The Alaska

• Decision Date: 29 September 1890
• Citation: 44 F. 498
• Parties: THE ALASKA.
• Court: U.S. District Court — Eastern District of Michigan

44 F. 498

THE ALASKA.

United States District Court, E.D. Michigan.

September 29, 1890

Syllabus by the Court

The libelant in a collision suit is entitled to recover such damages as naturally follow from the negligence of the respondent, and to have his vessel restored as nearly as possible to her condition before the collision.

Where the injured vessel was beached after the collision, and a bargain was made for a lump sum to take her off and carry her to a port of safety, and the sum agreed upon was actually paid, held that, if there was no fraud and no want of reasonable judgment in making the bargain, the amount paid was a just charge against the vessel in fault, although it was shown that the vessel might, in fact, have been gotten off for a much less sum. Held, also, that the owner of the injured vessel was entitled to his expenses for coming to look after the wreck.

The practice is also to allow the cost of the survey as one of the incidental expenses of the collision.

The cost of repairs was also allowed, although it exceeded largely the estimated cost, and made the vessel a better and a stronger one than she was before.

Interest upon bills incurred for salvage and repairs is a matter of discretion, and in view of the fact that the vessel was made more valuable by the repairs than she was before the collision, and of some doubt as to whether the entire bill ought to be charged against the respondent, it was held that interest should be refused.

The expenses of a convoy to an injured vessel should not be allowed unless the necessity for such convoy be clearly shown.

This was a libel for collision between the steam-barge Oregon and the steamer Alaska, which occurred on Saturday, November 27 1886, at a point about six miles below Amherstburg, and near the mouth of the Detroit river. The case was suffered to go by default at the hearing, when a decree was entered for the libelant, with the usual order of reference to a commissioner to assess and report the damages.

After the collision the Oregon steamed to Amherstburg in about 55 minutes, and from there was taken across the river, and beached on Bois Blanc island. On Monday she was raised and towed to Detroit. On Tuesday she was placed in the Detroit dry-dock, and temporarily repaired, and on Wednesday she was started for Buffalo; and, after being held at Amherstburg for 12 hours, by reason of an accident to her convoy, arrived at Buffalo on the morning of December 3d, and was moored at Mills & Co.'s dry-dock. On the 8th of December, and while lying in the river at Buffalo, she was inspected and surveyed by three persons, one of whom, Mr. Humble, was chosen by the owners; another, Mr. Parsons, by the underwriters, and the third was Gilchrist, one of the owners. This survey was made about two months before she was placed in dry-dock for repairs. In the mean time, work was being done upon her by her owners.

Prior to her leaving Detroit the owners of the Alaska employed three persons to make a survey of the damages to the Oregon while she was in dry-dock here.

F. H Canfield, for libelants.

S. S Babcock, for claimants.

BROWN J., (after stating the facts as above.)

Upon filing the commissioner's report claimant excepted to the allowance of the following items:

1. To the bill of A. N. Moffat for raising the Oregon after the accident and taking her to Detroit, $750. The testimony shows that a bargain was made with Moffat for a lump sum, and that the bill was actually paid. This makes a prima facie case and renders it incumbent upon the claimant to show either that the money was not paid, which is not attempted, or that there was fraud in the transaction, or that the bargain was not made in the exercise of reasonable judgment. It appears that late upon Saturday evening Gilchrist, one of the owners, came from Vermillion, Ohio, to Detroit, bringing Schuck, one of the other owners, with him. Maytham, another owner, arrived here from Buffalo Sunday morning, the 28th of November, and brought Humble, the foreman of the dry-dock company in Buffalo, at which the work was done upon her, with him. Gilchrist swears that the next day after the collision-- viz., Sunday morning--he saw the Oregon sunk at Bois Blanc island, across the river from Malden. Her nose was drawn upon the bank, but her stern was sunk in deep water. He looked her over, and let the job of raising her to Moffat, at $750; but, before making such contract, he consulted Mr. Murphy, and other Canadian tug-owners. Moffat took his tug and pump and wrecking outfit with him, and went immediately to work pumping her out. They continued pumping until about 12 or 1 o'clock at night, when they stopped, because Moffat thought one pump would not do it, and the Oregon was allowed to refill. Another pump was brought down, but it did not arrive at the scene of operations until after the vessel was afloat. It seems they went to work again in the morning, and got the vessel off about noon, with the pump they had used the day before. Mr. Ashley, one of the owners of the Alaska, swears that he could have got a tug and pump for $150 a day; and, after he learned of the agreement with Moffat, he told Gilchrist he would not ratify it.

There is no doubt that this contract resulted very favorably to Moffat, and that the amount he received was a large compensation for the service actually rendered; but, when a vessel is in a situation in which the Alaska found herself, prompt action is necessary, and much must be left to the discretion and good judgment of those in charge of her. They would have been at liberty to make a contract by the day, which would probably have resulted more favorably to them, or take their chances under a contract for a lump sum. There is no evidence that Mr. Ashley actually offered to do the job himself, although, after the contract was made, he told Mr. Gilchrist that he could have found tugs and pumps at $150 a day; but, even if this offer had been made immediately after the accident, as the vessel then was, it was impossible to say how long the tug would have been engaged in getting her off, or whether she was competent for that purpose. If a bargain had been made for a per diem compensation, it would have been for the interests of the tug to have prolonged the job as much as possible; if made for a lump sum, to do it in the shortest possible time. We are bound to consider, in this connection, that it was as much for the interests of the owners of the Oregon as for the owners of the Alaska that the job should be done as cheaply and expeditiously as possible. The underwriters were also interested in the same direction, and no objection was ever made by them to the payment of this bill. The ordinary rule is that, where a vessel stands in need of salvage services, a contract made by a master for a lump sum will be upheld, unless a clear advantage was taken of his necessities, and the contract was an oppressive one under the circumstances as they existed at the time it was made. I know of no reason why the same rule should not apply in a case of this kind. I see no reason to doubt the good faith of Gilchrist in making this bargain; and, while it undoubtedly resulted unfortunately for him, and incidentally for the owners of the Alaska, it might have resulted equally unfortunately for Moffat, if there had been a sudden change in the weather, or a failure of the pumps to do their work as well as expected, or more serious injuries to the Alaska than there appeared to be at the time. Upon the whole, I am unable to say that there was any want of good judgment in making this bargain. The exception must, therefore, be overruled.

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