To be seaworthy as respects cargo, the hull of a vessel must be
so tight, stanch, and strong, as to resist the ordinary action of
the sea during the voyage without damage or loss of cargo.
A jettison rendered necessary by a peril of the sea is a loss by
such peril within the meaning of the exception contained in bills
of lading --
aliter if unseaworthiness of the vessel
caused or contributed to the necessity for the jettison.
The owner of cargo jettisoned has a maritime lien on the vessel
for the contributory share due from the vessel on an adjustment of
the general average, which lien may be enforced by a proceeding
in rem in the admiralty.
Where the libel alleged a shipment of cargo under a bill of
lading and its nondelivery, and prayed process against the vessel,
and the answer set up a jettison rendered necessary by a peril of
the sea, and this defensive allegation was sustained by the court,
it was
held that the libellant was entitled to a decree
for the contributory share of general average due from the
vessel.
There are no technical rules of variance or departure in
pleading in the admiralty.
As many points were decided by this Court which were not raised
in the court below, it is proper to explain to the reader how this
happened, and this will best be done by tracing the history of the
case from its commencement.
In December, 1852, Dupont de Nemours & Co. shipped at their
wharf, on the River Delaware, an invoice of gunpowder in kegs
&c., the value at the place of shipment being, by the invoice,
$6,325. The articles were shipped on board the
Ann
Elizabeth, bound to New Orleans and owned by the claimants in
this cause. Two bills of lading were signed by the mate and
delivered to the shippers. The brig sailed on December 21,
1852.
After the arrival of the vessel at New Orleans, the shippers
Page 60 U. S. 163
filed a libel in the District Court of the United States for the
Eastern District of Louisiana, alleging that the following packages
were missing,
viz.:
972 kegs powder, at $4.50 . . . . . $4,374.00
563 half do. 2.37 1/2 . . . 1,337.13
99 quarter kegs, 1.33 3/4 . . . 132.41
12 cases canister 7.75 . . . . . 93.00
----- ---------
1,646 packages $5,936.54
===== =========
The libellants therefore held the vessel to her general
responsibility for the nondelivery of the articles, and filed the
bills of lading as exhibits.
After the usual proceedings in admiralty, John Vance, master and
part owner of the brig, intervening for his own interest and for
the interest of the other owners of the brig, filed his answer in
June, 1853. In this answer, he gave a narrative of the voyage and
alleged that the articles in question were thrown overboard for the
safety of the vessel, and "that unless the same had been thrown
over, your respondents believe, and so allege, that the vessel
would have filled and gone down."
This answer was sworn to by the proctor and agent of respondent
as being true to the best of his belief or knowledge.
Evidence was taken on both sides. For the libellants it
consisted of the testimony of two persons in Delaware to prove the
shipment and the testimony of two persons in New Orleans to prove
the unseaworthiness of the vessel from examinations made after her
arrival.
For the claimants, the evidence consisted of the notarial
protest of the capitain, mate, and three of the crew and also the
testimony of a stevedore, who unloaded the vessel to show her sound
condition.
Upon this evidence the cause came on for trial, when the
district judge decreed against the stipulators for $5,936.54, less
$270.95 freight, equal to $5,665.59, with interest from 15th
January, 1853, and costs.
Upon motion of the proctor for the claimants, a rehearing was
granted, and fresh evidence was taken. On the part of the
libellants it consisted of the depositions of two persons living in
New Orleans to prove the value of the powder, and on the part of
the claimants the depositions of three persons living in New
Orleans, who were not on board of the ship during the voyage. Two
testified to the condition of the vessel, and the third to some
proceedings respecting an average bond.
With this additional evidence, the case came up again, when
Page 60 U. S. 164
the district judge decided that the notarial protest must be
rejected as evidence and that, upon its being thrown out, there was
nothing at all to prove the fact of the jettison. He therefore
adhered to his former decree. The claimants appealed to the circuit
court.
