Page:Federal Reporter, 1st Series, Volume 7.djvu/250

288 Phœnix Insurance Company, and which, by the consent of the consignees thereof, were delivered to the Phœnix Insurance Company in New York. After the stranding had become known in New York, and before any property.had bees saved, an average bond was given to Johnson & Higgins, average adjusters, sign.ed by the Phœnix Insurance Company and other parties interested in the cargo, by virtue of which Johnson & Higgins proceeded to receive the cargo as it was brought to New York by the Coast Wrecking Company; ascertaaned the names of the varions owners, and the value of the respective shipments; agreed with all the parties interested, except the Phœnix Insurance Company, as to the amount of salvage to be paid the Coast Wrecking Company; sold such parts of the cargo as could not be identifed; apportioned the expenses among the parties interested in proportion to their respective shares in the cargo; and made an extended statement showing the amount of the expenses incurred for the benefit of all, and the proportion payable by each, and the amount of special charges due for particular interests.

All parties in interest except the Phœnix Insurance Company paid their share of the expenses, as adjusted and stated by Johnson & Higgins. The Phœnix Insurance Company refused to pay, whereupon this action is brought, and the court is asked in this action to ascertain the proper amount of salvage due for the saving of the cargo insured by the Phœnix Insurance Company, and to decree thst such salvage be paid by the Phœnix Insurance Company to the Coast Wrecking Company; and also to decree that Johnson & Higgins recover of the Phœnix Insurance Company the proportionate share of the salvage and expenses above mentioned, as adjusted and stated in pursuance of the average bond, namely, the sum of $9,985.62.

In regard to the claim of the Coast Wrecking Company, the contention on the part of the defendant is:

(1) That although the services of the Coast Wrecking Company extended over a period Of 37 or 38 days, beginning on the fourth of January, their services to the cargo ended on the twenty-eighth of January, when all the cargo that was saved had been removed from the vessel and was in warehouses at Staten Island; that none of the services rendered subsequent to that time were for the benefit of any of the cargo, and that as to those services the defendants are not liable for any part performed subsequent to the time when the particular goods insured by them were Stored at Staten Island.

(2) That the amount of expense incurred and labor performed by the Coast Wrecking Company is overstated; that their property was not put in peril, and their labor performed at no risk of losing proper compensation therefor, and that they have been overpaid by what they have received from the other parties interested in the cargo.

In regard to the first ground of of contention, I remark that if it be assumed that the services performed by the Coast Wrecking Company, during the 37 or 38 days they were