56 F. 721 | S.D.N.Y. | 1893
The above libels were filed to recover compensation for salvage services rendered by the libelant to the steamship Alert, which, on the 21st of November, 1802, was stranded not far from the mouth of the Magdalena river some five miles from Savanilla.
The Alert was a Norwegian steamship, which had been chartered by Mr. Vengoechea of New York, under which she had taken a cargo of general merchandise to be carried to Carthegena, Savan-illa, and Santa Marta in South America, and was to bring a return cargo from the same polls. All except 100 barrels of her outward cargo was discharged at Carthagena and Savanilla, where she also took on board about 55 per cent, of her return cargo. She was stranded between the latter port and Santa Marta. The master on inquiry at Savanilla and Barranquilla being unable to find any means of assistance, under the advice of the charterer’s agent there, and on the advice of the agents of the general marine underwriters, sent a telegraph to New York for help, received on November 30th by Hurlbut .& Co. of New York, who were the general agents of the Norwegian owners. The next day the respondent Flood, the general agent of the underwriters on the hull in Norway, received a cable dispatch directing him to look out for their interests; and on the 2d of December, after receiving the refusal of the
On the áth of December the Eight Ann set out for Barranquilla, taking in additional coal at .Norfolk. After leaving the latter port, site met with some accident which required her to put hack to Norfolk again for repairs, which caused a few days’ further detention, after which site proceeded to tfavanilla and arrived near the stranded vessel on the 22d of December. The beach there was very sloping, and of soft yielding sand. The Alert had drifted about two miles from her first position, and was then high up on the beach, with only about, six feet of water around her, except in the bed or cradle in which she lay; and the tug could not approach nearer than about three-quarters of a mile of her. A. lighter was procured at Barranquilla, and additional chain cables and hawsers, and anchors were got out and properly attached. Upon the first attempt, after moving die vessel a short distance, the hawser was broken; and, in the bad weather of the few dais following, the vessel went back head on to the beach, in a worse position than before. Upon the second attempt a few days afterwards, and sifter a continuous strain upon the hawsers of about 10 hours, the Alert was worked out of vhe sand so as to float, and was taken to the harbor of Barranquilla. During this time the vessel had not leaked and her cargo was not injured, No accident had happened to her, except during the last haul, when a mishap caused some injury to the stern and rudder post, but not any serious damage; and the vessel and cargo were subsequently towed by the Right Arm to Hew York. The proceeds of the vessel were $21,000; of (he cargo, nearly $80,000. The libelants claim'to recover the stipulated 50 per cent, upon these values. The actual expenses of the libelants’ expedition are proved to have been bel,ween $10,000 and $11,000.
In behalf of the owners of (.he steamer it is contended that the contract fixing (he compensation at 50 per cent, of the value of the vessel and cargo is excessive and exorbitant, as the cargo has turned out; and that 1he contract was made under a mutual mis-tiike pf fact, namely, upon the supposition that only a small amount of cargo was on. board, to wit, the 100 barrels designed for Santa Marta, whereas in fact the Alert had taken on board about 55 per cent, of her return cargo at the ports of Garthagena and Savan-illa. The insurers of the cargo make the same defense; and they also contend that the contract made does not purport to bind, and does not hind, the owners of the cargo at all.
1. Mutual Mistake. Although it is no part of the jurisdiction of
But these considerations are applicable but slightly if at all to contracts, which, like the present, are made upon land, between parties dealing upon equal terms, with full opportunity for deliberation, with equal knowledge of the facts, and under the ordinary conditions of nonmaritime contracts.. Such contracts shok' be treated like other voluntary, deliberate contracts for a specific servi. Bondies v. Sherwood, 22 How. 214; The Agnes I. Grace, 2 C. C. A. 581, 51 Fed. Rep. 959.
