374
FEDERAL REPORTER, vol. 44."
signed and her orders to sail were given on the 20th. Her. crew was shipped and: the last man was received on board on:the 23d, and 011 that. day she could have sailed if this suit had not been commenced. After' ffiing . a satisfactory stipulation, she was releaSed, and on March 8th proceededon her voyage, under command of a new master; Capt. Speed being.obliged, on account of this suit, to remain. The time, therefore, of actual detention of the vessel by the use of legal process in this case was from February 23d to March 8, 1888, 14 days. Ido not find that the libelant was prompted by malice in commencing this suit. Its officers and legal advisers may have honestly entertained the belief that sufficient ground for the proceeding existed; but certainly, as the commencement of proceedings was delayed until after the ship was loaded, and the bills of lading were duly signed and delivered, the case was managed so as to force the vessel either to compromise, and pay an unjust claim, or suffer the greatest possible inconvenience and loss by being delayed while resisting the demand; and, as the court finds that the libel'tnt had no cause of action, it· follows that the arrest and detention of the shipw9s .wrongful, and the owner suffered a serious pecuniary loss. But for this he is without remedy, for in proceedings in rem the allowance of process is the act oithe law, so that no damages are allowed for the arrest and detention of the vessel unless there is bad faith or deceit practiced in suing out the writ, or the suit one that may be characterize{) as·a malicious prosecution. Hen. Adm. p. 337; The Adolph, 5 Fed. Rep. 114; Ke:mp v. Brown, 43 Fed. Rep. 391.. TheexpenBes of the litigation have not been to any appreciable amount increased by reason of the cross-libel beyond what was necessary in resisting the libelant's demand. But for the original suit, it is not probable that any expense or trouble woultl have been' caused by the crosslibelant;· therefore, no costs will be awarded against him. Findings in accordance with this opinion may be prepared, and a decree dismissing the libel.· with costs, and also dismissing the cross-libel, will be entered.
EARNMOOR
S. S. Co.
'II.
UNION INs. Co. 28,1890.)
SAME v. CALIFORNIA INS. Co. (Dfstrlct Oourt, S. D. New York.
1.
MARTNB INBURANOIl-ORDlNARY
In an action on a. marine insurance policy containing no eX<1eptipn for lOlllles occasioned by·want Of ordinary care, b.ut covering perils of the sea and "all other perils * ." * tbatha...e or shall come to the hurt ** *of the said ship, ordinary of the s"'ip's master Is no defense. RULES-GENERAL AVERAGE.
S.
Rule 5 of the !York·Antwerp rules, whlob provides that,when a ship is intentl1>n. ally run she is sinking, 11-0 4amage caused "bY,such liltentionally running .on shore shall be made good as general average, has no to an action on' a· marine pOlicy which proVides that·general average 'shall be payable according to Yprk-A,ntwerp rules, where the sblp was run ashore after she was beginnins to alnk, to prevent further loss, and no further damage was oaUHd thereby.· : . . ,..
EARNMOOR S. S., CO. II. UNION INS. CO. 3. SAM£-SEAWORTHINESS-DttUNKEN PILOT.
375
A charge ofunseaworthlnesB by reason of the pilot's intoxiostlon Is not sustained where there is no direct evidence of his condition beyond the fact that he had been drinking, and no evidence that he was not perfectly when the ve1lSelleft port, or, if he was not, that the master knew the fact, and where the pilot, when sober, was one of the 'best. On motion for reargument, new, objections to,an lJ,verage adjustment ,Will not be entertai.ned. Such an adjustment, when made up under the supervision and approval of the insurers' agent, aud received and not objected to by them, is prima facie evidence of the corrllctness of the items it contains.
