1. A claim of contribution in general average presented against
the United States by suit in the Court of Claims filed more than
six years after the claim first accrued, is barred by U.S.C. Title
28, § 262. P. 488.
2. The right to contribution in general average accrues when all
the elements essential to its existence are present, regardless of
whether the appropriate means of enforcement be a suit in
or a suit in personam.
P. 298 U. S.
3. The right to contribution in general average accrues and
becomes enforceable upon the arrival of the ship at port of
destination and delivery of the cargo, even though the amount of
the required contribution has not then been liquidated. P.
298 U. S.
4. Claims against the United States for general average
contribution are brought and adjusted in the Court of Claims under
U.S.C. Title 28, § 250(1). The claim may accrue and be sued on even
though the damages sought be unliquidated. P. 298 U. S.
5. An adjuster, engaged by a shipowner to make up a general
average statement, is not an arbitrator, nor is his statement
binding, as an account stated or otherwise, upon his principal. P.
298 U. S.
80 Ct.Cls. 11 reversed.
Certiorari, 295 U.S. 727, to review a judgment for the Insurance
Company upon its claim in general average contribution against the
Page 298 U. S. 486
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was a suit to obtain a contribution in general average by
reason of the sacrifice of part of a ship's cargo for the benefit
of the ship and cargo as a whole. The Court of Claims gave judgment
for the claimant, and the case is here on certiorari. The material
facts, as shown by the findings below, are as follows:
In 1918, the Logan,
an army transport owned and
operated by the United States, left San Francisco for Manila with a
cargo consisting of military supplies belonging to the United
States, certain property belonging to the government of the
Philippine Islands and its railroad, and other property belonging
in large part to the American Red Cross and in lesser part to
officers of the United States Army, none of which was being
Page 298 U. S. 487
hire. During the voyage, fire broke out in the hold from a cause
free from negligence, and, to prevent a loss of both vessel and
cargo, the master caused part of the cargo to be jettisoned and
water to be let into the hold, whereby other parts of the cargo
were damaged. After the fire was extinguished, the transport
continued the voyage and arrived at the port of destination January
19, 1919. All that remained of the cargo was then discharged and,
with the master's assent, was delivered to its owners without
obtaining from them any bond to secure payment of general
The part of the cargo belonging to the Philippine government and
its railroad was insured against marine perils, including fire, by
policies obtained before the voyage was begun. Substantial portions
of this property were jettisoned or damaged at the time of the
fire. April 12, 1921, the underwriter, in compliance with the
policies, paid to the Philippine government and its railroad the
amounts of their respective losses, and thereby became subrogated
to their rights, if any, under the maritime rule respecting general
May 15, 1921, the underwriter presented to the War Department a
claim for general average contribution based on the facts here
stated, and the claim was denied. But the Judge Advocate General
disapproved that ruling and gave an opinion that the claim was well
grounded. Thereafter, on August 22, 1922, an administrative officer
in the army transport service transmitted the files relating to the
claim to a company doing business as an average adjuster and
insurance broker at San Francisco and requested that the adjuster
prepare "a statement of general average in order that the
responsibility of the various parties concerned may be determined."
The adjuster accepted that task and completed and rendered such a
statement December 31, 1926. In this statement, the adjuster
computed the net contribution
Page 298 U. S. 488
to be made by the United States to the underwriter by reason of
the latter's subrogation to the rights of the Philippine government
and its railroad at something over $40,000, and also computed the
contributions to be made to the underwriter by other cargo owners.
On March 28, 1928, the accounting officers of the United States
denied the claim for contribution, and on December 10, 1928, the
Comptroller General, on review, sustained that ruling. The claimant
brought the present suit in the Court of Claims February 18,
One of the defenses interposed by the government and rejected by
the court is that the claim had become completely barred before the
suit was begun. The statute [Footnote 1
] invoked by this defense declares:
"Every claim against the United States cognizable by the Court
of Claims shall be forever barred unless the petition setting forth
a statement thereof is filed in the court . . . within six years
after the claim first accrues."
The government contends that the claim first accrued on January
19, 1919, when the transport reached its destination and delivered
what remained of the cargo to the cargo owners. On the other hand,
the claimant insists the claim first accrued on December 31, 1926,
when the adjuster completed and rendered the general average
statement. The court rejected the government's contention and
sustained that of the claimant. In this, we think it erred.
The court recognized that the transport, had it been privately
owned, would have become subject to a suit in rem
contribution in general average upon its arrival at destination and
the delivery of the cargo, but held that, as the transport was
government owned and in the public service, such a suit would not
lie against it. We assent to this, but think the accrual of the
right to contribution
Page 298 U. S. 489
did not depend upon whether it could be enforced by a suit
against the ship. Such a right accrues if and when
all the elements essential to its existence are present, regardless
of whether the appropriate means of enforcement be a suit in
or a suit in personam.
