254-256

SUPREME COURT OF THE UNITED STATES.

on her own starboard side shall keep out of the way of the other," applied, and that the Dumois should have ported, and the Argo was bound, under the case of The Britannia, 153 U. S. 130, sub nom. The Britannia v. Cleugh, 38 L. ed. 660, 14 Sup. Ct. Rep. 795, to keep her course and speed. We are reluctant, however, to say that, where two vessels are meeting end on, or nearly end on, under the 18th rule, the faulty movement of starboarding by one absolves the other from the obligation of rule 21, which requires that "every steam vessel, when approaching another vessel, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse."

or less

flicting opinions of experts more
friendly to the owner, who put her value at
from $8,500 to $30,000. As the district
court and the circuit court of appeals
agreed that her value did not exceed $15,000,
amount unless upon clear proof of inadver-
we should be unwilling to increase that
tence or mistake.

There was no error in refusing to allow in-
terest upon her valuation. The allowance
The Scotland, 118 Ũ.
of interest in admiralty cases is discretion-
ary, and not reviewable in this court except
in a very clear case.
S. 507, 518, sub nom. Dyer v. National Steam
Nav. Co. 30 L. ed. 153, 155, 6 Sup. Ct. Rep.

1174.

6. In the assessment of damages an imIn the case of the Britannia, the decision of the court that, of two crossing steamers, the portant question arose as to whether a moiepreferred vessel should have kept her course ty of the amounts awarded to Mrs. Blesine and speed, was put upon the ground that the and Mrs. Hester should be deducted from the course of the Britannia, the obligated vessel, amount_recoverable by the owners of the was precisely what might have been antici- Argo. The libel of Mrs. Blesine was filed pated, and did not warrant the Beaconsfield, against Jakobsen as owner of the Dumois, the preferred vessel, in disregarding the in- and process of attachment prayed against This libel, subsequently consolidated with junctions of the 23d rule, which required her his goods and chattels, credits and effects. It was intimated that a to keep her course. different conclusion might have been reached that of Springer, was treated as a petition if it had appeared that the Britannia was against the bond given for the release of the herself violating a rule of navigation. Now, steamer under the proceedings for a limited as it appears from the testimony of the Ar- liability. A similar petition was filed by go's crew that they not only heard the sig- Mrs. Hester. In the *following December,[256] nal of two whistles from the Dumois, but Springer, the libellant and owner of the Arsaw her turn under her starboard wheel, go, surrendered to the claimants and interand exhibit her green light when she should veners his vessel and the freight. These inhave ported, they were at once apprised of tervening libels, as well as that of the seathe fact that she was violating a rule of nav-men, proceeded as one suit, and in the deigation, and that prompt action quired to avoid a collision.

was re

The fact that the Argo was short-handed and was also running without a proper lookout, though not decisive of a fault contributing to the collision, may be taken into consideration as bearing upon the probabilities of the case, and raising a presumption against her.

cree of the circuit court of appeals Mrs. Ble-
sine was awarded $2,500 and Mrs. Hester
$5,000, one half of which was deducted from
the amount awarded to Springer.

Admitting that if these intervening libels had been filed against Springer as owner of the Argo, nothing could have been recovered go and her freight and the consequent exof him by reason of the total loss of the ArWe are of opinion that the Dumois was tinguishment of personal liability on the [255]primarily in fault for this collision, in part of the owner, does it follow that the starboarding instead of porting when she first Dumois is not entitled to deduct from the sighted the Argo; and while the case with amount awarded to the Argo; or, in other respect to the Argo is by no means free from words, to recover of the Argo one half of doubt, the majority of the court are also of the amount payable to these libellants, in opinion that the Argo was in fault for fail- view of the fact that the Argo was also in ing to observe the 21st rule, which required fault? We think this question is practicalher to stop when risk of collision was inly answered by prior decisions of this court. volved, as well as the 3d rule of the super vising inspectors to the same effect.