In the circuit court, additional evidence was taken on the part
of the claimants,
viz., the depositions of five persons,
two of whom were not on board but testified as experts, and of the
three who were on board, two were passengers and the third was one
of the crew. These three testified to the fact of the jettison and
the circumstances under which it was made and gave a narrative of
the voyage.
When the case came up for trial before the circuit judge, he
decreed that the claimants had sustained their answer, and
dismissed the libel, each party paying his own costs.
The libellants appealed to the court.
Page 60 U. S. 165
MR. JUSTICE CURTIS delivered the opinion of the Court.
The libel alleges that the appellants shipped on board the brig
Ann Elizabeth at Wilmington, in the State of Delaware, a
large quantity of gunpowder, to be carried to New Orleans, in the
State of Louisiana, and that, on the shipment thereof,
Page 60 U. S. 166
bills of lading in the usual form were signed by the master of
the brig; that according to the invoices of the merchandise
specified in the bills of lading, its value was $7,233.75; that on
the arrival of the brig at New Orleans, the libellants required the
delivery of the merchandise thus shipped, but they received only a
part thereof, and that the part not delivered consisted of 1,646
packages, which, according to the same invoice valuation, amounted
to the sum of $5,936.54.
The libel further alleges that no part of that sum has been paid
to the libellants, and it prays process against the brig and a
decree for the damages thus demanded and for such other relief as
shall to law and justice appertain.
The master of the brig, intervening for his own interest and
that of his part-owners, admits that the shipment of goods was
made, as alleged in the libel, but propounds that in the course of
the voyage it became necessary, for the safety of all concerned,
through the perils and dangers of the seas, to make a jettison of
that part of the libellant's goods which were shipped and not
delivered.
The first question is whether the claimant has shown, in support
of his defensive allegation, that the jettison was occasioned by a
peril of the sea. If it was, then the carrier is exonerated from
the delivery of the merchandise, and has only to respond for that
part of its value which is his just contributory share towards
indemnity for the common loss by the jettison. A jettison the
necessity for which was occasioned solely by a peril of the sea is
a loss by a peril of the sea, and within the exception contained in
the bill of lading.
But if the unseaworthiness of the vessel at the time of sailing
on the voyage caused or contributed to produce the necessity for
the jettison, the loss is not within the exception of perils of the
seas.
That there was such a necessity for this jettison as justified
the master in making it, we think, is proved. In the case of
Lawrence v.
Minturn, 17 How. 109, this Court had occasion to
consider the extent of the authority of the master to make a
jettison. We then held that
"if he was a competent master; if an emergency actually existed
calling for a decision whether to make a jettison of a part of the
cargo; if he appears to have arrived at his decision, with due
deliberation, by a fair exercise of his skill and discretion, with
no unreasonable timidity, and with an honest intent to do his duty,
the jettison is lawful. It will be deemed to have been necessary
for the common safety because the person to whom the law has
entrusted authority to decide upon and make it has duly exercised
that authority. "
Page 60 U. S. 167
We find the case at bar is within this rule. We do not detail
the evidence, because the authority of the master to make the
jettison has not been seriously controverted.
This part of the case turns upon the other inquiry, whether the
vessel was unseaworthy for the voyage when it was begun.
It is the hull of the vessel which is alleged to have been
unseaworthy. To constitute seaworthiness of the hull of a vessel in
respect to cargo, the hull must be so tight, stanch, and strong as
to be competent to resist all ordinary action of the sea and to
prosecute and complete the voyage without damage to the cargo under
deck.
If a vessel, during the voyage, has leaked so much as to injure
the cargo or render a jettison of it necessary, one mode of testing
seaworthiness is to ascertain what defects occasioning leakage were
found in the vessel at the end of the voyage, and then to inquire
which of those defects are attributable to perils of the seas
encountered during the voyage and which, if any, existed when it
was begun, and if any of the latter be found, the remaining inquiry
is whether they were such as to render the vessel incompetent to
resist the ordinary attacks of the sea in the course of the
particular voyage without damage or loss of cargo.
