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_ -86booner MARINE LAW. THE TUG UNION AND OTHERS, District Court, Northern District Illinois, 1834, In Admiralty. W.-M. Condon for libelant; Schuyler & Kremer for the tug Union; W. L. Mitchell for the schooner R. B. King. Blodgett, J. The libelant in this case seeks, a8 owner of the schooner Floretta, to recover damages sustained by said schooner in a collision between said schooner, while in tow of the tug Union, and the schooner R. B. King. The collision occurred on the 19th of August, 1882, near the entrance to Chicago harbor. Among other defenses urged in the case is an award made by arbi- trators, to whom the matters arising out of such collision was submitted by the parties Ynterested, It appears, from the proofs and pleadings, that libelant was, at the time of the collision, owner of the Floretta. ‘The Vessel-owners’ Towing Company was own- er of the tug Union, J. L. Higgie being president of the company and acting in its behalf, and J, C. Dunbar was master of the schooner R. B. King, and acted in the mat- ter of the arbitration in behalf of her owner. The agreement for submission to arbitration was as tollows: , P “Cuicaco, August 24, 1882. “Know all to whom these presents may concern, that we, the following parties, J. L. Higgie of the Vessel-owners’ ‘Towing Com- pany, representing the tug Union, and J. V. Taylor, representing the schooner Flo- retta, and Captain J. ©. Dunbar, owner of the schooner R. B. King, do hereby - agree to leave to arbitrators the collision that hap- pened between the three eaid vessels on the morning of the 19th of August, 1882, about one mile or thereabout from Chicago har- bor. We have also agreed to the following arbitrators: Captain William Keith and Captain William Cary, and, if they cannot agree, to be left toa third party to be ap- pointed by them. (Signed] “J. L. HicGIE, “President of the Vessel-owners’ lowing Co. “J.C. DUNBAR, ©J..V. Taylor.” . And under this agreement the arbitrators named made an award, as tollows: “CxHicaGo, September 5, 1882, “J, L. Higgie, J. V. Taylor and J. C. Dun- bar.—GENTLEMEN: We, William Keith and William Cary, do herewith give you our de- cision in damage cate of schooner Floretta and R. B. King and tug Union. We hold loretta respo.eible tor her own damage through action of her muster, Cap- tain S. Murphy, for giving four different orders, and thus free tug Union from all re- ‘sponsibility. We hold schooner R. B. King responsible for her own damage for not keeping proper lookout. _“WILuiaM KEITH, “WILLIAM Cary.”’ In. the fifth article of the libel, .the fact that the matter was submitted to arbitration and an award made in pursuance thereof is stated, but it is.also alleged that libelant had no notice of the hearing before the arbitra- tora, and no opportunity to present proofs; and also that libelant was induced to sign the agreement to arbitrate by misrepresen- tation made by Higgie, the president of the towing company; and therefore libelant is not bound by the award, and is entitled to recover upon the original cause of action. The only question I deem it necessary to consider is the effect of this submission and award as a defense in this case. I think there can be no doubt that the agree- ment for arbitration in this case is sufficiently fulland explicit to define the controversy and subject-matter upon which the arbitra- tors were to act. It gives the date and place of the collision, the vessels concerned in it, and their owners, and provides for the se- lection of an umpire by the two persons named as arbitratore, if they: cannot agree. The award, on its face, shows that the arbi- trators acted upon the matter submitted to them, and made an award fully within the powers with which they were clothed. The rule as to the effect of an award is stated by Judge Story in his learned work on equity jurisprudence, $1,452: “It is well known that when a suit. is brought at common law upon an award, no extrinsic circumstances, or matters of fact de hors the award, can be pleaded or given in evidence todeteat it. ‘Thus, for example, fraud, partiality, misconduct, or mistake ot the arbitrators is not admissuble to defeat it. But courts of equity will, In al) such cases, grant relief, and upon due proof set aride the award.”’ This award, being within the powers of the arbitrators, must be held final, until set aside by a direct proceeding for that pur- pose ina court of equity; it cannot, as it| THE MARINE RECORD. seems to me, be attacked collaterally in a case like this, The award merges the orig- inal cause of action, and extinguishes the contract or tort on which the right of action was founded. This position is: fully sus- tained by several cases in the supreme court ot Illinois, and by a large number of text- writers, Which I need not take time to quote. Eisenmeyer v. Salter, 77 Ill, 515; Hadda- way v. Kelly, 78 I] 286; Morse, Arb, 490; Story, Ey. Jur. § 1,458; Varney v. Brewster 14 N.H.49. Itis no part of the functions of a court ot admiralty to correct mistakes, reform contracts, or relieve persons from contracts obtained by fraud. It follows, therefore, as a necessary conclusion, that an admiralty court, which is not a court of equity within the meaning of the constitution of the United States, is not clothed with jurisdiction to inquire into the action of these arbitrators, and set aside their award on proof outside of the submission and award itself, for any irregular action on the part of the arbitra- tors, or for any fraud practiced on the libel- ant to Mmduce him to submit the differences in question to arbitration. The only author- ity which seems to support the exercise of such a power by a court of admiralty is the case of Taber v. Jenny, 1 Spr. 815. But in that case the question of jurisdiction was not raised or considered by the court, and I do not, therefore, deem ‘it controlling or binding on other courts. In cases where a submission to arbitrators and award are pal- pably void upon their face, they would fur- nish no bar to proceeding in admiralty on the original cause of action; but it is other- wise when the award js apparently valid up- on its face, and extrinsic facts must be re sorted to for the purpose of avoiding it. It is true that courts of law have in many cases set aside awards when matters pend- ing in a. suit before such courts have been submitted to arbitration, and, either by stat- ute or by agreemert of parties. to such sub- mission, the award was to be made a rule of court, or basis for some future -action by the court. So, too, as in the case of the Sparkle, 7 Ben. 528, when a contract comes before a court of admiralty. in a cause of which it has jurisdiction, it will look into the equities of such contracts and not exe- cute it if inequitable. But there the court has jurisdiction of the subject miter and simply looks into the eonities of the parties under the contract itself, and, finding it inequitnbe, refuses to enforce it. But in this case the parties made a submission of their differences to arbitra- tors voluntarily, so’far as appears upon the face of the papers, when no suit was pend- ing, and if by reason of any extrinsic. facts the award of these arbitrators ought not to be binding, it does not come within the province of a court of admiralty to inquire into these facts and set aside the award, which it must do before it can proceed to the merits of the original controversy, the mere fact that the original cause of action was within the jurisdiction of admiralty does not clothe this court with power to act upon this con- tract of submission and declare it void, be- cause its execution was obtained by the fraud of Higgie, nor to say that the award is inoperative by reason of irregularity or mis- conduct of the arbitrators, or by reason of their mistake or errors of judgment in the matter over whicn they had full jurisdiction, The controversy in this case at present is not whether the tug Union and schooner King, or either of them, are. liable for the damages sustained by the Floretta, but whether the decisiqn of these arbitrators, an independent tribunal to whom the par ties submitted the controversy in regard to those damages, shall stand. Entertaining these views, I have not ex- amined caretully into the proof bearing on the conduct of the arbitratorsin the matter of notice to the libelant, as to the time when they would hear proof and act in the case, nor as to the alleged misconduct of Mr. Hig- gie, by which the libelant was induced to sign the statement, nor have I examined the elaborate report of the commissioner and proofs as to who was blameable for the collision, because I consider those questions are at an end, {if this court has no jurisdiction to inquire into the validity of this award and ils binding eftect. The case will theretore be dismissed for want of jurisdiction, and without prejudice to the libelant’s right to take such action as dismissing the case, however, I shall do it upon the terms that each party shall pay the costs of their own witnesses in the case, because I think this award should have been brought to the attention of the court, and the judgment of the court taken upon it, as to whether it was a bar to further proceed- ings upon the original cause of action, with- out the expense of taking the large amount of testimony which has been put into the record. Each party will be required to pay their own costs, and each pay one-third of the commissioner’s coste, there being three parties to the contest, COPY OF AN ACT TO CONSTITUTE A BUREAU OF NAVIGATION IN THE ‘'REASURY DEPARTMENT. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there shall be in the Department of the Treasury of the United States.a Bureau of Navigation, under the immediate charge of a com. missioner of navigation. : Sxc. 2. That the commissioner of navi- gation, under the directory of the Secretary of the ‘'reasury, shall have general super- intendancve of the commercial marine and merchant seamen ot the United States, so far as vessels and seaman are not, under existing laws, subject to the supervision of any other officer of the Government. He shall be specially charged with the decision of all questions relating to the, issue of registers, enrollments, and licenses of vessels, and to the filing and preserving of those documents; and whenever in title forty-eight or fifty of the Revised Statutes any of the above named documents are required to be surrendered or returned to the register of the treasury such requirements is hereby repealed, and such documeits shall be surrendered and returned to the commissioner of navigation. Said com- missioner shall have charge of all similar documents now in the keeping of the Reyister ot the Treasury, and shall perform all the duties hitherto devolved upon said register relating to navigation. Sec. 8. ‘That the commissioner of navi- gation shall be charged with the supervision of the law relating to the admeasurement of vessels, and the assigning of signal letters thereto, ‘and of designating their official number; and on all questions of interpreta- tion growing out of the execution of the laws relating to these subjects, and relating to the collection of tonnage tax, and to the refund of such tax when collected erroneously or illegally, his decision shall be final, Src. 4. That the commissioner of navi- gationshall annually prepare. and publish a list of vessels of the United States belong- ing to the commercial marine, specifying the official number, signal letters, names, rig, tonnage, home port, and place and date of building of every vessel, distinguizhing in such list sniling vessels from such as may be propelled by steam or other motive power. He shall also report annually to: the Sec- retary of the T'reasury the increase of ves- sels of the United States, by building or otherwise, specifying their number, rig, and motive power, He shall alsoinvestigate the operation of the laws relative to navigation, and annually report to the Secretary of the ‘Treasury such particulars as may, in his judgment, admit of improvements or may require amendment. Sc. 6. That the commissioner of navi- gation shall, under the direction of the Sec- retary of the Treasury, be empowered to change the names of vessels of the United States, under such restrictions as may have been or shall be prescribed by act of Con- gress. : Src. 6. That the commissioner of navi- gation shall be appointed by the President of the United States, by and with the advice and consent of the Senate, and shall receive asalary of four thousand dollards per annum. And the Secretary of the ‘Treasury shall have power to transfer from existing bureaus or divisions of the ‘l'reasury one clerk, to be designat :d as deputy commisioner of naviga- tion, to act with full powers of said com- missioner during his temporary absence from his official duty for any cause, and such additional clerks as he may consider necessary to the successful operation of the bureau cf navigation, without imparing the efficiency of the bureaus or divisions whence such clerks may be transferred. Src. 7. That this aot shall be in force and take effect on and after July first, eighteen hundred and eighty-four. Approved, July 5, 1884, THE VAN STRAUBENZIE. Captain Gunning, of the firm ot Crosby & Gunning, has gone to Port Arthur to super- intend the wrecking operations of the schooner Sir C. T. Van Straubenzie, which went ashore last fall. Advices from Port Arthur say that the wreckers are making fair progress in the work, and hope to have the vessel off inu few days, She will be carried to Sarnia, where the underwriters will either sell or rebuild her. The Van Straubenzie is at present the property of the underwriters, her owners having abandoned her last season when she went ashore, She is said to be in fair condition, and her bill of he may be advised to set aside the award. In| repairs will not be very heavy. ~ SALVAGE IN FIRE INSURANCE, Salvage is one of the terms in use in con. nection with underwriting that hag come from the earliest days of marine practice, but the word has undergone some change in its application in the meantime; at first it wag used to designate solely the compensation paid for services rendered by salvors, others than officers and crew of disabled vessels for rescuing property from actual or im. pending danger on the coasts of seas, and on inland lakes and navigable rivers, and had no reference to the property thus saved, 