the duty of contribution, it' is:not, I think, ina present. Considering,that the whole doctrine of general average rests upon the highest equity;, that no technical rules prevent its application to all cases that come within its general purpose; that the York-Antwerp Tules were specially adopted by this charter; that there was no opposition of interests, in the sacrifice: made by filling and scuttling the ship; that the port officials' were by law in'command while the ship was on fire; that the purpose of the act of sacrifice was the. common good of ,the ship and cargo alone; that the circumstances indicate that there was not in this case any interest of the port or of, other vessels that in the least influenced the port officials in their action, or the smallest sacrifice of the ship or cargo in reference to any outside interests; and that there is no reason to, suppose that ,the orders were not honestly, and intelligently given,' or were not such as the officials would have given,as actual master, having nothing in view but the common benefit of ship and cargo, - I think the claim of general average contribution should be sustained. By the law of this country, water damage ,is a subject of contribution, (Heye v. North. German Lloyd, 33 Fed. Rep. 60, 36 Fed. Rep. 705,) and in this case, as I have said, the charter expressly adopted the YorkAntwerp 'rules, which ao declare, (rule 3.). These rules do not require the master's order. An average bond having been given by the libelants, and the loss being adjudged a proper subject of general average, and no errors being shown in the adjustment, the decree should he for the libelants for the balance stated by the adjustment. Though the Ii. bel does not claim the amountresultillg from, the general average, but the whole proceeds of the cargo, the amount due the libelants on the average adjustment having been paid into court, it should be decreed to them, ul1derthe prayer forgel1eral relief. Dupont v. Vance, 19 HOlr_, 162; The J. P. Donald8on, 21 Fed. Rep. 673.
& MERSEYMARINE INs. CC',
(Di8triot Oourt, E. D. New York. July 16,1888;)
SHIPPING-GENERAL AVERAGE-PLACE OF ADJUSTMENT.
The bark Nina with a general cargo from Leghorn, bound for New York, put into Bermuda in distress, where sbe was subsequently con· demned and sold. Portions of the cargo were delivered by the captain at Bermuda to the agent of the consignees, and average. bonds were signed at Bermuda by the whereby they agreed to pay their contribution in accordance with the 'established usages and laws in similar cases. The adjustment was subsequently stated by New York average adjusters according to New York rules. Held, that New York was the proper place for stathlg the adjustment, and that New York rules must govern; also, that it was plain from the evidence that the parties so underatood it at the time ofthe delivery of the cargo at Bermuda. .
OLIVARI ti.'1'H'AMES & MERSEY 'MARImI:
. , ,
In the l?f an averment, supporte4 by proof, that the us'!-ges and law. of Bermuda are different from the usages and laws of New York In such cases, the court must proceed on the presumption that the usages and laws of Berin force in the port of New York·. muda are similar to the Where the proofs show that libelant is entitled to recover more than the . amount ,for which judgment is demanded in the libel,he will not be limited the amount stated in the pleading, but th,e libel may be amended in , to the claimed, sO,asto cClDform to the facts. .
OJ!' FOREIGN 'COUNTRY.
Admiralty. uUo, Ruebsamen k Hubbe, for libelant. :Sid'(ley OhUbb, for respondents. BltNEDICT, J. These tWQ actions, tried together,. were brought by the master of the Italian bark Nina Mathilda, upon two general bonds, to recover oithe defendants- the contributions in general average shown to be due from them respectively by an adjustment by Jones & Whitlock, average adjusters, at New York, on the 4th of June, 1885. Thedefenses set'up in the answers were: Fi,'st, that the disaster in question arose from theuDseaworthiness of the vessel; 8econd, fraud on the part of the master in procuring the bond; tMrd, that the adjustment described in theJibelwBs·not made, up in accordance with the law and custom in such cases, was not correctly made up, and did not 'state correctly the amount due from thpse respondents. No proof has been offered in support of the first and second of the defenses above stated, and they are accordingly deemed abandoned. The third defense is insisted on. The following facts appear: The Nina Mathilda left Leghorn, Italy, on the 22d of July, 1884, with a general cargo,bound for New York. During her voyage she encountered a storm, in which her masts, spars, and sails Were sacrificed, and by which she was compelled to put into Bermuda in distress. She arrived in Bermuda on October 3. 1884. Among the cargo were 265 half cases ofcitron, consigned to Hill Bros., of New York, which had been insured by Chubb & Som,: the defendants in the second-entitledsuit; also 75 half cases of citron consigned to Levi Lewis, which had been insured inthe Thames & Mersey Company, the defendant in thetirst-entitled suit. The citron in these two shipments was transhipped at Bermuda to New York,anq, as the answers state, was there received by the consignees. General average bonds were executed in behalf of the defendants in Bermuda, whereby they severally agreed to pay their proportion of the losses and expenses, when stated and apportioned by a duly and legally authorized adjuster of marine adjustments, in acc!)rdance, witb the established usages and laws in similar' cases. Thereupon an adjustment in general average was stated in New York by Jones & Whitlock, in accordance with the usages and laws governing similar cases in the port of NewYork, which adjustment states the amount due JromChubb & Son, after ,giving them: credit for some adyancestlla.detothe master,to be $1,555.25; and the amount due from the Thames & Mersey Company, after all deductions, to be $1,431.89.
