of the Revised Statutes. The substantial matters set forth in the petition are these: The Oconto was on a voyage from Chicago, Illinois, through Lake Michigan and Green bay, to the city of Green Bay, in Wisconsin, which she approached by entering the month of the Fox river. While she was passing up the river opposite the city, on the twentieth of September, 1880, a fire broke out in a planing-mill which the steamer had passed, and it spread to other buildings, about 67 being destroyed or injured, causing a damage of not less than $100,000 to the buildings and property in them. Such damage exceeds the value of the steamer, and of her freight pending at the time of the fire; that value being about $12,400. There was insurance against fire on some of the buildings and property. The owners and insurers claimed that the fire was negligently communicated to the planing-mill from the steamer, and that the corporation was liable for all the loss and damage occasioned by the fire. Some of the owners sued it in state courts in Wisconsin to recover damages, by six suits, in which the Phenix Insurance Company, as insurer, was joined as a co-plaintiff. One of those suits had been disposed of by a judgment in favor of the corporation. In another a judgment against the corporation, for $2,570 and costs, was rendered in March, 1885. An appeal from it by the corporation to the supreme court of Wisconsin is pending. The other four suits are pending. Other persons are threatening to sue the corporation by like suits. It denies its liability for any loss or damage occasioned by the fire, and insists that the fire did not originate from, or was not negligently communicated from, the Oconto; but says that, if it is so liable, the fire originated, and the losses and damages were occasioned, without the privity or knowledge of the corporation; and that it desires as well to contest its liability, and the liability of the vessel, for such losses and damages, as also to claim the benefit of sections 4283 and 4284 of the Revised Statutes, and to limit its liability to the value of the vessel and her freight then pending. It offers to enter into a stipulation, with sureties, to pay into court the value of the vessel, and the amount of her pending freight, whenever ordered so to do. The prayer of the petition is for a decree that the corporation may have the benefit of such statutory provisions; that the value of the vessel immediately after the fire, and the amount of her freight then pending, be appraised; that the corporation may enter into a stipulation to pay such value and amount into court when required; that a monition issue for the proof of claims; that a commissioner be designated before whom claims shall be presented, and before whom the corporation may appear and contest said claims, and its liability on account of any loss or damage occasioned by the fire; that, if it shall appear that the corporation was not liable for any such loss or damage, it may be so finally decreed, or, otherwise, that the moneys secured by the stipulation be divided pro rata among the claimants; and that the prosecution of all the suits be restrained.

On this petition an order to show cause, returnable February 1, 1886, was made. The Phenix Insurance Company and the other plaintiffs in the five pending suits filed an answer, setting forth that, with the exception of the insurance company, they all were, and had been from before the fire, citizens of Wisconsin; that the amount of the insurance the company had made on the property covered by the five suits was $9,700; and that the value of the property so insured and uninsured, belonging to the respondents, and partly insured in the insurance company, amounted to $28,000, with interest from the date of the loss. The answer also contains these statements: The property burned was situated on the shore of Fox river, wholly in the body of the city of Green Bay, and at a great distance from any navigable stream or other waters within the jurisdiction of the United States. The negligence of the owner of the steamer in not having on her a contrivance to prevent the escape of sparks and fire from her smoke-stack, and in starting her from her wharf with the exhaust on the inside of her smoke-stack, within the city of Green Bay, caused the fire; the shore being covered with dry wooden buildings, and a heavy wind blowing across the course of the vessel towards the shore, and her smoke-stack throwing out large quantities of sparks, which were carried by the wind onto the shore, and set fire to the planing-mill, from which the flames spread to the other buildings and property. The suits were all of them brought in the fall of 1880. The answer alleges that the court ought not to take jurisdiction of the petition, because the liability, if any, accrued by reason of a tort committed on the land to real estate in the body of a county and a state, and not on any navigable waters of the United States; and that the matters complained of are purely of common-law cognizance, and of right triable by a jury, and not by a commissioner appointed under the admiralty rules applicable to such proceedings.

The respondents moved to dismiss the petition for want of jurisdiction, which motion was denied, and the court, on March 15, 1886, made an order appointing appraisers to appraise the value of the steamer as it was on September 20, 1880, with the value of her freight earned on the voyage she was on.

The Phenix Insurance Company and the other plaintiffs in the five suits now present to this court a petition for a writ of prohibition to the judge of the district court, prohibiting him from proceeding to give the relief prayed for in the petition of the owner of the vessel.

Mr. Robert Rae, for petitioner.

[Argument of Counsel from pages 613-616 intentionally omitted]

BLATCHFORD, J.