The case of The North Star, 106 U. S. 17, sub nom. Reynolds v. Vanderbilt, 27 L. ed. 5. There was no error in fixing the value 91, 1 Sup. Ct. Rep. 41, arose from the mutual of the Argo at the sum of $15,000, an in- fault of two steamers, in which one, the Ella crease of $4,000 over the amount fixed by Warley, was totally lost. The court awardthe district court. The evidence of her build-ed the owners of the Ella Warley so much of ers was that she originally cost $18,000, and that, if she had been kept in good repair, she would have been worth two thirds of that amount at the time of the collision. There was also testimony to the effect that her owner had, at the time of the collision, concluded a sale of one half the Argo for $7,500, and that it was to have been delivered and the money paid for this moiety on the day following that upon which she was lost, and upon her return to the city. This is better evidence of her actual value than the con

their damage as exceeded one half of the ag-
were not
gregate damage sustained by both vessels.
The owners of the Warley contended that, as
she was a total loss, her owners
one half of their damages in full, without
liable at all, and that they were entitled to
deduction for the half of the damage sus-
tained by the North Star, the other vessel.
We held, however, that the admiralty rule,
that where both vessels are in fault they
177 U. S
must bear the damage equally, applied, and
that the one suffering least should be decreed

to pay to the other the amount necessary to make them equal, namely, one half of the difference between the respective losses sus tained, and that when this resulting liability of one party to the other has been ascertained, then, and not before, was the proper time to apply the rule of limited responsibility, if the party decreed to pay is entitled to it. "It will enable him to avoid payment pro tanto of the balance found against him." "The contrary view," said the court, "is based on the idea that, theoretically (supposing both vessels in fault), the owners of the [257]one are liable to the owners of the other for one half of the damage sustained by the latter; and, vice versa, that the owners of the latter are liable to those of the former for one half of the damage sustained by her. This, it seems to us, is not a true account of the legal relations of the parties. These authorities conclusively show that cording to the general maritime law, in cases of collision occurring by the fault of both parties, the entire damage to both ships is added together in one common mass and equally divided between them, and thereupon arises a liability of one party to pay to the other such sum as is necessary to equalize the burden. This is the rule of mutual liability between the parties."

space of one year from the death. The survivors above mentioned may also recover the damages sustained by them by the death of | the parent, or child, or husband, or wife, as the case may be."

It was held by us in The Corsair, 145 U. S. 335, sub nom. Barton v. Brown, 36 L. ed. 727, 12 Sup. Ct. Rep. 949, a case arising out of a collision which also took place on the lower Mississippi, that this local law did not give a lien or privilege upon the vessel, and that nothing more was contemplated by it than an ordinary action according to the course of the law as administered in Louisiana.

Our attention is also called by the owners of the Dumois to subdivision 12 of article 3237 of the Civil Code, which reads as follows: "Where any loss or damage has been caused to the person or property of any indiac-vidual by any carelessness, neglect, or want of skill in the direction or management of any steamboat, barge, flatboat, water craft, or raft, the party injured shall have a privilege to rank after the privileges above specified." No reliance was placed upon this article in the case of the Corsair, probably because it was thought to refer only to losses or damages to persons still living, and that an action would lie in favor of the party injured. Certainly, if this article had been supposed to give a remedy for damages occasioned by death, to the representatives of the deceased person, it would never have escaped the attention of the astute counsel who participated in that case.

In The Chattahoochee, 173 U. S. 540, 43 L. ed. 801, 19 Sup. Ct. Rep. 491, which was also a collision occasioned by the mutual fault of a steamer and a schooner, followed by a total loss of the latter, the survivor was permitted to deduct from one half of the damages recovered for the loss of the vessel one half of the value of the cargo of the latter, notwithstanding the total loss of the schooner, and the fact that under the Harter act she would not have been liable to the owner of the cargo for negligence in navigation. We held in that case that the sunken vessel was not entitled to the benefit of any statute tending to lessen its liability to the other vessel, or to an increase of the burden of such other vessel, until the amount of such liability had been fixed upon the principle of an equal division of damages.

The question whether "damage done by any ship," jurisdiction over which was given to the High Court of Admiralty in England, included actions brought by the personal representatives of seamen or passengers killed in a collision, has been the subject of many and conflicting judicial opinions in the English courts, a summary of which may be found in The Corsair, 145 U. S. 345, sub nom. Barton v. Brown, 36 L. ed. 730, 12 Sup. Ct. Rep. 949; and was finally settled against the jurisdiction by the House of Lords in the case of Seward v. The Vera Cruz, L. R. 10 App. Cas. 59.