After this adjustment had been completed and placed before the underwriters, objections were raised by some of them as to the allowances for sacrifices, as too high, whereupon a compromise was effected with such parties by reducing such allowance one-half. The defendants did not accept the compromise, and declined to pay any sum,ano now contend. in the support of the third defense setup in the answer that by the terms of the bond the adjustment was to be made in accordance with the established usages and laws in similar cases; that the interests of the defendants and the ship became separated in Bermuda; that the adJustment of Jones & Whitlock, confessedly made in accordance with the usages and laws in force in the port of New York, is not in accordance with the usages and laws in force in Bermuda in similar cases, and ae-cordingly is not in compliance with 'the terms of the average bond. The difficulty with this contention is that the answer does not permit it. The answer contains a simple averment that the adjustment is not made in accordance with the usages and laws in similar cases. It does not aver that the tlsages and laws of Bermuda in similar cases differ from the usages and laws in the port of New York in such cases, and sets up no foreign laws. In the absence ofsuch averment, supported by proof, this -court must proceed upon the presumption that the usages and laws of Bermuda, in such a matter as this, are similar to the laws in force in the port of New York. 8uch being the presumption, the evidence which shows that the adjustment was made in accordance with the usages and laws of New York, shows an adjustment in compliance with the terms of the bond. Upon the pleadings and proofs, therefore, the libelant is entitled to recover the amount stated in the adjustment as made by Jones & Whitlock. But the proof discloses aract fatal to this defense upon another ground. It is plain from the evidence that the understanding of all parties, including these defendants, was that the losses and expenses should be adjusted in New York, the port of whither the -cargo was forwarded, and where, according to the pleadings, the defendants' cargo was received by them. Under this agreement, which was supplementary to the bond, and not contradictory thereof, the presumption must be that the agreement contemplated an adjustment stated ae-cording to the laws in force where the adjustment was to be made. It is not, therefore, open to the defendants to say that an adjustment, as made in accordance with the laws of New York, is not the adjustment -contemplated by the average bond. According to these views, the libelant is entitled to recover the sums stated in the adjustment of Jones & Whitlock to be their proportion of the losses, less their respective advances. This sum cannot be limited because of the compromise effected by other shippers, in which the defendants refused to join. This much they concede, but they say that because the amount claimed in the libel is according to the compromise, and not the full sum stated in the ad-' justment, the libelant's recovery must be limited to the sum claimed. The libelant is not, however, so limited. The libel may be amended 8S respects the amount claimed, and it should be so amended to conform to the facts.
'THE CITY OF BROCETON.
THE CITY OF. BROCKTON. 1 THE
CoRNELL STEAM-BoAT Co. 'IJ. THE CITY OF BROCKTON.
COLOloiY STEAM-BoAT CO. 'IJ. THE
(lJiBtrict Court, E. D. New YOllk. February 5,1889.)
COLLISON-BETWEEN STEAMERS-OVERTAKING VESSEL-PASSING SUCTION.
The steam-tug B. was out of the bay of New York towards the Scotland light-ship. Overtakmg her was the steam-boat B. As the B. came u:f with and began to draw ahead of the B., the latter gave a sudden sheer, an went into the side of the steamer. Both vessels were damaged. and cross-libels were filed. It appearing that the Bo's sheer was caused by the suction from the wheels of the B.. held, that the collision was caused by the failure of the B., as the overtaking vessel, to come up along-side of the H. at a sufficient distance to pass her ID safety.
In Admiralty. Cross-libels for damages by collision. R. D. Benedict, for the.J. C. Hartt. Shipman, Barlow, Larocque & Choate, for the City of Brockton. BENEDICT, J. These actions arose out of a collision which occurred between the steam-boat City of Brockton and the steam-tug J. C. Hartt, in broad daylight, in the open sea, just outside of Sandy Hook, on the 29th day of September, 1887. Each vessel charges the other with fault causing the collision; and in order to make the facts plain 59 witnesses were examined before the court. The testimony of these witnesses, written out by the stenographer, has been since examined with care. On some points it is a mass of contradictions, in others it is harmonious. A careful analysis of it has enabled me to see clearly the proper disposition to be made of the cases. Upon the evidence the following facts are beyond dispute: Both vessels were bound for a yacht-race, in which the yachts were to start from the Scotland light-ship. They were the leading vessels of a large fleet bound upon the same errand. When Sandy Hook was. passed, and the South Channel reached, the Hartt was ahead of the Brockton, both following the channel. The Brockton, being the faster vessel of the two, soon overtook the Hartt, and attempted to pass her on her starboard hand. While passing, and when the bow of the Brockton, then running at 14 or 15 miles an hour, had reached ahead of the bow of the Hartt 100 feet or more, the two vessels came in collision, the bow of the Hart striking first the port paddle-box of the Brockton, and then running under the Brockton's port-guard, where her nigger-head broke in the sponsons of the Brockton, and she was near being capsized, most of her passengers being thrown into the sea. Before the Brockton's
'Reported by Edward G. Benedict, Esq., of the New York bar.