Phipps v. The Nicanor

| U.S. Circuit Court for the District of Southern New York | Dec 12, 1890

L.vcombe, Circuit Judge.

To all arguments based upon the payment of salvage by cargo owners, in order to obtain free delivery of their goods, the sufficient answer is that libelants made no such payments. The salvors asserted no lien upon the goods; their claim was settled by the ship, whose agents, at the captain’s request, paid the salvage award and cleared the goods from any lien for such service. The captain made no attempt to bind the cargo or the owners by his agreement with the sal-vors. Instantly, upon the fixing of the amount due to them, he procured the funds upon the ship’s responsibility from its agents and paid the salvors. Bo far as the ship was concerned, her whole contract of carriage was fully performed. She delivered the goods to consignees in good order, and free from any lien or incumbrance. It is true that she herself asserted a claim for the proportionate amount of the salvage she had paid, and of certain other expenses connected with the stranding; but there is nothing in the evidence to show that she sought to compel payment of this claim by any duress of goods. To any action upon such claim, whether hacked by a general average bond or not, negligence causing the stranding would be a full defense. Nay, more, the ship could not establish such claim upon proof of the bare fact that she stranded; she would have to show sufficient of the attending circumstances to warrant the inference that she stranded without fault. There is nothing to show any concealment or misrepresentation on the part of the ship, and if the libelants did not have full knowledge of all the facts attending the stranding, they had in the marine protest, and in the excerpt therefrom prefixed to the average bond, sufficient to inform them that the ship went ashore while making her way up the Jersey coast on an inshore tack (when his recorded observations should have shown the master that she was making in towards shore) in thick weather, and without using the lead. The libelants are chargeable not only with what they knew, but with what their available means of knowledge would have disclosed to them. Having paid the ship’s claim for contribution, voluntarily, with these facts before them, they cannot now insist that the ship shall repay it to, them, upon the theory that when they paid it they were mistaken in supposing that the ship, whose stranding, not being in itself a sea peril, was prima fade negligent, could show that she used due diligence and proper skill to avoid the accident, and that it -was inevitable.