The case under consideration is distinguishable from this only in the fact that intervening libels are for loss of life, for In this country the law is so well settled which no lien is given upon the vessel, in the that by the common *law no civil action lies[250] absence of a local law to that effect, while in for an injury resulting in death, that we the case of the Chattahoochee the libel need only refer to the case of Mobile L. Ins. sought to recover for the loss of the cargo, Co. v. Brame, 95 U. S. 754, 24 L. ed. 580, for which a lien was given by the law mari-and to the same doctrine applied in admiraltime upon the vessels in fault.

Assuming for the present that the question of lien is material, we are next to inquire whether such lien is given by the local law of Louisiana. We are cited in this connection to two articles of the Civil Code, the first of which, article 2315, as amended in 1884, declares that "every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the [258]right of this action shall survive, in case of death, in favor of the minor children or widow of the deceased, or either of them, and in default of these, in favor of the surviving father and mother, or either of them, for the

ty in the case of The Harrisburg, 119 U. S.
199, sub nom. The Harrisburg v. Rickards,
30 L. ed. 358, 7 Sup. Ct. Rep. 140. The ob-
ject of article 3237 was not to extend the
cases in which damages might be recovered
to such as resulted in death, but merely to
provide that, in cases of damages to person
or property, where such damage was occa-
sioned by negligence in the management of
any water craft, the party injured should
have a privilege or lien upon such craft.
deem it entirely clear that the article was
not intended to apply to cases brought by
the representatives of a deceased person for
damages resulting in death.

We

dinate branch or section of the Knights of Pythias, to transmit to the general board of control, within the time specified by the general laws of said order, moneys paid to him in due time by a member, will not be ground for forfeiture of the policy of such member, since the secretary's negligence is not chargeable to the member, but is that of an agent of the order, notwithstanding a provision in the general laws of the order to the effect that he is to be regarded as the agent of the member, and not of the order, where the general laws also require the member to pay dues to such secretary only, and provide that the secretary shall transmit immediately after the 10th of each month all moneys collected by him, and that the local branch shall be responsible to the board of control for all such moneys collected by the secretary. [No. 170.]

But it does not necessarily follow that because there is no lien there can be no deduction of a moiety of these damages from the sum awarded to the Argo. Neither the case of the North Star nor that of the Chattahoochee is put upon the ground of a lien, since in both cases the vessel against which the deductions were made was totally lost by the collision, and in the Chattahoochee the provisions of the Harter act would have exonerated her, even if no total loss had occurred. But no extended discussion of this is necessary, since the question is settled by the case of Butler v. Boston & S. S. S. Co. 130 U. S. 527, 32 L. ed. 1017, 9 Sup. Ct. Rep. 612, in which it was unanimously held that the limited-liability act applied to cases of personal injury and death, as well as to those of loss of, or injury to, property. This was an independent libel in personam against the steamship company to recover damages for Argued March 6, 1900. Decided April 9, death, and the company pleaded in defense certain proceedings in a case of limited lia

bility instituted by it and then pending.

There was a statute of Massachusetts relied upon, which gave a personal remedy, but no lien upon the vessel. The loss occurred within the jurisdiction of the state. The single question presented was whether the limitedliability act applied to damages for personal injury and loss of life, and thus deprived those entitled to damages of the right to entertain suit for recovery, provided the ship owner had taken appropriate proceedings to limit his liability. The court, after a careful examination of the law of limited liabil260]ity of ship owners, had no difficulty in reaching the conclusion that it covered the case of injuries to persons, as well as that of injury to goods and merchandise, and that these proceedings were a good defense to the

libel.

It follows that the claims of the intervening libellants, Mrs. Blesine and Mrs. Hester, were valid claims under the limited-liability act, notwithstanding that there was no lien under the local law, and that there was no error in deducting a moiety of these claims from the amount awarded Springer.

Upon the whole case we are of opinion that the decree of the Circuit Court of Appeals was right, and it is therefore, as to both cases, affirmed.

1900.

I for the Fifth Circuit to review a decision
affirming a judgment in favor of the plain-
tiff in an action on a certificate or policy of
insurance. Affirmed.

N ERROR to the Circuit Court of Appeals

See same case below, 59 U. S. App. 177, 89
Fed. Rep. 160, 32 C. C. A. 182.

