SIBLEY, Circuit Judge.
This case involves claims by the appellees, Charlotte Cross Just and Anne Elise Gruner, for damages for personal injuries du,e to carbon monoxide gas poisoning occurring on board the yacht Friendship II, owned at.the time by Henry C. Yeiser, Jr. The yacht was built in New Jersey, but it does not appear where she is- enrolled. The suit began in the United States District Court for the Southern District of Florida, Miami Division, as a petition for limitation of liability filed by appellant as duly qualified executrix of .Yeiser’s estate. The petition denied liability and in the alternative claimed a limitation to the value of the offending vessel. This appeal, taken under the authority of the Act of April 3, 1926, c. 102, 28 U.S.C.A. § 227, is from an interlocutory decree rendered on the merits in favor of the claimants and denying limitation.
From Friday, February 28, until Monday, March 2, 1936, the appellees were guests on board the Friendship II on-a fishing trip and cruise. They were at all times within the territorial limits of the State of Florida. The appellees had been assigned a [107]*107double stateroom at the stern of the vessel directly above the bilge, through which ran the exhaust pipes from the yacht’s engines. On Monday morning, when the yacht was nearing Miami on the return trip, the appellees were discovered unconscious in their beds. They were treated upon their return, but allegedly received injuries of a permanent as well as of a temporary nature. Five days after the return, from causes unrelated to the accident, Yeiser died. These claims were filed against his estate.
The appellant has questioned the sufficiency of the evidence to support the findings of the District Judge. The Friendship II is a cruising houseboat yacht powered by twin gasoline motors. At the time of the accident there were several holes in both the port and the starboard exhaust pipes which passed directly through the bilge. The windows of the stateroom which the appellees were using were closed, but in the walls were a number of vents and openings so designed that air from the bilge would circulate through the stateroom. "The District Judge found that carbon monoxide gas in the form of exhaust fumes which were escaping from the pipes collected in the bilge and, passing through the vents into the stateroom, overcame the appellees while they were asleep and were the proximate cause of the injuries complained of. These findings were based on the oral testimony of the witnesses taken in open court. The District Judge had the opportunity which we do not have of facing each witness and of judging at first hand the weight of what he had to say. Every finding of fact which the judge made is supported by evidence. Where there is a conflict of evidence we are not in position to say that the appellees’ evidence is unworthy of belief. Colvin v. Kokusai Kisen Kabushiki Kaisha, 5 Cir., 72 F.2d 44.
A second assignment of error is to the effect that Yeiser owed no duty to make the yacht safe for the appellees, they being mere gratuitous invitees on board the vessel. Yeiser was familiar with gasoline motors. He had been told at the time he purchased the Friendship II that the port exhaust pipe should be renewed. Twice before, to Yeiser’s knowledge, persons aboard the yacht had been affected by carbon monoxide gas, the last time being in September, 1935, when Yeiser’s two sons were overcome in the same stateroom. At that time, a more or less superficial investigation having been made, no defects were discovered. Assuming that the gas was blowing in over the stern, Yeiser simply repeated a previous order to keep the rear windows closed. Nevertheless, he had been put on notice of the defective condition of the pipes and of the tendency of the gas to enter the stateroom. He was cognizant of the ultimate cause and of the result, and, whether or not he properly connected the two, he must be held to have known of the dangerous condition existing aboard the vessel and of the possibility of injury to the appellees at the time he assigned the stateroom to them. Knowing of the condition, he is responsible for failure to remedy the defect or at least to warn the appellees of its existence. Restatement of Torts, Sec. 342.
Responsibility for the injury having been established, it remains to be determined whether the appellant is entitled to a limitation of liability. Since a proper inspection of the vessel would have shown the defective condition of the pipes, and Yeiser was himself present and in charge, the injuries were not occasioned without the knowledge or privity of the shipowner. Because he failed to make such an inspection, he may not have limitation. The Republic, 2 Cir., 61 F. 109; Christopher v. Grueby, 1 Cir., 40 F.2d 8.
