Page:Federal Reporter, 1st Series, Volume 7.djvu/254

 242 FBDKSAL BEPOBTEa.' ' �In the much-oriticised case of Cutter v. Rue, 7 How. 729, (see 6 McLean, 574; 1 Parson's Maritime Law, 333,) it was deciderl by the supreme court of the United States that when cargo sub- ject to contribution in general average is delivered to the con- signee, discharged of the maritime lien for such contribution, the maritime law does not, and the common law does, imply a promise to pay the contribution, and that an action upon a promise implied by the common law, but not by the maritime law, is not a case of admiralty and maritime jurisdiction. But the question here does not relate to a promise resting solely upon a common-law presumption. This is the case of an express contract for the performance of a maritime service. Besides, Cutter v. Bae must be considered to have been over- ruled by the subsequent case of Insurance Co. v. Dunham, 11 Wall. 1, when Cutter y. Rae was vainly relied on to defeat the jurisdiction of the admiralty overa policy of insurance ; for, as suggested by Curtis, J., (Gloucester Insurance Co. v. Young, 2 Curtis, 334,) it would be Somewhat remarkable if the ad- miralty were held to have jurisdiction over an express con- tract to indemnify one for what he might be obligea to con- tribute in a general average, and not to have jurisdiction over an express contract to contribute to the loss. My opinion, therefore, is that Johnson & Higgins can maintain an action in the admiralty to recover for the services and disburse- ments provided for in the average bond upon which they sue. �The only question left to be deterrhined is wh'ether the services and disbursements charged in the adjuetment are within the soope of the agreement, as being in accordance with established usage and the laws of this state in similar cases; and, if so, what is the value of these services and the amount of the disbursements ? Upon all these points the case is devoid of any testimony save only that of Mr. Krebs, one of the firm of Johnson & Higgins, who proveB that the services performed by Johnson & Higgins, in this case^ were such as are usually performed by average adjusters in similar cases, and that the snms charged therefor in their statemerit are a reasonable compensaition for sueh services. �It bas been strenuously contended that these charges are ��� �