286
FEDERAL REPORTER.
own lien under a foreign statute, so as to defeat its payment altogether. The equity of the watchman against the master is, of course, also very strong, because the master was personally bound to pay the debt. The Selah, 4: Sawy. 4:0. See, also, The Wexford, ut supra. The exceptions are therefore overruled, the report con· firmed, and the claim of Van Hoesen, as allowed by the commissioner, will be first paid, with costs, and any residue will be paid to the administrator of the master.
COAST " .
Co.; and. (Diat'l'ictOourt, .," "
v; ,PH£ENIX
INs. Co.
E. D. NeuJYork. April 22, , "
1881.) ADJUSTMENT OF
. ' : ,; , " 1: PRACTICE';'" MISJOINDER OF PARTms ....... AVERAGE 'SALVAGE CLAIMS;' ,. ," ,
Misjoinder of parties libellant, when not objected to, will not pre',. ..' ; . 'where the cargo of a stranded steamer was saved by wreckers, and I.by them transpm:ted in different lots and differeIitve'ssels tOll.plll.ce , I of s!tfety, and there stored:' , :; r : r. ;ffi'{d" ,that the serv;ice of the wreokers, was a oontinlJ,ousservice, and ,all the property saved was liable, to contribute towards sl).lvage, "i!.otwithstanding it appeared that part of the service' was perfbrmed ,;" after part of the cargo had been stored·in a place of 'safety. W,here a voyage was broken up by the stranding of the. vessel, and the Cargo was transferred by salvors to a Rort not p;Qrt of ,delivery, and by an agreement there made between the parties interested : in 'the cargo' and J:-&' a., average adjusters, the latterreceived the cargo, sold part that could not be identified, adjusted all claims as to the.salv;age except that of an insurance company, to ,whom part of, the the cargo was abandoned, and made a statement of expenses incurred for general and particular interest, upon which statement all parties made settlement except'the insurance company, who refused: Held, that the service performed by the average adjusters was a service which, in the absence of the agreement with them, would , have been necessarily performed by the ship-owners, and was maritime in its character. ,. That the SUbject-matter of the agrecment with J. & H. being maritime, the contract was maritime, and an action upon the contract could be maintained in the admiralty by them against the insurance company for its proportion. Cuttlff'v. Rae, 7 How. 729, considered overruled by Ina. 00. v. Dun"j ,ve.nt
nmn,
11 Wall, 1.
COAST WRECKING CO. t1·. PBlENIX INS. CO.
281
In Admiralty. Sander & Carter, for libellants. Butler, Stillman & Hubbard, for respondent. BENEDICT, D. J. This case presents sonie novel features. It is an action in personam against the Phrenix Insurance Company, which corporation was the insurer of a part of the cargo of the steamer Vindicator, shipped in Fall River, to be thence to Philadelphia, and there delivered to various consignees .named in bills of lading given upon the shipment of the goods. U is instituted in behalf of two separate W ,C6ml?ahy and ()f Johnson & inte:rests a,re extent antagonistic j a recovellY of .the ;demamdsued 'ror by Johnson & Higgins being fatal 'to 'any re'covery by the'C01LE!t Wrec.kin,8 - ,- '. ., ' _ '\ -, 'I · ,', I" . ., _ . : Company. b.een the ground of !misjoindel'llof ,lihellants. The right of thQ Coast WreckingCompany·to rretiover'SoIilething·in this'Mtion is' ..· jA ';l.'h/il gr9);l,n,d ta.keA hr,the, stated in thedefendantsl :brief.l'" . . L .. i ,i u
"The libel of Johnson & Higgins should be dismissed: costs. VOl', of' se9king, of ,fl'r,JII)..tl2,9W tq,$2,500, maybe given, :.1
W
'1
Under these circumstances there seems to he no good rea· ties from proved,. notwithstanding the anom· -alone features -presented' by The material facts .are as follows: .. "'il ; ·· :: :, '. ' ' '. ' the on the fourth January, 1879, waElstranded: by stress of weather on the Long Island shore, and placed in a position ofeuch,dangel' as to give rise to the apprehension. that both vessel and cargo would prove' .f! total loss. Upon the situatiop of. the vessel becoming known, the C9ast Wrecking Company sent divers, and vessels from New York to the steamer, and commenced efforts to save the vessel and her cargo. It was found impossible to. save the vessel, which broke up some 37 days after the arrival of the Coast Wrecking Company, 'Most of the cargo was, llowever, saved and transported'hyrthe CoastWrccking Company to New York, where it ,arrived in a damaged condition. Among other cargo so saved were 339 bales of print cloths, 8 cases and 4 bags of yarn, 11 cases, 12 bags of hats, which had been insured by the The
