504
FEDERALREPORTER t vol. 44. PHIPPS et ale 'V.
THlll NICANOR, etc. V.
UNIVE;RSAL MARINE lNs. Co., Limited, (C1IrcuU Court, S. D. New YO'rk.
THE NICANOR, etc.
December 12.1890.)
L
2. 8.
After passing a certain point a,t night, a vessel tacked, and' the master proposed to take a certain course, (north-east,) which if made good, would have carried the , ,vessel clear of obstructions. There was, a dense fog around the vessel, and she stranded at midnight. She had been within the clear-weather range ofa certain light for twobours, but her navigators had not seen it. She had in fact beenma1l;In¥a northerly course, toa change in the wind and to the existence of a eel'tam current. The fact that the currents at that region are variable is well known to navigators, and is set forth in ordinary sailing directions. No soundings were -, 'taken, though they would have been sujJlcient to tell the vessel navigators tllat ahEiwae not tn'aking her proposed course good, and the importance of taking fre, q1lllnt soundingJI in those waters is g-iven in ordinary sailing directions. lfetd, that,thestrandibg arose from negligellce. , ,I BAME'-CONTRIBUTION.
BHIPPING-8'rlUNDING-NEGLIGENOE.
, ,,SUch negligence would defeat any claim for contribution by the vessel owners on account of such stranding. '
'
SUIE-GBNERAL AVERAGE-VOLUNTARY PAYMENT.
Where a marine protest, shoWing the fact that the was caused by neg, ligence, is open to the inspection of underwriters, and there IS no misrepresentation or concealment on the part of the ship's owners or agents, payment by'the underwriters to the ship's agents, on account of a general average adjustment, fa volJlntary, and cannot be recovered back.
In, Admiralty· FINDINGS OF FACT.
(1) On various dates, between the 8th and 24th days of June, 1889. Thomas W. Howard & Co., of Montevideo, shipped on board the bark Nicanor, then lying at Montevideo, and bound for New York, 13,000 dry hides, of various sizes, all in good order and condition, to be carried by the Nicanor to New York, and there to be delivered in like good order and condition, unto Messrs. Baring Bros. & Co., or their assigns, and the bark agreed, in consideration of freight stipulated' to be paid, to transport the hides to New York, and deliver the same as aforesaid, and to that end issued bills of lading at MC'ntevideo to the shippers of the hides, which bills of lading, in due course, were indorsed and delivered for value, to Enos Wilder, a merchant of New York, who became the owner of the hides, and entitled to delivery thereof at New York. (2) On the 6th of July the Nicanor sailed from Montevideo, with the hides on board, bonnd for New York, and about 3 P. M. of September 2d, in fine weather, passed the light-ship at the south end of Five-Fathom bank, off the Delaware capes. The vessel WitS on her starboard tack, sailing in a north-westerly direction, and passed between the two lightships on Five-Fathom bank, leaving the lower one three or four miles on her port side, and she continued sailing in that direction until about 7 P. M., when, being within sight of land, she came about and sailed on her port tack, on courses between east and south, according to the wind, until 9 o'clock. A little before 8 P. M. she made the north-east end
, PHIPPS, tl. ".rRE NICA.NOR.
505
light-ship about ahead. At 9 P. M. the bark went· again on her starboard tack, the light-ship at the north-east end of Five-Fathom bank then being between a quarter and a half of a mile south-east from her. and she maintained this starboard tack until the stranding hereinafter mentioned. At the time she tacked the master of the Nicanor proposed to make a north-east course. which would not carry him within the range of Ludlam Beach light. No pilot had heen spoken, although pilots frequently board vessels to the southward of this place. The course of north-east, which the master proposed to take, was a proper course for sailing vessels bound from the light-ships to New York, and if made would have carried the vessel clear of all obstructions. . The wind was'variable between south-east and east, and gave him a speed of about six knots an hour. There was a heavy haze, growing heavier towards the shore. About 11 P. M. the master saw and recognized Ludlam Beach light aboutilbeam, bearing west, or west bynorth, atari estimated disof eight miles. He kept it in sight with the aid of his glasses for about 15 minutes, and then lost it. The range of the light is III miles, and when the Nicanor had that light bearing westerly distant 8 miles she waR about due north of the li/!:ht-ship at the north-east end of FiveFathom bank. This fact was patent, and should have been recognized by the master of the Nicanor. The Nicanor was at that point, within the ordinary range of Absecon light, though it was not visible, which indicated the existence of a heavy haze or fog along the shore. The vessel continued on her starboard tack after losing Ludlam Beach light. At'12 o'clock midnight the weather got thick around the vessel, with a. heavy mist, and about an hour later she took the ground .on the bar of Great Egg harbor. The point where she grounded was about north of the light-ship on the north-east end of Five-Fathom bank, and was about 6 miles south-westerly from Absecon light. The fog was still dense, 80 continued throughout the night. Absecon light has a range of 19 miles, and was not seen. by the navigators of the Nicanor at any time prior to the stranding, though she had been within its clear-weather range since about 10 o'clock, and no light had been seen since Ludlam Beach light. (3) The yards of the Nieanor were not braced sharp, but so that she carried the wind about abeam. From the lime of leaving north-east light-ship the wind had been variable between east and south-east, and at the time and place of the stranding was about east by south. The vessel, from the time of leaving north-east end light-ship, had been in fact making a north course instead of a north-east course, as expected, and this had been due to the fact that the wind hauled somewhat to the northward, and to the existence of a current which set her somewhat on shore. The currents at that section of the New Jersey coast are vari. able, being governed by the winds, and the current which was running was the result of easterly winds previously prevailing. The fact that the currents are variable is a fact well known to navigators,and is'set forth in the ordinary..S&iling directions for the coast., N080undings were
i06
J'BD1!!RAL BKPOBDB.
