Page:Federal Reporter, 1st Series, Volume 7.djvu/253

 COAST WEBCKING CO. ». PHŒNIX INS. 00. 241 �enough to cover proper compensation for those services per- formed by Johnson & Higgins which were incident to the ascertainment and adjustment of the proportionate share of the losses and expenses incurred by reason of the disaster chargeable to such interest. �The next ground of objection to a recovery by Johnson & Higgins in this action, upon the average bond in question, is that such a contract cannot give rise to a case of admiralty maritime jurisdiction. No authority has been cited in sup- port of this position, and it is, in my opinion, without founda- tion in authority or reason. There is no doubt, I suppose, that the services provided for in the average bond are serv- ices which, if perfonned by the ship-owner, would be within the line of duty imposed upon him by his contract of af- freightment, for New York was not the port of delivery of this cargo, and the ship-owner continued to be responsible for the preservation, care, and safe custody of the cargo until it was accepted by the consignees, or until that responsibility was shifted from the ship-owner by the action of the con- signees. �In the absence of an agreement on the part of the con- signees with Johnson & Higgins, the ship-owner would have been required to perform preeisely the service that was per- formed by Johnson & Higgins under the agreement in ques- tion. That service, if performed by the ship-owner, would certainly have been maritime in character, and it is not seen how any change in the character of the service was effeoted by making it the subject of a written agreement with John- son & Higgins. The consignees consented that Johnson & Higgins should do what, in the absence of such consent, the ship-owner would have been compelled to do, and for which the ship-owner would have been entitled to ask the defend- ants to contribute. The object of the agreement was to se- cure the performance, by Johnson & Higgins, of a maritime service that forms part of every contract of affreightment wherein the agreement is to pay "freight and average accus- tomed," and the contract is to my mind as clearly maritime as is a charter-party or a bill of lading. �v.7,no.2-16 ��� �