This vessel, on her arrival at New Orleans, was taken into dock
and examined. She was found to be a new vessel, and that she had
been strained. A but, about midships, at or near the third or
fourth streak, was started. The hood-ends forward were also
strained, and, on trial, it was found they would take about a
thread of oakum.
Two worm holes were also found in her bow, about three-eighths
of an inch in diameter -- one about three streaks from the keel,
the other a little higher up. As the vessel was new, there seems to
be no doubt these holes were in the plank when put on the vessel,
but from some cause remained undiscovered.
The vessel sailed from Wilmington on the afternoon of the 21st
of December, 1852. The wind being northeast and strong, the vessel
came to anchor at Reedy Island, and on the 22d proceeded to sea.
The master, being a part-owner and claimant, has not been examined.
The first officer appears to have died before the proofs were taken
in the circuit court. No account is given of the second officer or
the crew except one seaman, who, together with two passengers, have
been examined on the part of the claimants to prove the occurrences
of the voyage. It would have been more satisfactory to have had the
evidence of one or more officers of the vessel, and especially of
the mate, with his log book. Still, these three witnesses do
satisfactorily show that on the night of the 23d of December,
Page 60 U. S. 168
the brig encountered a strong gale and heavy seas, causing her
to labor and strain badly. This weather continued, and the sea
became more heavy up to the night of the 27th. Until about 8
o'clock that night, it was not known the vessel was leaking; but,
on sounding the pumps at that time, it was found that the vessel
had two feet of water in the hold. The pumps were manned and kept
going, but the leak increased two feet in about two hours. The
jettison was then made, and the vessel so far relieved that the
pumps could control the leak, and the vessel, with the residue of
the cargo, arrived at New Orleans.
It is manifest that the vessel encountered extraordinary action
of the sea, and as the vessel appears to have been new and
generally stanch and well fastened, the defects found at New
Orleans, except the worm holes, are fairly attributable to this
cause. The starting of a but and the opening of the hood-ends of a
new vessel of ordinary strength indicate a very uncommon degree of
strain, and such defects would alone account for the amount of
leakage of a vessel heavily laden and exposed to such a sea as is
described.
We do not think the existence of the worm holes amount to
unseaworthiness. Any leak which might have been occasioned by them
in any ordinary sea does not appear to have been such as the pumps
could not control without damage to the cargo. All vessels have
leaks, and, independent of the strains received from the violent
action of the sea, we are not satisfied this vessel would have
leaked so much that the pumps could not have controlled the water
in her hold and prevented its doing damage to the cargo.
We find, therefore, that the vessel is exonerated from the claim
for the full value of the merchandise, and the remaining question
is whether the vessel is chargeable with any part of the value of
the merchandise in this cause.
When a lawful jettison of cargo is made and the vessel and its
remaining cargo are thereby relieved from the impending peril, and
ultimately arrive in the port of destination, though the shipper
has not a lien on the vessel for the value of his merchandise
jettisoned, he has a lien for that part of its value which the
vessel and its freight are bound to contribute towards his
indemnity for the sacrifice which has been made for the common
benefit. And this lien on the vessel is a maritime lien, operating
by the maritime law as a hypothecation of the vessel and capable of
being enforced by proceedings
in rem.
The right of the shipper to resort to the vessel for claims
growing directly out of his contract of affreightment has very long
existed in the genera maritime law. It is found asserted
Page 60 U. S. 169
in a variety of forms in the Consulado, the most ancient and
important of all the old codes of sea laws,
see chaps. 63,
106, 227, 254, 259, and the maxim that the ship is bound to the
merchandise, and the merchandise to the ship, for the performance
of the obligations created by the contract of affreightment is a
settled rule of our maritime law.
