Opinion
July 12, 1932.
Hunt, Hill Betts and John W. Crandall, all of New York City, for libelants.
Burlingham, Veeder, Fearey, Clark Hupper, William J. Dean, and Roscoe H. Hupper, all of New York City, for United American Lines.
Douglass C. Lawrence and Sawyer Thompson, both of New York City, for Frank B. Hall Co. and other respondents.
In Admiralty. Libel by Kohler Chase and others against United American Lines, Inc., and others. On exceptions by libelants and respondents to the report of a special commissioner.
Exceptions overruled.
See, also, 46 F.2d 178.
The report of the special commissioner was as follows:
To the Honorable the Judges of the United States District Court for the Southern District of New York:
I, Wharton Poor, Special Commissioner, do hereby report as follows:
On December 3, 1930, an order was entered herein referring this cause to me as special commissioner to hear the same and to report thereon to the court on or before June 1, 1931. As the parties were not ready to proceed with their testimony, various orders were entered extending the time within which my report should be filed; the latest order, entered January 2, 1932, extending the time to and including April 4, 1932.
Hearings were held before me on June 26, 1931, on August 11, 1931, on October 15, 1931, on January 8, 1932, on January 13, 1932, and on February 11, 1932. At the hearing last referred to the case was summed up and memoranda discussing the facts and law were submitted by all parties.
Four witnesses appeared before me and gave oral testimony. It was stipulated between the parties that letters and affidavits might be received in evidence with the same effect as if the witnesses had appeared in person and testified but subject to objection as to relevancy. The libelants offered 38 exhibits, some of which are extremely bulky, and the United American Lines, respondent, offered 25 exhibits.
The libel is brought by the four firms mentioned in the title against the United American Lines, Inc., the firm of Balfour, Guthrie Co., Monks, Goodwin Shaw, Inc., and Frank B. Hall Co., Inc.
The libelants were consignees of various commodities shipped on board the steamship Sudbury at New York in October, 1920, to be delivered at San Francisco, Portland, and Seattle. While on the voyage a fire broke out on the Sudbury, to extinguish which steam was injected and water poured into her holds. The effect of this was to damage the libelants' merchandise.
The master's efforts proved successful, with the result that the Sudbury reached San Francisco in the latter part of December, 1920, and discharged her cargo. In order to secure the payment of general average, the libelants were requested to, and did, sign certain general average agreements, which will be referred to further in their proper place.
An adjustment of general average was prepared by Frank B. Hall Co. and issued in August, 1924.
Libelants do not assert that the case is not a proper one for general average. Their claim is that the amounts shown due them in the adjustment are not sufficiently large, and they ask for a decree in the amount of $27,386.75, which they state is the amount to which they are entitled. There is about $4,634.91 difference between the amount claimed by libelants and the amount found due them in the adjustment.
The principal complaints of the libelants are listed in article XIX of the libel. It is there said that in the adjustment, as prepared by Frank B. Hall Co., a part of the cargo was valued at invoice plus 10 per cent., whereas market value was taken for the ship and for the remainder of the cargo; that the allowance of fees to the adjusters and their associates was improper and excessive; that "the adjusters, in arriving at the value of the libelants' goods in their damaged state, refused to deduct the expenses of the libelants' underwriters in handling the said goods, from the sale price." Certain other complaints were made which appear to me of less moment; i.e., that the adjustment was prepared by an adjuster other than the one named in the average agreement and that the adjustment was made in New York instead of San Francisco. In the argument some further claims were made which are not specified in the libel. The principal one of these is that the adjusters did not make sufficient or proper allowance for damage to the libelants' goods.
The bills of lading under which the cargo was shipped contained a clause reading as follows: "General Average shall be payable according to York-Antwerp Rules, and as to matters not therein provided for, according to the laws and usages at the Port of New York."
As will be seen from the reference to the libel, supra, at least two claims of the libelants are general in nature: (1) That the adjustment should not have been made in New York; and (2) that it should not have been made by Frank B. Hall Co., Inc., because Frank B. Hall Co. was not originally named as adjuster in the average agreements.