Statement by Mr. Justice Brown:
*This was an action originally begun in[261]
the circuit court of Hale county, Alabama,
by Josephine R. Withers, to recover of the
defendant the amount of a certain certifi-
cate or policy of insurance upon the life of

her husband.

The case was removed to the circuit court of the United States for the middle district of Alabama, upon the petition of the defendant and upon the ground that the Supreme Lodge Knights of Pythias was a corporation organized by act of Congress, and hence that the controversy arose under the Constitution and laws of the United States.

The case was submitted to a jury upon an agreed statement of facts, and the court instructed a verdict for the plaintiff in the sum of $3,000, the amount of the policy, with interest, upon which verdict a judgment was entered for $3,392.54. The case was taken by writ of error to the circuit court of ap peals, which affirmed the judgment. 59 U.

The CHIEF JUSTICE and Mr. Justice Peck- S. App. 177, 89 Fed. Rep. 160, 32 C. C. A. ham dissented.

182. Whereupon the defendant sued out a
writ of error from this court.

The facts, so far as they are material, are

SUPREME LODGE KNIGHTS OF PY- stated in the opinion of the court.

THIAS, Piff. in Err.,

v.

JOSEPHINE R. WITHERS.

(See S. C. Reporter's ed. 260-276.) Insurance in benevolent society-forfeiture for delay in payment of dues-secretary's failure to transmit dues received-secretary as agent of order, and not of member. The failure of the secretary of a local, suborNOTE.-A8 to when an insurance agent is the agent of the assured-see note to Michigan Pipe Co. v. Michigan F. & M. Ins. Co. (Mich.) 20 L. R. A. 277. 762

Niblack, Ben. Soc. 2d ed. §§ 18, 136; 5
Thomp. Corp. § 5987; 5 Am. & Eng. Enc.
Law, 2d ed. 100; 3 Am. & Eng. Enc. Law, 2d
ed. 1059, 1081-3.

Such member is bound by, and presumed to take notice of, all by-laws enacted by the society after his admission, where, as in this case, the application and certificate so provide.

Bacon, Ben. Soc. & Life Ins. §§ 185, 188; Niblack, Ben. Soc. 2d ed. §§ 25-27, 137; Korn v. Mutual Assur. Soc. 6 Cranch, 192, 3 L. ed. 195; 7 Cranch, 396, 3 L. ed. 383; Pain v. Société St. Jean Baptiste, 172 Mass. 319, 52 N. E. 502; May v. New York Safety Reserve Fund Soc. 14 Daly, 389; Supreme Commandery K. of the G. R. v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 332; Borgards v. Farmers' Mut. Ins. Co. 79 Mich. 440, 44 N. W. 856; Hughes v. Wisconsin Odd Fellows' Mut. L. Ins. Co. 98 Wis. 292, 73 N. W. 1015; Bowie v. Grand Lodge of Legion of the West, 99 Cal. 392, 34 Pac. 103; Masonic Mut. Ben. Asso. v. Severson, 71 Conn. 719, 43 Atl. 192: Supreme Council A. L. of H. v. Adams, 68 N. H. 236, 44 Atl. 380; Fullenwider v. Supreme Council of the R. L. 180 Ill. 621, 54 N. E. 485.

These rules have been applied in the following cases against this defendant, involving similar contracts:

Supreme Lodge, K. of P. v. Knight, 117 Ind. 489, 3 L. R. A. 409, 20 N. E. 479; Supreme Lodge, K. of P. v. La Malta, 95 Tenn. 157, 30 L. R. A. 838, 31 S. W. 493; Supreme Lodge, K. of P. v. Kutscher, 179 Ill. 340, 53 N. E. 620; Supreme Lodge, K. of P. v. Trebbe, 179 Ill. 348, 53 N. E. 730; Daughtry v. Knights of Pythias, 48 La. Ann. 1203, 20 So. 712; Dornes v. Supreme Lodge K. of P. 75 Miss. 466, 23 So. 191; Lloyd v. Supreme Lodge K. of P. 98 Fed. Rep. 66, 38 C. C. A.