Phcenix Insurance Company, and which, by the COnsent of the consignees thereof, were delivered to the, Phcenix Insurance Company in New York. After the stranding had' become known in New York, and before any propertj,had been saved, an average bond was given to Johnson & Higgins, average adjusters, sign,ed' by the Phcenix Insurance Company and other parties interested in the cargo, by virtue of which Johnson & Higgins proceeded to receive the' cargo as it was brought to New York by the Ooast Wrecking Company ; ascertmned the names of the various owners, aup the value of the respective shipments ; agreed with all the parties interested, except thePhcenix Insurance Company, as to the amount of salvage to be paid the Ooast Wrecking Oompany; sold such parts of the cargo' as could not be' identUled; apportioned the expenses among tbe parties interested in' proportion to their respective shares in the cargo; and made an ilxtended statement showing the amount or'the expenses incurred for the benefit of all, and'the proportion payable by eacft, and the amount of special charges due for particular interests. All parties in interest except the Phcenix Insurance Company paid their share of the expenses, as adjusted and stated by Johnson & Higgins. The Phcenix Insurance Company refused to pay, whereupon this action is brought, and the court Is asked in thiS action to ascertain the proper amount of salvage due for the savIng of the cargo insured by the Phcenix Insurance CompanYI and to decree that such salvage be paid by the Phcenix Insurance OOInpany to the Ooast Wrecking Company; and also to decree that Johnson &. Higgins recover of the Phcenix Insurance Company the' proportionate share of the salvage and expenses above men· tioned, &8 adjusted and stated in pursuance of the average bond, namely, the sum of .9,985.62.
In regard to the claim of the Coast Wrecking Company, the contention on the part onhe defendant is: (1) That aIthoughthe serv.ices of the Wrecking Oompany extended over .. period Of 87 or 38 days, beginning on the fourth of January, their services to the cargo ended on the 'twenty-eighth of January, bad been removed from the vessel and when all the cargo thqt Was was in warehouses at Staten Island; that none of the services rendered subsequent to that time were for the benefit of any of the cargo, and that &8 to those 'services the defendants are not Haole for any part performed subsequent to the time when the partiCUlar goods insured by them were stored at Staten (2) That the amount of expense Incurred and labor performed by the Ooast Wrecking Company is overstated; that their property was not put in peril, and their labor performed at no risk of losing proper compensation therefor, and that they have been overpaid by what they have received from the other parties interested in the cargo.
In regard to the first, ground of,contention, I remark that if it be assumed that 'the services performed by the COlj.st Wtecking CompaIlY, duririg the 87 ,or 88 days they
COAST
l!. PB:<ENIX INS. CO
239
employed at the Vindicator, was not a continuous service, erly chargeable, in due proportion, to all the property saved, and that the services' performed at the vessel, after 'the' cargo had been separated from the vessel and stored at Staten Island, cannot be said to have been rendered to the cargo, it is not possible to say, in regard to the services performed in immediate connection with the cargo, that any particular service and no other was rendel'edto the cargo insured bi the defendant. On the contrary, in my opinion, the service performed by the Coast Wrecking Company in relationtothe cargo was a continuous one, in which all the cargo saved interested, and was undertaken for the benefit of all. The burden should, therefore, be borne in due proportion by all the cargo saved,including that insured by the defendants.. In regard to the objectlOn to tne Coast Wrecking Com·· pany's demand of 50 per cent. as a proper salvage compensation, to be paid by the 'property saved by their efforts, that it is excessive, I must say that I deem a salvage of 50 per cent. liberal ; but I cannot say that, in view of allthecircumstances, it is excessive. It has not so appeared· to any othe:F of the parties interested, all except the defendants having agreed to that amount, arid actuaily paid their prdportionate share thereof. , My determination, therefore, in this action,'so far as iti'g' an action by the Coast Wrecking Company torl:l60ver sal" vage, is that 50 per cent of the value of the goods delivered to the Phcenix Insurance Compatly,.aMording to the value fixed by the average statement, is a proper salvage reward; and as a promise on the part of the Phcenix ,Insurance Company' to pay a proper salvage is to be-implied from'the fact that they received the cargo Bubjedt't6 lien therefor, a decree '[or: . that amount will be rendered herein in favor oithe COllSr Wrecking , .