80 aid rendered to vessels in distress at sea is termed ‘Salvage Services.” Salvage ser. vices are usually: paid for by a certain share of the rescued property to be fixed by and at the digcretion of admiralty courts, where not fixed by Jaw, as is the case in some countries. It is a peculiarity in salvage ser. vices, however, that no salvage is earned un. less the property is saved. The term, however, eventually came to be applied ‘to any remnants under what is known as aconstructive total losa’’ in marine practice, and the compensation paid to salvors was distinguished as “salvage éxpenkes,” which became a subject of general ‘average among the several owners. under certain agreed for contingencies, the insured has the option of abandoning the salvage to his un- derwriters and claiming as for ‘a total loss; the abandoned remnants, upon acceptance of the abandonment, become the property of. the underwriters to be disposed of for their benefit,’ and it not unfrequently oc. curs that good returng .are reached by ju- dicious handling of the salvage, upon the chances of a rising market. Abandonment vriginated in the’ principle of indemnity, which requires that the in- sured shall not be paid the full value of hia insurable interest and at thé same time re- tain such interest, or any portion of it, such . as retaining the salvage after receiving pay- ment for a total loss. “From this same prin- ciple results the doctrine of subrogation, under whick, upon the payment of a loss, total or partial, an equitable right to such interest itself, vests in the underwriters to the extent to which payment may have been - made. 7 ; Under the fire policy the term salvage ‘is used in the sense of safe or saved, and tia discriminately applied alike to the property at risk and tu the insurance covering it. As connected with property under insurance it means that portion, large or small, which may have been saved from, or remain after, the fire ina sound or damaged condition, when applied to the policy it. has reference to any difference between the amount of the insurance and the actual sum paid for loss thereunder, the difference being the sulvag or amount saved upon the insurance. As. the fire insurance cqntract provides for no optional tra.ster, by the insured for salvage property, as in abandonment under the marine policy, except by special agree- ment, ‘the property saved, the salvage, re- mains the property, of the insured and at his disposal after having been duly valued, and to the amount of such value diminishes the claim against the insurers. It may some- times operate to the interest, in vexed claims for loss, to accept an abandonment of the salvage and pay as for 4 total loss; but coin- pulsory abanconment is not recognized in the fire branch, and where, as in the fire policy, abandonment is free, there can be redlly.no salvage as recognized in marine practice. Nevertheless the equitable doc- trine of subrogation of the rights of the in- sured as against third parties, to the insurers, intervenes as in marine adjustments, witness mortgagee insurances, where upon payment of loss to the mortgagee the companies are subrogated to his securities as against the mortgagor to the amount of loss paid. Inasmuch as the larger portion of all fire losses are partial only as to the amount of insurance upon the burned property, thus leaving more or less salvage after the loss, the chances for these savings always enter largely into the underwriters calculation of rates to be charged. upon eny class of hazard offered for insurance. The probable loss in the event of fire becomes therefore a serious question for consideration; the connection between rates on the risk and salvage on the loss becomes an interesting element in fire underwriting that is not comprehended outside of the fraternity.—Jnswrance Society. A CLEVER INVENTION. An inventor has been testing an electrica appliance on board the propeller Von- nemaugh, of the Anchor Line, which pro- mises to prove a valuable assistant of masters in handling their vraft in the rivers or in close quarters, because it informs them how the engines are working. It is known asa “tell ale,” and is placed on the pilot house, juatint tront of the captain’s stand. Itis very much like a clock face or gauge. There is a hand on it which is worked by an electric current carried through the wires connecting with the engine. If the latter are working back- ward the hand indicates the fact on the dial and the same if they are working ahead. When the engines are stopped the hand in- dicates it also. Recently Captain Butlin, Superintendent of the Goodrich ‘Transporta- tion Company, and Mr. Austrian, of the Lake Michigan and Lake Superior Line. ex- amined the machine and said it waa a very clever invention, and would prove valuable aboard of low preasure boats.