The question principally contested in the case concerns the effect of Yeiser’s death upon the claimants’ causes of action in personam. It is admitted that the action in rem survives and that the claimants may recover up to the value of the ship. The Ticeline, D.C., 208 F. 670. However, the common law rule is that a personal right of action abates upon the death of either party, and there are admiralty precedents to the same effect. Crapo v. Allen, Fed.Cas.No.3,360; In re Statler, D.C., 31 F.2d 767. Upon the basis of these precedents, the appellant has strenuously questioned the applicability of a decision of the Supreme Court of Florida holding that the death of the tort-feasor does not extinguish a right of action for the recovery of purely compensatory damages for personal injuries. Waller v. First Savings & Trust Co., 103 Fla. 1025, 138. So. 780. The decision was by a divided court, and based upon the provisions of the local constitution and a local statute. The argument challenges the use of State laws and decisions as rules of decision in cases within the maritime jurisdiction of the federal [108]*108courts and urges that the subject is properly one which requires uniformity.
It is no longer questionable that a tort occurring upon navigable waters of a State of the United States is within the maritime jurisdiction of the federal courts. De Lovio v. Boit, Fed.Cas.No.3,776; Waring v. Clarke, 5 How. 441, 12 L.Ed. 226; The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed. 1058. Nor may the power of Congress, by, virtue of the. paramount maritime jurisdiction of the United States, to prescribe substantive rules of law with respect to maritime torts be challenged. Detroit Trust Co. v. Barlum, 293 U.S. 21, 55 S.Ct. 31, 79 L.Ed. 176. Where the injured person dies as the result of an injury the common law afforded no action for the wrong either to the estate of the deceased or to his dependents. Lord Campbell’s Act in England, and similar statutes in the States of the United States have changed this rule, and it was never the rule of the civil law. Admiralty courts have held that where the law of the country of ffle ship’s flag allows recovery for a wrongful death on land a libel will lie for such a death at sea. The Hamilton (Old Dominion S. S. Co. v. Gilmore), 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264, La Bourgogne (Deslions v. La Compagnie Generale Transatlantique), 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973. The matter is now put under a uniform rule by federal statute. 46 U. S.C.A. §§ 761-768.1 Congress has made no statute touching the case where the tortfeasor dies before suit or judgment.
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SIBLEY, Circuit Judge.
This case involves claims by the appellees, Charlotte Cross Just and Anne Elise Gruner, for damages for personal injuries du,e to carbon monoxide gas poisoning occurring on board the yacht Friendship II, owned at.the time by Henry C. Yeiser, Jr. The yacht was built in New Jersey, but it does not appear where she is- enrolled. The suit began in the United States District Court for the Southern District of Florida, Miami Division, as a petition for limitation of liability filed by appellant as duly qualified executrix of .Yeiser’s estate. The petition denied liability and in the alternative claimed a limitation to the value of the offending vessel. This appeal, taken under the authority of the Act of April 3, 1926, c. 102, 28 U.S.C.A. § 227, is from an interlocutory decree rendered on the merits in favor of the claimants and denying limitation.
From Friday, February 28, until Monday, March 2, 1936, the appellees were guests on board the Friendship II on-a fishing trip and cruise. They were at all times within the territorial limits of the State of Florida. The appellees had been assigned a [107]*107double stateroom at the stern of the vessel directly above the bilge, through which ran the exhaust pipes from the yacht’s engines. On Monday morning, when the yacht was nearing Miami on the return trip, the appellees were discovered unconscious in their beds. They were treated upon their return, but allegedly received injuries of a permanent as well as of a temporary nature. Five days after the return, from causes unrelated to the accident, Yeiser died. These claims were filed against his estate.
