I do not perceive, however, that the clause has any material bearing 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 on shore." 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. The Adjustment. 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'Amerique, 35 Fed. Rep. 835, 848.) There is nothing in the evidence to show that the separate valuation of the hull and machinery in this policy affects the amount charged against the respondents in the adjustment. The vouchers have been put in evidence. They were 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, independently 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 insurance policies. As respects the amount with which the insurers should stand charged, it does not appear that the amounts allowed are greater than the evidence warrants. Mr. Martin, 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 circumstances, is prima 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 made. 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 against the respondents, as insurers of the vessel, is only their proportion of about $83,900, as the whole amount 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 as 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 approved by repondents' agent, acquiesced in by them, and not brought forward until after the decision of the cause. Motion for reargument denied. THE RICHARD S. GARRETT. 1 MCCARTHY V. THE RICHARD S. GARRETT. (District Court, S. D. New York. December 2, 1890.) MARITIME LIENS-REPAIRS-RESIDENT OWNER-LICENSE-CREDIT TO VESSEL. 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, and the material-man had no knowledge to the contrary, and dealt on the credit of the vessel, held, that a suit in rem would lie to recover the price of the repairs. 'Reported by Edward G. Benedict, Esq., of the New York bar. In Admiralty. Suit to enforce a lien for supplies. Peter S. Carter, for respondent. BROWN, J. The work on the repairs and the value are admitted as claimed. The claimant alleges that the libelants agreed, in the settling of the former disputed bills, to allow a credit of $100 upon the present bill, which the claimant asked for in consequence of an average charged him by the insurers. The claimant testified to such an agreement, but this testimony is contradicted in all its parts by the libelant, with whom the conversation is stated to have been held. The burden being upon the claimant to establish such a defense, and no writing or other evidence being produced to sustain this claim as opposed to that of the libelant, I am obliged to treat it as not proven. It is further claimed that a suit in rem will not lie, because one of the claimants, an owner of one-third interest, was a resident of New Jersey, where the repairs were made. The tug, however, hailed from New York, her other two owners were residents of New York, and in the application for her license at the custom-house in New York all of her owners were stated to be of New York. The libelant had no knowledge to the contrary, and rightfully supposed she was a New York vessel, dealt with her as such, and made the repairs upon the credit of the vessel. Under such circumstances she must be treated as a New York vessel. The St. Jago de Cuba, 9 Wheat. 416, 417; The Francis, 21 Fed. Rep. 715, 717; The Jennie B. Gilkey, 19 Fed. Rep. 127; The Ellen Holgate, 30 Fed. Rep. 125. The New Jersey law, moreover, gives a lien in such cases. The defense not being established, decree for libelant for $106 and costs. WHEELWRIGHT et al. v. WALSH.1 (District Court, S. D. New York. December 6, 1890.) 1. CHARTER-PARTY-REFUSAL TO LOAD-DAMAGES-FILLING PRIOR CONTRACT-MARKET VALUE. Where a chartered vessel refused to take the cargo, (lumber,) and, owing to the consequent delay in arrival, the charterer was compelled to fill a contract of sale made long before by buying other lumber at a higher price, and there was no evidence of any fall in market price between such purchase and the arrival of the charter cargo, held, that the difference between his contract price and the price paid was not the rule of the charterer's damage, but the fall in market price, if any, during the delay in arrival; and, if there was no fall, then the only damage was the interest on the amount paid for the lumber so purchased during the time that elapsed before the charter cargo arrived. 2. SAME-WHARFAGE EXPENSES-HANDLING OTHER CARGO. The cargo destined for the chartered vessel lay on a wharf obstructing other loading, and causing extra expense in handling other cargoes over it. The evidence showed that the expense thus incurred was less than the cost would have been to remove the cargo there waiting until it could be shipped. Held that, treating this as a substituted expense, it should be allowed as an item of the charterer's damage. Reported by Edward G. Benedict, Esq., of the New York bar. In Admiralty. On exceptions to commissioner's report. BROWN, J. The respondent having been held liable for the breach of a charter of the Caroline Miller to bring a cargo of lumber from Fernandina to New York, (42 Fed. Rep. 862,) the respondent in the report on damages has been held liable, not only for the difference of freight in sending the lumber by other vessels, but for a supposed loss occasioned to the libelants in consequence of their being compelled to purchase in New York a certain amount of lumber in order to fill in time their own contract of sale to McLean, which they had designed to fill from the charter cargo, on which purchase the libelants paid a higher price than that at which they had several months before