Mr. Edward De Graffenreid argued the cause and filed a brief for defendant in error:

The fraud or mistake of a knavish or blun-
dering agent, within the scope of his powers,
will not enable the company to avoid a pol-
icy to the injury of assured, who innocently
became a party to it, although a stipulation
in the policy provides that such agent shall
be deemed the agent of the insured.

Whiteside v. Supreme Conclave Improved
O. of H. 82 Fed. Rep. 275; Knights of Pyth-
ias of the World v. Bridges, 15 Tex. Civ.
App. 196, 39 S. W. 333; Bacon, Ben. Soc. &
Ins. § 426, and authorities cited.

There is no magic in mere words to change
the real into the unreal. A device of words
cannot be imposed upon a court in place of
an actuality of fact.

Bacon, Ben. Soc. § 153; Union Mut. L. Ins. Co. v. Wilkinson, 13 Wall. 235, 20 L. ed. 623.

By-laws enacted subsequent to the issuance of a policy must be reasonable, or they are void.

Allnutt v. Subsidiary High Court of U. S. A. O. of F. 62 Mich. 110, 28 N. W. 802; People ex rel. Quien v. Theatrical Mechanical Asso. 8 N. Y. Supp. 675; Erd v. Bavarian Nat. Aid & Relief Asso. 67 Mich. 233, 34 N. W. 555; Brady v. Coachman's Benev. Asso. 39 N. Y. S. R. 181, 14 N. Y. Supp. 272.

*Mr. Justice Brown delivered the opin-[261] ion of the court:

The Supreme Lodge Knights of Pythias is a fraternal and benevolent society, incorporated by an act of Congress of *June 29, 1894[262] (28 Stat. at L. 96, chap. 119), as the successor of a former corporation of the same name, organized under an act approved May 5, 1870. The beneficial or insurance branch of the order is known as the endowment rank, which is composed of those members of The provision that officers of sections are the order who have taken out benefit certifithe agents of the members, and shall in no cates. Such members are admitted into lowise be considered as the agents or the rep-cal subordinate branches known as sections. resentatives of the board of control of the The members of each section elect their own endowment rank or of the supreme lodge, president and secretary. The endowment was valid and binding upon the deceased un-rank is governed by a board of control whose der his contract of membership.

654.

Susquehanna Ins. Co. v. Perrine, 7 Watts & S. 348; Peet v. Great Camp of K. of M. of the World, 83 Mich. 92, 47 N. W. 119; Grand Lodge of A. O. of U. W. v. King, 10 Ind. App. 639, 38 N. E. 352; Sovereign Camp, Woodmen of the World v. Rothschild, 15 Tex. Civ. App. 463, 40 S. W. 553; New York L. Ins. Co. v. Fletcher, 117 U. S. 519, 29 L. ed. 934, 6 Sup. Ct. Rep. 837; Maier v. Fidelity Mut. Life Asso. 47 U. S. App. 329, 78 Fed. Rep. 566, 24 C. C. A. 239; United States L. Ins. Co. v. Smith, 92 Fed. Rep. 503, 34 C. C. A. 506; Hubbard v. Mutual Reserve Fund Life Asso. 80 Fed. Rep. 681; Bernard v. United L. Ins. Asso. 14 App. Div. 142, 43 N. Y. Supp. 527; Rohrbach v. Germania F. Ins. Co. 62 N. Y. 47, 20 Am. Rep. 451; McCoy v. Roman Catholic Mut. Ins. Co. 152 Mass. 272, 25 N. E. 289; Quinlan v. Providence Washington Ins. Co. 133 N. Y. 356, 31 N. E. 31.

officers are a president and secretary, and
whose place of business is in Chicago. The
endowment rank is governed by a constitu-
tion and general laws enacted by the Su-
preme Lodge, and by rules and regulations
adopted by the board of control and ap-
proved by the Supreme Lodge.

On January 1, 1883, Robert W. Withers
made application for membership in the en-
dowment rank, and in that application made
the following statement: "I hereby agree
that I will punctually pay all dues and as-
sessments to which I may become liable, and
that I will be governed, and this contract
shall be controlled, by all the laws, rules,
and regulations of the order governing this
rank, now in force, or that may hereafter be
enacted, or submit to the penalties therein
contained." His application was accepted,
and, after receiving a certificate under the
first act of incorporation which he volun.
tarily surrendered, he received the certifi-