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\ THE MARINE RECORD. MARITIME LAW. NEW ZEALAND INS. CO. vs: EARNMOOR S. S. CO., Limited. (Circuit Court of Appeals, Ninth Circuit, Feb. 8, 1897.) Admiralty Jurisdiction—Federal Courts—State Statutes— General Average—Interest. In the exercise of their admiralty and maritime juris- diction, the federal courts are governed solely by the leg- islation of Congress and the general principles of the maritime law, and are not bound by state statutes. Ac- cordingly, held, that in its determination of the question of the allowance of interest in a libel upon a contract of marine insurance, a court of admiralty is not to be guided by state statutes as to the method of ascertaining the pro- portions of a general average loss and as to the allowance of interest on contracts. Interest—Marine Insurance. When the owner of a vessel has demanded from an in- surer an amount claimed to be due under the policy of insurance by reason of injury to the vessel from perils in- sured against, and, the insurer, while admitting a less amount to be due, has resisted payment of the amount claimed throughout a long litigation, but has never tend- ered the amount admitted, it is proper for a court of ad- miralty to allow interest from the time of the demand on the amount finally found to be due, though slightly less than that claimed. Appeal from the District Court of the United States for the Northern District of California. : THE QUEEN. BANCROFT-WHITNEY CO. et al. vs. THE QUEEN. (District Court, N. D. California. November 25, 1896.) No. 10,301. Laches in Admiralty—Statutes of Limitation. More delay, for the full period of four years allowed _by the states statutes of limitations, in bringing a suit in rem to recover damages to cargo, is not of itself, and in the absence of exceptional circumstances from which laches would be imputable, sufficient to justify the court in refusing to entertain the suit. Same—State Statutes Creating Liens. Ina suit which is brought to enforce the lien given by the general maritime law for damage to cargo through the ship’s fault, the limitation of one year contained in the California statute (Code Civ. Proc. sec. 819), which gives a lien for injuries to goods shipped on board a vessel, does not apply. Carriers By Sea—Damage to Goods—Presumptions. Where goods are returned to the port of shipment great- ly damaged by sea water, a presumption arises of negli- gence on the part of the carrier. Same—Perils of the Sea—Exceptions in Bill of Lading— s Burden of Proof. -~ A shipowner against whom a prima facie case of negli- gence has been made out, does not discharge the burden of bringing himself within the exceptions of perils of the sea by simply showing that the ship was in a seaworthy condition at the commencement of the voyage, and pre- senting evidence which merely leaves in doubt the ques- tion as to how the leak arose which caused the damage. Insurance—Subrogation—Dissolved Partnership. An insurance company which has paid a loss upon part- nership goods is not prevented by the subsequent death of one of the partners and the resulting dissolution of the firm, from maintaining a suit in admiralty in the partner- ship name to recover the amount of the loss from the car- rier. Carriers—Damage to Goods—Ascertainment of Damage —Auction Sales. Sale by auction in a great mart of commerce is a proper method of determining the value of goods damaged in the hands of a carrier. Admiralty—Jurisdiction in Rem. The requirement that a libel in rem must state that the property is in the district does not prevent the court from acquiring jurisdiction in the case of a vessel which, being within the district at the time the libel is verified, departs before it is filed, but, returning after the filing, is then seized on alias monition. 61 Fed. 213, re-affirmed. This was a libel in rem, by various shippers of goods shipped on board the steamer Queen, for breach of con- tract, for damages to said goods by sea water, alleged to and crew of the steamer, while said goods were being have been caused by the negligence of the master, officers, transported from the port of San Francisco to the port of San Diego, State of California. The case involved 37 claims. Various exceptions filed by the claimant to the libel were overruled in an opinion filed April 17, 1894. 61 Fed. 213. On May 12, 1806, the cause was heard on a motion by the claimant for a judgment in its favor after the libelants had rested their case, which motion was de- nied. 73 Fed. 74. Andros & Frank, for libelants. Geo. W. Towle, Jr., for claimant. GILCHRIST vs. GODMAN et al. (District Court, N. D. Illinois. April 5, 1897.) 