POPB t1. SWISS LLOYD INS. 00.
or that, proceedings on his libel might be stayed, under ad.miralty rule 58 of the United States supreme court.To this cross libel the original libellant filed interaZia the following exception: Second. Because the cross libel in this case does not contain such counter claim arising out of the same cause of 0.0tion for which the original libel was filed, as is contemplated by rule 58 of the supreme court in admiralty. John A. Toomey, (Henry R. Edmunds with him,) for exceptions. H. G· Ward, contra. , BUTLER, D. J. The second exception is well taken. The claim set out in the cross libel does not grow or arise out of the cause of action on which the libelis founded. The case it not, therefore, embraced in the fifty-third admiralty rule prescribed by the supreme court. Cross libel dismissed.
(DiBtrict Oourt, D. OaZijtrrnia. October 13,1880.) L
BJuwORTBINEss-1MPLIED WABRA!ITY-BlUIlAOH-VESSEL UNPROVIDBD WITH GROUND-TACKLlll REASONABLY
Frr POR TBlll ExIGBNoms tt2681, 2683.
Libel on Policy of Insurance. Hall McAZlister, for libellants. Milton Andros, for respondent. HOFFMAN, D. J. Section 2681 of the Civil Code of California is as follows: "In every marine insurance upon a ship, 01' freight or freightage or upon anything which is the subject of
.Rulo 53 is as follows: U Whenever a crOBB libel is filed upon any counter claim arising out of the same causo of action for which the original libel was filed, the respondents in the cross libel shall give security in the usual amount and form to respond in damages, as claimed in said cross libel, unless the court, on cause shown, shall otherwise direct; and all proceedings upon the original libel shall be stayed until such security shall be given."
marine insurance, a warranty is implied that the ship is seaworthy. " Section 2683: "When the insurance is made for a specified length of time, the implied warranty is not complied with tmless the ship be seaworthy at the commencement of every voyage she may undertake during that time." The policy in this case contains the following clause: "Thirteenth. It is hereby further agreed by and between the assured and insurers that the provisions of the Civil Code of California shall be conclusive and binding as regarding the warranty of seaworthiness, liability of insurers in case of prior, subsequent, or simultaneous' insurance, and such other questions as are therein legislated upon and not otherwise provided for in this policy." The provisions of the Code thus became doubly obligatory upon the parties. In the great case of Gibson v. Small, 4 House of Lords Cases, 353, it was finally settled, by the law of England, that on a time policy effected on a vessel then at sea there is no implied condition that the ship should be seaworthy on the day when the policy attached. Whether, in a time policy, there is not an implied warranty of seaworthiness at the commencement of the risk, so far as it is in the owner's power to effect it, and whether, where several voyages are contemplated, the owner is not bound to exercise reasonable care and pains to repair any damages the vessel may have sustained, and to put her in a seaworthy condition before commencing a new voyage, was not decided. Even if it be considered that in such cases there is no technical warranty of seaworthiness, yet, if the ship should come into a port in a damaged condition before or after the commencement of the risk, and the owner or his agents neglect to make reasonable and practicable repairs, and the vessel be lost in consequence, it would seem that policy, Immanity, and due regard for the rights of shippers should forbid a recovery by the owner from the insurers for a loss attributable to the insufficiency of the ship. See opinion of Lord St. Leonards in Gibson v. Small, ubi wpm; opinion of Lord Campbell, contra. Also opinion of Mr. Justice Grier in
POPE V. SWISS LLOYD INS. CO.
Jones v. The Ins. Co. Wall. Jr. 280-1. In this state these questions are, as we have seen, definitely settled by the lex loci contractus. I have made the foregoing observations because it seemed to be supposed at the hearing that the provisions above cited of our Code were a startling and unprecedented innovation upon well settled and universally acknowledged principles-First, as the law of the place where the contract was made and where it was to be executed, (1 Parsons Ius. 132: Cox v. U. S. 6 Pet. 203: 1 Gall. 371:) and,8econdly, because the obligation of that law was expressly recognized and agreed to by the parties to the contract. The schooner Caroline Mills was insured at this port for one year from the fifteenth of April, 1878, "to be engaged as an inter-island trader among the Sandwich Islands." She proceeded from this port to Hilo, Sandwich Islands, where, by direction of her owner, she commenced a voyage from Hilo to Honolulu via the way ports. On the ninth day of the voyage, after stopping and discharging cargo at several way ports, she was driven ashore and totally lost at the port of Honokoa. The defence set up is breach of the implied warranty of seaworthiness, in this: that the vessel was not provided with ground tackle reasonably fit to perform the services, and to meet the ordinary exigencies of the voyages contemplated by the parties. This is the only issue in the case, and upon it the evidence leaves, in my judgment, little room for doubt. 1. It is not denied that at the owner's suggestion the master "re-enforced" his chain cables by attaching to the anchors six-inch hawsers. This arrangement the experts condemn as improper and inadmissible, partly from the impossibility of dividing the strain with any approach to equality between a chain cable and a hempen hawser, owing to the great difference in elasticity of the materials of which they are composed, and partly from the liability of the hawsers to become chafed, or be cut by the chain or by rocks on the bottom-a danger more than ordinarily great in the inter-island navigation of
the Hawaiian islands, owing to the presence, almost invariably, of coral reefs The fact that this mode of strengthening his ground tackle was resorted to, seems to involve the tacit admission that the cables alone were insufficient. The master himself testifies: "I knew the chains.'lwere old and weak, so I attached a hawser to the ancbors to strengthen th.e The mate, whose testimony is in some respects more favorable to the libellants than that of the master, says,: "The reason the hawsers were attached to the anchors was because the chain cables were weak." 9. The loss of the does not appear to have been caused by any sudden, unforeseen, or irresistible violence of wind or sea. No storm prevailed. It is even doubtful whether the trade winds which caused the vessel to part her cables blew with any unusual violence. The master, who had been as sailor and master engaged in the inter-island navigation for 30 years, says: "The wind was as usual for that place. Easterly trade winds, moderately strong, and the usual long, heavy swell; and the surf on the rocks was not high." And he adds: "If the chains had held, the vessel would have been in no danger. The weather was perfectly safe for anchorage off Honokoa. I have anchored there in much worse weather in safety." The mate's account of the cause of the disaster is slightly different. He says: "It was occasioned by the wind and weather, which was heavier than usual. The wind was quite high that day; weather bad, sea rough. I have beenat that place seven times before; never saw it so rough before. · · The wind was high, and a heavy swell was setting directly on shore. The usual wind is more to the east, which sets the swell along the shore at this place." It is apparent from this testimony that though the witnesses differ as to whether the wind blew with any unusual strength, yet they both agree in ignoring the existence of any storm or extraordinary violence of the elements which a wellfound vessel could not have anticipated and successfully encountered.