The
Schooner Freeman, 18 How. 182;
The Ship
Packet, 3 Mason 261;
The Volunteer, 1 Sum. 550;
The Reeside, 2 Sum. 467;
The Rebecca, Ware 188;
The Phoebe, ib. 263;
The Waldo, Davies 161;
The Gold Hunter, 1 Blatch. & How. 305
Pothier declares (Treatise of Charter Parties, preliminary
chapter on Average) that the right to contribution in general
average is dependent on the contract of affreightment, which
embraces in effect an undertaking, that if the goods of the shipper
are damaged for the common benefit, he shall receive a due
indemnity by contribution from the owners of the ship, and of other
merchandise benefited by the sacrifice.
The power and duty of the master to retain and cause a judicial
sale of the merchandise saved has also been long established.
Consulado del Mare, ch. 51, 52, 53, and note 1 in vol. 3, 103 of
Pardessus' Collection; Laws of Oleron, art. 9; Ord. de la Marine,
Liv. 3, tit. 8, sec. 21, 25; Nesbit on Ins. 135;
Strong v. New
York Firemen's Insurance Company, 11 John. 323;
Simonds v.
White, 2 B. & C. 805;
Loring v. Neptune Insurance
Company, 20 Pick. 411; 3 Kent.Com. 243-244. And this right to
enforce a judicial sale through what we term a lien
in rem
is not confined to the merchandise, but extends to the vessel.
Emerigon, ch. 12, sec. 43, speaking generally of an action of
contribution, says it is in its nature a real action. Cassaregis,
dis. 45, N. 34,
"est in rem scripta."
It would be extraordinary if the right to a lien were not
reciprocal -- if it existed in favor of the vessel when sacrifice
was made of part or the whole of its value, for preservation of the
cargo, and not against the vessel when sacrifice was made of the
cargo for preservation of the vessel.
By the ancient admiralty law, the master could bind both the
ship and cargo by an express hypothecation to obtain a ransom on
capture. So he could, and still may, when the whole enterprise has
fallen into distress which could not otherwise be relieved,
hypothecate both the vessel and cargo to obtain means of relief.
These are cases of express hypothecation made by the master, under
the authority conferred on him by the maritime law, but he can also
sell a part of the cargo to enable him to prosecute his voyage or
deliver a part of it in payment of ransom of his vessel, and the
residue of the
Page 60 U. S. 170
cargo on capture, and when he does so, the law of the sea
creates a lien on the vessel as security for the reimbursement of
the loss of the shipper whose goods have been sacrificed.
The
Packet, 3 Mason 255;
Pope v. Nickerson, 3 Story 492;
The Gold Hunter, 1 Blatch. & How. 300;
The Boston,
ib., 309; Consol. del Mare, ch. 105; laws of Oleron, art. 25;
Ord. of Antwerp, art. 19; Emerigon Con. a la Grosse, ch. 4, secs.
9, 11.
The authority to make a jettison of cargo is derived from the
same source -- an instant necessity, incapable of being provided
for save by a sacrifice of part of what is committed to the
master's care, and the presumed consent of the owners of all the
subjects at risk, that the loss shall become a charge upon what is
benefited by the sacrifice.
The Gratitudine, 3 Rob. 210.
