In September, 1900, the steamer Albion, owned by the appellee, Kimball Steamship Company, was anchored, in Golovin Bay, Alaska, about a mile and a half from the beach; and,, being ready to proceed on a voyage from that place to San Francisco, one of her small boats was sent, in charge of her second officer and two sailors, to the shore, to bring to the steamer such persons as intended to take passage on her. In returning, the boat capsized,, and some of the passengers were drowned — among them, Louis G. Weiss-Haar. Of his estate Ella M. Weisshaar was afterwards appointed ad-ministratrix, and as such administratrix she commenced an action at .law in the superior "court of the city and county of San Francisco, state-of California, against the appellee, for the recovery of damages in the sum of $40,000 for the death of her husband. That action had not been tried, but was at'issue, when the appellee filed in the court below its petition, by virtue of sections 4283-4285 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 2944], for the purpose of' contesting its liability for any damage or injury growing out of the accident, and for the purpose of limiting its liability in the event of being held responsible. In its petition the petitioner alleged that the overturning of the boat — :

It is further averred in the petition that there was' freight pending by reason of the trip on which the steamer was engaged at the time of the accident, amounting to $2,265 > that' the value of the steamer at the close of the voyage did not exceed $15,000, and that the amount of the claims already presented, and as apprehended and threatened, far exceeds the value of the steamer and the pending freight; that there is no lien on the steamer- prior or paramount to any lien that may have attached by reason of the matters alleged.

The value of the steamer and the freight pending were duly appraised, and the administratrix of the estate of the deceased, Weiss-liaar, answered the petition, putting in issue its material averments, and presenting a claim for damages for the drowning of her husband. In its opinion, the court below said:

The court below very properly held that the petitioner, having undertaken to convey the deceased tp the steamer for passage thereon, was under the same obligation to use proper care in transporting him as if he had paid for or engaged his passage in advance. The court below, however, further held that the deceased was guilty of contributory negligence in remaining in the boat after he and the oilier passengers therein were notified by the officer in command; that, '“in so remaining, the deceased, as well as the other passengers in the boat, assumed the risk resulting from its overcrowded condition, and voluntarily encountered a danger which a prudent man with notice would have avoided.” The court accordingly dismissed the claim of the administratrix of the estate of the deceased, Weisshaar, and entered a decree to the effect that the petitioner is not liable for damages growing out of the overturning of the boat.

The evidence shows that the capacity of the boat was 14 persons, without baggage. At the time of the accident in question it contained 18 persons, a trunk, 2 tool chests, and 3 or 4 sailors’ bags. The boat was in charge of the second officer of the ship, who had under him two sailors, and, when ready to receive its passengers was stranded, with its bow well up on the sands of the beach. The evidence shows that the deceased, Weisshaar, was the fifth man to enter the boat, and took his seat about amidship. He had been preceded by a Capt. .Tyson, and *400 by the president of the appellee steamship company, Mr. Marsden. In his direct examination the ship’s officer in command of the boat was questioned and answered as follows:,

At the end of his direct examination this witness was asked, “Did you have any means or power to prevent them ?” to which question he answered: “I had no power whatever. I was powerless. They took the command away from me, and took control of the boat, and I could not do nothing.”

A careful perusal of the entire testimony of this witness, of itself, shows that there was no justification whatever for his statement that the boat was started on its perilous journey against his protest, or that the control of it was taken from him by the passengers. If powerless in the premises, it was only because he did not have the stamina to assert and exercise the authority with which he was clothed, .and which the law and good seamanship made it his imperative duty to enforce. The evidence is overwhelming not only that he made no objection to starting the boat with its overload, but .that, according to his own testimony, one, at least, of his own sailors took an active part in shoving it off the sand and into’ a floating condition, which appears without conflict to have been a matter of considerable difficulty; so much so that several of the passengers had to assist the sailors in accomplishing it— some by means of oars, and others, having high boots, by getting into the water and pushing the boat.

