Coast Wrecking Co. v. Phœnix Insurance Co. of Brooklyn

Blatchford, Justice. Ic is objected by the respondent that the claim made in the libel is founded wholly on the bond signed, and is set up as a claim for general average charges, and that no suit to recover such charges can be maintained in the admiralty. It is also objected that the bond provides only for the payment of such losses and expenses, incurred and to be incurred, as may constitute a general average when stated according to the established usage and laws of the state of New York; and that there were no general average expenses incurred, inasmuch as the voyage of the Vindicator was abandoned, and all community of interest between vessel, freight, and cargo was destroyed. It is true that the libel is based on the bond or agreement, and that in reciting the agreement it recites it as one applying to an apportionment of only general average expenses. But the agreement is in evidence, and in the answer the respondent submits to the determination of the court the question of the amount of compensation to be awarded to the Coast Wrecking Company for salvage. The answer alleges that the claim of Johnson & Higgins is not one of admiralty jurisdiction, but there is no exception to the joining of the two claims in one libel. I concur with the district judge in the view that the agreement covers the expense of the services rendered by Johnson & Higgins, and their disbursements made in connection with the cargo, although the case may not be one of general average. The bond or agreement covers general-average charges. But it goes further; it recites general-average losses and expenses, and then it recites that there may be other charges incurred in respect to salvage and discharging the cargo, and sending it to New York, which may apply to and be due from specific interests, according to the usage of the port of New York. The signers then [134] agree to pay “the loss and damage aforesaid, a,nd other incidental expenses thereon,” according to their interest in vessel, freight, and cargo, provided “such losses and expenses aforementioned” be stated and apportioned by Johnson & Higgins in accordance with the established usage and laws of the state of New York in similar cases. This includes the expenses, disbursements, charges, and services sued for by Johnson & Higgins, because they were incidental to ascertaining and adjusting the proportionate share chargeable to the cargo of the expenses incurred in saving and discharging the cargo and delivering it, in addition to embracing such expenses. As to the admiralty jurisdiction, the services and expenses covered by the agreement are those which, if performed and incurred by the owner of the vessel, would have fallen within the line of His duty to take care of and save the cargo. Such duty would have extended to all the • disbursements and services of Johnson & Higgins. They „would have been maritime in their nature, and their character is not changed or affected because the ship-owner put Johnson & Higgins in his place, and the liability of the owners of cargo to the shipowner became evidenced by a written obligation in favor of Johnson & Higgins. This is an express contract for a maritime service. Everything that was done was incident to saving and delivering the cargo. The propriety and lawfulness and reasonableness of the charges made by Johnson & Higgins are attacked, but there is no evidence opposing that of Mr. Krebs in their favor. As to the amount of salvage to be awarded to the Coast Wrecking Company, it is contended by the respondent that all the services rendered at the wreck after January 26th were for the benefit of the vessel alone and with the hope of saving her, and not for the benefit of the cargo of the respondent, and that the cargo cannot be made to pay for unsuccessful efforts to save the vessel. It is also urged that the 50 per cent, salvage awarded by the district court was too large. But, even if the services in regard to the cargo be considered by themselves, it is impossible to determine what particular services were rendered in respect to the cargo of the respondent. The service in regard to all the cargo was a continuous service, and every part of the cargo was interested in the whole of it, and should bear its due proportion of the whole expense of saving all that was saved. The only proper or possible mode of fixing the salvage is to award a percentage of the value of the property saved. The district court has fixed that at 50 per cent, on a full and careful consideration of all [135] the evidence. That rate was adopted without litigation by all the owners of cargo except the respondent. Not only is the service in the particular case to be regarded, but the compensation is to be looked at, as it may induce aid by competent salvors to other property in distress; and the equipment of the Coast Wrecking Company, with steamers and pumps and wrecking material and skilled men, and its readiness to act on a moment’s notice, must be considered, involving, as that does, large investments and expenses, which go on as well while there is no employment. Even the award of 50 per cent, in respect to the respondent’s property will not give more than $12,-000 compensation beyond expenses for saving over $40,000 worth of property. This is liberal, as it ought to bo, but I concur with the district court that it cannot, in view of all the circumstances, be considered excessive. See same case in the district court, 7 Fed. Rep. 236.