Page:Federal Reporter, 1st Series, Volume 9.djvu/187

172 federal , beporteb. �The Alcona. �(District Court, E. B. Illinois. 1881.) �1. GENERAL AVEEAGB. �Where a vessel, in the course of her voyage, beoomes stranded upon the bank of a river or harbor, and the circumstauces are such as to show there is no dan- ger to be apprehended from her lying there, the expense of getting her OiS. is not the subject of a general aVerage contribution. �In Admiralty. �This was a libel in personam by Charles Bewick et al., owners of the pro- peller Alcona, against the Detroit Fixe. & Marine Insurance Company, to re- cover for a general average contribution. The policy insured the propeller against total loas and general average only in the sum of $10,000. The answer denied that the libel set up a proper claim for general average. By a stipula- tion of facts it appeared that the Alcona, wjth a cargo of 37,000 bushels of corn, left Toledo, Ohio, for BufEalo, and while proceeding down the Maumee river, when on the range stakes, brought up on the bottoni, and was unable to get ofE without assistance; that she lay about 20 feet outside of the chan- nel ; that while she was thus stranded it was deeined advisable to lighten her of a portion of her cargo, and accordingly about 5,000 bushels were removed from the propeller to a barge, and the propeller was then floated by the assist- ance of the propeller Alpena and certain tugs. �Otto Kirchner, for libellants. �F. H. Canfield, forclaimants. �Bbown, D. J. So far as the facts of this case are concerned, I am satisfied that there is no evidence which would be proper to go to a jury that the Alcona was in any danger of total loss or serions damage to herself or cargo. There is no allegation to that effect in the libel. She lay upon an even keel, upon a bank of sand, clay, and mud, several miles from the mouth of the Maumee, proteoted from the heavy winds and sea of the open lake. A rise in the water -would have floated her off without assistance, and it was very improbable that any such fall would occur as would put her in any serions peril. She was a little out of the channel, and there was plenty of room for other vessfels to pass without fear of collision. The weather was good, and for all that appears she was as safe as if she were lying at her own dock. Nor should I be justified, from the testimony, in finding the existence of a usage of Insurance companies to treat expenditures of this kind as general average. It is true that evidence was offered tending to show that in a number of similar cases, running through a series of years, expenses incurred under like circumstances had been allowed; but there is nothing to show a uniform and certain ��� �