498
I'BDERAL
REPORTEB,voL 44.
THE ALASKA.
1: 2.
(DlBtIict OOU1't, ]G; D. Michigan. VESSEL. ,
September 29,1890.)
The libelant in a collision suit is entitled to recover such damages as naturally f()U()w .t'fQffi of the respondent,and to have his vessel restored as nearlyae1fOsslble to her condition before the collision. SAME-BEACHING VESSEL-ExPENSE Oil' REMOVAL.
'.
8;
" ipjured vessel was blIached after the collision, and a J?argain we.s made for lit to take her oIY and carry her to' a port of safety, and the sum ag:reed ·upbn·.{vll.s actually paid, held·that, if there was no fraud arid no want of reasonable making the the amount, paid was a Just charge' against the vessel in faUlt, althougn it was shown that the vessel mIght, in fact, hav.e been gotten off for a much less sum, Held, a!8o, that the owner of the injured vessel was entitled to his expenses'for.llQming to wreck.
!4.. !,
. The'prl'ctice {salso to allow the cost of the survey as dne of the incidental ex. pense8'Ohhe'collision.· ' '11he.cost ofrepai,rs wall alfJo allowed, alth()ugh it a REPAIRS...,.INTER1!lST· · , .' ...· . · ·
S!AMB:""G0ST
0'
SpRVEY.·.
,"
.,
.
OJ' REPAIRS.
.larg!lly the . ' ; '..·
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lnctlrre.d for salvage and repaIrs IS a of dIscretion. and tn Vfew 8f'tne'fQlltthat the vessel wa.s made more valuable by tlie repairs than she ,""'1.· w.as. befOl'e' tlh8'.OOtlllliOD.".a.nd cf 8o. med.O.Il.b.t. a.ste). W e.th. al' the.. entire bm. OU./f'Jht.:to . \ » .. . .. . . . ..... . .. agq.inlit. thll it li-e1ft$atinterest,lIhou14be b.
".,
6. BAME-ExPJU'[SE OJ' CONVOY!
'."·"'..'.ll'ti.e.elliPe.Dses of. ,a. c.on.#01. ,.:to<. lin i.. l1JUl'.ed V8Sllelllhould·'n.otbe ·alloWed'UIWl.··.S8 the · . .. . .· .. . ... · " 'lDllQ8Sl>lf.; " , " '.," · ... ,,f' ',,' -. ",'
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:, report; .' ".. :""Thls'wasa'hbel for and the Alaska, whichoQcurredon 1886, ata point abqut, she miles below Amherstburg, and' near: the mouth of the Detroit riyer. ;Tne .case,was suffered togo by default at'the h,earing', a dElcree was entered for the libel,ant, with the usual order' of ref,erence tOR bomrilissiorier to assess and report .the: damages; ii. : After thec61lision the Oregon to Amherstburg in about 55 minutes, arid from there was takeri across the river, arid beached on Bois Blanc island. On Mandai she was raised and towed to Detroit; On she w8.splacedin the Detroit dry-dock, and temporarily re1>airetl., and on Wednesday she was started for Buffalo: and, after being 'held at Arnhin-stburg for 12 hours, by reason of an ,accident to her con'voy, arri:vedatBuffalo on tHe morning ofDecerriberBd, and was moored afMills'&(Jo.'li! dry-dock; . On the 8th of Decenibet; and while lying in 'the river at' Buffalo, she was inspected and'surveyed by three persons, oJ;le of whoql, ¥r. Humble, was chosen by the (?wnersianother,Mr; underwriters, wd8Gilcihrist,one 'of the bwnetS.HTnls survey was made about two months"bef9re she placed in dry-dock for repairs. In the mean time, done upoil her by her owners. ;,'.," " .II,!], ' Prior to her leaving Detroit the owners of the Alaska employed three persons to make a survey of the damages to the Oregon while she was in dry-dock here· ·
i.. .
ALASKA.