contracted to sell and deliver to McLean. Another item allowed is for the extra cost of handling certain other lumber belonging to the libelants at Fernandina, in passing it over the lumber that lay on the dock ready for shipment under this charter. The charter did not make reference to any specific lumber, nor require its delivery at any specific time. The voyage was in fact once postponed at the libelants' request for the transportation of a cargo of railroad ties by the same vessel, and that intermediate voyage has caused all the litigation. This claim is not even for any fall in the market price of the lumber intended to be forwarded by the Miller, but because the cargo did not reach New York in time for the libelants to fill a specific order. This order and intended destination of the luniber for McLean were not referred to in the charter, and were not any part of the contract between these parties. They were not within the contemplation of the respondent when the charter was made, nor was this alleged loss in the additional price paid one of the ordinary or natural consequences of the breach of it. Telegraph Co. v. Hall, 124 U. S. 444, 455, 456, 8 Sup. Ct. Rep. 577; Railway Co. v. Kellogg, 94 U. S. 469, 475; The New York, 40 Fed. Rep. 900. The loss, if any, did not arise from the breach of the charter alone, but from the libelants' special contract as well, made several months before, to sell and deliver at a price named, of which the respondent had no knowledge. Again, there was no evidence that the contract price with McLean was the market price of lumber at the time when the Miller, had she performed her charter, might reasonably have been expected to arrive in New York. The defendant cannot be held bound to such a price, fixed long before delivery by the Miller was to be expected. The contract price to McLean, fixed months before, was, moreover, no legal criterion for determining whether the libelants sustained any legal damage by the Miller's breach of charter, and the consequent delay in the arrival of the lumber. That would be determined by the market price of lumber during this. interval. I do not find any evidence in the case as to the market price of lumber at any time. In the absence of any such evidence, it must be assumed that, in making the purchase to fill the McLean order, the libelants paid no more than the market price; and that when their own lumber arrived by other vessels a few weeks afterwards, it was worth as much as they had paid for what they purchased, and that consequently no legal damage of that kind resulted. There is no evidence of any fall in the market price in the mean time, or that what arrived late could not be sold, or was not sold, by the libelants for as much as they had paid in order to fulfill the McLean contract. The burden of proof is upon the libelants; and, without some proof of change in market value, there is no basis to recover under this head, except for interest on the amount so purchased during the few weeks that elapsed until their own lumber arrived to replace that purchased. Upon both these grounds, this item of damage should be disallowed. The Tribune, 3 Sum. 144, 151; Oakes v. Richardson, 2 Low. 173, 178; The City of Alexandria, 40 Fed. Rep. 697, 700. As respects the other item of damage in the extra cost of handling other lumber over the cargo waiting for the Miller, I have also great doubt. Considered by itself, it would be excluded as a remote and accidental consequence; but the evidence shows that the extra expense allowed was incurred instead of the greater expense that would have arisen from removing the Miller's cargo from the dock, where it lay waiting for her, until other transportation could be procured. There is some difficulty in determining the real damage from this cause. The commissioner has endeavored to adjust it, evidently with scrupulous care, and on the whole I conclude not to disturb his finding in this respect, treating it as a substituted expense in place of that which would be naturally incident to the Miller's cargo itself, and the necessary rehandling thereof in consequence of the breach of the charter. The Rossend Castle, 30 Fed. Rep. 462; The Giulio, 34 Fed. Rep. 909. With the above modification, the report is confirmed. PETTIE v. BOSTON TOW-BOAT Co.1 (District Court, S. D. New York. December 3, 1890.) 1. TOWAGE-DAMAGES-OLD VESSEL-INABILITY TO RAISE VESSEL Sunk. When a barge was sunk by being negligently towed upon a sunken rock, and, in consequence of her old and weak condition, which rendered raising impossible, she became a total loss, held, that full weight should be given to this circumstance and the previous history of the boat by reducing the assessment of her value. 2. SAME-WEAKNESS NOT CONTRIBUTORY TO ACCIDENT-APPORTIONMENT. A previous condition of weakness on the part of a vessel negligently sunk not having contributed to the accident or induced the fault, and it not being possible that any express notice of such condition could have affected the navigation, and her old and leaky condition being known, held, that these conditions constituted no such fault in the vessel sunk as permitted a division of damages. 3. SAME-OVERVALUATION-COSTS. 1 On the assessment of damages, the recovery of a much less sum than claimed for the value of an old vessel is not sufficient evidence of fraudulent exaggeration to deprive the plaintiff of his statutory right to costs, where the libelant's estimates are largely sustained by reputable witnesses, though the court adopt a much smaller valuation. 1 Reported by Edward G. Benedict, Esq., of the New York bar. |