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§ 1465; Re Miller, 121 Cal. 353, 53 Pac. 906. The administrator or executor is not the owner of any part of the estate. He, in his official character, only holds it in trust for the parties entitled to it, subject to the purposes of administration. The title to the insurance money came to respondent, Annie J. Jenkins, through the estate, and under the order setting it apart, and vested the title in her as effectually as if she had been named as the beneficiary of the policy. can see no reason why the insurance money coming to her directly as beneficiary should be exempt from execution, and not that coming to her indirectly through the estate and the order setting it apart. In either case it is exempt from execution. In one case the instrument of life insurance gives her the title; in the other, the law gives it to her. The statute provides that all property exempt from execution shall be set apart for the use of the surviving husband or wife. Code Civ. Proc. § 1465. If it is exempt from execution before being set apart, it does not cease to be so the moment it is set apart. The widow takes the family allowance by order of the court. After it paid to her, it cannot be seized on execution for her prior debts and diverted from the support of the family. The principle is fully discussed in regard to a homestead set apart for the family in Keyes v. Cyrus, 100 Cal. 322, 38 Am. St. Rep. 296, 34 Pac. 722. It was there held that the provision for setting apart exempt property, including a homestead, was for the protection and support of the family. The court said: "The authority given to the court in the first part of § 1465 to set apart for the family all the property exempt from execution, including the homestead selected,' implies that the property, when set apart, is exempt from execution. A homestead may be set apart to the widow, even though the estate be insolvent, and the property so set apart constitute the entire estate of the decedent; but, if the homestead thus set apart to her could be immediately taken in execution by one of her creditors, it would fail to be available for her use or support, and it might happen that her creditor would fare better than a creditor of the decedent whose money had perhaps been used to purchase the very property so set apart." In Barnum v. Boughton, 55 Conn. 117, 10 Atl. 514, it was held that money paid to the widow, as an allowance for her support, through the probate court, could not be taken or attached by one of her creditors. The court said: "She could neither ask nor receive it for the payment of her debts. The probate court could not grant it for that purpose. If one allowance can be intercepted, so can every other, for, if the door is opened for
one creditor, it cannot be closed against any, and the entire estate might thus be diverted from its legal destination. The law will not permit the instant necessities of the widow and the ultimate rights of the creditors of the estate to be postponed, in its name, to the demands of her creditors." So in this case the court will not allow the insurance money which is exempt from execution as to the creditors of the estate to be taken by the creditors of the widow. It is equally exempt as to them.
Appellant contends that by the deposit of the money in the bank the money lost its identity, and that thereafter the bank owed Annie J. Jenkins the money; that the debtor thus voluntarily parted with the money which was exempt, and acquired in lieu thereof a credit due by the bank. Such construction would seem to be unreasonable, and no authority is cited which supports it. It is true that, in one sense, by the deposit the relation of debtor and creditor was created as between the bank and Mrs. Jenkins: but she put the exempt money in the bank. She regarded it as money in the bank. She expected to, and did, draw it as she needed it. The bank did not give her the identical pieces of money that she deposited, but it gave her, as she drew upon it, money equal in value and kind. She was not required to keep the money buried, or in her stocking, in order to have it remain exempt. If the appellant's theory is correct, she could not have paid a $5 grocery bill with a $20 piece, receiving $15 in change, without the risk of having the $15 attached. The law does not require such absurdity. The cases cited by appellant arose under the United States pension laws, and are not in point. The section of the Revised Statutes construed provides: "No sum of money due, or to become due, to any pensioner, shall be liable to attachment," etc. The courts have correctly held that the section only protected the money while due or in course of transmission to the pensioner. Money due, or to become due, is designed to protect the amount of the pension until it reaches the hands of the pensioner. It is then no longer money due, or to become due. Our statute exempts the money, and, although deposited in the bank, it is stili money and protected. It has not lost its identity because of the fact that the identical coins or bills deposited are not to be returned. Respondent probably never saw any coins or bills, but took the checks which the insurance company gave her as evidence that it had the money for her, and deposited them with the bank; having the amounts credited in her bankbook as evidence that she had the money in the bank. In Hibernia Sav. & L. Soc. v. San Francisco, 139 Cal. 205, 96 Am.