LLOYD INS. CO.
It appears from the mate's testimony that when the vessel had approached to within &: couple of milea of theahore, the master decided "to stand off shore again and to wait alittle longer to see if the weather would allow of his anchoring in safety." This was at 6 A. H. The mate then went below and did not come on deck again until 11: 30 A. M., at the anchorage, where the disaster occurred. I do not understand that the skill and competency of the master are impeached. His experience as master engaged in the inter-island navigation is of 20 years. He is still in the employ, and appears to retain the confidence, of the owner. When, therefore, after deciding to stand off and wait until the weather should permit him to anchor in safety, he resolved to stand in and bring his vessel to anchor, it must be inferred that the state of the wind and weather were such as in his judgment to justify the attempt. The result showed either that he committed an inexcusable blunder in placing his vessel in a position where ground-tackle of the usual and proper strength would be wholly incapable of holding her, or else that she was unprovided with such tackle; for it is to be noted that the vessel can scarcely be said to have come to anchor at all, for the chains and hawsers on both anchors parted almost instantly when the vessel surged upon them· · I think the proofs in the case leave no reasonable grounds for doubt as to which of the alternatives above stated must be adopted, and that the disaster must be attributed to the weakness and insufficiency of the ground-tackle of the vessel, and not to the stupid temerity of the master in exposing his vessel to a visible and obvious peril which he had no right to suppose her capable of encountering. I have not thought "it material to enter upon the inquiry whether the chains with which the vessel was provided were of sufficient size for a vessel of her tonnage engaged in the coasting trade from this port. The fact that it was thought necessary to re-enforce them by hawsers is, as before remarked, an admission that they were not strong enough for the inter-island navigation on which she was about to enter,
and the result showed that they were inadequate to meet the ordinary incidents of that navigation, or perform the service which the master felt justified in expecting of them. Libel dismissed.
THE Two BROTHERS.
(Diatrzet Oourt, W. D.
John B. Olough, for libellant. J. M. Gregory, for respondent.
HAMMOND, D. J. This is a libel by Jesse M. Tate against the steam-boat Two Brothers, claiming for unpaid wages as pilot and carpenter on said vessel. The claimant, John T. Leaton, sets up in his answer "that at the time of libellant's shipping on said boat as carpenter · · libellant was indebted to him in the sum of 20 days' work, 10 to be performed by libellant, and 10 by another competent man, said work being by contract a balance due respondent for a frame house sold to libellant." And, in reply to the article claimilJg for wages as pilot, he says "that on or about the tenth day of June, 1878, he sold to libellant a small frame cottage residence situated at Fulton, Tennessee, valued at about $125, with privilege to libellant to remove it from the place where located to a lot near by, furnished for the purpose by respondent to libellant; that it was' to be paid for in work, and that when libellant settles for that, as in justice and equity he should do, there will not be due libellant any sum whatever." It is elsewhere said in the answer that "on So
OOUILLARDV. STEAMSHIP VIOTORIA.
fair settlement" there will be due respondent .five dollars from libellant. If this answer, which is excepted to by libellant, so far as it seeks the benefit of the set-off, had alleged an agree. ment that libellant would do thiE! work as pilot or carpenter for respondent on this boat, in payment of what was due by him for the house, the defence would be good one. It would not be, strictly speaking, pleading a common-law contract as a set-off, but setting up a special maritime contract, which, taken as a whole, would show that the libellant had no cause of action and had been paid for his services. But I do not find any allegation of such an agreement. The answer· only flays that the libellant was, at the time he shipped on this boat, indebted to the. respondent for the house; in one plaoe it says he'was indebted in "20 days' work," and in the other, in the balance due on $125, the price of the house. This is 'Clearly pleading the indebtedness for the house as a set-off, and is by all the authorities inadmissible. 2 Pars. Mar. L. 717; 2 Pars. Ship, 433; Willard v. Do'l"l', 3 Masm. 161; Bains v. The James and Catharine, 1 Baldw. 544; Snow v. Carruth, 1 Sprague, 324; Bearse v. Ropes, ld. 331; Niclwls v. Trimlett, ld. 361; Dexter v. Munroe, 2 Sprague, 39; Kennedy v. Dodge, 1 Ben. 311, 315; The Lady Oampbell,2 Hagg. Adm. 14, note; sustain the exceptions.
COUILLARD 1/. STSAMSHIP VICTORIA.
(DiBtrlct Oourt, D. Ma88achfUlett8.