If the sacrifice be made to enable the vessel to perform the voyage
by paying what the owners are bound to pay to complete it, the
charge is on the vessel and its owners. If it be made to relieve
the adventure from a peril which has fallen on all the subjects
engaged in it, the risk of which peril was not assumed by the
carrier, the charge is to be borne proportionably by all the
interests, and there is a lien on each to the extent of its just
contributory obligation. This authority of the master to make the
sacrifice, and this consent of the owners of the subjects at risk
to have it made, and their implied undertaking to contribute
towards the loss, are viewed by the admiralty law as sufficient to
create an hypothecation of the subjects benefited, for the security
of the payment of the several sums for which those subjects are
respectively liable. In other words, as the master is authorized to
relieve the adventurer from distress by means of an express
hypothecation in case of capture or distress in port or by means of
a sale of part of the cargo, thereby creating a maritime lien on
the property ultimately benefited in favor of the owner of what is
sold or hypothecated; so he may also, in a case of necessity at
sea, make a jettison of cargo, and thereby create a lien on the
property thus saved from peril. Pothier Con.Mar., n. 34, 72, and
Emerigon Con. a la Grosse, ch. 4, sec. 9, say that the sale of part
of the cargo in port to supply the necessities of the ship, is a
kind of forced loan. Though the sacrifice of part of the cargo at
sea cannot be considered a loan, it is a forced appropriation of it
to the general benefit of those engaged in a common adventure,
under a contract of affreightment, and such use of the property of
one for the benefit of others creates a charge on what was thus
saved for what may fairly be termed the price of that safety.
Abbott on Shipping, part 4, ch. 10, s. 6.
Page 60 U. S. 171
In
United States v. Wilder, 3 Sumner 311, which was a
case of general average, Mr. Justice Story likened it to a case of
salvage, where safety is obtained by sacrifices of labor and
danger, made for the common benefit; and he said the general
maritime law gives a lien
in rem for the contribution, not
as the only remedy, but as in many cases the best remedy, and in
some cases the only remedy. In the district and circuit courts of
the United States, this jurisdiction has been exercised, and some
cases of this kind are found in the books, though most of their
decisions are not in print.
The Mary, 5 Law Reporter 75; 6
id. 73;
The Cargo of the George, 8 Law Reporter
361;
Sparks v. Kittredge, 9 Law Reporter 349; Dunlap's
Ad.Pr. 57; 2 Browne's Civ. & Ad.Law 122;
The Packet; The
Gold Hunter; The Boston, above cited. The restricted admiralty
jurisdiction in England seems insufficient to enforce this lien.
The Constantia, 2 W.Rob. 487.
Nor is there anything in the case of
Rae v.
Cutler, decided by this Court in 1849 and reported
in 7 How. 729, which conflicts with the view we have now taken.
That was a libel by the owner of a vessel against the consignee
of cargo, to recover the contributory share of the average due from
the goods which the master had voluntarily delivered to the
respondent before the libel was filed. The Court decided that
though the master, as the agent of the owner of the vessel in that
case, had by the maritime law a lien upon the goods as security for
the payment of their just contribution, this lien was lost by their
voluntary delivery to the consignee, and that the implied promise
to contribute could not be enforced by an action
in
personam against the consignee in the admiralty. This admits
the existence of a lien arising out of the admiralty law, but puts
it on the same footing as a maritime lien on cargo for the price of
its transportation, which, as is well known, is waived by an
authorized delivery without insisting on payment.
On full consideration, we are of opinion that when cargo is
lawfully jettisoned, its owner has, by the maritime law, a lien on
the vessel for its contributary share of the general average
compensation, and that the owner of the cargo may enforce payment
thereof by a proper proceeding
in rem against the vessel
and against the residue of the cargo if it has not been
delivered.
The remaining question is whether the pleadings in this case are
in such form as to present this claim for the consideration of this
Court, and entitle the libellant to assert a lien on the vessel for
its contribution.
The rules of pleading in the admiralty are exceedingly
simple
Page 60 U. S. 172
and free from technical requirements. It is incumbent on the
libellant to propound with distinctness the substantive facts on
which he relies, to pray, either specially or generally, for the
relief appropriate to them, and to ask for such process of the
court as is suited to the action, whether
in rem or
in
personam.
It is incumbent on the respondent to answer distinctly each
substantive fact alleged in the libel, either admitting or denying
or declaring his ignorance thereof, and to allege such other facts
as he relies upon as a defense, either in part or in whole, to the
case made by the libel.