The contract in this case was made with deliberation and with the utmost fairness. Everything known to either was apparently communicated to all concerned. The evidence does not show a case of mistake at all; but only uncertainty as to the amount of cargo on board. This uncertainty is shown to have been present in the minds of all the contracting parties, befor,e the contract was signed. The contract was evidently made in view of that very uncertainty, and the intent was to give the libel-ants the benefit of it, if they would take the risk of the expedition. The evidence indicates that the most common practice of vessels trading at those ports was not to take in the return cargo until after completely discharging at the most distant port, and to stop at the intermediate ports on the way.back for
Before the contract was signed on December 2d, all the parties knew that the charterer in Yew York had received from the Alert, or her agent at Barranquilla,, the following telegram: “Steamship Alert sailed, fair cargo, 20th November; it is reported aground at Bocas de Ceniza; may be got oft'; we can give no assistance whatever.” The substance of this telegram was cabled to the libel-ants’ agent at Yew Bedford on the 1st of December, stating that the cargo was “probably hides and coffee;” and that surmise was correct. The telegram was again shown to the libelants’ represent-alive when he came to this city on the following day and made the contract for “50 per cent, of the vessel and cargo.” The plain moaning of that telegram was that the steamer Alert had sailed with, a fair cargo on board on the 20th of November; that is, from the port; of Columbia, the harbor of Savanilla. for Santa Marta. It is as explicit as would be naturally expected in an expensive cablegram. It was designed to report the vessel ashore, and that no assistance could be got there. The only imaginable reason for slating that she had sailed with a fair cargo on the 20th of November was, that the charterer here might know from the tele-igram the general condition of the ship and cargo, sufficiently to constitute a basis for obtaining assistance here. I cannot, therefore, give any force to the suggestion of the respondents that they thought the words “fair cargo” might refer to a cargo merely engaged at Savanilla, and expected to he taken on board on the return trip. It is plain that the libelants had no such, idea; and on their part there was no mistake.
Though the contract was made on the 2d December, the Bight Arm did not sail until the 4th of December, nor did she leave Norfolk until several days thereafter. On the 3d, however, a further telegram appeared in the maritime miscellany of the Yew York Herald, which was seen by the defendants, stating- that the Alert had 600 tons of cargo on board for Yew York, though this was in excess of what she actually had. After this there was abundant opportunity before the Bight Arm sailed for either of the defendants to have sought a modification of the contract on the basis of that information, and to notify the libelants, if the Santa Marta cargo had been in fact the basis of the contract Yet no such notice was given, nor any attempt made to modify the contract. After such information, to wait until the other party performed the contract, would in equity estop the defendants from any subsequent rescission or reformation. Subsequent telegrams contained contradictory statements in regard to the amount of cargo on board and whether it was landed or not. The Merritt Company had absolutely refused to send out any expedition for a compensation of 50 per cent, of its value, because 50 per cent, on the ship
The evidence on the whole, therefore, seems to me clearly to disprove the claim of the defendants that there was any mutual mistake as to the cargo. The amount of the cargo and the precise situation of it were indeed uncertain; but it is manifest that the libelants contracted on the faith that there was a considerable amount of cargo on board; and the telegram as regards a “fair cargo” on sailing from Savanilla, was from a trustworthy 'authority, not fairly admitting of question or reasonable doubt. Whatever uncertainty there was, was distinctly recognized as existing, and each took the chance of it. Mr. Mood, the agent of the charterer who personally attended chiefly to the negotiations and the making of the contract on the part of the defendants, does not complain of the least unfairness in making the contract; and on the return of the ship he congratulated the libelants not only on their success, but on the amount of cargo which was on board, and the fortunate pecuniary results of the expedition.
2. Amount. As respects the ship, which was fully represented in this contract by the signatures of both her owners and her insurers, there is no reason for disturbing, the contract price; for the contract was made not only upon equal terms, but upon the fullest deliberation, and after consultation with others, and as the best thing that could anywhere be done with persons best able to attempt the relief of the ship.