4. EVIDENCE-MoTION FOR REARGUMENT-AVERAGE ADJUSTMENT-NEW OBJECTIONS.
In Admiralty. To recover under marine insurance. Wing, Shoudy &: Putnam, for, libelants. George 4.. Black, for respondents. BROWN, J!. The above libels were filed to recover losses by sea perils tipona policy" of insurance insuring the steam-ship Earnm9Qr for one y"ear from Mateh8, 1888, [or $13,500,issuedby the respondents, whereby it was provided that the liability of each 'company should he several, and not joint, f()r one-half of any sum due under the policy. ' In the polioyithe hull of the !stearn-ship w8svalued at,$89,725, and her machinery'andboilers at $36,375; total, &126;100. ,On, January 10, 1889,theehip sailed from Philadelphia, bound for 5t.Thomas, with a cargo cifcoal. She left her wharf about 6 P. M., in,chargeofa"pilot. About three 'hours Iater, when near Edgemoor, proceeding ,down the Delaware river" she struck a sunken rock; and passed over it. She began tOi fiU rapidly,and, to avoid sinking in deepwater, was run ashore ,on the Delaware side. The voyage was abandooed,the ,ooal,afterbeingremoved from the ship, was sold,. and the ship removed to,a dry..dock and repaired. In the ,adjustment $43,344;07 was cbargedtq pnrticlliar on ·thevessel,' and $44,589.44 was charged to general average ; 81,75;9.15, against of which $40,510. '70 was charged against the: freight, and $2;319.59 against cargo. No separation was made in. ,the average'adjustment as between the hull and machinery and boilers. The insurers and underwriters were very numerous, of whom the respondents represented about one-ninth in interest. .By adjustment for general and .particular average, the respondents were, each charged with the SUlD of $4,488.69,:to recover which the above libels were filed. The answer, besides certain general denials, averred that the steamer was sailing under a charter which provided that the York-Antwerp rules should govern in the adjustment of general average; that the steamer was unseaworthy at the time of leaving the port of Philadelphia; and that herinjuries were caused by such unseaworthiness, and by the negligence of those in command of her, and not by any peril insured against. The of unseaworthiness was sought to be proved by showing that the ship's compass was defective, and' that the pilot incompetent by reason of intoxication; the charge of negligence, by similar eviderlce; and on'the gro:md'tnat,when the pilot's condition was ascertained, it was theauty of the captain to come to anchor in the river,ratherthan attexppt to:go on according to his own judgment. ..,
376
FEDERAL REPORTER,
vol. 44.
EARNMOOR S. S.
co.
V. UNION INS. CO.
377
Rep. 934. In the case last cited, negligence was held to be a defense, because the policy expressly excepted" losses occasioned by the want of ordinary care and skill in navigation," as well as by barratry. In the present case there was no such exception. The policy was in the usual form, covering the risk of barratry, perils of the sea, and" all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said ship." The policy also contained a clause making the insurers "free from average under three per cenL, unless general, or the ship be stranded, sunk, or burned;" and "general average, payable as per foreign custom, if required, or per York-Antwerp rules, is in accordancewith the contract of affreightment." It also contained a further provision for the payment of "three-quarters of any sum the assured might have to pay to any other vessel, or the goods and effects on board' thereof, in consequence of collision;" i. e., it insured against negligence causing collision. Some English cases of the highest authority are cited by the respondent to the effect that the term "sea peril" should receive no different interpretation in a policy of insurance than in a bill of lading, (The Xantho, L. R. 12 App. Cas. 503; Hamilton v. Pandorf, Id. 518;) and from this it is argued that negligence must be a defense as good and available in an action on a marine policy as in an action upon a contract of carriage. The cases cited, however, expressly negative the conclusion thus sought to be drawn from them. In The Xantho, page 510, Lord HERSCHELL says: "Now I qUIte agree that in the case of a marine policy the causa proxima alone is considered. If that which immediately caused the loss was a peril of the sea, it matters not bow it was induced, even if it were by the negligence of those navigating the vessel. ,It is equally clear that in the case of a bill of lading you may sometimes look behind the immediate cause: and the shipowner is not protected by the exception of perils of the sea in every case in which he would be entitled to recover on bis policy, on the ground tbat there has been a loss by sucb perils." Subsequently, the same view was repeated in Hamilton v. Pandorj, by Lord WATSON, Id. 526; by Lord Id. 528. . 3. York-Antwerp Rules. Rule 5 of the York-Antwerp rules provides that "when a ship is intentionally run on shore because she is sinking, no damage caused to the ship or cargo and freight, or any or either of them. by such intentionally running on shore, shall be made good as general average." The clause in this policy providing that "general average shall be payable as per foreign custom, if required, or per YorkAntwerp rules, if in accordance with the contract of affreightment," was evidently inserted for the benefit of the insured. The vessel, at the time of this loss, was sailing under a charter and under a subcontract of affreightment that adopted the York-Antwerp rules; but in abandoning the voyage the evidence shows that the parties present adopted the most economical course for all, and that all who were reasonably accessible, includirJg the respondents' agent, assented to a general average adjustment. If the point were material, I should think it was competent for the parties to the charter and the ship-owner to waive this provision.
378'
J'El)ERAf., REPORTER,
vol. 44·.
