The Stanley H. Miner

• Decision Date: 04 August 1909
• Citation: 172 F. 486
• Parties: THE STANLEY H. MINER.
• Court: U.S. District Court — Eastern District of New York

172 F. 486

THE STANLEY H. MINER.

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

August 4, 1909

Robinson Biddle & Benedict (E. G. Benedict, of counsel), for libelant.

Hagen Goodrich & Coughlan (Henry W. Goodrich, of counsel), for claimant.

CHATFIELD District Judge.

The four-masted schooner Stanley H. Miner was sold by the United States marshal at Southport, N.C., as she was lying upon the shoals opposite Battery Island, in a part of the Cape Fear river where the ebb tide runs with exceeding swiftness. This sale was had in a salvage proceeding, and at the time of sale a considerable portion of the deck load of lumber carried by the schooner had been removed to a lighter, but was sold with the schooner as if a part of her cargo. It appears from the testimony in this case that the vessel had been wrecked outside of the Capes, and when brought in by the pilots claiming salvage, had been left, and had remained in the possession of the marshal, in an upright position, but with her deck load and rails awash. Between the time of her arrival and sale by the marshal, the effect of the mud coming down the river, and of further settling upon the bottom at low tide, was to cause the vessel to careen to starboard, and when prospective bidders at the time of sale attempted to make a visual inspection, as she lay upon the mud flats, they were able to examine above water a portion of the port side alone. The starboard rail was under water several feet, and the masts stood at an angle of about 45 degrees from the horizontal. In this condition, and with nothing more than a superficial examination of all above water, which was uninjured, except for a slight break near the bow, the claimant secured the vessel by a bid of $10,100, and is shown by the testimony to have bought the vessel from the appearance of her port side alone; it being said by the witnesses to follow, in 99 cases out of 100, where no collision or similar accident has occurred, that in a vessel wrecked by a storm one side will be injured substantially no more than the other.

The claimant is an extensive shipowner, with a great deal of experience in purchasing, repairing, and rebuilding sailing vessels. He says in his testimony that he has owned shares in more vessels on the Atlantic Coast than any other man in the United States for within a period of 15 years, and has made greater personal inspection of such repairs than probably any other owner of vessels during a like period. It appears from the testimony that immediately after the purchase of the vessel he arranged by telephone for the services of a diver one Smith, who arrived at Southport within a few days and went to work, as he and claimant's witnesses say, to examine the condition of the vessel under water, and to patch up what he found.

This diver describes the muddy condition of the water and the difficulties of the current, which rendered work during ebb tide substantially impossible, and states as his method of operation a progressive system of inspection, with attempts at repair as fast as he found anything wrong, rather than a complete survey of the vessel before going to work. An uncle of the claimant, one Guilford Pendleton, was sent for from his home in Maine, and upon his arrival was put in charge of the operations and work of the diver, pending a trip of the claimant to New York, from which he returned upon Monday, the 27th day of May, 1907. Upon his arrival he obtained a report from his uncle and from the diver of what had been found and done, namely, that the keel of the vessel was missing from the sternport, which was in place, to a point where the deadwood terminated at the junction of the timbers with the keel of the vessel; that from the stem for some 18 or 20 feet aft the keel was missing, and that this had been patched with canvas and timbers; that for some 75 feet aft of this point the keel was present; that the injuries upon the port side had been temporarily repaired; that nothing had been done on the starboard side; and that the vessel had gone over substantially flat upon her beam ends the night before in a storm.

The result of this consultation seems to have been a determination upon the part of the claimant to immediately proceed to right the vessel as a step necessarily precedent to pumping out. The diver in his testimony states that righting was the next step which had to be taken, inasmuch as it was impossible to get at the starboard side while the vessel rested upon the bottom, and that it was also inconvenient and inadvisable to attempt to then do anything more to the keel, which could not be reached without staging. It also is stated by the claimant and by the diver that they reached the conclusion (from an inspection of the keel, showing it to be substantially intact for a further distance of some 70 feet aft of the break near the stem, and from the fact that the deadwood, and as the diver reported, part of the keel, was present at the stern) that the rest of the keel would be found in place and would not require much repair before the vessel should be hauled out upon the dry dock. The river at the point in question is said to have been so muddy that the diver could see nothing, but was dependent entirely upon what he could learn by investigation with his hands, and his testimony agrees with that of the claimant to the effect that no inspection was made by him, nor reported by him, as to the actual condition of the keel for the 60 or 70 feet remaining.

The claimant proceeded to Wilmington, N.C., some 25 miles up the Cape Fear river, on Monday night, the 27th of May, got into communication with the revenue cutter Seminole and with the Astral, a large tug belonging to the Standard Oil Company, obtained the services of the lighter upon which the deck load had been piled, and two small tugs belonging in the neighborhood, and arranged to have them at the wreck as soon as possible, where they were all to give assistance, including the Seminole and the Astral, if soundings showed that they could get in a position to aid in an attempt to right the vessel by exerting force with tackle upon her masts, and by raising these masts upon lighters.

In fact, some attempt was made to do this with the boats at hand upon the Monday when the claimant was at the wreck; but the power was insufficient to accomplish anything. While at Wilmington the claimant also succeeded in getting in communication with Capt. Tooker, superintendent of the Merritt & Chapman Derrick & Wrecking Company, at Norfolk, the Southern headquarters of that concern, with the result of getting him to leave some work in the Chesapeake region and to proceed to Southport to assist in the operations, under an agreement that his compensation would be determined later. Capt. Tooker joined the claimant at Wilmington upon the evening of Wednesday, May 29th, and they proceeded together upon one of the boats to Southport, where they arrived at about 2 a.m. Thursday, the 30th. On this morning the various vessels above named were preparing to proceed with the operation of raising the vessel, were arranging their hawsers and taking soundings, when the claimant and Capt. Tooker proceeded to the schooner, and both climbed upon the projecting port side, where, in the presence of Mr. Guilford Pendleton, one Weeks, and the diver, Smith, an examination of the situation was had, and the claimant entered into a negotiation with Capt. Tooker, upon the suggestion of Capt. Tooker that the Merritt & Chapman Company contract with the claimant to raise the vessel and deliver her at New York under a contract. The conversation with respect to this is testified to by both the claimant and Capt. Tooker, and some portions of the conversation were heard by the witness Weeks. Capt. Tooker also talked with the diver, Smith, and with Mr. Guilford Pendleton, and the result was that Capt. Tooker made a proposition of $10,000 for the contract, which offer was refused by the claimant, and both men started ashore. Later further negotiations were had, resulting in an offer by Capt. Tooker to do the work for $4,000, and by the claimant to give $3,500, and an ultimate agreement to split the difference. Thereupon both men proceeded ashore and to a grocery store, where a contract was written by the claimant upon a sheet of paper, which agreement was signed by the claimant and by Capt. Tooker for the Merritt & Chapman Company, and which is as follows:

'Memorandum of agreement between Merritt & Chapman Derrick & Wrecking Co., of the first part, and F. S. Pendleton, of New York, owner of the Schr. Stanley H. Miner and her cargo, to wit:

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