# Thommessen v. Whitwill/Opinion of the Court

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* Opinion of the Court
* Dissenting Opinion Matthews
United States Supreme Court
118 U.S. 520
Thommessen v. Whitwill
Argued: May 10, 1886. ---
This case grew out of a collision which occurred on the twenty-fifth of March, 1876, on the high seas, 150 miles from Sandy Hook, between the Norwegian bark Daphne, belonging to the appellants and bound to Marseilles, and the British steam-ship Great Western, belonging to the respondent and others, and bound to New York. The Daphne was injured about $7,000 worth, and the court below found that the Great Western was in fault, and was worth $150,000, both before and immediately after the collision; but that after the collision, and on the same day, the steamer, while still on her voyage to New York, was stranded and wrecked on the south coast of Long island by the careless navigation and fault of those in charge of her, and from no cause connected with the collision. No freight was received by her owners. On the twenty-ninth of March they abandoned her to the underwriters, and received from them insurance to the amount of 34,000 as for a total loss. After this the wreck and materials saved were sold for account of the underwriters, and by direction of the owners, and realized $1,796.14. On the twenty-seventh of March, 1876, the libel was filed in this case on account of the owners of the Daphne, and Whitwill, the respondent, appeared and answered, denying that the Great Western was in fault, and claiming that, if she should be found in fault, the owner's liability was limited to the amount or value of his interest in the vessel and her freight; and that this interest was of no value whatever; and to this he added, by leave of the court during the trial, the following words: 'And he hereby surrenders the same to the libelants.' He also, during the trial, tendered an assignment of his interest to the libelants, and offered to give another assignment to a trustee for the benefit of the libelants under section 4285 of the Revised Statutes of the United States. The court below held that the owners of the Great Western were only liable for the proceeds of the wreck, amounting to $1,796.14, and gave a decree for that amount and interest, and for the costs of the libelants in the district court.
The errors assigned for the reversal of this decree are substantially as follows, to-wit: First. That the limitation of the respondent's liability to the value of the ship and freight in the condition in which they were after the stranding and wreck is contrary to the rule contained in section 4283 of the Revised Statutes. Secondly. Because the insurance received by the owners was not included in the value of their interest in the ship, liable to be surrendered in order to obtain a limitation of liability, and was not taken into account in fixing the measure of such liability. Thirdly. Because the court allowed the respondent to amend his answer by the words 'and he hereby surrenders the same to the libelants;' and permitted him to give in evidence his written surrender of his interest in the steamer to the libelants; and his offer to make a like surrender to a trustee for the benefit of the defendants. Fourthly. Because, without proof that the laws of Sweden and Great Britain are the same on the subject, the only law applicable to the case was the law of the forum, of which the general admiralty law forms no part.
The points raised in the first and second assignments have been already discussed and decided in the case of Place v. Norwich & N. Y. Transp. Co., ante, 1150. There is nothing peculiar in the present case, unless it be that the Great Western was not sunk or wrecked by means of the collision, but afterwards, by the carelessness of her master or crew. This can make no difference. We showed in the opinion referred to that the termination of the voyage is the point of time at which the value of the offending vessel is to be taken. The voyage in the present case was not terminated until the vessel was sunk and stranded on the Long island coast. The carelessness of the master and crew cannot vary the result. It is against their faults and negligence that the law was intended to protect the ship-owner, provided the loss and damage sustained were caused without his privity or knowledge.
The third assignment of error cannot be maintained, because the evidence referred to therein, which the court allowed to be given on the trial, could not affect the result; nor was the amendment of the answer material. The answer, as originally framed, set up the defense that the liability of the respondent was limited to the amount or value of his interest in the Great Western and her freight upon the voyage, and averred that that interest was of no value. The issue being thus raised, the respondent was entitled to have the decree against him in that cause limited to the amount which should be shown, by the proofs on the trial, to be the value of said steamer and freight at the termination of the voyage. He did not need to make any surrender, or attempt at a surrender. A surrender of the vessel, or payment of her proceeds or value into court, would have been necessary in order to bring other creditors into concourse with the libelants; but for the mere defense of that cause it was not necessary. This disposes of the supposed difficulty in making an abandonment to the libelants after a surrender of abandonment to the insurers,-a difficulty which we have already shown to be groundless in the opinion referred to.
The fourth assignment of error is not well taken, because the case was altogether decided according to the maritime law of this country, which is the law of the forum.
The decree of the circuit court is affirmed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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