St. Rep. 100, 72 Pac. 920, it was held that the checks or orders drawn upon the Treasurer or Assistant Treasurer of the United States, payable on demand, are not merely obligations of the United States, but solvent credits, subject to taxation. The court said: "The orders were simply a convenient mode of payment of the obligation. They were, for all practical purposes, the money itself." So in the case at bar the credit in the bank is, for all practical purposes, under the exemption laws, to be regarded as the money itself. Respondent had the right to have the levy set aside upon the exempt property. Section 556, Code Civ. Proc., provides that the writ may be discharged when the same was improperly or irregularly issued. This was not a dissolution of the writ of attachment, but an order setting aside the levy as to the exempt property. It would be strange if a court were so impotent that it could not set aside the erroneous levy of its own writ upon exempt property. Any other rule
(64 C. C. A. 410, 130 Fed. 76.)
A steamship company is not entitled to a limitation of its liability for loss of passengers baggage and through the sinking of its vessel, where its
crew could not understand the language of its officers, and were not drilled in the launching of the boats, so that after the accident but one boat was successfully launched, al
though there was time enough to launch them
all had proper orders been given and obeyed, and the statute provides that no steamer carrying passengers shall depart from any port unless she shall have in her service a full complement of licensed officers, and a full crew sufficient at all times to manage the
would compel the injured party to bring a suit for damages, which not only would lead to delay, but might in the end prove futile. Courts have power over their own process, and to set aside a levy of a writ of attachment or execution upon exempt property. 2 Freeman, Executions, § 271; 8 Enc. Pl. & Pr. p. 579, and cases cited; Sandburg v. Papineau, 81 Ill. 446.
It follows that the order should be affirmed.
We concur: Gray, C.; Smith, C.
2. The doctrine of fellow service will not defeat the liability of a steamship company for death of a member of the crew through the sinking of the vessel, although the cause of the accident was the neg ligence of the master and pilot, where the loss of life was due to inability to launch the boats because of insufficiency of the crew in that they could not understand the language of the officers, and had not been drilled in lowering the boats.
(May 2, 1904.)
NOTE. For another case in this series as to when steamship company cannot take advantage of statute permitting limitation of liability, see Weisshaar v. Kimball S. S. Co. 65 L. R. A. 84.
For reasons given in the foregoing opinion, the order is affirmed.
UNITED STATES CIRCUIT COURT OF APPEALS, NINTH CIRCUIT.
Re PETITION OF PACIFIC MAIL STEAM-CROSS-APPEALS from a decree of the
SHIP COMPANY for Limitation of Liability Arising out of Loss of the City of Rio de Janeiro.
District Court of the United States for the Northern District of California limiting the liability of petitioner for loss of life through the sinking of one of its steamships; the petitioner excepting to so much of the decree as held it liable for a greater sum than it contended for; and persons claiming damages excepting to so much as permitted a limitation of liability. Reversed on appeal of passengers.
The facts are stated in the opinion. Argued before Gilbert and Ross, Circuit Judges, and Hawley, District Judge.
Mr. William Denman, for passengers, appellants:
In order to limit its liability, the petitioner has resting upon it the burden of proving that the "damage or injury done, occasioned, or incurred," shall be done without the privity or knowledge of such owner
McFarland, Henshaw, and Lorigan, JJ., concur.
Petition for rehearing in banc denied February 16, 1905.
U. S. Rev. Stat. § 4283, U. S. Comp. Stat. 1901, p. 2943.
The words "sufficient at all times to manage the vessel" include the time when the lifeboats should be launched to save the passengers at the wrecking of the vessel; and the owners failed to supply a crew sufficient for such an occasion.
