The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1892-10-07
ADJUSTMENT OF LOSS.
Judge Hanford Settles Claims
Against the Rapid Transit.
a "MEcHANlc's LEN. DECISION.

suit 20 Compel County Commissioner
to Stop Buildiag Road-A
Big Damage suit.
Judge Hanford,. of the United States
district court, handed down a decision in
the case Of Deming, Burntrager et al.
against the steamer Rapid Transit yester-
day, in which the losses of the various
parties were adjusted and in which he de-
clared that following in the line OF the de-
cisions OF the supreme court of the United
States, insurance on vessel il not q
part OF an owners interest in q shin. and
that there was no proof to support an &C
cusation OF negligence to cause the fire
and subsequent injury to the cargo. On
August IA, 1891. fire occurred on board
the vessel in Seattle. which not only DAM
aged her. but through which part of the
cargo on board was destroyed. Following
Is the decision:
ington, Northern division. Dsming. Burn
TRACER ct al, finelants. W Steamer Rapid
Transit. Elmer Z Csine, claimant No. AZ
In admiralty. Apologize Titiov. for Hbsl.
ants: John H. Elder, for claimant
HAsyoRD, j.
On the 18th day OF August, 1891, the steamer
Rapid Tranat, with . cargo consisting psiuci-
paily OF lime on board suffered damage By frs
In the harbor OF Seattle, and was BY the nre de-
partment OF the city bsachsd and seuttlso for
the purpose OF exsinguishing the flames The
sinking OF tho steamer caused q total destruc-
tion Of the lime. but that was the only method
b. which total loss Of the vessel, q we'll a. the
cargo, could have been prevented, and it was ef-
fectivc. The libelants owned the lime which
was destroyed. and this suit was instituted by
them TO recover the full value thereof upon
their contracts of affreightment
Section 4,2s2, Revised Statutes, United States,
provides that "no owner of any vessel shall be
liable 70 answer for or make good to any person
any loss or damage which may happen to any
merchandise whatever which shall be shipped
taken In OF put on board any such vessel BY rea-
son OF by means Of any frs happening to OF on
board the vessel, unless such IRE ID caused By
design or neglect OF such owner" The claim
ant purchased the vessel after the fire, and he
Claims the protection Of this statute, on the
ground that IL the former owners are By its
terms shielded from liability upon their con-
tracts, the vessel Is also entitled TO immunity
from proceedings In rem. / find that there 10
In the proofs absolutely nothing to support an
accusation against the owners OF any fnten-
the cause of the lrc and consequent Injury to
the vessel and her cargo, therefore the statute
affords complete defense Is against the claim
originally put forth by the ibcllanta
The libelants, however, after total failure to
sustain their original claims for the full value
OF the lime because of the breach of the con-
tracts Of Adreightment, have taken departure
and now assert that they are entitled to recover
aportion Of their losses upon basis Of general
average. All the facts essential TO recovery in
general average. additional to the allegations
contained IN the libels, are set forth In the an
swer. The objections, therefore, that the allo-
cations OF the iibclants are insufficient to mako
case OF general average, II technical rather
than substantial. hold that, although there
nas beeu rsdica! departure, the case N now
developed is one In which the court may law.
fully spportiOn the losses sustained among the
losers IL IL expedient for oil the parties to
Rave their differences growing out OF the trans
action alleged in the pleadings, and which are
cognizable in court of admiralty, fully deter
mined In tina present suit rather than bear the
additional expense and suffer the delay inclden-
sal to commencing anew: and it IL competent
for the court 70 decree "upon the whole matter
before It, taking care to prevent surprise, BY not
allowing either party to offer proof touching any
substantive fact not alleged or denied by him"
dupont do Nemours d Co. W Vance ct al, 10
How, l73l
There is = conflict Of authority upon the ques-
ton as to the right OF an owner of merchandise
which has been. while being carried - freight
upon vessel. destroyed or damaged by water
In consequence OF fire happening on board tho
vessel to partial compensation in general ave.
rage. The arguments for and against tho valid
ity OF such . claim arc very concisely and
clearly stated, and the authorities are colistsd
IN the learned opinion of Judge Jenkins in the
case of the Roanoke, ~ Fed. Rep, 2s7. Rather
tpo ind, I'm, f,,vt boo "A ee
3ect l will rest my decision upon tho authority
OF that case and the decisions which follow.
From the evidence find that the value Of the
steamer Immediately before the fire was SIC, 900,
and the values of different portions Of her cargo
were as follows: Limo, &l,se5: cats, SECS: hose,
$3.50 Total value of vessel and cargo, 3i2,4lo
also find from the evidence that the value of
the steamer in her condition and situation. i'm
mediately after the fire had been extinguished,
was &. 900: In addition to this sum the oats and
Rose were saved, making the total value of
property saved $2.sSl There was lost to the
owners OF the steamer, by damages to the
steamer. $500; pending freight. s2ISs0. The
libelants, Deming & Burn;ranger, iost 700 barrels
of lime worth 500: the Tacoma Trading Com
A /. Aiken, lbs barrels worth si2a Total
amount OF losses. SIo.sa35a On this basis the
saustment viii be decrsed.
The libel ants claim that the amount received
by the owners OF the steamer upon policies OF
insurance should be added TO the value of what
wssssyed to thsm. for the purpose OF increasing
the fund 20 re distributed. But this cannot be
allowed. Tho supreme court of the United
sts;es has. after fun consideration and due de-
liberation 10 q series OF decisions definitely held
that insurance IL not part of an owners inter-
est In ship. tCity of Norwich. lis U. s., 46s:
the scotland, ID .so-; the Great Western, ID 80
Although four Of the judges who participated
in the disposition OF these cases, In carefully
prepared aud welt-reasonsd opinions. dissented.
the decisions must be regarded as declarations
q! the Law 10y the highest co,irt of this country,
aud 10 would 10 unbecoming for this court To
hear from counsel arguments questioning the
therefore decline TO hear arguments upon this
poiat for the reason that those decisions cannot
be by this court overruied or disregsrded.
Considering the failure of the libclsnts 10
sustain the allegations made in their pleadngs.
and tho fact that the expenses OF the case have
been greatly increased by the Introduction on
their part of evidence which IL wholly imma-
iertsl. and thu further fact that no attem OF WAS
made 20 obtain an adjustment in general aver
age before commencing the suit. it 10 my
opinion that 10 would b unfair TO award them
fun costs The decree will require each party
r. pay all fees and expenses of his own wit
nesses: no proctor Zee will 10 taxed. and the
Gbelants will pay Que -third and the claimants
~ o::,hirds OF all other ices and costa
MECHANICS LIEN LAW.
loss OF BuiIding by Fire Not Fatal to