a
Of Johnson & Higgins, :average adjusters!
The remaining branch of the' c'ase pertains to the demand; From mand the amount of the salvage due received'bf the defendants by the jt\st
240
FEDERAL
made in favor of the salvors themselves, and the claim is reduced to one for services rendered and disbursements made in connection with the cargo by Johnson & Higgins in their capacity of average adjusters. The foundation for this claim may be supposed to be the average bond referred to in the libel. I say supposed, because the averments of the libel are sadly wanting in particularity. The cause has been argued by the advocate for the defendants upon the same supposition. To any recovery upon this bond the defendants object-First, that the contract provides only for "such losses and expenses as may constitute a general average," and here there were no such expenses, as the voyage was abandoned, and the community of interest between vessel, freight, and cargo tel'· minated by the stranding. But the contract is ,not, as the advocate supposes, confined to, "such losses and expenses as may constitute a general average." The instrument first recites that losses and expenses have been incurred ill; consequence of the disaster to the Vindicator which may consti· tute a general average, and that other charges thus incurred may apply to and be due from special interests. After this recital comes the coyenant, and that is not to pay "such losses and expenses as may constitute a general average," but in substance that the loss or damage aforesaid -that is to say, the losses and expenses incurred in conseqence of the disaster which shall be made to appear to be due when stated and apportioned in accordance with established usage and the laws of this state in similar cases-shall be paid by the subscribers according to their respective interests. This covenant fairly enough covers the expenses of the services rendered by Johnson & Higgins, and their disbursements made in connection with the cargo, notwithstanding it, be not a case of general average. By this covenant the defendants bound themselves to pay to Johnson & Higgins their proportionate share of any expenses or disbursements chargeable according to established usage and the laws of this state in similar cases. It is not to be doubted, I think, that this covenant is broad
COAST WRECKING· CO. V. PHCENIX INS. CO.
241
enough to cover proper compensation for those services performed by Johnson & Higgins which were incident to the ascertainment and adjustment of the proportionate share of the losses and expenses incurred by reason of the disaster chargeable to such interest. The next ground of objection to a recovery by Johnson & Higgins in this action, upon the average bond in question, is that such a contract cannot give rise to a case of admiralty maritime jurisdiction. No authority has been cited in support of this position, and it is, in my opinion, without foundation in authority or reason. There is no doubt, I suppose, that the services provided for in the average bond are services which, if performed by the ship-owner, would be within the line of duty imposed upon him by his contract of affreightment, for New York was not the port of delivery of this cargo, and the ship-owner continued to be responsible for the preservation, care, and safe custody of the cargo until it was accepted by the consignees, or until that responsibility was shifted from the ship-owner the action of the consignees. In the absence of an agreement on the part of the consignees with Johnson & Higgins, the ship-owner would have been required to perform precisely the service that was performed by Johnson & Higgins under the agreement in question. That service, if performed by the ship-owner, would certainly have been maritime in character, and it is not seen how any change in the character of the service was effected by making it the subject of a written agreement with Johnson & Higgins. The consignees consented that Johnson & Higgins should do what, in the absence of such consent, the ship-owner would have been compelled to do, and for which the ship-owner would have been entitled to ask the defendants to contribute. The object of the agreement was to secure the performance, by Johnson & Higgins, of a maritime service that forms part of every contract of affreightment wherein the agreement is to pay "freight and average accustomed," and the contract is to my mind as clearly maritime as is a charter-party or a bill of lading. v.7,no.2-16
