75 .FEDERAL REPORTE&
MORSE et al. v. POMROY COAL CO. (District Court, D. Rhode Island. July I, 1896.) No. 1,027.
SHIPPINO-GENERAL AVERAGE BOND-SALVAGE.
When the owners of the cargo of a vessel, which has been stranded and rescued by the services of other vessels, give a bond to the owner of such vessel, covering "losses and expenses incurred or to .be incurred, which may be a charge by way of general average or otherwise, and providIng that claims for tug services or otherwise are subject to approval of an insurance company, or settled by arbitration to which they are a party for us," such owners are liable for their proportion of a sum which the owner of the vessel, upon a settlement approved by the Insurance company, has paid to the owners of the rescuing vessels for their services.
The fact that certain part owners of a vessel, which has been stranded, are also stockholders in a corporation which, by means of tugs and lighters owned and hired by it, renders salvage services to the stranded vessel, does .not preclude such corporation from receiving compensation for Its salvage service. A four-masted schooner, laden with 1,309 tons of coal, was stranded, during a gale, In a dangerous and exposed position. The K. Towing Co., which was called to her assistance, employed two ordinary tugs and several barges, lightered about 350 tons of coal, and pulled on the SChooner, at every high tide, for 4lh days. It then sent a more powerful tug, which, on the seventh day, pulled the schooner off. The weather was fait during all this time. The K. Co. paid $1,100 for assistance, and the services of the large tug,· for the time employed, were worth $1,000 if employed simply In towing. Hdd, that a compensation of $6,000, paid by the owners of the schooner to the K. Co., would not be disturbed at the request of the ownerS of the cargo, when called on to contribute.
MORSE V. POMROY COAL CO.
tug Aquidneck had gone to the schooner's assIstance soon after she was stranded, and during the night bad swung her stern around, so that she lay easier. James T. Morse took charge of getting the schooner off on his arrival, and, on behalf of the towage company, employed the tugs Aquidneck and Reliance and four scows, for an agreed compensation, to assist in getting the schooner off. They worked assiduously, discharging the cargo into the lighters. When lighters were full, they took the coal to Newport, and sold it. They pulled with the tugs every high tide until May 8th, without succeeding In starting the schooner. On May 8th, Charles W. Morse dispatched the large powerful ocean tug B. W. Morse, owned by the towage company, to assist in getting the vessel off. The B. W. Morse arrived at the stranded schooner at about midnight of Ma;r 8th, and, with the Aquidneck, pulled that tide withont moving the schooner. 1'hey continued to discharge cargo, and on the day tide of May 9th, with the Aquidneck pulling the schooner down by a line from her mast head, with the B. W. ;\forse pulling ahead, and the crew of the schooner heaving in on the anchor chain, the3' succeeded in movIng the schooner about once her length. They continued to discharge cargo, and, by both tugs pulling the same way on the high tide of the morning of May 10th, the schooner was pulled off. The B. W. Morse, the same morning, returned to New York. She was gone from New York City 2lh days. About 350 tons of coal were discharged, of whicll about 150 tons were sold in Newport, and the balance put back into the vessel. The vessel was then towed to ProvIdence by the Aquidneck. The libelants took the average bond declared on, and delivered cargo to respondent, the owner thereof. The vessel lay in a dangerous place, and, in case of a storm, was liable to fiU with water, and bilge. The weather was faIr during all the time she was ashore the first night. The master and crew remained i,ll the vessel. The towage company paId in cash, for the service of the tugs, Reliance, Aquidneck, and lighters, and their crews, a little over $1,100. It claimed for the services rendered, inclUding these expenditures, the sum of $8,500. After an unsuccessful effort to arbitrate the matter, the libelants, with the approval of the underwriters on the vessel, compromised with the towage company the sum of $6,000.