Kimball v. Tucker, 10 Mass. 195; The Lady Pike (Germania Ins. Co. v. The Lady Pike) 21 Wall. 12, 22 L. ed. 502; The Gentleman, Olcott, 115, Fed. Cas. No. 5,324; Tait v. Levi, 14 East, 482; Parsons v. Empire Transp. Co. 49 C. C. A. 302, 111 Fed. 208.
The burden of proof is on the owners to | 52d Congress, 2d Session, page 445, chap. show that the loss of life could not possibly 105), the provisions of which are hereby arise from the insufficiency of the crew. made a part hereof, and are deemed to control and express the contract of the parties hereto in all cases where there may be (if there be any such cases) a difference between the expressed provisions of the bill of lading and the terms of such act of Congress."
The Pennsylvania (The Pennsylvania v. Troop) 19 Wall. 136, 22 L. ed. 151; Richelieu & O. Nav. Co. v. Boston Marine Ins. Co. 136 U. S. 415, 34 L. ed. 401, 10 Sup. Ct. Rep. 934; The Guildhall, 58 Fed. 800; The Annie Faxon, 21 C. C. A. 366, 44 U. S. App. 591, 75 Fed. 319.
Messrs. Gavin McNab, Thomas & Gerstle, W. P. Humphrey, R. H. Countryman, W. H. Willitt, Chickering & Gregory, R. H. Cross, Bien & Jackson, A. Morgenthal, Corget & Goodwin, Charles E. Snook, and Roger Johnson also for passengers, appellants.
Messrs. Charles Page and Ward McAllister for Pacific Mail Steamship Company.
Ross, Circuit Judge, delivered the opinion of the court:
The steamship City of Rio de Janeiro, whose home port was San Francisco, on entering the Bay of San Francisco on the 22d day of February, 1901, on one of her return trips from Hong Kong and intermediate ports, struck a reef of rocks near the Golden Gate, and within twenty minutes sank beneath the waters, carrying down a large number of her passengers and crew and all of her cargo. Shortly thereafter, to wit, March 19, 1901, the Pacific Mail Steamship Company, owner of the ship, filed in the court below its petition for limitation of liability, alleging therein that the sinking of the ship occurred by reason of the perils of the sea, and praying for a limitation of liability, and for the privilege of contesting any liability for the losses that occurred. The court below directed a reference to its commissioner to ascertain and report the value of the ship and freight pending. Evidence was taken showing the amounts collected by the petitioner on the ship's outward voyage for passage money and freight and the amount received and agreed to be paid upon the return voyage. In respect to the question of freight pending, it was shown that all goods lost had been shipped under bills of lading containing these provisions: "Freight for the same to be paid in United States gold coin, said freight to be considered earned, steamer or goods lost or not lost at any stage of the entire transit. . . . The foregoing bill of lading is issued subject to the terms and conditions of an act of Congress of the United States of America, approved February 13, 1893, entitled 'An Act Relating to Navigation of Vessels, Bills of Lading, and to Certain Obligations, Duties, and Rights in Connection with the Carriage of Property' (Acts of
Based upon evidence introduced before the commissioner, that officer reported to the court findings to the effect that the petitioner was, and still is, the sole owner of the steamship, the value of which, in its wrecked condition, was $150; that the voyage which terminated in the wreck and loss of the ship began at Hong Kong, China, on the 22d day of January, 1901; that the freight money collected at Hong Kong and way ports for the voyage to San Francisco, and that which was to have been collected at the latter place, "is earned and the freight pending in this cause," and appraising the value of the ship and her freight pending as follows:
Steamship City of Rio de Janeiro, and her tackle, apparel,
machinery, and furniture.... $ 150 00 Freight and passage money pending
The commissioner took no account of the freight or passenger money collected on the outward voyage of the ship.