24:9
Jl'EDEiU:LBEPORTER.:
'
In the much·critidsed dase of Cutter v. R(te, 7 How. 729, (see 6 McLean, 574; 1 Parson's Maritime Law, 333,)it was decided by the supreme court of the United States that when cargo subject to contribution in general average is delivered to the con· signee, discharged of the maritime lien for such contribution, the maritime law does not, and the common law does, imply a promise to pay the contribution, and that an action upon a promise implied by the common law, but not by the maritime law, is not a case of admiralty and maritime jurisdiction. But the question here does not relate to a promise resting solely upon a common-law presumption. This is the case of an express contract for the performance of a maritime service. Besides, Cutter v. Rae must be considered to have been over· ruled by the subsequent case of Insurance Co. v. Dunham, 11 Wall. 1, when Cutter v. Rae was vainly relied on to defeat the jurisdiction of the admiralty over' a policy of insurance; for, as suggested by Curtis, J., (Gloucester Insurance Co. v. Young, 2 Curtis, it would be somewhat remarkable if the admiralty'were held to have jurisdiction over an express contract to indemnify one for what he might be obliged to contribute in a general average, and not to have jurisdiction over an express contract to contribute to the loss. My opinion:, therefore, is that Johnson & Higgins can maintain an action in the admiralty to recover for the services menta provided for in the average bond upon which they sue. The only question left to be determined is wnether the services and disbursements charged in the adjustment are within the scope of the agreement, as being in accordance with established usage and the laws of this state in similar cases; and, if sO,what is the value of these services and, the arnountof the disbursements? Upon all these points the case is devoid of any testimony save only that of Mr. Krebtf, one of the firm of Johnson & Higgins, who proves'that the services performed by Johnson & Higgins, :in this case; were such as are usually performed by average adj usters< in similar cases, and that the 8uInscharged therefor in < theit statement are a l',easonable compensation for such services. It has been strennouslycontendea that these charges are <
SIMPSON V.110 STICKS OF HEWN TIMBER.
2418'
exorbitant, but the difficulty is that no testimony has been produced to support such a contention. All the testimony upon the subject is to the effect that the charges are not exorbitant, and I have been unable to see why I should be asked to cut down these charges when the only witness called upon the subject proves them correct. Accordingly, my conclnsion is that the libellants Johnson & Higgins.are entitled to a decree against the Phrenix Insurance Company for the proportionate share of the expenses stated in the' adjustment attaching to the goods received by the Phrenix Insurance Company, as those expenses are apportioned by the adjustment, deducting of course the salvage and the commissions paid for collecting and paying the same. n any other directions are required to conform to this opinion, they may be called to my attention on the settlement of the decree, at which time the amount to be inserted in the decree can,no doubt, be ascertained by agreement of the parties_ withoutthe expenses of a reference.
BIHPSOR, JR.,
v.
ONE HUNDRED UD TEN STICKS OP HEWN: TIMBER.
(Diltrid Court, E. D. New York. April 25, 1881.) 1. FREIGHT-TENnER OP CARGO-PREMATURE ACTION-CoSTIl-JUSTIFICATION OF SURETIEIl-SEARCHING TITLES,
In an action against cargo to recover freight, where the libel· was tiled before all the cargo had been landed, and the evidence showed that there was no ability to pay the freight and demurrage, and in fact no intentio:ll to pay the same on the part of the charterer: Held, that the action was not prematurely brought,and the ship was entitled 16 a decree for the freight, . . The case of 1,265 V!'trifted Pipqs, 14 BIatchf. 274, distinguished. Upon taxation of costs, disQursements made by tha libellant for searching titles of suretiell offered qn a stipulation, expensl1S of real estate brokers called in· to apprl\ise property, and notary's fees in taking depositions of sureties, allowed as proper items of a bill of costs, but not telegrams and postage to secure attendance of attor-
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