Coast Wrecking Co. v. Phoenix Ins. Co.

• Decision Date: 08 July 1882
• Citation: 13 F. 127
• Parties: COAST WRECKING CO. and others v. PHOENIX INSURANCE CO., of Brooklyn.
• Court: U.S. District Court — Eastern District of New York

13 F. 127

COAST WRECKING CO. and others v. PHOENIX INSURANCE CO., of Brooklyn.

United States Circuit Court, E.D. New York.

July 8, 1882

George A. Black, for libelants.

Thomas E. Stillman, for respondent.

In this case I find the following facts:

The libelant the Coast Wrecking Company, at the times hereinafter mentioned, was a corporation created by the State of New York, and authorized to own and hire vessels, and use them in salvage services. It had a capital of $222,000, invested in steamers and wrecking material, and a store-house, and from 33 to 35 men constantly employed, with an experienced superintendent, receiving a salary of from $4,500 to $9,000 a year, and its men and vessels were always ready to start at an instant's notice for the relief of a vessel in distress. The Phoenix Insurance Company, the respondent, was and is a corporation authorized to carry on, and carrying on the business of marine insurance. The libelants Johnson Higgins, and Krebs were carrying on the business of average adjusters in the city of New York, as copartners, under the firm name of Johnson & Higgins.

On the first of January, 1879, the steam-ship Vindicator sail from Fall River, Massachusetts, with a general cargo of merchandise on board, bound to Philadelphia. On the fourth of January the Vindicator stranded on the shore of Long Island near Moriches, and became in great danger of ultimate total destruction, with her cargo. She was stranded just inside of the outer bar, heading towards the beach, with her stern to the inside of the outer bar, very low down in the water listed to port about 45 deg., and covered completely with ice. The place where she lay was about 70 miles from the nearest harbor, and was one of the worst spots on the Long Island shore for rendering assistance. The weather was very cold, and ice formed all over the vessel. The lower hold was entirely full of water, and in the between-decks the water was as high inside as it was outside, and she was completely full at high water on the port side.

The Coast Wrecking Company, through its system of shore agents received at New York, on the day that the vessel was stranded, notice of the fact through a telegram from its coast patrol. On the same day the company sent out from New York its steamer Relief and the schooner John Curton, with men and materials for the relief of her vessel and cargo. The Relief and the John Curton arrived along-side of the Vindicator at 3 o'clock on the morning of January 5th. W. Clyde, the owner of the Vindicator, arrived on board of her early on that morning and conferred with her master and with the agents of the Coast Wrecking Company in regard to saving the property. A steam pump was put at work at 6 o'clock P.M., and was kept at work through the night, and on the morning of the 6th another large steam-pump was put in, and both pumps were worked during the night of the 6th, but they had no effect in reducing the water in the vessel, and work with them was discontinued. On the evening of the 5th the schooners S.L. Merritt and H.W. Johnson, owned or controlled by the Coast Wrecking Company, were sent to the Vindicator by that company. On the morning of the 6th the company commenced discharging the cargo of the Vindicator into schooners. The schooners, as fast as they were filled, were taken to a store-house on Staten Island, owned by the company, and their cargoes were there unloaded. The crew of the Vindicator were discharged on the sixth of January. The Coast Wrecking Company, by its representatives, employed laborers from the neighboring settlements, who assisted the officers and crews of the Relief and of the schooners in discharging the cargo. A few days after the discontinuance of the pumping the Coast Wrecking Company made an examination of the outside of the Vindicator through divers, and found nothing on the outside to show any breaks along the seams. Before the twenty-ninth of January nearly all of the cargo was out of the vessel, and in the store-house at Staten Island. Some cargo was taken from the Vindicator on the thirtieth and thirty-first of January, and on the first and second of February. On the eighth of February an examination of her hull, inside and out, was made by divers. Her keel was found to be broken in several places, and her bottom to be badly injured under her boilers. It was then determined that she could not be saved, and the Relief returned to New York with the John Curton on the ninth of February, taking with her strippings of the Vindicator, with several hundred dollars. On the twelfth of February the Vindicator broke up and came on shore.

Among the cargo of the Vindicator were 341 bales of print goods consigned to the Eddystone Manufacturing Company: 8 cases and 8 boxes of yarn, consigned to Hall & Co.; and 12 cases and 2 boxes of hats, consigned to Lippincott, Mitchell & Co. All of these goods were insured by the Phoenix Insurance Company, and the consignees of them abandoned them to that company shortly after the stranding of the Vindicator, and that company accepted the abandonment. On the tenth of January, 1879, the Phoenix Insurance Company, with other owners of cargo, signed an average bond, of which the following is a copy, the part put in brackets in this copy being in writing in the original, and the rest being a printed form, there being no brackets in the original:

'Average Bond. Whereas, the (steamer Vindicator,) whereof (Rogers is) master, having on board a cargo of merchandise, sailed from the port of (Fall River) during the month of (January inst.) bound for (Philadelphia,) and in the due prosecution of her said voyage (encountered heavy weather, and got ashore near Moriches, Long Island, where she now lies. When news of the disaster was received at New York the Coast Wrecking Company's vessels and men were sent to the steamer, and the cargo is now being discharged and sent to New York. The owners and agents of the steamer Vindicator are hereby authorized to settle the salvage for any sum that may be agreed upon between the salvors and underwriters in New York or Philadelphia interested, or, in the event of a suit, for such sum as may be awarded by court,) by which means certain losses and expenses have been incurred, and other expenses hereafter may be incurred, in consequence thereof, which, according to the usage of this port, may constitute a general average, to be apportioned on the said vessel, her earnings as freight, and the cargo on board said vessel, and other charges thus incurred, may apply to and be due from specific interests. Now, we, the subscribers, owners, shippers, consignees, agents, or attorneys of certain consignees of said vessel and cargo, do hereby, for ourselves, our executors, and administrators, severally and respectively, but not jointly, or one for the other, covenant and agree to and with (Johnson & Higgins) that the loss and damage aforesaid, and other incidental expenses thereon, as shall be made to appear to be due from us, the subscribers to these presents, either as owners, shippers, consignees, agents, or attorneys of certain consignees of said vessel or cargo, shall be paid by us respectively, according to our parts or shares in the said vessel, her earnings as freight, and the said cargo, as shall belong or be consigned to us, or shall belong or be consigned to any person or persons with whom we are co-partners, agents, or attorneys, or in any manner concerned therein, provided such losses and expenses before mentioned be stated and apportioned by Henry W. Johnson, A. Foster Higgins, (and William Krebs,) average adjusters, in accordance with the established usage and laws of this state in similar cases. And we do further bind ourselves to furnish promptly, on request of said adjusters, all such information and documents as they may require from us to make said adjustment. And for the true performance of all and singular in the premises, we do hereby severally bind ourselves, our respective heirs, executors, and administrators, to the said (Johnson & Higgins) in the penal sum of (ten thousand ($10,000) dollars) lawful money of the United States. In witness whereof we have to these presents set our hands in the city of New York this (tenth) day of (January,) in the year of our Lord one thousand eight hundred and seventy-(nine.)'

The Vindicator was a large and valuable ocean steamer built of iron. The total value of the cargo saved was $41,340.37, in its damaged condition. The total value of the strippings saved from the wreck was $718.62. There was no freight saved. The cargo saved was owned by 124 different interests. The principal interest in the saved cargo was that of the Phoenix Insurance Company. Of the 341 bales of print goods consigned to the Eddystone Manufacturing Company, and insured by the Phoenix Insurance Company, 339 were saved, of the value, as damaged, of $12,442.14. A part of the yard insured...