In this instance, as we
shall show, a suit of the latter class was the appropriate
The law of general average is an ancient feature of the maritime
law, and proceeds on the equitable principle that that which is
sacrificed by one for the benefit of all in the course of a common
venture at sea should be made good by the contribution of all.
Various means of enforcing such contribution have become well
recognized, such as a suit in rem
in admiralty against
ship or cargo, a suit in personam
in admiralty against
ship owner or cargo owner, [Footnote 3
] and an action at law [Footnote 4
] or a suit in equity [Footnote 5
] against shipowner or cargo owner. Save
for exceptional rulings afterwards disapproved, the courts, in
dealing with such suits and actions, have regarded the right to
contribution as accruing and becoming enforceable upon the arrival
of the ship at the port of destination and the delivery of the
cargo. In reason, the rule could not well be otherwise, for every
element of the right is then present. That the amount of the
Page 298 U. S. 490
contribution may then be unliquidated is no obstacle, for, in
proper sequence, liquidation comes after accrual, and can be made
in the suit or action wherein the right is presented for
adjudication. In this regard, a claim for contribution does not
differ from many others where, at the time of accrual, the
recoverable damages or amount due remains unliquidated. As was well
said in a related case, [Footnote
] "The law is familiar enough in actions of tort and in many
actions in contract, with liabilities which are presently due,
The United States is not suable without its assent, and
therefore a suit in personam
against it as the owner of
the vessel needed the support of a permissive statute. But there is
such a statute, [Footnote 7
which has been long in force. It in direct terms invests the Court
of Claims with jurisdiction to hear and determine all claims
against the United States founded
"upon any contract, express or implied, with the Government of
the United States, or for damages, liquidated or unliquidated, in
cases not sounding in tort, in respect of which claims the party
would be entitled to redress against the United States either in a
court of law, equity, or admiralty if the United States were
It is under this statute that claims against the United States
for general average contribution are brought and adjudicated in the
Court of Claims. Obviously the statute contemplates that a claim
may accrue and be sued on even though the damages sought be
For these reasons, we think it quite plain that the present
claim accrued January 19, 1919, when the ship reached its
destination and the cargo was delivered.
Page 298 U. S. 491
The court below attached much importance to the statement in
general average made by the adjuster at the request of an
administrative officer in the army transport service. Indeed, the
court treated the statement as being "in the nature of an account
stated," and ruled that the right to contribution accrued when it
was rendered. In this, we think the court misconceived the
functions of the adjuster and the nature of the statement. The
adjuster was not an arbitrator, [Footnote 8
] nor was the statement anything more than a
provisional estimate and calculation which his principal, the
owner, was free to adopt or to put aside. In the absence of some
stipulation on the subject, and there was none, his function was
only that of aiding or assisting the owner in gathering and stating
data and making appropriate calculations as a suggested basis for
an adjustment to be made by the owner, or under the owner's
direction. It is not shown that the owner adopted the statement or
put it forth as an authorized statement. In this situation, the
statement had no binding force as a stated account or otherwise. As
was explained by Lord Herschell when speaking for the Judicial
Committee of the Privy Council in Wavertree Sailing Ship Co. v.
L.R., (1897) App.Cas. 373:
"The right to receive and the obligation to make general average
contribution existed long before any class of persons devoted
themselves as their calling to the preparation of average
statements. It was formerly, according to Lord Tenterden, the
practice to employ an insurance broker for the purpose. The
shipowner was not bound to employ a member of any particular class
of persons, or indeed to employ any one at all. He might, if he
pleased, make out his own average statement, and he may do the same
at the present time, if so minded. If he engages
Page 298 U. S. 492
the services of an average stater, it is merely as a matter of
business convenience on his part."
What we have said suffices to show that the claim accrued more
than six years before the suit was begun, and therefore was barred
by the statute.
U.S.C. Title 28, § 262.
10 How. 270, 51 U. S. 303
Ralli v. Troop, 157 U. S. 386
Simonds v. White,
3 Barn. & C. 805, 811.
Bark San Fernando v. Jackson,
12 F. 341; The Emilia
S. De Perez,
22 F.2d 585, 586; Det Forenede Dampskibs
Selskab v. Insurance Co. of North America,
31 F.2d 658,
280 U.S. 571; Kohler & Chase v.
United American Lines,
60 F.2d 530. And see 78 U.
S. v. Dunham,
11 Wall. 1; 1 Benedict on Admiralty
(5th Ed.) § 98.
Birkley v. Presgrave,
1 East, 220; Price v.
4 Taunt. 123; Dodson v. Wilson,
3 Camp. 480;
Strang Steel, Co. v. A. Scott & Co.,
L.R. 14 App.Cas.
601, 606, 607.
Sturgess v. Cary,
Fed.Cas. No. 13,572; 1 Story's Equity
Jur. 14th ed. §§ 661 et seq.
Det Forenede Dampskibs Selskab v. Insurance Co. of North
31 F.2d 658, 660, cert. denied,
U.S.C. Title 28, § 250(1).
23 F. 815, 819; The Santa Anna
49 F. 878, 879.