I do not perceive, however, that the elause has any material b()aring upon the case, for the reason that the evidence negatives, the supposition that there was any damage whatever caused to the ship, the cargo, or the freight by running ashore. The clause relied on is very precise in limiting its application to damage caused by "such intentionally running onshore." But this vessel was run ashore to save/her from completely sinking in deep water,'after she was filling and beginning to sink. This was done in order to prevent a far greater loss. Running ashore' was an act of salvage, and a great benefit to all concerned, including the respondents, by preventing a greater loss. 4.'J.'he Adj'U8tment. The evidence indicates that the adjustment of general average resulted in advantage to the respondents. The cargo.contributed more than it received. Any objection to a general average adjustment on the ground that the loss had been brought. about by negligence might help the cargo, but not the ship, nor the respondents as insurers of the ship. The expenses of unloading the cargo and of lightening and floating the ship, even if treated as not within the definition of technical general average, through the lack of the elements of danger and sacrifice, under the special circumstances of this vessel, (The,Alcona" 9 Fed. Rep. 172; Bowring v. Thebaud, 42 Fed. Rep. 794,) concerning which I express no opinion, would, nevertheless, so far as they were necessarY', and were done for the account and benefit of both the cargo and the ship, be apportioned between the two upon the same equitable principles upon which general average itself rests, (L'Arnerique, 35 Fed. Rep. 835, 848.) , There is nothing in the evidence to show that thll separate valuation of'the hull and machinery in this affects the amount charged against the respCindents iIi the adjustment. The vouchers have been put ln, evidence. They exhibited to the agent of the respondents at the time, and were approved by him, such as were disapproved being rejected, and the reasonableness of the various charges was testified to by competent experts. This is sufficient to warrant a recovery of the amount as adjusted, indep£'ndently of the adjustment book, which was received only as a convenient summary of the other matters given in evidence. Upon the whole evidence, I am satisfied that the libelants are entitled to at least the amount specified in the adjustment, namely, $4,488.69, against each of, the respondents, with interest from the time of the demand, with costs; and decrees may be entered therefor.
ON MOTION FOR REARGUMENT.
(December 20, 1890.) BROWN, J. On the main question litigated, namely, the degree of the master's negligence, if any, that led to the stranding, I remain of the opinion previously expressed, that there was no such kind or degree of negligence as discharged the insuranccpolicies. As respects the amount with which the insurers should stand charged,
,THE'RIGHARD S. GARRETT.
379
it does not appear that t46 amounts allowed are greater than the evidence warrants. Mr. Ma'rtin, as the respondents' agent, not only examined and approved the bills which entered into the average adjustment while it was being made, but approved the adjustment when it was made up, and, in answer to the respondents' inquiries, informed them that it was correct. This testimony was explicit upon the trial. The respondents had full knowledge of everything that entered into the adjustment long before, and it does not appear that any objection was made. On the trial the principal bills were presented and marked as exhibits, and a large bundle of the others was produced and presented, for inspection with the adjustment. In connection with Mr. Martin'S evidence I think the adjustment, under such drcumstances, is prirrut facie evidence of the correctness of the items contained in it. The charges for services and commissions were proved, and no evidence against them offered. No question as to the general details was made, or could, under such circumstances, properly be madp-o To the cargo, as entering into general average, objection was made; but that item benefited the respondents. Now, objections to the freight are sought to be raised; but the aggregate amount charged agamst the respondents, as insurers of the vessel, is only their proportion of about $83, gOO, as the whole amonnt chargeable against the vessel; and this amount remains after excluding the balance of about $2,700 in favor of the freight. complained of in the general average allowance. So that, again, no prejudice to the respondent in this respect is shown. As- to the other items referred to in the affidavits presented on this motion on both sides, it does not seem probable that any injustice has been done to the insurers in adopting the figures of the adjustment a8 to the extent of their liabllity. The cargo adjustment gives an advantage to the insurers, if a general average was not warranted. The litigation has been on wholly different questions; and I must decline to enter anew upon the details of the adjustment which were approvud by repondents' agent, acquiesced in by them, anrl not brought forward until after the decision of the cause. Motion for reargument denied.
THE RICHARD MCCARTHY
GARRETT.l
v.
THE RICHARD
GARRETT.
(D£strict Oourt, B. D. New York.
'December II, 1890.)
Where repairs were made in New Jersey on a vessel, one of whose owners resided in New Jersey but the other two in New York, and in the application for license at the custom-house all of her owners were stated to be of New York, ana the material-man had no knOWledge to the contrary, and dealt on the credit of the vessel, heM, that a'suitin rem would lie to recover the price of the repairs. I
LIENS-REPAIRS-REsIDENT OWNER-LwENSE.,....CREDIT TO VESSBL.
Reported by Ed ward G. Benedict, Esq.· of the New York bar.