Appeal from the United States District Court for the Southern District of New York.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The petitioner, as owner of the Fishing Vessel Ariel, brought the present proceeding to obtain exemption from or limitation of liability for damages growing out of the loss of the Ariel on or about September 21, 1938, when the great hurricane occurred which destroyed so many vessels along the Atlantic seaboard. Personal representatives of members of the crew who lost their lives on that occasion filed claims in the limitation proceeding which were disallowed by the District Court after trial.
The claimants appeal on the ground that (1) the proceeding did not lie because it was not instituted within six months after a written notice of claim had been given pursuant to Title 46 § 185 of the U.S. Code, 46 U.S.C.A. § 185, (2) on the ground that in any event the claims were good on the merits because they arose on account of the unseaworthiness of the Ariel. It is unnecessary to consider whether the notice was insufficient and, therefore, the six months statute did not apply since we hold that the claimants did not establish any right of action on the merits.
The Ariel sailed from New York on September 13, 1938, to fish for scallops. She was last seen late in the afternoon of September 21, but never returned to prot and no survivor of her crew of nine of whom the claimants are the personal representatives has ever been found.
The petitioner contends that the loss of the Ariel and the deaths of her crew were due to the unprecedented storm. The claimants, on the other hand, argue that the Ariel was lost because she was an unseaworthy vessel. Unseaworthiness was said to be due (1) to the insufficient means whereby her pilot-house was fastened to the engine trunk, (2) the installation of a door in the bulkhead between the fishhold and the engine-room, (3) the presence of a grating over the hatch leading from the pilot-house to the engine-room.
To show the cause of the loss of ship and crew the petitioner introduced the deposition of George Olsen, an apparently disinterested witness, who testified that he passed close to the Ariel near the Nantucket Lightship at 4:40 or 5:20 P.M. on September 21, 1938, and that she gave no signs of distress. She was then drifting at a point above the whistling buoy to the north of the lightship and only about a mile from it. Excerpts from the log of the light ship were received in evidence under the appellant's objection. But the objection to the excerpts was on the ground that an opportunity for cross examination had not been given as to the record of the entries and that the record did not disclose where the Ariel was when the various wind forces were reached. Proof was however supplied by Olsen as to where she was when he saw her late in the afternoon.
The statute which permits the admission of copies of records, Title 28 U.S.C.A. § 661, would cover the admission of the extracts since the objection was not made that the entire log was not offered. The abstract was as follows:
"Weather Wind Force Sea Baromete r Temperature Time
B. SSE 4 Mod. 29.98 69 4:00 A.M.
B.C. South 6 Rough 29.92 70 8:00 A.M.
B.C. SSE 10 Heavy 29.74 76 ...