To his report the claimant, Sarah Guyon, administratrix of the estate of Henry Guyon, deceased, filed these exceptions:
"(I.) Claimant excepts to the following finding of said report and appraisement: 'I do further find that the voyage which terminated in the wreck and loss of the aforesaid steamship at the entrance to San Francisco harbor on the 22d day of February, 1901, began at Hong Kong on the 224 day of January, 1901,' on the grounds: (a) That there is no evidence before the commissioner to show that the said voyage began at Hong Kong, China. (b) That the evidence conclusively established that the voyage for which the freight was pending at the time of the said wreck began at San Francisco on or about December 14, 1900, and extended through the ports of Honolulu, Yokohama, Kobé, Nagasaki, Shanghai, to Hong Kong, and return to San Francisco, touching at the same ports in the reverse order.
"(II.) Claimant excepts to the following finding: 'I do further find the freight and passage money pending for the aforesaid voyage to be the sum of $24,827.93,' on the grounds: (a) That the term 'aforesaid voy
age' is ambiguous, and that it cannot be
"(III.) Claimant excepts to the following finding and appraisement: 'I do further appraise the value of the said steamship and her freight pending as follows:
"Steamship City of Rio de Ja
neiro, her tackle, apparel, and furniture Freight and pending
“—On the grounds: (a) That the evidence conclusively shows that the venture in which claimant was interested was the sending of the City of Rio de Janeiro on a voyage from San Francisco to Asiatic ports and return to carry for hire passengers, freight, and mails, and that the freight pending for the portion of the voyage from San Francisco to Hong Kong, amounting to $30,202.11, should be added to the $24,827.97 earned on the homeward trip of the voy-directed to pay. The court held against the claims of Clara Barwick, and Ruth Miller as executrix of the estate of Sarah Wakefield, deceased.
In and by its final decree the court below 150 00 awarded damages to various of the claimants who were representatives of lost pas24,827 93 sengers, or who had themselves suffered injury, in amounts aggregating $35,125, but $24,977 93 limited the liability of the petitioner for such damages to the sum of $24,977.93, with interest thereon from March 19, 1901, which sum, with interest, was directed to be paid into the registry of the court within ten days, and to be apportioned among the various claimants to whom damages were so awarded after the payment out of such fund of all the costs of the proceeding except the cost incurred in the proceedings relating to the appraisement of the steamship and her freight pending, which the petitioner was
age; making the total appraisement for the freight pending $55,040.04. (b) That the evidence shows conclusively that the value of the ship after the wreck was $500, and that this sum should be included in the said appraisement. (c) That the appraisement of the said vessel should be amended as follows:
From the decree various of the claimants, as also the petitioner, have appealed. The ground of the petitioner's appeal is that, inasmuch as the court below found and held that the loss occurred solely by reason of the negligence of the ship's officers, and not "Freight pending for venture.. $55,040 04 by reason of any peril of the sea, it erred Wreck $500.00; boats $150.00.. 650 00 in holding that pending freight included either any prepaid freight or prepaid pas$55,690 04 sage money, or any uncollected and uncollectible or unearned freight, and that, instead of limiting the liability of the ship to $24,977.93, it should have been limited to the sum of $4,483.53, which latter sum, it is contended on the part of the petitioner, is the aggregate amount of the value of the ship and her freight pending. The main ground of the appeal of those of the claimants whose appeal is from that portion of the final decree adjudging "that the liability of the Pacific Mail Steamship Company for said damages be and hereby is limited to the sum of $24,977.93 and interest there. 'And that on from March 19, 1901," is that the crew
"Wherefore claimant prays that the said exceptions to the said report and appraisement be allowed, and that the said appraisement be recommitted to the said commissioner, with instructions to amend the same by adding thereto the item of $30,212.11 as for freight pending for the outward trip of the voyage on which the said steamship sank, and the item of $500 as for the value of the ship after the wreck."
The petitioners filed the following: "Petitioners except to the following finding of said report and appraisement:
which was to have been collected at San Francisco.' Wherefore petitioners pray that the said appraisement be recommitted to the said commissioner, with instructions to amend the same by deducting the sum of $13,729.17 for freight whic was to have been collected at San Francisco."