1. Salvage—Wreckers Hired to Raise Vessel Are Not Salvors—Right to Compensation. Wreckers employed by the master of a wrecked vessel to raise the wreck, not being salvors, are entitled to wages for their labor, reasonably and faithfully performed, whether it is successful or not. 2. Marine Insurance—Liability of Underwriters For Services in Raising Wreck. Insurers of a wrecked vessel, who send an agent to superintend the master’s efforts to raise the wreck, be- come jointly liable with the owner for the pay of the wreckers employed by the master. 3. Same—Effect of Abandonment on Owner’s Liability. An abandonment of a wrecked vessel by the owner, af- ter an attempt to raise it has proved unavailing does not relieve the owner from liability to pay men employed in such attempt. 4. Admiralty—Jurisdiction of Action for Wages—Maritime Contract. A contract to raise a wrecked vessel is sufficiently mari- time in its nature to give a court of admiralty jurisdiction of a suit to recover wages due under it. Libel by Frank W. Gilchrist against Annetta S. God- man and others. GROSSCUP, District Judge (orally). The libel is for services in connection with an attempt to save the schooner American Union, stranded about May 6, 1894, at Thompson’s Harbor, on Lake Huron. The vessel was at the time of the stranding owned by the respondent An- netta S. Godman, and insured for about two-thirds its value in the respondent insurance companies. The master of the vessel at the time was James P. Godman. When the vessel stranded, her master employed the libelants to come to her assistance with tugs, pumps, hawsers, lights, and other wrecking appliances calculated to take her off the beach. The libelants entered upon this undertaking, and continued therein until about the 18th of May, when it was supposed that the vessel had been saved. On the 19th a fresh wind came up, which had the effect of pound- Wreckers’ (THE LATE) JAMES McMILLAN. (See issue July 1.) ing her to pieces upon the shore; leaving no salvage, ex- cept a few chains and other like things, not amounting to over $300 in value. While the libelants were engaged in their work, under employment of the master, an agent of the underwriters was sent on their behalf to assist in the work. He came on the 13th of May, and remained for several days thereafter, participating actively in the super- intendence of the work, giving directions and approving what the master had already done. After the 19th of May, and when it was known that the vessel was totally lost, the owner served upon the underwriters notice of her total abandonment of the vessel. It will be observed that there relation of the libelants to the vessel in distress was not that of salvors at large. They did not offer their help or impose their services. They were called from a distant port by the master and entered upon their work in pursuance of that call. Their claim for services, had the vessel been saved, could not, under the terms of the emplyoyment and the customs on Lake Michigan, have been based upon any idea of a propor- tionate interest in the value of the vessel, growing out of their having been her salvors. Their relation was not that of men coming at a venture to a vessel in distress, but of regular wreckers and tug men who work for certain customary compensation to give assistance. In my judg- ment, no feature of salvors at large enters into this case, but it brings, rather, the claim of a class of men who work for certain customary wages; and this, independently of the success or failure of their efforts. It is plain, then, that the men employed under such circumstances are en- titled to wages from their employer independently of the outcome of their labor, such labor having been reasonably and faithfully performed in pursuance of the engagement. Who were their employers? Undoubtedly the master of the vessel was one, who also by that act, as between her and the employed, bound the owner. I am of th opinion, also, that the underwriters, in view of their large interest in the work of the libelants, and by sending Capt Sinclair to the scene of the work to participate, and some extent, superintend the same, intended~ to ay themselves of this employment. Their acts in this co nection were, in effect, an adoption or ratification of the master’s engagement with these libelants. Indeed, it 7 inconceivable that, if the master had not already engaged these men, the underwriters, through their avents, wor not have done so. They undoubtedly intended to joi with the master in these efforts to save the vessel; thei pecuniary interests and their conduct