In re P. Sanford Ross, Inc.

NOYES, Circuit Judge

(after stating the facts as above). In considering this case it may be unnecessary to determine whether the pile driver, under all the circumstances, came within the limitation of liability statutes. If the statute applied and yet the accident occurred through fault within its privity or knowledge, the petitioner is not entitled to benefit by it. The determination of the question of privity' or knowledge may be decisive.

[1] The petitioner might have applied to limit its liability as soon as the claim in question arose and thus have brought all the issues into the District Court. It did hot choose to do so and left some issues to be decided in the.common law court. It is hound here by the decision upon such issues. In re Old Dominion S. S. Co. (D. C.) 115 Fed. 845; The Capt. Jack (D. C.) 169 Fed. 455.

The complaint in the common law court alleged, among other things, that there were defects in the ways, works and machinery through the fault of the defendant — the petitioner. Elsewhere it stated that the defect was the absence of braces to control piles while being driven. From the testimony in the common law case which was read into the present record, it appears that the absent brace was a “chock-block” which is a wedge-shaped piece of wood used, when necessary, to. prevent a pile while being driven from spinging out of proper alignment. There was also testimony that no chock-block was supplied or used upon this pile driver and, although there was much evidence to the contrary, that its absence caused the accident.

[2] Upon such allegations and evidence the judgment in the common law action necessarily went much further than to find mere negligence in the petitioner’s subordinate employés. It adjudicated that the petitioner was itself negligent in failing to equip the pile driver with a chock-block. These questions were raised by the pleadings, and evidence was offered upon them. They were settled by the judgment and it is not material that it may have settled other questions or that other grounds of negligence may have been charged. . A judgment on the merits is conclusive as to every matter' offered and received to sustain or defeat a demand. 23 Cyc. 1169, 1170.

[3] When therefore, the case came into the District Court, the only question was whether the absence of the chock-block was with the privity or knowledge of the petitioner. The finding in the common law case that the petitioner failed in its duty to properly equip did not establish that. But the petitioner is a corporation, and is charged with the knowledge of its officers or agents who have charge of the particular subject matter. Undoubtedly its high officers were not personally informed as to the details of the equipment of all the vessels belonging to their corporation. But it had a superintendent whose duty it was to see that all vessels were in repair and properly equipped. The petitioner failed to show that the absence of a chock-block was without the knowledge of such superintendent. It failed to show that the pile driver when built was supplied with a chock-block or that it ever had one. Consequently the petitioner failed to show want of privity or knowledge and, in view of the common law judgment, fails to bring itself within the limitation of liability statute. In re Jeremiah Smith & Sons, 193 Fed. 395, 113 C. C. A. 391.

Martin T. Mantón and Anthony J. Ernest, both of New York City, for appellant.

Everett, Clark & Benedict, of New York City (Edward G. Benedict, of New York City, of counsel), for appellee.

The decree of the District Court is reversed with costs and the cause remanded with instructions, in case the claimant apply therefor, _ to decree in her behalf to the extent of the fund in the hands of the trustee without prejudice to her right to collect the remainder of her judgment.