In re Thurston, 279.

• Citation: 48 F.2d 578
• Decision Date: 06 April 1931
• Docket Number: No. 279.,279.
• Parties: In re THURSTON.
• Court: U.S. Court of Appeals — Second Circuit

48 F.2d 578 (1931)

In re THURSTON.

No. 279.

Circuit Court of Appeals, Second Circuit.

April 6, 1931.

Single & Hill, of New York City (Forrest E. Single, of New York City, of counsel), for appellant.

William F. Purdy, of New York City (John E. Purdy, of New York City, of counsel), for appellee.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

Appellant's barge sank in the New York State Barge Canal. A marine insurance policy covering the barge provided that in the case of loss a survey should be made by surveyors, one appointed by each party, and, if they failed to agree, an umpire might be appointed pursuant to the United States Arbitration Act, § 5 (9 USCA § 5). An umpire was appointed by the court. After a consideration, he made specifications of the work required to repair the damage and stated how it should be done. The appellant moved to direct him to amend his report, and the appellee moved for a confirmation of the report as made. The order appealed from confirmed the report, but struck out therefrom the following paragraph:

"It is the opinion of the undersigned that the reasonable cost of foregoing recommended repairs will not exceed the sum of $5,889.40, which is the actual financial loss which the assured has suffered by reason of damage sustained in the disaster for which the surveys were made."

The appellant complains of the order confirming the report as modified.

The clause of the policy providing for the appointment of the umpire reads:

"If the surveyor appointed by these Insurers cannot agree with the surveyor appointed by the Assured upon an umpire, either party hereto may apply to the United States District Court for the District in which the home port of the vessel insured hereunder is located, for the appointment of an umpire pursuant to the United States Arbitration Act. The surveyors, or the umpire, if it shall become necessary to name one, shall make specifications in writing, clearly stating both the amount of work and the manner in which it shall be done to make said vessel good in respect of any damage caused by the disaster. * * * Such specifications shall be binding both upon the assured and these Insurers as to the extent of damage and the manner in which the work shall be done, subject, nevertheless, to the policy terms and conditions and the question of whether or not the disaster and resulting loss or damage are covered by this policy."

In this manner, the parties to the policy of insurance in dispute, as to naming the umpire, agree to take advantage of section 5 of the United States Arbitration Act (section 5, title 9, U. S. Code 9 USCA § 5) by petitioning the District Court to appoint one. His duty was to determine the amount of the work and the manner in which it should be done and his determination, to be binding on both parties. By the stipulation of the parties, he was to make no award fixing the amount of damages. His report was solely for the purpose of determining how the repairs should be carried out, and had nothing to do with the amount of the ultimate liability. The specifications were to be binding as to both the assured and the insurer, "subject, nevertheless, to the policy terms and conditions and...