I feel obliged to regard these objections as unavailing. It seems to me that, if Frank B. Hall Co. made a proper adjustment, and if the libelants were not pecuniarily prejudiced by reason of the fact that the adjustment was physically prepared at New York rather than at San Francisco, they are not entitled to relief. As will be pointed out more at length, infra, the real party in interest in this suit, in so far as libelants are concerned, is M.C. Harrison Co., general agents at San Francisco of the St. Paul Fire Marine Insurance Company, which insured the shipment. On June 21, 1922, M.C. Harrison Co. wrote Frank B. Hall Co. inclosing claim of the St. Paul Fire Marine Insurance Company's assureds. This included the claim of the libelants in this case. On July 5, 1922, this letter was replied to, questioning Mr. Harrison's claim for "services and expenses" in the amount of $1,887.50. This was followed by further correspondence dated July 5, 7, 10, and 17, 1922. In none of these letters was any objection taken to the adjustment being made out at New York, and the first letter, as will have been noted, was addressed to Frank B. Hall Co.
These two objections seem to me academic, and, perhaps, call for no further discussion. But, even if their moot nature were disregarded, I should still consider that they could not be sustained.
As regards the adjustment in New York, it will be noted that the bill of lading incorporates the customs and usages of that port, from which the vessel sailed. This, it seems to me, would be sufficient, standing alone, to authorize the making up of the adjustment here. The cargo was destined for many ports on the Pacific Coast, and an adjustment could not, of course, be made up at each of them. The adjusters appointed agents on the Pacific Coast to appraise the goods and handle them physically in so far as was necessary. The work done in New York was of a clerical nature, including, of course, the application of the law and usages to the facts as ascertained. I am therefore inclined to regard this objection as trivial.
As regards the objection that the adjustment should have been made by Monks, Goodwin Shaw, Inc., and not by Frank B. Hall Co., Inc., it will be noted that Monks, Goodwin Shaw, Inc., was a corporation, the control of which might at any time be changed. There is no evidence that Monks, Goodwin Shaw, Inc., had in its employ any supremely competent average adjuster whose services were lost because the adjustment came out under the name of Frank B. Hall Co., Inc. I do not regard the naming of a corporation or partnership as average adjuster in a general average agreement as at all comparable with a contract with some famous artist to paint a picture. Libelants' counsel concedes: "We have not been able to show any tangible damages arising from the change in adjusters."
The adjustment was actually prepared by Mr. Miller, at that time in the employ of Frank B. Hall Co., Inc. Libelants claim that Mr. Miller's experience was not sufficient; however, he testified before me, and I consider that he was competent in the premises. The preparation of the adjustment was under the general supervision of Mr. Dorff, an experienced adjuster, now dead. If Mr. Miller, employed, as he was, by Frank B. Hall Co., Inc., and working at New York, made a correct adjustment, I am unable to see how the libelants have any just cause of complaint.
Libelants also make other more concrete complaints.
It is said that the fees allowed the adjusters, their agents and representatives, were excessive. Frank B. Hall Co., Inc., was allowed a fee of $16,571 for their work as adjusters; this, as I understand it, also covered any preliminary work done by Monks, Goodwin Shaw, Inc. Balfour, Guthrie Co. were allowed a fee of $6,000. The work of Balfour, Guthrie Co. was chiefly in connection with obtaining security from the cargo owners. Seale Co., who acted as appraisers, were allowed a fee of $9,000 plus expenses of $722.68.
The work required for the preparation of this average adjustment was evidently enormous. The adjustment is contained in two large volumes, and covers 2,151 pages. The Sudbury had aboard cargo destined for most, if not all, of the principal Pacific Coast ports. The burden of proof is on the libelants, and on the testimony in the record I find that they have not shown that these fees or charges were excessive. The work was, of course, done at a time when prices were much higher than they are now. The criticism is made that Balfour, Guthrie Co. and Seale Co. should not have been employed; that this work should have been done by Frank B. Hall Co. themselves. The obvious answer to this is that, if Frank B. Hall Co. had undertaken to do the work performed by these other parties, the charges of Balfour, Guthrie Co. and Seale Co. would merely have been added to Frank B. Hall Co.'s fee. I find that there was no duplication of work, and that the amounts charged were not improper.
It is also claimed that it was improper to ascertain the value of ship and cargo by different methods. The average agreements, which at least some of the consignees signed, contained a clause reading as follows: "It is further agreed that the amounts made good in general average and the contributing values are to be based on the invoice value plus 10%."
It is argued that by virtue of this clause the ship, as well as the cargo, should be valued on the basis of her "Invoice value." Counsel for libelants frankly states that "we know of no such thing as an invoice value of a ship; at least we have never heard of it." (Memorandum, p. 15.)