As respects the cargo, though the contract mentions that the libelants, “if successful in delivering the steamer at New York, are to receive 50 per cent, of her value, including cargo, stores, and inventory;” yet the contract is not signed by any persons purporting legally to represent the cargo, or to be interested in the cargo. The libelants knew that they were dealing only with the “agent for the owners” of the Alert and with the “agent of the underwriters of the vessel.” There is no language in the “contract,” so called, by which either of the defendants undertook to pay this 50 per cent. a,t all; much less to pay it personally; while there is an express provision that the $2,500 was to be guarantied and paid by Hurlbut & Go., whether successful or not; the guaranty being waived in case of delivery at New York. The fair meaning of this paper, called a “contract,” but which in form was only a letter, addressed by the libelant corporation to Mr. Flood, as agent for the marine underwriters, and which he and Hurlbut & Co. afterwards signed at the foot, is not that the latter personally agreed to pay 50 per cent, of the value of the vessel and cargo; but that they, as representing the shipowners and the insurers of
I do not find any sufficient reason, however, to disallow lire same percentage as respects the cargo; and this for several reasons. Considering the great distance at which the services were to be rendered, the perils, the uncertainties, and the heavy expenses attending it, and the doubts about its success; the rejection already made of a similar offer by the larger Merritt Company, in consequence of these very uncertainties and necessary expenses; the impossibility of obtaining assistance in South America, or of ascertaining precisely the amount, value, or condition of the cargo; the considerable time that must elapse before the Sight Ann could reach the stranded ship and get So work; the danger of great injury meantime to whatever cargo was on board, and its great depreciation in case the vessel should have sprung a leak before the Eight Arm should reach her, or before she could be got off; and in case of the necessary landing of a part of the cargo, the large local charges, as well as the expenses of recovering and reloading it— all these conditions made the final result such a lottery of chances, as to lead me to doubt whether the contract would not have been a fair and proper one, and as favorable to ship and cargo as could have been procured, even if the precise amount of cargo on board had been known.
But besides this, it does not appear on behalf of the insurers of. the cargo, that any steps whatever were taken in their own behalf, or any protest or dissent from this contract expressed or made known by them until after the service had been performed and the vessel had arrived in INew York with her cargo safe and sound. Considering the fact, which the evidence shows, of the extent to which this disaster and its general conditions were immediately made known in all the principal maritime ports and exchanges in different countries, it is incredible that the owners and insurers of the cargo, as well as the owners and insurers of the ship, did not have notice of the stranding, and of the danger of the Alert and of her cargo. It is not improbable that the insurers of the cargo knew of the efforts that were making- by Mr. Flood, as agent of the insurers of the hull, for the relief of the ship, and that they acquiesced in those efforts. The fact that they took no steps on their own behalf to do anything to save the cargo indicates that they were willing to leave that matter wholly to the owners of the hull or to the master, as the case might be.
Looking at all the circumstances, as they existed and were appreciated at the time when this contract was made both as regards the ship and cargo, and the interests, risks and reasonable apprehension of all parties, I think any interference by the court with the enforcement of a contract so fairly and deliberately made and executed as this, would, as a matter of general policy, be productive of more harm than good; and that the contract rates should apply, as they were intended to apply, to both ship and cargo.
Decree accordingly against the Alert, with costs; and for dismissal, with costs, in the suit in personam.
(June 28, 1893.)
BROWN, District Judge. Since the foregoing decision, a further question has been submitted in respect to the mode of ascertaining the value of the cargo, for the purpose of compensation, about which a difference has arisen. The libelants’ offer provided that if the vessel were delivered in Hew York, the libelants should have “half her value, including cargo,” etc. The libelants contend that this entitles them to half the gross value of the cargo in the Hew York market, without any deduction for liens or charges thereon. The matter is to be viewed, however, as a salvage operation; as an endeavor to save what could be saved, and to stipulate for half of what might be realized. The arrangement does not import anything substantially different, as respects cargo, from what it' would have been, had the parties agreed that whatever cargo was brought in should be equally divided between the owners and the libelants; and in that case plainly any liens upon the half coming to the salvors must be discharged out of their own half of the cargo; and the same adjustment should be made in regard to the money proceeds. Whatever customhouse duties may be charge