by of any owner, ,pr oLt:b:e :positi,o,n .a,sserted in the state:9f,t,Pe . the home:pprt of the , JJqming,:noW,ito the ofthe,fact first one for CI?'ljliii,ratlon is to be IPa,id for the use of :Pv-mps.: is that the agreed the ,$45, and $35. of .theclaimant, $35 and disc\lsS the in I am satisfied is by the proofs; that the libel .1l'pon a fOr. the service is of in the conflict, ,I find, however, that the an engineer to operate the contract did not include the pumpll.1 r', ·)X do. ,not Jind that any agree,ment was reayh,ed between the parties Leathem, acc<;>mpanied the,pl,lxpps, as was his CUlitlil;nl,'sup, as he tQsee thattheY were used right, "the master furnish,an ·. Afterwards Leathem operated th!l $10 a day for each pump, al. thougg;,a,S ma,tter of was operated by the engineer o.r ,. ,Leathem was not a, engineer. He had some knowledge.of operatingeugines in mms",bpt was manifestly not an expert:li\ttJw the consent of the master the larger pump, and should receive a fair comJ¥lnsatiQo{or that 'service. I .seenQ reason to allQw him more than the ,qlilJ:llll r/lteshoWD to be, Piloid for such service, $5 a day I and that shou)d be limited to the days he so actually operated tb,atpqmp as . So nearly as I can eatimate the time from the evideijce,. ,which is the propf, I determine the was so employed at 18 and the libelants are allowed .' .,'. $90 torJh4t service. It if;llWserted by the claimant that at :Sheboygan .while the attempts ,,,b,i,p were in, progress,lj,nd llome eight days before she was to raise place<l. in 9.ry·dock, .it agreed .between the owner and Leathem, one of ,thattlw. bill for of: the pumps should be rendered Il!tthEl,rate $35. per day, respectiYely, and that there should l>ea1lowed tbeowner a deduction of 40 percent. from such charge. Tilevalued $30,000, and was not insured; the cargo at $3,800 or $3,900, and WIlS other words, that there was a llecret.arra,ngeW-ept, and the cargo waS to ,be charged in general average withtbeprices'stated, but the; owner was in fact to pay only 60 per cent. oftl\.e amount It was: testified Qy the claimant that at the time of the alleged agreement h,ep,ad discouraged at the repeated failures tol--eepthe ship afto8Jt, and. was negotiating with others to raise bel:Lthatthisfact. coming to the knowledge of Leathem, one of the libelants" hes1,1ggesteci that there was no need to pay the demanded price of $1,000' to raise the ship; that it should not cost, over $250 more to raiSQ her; ,that it ,was, "an insurance. job," and "we have got to get these bills, up qs high as we can;" and that the cargo would pay 91 per cent. ofth.a;Q9St. In this there is corroboration by the master, except
THE ROANOKE.
579
as tothe of the he leavirlg the room before the close-'Of the negotiations. 'On the 7th September the master certified to the bill at the rates specified, without' any rebatementionedtherein.. He asserts that at that time he spoke to Leathem concerning it, who replied /I that will be an after consideration:" . In this he is corroborated by bis letter to the owner inclosing the bill, and asking authority to certify it; in which he states the remark of Leathem RSto rebate as given in his testimony. Leathem denies this arrangement in toto, asserting that no such conversation ever occurred; that the terms of the original contract, as he claimed it to be, viz., $45 and $35 per day for the pumps,were never questioned or disputed by the master; that the subject of rebate was never mentioned, and that thetnaster certified to the bill withoritreserve and without suggestion of rebate; that he knew the ship was not insured and that the cargo was inRured; and that be understood at Menominee from the agent of the insurers of the cargo that 9 per cent. onbe expense ofraisillg the vessel would fall upon the insurers. The claimant asserts that he assented to the arrangement without any design to defraud the underwriters of the cargo, and without intention to present other than the actual bill of expenditure,and solely because he discovered that, with the rebate offered, the per diem post of the pumps to him would be $12 less than the contract price as claimed by the He insists that Leathem in proposing thislmangement overreached himself, failing to perceive that thereby he 'would receive less than entitled' to'by the contract as claimed by the master. I am persuaded by the' proofs that there was an agreement for a rebate. Whether or not the rate agreed upon was 40 per cent. may admit of doubt. It would seem unnatural for'Leathem to assent to a deduction which would abate his compensation for the use of the pumps, to that date, as conceded by the libelants, by some $256, exclusive of all compensation as engineer; and this without any resulting benefit too himself, and solely to enable the claimant to recover a lesser amount from the underwriters. If that was the rate agreed upon, it indicates either a lack of discernment and inattention to self·interest not apparent from the appearance of Leathem in the witness box, or a generous im· pulse growing out of the "hard luck" attending the raising of the ship. The latter seems the only probable moth'e for such an agreement by him. It is not necessary to determine the fact. It suffices that there was an agreement for a rebate, whatever the rate. This agreement was suggested by Leathem to the claimant with a view to the latter obtaining from the underwriters of the cargo a larger salvage than he ought. I think it was accepted with like intent and purpose on the part of the claimant. His avowed reasons for acceptance impress me as Leathem suggested, "It is an insurance job; we have got to get these bills as high as we can." The claimant demurred to the price stated, asserting they were not according to the contract. Leathem said, "What is the matter with a rebate?" The claimant answered, "I listened to that readily, and said, 'All right.'" The master's version is that the owner replied, "ObI that is different."· All this occurred before
58P
FEDERAL REPORTER,
vol. 50.