It seems to me that the clause very clearly applies to cargo only, and not to the ship, since the cargo has an invoice value, whereas a ship does not. I find no difficulty at all in interpreting the clause to mean that, and I should regard an interpretation of the clause as including the ship and/or freight as absurd.
The further criticism is made that the adjustment shows that some cargo was valued on the basis of market value and other cargo on the basis of invoice plus 10 per cent. The libelants have not shown, however, that they suffered any damage by reason of this method of valuation. They have not offered in evidence a general average statement of their own indicating that, if one method or the other had been adhered to throughout, they would be entitled to a larger recovery. It may well be that, if market value had been used throughout, or the invoice value plus 10 per cent. throughout, the libelants would be found to be entitled to less than they now claim. Furthermore, it appears to me that from the very nature of his work an average adjuster must be allowed some leeway in fixing values. It is well known that the ascertainment of market value is often most complex; lawsuits in which that question is the only one involved often extend over many years. Mr. Miller testified that he used market value when obtainable and invoice value plus 10 per cent. when market value could not be ascertained; that, in intercoastal shipments invoice plus 10 per cent. approximated market value.
At this point it seems appropriate that I should say something about what I consider to be the nature of an adjustment in general average. Counsel for libelants appears to regard an adjustment as in the nature of a court decree or order which, if shown to be incorrect in any particular, must be redrawn. I do not so regard it. In my opinion, a general average statement is merely the statement of an account. It is the usual practice for the shipowner to undertake the preparation of the adjustment, and he ordinarily acts through adjusters, who are experts in the law and practice appertaining thereto. He may, however, prepare his own average statement without the intervention of average adjusters. The reason why the shipowner usually acts in the premises is because in most cases there is a balance of general average due to him, and also because, if cargo has been sacrificed, he is under a duty to that cargo to obtain security from the other cargo. In the ordinary course, the general average statement is merely the shipowner's version of the account as between the parties. Fundamentally, according to my view, it does not differ from other accounts which a shipowner might render, such as for freight or demurrage. If the cargo owner disputes the correctness of the statement of a debit balance against him, he may await suit by the shipowner, who must then prove by evidence independent of the statement that the amount shown to be owing is correct. If, on the other hand, the cargo owner is entitled to a credit balance and claims that the amount shown due in the shipowner's statement is too small, the burden is on the cargo owner, in my opinion, of showing that fact. The average statement put out by the shipowner, or by average adjusters whom he has employed, is an admission on the shipowner's part that the cargo owner is entitled to the sum shown due him in that statement. If the cargo owner asserts that the allowance is too small, the burden rests on him of proving that fact; and, if he considers that there are errors in the shipowner's adjustment, he is at entire liberty to draw up a new adjustment. Until by this means, or in some other way, he has shown that the shipowner's adjustment awards him less money than he is entitled to, I do not consider that he has made out any cause of action. See The Nesco (D.C.) 47 F.2d 643, 1931 A.M.C. 657; The Caserta, 1932 A.M.C. 51 (D.C.S.D.N.Y.) (oral opinion); The Caserta, 258 N.Y. 379, 180 N.E. 90, 1932 A.M.C. 403.
It is further claimed that the Sudbury was undervalued in the adjustment. In a certificate which is inserted in the adjustment at page 596, Messrs. Frank S. Martin Son, well-known valuers, have fixed her value in damaged condition in January, 1921, at $963,065.
Libelants call attention to the fact that there was hull insurance on the vessel in the amount of $900,000, and an additional $700,000 insurance on disbursements. They argue from this that the valuation of Messrs. Martin Son must be incorrect.
Despite this argument, I remain of the opinion that there is nothing to impeach the valuation of Messrs. Frank S. Martin Son. Libelants did not call any expert valuer to dispute it. The amount of insurance carried by an owner on his vessel is undoubtedly of some probative effect. It is well known, however, that the year 1920 was one in which values fell precipitously. It may well be that the Sudbury could properly be regarded as worth a million and a half or more when the insurance was placed, but that this value had fallen to less than a million at the time of the disaster. It is common knowledge of course, that many owners had bought their vessels at high prices, subject to mortgages in large amounts, and were, consequently, compelled to keep in effect an amount of insurance in excess of the actual market value.