F. H.CamJidd, for libelants· .8.. S. Babtx)(;k, fQr claimants. BROWN, J., {after stating the facts as above.) Upon filing the sionl'lr's report elaimant excepted to the allowance of the items: 1. To the bill of A. N. Moffat for raising the Oregon aHer the dent and taking her to Detroit, $750. The testimony shows that a gain was made with Moffat for a lump sum, and that the bill was a<{tually paid. This makes a prima facie case, and renders it incumbent upon the claimant to show either that the money was not paid, which is not . tempted, or that there was fraud in the transaction, or that the bargain was not made in the exercise of reasonablejudgl1Jent. It appears that late upon Saturday eveningGilchrist, one of the owners, came from milion, Ohio, to Detroit, bringing Schuck, one of. the other owners, with him. Maytham, another owner, arrived here from.Buffalo morning, the 28th of November, and brought Humble, the foreman of the dry-dock company in Buffalo, at which the work was done upon her, with him. Gilchrist swears. that the next day after the viz., SundaYJIlorning-he saw the Oregon sunk at Bois Blanc islaml, acro88 the rive]' from Malden. Her nose was drawn upon the bank, but her stern was sunk in deep water. He looked her over, and letthe jQP ofraising !leT Ito Moffat, at $750; but, before making such contr!lct,. he other Canadian tug-owners. Moffat toolt consulted Mr·. his tug and Pllmp and wrecking outfit with him, and wentilllmediately to work pumping her out. They continued pumping nntil about 12 or 1 o'clock at ,night, when they stopped, because Moffat tho 11gbt one pump would not dojt,al1d the Oregon was allowed to refill. Another pump was brougbtdown, but it did not arrive at the scene of operations until was. afloat·. It seems they went to work again in after the morning, and.: gQtthe vt'ssel off'about noon, with the pump they had used the· day hefore. :Mr. Ashley, one oT the owners of .the swears that he could have got a tug and pump for $150 a day; and, after he learned of thea,greement with Moffat, he told Gilchrist he would not ratify it. '.['here)s nQdoubt that this contract resulted very favorably to Moffat, and that the amount he received was a large. compensation for the servrendered; but, when a vessel is in a situation in which the ice Alaska fOlll1dberself, prompt action is necessary, and llI11(;h must be left good judgment of those in. charge of h\:ir. They to the would haveb;eell at liberty to make a contract by the day, which would probably resulted more favorably to them, or take their chances unqera,pontract. for a lump sum. There is no evidence that .Mr. Ashley actually offered to do the job himself, although, after the cont.ractwas rnade , he told Mr. Gilchr;ist that hecQuldhavefoul}dtugsand pumps at $150' a ,day;, this offer had been Dll\d,e the accideQt,8§, v;esselthen was, it. \Vas tug "'Qu11 1?een ell{glgt>..<i· geWng her off, or wfis Cpr, 1£ a bllrgaill had been, p,iem ..
in
500
FEDERAL Rl!:pORTER,
vol. 44.
compensation, it would have been for the interestll'o('tbe tug,to have prolonged the job as much as possible; if made for a lump sum, to 'do it in the shortest possible time. Weare bound to consider, in this connection, that it was as much for the interests of the owners of the Oregon as for the owners of the Alaska that the job should be done as cheaply and expeditiously as possible. The underwriters were also interested in the same direction, and no objection was ever made by them to the ment of this bill. The ordinary rule is that, where a vessel stands in need of salvage services, a contract made by a master for a lump sum will be upheld, unless a clear advantage was taken of his necessities, and the contract was an oppressive one under the circumstances as they existed at the time it was made. I know of no reason why the same rule should not apply in a case of this kind. I see no reason to doubt the good faith of Gilchrist in making this bargainjand, while it undoubt,edly resulted unfortunately for him, and incidentally 'for the owners of the Alaska,' it might have resulted equally unfortunately for Moffat, if there had been a sudden change in the weather,ora failure of the pumps to do their work' as well as expected, or more serious injuries to, the Alaska than there appeared to be at the time. Upon the whole, lam unable to say that thete wasany want of good judgment in making this bargain. The exception mlist, therefore, be overruled. 2. To Maytham's bill for services and expenses, in coming from Buffalo to Detroitto look after his property, $25. His original bill was for $50. Under the circumstances, I think he should be allowed his ex'penses. but as he was one of the owners, I see no reason for his being allowed a compensation for his services. His expenses for five days,ineluding his fare to and from Detroit, could hardly have been less than $25, .and, under the circumstances. I see no reason for disturbing the lowance of the commissioner. In Hobson v.Lord, 92 U. 8;398, 412; it is said that when the owner of a ship sends an agent to a foreign port, into which the ship has put in distress, to advise and assist the master for the benefit of the ship and cargo, the usage of the port of New York is that the amount paid for the services of such agent, and his board and traveling and incidental expenses, are allowed in general average. See, also, The Cayug(t, 2 Ben. 125; The Sunnyside, Brown, Adm. 415. This exception is also overruled. 