Wheeler v. Continental Insurance — 29 N.Y. St. Rep. 908

Majority

p. 908

Margaret Wheeler, Resp’t, v. The Continental Insurance Co., App’lt.

(Supreme Court, General Term, Fourth Department,

Filed February 15, 1890.)

Headnote

1. Insubance (mabiue)—Genebal avbbage.

Plaintiff's schooner, while in tow of a tug, was wrecked on the St. Lawrence river and partially sunk. The master then employed a steamer,

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the “Chieftain,” and a lighter, and the schooner was brought into Ogdensburgh. Part of the cargo was jettisoned. The cargo was abandoned to the underwriters. Defendant was one of the insurers. A general average bond was executed. The cargo was then delivered and sold, and after-wards the vessel also. In arriving at the expenses in general average, the referee refused to deduct from the bill of the Chieftain and the lighter the value of the services of the tug for towing. Held, no error; the actual value of the tug’s services were not shown, and the court cannot assume that its services for towing would be of the same value as those of the Chieftain in towing; further, it was not shown that it was customary to tow.

2. Same.

The extent to which freight contributed for (not earned) should pay in general average, is a matter depending on usage.

3. Same—Expenses.

The referee allowed in general average certain expenses incurred as follows: While unloading, steam pumps were necessary to keep the vessel afloat; when she was nearly empty the weight of ice upon her and of the steam pumps careened the vessel towards the dock and she rolled over and sunk. This expense of righting and pumping out the vessel, and of towing her a short distance to a dry-dock and placing her in safety upon it, were allowed. Held, no error.

4. Same—Interest.

Allowance of interest upon bills of the salvors paid by plaintiff was proper.

Appeal from a judgment entered in Oswego county November 10, 1888, upon the report of a referee in favor of the plaintiff for the sum of $734.09, with interest from April 20, 1886, and costs.

Action upon a general average bond.

On the 28th November, 1885, the plaintiff was the owner of the schooner “ Bolivia," then lying at the port of Toledo, Ohio. At that date, there was shipped on board of that vessel for the purpose of transportation to Ogdensburgh, N. T., 25,000 bushels of corn which was insured for the sum of $11,250. Of this insurance $5,000 was taken by the defendant. The schooner left Toledo on the 29th November, 1885, and proceeded in safety, until the 7th December, 1885, when at a point about four and a-half miles below Kingston she struck a shoal in the St Lawrence river and was injured so that she partially sank. The vessel and cargo were greatly damaged and in danger of being wholly lost. The master thereupon employed a steamer, the “ Chieftain," and a lighter, with crews and steam pumps, to lighten and wreck the schooner. This was done and the schooner towed to Ogdensburgh where she arrived on the night of December 11th. In order to raise and save the schooner and cargo, a por- ' tian of the cargo, about 8,000 bushels, was jettisoned. At Ogdensburgh the cargo was abandoned to the underwriters and after some days’ delay by reason of controversy between the interested parties over the loss, a general average bond was given on the 15th December, 1885, bearing date December 12. The cargo was then delivered and sold and the vessel was also afterwards sold.

Clinton & Clark, for app’lt; W. A. Poucher, for resp’t.

The claim of the defendant is that the referee, in .stating the account upon which he based his adjustment of the loss, erred in several particulars. '

1. The master of the Bolivia, upon her arrival at Kingston, •employed a steam tug called the “ Proctor ” to tow the schooner to its port of destination. Under what arrangement or for what price the tug was employed does not appear, and the referee finds that he cannot state or find it, as the evidence is silent on the .subject. At the time of the accident the schooner was in tow of the tug. The defendant claims that the referee erred in not deducting from the bill of the Chieftain an amount equivalent to the towing bill of the Proctor and thus reducing the general average chai’ges. There is evidence to the effect that where it is usual for a vessel to tow, then a reduction should be made. It is not shown that in the present case towing was customary. The towing bill of the Proctor was not proved, but the defendant claims that an equitable amount can be ascertained by assuming that the pay of the Proctor was at the same rate as the •Chieftain and calculating for the time it would have taken to have gone from the place of the disaster to Ogdensburgh. I think we have no right to assume that the pay of one tug for ordinary service would be the same as the pay of another tug or steamer for wrecking service and the towing of disabled craft. Mo request was made for findings on this subject. The case shows that the counsel for the plaintiff, just before resting his case, inquired of the defendant’s -counsel if he wanted “ any further proof in regard to the bills.” 'This referred to the bill of the Chieftain with others. The counsel .for the defendant replied that if they wanted any further proof he would point it out specifically so it could be proved at any time. Mo such specification was afterwards made as to this account or • claim. It is too late now to say that the proof of the plaintiff was defective on the subject. The bill of the Chieftain as proved ■was $1,138.25. The referee in fact allowed it at $1,100, as that was the amount the plaintiff paid. Mo reason for any farther de- • duction is apparent.