Many decisions are cited on behalf of libelants as to the nature of a disbursement policy. I do not see the pertinency of these decisions, since the real question in this case is only whether the amount of insurance taken out by owners is better evidence of value than the certificate of expert valuers. In my view, the evidence afforded by the certificate of Messrs. Martin Son is far superior to a possible inference that might be drawn from the amount of insurance carried.
If it is necessary to cite decisions as to the nature of disbursement insurance, I would refer to International Navigation Co. v. Atlantic Mutual Insurance Co. (D.C.) 100 F. 304, at page 307, where Judge Addison Brown said:
"The evidence shows that policies upon `disbursements' are in very common use; that they are designed to cover a variety of interests not covered by policies in the ordinary form, including moneys which have gone into the construction of the hull and equipment and sunk in depreciation; the value of the contracts in the performance of which the ship may be engaged; any interest in the nature of the good will or profits of her business; any peculiar interest of the owner in the vessel irrespective of her actual value; and though not designed as an insurance on hull, would have the effect of covering any uninsured value of the vessel.
"`Disbursement' policies are often issued where the hull is fully covered by other policies; they are against total loss only, and are deemed a different interest from a policy on hull, and in case of total loss have no benefit of salvage, such as ordinary policies have."
It is said that the profits earned by the Sudbury indicate that she had a value in excess of the value fixed by Messrs. Frank S. Martin Son. Certain calculations have been made by one of libelants' witnesses showing what the vessel would normally have earned in the intercoastal trade at that time, assuming that she always obtained full cargoes of desirable merchandise. These calculations overlook the fact that, in order to earn these freights, it was necessary to maintain an extensive shore organization of freight solicitors, accountants, bill of lading clerks, etc. If the Sudbury had been put on the berth at New York without this extensive organization to secure cargo and attend to other details, freights in this amount could not have been earned. I am of the opinion that market value is controlling. (Lowndes on General Average [6th Ed.] p. 259), and that is established by the certificate referred to. The Sudbury could have been replaced by paying her market value, so that that value was her value to her owners.
It is said that the expenses of M.C. Harrison Co., in looking after the goods of their assureds, should have been allowed.
In the letter of June 21, 1922, already referred to (Exhibit B), Messrs. Harrison Co. wrote Frank B. Hall Co., Inc., claiming $25,023.11 on account of their assureds, and $1,887.50 for "services and expenses." I think that it cannot be disputed that ordinarily a representative of cargo underwriters who busies himself in protecting the interests of his company after a disaster is not entitled to any allowance in general average. The claim is sought to be rendered more plausible by treating the "services and expenses" of Messrs. M.C. Harrison Co. as necessary expenditures made by the consignees to be deducted in ascertaining the net value of the goods. I am not convinced, however, that this is a proper view of the facts, and in this connection I adopt the version contained in the affidavit of Mr. Seale, to the effect that the activities of Mr. Harrison and his representatives were not such as would require any recognition in an adjustment of general average.
In this connection I also rely on the provision in the bills of lading that adjustment was to be made in accordance with the customs and usages at New York, and to the testimony of Mr. Nelson, a most experienced average adjuster, who has been with Johnson Higgins for many years. Independent of proof of that custom, I should have reached the same result.
I do not believe that any agreement was made with Mr. Harrison to pay him these charges, nor do I consider that the case of The Falcon, in which no opinion was written, materially strengthens the position of the libelants.
Certain other claims are made to the effect that the adjustment is incorrect in its statement that some of the goods were heat damaged or smoke damaged and thus excluded from general average. I see no useful purpose in reviewing the facts in detail. As I see the case, the libelants came into court with an admission on the part of the shipowner that a certain amount became due to them in general average. The burden is on libelants to satisfy the court that they are entitled to more than that amount. In my opinion, taking all of the facts, circumstances, and evidence in the case into consideration, that burden has not been sustained.
A further argument on behalf of libelants is that they are entitled to recover gross allowances in general average without regard to contributions charged against them.
Libelants' contention is, in substance, that, if a general average sacrifice is made of property belonging to one of the parties to the venture, that party may recover a complete indemnity and thus be better off than the other parties, unless by counterclaim they assert an offset. In other words, it is the libelants' position that, if property worth $1,000 is jettisoned, the owner of that property may collect the entire amount from his fellow adventurers and thus be made completely whole unless they bring a cross-action. My views on the subject are expressed in Carver on Carriage by Sea (6th Ed.) § 417, as follows: "417. The owner of the sacrificed property is not to reap a benefit from the fact that his property instead of another's was selected for the purpose. The object is to put him on a footing of equality with those whose property was not selected for sacrifice. Thus the whole value of what was sacrificed is not to be replaced, but only so much as will put the owner in as good a position as if, instead of his property, other of equal value had been destroyed. This is effected in the calculation by making the owner of the sacrificed property a party to the contribution in respect of the amount to be contributed to. To that extent he has benefited by the act of sacrifice. Therefore, on the principle that those must compensate who benefit, he must bear that proportionate share."