The appellant has questioned the sufficiency of the evidence to support the findings of the District Judge. The Friendship II is a cruising houseboat yacht powered by twin gasoline motors. At the time of the accident there were several holes in both the port and the starboard exhaust pipes which passed directly through the bilge. The windows of the stateroom which the appellees were using were closed, but in the walls were a number of vents and openings so designed that air from the bilge would circulate through the stateroom. "The District Judge found that carbon monoxide gas in the form of exhaust fumes which were escaping from the pipes collected in the bilge and, passing through the vents into the stateroom, overcame the appellees while they were asleep and were the proximate cause of the injuries complained of. These findings were based on the oral testimony of the witnesses taken in open court. The District Judge had the opportunity which we do not have of facing each witness and of judging at first hand the weight of what he had to say. Every finding of fact which the judge made is supported by evidence. Where there is a conflict of evidence we are not in position to say that the appellees’ evidence is unworthy of belief. Colvin v. Kokusai Kisen Kabushiki Kaisha, 5 Cir., 72 F.2d 44.
A second assignment of error is to the effect that Yeiser owed no duty to make the yacht safe for the appellees, they being mere gratuitous invitees on board the vessel. Yeiser was familiar with gasoline motors. He had been told at the time he purchased the Friendship II that the port exhaust pipe should be renewed. Twice before, to Yeiser’s knowledge, persons aboard the yacht had been affected by carbon monoxide gas, the last time being in September, 1935, when Yeiser’s two sons were overcome in the same stateroom. At that time, a more or less superficial investigation having been made, no defects were discovered. Assuming that the gas was blowing in over the stern, Yeiser simply repeated a previous order to keep the rear windows closed. Nevertheless, he had been put on notice of the defective condition of the pipes and of the tendency of the gas to enter the stateroom. He was cognizant of the ultimate cause and of the result, and, whether or not he properly connected the two, he must be held to have known of the dangerous condition existing aboard the vessel and of the possibility of injury to the appellees at the time he assigned the stateroom to them. Knowing of the condition, he is responsible for failure to remedy the defect or at least to warn the appellees of its existence. Restatement of Torts, Sec. 342.
Responsibility for the injury having been established, it remains to be determined whether the appellant is entitled to a limitation of liability. Since a proper inspection of the vessel would have shown the defective condition of the pipes, and Yeiser was himself present and in charge, the injuries were not occasioned without the knowledge or privity of the shipowner. Because he failed to make such an inspection, he may not have limitation. The Republic, 2 Cir., 61 F. 109; Christopher v. Grueby, 1 Cir., 40 F.2d 8.
The question principally contested in the case concerns the effect of Yeiser’s death upon the claimants’ causes of action in personam. It is admitted that the action in rem survives and that the claimants may recover up to the value of the ship. The Ticeline, D.C., 208 F. 670. However, the common law rule is that a personal right of action abates upon the death of either party, and there are admiralty precedents to the same effect. Crapo v. Allen, Fed.Cas.No.3,360; In re Statler, D.C., 31 F.2d 767. Upon the basis of these precedents, the appellant has strenuously questioned the applicability of a decision of the Supreme Court of Florida holding that the death of the tort-feasor does not extinguish a right of action for the recovery of purely compensatory damages for personal injuries. Waller v. First Savings & Trust Co., 103 Fla. 1025, 138. So. 780. The decision was by a divided court, and based upon the provisions of the local constitution and a local statute. The argument challenges the use of State laws and decisions as rules of decision in cases within the maritime jurisdiction of the federal [108]*108courts and urges that the subject is properly one which requires uniformity.