2. It is further claimed that the referee erred in fixing the contributory value of the freight.

The freight on the amount of grain delivered, which was 17,000 "bushels, was $1,020, although but $926.50 seems to have been -paid. The freight on the 8,000 bushels jettisoned, being $480, was contributed for, making the total freight $1,500. The con-tributory value was placed by the referee at one-half the amount. This was in accordance with the expert evidence on both sides. An adjuster agreed upon by both sides fixed it in this way, and no •objection was taken in that regard to his adjustment. Mo objection appears to have been made to this on the trial. The claim now is that the freight contributed for should have been placed in the list at its full amount It is conceded that the freight earned should contribute for only half the amount, that being deemed to be net freight; but it is claimed a different rule applies to the freight contributed for. There is a statement to this effect in .¡Dixon on Marine Insurance and Average, 148. The extent to

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which freight shall contribute is a matter depending on usage. 1 Pars, on Shipping, 431.

According to the evidence in this case, the custom of taking one-half as the contributory value extends to the freight contributed for as well as for that earned. The action of the referee on the subject should not under the circumstances be disturbed. Nor does the defendant make clear its claim that the freight contributed for should be reduced by some sum which the vessel would have been obliged to pay for shovelling and elevating the jettisoned grain. The evidence on the subject is conflicting. The facts on the subject are not found and there were no requests to find. There are cases in which this has been held to be necessary. Lyons v. Cahill, 23 Jones & Spencer, 553 ; Graff v. Ross, 47 Hun, 152 ; 14 N. Y. State Rep., 636.

3. The referee allowed in general average expenses certain items incurred after the cargo was substantially all delivered, but before the vessel was in a place of safety. This the defendant claims was improper on the theory that expenses incurred in regard to the vessel after the cargo was delivered at the port of destination should be charged entirely to the vessel and not go into general average.

The unloading of the wet grain in the Bolivia commenced on the 15th December at the Lake Champlain warehouse in the port of Ogdensburgh and was substantially completed in the night of the 18th December. During the unloading, the steam pumps were in operation to keep the schooner afloat. When the cargo was substantially all out, the vessel, in consequence of being top heavy and of the weight of the steam pumps and the extra weight of the ice on her, careened towards the dock, rolled over and sunk alongside the dock. Certain expenses were the nincurred to right the vessel and pump the water out and tow her a short distance to the dry dock and place her there in a place of safety. The objection to the allowance of these expenses in general average is not a good one. The vessel was kept at the dock in a place not safe for her but for the benefit of the cargo and its delivery. It will not do for the owners of the cargo to say, we have now our grain and the vessel may go to the bottom or save herself at her own expense.

This is not like the case of Dunham v. Com. Ins. Co., 11 Johns., 315 . There the expenses were after the ship was taken into dock for repair. Nor is it a case of accidental stranding, and the cases on that subject do not apply. It was rather a part of the wrecking enterprise that was not completed until the vessel was at the dry dock. The steam pumps were on board and were in use, and their safety was to be provided for.

The value of the vessel, as thus preserved, becomes one of the contributing values in which the defendant claimed and has an interest. The referee correctly held that the community of interest between the vessel and cargo did not cease until the vessel was in a place of safety at the dry dock.

The expenses at Ogdensburgh were largely increased by the delay in proceeding to unload. This delay the defendant is not

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in a position to charge to the plaintiff. The bills of the salvors were incurred in good faith by the master, and were fully proved. They amounted to $4,297.86. When these bills were settled by the plaintiff, the parties made deductions for her benefit to the amount of $658.25. The referee gives the benefit of these deductions to all the parties in interest. In the referee’s adjustment as a whole the defendant has no ground of complaint.

4. The referee allowed interest from the time of the payment of the bills by the plaintiff. This was correct. Sims v. Willing, 8 Sergeant & Rawle, 103; Vandenheuvel v. United Ins. Co., 1 Johns., 406 , 413. In substance, it was a case of money advanced for defendant’s use, and interest was recoverable from the time of the advance. Gillett v. Van Rensselaer, 15 N. Y., 399 . As said in the Sims case, there is no reason for referring the calculation of interest to the period when the average was adjusted; the adjustment forms no part of the plaintiff's title. The giving of the average bond does not affect the question.

It follows that the judgment is correct and should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.