This concludes my review of the libelants' objections to the average adjustment leaving only a few more points for mention.
In the course of the testimony, libelants' counsel at times objected to the admission of evidence as to insurance. The subject of insurance was, however, introduced into the case by libelants. In their libel they allege (article XIX) that the average adjusters "refused to deduct the expenses of the agents of the libelants' underwriters in handling the said goods." In Libelants' Exhibit 1, introduced at the first hearing, it is stated by Mr. Harrison that he was a marine underwriter at the time of the disaster, and he refers to the four libelants as "our assureds."
It is quite true, of course, that in many cases the fact of insurance is immaterial, and, when a case is being tried before a jury, evidence as to insurance (if not material under the issues) is regarded as prejudicial error. In the present case, however, not only has the subject of insurance been made an issue by libelants, but also on other grounds it appears to me to be admissible. Mr. Harrison, who, at the time of the disaster, was doing business as M.C. Harrison Co., has testified in the case, and it seems to me that the court is entitled to have it shown, as bearing upon the weight to be given his testimony, that he, and the company which he represents, will benefit from the libelants' recovery. It is also in evidence that, when cargo owners are insured, it is the practice of average adjusters to deal with their underwriters. This practice furnishes an explanation of many parts of the record which in the absence of testimony as to insurance would be without meaning.
The remaining question is as to the disposition to be made of the libel. The allowances made the libelants in the general average statement total $23,561.96.
In April, 1925, a tender of three checks, totaling approximately $16,000, was made by Mr. Hengstler, a well-known lawyer on the Pacific Coast, to Mr. Frank, representing Messrs. M.C. Harrison Co., in satisfaction of the libelants' claim for general average. The amount tendered was less than the amount shown due in the general average statement because it was asserted that the underwriters, represented by Messrs. M.C. Harrison Co., were in default on payments to be made by them in general average. Suits have been brought against the St. Paul Fire Marine Insurance Company to recover some $5,258.25. Mr. Miller also testified (page 181) as to the pendency of these suits.
On this branch of the case, the burden rests on the respondents to show that this additional sum of $5,258.25 odd is owed by the St. Paul Fire Marine Insurance Company. It does not seem to me that satisfactory proof of that fact has been adduced.
I am therefore of opinion that the total claim of the libelants amounts to $23,561.96. It does not follow, however, that they are entitled to a decree for this amount against any of the respondents.
I think that Balfour, Guthrie Co. are entitled to a dismissal of the libel as to them, with costs. They were not the owners of the Sudbury, and I do not see anything in the case that would make them liable.
The United American Lines, Inc., was not the titular owner of the Sudbury but her "operator." The United American Lines, Inc., did, however, act as owner, and their counsel does not dispute that for the purpose of this litigation the United American Lines, Inc., is to be so regarded. The libel is not clear as to whether suit is brought against the United American Lines, Inc., as shipowner or as trustee of the average adjustment. If the United American Lines, Inc., is sued solely as shipowner, then its responsibility would seem to be discharged, because the evidence shows that the United American Lines, Inc., as shipowner, has properly fulfilled any duties that it was under in the premises. See The Sudbury (D.C.) 33 F.2d 293.
If the suit is brought against the United American Lines, Inc., as trustee, then it can be held responsible only to the extent of the general average funds, which amount to $22,729.92. In addition, other persons not connected with this litigation are entitled to be paid out of the general average funds a total amount of $6,157.15.
I am further of opinion that only an interlocutory decree should be entered at the present time, as the parties may wish to offer further evidence as to the exact amount for which the final decree should be entered. The final decree should run against the United American Lines, Inc., as trustee, and also against Monks, Goodwin Shaw, Inc., and Frank B. Hall Co., Inc., the latter two companies having acted as trustees under the general average agreement. As I understand it, the interests of the two companies last named are practically identical.