of rebate "Such an offer is susceptible of but one Ipterpretation. It, was a bald suggestion to defraud the under:writers.. The ready assent compels the conviction that he ",as quick to entertain the offer. Honesty does not listen to suggestions of,fr&pdwith such easy complacency, or yield with such ready assent. ia more robust. I am satisfied that both, parties conspired to fraud upon the underwriters., Indeed, it was asserted by .co uns!'!i, at the bar, without dissent, that such agreements are not infre,incases of salvage, and that marine underwriters well understood thlttthey were thus iffipos!ld upon. If insurance companies submit to such ilpposition, they ll,re culpable, in a sense condoning the offense. Such (lontracts will not pe tolerated in courts of justice. They will not consid!J,r tllem nor enforce them against either party. They will only dea1wi,th them in the way of relieving innocent victims of the fraud, or ofppnishing the guilty participauts therein. . It is,S)lggested that tile owner could not have contemplated a fraud, the cargo tU>t be subjected to any part of the expense accruing subsequently to iiB removal from the ship. Orqinarily such subsequE1ntexpense is incurred to save the ship, and not for the benefit of the cargo. There may, however, be cases where such subsequent expense would ,a claim to general average. ,It may be that here the cargo is not liable in general average for any portion of the expense of raising the ship, whether befor.eor after its removal. It may be that it may legally be charged for a proper share of the subsequent expense. That 4epenQs upon facts not disclose? by this record, and is a question not in Qontl'oversy herE;l. See McAndrews v. Thatcher, 3 Wall. 347; Kemp v. Haltidp'!J, 6 Best & .S.7·23, 34 Law. J.Q. B. 233, 243; Job v. Langton,pEl.& BI., 779, 26 .1Jaw J. Q. B. 97; Moran, v. Jones. 7 El. & BI. 523, J. Q. B: :t87; Walthew L. R. 5 Excb. 116. , that may be, it is clear that both parties supposed thatthe cargo ,was liablein generlj.l average, and acted upon that presumption. Counsel.for. claimant suggested that the claimant kI).ew otherwise. There is nothing support the suggestioIj.. To the contrary, from the occupationsof.,the libelant would be in better position to know the facts and th.elawapplicable in case, than the claimant. If both was not liable, thCilre is no possible motive shown for any such. for It .is urged by the libelants that the bill certified by the master should be hel,d cODclu;sive of the contract,.of hiring. Settlements by the master, , ' when deliberately and frorly made, are upheld.. The Senator, Brown, Adm. 545. This bill was, howe:ver" presented and certified pursuant to and in CIt the corrqpt ,agreement considered. It is tainted with frauq, and Gannot,be sustained.. ,It does not speak the agreement of the parties. It decla;res the fraudulent contract sought to be imposed upon the und,!3rwriters. With respectto the claim to abatement of the amount dpe because of alleged ,,:antqf good faith and skill on the part of the libelants, unre\lS09a;ble delay in. the work, apd inefficiency of the pumps, but little
to
..
THE BRINTON. need be said. There was incompetency somewhere with respect to this work. It cannot otherwise be accounted for that so much time should have been consumed in raising the ship within a harbor and in Rmooth and shallow water. That incompetency, I think, rests with the master and owner, not upon the libelants. The latter were not engaged as wreckers, and were not in control of the work. They hired to the master their pumps, and operating service for one of them, at a per diem compensation. They were subject to discharge at any time at the will of the master. He, not they, controlled the operations. If the pumps were inefficient, or Leathem unreasonably prolonged the work, the master had the remedy in his own hands. He could put an end to the employment at will. Retaining the service, the claimant cannot refuse compensation, or claim abatement of the contract price. Starke v. Crille:y, 59 Wis. 203, 18 N. W. Rep. 6. I pronounce for the libelants upon the basis stated, with interest from the date of filing the libel, and for costs.
THE BRINTON. THE WILKESBARRE. ULRICH v. THE BRINTON AND THE WILKESBARRE. (District Court, S. D. New York. May 4,1892.) L COLLJSION-NARROW CHANNEL-SWINGING Tow-FAILURE TO REVERSE IN TIME.
A tug and tow and a steamboat attempted to pass each other in the Kill von KUll, in a channel 1,000 to 1, 100 feet wide. and exchanged a signal of one whistle. The evidence showed that the tail of the tow, which was going with the tide, had swung at the time of collision nearly three fourths of the distance across the channel; also that the steamboat did not reverse, because not thought necessary, although the swinging of the tow was apparent. Bela, that the collision was due to the fault of both steamers. A boatman, who is not struck or thrown into the water hy the blow of a collision, but of his own volition remains aboard the disabled boat after collision, his health suffering in consequence of the exposure, cannot charge his personal injury as an item of the damages occasioned by the collision.
I.
SAl\lE-DAMAGES-PERSONAL INJURy-NoT PROXIMATE RESULT.
In Admiralty. Libel by Napoleon B. Ulrich against the steamtug Brinton and the steamer Wilkesbarre for collision. Decree for libelant against both vessels. Hyland &: Zabriskie, for libelant. Robinson, Bright, Biddle &: Ward, for the Brinton. Wing, Shoudy &: Putnam, for the Wilkesbarre. BROWN, District Judge. On the 15th of December, 1891, about daybreak, as the steamtug Brinton was taking a tow of light canal boats, consisting of four tiers, with four boats in each tier, on a hawser of 20 fathoms, to the westward through the Kill von K'lll in a strong flood tide, the tail of the tow, when in the vicinity of the plaster workll at New