1'. CHINA MUT. INS. CO.
privilege of immediate transportation was extended to. various, named ports; among others, to that of Wilmington. 21 U. S. St.174.. And by an act approved June 16, 1882, the collection districtofWilmington was created,in which Wilmington, on tbe bay ofWilrri'ington, was made the sale port of entry. 22 U. S. St. 105. By tbe legislation referred to not only did congress recognize the fact that there was a port at San Pedro, but by changing the name of tbe port of San Pedro to that of Wilmington and by referring to the bay of San Pedro as the bay of \Vilmingtoll, it gave unniistakable evidence that it regarded the one as identical with the other. Whether or not the port is a good and safe barbor does not affect the question. It is a place for which many vessels are bound, and at which it is usual for them to load and unload; and it is the place for which the Howden was bound, and at which she discharged her cargo. In my opinion the libelant is entitled to half the u8ual rate of pilotage, as provided by section 2436 of the Political Code of California; and aCcordingly a decree will be signed for libelant, with costs.
WHEATON v. CHINA MUT. INS. Co.
(Di8trict Court, S. D. New York.
1. April 3, 1889.)
MARINE INSURANCE-LIABILITY FOR GENERAL AVERAGE.
The schooner F .. loaded with cargoo on a voyage from Baltimore to StonIngton, having stranded, was rescued by salvors, and repaired at Philadelphia, where the l')sses were adjusted. On advice of the owners of the cargo, the insurers. though refusing to accept abandonment, assented to its conveyance to Providence, there being no sale for it at 8.. paying' the extra price for additional carriage, and superintending the sale in the owners' interest. The insurers alleged that the signature to the general average bond by their special agent was unauthorized. Held. that they were liable to the owners of the F., and that it was immaterial under the stipulation, except as to costs. whether the bond was taken. to be that of the insurers or the owners of the cargo.
SAME-BASIS OF CONTRIBUTION.
As the voyage was completed at Providence, the sale of the cargo there, less the additional expenses, was rightly taken as a basis for contributing value.
In Admiralty. . Wing, Shoudy & Putnam, for libelant. Lester W. Clark, for respondent. BROWN, J. The schooner Fessenden, on a voyage from Baltimore to Stonington, Conn., with a cargo of coal, stranded through perils of the seas. She was rescued by salvors, and a general average adjustment thereafter made whereby there was found due from the cargo the net sum of $639.90. The respondents were insurers of the cargo, and though they refused to accept an abandonment tendered by the cargo-owner, they
superintended the management of the cargo for .his interest. The adjustinentwas niade atPpi1adelphia, and the vessel was repaired there. The coal being damaged; and the owner reporting. that there was no market atSt<;>oingtonfor damaged coal, by his advice, in which the underwriters concurred, the cargo was taken to Providence, R. 1., where the voyage was completed, instead of at Stonington. The insurers paid the extra price of five eents per ton for the additional carriage. The average bond was signed in the name of the respondents by a special agent of the company at Philadelphia, without its authority, as the respondents contend, and by a misinterpretation of the written instructions which had been forwarded to him by their general agents at New York. Under the stipulation between the parties it becomes immaterial, except as to the costs of the action, whether the bond is to be taken as the bond of the respondents or the bond of the owner, whom the respondents insured. In either event, whatever sum is found due for general averago must, without dispute, be ultimately paid by the respondents j and the respondents and their agents have throughout taken upon themselves thK care of the cargo-owner's interests. Under these circumstances the valuation of the vessel for the purpose of general average must be taken as provided in the bond; for the instrument is the bond either of the insurers or of the insured; and in either case, uncler the stipulation, that is controlling. I am satisfied that the average adjusters rightly adopted the price obtained for the coal at Providence, less the charges and expenses. The voyage not being abandoned, but being completed by the ship, the priee at·the place of destination is the bads to be taken for the contributing value. By reason of the want of any proper market at Stonington, the original destination, the pOTt of Providence was agreed on as the substituteddestination, and there the voyage was completed, and the cargo delivered to the owner, and sold. The price obtained tbere, less the charges and extra expense of going to that port, properly becomes the basis of the contribution by the cargo. The evidence does not establish any agreement prior to the execution of the bond that the value of the cargo was to be taken at a less sum. The other objections to the mentare not sustained by the evidence. The adjustment is therefore 'upheld. But considering the doubt that exists as to the technical signature of the bond, and the probably contrary understuwling of tbe somewhat ambiguous terms in which the instructions to the special agent were conveyed, I think, under the stipulations of the parties, the judgment should be for the libelants for $639.90, the amount claimed, with interest, but without costs.
AMES 11. CHICAGO, S. F. & C. RY. CO.
et al. v. CHICAGO, S. F. & C. Ry. CO. et al.
(Oircuit Oourt, E. D. Mt88ouri, N. D.
REMOVAL OF CAUSES MECHANICS' LIENS.
SEPARABLE CONTROVERSY- RAILROAD COMPANIES-
Rev. St. Mo. 1879. § 3206, which gives contractors and material-men a lien on a railroad for work and labor done and for materials furnished. provides that in suits by a subcontractor to enforce a lien it shall be optional with him to make or not to make the contractor a party defendant. "Vhen the contractor is made a party. the statnte contemplates a personal judg-ment against him as in ordinary cases, with a conditional clause that, if sufficient property of his is not found. the residue be made out of the property charged. When he is not made a party, there is onl)' a special finding of the amount due, and a judgment that it be made out of the property charged. Held, that when the contractors are made parties there are not two separate causes of action, and hence the controversy between the plaintiff and the railroad company is not a separable one within the meaning of the act of 1887, § 2, cJ. 3. The fact that in order to obtain a lien against the property of the company the plaintiff is required to show that he filed a notice of his lien in the proper connty in the proper time, in addition to showing that he is entitled to a jndgment against the contractor, does not make the controversies separable.
Kor is it important that the contractor has not been served with summons, and has not appeared, as the right of removal mnst be tested solely by the case made by the complaint.
Rev. St. U.S. § 737, authorizing the court to proceed to the trial of the suit between the parties properly before it. when there are several ocfendants, and one or more of them are neither inhabitants of nor found within the district, and do not voluntarily appear, does not relate to the removal of causes.
On Motions to Remand. Miller, Leman & Chase and Berry &; Thompson, for plaintiffs. Gardiner Lathrop and Ben Eli Gutherie, for defendants. THA YER, J. These cases are alike, and present the same question for determination. They were removed to this court frornthe circuit court of Macon county, Mo., under the third clause of the second section of the judiciary act of March 3; 1887, and. in this court motions to remand have been filed. The plaintiffs in the respective cases brought suits in the circuit court of Macon county, 1\10., against the Chicago, Santa Fe & California Railway Company, and. several other foreign corporations, and also against Williams, McRitchie, Nichol & Williams, to enforce a mechanic's or contractor's lien against the property of the railway company. situated in the state of Missouri. Williams, McRitchie, Nichol & Williams were original contractors with the railway company for building certain sections of its road in Missouri. The plaintiffs in these suits were respectively subcontractors with Williams, McRitchie, Nichol & Williams for doing portions of the work undertaken by the latter firm. The plaintiffs in the several suits are residents and citizens of the state of Missouri; all of the defendants, including the railway company, are v.391".no.16-56