The case also presents a question of admiralty jurisdiction. I have no doubt at all but that a court of admiralty has complete jurisdiction over matters of general average. Older cases which tended to restrict admiralty jurisdiction in matters of contract are at variance with later authorities, such as New England M. Insurance Company v. Dunham, 11 Wall. 1, 20 L. Ed. 90, and many other cases which are cited. See, too, The Sudbury, supra.
Possibly a further difficulty arises in the present case because of my decision that libelants are merely entitled to share in the general average fund. However, it is certainly by no means unusual for courts of admiralty to distribute funds among various claimants, as in cases where a vessel is sold under a libel and the amount realized is not sufficient to satisfy all parties. In any event, in a case where a court of admiralty does not have jurisdiction, there can be no question but that there is jurisdiction in the equity suit, which has also been referred to me.
Both libelants and respondents claim laches. It does not seem to me that there is substance in this claim. The average adjustment was not issued until August, 1924, and until then libelants were hardly required to take action. This suit was instituted in January, 1930. It may indeed be that libelants have ten years within which to bring suit against the trustees.
The question as to allowance of interest to libelants should await the entry of a final decree. I should add that I approve the method under which Messrs. Frank B. Hall Co. have kept the general average funds on deposit.
In view of the fact that libelants have failed to show that they were entitled to a larger allowance in general average than allotted them in the adjustment, I think that they ought to bear one-half of the costs of this reference.
While doubting the necessity thereof, I add to my report findings of fact and conclusions of law.
Findings of Fact.
I. The two libelants first named in the libel are California corporations; the remaining two libelants are corporations organized under the laws of the states of Oregon and Washington, respectively.
II. United American Lines, Inc., is a Delaware corporation, and at all the times material to this litigation was the operator of the S.S. Sudbury.
III. Balfour, Guthrie Co. is a partnership, with an office and place of business at San Francisco, Cal. The other respondents are New York corporations.
IV. In November, 1920, the S.S. Sudbury sailed from New York, having on board certain shipments consigned to libelants.
V. While on the voyage a fire broke out, with the result that certain sacrifices of a general average nature were made and general average expenditures incurred.
VI. On arrival at destination, general average security was obtained from the various receivers of the cargo, and a statement of general average was undertaken.
VII. In August, 1924, the statement of general average was issued by Frank B. Hall Co., Inc., which company acted as average adjuster. This adjustment showed a balance due the libelants (including interest) of $23,561.96. The specific allowances are: Goldberg, Bowen Co., $339.30; Kohler Chase, $779.35; American Paper Co., $9,586.88; Blake McFall Co., $12,856.43. The facts on which adjustment was based are correct, and libelants are not entitled to recovery of more than the above amounts.
VIII. The trustees named in the average agreements were United American Lines, Inc., and Monks, Goodwin Shaw, Inc. Thereafter Frank B. Hall Co., Inc., undertook to state the average and hold the funds collected, as trustee.
IX. United American Lines, Inc., as shipowner, has discharged all of its duties in the premises.
X. Frank B. Hall Co., Inc., hold general average funds applicable to this case in the amount of $22,729.92. In addition to the claim of the present libelants, there are claims against these general average funds by other persons in the amount of $6,157.15. Certain persons and insurance companies are being sued for the purpose of collecting further funds, which suits, if successful, will increase the amount to be distributed.
Conclusions of Law.
I. The libel should be dismissed as to Balfour, Guthrie Co.
II. No cause of action is made out against United American Lines, Inc., as owner or operator of the S.S. Sudbury.
III. Libelants' proper allowance in general average is $23,561.96, and they are entitled to an interlocutory decree against United American Lines, Inc., in its capacity as trustee, and against Monks, Goodwin Shaw, Inc., and Frank B. Hall Co., Inc., as trustees, the amount of recovery to be restricted to libelants' proportionate share of the trust fund, libelants being entitled to share therein together with other creditors of equal rank.
In admiralty. Exceptions by libelants and respondents to report of special commissioner appointed by Judge Woolsey to hear and report upon all the issues raised by the pleadings. Without reciting each of the forty-four exceptions filed by the libelants, it must suffice to state that I have examined them and have not only found the special commissioner's rulings correct, but that he has adequately stated the basis for them.
As to the exceptions of the respondents, while it is regrettable that further litigation may be necessary in order to determine the rights of all the parties, I believe that the special commissioner was technically correct in his rulings as to the insufficiency of the tender and the unavailability of the offset. These exceptions also are, therefore, overruled.
Settle decree in accordance with the report of the special commissioner.