Columbian Insurance Company v. Ashby and Stribling
38 U.S. 331 (1839)

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U.S. Supreme Court

Columbian Insurance Company v. Ashby and Stribling, 38 U.S. 13 Pet. 331 331 (1839)

Columbian Insurance Company of Alexandria v. Ashby and Stribling

38 U.S. (13 Pet.) 331

Syllabus

The brig Hope, with a cargo, bound from Alexandria, in the District of Columbia, for Barbados, insured in Alexandria, was assailed, while standing down the Chesapeake Bay, by a storm which soon after blew to almost a hurricane. The vessel was steered towards a point in the shore for safety, and was anchored in three fathoms water; the sails were furled and all efforts were made by using the cables and anchors to prevent her going on shore. The gale increased, the brig struck adrift, and dragged three miles; the windlass was ripped up, the chain cable parted, and the vessel commenced drifting again, the whole scope of both cables being paid out. The brig then brought up below Craney Island in two and a half fathoms water, where she thumped or struck on the shoals on a bank, and her head swinging round brought her broadside to the sea. The captain finding no possible means of saving the vessel and cargo and preserving the lives of the crew, slipped her cables, and ran her on shore for the safety of the crew and preservation of the vessel and cargo. The vessel was run far up on a bank, where, after the storm, she was left high and dry, and it was found impossible to get her off. The lives of all the persons were saved; the whole cargo of the value of $5,335, insured for $4,920, was taken out safely, and the vessel, her tackle, &c., were sold for $256. Held that the insurers of the cargo were liable for a general average.

The question of contribution cannot depend upon the amount of the damage sustained by the sacrifice of the property, for that would be to say that if a man lost all his property for the common benefit, he should receive nothing, but if he last a part only, he should receive full compensation. No such principle is applied to the case of goods sacrificed for the common safety; why then, should it be applied to the total loss of the ship for the like purpose? It is the deliverance from an immediate impending peril by a common sacrifice which constitutes the essence of the claim. It is the safety of the property, and not the voyage, which constitutes the foundation of general average.

A consultation by the captain with the officers of the vessel before running her on shore with a view to her preservation and that of the passengers and cargo may be highly proper in cases which admit of delay and deliberation, to prevent the imputation of rashness and unnecessary stranding by the master. But if the propriety and necessity of the act are otherwise sufficiently made out, no objection can be made to it.

The freight of a vessel totally lost by being run on shore for her preservation and that of the crew and cargo ought to be allowed to the owner of the vessel as the subject of general average, the cargo of the vessel having been saved by the stranding.

This was an action instituted in the Circuit Court of the United States against the Columbian Insurance Company for the purpose of ascertaining whether the plaintiffs, Ashby and Stribling and Peter Hewit, were entitled to recover against the cargo of the brig Hope, for a contribution for an average loss. The Columbian Insurance Company was the underwriter on the cargo, and an agreement was made between the parties to the cause before the trial that "without regard to form, the real question between them should be contested." Under this agreement the cause was tried and the jury found the following special verdict.

"We of the jury find that on 27 May, 1825, the brig Hope sailed from Alexandria on a voyage to Barbados, that

Page 38 U. S. 332

on the said vessel standing down the Chesapeake Bay, the weather became thick and foggy, and that it appearing in the then state of the weather imprudent to proceed to sea, the captain kept away for Sewall's Point for the purpose of making a harbor, where he anchored, with the best bower anchor in three fathoms water; that all sails were furled and a good scope of cable paid out, the wind then blowing very fresh from the northeast; that at ten o'clock P.M. on the 3d day of June, he let the small bower anchor under foot and payed out the best bower anchor until both cables bore a strain; that the gale still increasing, the kedge anchor was let go; that about midnight, the vessel struck adrift; that then the whole scope of the cables were paid out till they all bore a strain, when she fetched up; that the gale continued on the following day to increase, and the sea being very heavy, at one o'clock she struck adrift again and dragged three miles, when she brought up; that the gale then increased to almost a hurricane, she ripped up the windlass, parted the chain cable, and commenced drifting again, the whole scope of both cables being paid out. That she then between eleven and twelve o'clock brought up about three quarters of a mile below Craney Island in two and a half fathoms water, amongst and in sight of a number of other vessels, that she then thumped or struck on the shoals on a bank, and her head swinging around to the westward, brought her broadside to the wind and heavy sea; that the captain, in this situation, finding no possible means of saving the vessel or cargo and preserving the crew, slipped his cables and ran her on shore for the safety of the crew and preservation of the vessel and cargo, that the vessel ran far upon the bank, where, after the storm, she was left high and dry and it was found impracticable to get her off."

"We find that the plaintiffs in this action were the owners of the said brig; the value of the said brig was $3,000; that one-third part of the brig had been insured by the said Columbian Insurance Company; that no insurance had been effected for the remaining two-thirds. We further find that the whole of the cargo on board said brig was of the value of $5,335, of which the said Columbian Insurance Company insured $4,920. We further find that the cargo was afterwards taken out safely, and that the vessel, her tackle, &c., were sold for the sum of $256.40. If, on the matter aforesaid, the law be for the plaintiffs, then we find for the plaintiffs and assess their damages to the sum of fifteen hundred dollars, and if the law be for the defendants, then we find for the defendants."

In August, 1825, the circuit court gave judgment in favor of the plaintiffs for $1,249, and the defendants prosecuted this writ of error.

Page 38 U. S. 337

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