vol 44.
taken ,by the Nicanor, though soundings. would have been'efficienttoteU her naVigators that she 'was not making good her expected north-east cours6j'butwas rapidly nearing the shore, and the importance of soundingnegularlyalld frequently when off' this coast in thick weather is set forth in the ordinary sailing directions. (4) When the Nicanor failed on her starboard tack to make good a course sUfficiently .eastofnorth to clear the coast she should ha:ve goue On port tack, or, if that was not a serviceable one, she should have au· chored" (5) the Nicanor endeavored, without success, to work into deep water. In the momingsalvors came to her assistance, aud a contract was made with them by the master, as follows: ' , "C" " "SOMERS POINT. Sept. 2nd, 1889. "I be,reb,y agreeto employ the Atlantic and Gulf Wrecking Co. t<;l assist my vessel. D()\vindistress. and to leavethemattl'r of compensation for her serv· ices to be,deci'ded by the New York Underwriters. binding myself and owners to abide by said award. .:.' [S'd}";"J. F. WOLFE, Mll.stet Bkt: Nicanor. , . ;,"JOHN TOWNSEND. for Atlantic and Gulf Wrecking Co.-
'The master did not communicate ,with the cargo interests, or in any way attelllpttobind them .by this (6) On Septetnber 8, 188.9, the, Nicanorwa!! floated. :She thenre:sumeniher;voyage, and arrived'at.New York on the 4th. A representa. tivea! wreckers, who had remained on board, left the· vessel on .· her arrival.·, I ,,. '(7) ,On:September 5th the vessel W8./l entered·at the custom-house, pn tbe&th,& delivery permit was obtained l and on· the same day the die. charge QLthe'Qtl.rgo began. NO'C81'go had been damaged. No lien ,by thesa}<vors,was)llssertedagaiust the cargo, and it was delivered to the ra-lpectiye,consignees, and taken away asfast as unladen. '.. '. / (8)OncSeptetuber 6th a hearing W;t\S had before the New YprkBoard of Underwriteltl-to detetmillethe Wllouut salvage, and the follo",ing award was thereupon made: NEW YORK, September 6th, 188Y·.. F. Wolfe, master of the NicaIlOY;,alldJohn 'fownsend. tor the A:t1antic and Gulf WreckingCo.· the question 'of the luboimts to be' Allowed the said sal vors for services the Br. BArk Nicanor.strallded on Grea't September ;i. ,2, and referrect.tothis boarq,·tlor; decisiQnan4 on 6th Septemher. ,at which due, it · of fifte,eathousand bf\ to the Xtmntic; a.nd in tull,foratl servicejS and .as" the wl'ifle ashore on Great Egg'Hathor.Wl:r.1 . '; [SIg'Uecl' InuupUcateJ]': l' ·.. Attest:;· :' (:.1 . ',!; i - . . ":,)'1'",';. " , I
';:'
.:..