All of the exceptions were overruled. Various claims having been filed for damage by reason of loss of life and for loss of goods, baggage, etc., the cause came on for trial before the court upon its merits. The court found and held that the sinking of the ship was not due to any peril of the sea, but to the gross negligence of her master and pilot; after which the petitioner
ved for a reduction of the bond so far as it represented freight pending, which motion was denied.
of the lost steamship "spoke and understood | Yet but three of the eleven boats were lowonly the language of a race and nation dif- ered into the water, one of which (the aft ferent from the officers immediately in com- quarter boat No. 10) was lowered by Offimand over them in the launching of the life-cer Coghlan and the ship's carpenter, and but three of the hundred and odd passengers that the ship carried were taken into any boat. There must, in the very nature of things, have been some paramount, controlling cause for all this. And that cause, we think, is very easily to be seen. It was not merely for the reason that the men depended upon to man the boats were Chinese. To the contrary, the evidence is that the Chinese make excellent sailors.
boats on said vessel, and that they could not speak or understand the commands of said officers, and that they had never been drilled in the launching of the lifeboats to train them to launch the same without commands, and that the said crew was therefore not sufficient at all times to man said steam vessel carrying passengers, and that the injury to claimants arose from said in sufficiency," and "that the officers of said City of Rio de Janeiro in command of her eleven lifeboats could not speak any language which the members of the crew im: mediately under their command in launching said boats could understand, which said crew had not been trained in launching said boats, and therefore that said Pacific Mail Steamship Company has not supplied a full complement of officers sufficient at all times to manage a steam vessel carrying passengers, and that the injuries to the claimants arose through said insufficiency."
It is apparent that, if this position of the claimants is well founded, the petitioner is not entitled to any limitation of its liability, the questions presented on its appeal become immaterial, and the claimants to whom damages were awarded by the court below will be entitled to judgment for the full amounts so awarded them, together with their costs, whether the voyage on which the disaster occurred should include the round trip from San Francisco to Hong Kong and back, as contended on the part of the claimants, or is limited to the return trip from Hong Kong to San Francisco, as contended on the part of the petitioner. The record shows that the disaster occurred about half past 5 o'clock of the morning of February 22, 1901. The fog was so dense that the day afforded no light. It was very dark, but the water was smooth, and there was but little, if any, list to the ship as she sank, which she did in twenty minutes from the time of striking the rocks. She carried 211 persons and 11 lifeboats, 3 of which were swung by davits from the sides of the ship, and 8 of which were on skids on the roofs of the deckhouses. Their equipment and the apparatus for launching them was good. The evidence is that under such conditions five minutes was ample time for the lowering of the boats. It further shows that there was no panic among the passengers or crew; that the passengers behaved well; and that the captain, immediately upon the ship's striking the rocks, sounded the alarm, and called the crew to the boats. Each of the boats was commanded by a white officer, and manned by a part of the Chinese crew.
We extract the following from the testimony of Capt. Seabury, a most competent and experienced mariner, and who, at the time of giving his testimony in this cause, had completed his sixty-fifth round voyage from San Francisco to the Orient for the petitioner:
A. Every time I have been to sea on this side of the continent, and every time I have had a white crew, we have always had trouble with them getting drunk; especially sailing days. At times at sea-when I ran to Australia, where I made five voyagestwice we had a white crew, and there was scarcely a day but I did not have to go to the police court on account of some row that they made. I have always found the Chinese crew obedient, able to do their work. and always on hand in bad weather, and not eyeservants. You do not have to watch them in the ordinary run of work.
Q. During those sixty-five voyages, Captain Seabury, have you ever encountered any typhoons?
A. Yes, sir; two or three.
A. Yes, sir; I had a very bad one last
Q. At the time did you have a Chinese crew?
A. Yes, sir; on this same ship.
Q. How did they behave in time of peril? A. As well as any men could possibly behave. They never stow away in dark nights in bad weather. They are always right there, and you can always make sure of them.
Q. Have you ever seen them in time of wreck?
A. I have never been wrecked, not since I have been steamshipping. I have in sailing schooners. We had pretty nearly a wreck on the Alaska in 1879, and had to turn back.
Q. With a Chinese crew?
Q. Did they behave well?
Q. How many men have you on the China