The proofs of each party must correspond substantially with his
allegations, so as to prevent surprise. But there are no technical
rules of variance or departure in pleading like those in the common
law, nor is the court precluded from granting the relief
appropriate to the case appearing on the record and prayed for by
the libel because that entire case is not distinctly stated in the
libel. Thus, in cases of collision it frequently occurs that the
libel alleges fault of the claimant's vessel; the answer denies it,
and alleges fault of the libellant's vessel. The court finds on the
proofs that both were in fault and apportions the damages.
Looking to this libel, we find it states that a contract of
affreightment was made to transport these goods from Wilmington to
New Orleans on board this brig that the goods were laden on board,
and the brig had arrived, but only a part of the goods have been
delivered. It states the value of the part not delivered, avers
that the libellants have not been paid any part of that sum, prays
for process against the brig, and a decree for the value of the
merchandise not delivered and also for such other relief as to law
and justice may appertain.
The answer admits all the facts stated in the libel, but sets up
by way of defensive allegation a necessary jettison of that part of
the cargo not delivered. It is manifest that though this answers,
in part, the claim for damages made by the libel, it does not
wholly answer it. It shows sufficient cause why the libellant
should not assert a lien on the brig for the whole value of his
merchandise, but at the same time shows that the libellant has a
valid lien on the brig for that part of the value of the
merchandise which the vessel is bound to contribute. While it
asserts that the performance of the contract of affreightment by
transportation of the merchandise to New Orleans was excused by a
peril of the sea, it admits that an obligation arose out of the
relations of the parties created by that contract of affreightment
and out of the facts relied on as an excuse for not transporting
the merchandise; that this
Page 60 U. S. 173
obligation was to pay to the shipper a part of the value of his
goods; that it was the duty of the master at the port of New
Orleans to ascertain what part of that value the vessel was bound
to contribute, and that there is a lien on the vessel to secure its
payment.
If the technical rules of common law pleading existed in the
admiralty, there might be difficulty in admitting a claim for
general average in an action founded on a contract of
affreightment, because, though the claim for such average grows out
of the contract of affreightment, the implied promise to pay it is
technically different from the promise on the face of a bill of
lading. In the case of
Pope v. Nickerson, 3 Story 465, Mr.
Justice Story went into a very extensive examination of such
claims, under an agreed statement of facts, in an action of
assumpsit on bills of lading, and it does not seem to have occurred
either to him or the counsel that it was inconsistent with any
substantial rule of the common law so to do.
But in the admiralty, as we have said, there are no technical
rules of variance or departure. The court decrees 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.
But where, as in this case, the defensive allegation of the
respondent makes a complete case for the libellant, so that no
evidence in support of it is required, and where that case is
within the form of action and the prayer of relief and the process
used by the libellant, we think it not a sufficient reason for
refusing relief that the precise case on which the court think fit
to grant it is not set out in the libel.
We understand that in the court below the libellants relied on
the duty of the master to adjust and collect and pay to them, the
general average contributions, as precluding the defense of a
necessary jettison. We think this defense was properly overruled.
The libellants did not there insist on their lien on the vessel for
its contribution. We do not consider their failure to do so
precludes them from calling on this Court to make that decree, to
which the record shows they are entitled. In
Finlay v.
Lynn, 6 Cranch 238, this Court was of opinion that
the appellant, whose bill was dismissed by the circuit court, was
entitled to an account on a ground not assumed in the circuit
court. This Court said:
"The plaintiff probably did not apply for this account in the
court below, and it does not appear to have been a principal object
of his bill. This Court therefore doubted whether it would be most
proper to affirm the decree dismissing the bill, with the addition
that it should be without prejudice to any future claim
Page 60 U. S. 174
for profits, and for the debt due from one store to the other,
or to open the decree and direct the account. The latter is deemed
the more equitable course. The decree therefore is to be reversed,
and the cause remanded, with directions to take an account of the
profits of the jewelry store, if the same shall be demanded by the
plaintiff."