. . : . ,'"
(10) Meanwhile an average bond, bearing date September 4th, had been prepared, and upon the making of the award, the signatures oCthe several.consiguees, or their underwriters, were obtained thereto. No signatures were affixed till the 6th,snd all the signatures were not obtained until several days afterwards. The average bond provided that the different consignees, or their underwriters, should pay to "J. F. ney & Co., owners, or agents of the owners, of the said vessel," whatever should be shown to be a charge upon said cargo, to be stated by Currey & Whitney, adjusters, according to law. (11) After the shipment of the hides and wool, and before the stranding of the Nieanor, the libelant, which is a marine insurance company, organized and existing under the laws of Great Britian, made marine insurance in favor of Enos Wilder upon one·half interest of the said hides shipped by Thomas W. Howard & Co. (12) On September 11th Mr. James Lawson, on behalf of two of the libelants, (the British & Foreign Insurance Company, and the Universal Marine Insurance Company,) apparently unawartl that the salvage award had been paid by the ship's agents, called on the average adjusters, and offered to pay part of the award. On being told of the payment of the award, he requested a pro forma statement to be made up to show the proportion due from said. two companies, and thereafter addressed the following letter to the vessel's agent: "No.4 HANOVER STREET, NEW YORK, September 17th, 1889· .. Messrs. J. F. Whitney &Co., SIRs: Nicanor. On the 11th inst. I called upon the adjusters, Messrs. Currey & Whitney, for the purpose of otTering on behalf of the · Universal Marine' and the · British & Foreign' to send checks for our respective proportions of the salvage award. I was much surprised to learn that you had· already settled with the salvors, and paid for our account the amount we owed- We did not authorize you to pay our share of the sal vage, which we were ready, at any time, to pay oUl'Sl'l ves. I therdore beg to notify you that I am still ready to give my clJeck for my
508
J'EDERAL REPORTER, vol. 44.
share ottheaward, and that I will refuse to recognize any claim for commissions for Ildvancing or collecting the same. "Yours, very truly. JAMES LAWSON, Atty." was inclosed in the above: "NEW YORK, Sept. 14, 1889. "Me.Y81'8.J. D. Whitney & 00., New York-DEAR SIRS: We confirm our verbal tender made by Mr. I"awson, Wednesday, on behalf of the Universal and British & Foreign. to ,advance our share of the salvage contribution in case ofthe Nicanor, and hereby give notice that we shall reruse to recognize any claim for commission for advancing. Yours, truly, "BRITISH AND FOREIGN MARINE INS. Co., (LD.) New York Branch. "L. A. WRIGHT, Underwriter. n The
(13) To which Messrs. Whitney & Co. replied: "NWANOR. "NEW YORK, Sept. 18th, 1889. " Jas. Esq., Atty. Universal lruJ. 00.. 4 Hanover St., OityDEAR SIR:, YOU!' favor of 17th. inclosing IeHer of British and Foreign Mar. Ins. Co. of 14th, received, and we note your remarks in regard to Nicanor. Having already advanced to the master the sum required by him to pay the salvage award,we fail to understand why he should surrender the commissions properly due us for sGdoing.At the time the award was made there was no intimation from any, underwriter concerned of a desire to provide funds. Our adjusters have prepar{ld a pro for11J,a statement. showing $2.700 as your share of, the salvage, award, (approximate.) If ,yOlI elect to pay this amount. it will stop the of intel'l'st from date of payment; but in accppting it we do so with the expressnnderstanding thatit is without prejudiee to any of our rights in the case. J. F. WmTNEY & Co." "Yl's., &c.,
, (14) Thereupon theJibelaiit paid by check inclosed in the following "No.4 HANOVER STREET, NEW YORK, Sept(lmber20th, 1889. "¥essfs. J. D.lfhitneycft OO.,Ncw Y01'k--,.DEAR SIRS: Nicanor. Your favor of 18th inst. iSft>ceived. together with a pro f01'ma statementfl'om your adjusters. Finclose herewith my check for $2,500, being an approximate proportion o.fmy share of the salvage award. Mr. Wilder informs rne that bides are not WQ1'th more than$2.75 in New York; but. as your ad. justers valued them for contribution at each, I have made my check for; the round sum abOVe mentioned, instead of the amount stated by them. I wlU to recogniie any claim on your part for cOlllniissions for ad vancing or collecting $2.500. You were not autborized to pay the amount lowed on account of salvage award. "Yom's, very truly. JAMES LAWSON. Atty."
(15) OJ! or about October 4th the general average- adjustment, caned "Statement of Salvage Charges," was made up. Besides the salvage award there was included $1,261.24 for ropes and sheaves of the vessel, farber disbursements in procuring the salvors, for protest, survey, and fees,. and agents' commissions for aClvancing and collecting, andiriterest. - :'The contribution thereby required from th,e interest in:
$2,514.@.
PHIPPS
'D.
THE NICANOR.