Let it be assumed that, when the officer announced that the boat was overloaded and that it was “risky,” it became the duty of all the passengers to get out — as. well those who had entered when there was ample room as those who had caused the overloading — and that every one who remained thereupon became guilty of contributory negligence; such fact becomes immaterial, in the face of the further fact that the officer, with full knowledge of the overloading and consequent dangerous condition of the boat, subsequently not only started it on its perilous trip, but, after starting, and while it was yet in smooth water, and after observing that it was down by the head, and with but little freeboard, made no effort whatever to return to the shore to make the boat safe by discharging some of the passengers. It was the clear duty of the officer, in the first place, to have stopped the entry of more than the boat’s complement of men. According to his own testimony, he made *401 nothing more than a milk and water protest against the entry of any one; and even if there had been on the part of the passengers an effort to overpower the officer and force their way into the boat — of which there is not the slightest evidence — it still remained the imperative duty of the officer in command to refuse to start the boat until enough of the people had gotten out to make it safe. Not the slightest attempt appears to have been made by this officer to perform his duty in that regard, and for his gross negligence in that respect, as well as in failing to return to shore while he yet had sufficient opportunity, the ship is clearly liable, for, even where an injured party is guilty of contributory negligence, such negligence will not defeat the action when it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408 , 12 Sup. Ct. 679, 36 L. Ed. 485 ; Louisville & Nashville Ry. Co. v. East Tennessee, V. & G. Ry. Co., 60 Fed. 993 , 9 C. C. A. 314 ; Harrington v. Los Angeles Ry. Co. (1903, Cal.) 74 Pac. 15 .

This doctrine, which is well established, fits the present case exactly. The case of Lynn v. Southern Pacific Co., 103 Cal. 7 , 36 Pac. 1018 , 24 L. R. A. 710, is, in principle, also precisely in point. In that case the plaintiff passenger was unable to' find room inside a car, and therefore stood upon the platform, from which he was thrown and injured; the evidence tending to show that the train was going at excessive speed. In affirming a judgment for the plaintiff, the Supreme Court of California said:

So, here, as has already been said, if the officer in command of the boat had been unable to prevent its overloading (of which, however, there was no evidence), it was still his right and imperative duty to> refuse to start the boat until enough of the passengers had gotten out to make it safe to do so. There is nothing in the record to justify the contention that such action on his part would not have been acquiesced in and conformed to-. But speculation on that point is no answer to the gross neglect of duty on the part of the officer of the ship.

Moreover, the evidence shows that the negligence of the officer in command of the boat was committed in the personal presence and within the actual knowledge of the president of the appellee corporation, who, so far from seeking to enforce the performance of his duty by that officer, acquiesced in his neglect of duty, as affirmatively appears from the president’s own testimony.

The limitation of liability provided for bjr the statute under which the present proceedings were had is, according to its express terms, to be allowed only when the loss, damage, or injury occurs “without the privity or knowledge” of the owner. In the case of The Republic, 61 Fed. 109 , 9 C. C. A. 386 , the privity or knowledge of the corporation consisted in the negligence of its president, who, by his omission of *402 proper care in his examination of the vessel, failed to discover her defective condition; and the Circuit Court of Appeals for the Second Circuit there held that the injuries and death occasioned to the excursionist in that case could not be said to- have occurred "without the privity or knowledge” of the owner.. We think that decision directly in point here. "Privity and knowledge,” said Judge .Brown in The Colima (D. C.) 82 Fed. 665 , “are chargeable upon a corporation, when brought home to its principal officers or the superintendent, who is its representative.” See, also, Quinlan v. Pew, 56 Fed. 111 , 5 C. C. A. 438 ; Ford v. Goodall, etc., S. S. Co., 4 Sawy. 292 , Fed. Cas. No. 8,506.

The judgment is reversed and cause remanded, with directions to the court-below to dismiss the petition at petitioner’s cost, leaving the ad-ministratrix of the estate of the deceased, Weisshaar, at liberty to pursue her action for damages in the state court.