3. To the allowance of Humble and Parsons' bill for making survey, $50. Surveys of this kind are almost always made when a vessel has received serious damage, and are often quite necessary in determining whether the vessel should be repaired or not, and 'are often important in reference to questions of insurance. The practice has been to allow them' and I see no objection to treating this as one of the incidental expenses of the collision. See Sawyer v.. Oakman, 7 Blatchf. 290, 306. :4. To the allowance of Mills & Co. 's bill for repairs, $9,674.30. While the Oregon was lying in in dry-dock at Detroit, Mr. Ashley, one of the owners of the Alaska, employed three meri to make a survey of the damage and' pl'obable cost of repairing the vessel, and pn'ttingher hi as good... condition as before the collision. Capt. Jones; a. !lh'ip-builder
501
of this city, says the repairs could be done for 83,524, but he says there were different methods and different opinions. On being shown Mills & Oo.'s bill, the total amount of which was $10,624.49, and asked to pick out the items which were not necessary, he says: "It is very difficult to do so. You can fix a vessel in a good many different ways." He testifies that Mills & Co. are men of good reputation; that the men who made the survey in Buffalo are competent and fair. George Irving, also a ship-builder, went through the vessel alone, and estimated the costs of repairs at $3,315, and says that the repairs that he intended to make would have made the vessel stronger. John Doran, the other surveyor, testifies that he thinks the repairs put upon the steamer would have made her a stronger boat than she was before. His estimate of the cost of 8nch repairs was $3,740. He says his estimate included steel arches to make her as good as she was before, to stiffen her, and make her strong; that competent men might differ as to how the Oregon ought to be repaired jand the iron plate8 under the keelsons were necessary to' remedy the injury from hogging. UpOll the other hand, a, survey of the vessel was, held at Buffalo by two men, one of whom represented the owners, and the other an insurance compa!!y, a:nd, in their opinion, the cost of making such repairs would be $8,240. Without intending, in any way, to impeach the good faith of those who examined the Oregon in Detroit, I am unable to shut my eyes to the fact that persons employed for the purposeoi' making estimates of damages, or of value, are largely, though perhaps unconsciously, influenced by the wishes of those who employ them, and I feel quite safe in saying that I do not think that anyone of these parties would have entered into a contract to make these repairs for the sums named by them. There was a strike among the ship carpenters, at the time, in Detroit, and no work was being done here, and I have no doubt their estimates of damage were controlled, to a certain extent,by the sympathy they naturally felt towards the owners of the Alaska. In addition to that, it is a matter of common experience that the estimates for repairing old houses and old vessels are usually much less than the actual .cost of such repairs when made. There is no reason t{) suppose that the men who made the survey in Buffalo are not fully as competent as those who estimated the damage here, and the fact that their eotimate was not very largely exceeded by the actual cost of the repairs, as found by the commissioner, indicates to my mind that it was far the more trustworthy {)f the two. While I have no doubt that these repairs did make the vessel a better and stronger one than she was before, it is well settled that this cannot be taken advantage of by those who are responsible for the inj ury. The Santee, 6 Blatchf. 1; The Baltimore, 8 Wall. 386; The Catharine, 17 How. 170; The Fannie Tuthill, 17 Fed. Rep. 89. The testimony on behalf of the libelants, as to repairs, includes that of Maytham, one of the owners who ordered the repairs and paid for them; of John Humble, superintendent of Mills & Co.'s yard, who personally supervised the repairs, the bill, and swear.s that. the, prices charged are the regular rates; of Thomas Walsh, a clerk who kept the time and account
·
J'EDERAIt; J;lE¥QRTE:a.
