84 F. 1000 | D. Mass. | 1898
This case presents questions of the validity of claims to funds in the registry resulting "from a sale of the Lydia A. Harvey. The China Mutual Insurance Company, as as-signee, .claims, a first lien for salvage. December 16, 1896, the Har
I am of the opinion that the insurance company has failed to establish any legal or equitable right to compensation from the fund in the registry. Though there was, probably, no proper abandonment or right to abandon, the company nevertheless interposed for its own interest, and upon the evidence must be regarded as the principal, who, through its employe, and at its own expense, got the vessel off, and brought her to Boston. It acted, not as a voluntary adventurer, but because of its previous contract with the owner, which made it directly interested in the preservation of the vessel. The company was liable, under its policy, for a partial loss. The contention that the loss did not amount to 34 per cent, of the valuation is based upon a deduction of one-third “new for old,” which is not permissible in the present case. Potter v. Insurance Co., 3 Sumn. 27, 45, Fed. Cas. No. 11,335; Wallace v. Insurance Co., 22 Fed. 66, 70. Within the limit of the amount insured, its expense cannot be regarded as incurred for the benefit of all, but must be considered as incurred solely for its own benefit. Providence & S. S. Co. v. Phoenix Ins. Co., 89 N. Y. 559, 563; The Clarita and The Clara, 23 Wall. 1, 17. The company-must therefore stand upon its own rights resulting from its own acts, and cannot increase or alter them by taking an assignment from its own employés, who did not rely upon the credit of the vessel, and who have been paid. It would certainly lead to great confusion if underwriters who are liable for a loss by stranding should be permitted to get the vessel off, acquire a salvage lien, completely reimburse themselves from the vessel, and compel the assured to sue to recover from them the amount, or a portion of the amount, that the underwriters have received from the vessel.
I find it unnecessary to decide whether the company has paid out anything in excess of the amount of its liability, since, if’it has done so, it has only a claim upon the owner, and none upon the fund.
The Non-lien Claims. I think it clear that against the objection of the owner, who petitions for the payment to him of any residue after satisfying the claims secured by maritime liens, the court has no power to distribute the proceeds in payment of claims not maritime liens. The Lottawanna, 20 Wall. 201, 219, 224; The Willamette Valley,