509
(16) The marine protest was at all times prior to the payment open to the inspection of the libelants. It showed that the vessel stranded at 1 :30 P. M., on Great Egg Harbor bar; that at 9 P. M. she had tacked to the north.east, the wind hauling to the south-east, the north-east lightship at Five-Fathom bank bearing south-east about half a mile distant; that at 11 P. M. she made the light on Ludlam beach, bearing west about eight miles distant; and that at midnight the weather was becoming thick, and a heavy mist overspread the sea. So far as the protest indicated no soundings were taken at any time while on this north-east tack. (17) There was no fraud or misrepresentation or concealment on the part of the ship's master, or of her agents or owners. The payment referred to the eleventh finding was made to the ship's agents, (who had themselves settled with and paid the salvors,) voluntarily, and without duress or detention of goods, and with means of knowledge of the facts which, it is now insisted, indicate the negligence on the part of the ship was the cause of the stranding. CONCLUSIONS OF LAW. (1) The stranding arose from negligence especially from the failure to take regular and frequent soundings. (2) That the stranding arose from negligence would constitute a full defense to any claim for contribution founded on the stranding. (3) The payment by the libelants on account of the adjustment was voluntarJ', and cannot be recovered back. (4) The libel is dismissed, with costs in both courts. Entler, Stillman &; Hnbbard, for libelants and appellants. Wing, Shoudy &: Putnam, for claimants and appellees. LACOMBE,.Circuit Judge. To all arguments based upon the of salvage by cargo owners, in order to obtain free delivery of their goods, the sl;\fficient, answer is that libelants made no such payments. The salvors asserted no lien upon the goods; thei: claim was settled by the ship, whose agents, at the captain's request, paid the salvage award and cleared the goods from any lien for such service. The captain made no .attempt to .. the cargo or the owners by his agreement with the salvors. Instantly, upon the fixing of the amount due to them, he procured the funds upon the ship's responsibility from its agents and paid the salvors. So far as the ship was concerned, ber whole contract of carriage was fully performed. She delivered the goods to consignees in good order,and free from any lien or incumbrance.. It is true that she herself asserted Ii claim for the proportionate amount of the salvage she had paid, and of certain other expenses connected. with the stranding; but there is nothing in the evidence to show that she sought to compel payment of this claim by any duress of goods. To any action upon such claim; ·whether gacked by a general average bond or not, negligence causing the stranding would be a full defense. Nay, mote, the ship could not establish such claim upon proof of the" bare fact that she
n:!lERAL
REPORTER,
vol. 44.
:stmnded;J'she'''tJuld llave, to sho'w: the inference' that she stranded' without iili:UIt.' 'There 'is il,othingto sMwany concealrnerit or 'the ship,'alld if the libelantS did' n'ot bave full knowledge:ofallthe facts ,attending thestranding,they had in the marine protest, and in the excerpt therefrom prefixed to the average bond, .sufficient to inform them that the ship went ashore while making her way up the Jersey coast on an inshore tack (when his rec6:rded observations should have shown the ,master that she 'was making in' towards shore) in tMckweather, and :without using the lead. The libelants are chargl:'able not only with what they knew, but with what their available meansofkriowledge would have dis.closed to them. Having paid the ship's clairnfor contribution, ,voluntarily, with these facts before them, they cannOt now insist that the ship shall repay it to them, UPOD the theory that when they paid it they were mistaken in supposing that the ship, whose stranding, 1I0t being in itself a sea peril, was prima facie negligent, colild show that she used due diligence and proper skill to avoid the accident, and that it was inevitable.
THE TITAN.! THE FRANCIS.
SANBERN ". THE TITAN AND CAR-FLOAT
No.6.
(Dl.BtrI.ct
court, So D. New York. December 18,18OO.)
CoLLISJON-S-rBAll(oVBSSBLS 'MBBTING-TJDB"RrP-SwINGING-'-EAST RtVBB NAVIGATION -SAFE l{A.RGIN-WBONG SI,DE' OF RrVEB-PROXllIUTB CA.OBB.
The tug T., moving slowly with two car-floats along-side, ,came around tbe Battery into the East rive,., near the New York shore. The steam-boat F. came down the East river with the ebb-tide. ata speed of about 12 knots, and shaped her course to pass the T. starboard to starboard, each /;:ivinga signal of two whistles. On the ebb, there is a tide-rip oft the Battery, which tends to swing to starboard tbe bead of a vessel entering the East ,river near the New York shore. This was known to the pilots of both vessels. 'l"he T. swung about two points to the star. board on itriKing the tide-rip, and coJlidedwith the F. The river was clear of vessels at the time. Held, that the F. was bound to have so shaped her course as to leave a aafemargin for the known effe,cts of the tide; that the course Of the T. along the New York'shore, contrary to statute, was not the proximate cause of the collision, and was immaterial, the F. bavlng had ample time and space to keep out of the way; ,and that the F. alone waaliable for the collision.
In Admiralty. Suit to recover damages caused by collision. Sidney Chubb, for libelant. Goodrich, Deady & Goodrkh, for respondent. I ,.
BROWN, J.The array of witnesses against the libp1flnt on everY,important point is too great to warrant a decree in his favor. The weight
lReported by EdwardG. Benedict, Esq., of the New York bar.