But as the libellants failed to call the attention of the
circuit court to this view of their rights, and placed their claim
there solely on the grounds that the jettison was unlawful or, if
lawful, could not be a defense because the master had failed to do
the duty incumbent on him in a case of general average, we think
the decree should be
Reversed, without costs. The cause must be remanded to the
circuit court, with directions to ascertain the amount of the lien
of the libellants on the Ann Elizabeth,
for the share to
be contributed by the vessel towards the loss sustained by the
libellants, and to enter a decree accordingly.
MR. JUSTICE CATRON and MR. JUSTICE CAMPBELL dissented.
MR. JUSTICE CAMPBELL dissenting.
I dissent from that part of the opinion of this Court which
allows to the libellants a decree against the libellee for the
amount of his contributory share in the account of average.
The libel is for the nondelivery of cargo according to the
conditions of a bill of lading. The exemption claimed in the answer
is that the failure was occasioned by a peril of the seas which
made a jettison of the goods necessary, and this issue was tried in
the district and circuit courts.
The objection raised here is that the exemption is not complete,
unless the contributory share of the libellee, to be ascertained in
the first place by the adjustment of an average account, is also
admitted and tendered.
In
Bird v. Astcott, Bulst. 280, which was an action on
the case against a carrier for the nondelivery of goods lost by a
jettison, Coke, Lord Ch.J., cited a case which had been decided,
and said in respect to it,
"We all did resolve that, this being the act of God, this sudden
storm, which occasioned the throwing over of the goods, and which
could not be avoided, and for this reason the plaintiff recovered
nothing."
Mouse's Case, 12 Co. 63.
I have not been able to find a precedent either in the United
States or Great Britain where a contributory share in the nature of
average has been recovered in a contentious litigation in an action
on a bill of lading for the nondelivery of cargo.
But the books of precedents show that average contributions
Page 60 U. S. 175
are recovered in actions, either of special or general
assumpsit, the form of the action depending on the fact of the
adjustment of the account. 2 Chitt.Plead. 50, 152, 161;
Saund.Plead. & Ev. 278
"I entertain a decided opinion," said Chancellor, then Ch.J.
Kent "that the established principles of pleading, which compose
what is called its science, are rational, concise, luminous, and
ought, consequently, to be very carefully touched by the hand of
innovation." 1 Joh. 471,
Bayard v. Malcolm. And the
advantage of an orderly, not to say scientific, system of
administration is as apparent in the courts of admiralty, and the
mischiefs of uncertainty or inexactness are as positive there as in
any other tribunals. Such seems to have been the opinion of Justice
Story.
The Boston, 1 Sum. 328. This difference in opinion
with the Court would not have been the ground of a public dissent
on my part if I had not deemed the decree erroneous and if I did
not believe that the parent error is to be found in this departure
from accurate pleading. The decree treats the liability of the
master or owner for an average contribution as an integral part of
their special written contract of affreightment, and their failure
to pay their share of average is disposed of as a breach of the
express obligation. My opinion is that the obligations are
distinct, though intimately associated, and are referable to
different principles of law, and in the judicial administration of
the United States may be subject to distinct jurisdictions.
The principle of the rule of general contribution, as applied to
the case of a jettison, exists in all commercial nations, and the
rule itself became a part of the statute law of England in the
reign of the Conqueror and that of his youngest son. In a later
period the same principle was applied to a great number of
analogous cases.
The inquiry is upon what courts was the duty devolved of
enforcing and administering this principle of general
jurisprudence, and particularly in the cases of average? In
Berkley v. Peregrave, 1 East. 220, which was a special
action of assumpsit for average on an unadjusted average account,
Lord Kenyon says:
"This action, the grounds and nature of which are fully set out
in the special count, is founded in the common principles of
justice. A loss is incurred which the law directs shall be borne by
certain persons in their several proportions. When a loss is to be
repaired in damages, where else can they be recovered but in the
courts of common law? And wherever the law gives a right,
generally, to demand payment of another, it raises an implied
promise in that person to pay."