The respondent states his defense under the three following propositions:
(1) That this is a personal SUit, for a general average contribution by the shipowners. No sum or proportion of a sum voluntarily paid by the shipowners as a salvage reward upon all interests can be recovered against the cargo if paid without its knowledge and consent. (2) That the relation of the tug B. W. Morse and owner to the schooner Charles E. Balch was such, in eqUity, as to preclude any claim for a salvage reward for services rendered by the former to the latter vessel. (3) That the amount charged in general average to the cargo as salvage was fixed without the knowledge of its representatives, and is excessive and unjust.
On the first point, the libelants cite 1 Phil. Ins. 338, 362; Insurance Co. v. Parker,2 Pick. 1; Heyliger v. Insurance Co., 11 Johns. 85; McAndrews v. Thatcher, 3 Wall. 347; Desty, Shipp. 302, 310; Lawn. Gen. Av. (4th Ed.) 149, 150, 157; Hingston v. Wendt, 1 Q. B. Div. 367; Montgomery v. Tyson, 1 Low. 133, Fed. Cas. No. 484; Akerblom v. Price, 7 Q. B. Div. 129; 3 Kent, Comm. 244; Cutler v. Rae, 7 How. 729; Dupont v. Vance, 19 How. 162; Abb. Shipp. (8th Ed.) 507; Scaife v. Tobin, 3 Barn. & Adol. 523; Briggs v. Association, 13 Q. B. 167; Strong v. Insurance Co., 11 Johns. 323; Kenn. Civ. Salvo 186; 2 Arnould, Ins. 949. The respondent cites Gourl. Gen. Av. 378; Carv. Carr. by Sea, 394, and cases cited; Jones, Salvo 121; The Pyrennee, Brown & L. 189; The Mary Pleasants, Swab. 224; The Raisby, 10 Prob. Div. 114, 116. The question, perhaps, does
75 FEDERAL REPORTER.
not admit of extended discussion. It seems to me that the better opinion is that the cargo liable to contribute to salvage, whether salvage 1;>e called 3! "general average claim" or otherwise. In this case, also, the bond covers losses and expenses, incurred and to be incurred, which "may be acharge b J' way of general average or otherwise," and provides that "claims for tug services or otherwise are subject to approval of the Delaware Insurance Company, or settled by arbitration to which they are a party for us." I hold that the respondent is bound by the settlement and adjustment. On the· second point of defense, I do not find that there is any equity whic1;lshould bar the towage company from any part of the recovery here sought. The owners and the salvors are not the same, and i;he fact that the owners and mernbers of their families are the towage company does nQt seem to me to be at all material. There are two distinct enterpdses in the management and profits of which certain. persons, with others, are interested; and they should be treated as distinct parties. On the third point, the respondent, claiming that a fair sum fol' salvage is to be here assessed, urges that as the vessel and cargo were finally saved by lighterage and towage only, and as the weather was fair, and nO danger incurred by the 8alvol's, a much smaller surn should be fixed than that paid by the owners. It is to be remembered, however, that the vessel was in 3! dangerous place; that, with a change of weather, she might go to pieces; that there was paid $1,100 for assistance; and that the fair value of the time and services of the tug B. W.Morse was upward of $1,000, if she be considered as employed simply in towing. I am not inclined to disturb the allowance. The case may stand for a decree in accordance with these findings, and other questions which may arise being l'eserved for furthel' hearing.
THE ALASKA. MORGAN'S L. &
R. & S. S. CO. v. THE ALASKA.
(District Court, E. D. New York. April 9, 1896.)
SALVAGE COMPENSATION-OCEAN TOWAGE.
$7,500 awarded to a freight steamer worth $2(50,000 (her cargo not being cunsidered, because of the "Harter Act"), for towing Into New York, bel' port of destination, being a distance of 250 miles, a freight steamer, valued, with her cargo and freight, at £31,390, which had been blown off the coast to the edge of the Gulf Stream, and was In peril only because she had exhausted her coal supply, there being difficulty and danger in getting the hawsers aboard because of her tenific rolling, but the towing being accomplished, after the first few hours, In a calm sea, and without loss, except a delay of three days, and the brooking of both hawsers.
This was a libel in rem by Morgan's Louisiana & Texas Railroad & Steamship Company against the steamship Alaska, her cargo, etc., to recover compensation for salvage services.