It is no longer questionable that a tort occurring upon navigable waters of a State of the United States is within the maritime jurisdiction of the federal courts. De Lovio v. Boit, Fed.Cas.No.3,776; Waring v. Clarke, 5 How. 441, 12 L.Ed. 226; The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed. 1058. Nor may the power of Congress, by, virtue of the. paramount maritime jurisdiction of the United States, to prescribe substantive rules of law with respect to maritime torts be challenged. Detroit Trust Co. v. Barlum, 293 U.S. 21, 55 S.Ct. 31, 79 L.Ed. 176. Where the injured person dies as the result of an injury the common law afforded no action for the wrong either to the estate of the deceased or to his dependents. Lord Campbell’s Act in England, and similar statutes in the States of the United States have changed this rule, and it was never the rule of the civil law. Admiralty courts have held that where the law of the country of ffle ship’s flag allows recovery for a wrongful death on land a libel will lie for such a death at sea. The Hamilton (Old Dominion S. S. Co. v. Gilmore), 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264, La Bourgogne (Deslions v. La Compagnie Generale Transatlantique), 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973. The matter is now put under a uniform rule by federal statute. 46 U. S.C.A. §§ 761-768.1 Congress has made no statute touching the case where the tortfeasor dies before suit or judgment. Here also the common law held that there could be no recovery against the personal representative. The reason given by Blackstone, 3 Comm. *302, is; “And it shall never be revived either by or against the executors or other representatives; for neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity any manner of wrong or injury.” Chancellor Kent thus states it, 2 Comm. Holmes 12th Ed., *416, “Causes of action arising ex delicto, for wrongs for personal injuries, die with the person and do not survive against his representatives. Executors and administrators are the representatives of the personal property of the deceased, and not of his wronp.’ except so far as the tortious act pmplamed of was beneficial to his estate, Crapo y- Allen, and In re Staffer, supia, af.sert that m admiralty also this rule apPIles- We have found n0 case t0 the con' trar7-' .
A personal injury inflicted by negligence on shipboard and on navigable waters is undoubtedly a maritime tort. Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 63, 34 S.Ct. 733, 58 L.Ed. 1208, 51 L.R.A.,N.S., 1157. In the present case the ship was in fault as well as the owner, and the person injured was aboard for purposes of navigation, if such elements are sup-posed to be of importance in the discussion in the Imbrovek case. “The law of the place of the wrong determines whether the claim for damages survives the death of the wrongdoer.” Ormsby v. Chase, 290 U.S. 387, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499. The place of the wrong here to be considered is shipboard, navigable waters, rather than the territorial limits of Florida. Sailors, passengers and guests on vessels in Florida waters are under maritime law as regards the safety of the vessel and the care due by master or owner, rather than under the law of Florida. A proper uniformity requires that it be so. The duties of ship and owner to those on board do not change as the ship passes invisible State boundaries. In a common law State like Georgia, a cause of action for a tort does not survive the death of the tort-feasor before suit. Frazier v. Georgia R. R. Co., 101 Ga. 77, 28 S.E. 662; Smith v. Jones, Adm’r, 138 Ga. 716, 76 S.E. 40; though the contrary is held in Florida. Had the injuries here in question occurred on a night trip from Brunswick, Ga., to Jack-sonville, Fla., the survival of personal liability would, if State law controls, depend on whether the gas was inhaled in Georgia or Florida waters, and probably could not be determined at all. We are of opinion that principles of admiralty law govern, uniform at least throughout the United States, and the principle touching survival heretofore declared is that a personal li [109]*109ability for an injury to person due to negligence does not survive the death before libel of the tort-feasor. If the law is to be changed, it ought to be by Act of Congress.
Nothing can be made of the argument that appellees could have sought a common law remedy in a Florida court if this proceeding had not stopped them. Yeiser died a citizen of Ohio, and there his executor was appointed and resides. It is not apparent' how a Florida court would obtain personal jurisdiction. But if it could, the suit would still have been for a maritime tort, and appellees would have no rights different from what they would be in a court of admiralty, the remedy alone being different. Messel v. Foundation Co., 274 U.S. 427, 47 S.Ct. 695, 71 L.Ed. 1135; Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171.
The interlocutory decree is affirmed as to the liability of the ship, but is reversed in so far as it holds that the personal liability of Yeiser survived his death. Damages may be assessed against the vessel and her proceeds only. The costs of this appeal will be equally divided between appellant and appellees.