were all in that rection. I hold, therefore, that the libelants were the em ployes jointly of the owner and the underwriters, in tl effort to save their common property. eed I hold also that the so-called abandonment of the ves sel, after she was already lost, does not have the effect exempting the owner from her just share of liability fo vessel been saved, or partfally saved, course, have been no attempt at abandonment. low it now, as against these libelants, would be giving the owner the unfair option of choosing to pay her propor tionate shares if the service were successful, and escaping when she found they were unsuccessful. _ ene The limitation act is not, in my judgment, in questiog in this case. Vessel owners and underwriters, employing men tosave their vessels in extremity, make themselves, by such act of employment, liable to the extent of the con- tract price; and I think the contract sufficiently maritime in its nature, aided, as it is, by the statutes of the state — wherein the services were rendered, to create a maritime — action that would bring it. within the jurisdiction of a court of admiralty. A decree may be entered finding for the libelants, and against the libelees, one-third of the liability against the owner, the other two-thirds against the underwriters, in proportion to their interests in the vessel. OO oO ee THE ‘‘SOO’’ AND SUEZ. The following is an extract from a paper read by Mr. Joseph R. Oldham, N.A. & M.E., Cleveland, on “The Computation of Register Tonnage’: “TI trust, gentlemen, I may not be suspected of lacking in patriotism if I endeavor to show you the true com- parative state of the Soo and Suez Canal traffic with re- gard to the tonnage of shipping engaged in these trades. So that you may more readily make a comparison be- tween these trades I have drawn curves to a common scale illustrative of the tonnage passing the two’ great waterways. I also show in sombre lines the condition of our tonnage engaged in the foreign trade. Now. it is a melancholy fact that we have not one single steamer engaged in the Suez Canal trade, therefore this comparison resolves itself, I am sorry to say, into one be- tween the American ship tonnage passing the Sault Ste. Marie and the tonnage of other nations passing Suez. The time required for making the average voyage through the Suez Canal is about twelve times as much as the time occupied over an average voyage through the St. Mary’s Canal. Therefore, in estimating. the tonnage engaged in these trades time should be taken into account. The - distance from Alexandria to Aden will be about the same as from Buffalo to Duluth. Now the ordinary Suez Canal trader could make ten trips from Alexandria to Aden in about the same time as it takes her to steam from London to Hong Kong, but the time required for loading and unloading is much greater in the foreign trade. If the de- — tention in port were the same as on these waters the Suez — Canal traders could make twelve trips between Aden and — Alexandria in the same time as they now require to make an actual average voyage. So that their tonnage passing — that point would then be twelve-fold of what it now is, and if last year’s experience through the Asiatic waterway be multiplied by twelve it represents a Suez Canal trade of over 100,000,000 tons per annum, or say 67,000,000 tons for two-thirds of a year. There are about 2,500,000 tons of shipping engaged in the Suez Canal trade, we have not quite 400,000 tons in the Soo trade. The average tonnage of a Suez Canal steamer is 2,460 tons, of a St. Mary’s Falls steamer 927 tons. This is not intended to detract in the slightest degree from the fact that over sixteen mil- lion tons of cargo were handled and transported through St. Mary’s River and Canal Locks in 232 working days. — The feat is phenomenal and has never before been equaled in the world’s history—and perhaps no other canal could pass so much tonnage in the same time. I only wish to make it clear that though we possess many of the finest steamers in the world our tonnage is not enormous; in- deed the aggregate capacity of three or four European steamship lines engaged in the Suez Canal trade exceed in value and number the total iron and steel tonnage afloat on our lakes. — or 3 The Hydrographic Office, Navy Department, Washing- ton, D. C., issues this week a new chart of Lake St. Clair and St. Clair and Detroit Rivers. The survey between | Bar Point and Mamajuda light-house was made by officer of the U. S. S. Michigan in 1894. Taken as a whole th chart is one of the best and clearest delineations on a large’ scale, which we have ever seen. Price $1.00.