rela1!i:ng:tj); ami who sWears Ithathe opened ,two acp9unts,with tlieVessBlfur,the different' kinds of work lis though there were sels;:one:accou11t for the injury ,by. the ,collision, and the IQrthe new work, and that the time spent on each was' kept distinct 'from the otherjof Albe.rt Brinkman, foreman, who swears that the l,'epairs and new wotkweredone separately, and separate accounts were kept with each job; that he kept track of every piace of material that went. into the boat, and rendered his account to Walsh, the clerk; of Hamilton J. Mills,w:bo,8wears to the correctness of the bill, and that it has been paid; of Townsend 'Davis, agent of the insurance companies, who ,testifies that tbei.nsurers paid the loss on the basis of the adjustment including the bills' lor' repairsj and, in fact, of almost everyone who would be presumed to have knowledge of the correctness of this bill. · /.Fhere is really nothing to impeach their testimony, and none of the items of the bill are SlJecificallypointed out. as unnecessary to put the in as .good. condition as she was before. While there may be a. suspicion that advantnge was taken of this disaster to charge upon the claimants a purtion ofthebetterments, they have not succeeded in establishing,,,byany preponderance of ltmirnony, that these repairs were not mnutJ necesll8ry by the.collision. u.pon the whole, I seen<? ground for. dislurbingthe report this item, and the tionistherefore. overruled:.' ,,5. T.o the allo.wance of intel'est -UPOD the cost of the repairs, $1,817.02. Theusua1; prActice has hee!1 to allow interest. upon the cost of repairs, but. ,after all, the aUowanc.e of interest inaetionsof tort is a matter not of.rightj;but of· disllmtiOll. In.comm{)n-Iaw cases it is; said that, in actions.ful"unliquiclated, damages, ,interest, is not recoverable eo nomine, but. that ,th.ejury, iotheir .discretion. may'·add interest; .that,as the law does 'Qotinquiteinto the particulars of the verdict for dllmages, in some convenient measure forthejury. In the same way ..interest may betaken into account by the jury in assessing damages illtrespnss ·aIld trover, but in the case of The Independence. (Hemmrn'lJ)(/,yv.FIi8he1',) 20 where the quesfion arose upantheal10wnnooJofinterest upona'decree in admiralty , which had been affirmed ' by a divided court, itw8s.said that'''In ClIsl'sof coll:sion and salvage ,*, * * it is impossible to fix thpBum that Qughl to absolute certaJnty by any rule of ('aleulation, H .will atlmil'alty('ase that this court will think that tlIi,cfalilagl'S and allowed iI!' cireuit conrt are too high. and yet the' bpiniou may appl:bxhuate sO ne:itly t(, that of the court below that this court not feel JUtltitl,.d in rtiversing its jndgment. * *. * No 1'0:16, 'tllt're(1)re. 'fhinganyo 'C'et·tain rate. of interest upon de('I'ees iuadmiralty. is l'oti!dlJe adopted with'juslice to the partit's. And II discre#ppary pO\Yi!J,':is by the c,,?;urt ..t1.Il:'rdalllaK!'sb,y, way; of. ,!n cases :w.,here. 'in ion the IS JustlyentJtle.d to tib'nlLl damag'ils'.c' But 'thi'SI\UOwancedfintere$tls' not.an'incidentto trle anee alllxedto'it or 'b,f)a 'i'me of/court.. If given bithiscourt. it must be in the exercise ofita;diseretiuilary pOWer. and pro tantllis ,anewjudg·' . ",., ., .
'0'
THE ALA.SIU..
This case was affirmed in The'Ann Caroline, 2 Wall. 538, and in Scotland, (Dyer v. NavigatWn.Co.,}U8U. K 507 ,6 Sup. Ct. Rep. 1174. In the case of Redfield v. Iron OJ., 110 U. S. 174, 3 Sup. Ct. Rep. 570, which'was an action to recoverbackdufies illegally exadted, itwa's said that if the plaintiff had been guilty of laches in unreasonably delaying the prosecutionofliis claim, interest may be properly withheld. When it is given as damages, it is often matter of discretion. Upon appeals t9 the supreme court, interest is n()t allowed., unless specially directed. Rule 23. Uriderthe cirCUlllstancesOf this case, in view of the tind.oubtedand b! t,he .rei>atrs, and of the utldetl;r.ing .doul!tln.DlY mmd as to-wnethtlr thIS enhrebilLought to be chargeil to the c!aimants, I think hmy' duty to refuse the allowance of and to. .02 is Ule.i'efore sus4\iried. all the items of the to. .e?,cepThese tions were taken by the claimants. 'Although upon tbearsu!Ae,nt!J:l}.d; in .thebrie.f;se\'eralo$heJla'arementioned,·I.do;flbt,feel·at.Hberty.to'collsider them in the absence offormal thereeMd: ., ' ; ,': CQllsid¢r,tbe exceptic;ms of. the libelant· .. · ·disallowance: the',.cotl)nliss.ic:lfler ·of,·the. $500. .' I a.mdispQsed, with some doubt, to concur withtherepott'of this point. Owing to the strike in Detroit, it was found. to take the Oregon to Buffalo, and the Newburgh was voy. It is said that she w3s'emp1oyed ito tbw the Oregon, but the evidence is,tbht:lihe Oregon employedher:ownmotive :power,andwa$ 'riot, in .fu.ct,ni<led by the Newbl,1rgh.. While it may.,have' beenli. plludent 'precaution to take the Newburgh along, it was adding-'.a large ;item to the already large bill fer injuries, and it does not seem to me to constitute such a t}8se of necessityas' to entitle libelants to recover it from the . " . Alaska. 2. To the deduction from Mills & Co. 's bill for repairs 0.£ certain items, amounting to $930.28. As the cOmmissioner aU the ¥Jstimony upon this point, :and his conclusions upon such testimony are not directly attacked, I am not disposed.to disturb his allowance. With the exception of the 'allowanceof interest, therefore, the, ,report of the commissioner is affirmed.
iF
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. '
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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