In
Dobson v. Wilson, 3 Camp. 480, Lord Ellenborough
said:
"A
Page 60 U. S. 176
court of equity may perhaps be a more convenient forum for
adjusting the claims of the different parties concerned, but if a
shipper of goods which are sacrificed for the salvation of the rest
of the cargo is entitled to receive a contribution from another
shipper whose goods are saved, I know not how I can say this may
not be recovered by an action at law. This is a legal right, and
must be accompanied with a legal remedy. The difficulty of showing
by strict evidence the exact amount of the contribution is great,
but as there are data upon which it may be calculated with great
certainty, I think is no objection to the action."
Price v. Noble, 4 Taun. 123.
Holroyd, in the argument of the case in East., said:
"At the common law, where a contribution was required, a writ of
contribution issued, precedents of which are to be found.
Fitz.Nat.Brev. This has fallen into disuse because, in most
instances, as many persons were concerned, a more easy remedy was
administered in equity."
And so from the earliest of the chancery reports we learn that
chancery will enforce an average or contribution to be made when
necessary, and that it will enforce an agreement among merchants to
pay average. Comyns' Dig., Chan. 2 J., 2 S.;
Hick v.
Pallington, Moor. 442; Ca.Parl. 19. Spence, in his history of
equitable jurisdiction, says
"That the court of chancery, from a period which cannot be
traced but which, as it was also apparently adopted from the Roman
law, was probably coeval with the establishment of the court,
exercised jurisdiction to compel contribution amongst general
shippers of goods, when those belonging to one were thrown
overboard for the safety of the ship, or in cases, as they are
technically called, of general average."
1 Spenc.Eq.Ju. 663. The popular treatises on the chancery system
show that the title "Contribution" is one of great reach,
comprehending a variety of cases which rest upon a familiar maxim
of equity, and that average is only an instance of its application.
How stands the historical evidence in regard to the jurisdiction of
the admiralty courts with reference to his subject? What say the
"Black Book" and "Godolphin," or the controversionalists, Prynne,
or Jenkins, in support of the ancient claims of these tribunals?
What is to be found in the treaty of limits between the courts of
common law and admiralty? In the case of
The Constancia, 2
W.Rob. 488, a question arose upon the distribution of the proceeds
of a ship and cargo which were on deposit in the registry of the
court, in a cause in which its jurisdiction was indisputable.
The claimant asserted a preference in the distribution because a
portion of the cargo belonging to him had been sold
Page 60 U. S. 177
for the repairs of the ship. The learned judge of that court
said:
"As far as my own experience extends, no claim of a similar
description is to be found in the annals of the court -- a
circumstance which naturally induces me to consider with some
carefulness whether the novelty of the claim be specious or real.
In other words, whether, novel in appearance, it does not rest upon
some recognized principles by which other claims have been decided.
What, then, is the true character of the claim in question? It is a
claim on behalf of the owners of certain property shipped on board
of the vessel, and applied to relieve the ship's necessities, and
to enable her to complete her voyage."
"In the case of
The Gratitudinine, Lord Stowell has
held that property so sacrificed is to be considered as the proper
subject of general average, and Lord Tenterden, in his book on
shipping, lays down the same doctrine. If this be so, and if, upon
the authority of my Lord Stowell, thus confirmed by my Lord
Tenterden, I am to consider this claim as a subject of general
average, two considerations immediately suggest themselves. First
whether I have any jurisdiction at all over questions of general
average, and secondly whether I could satisfactorily exercise such
a jurisdiction under the circumstances of this case? The absence of
any precedent where the court has exercised the jurisdiction is of
itself a strong
prima facie proof that I have no authority
to entertain the question at all, and I am the more strongly
inclined to this opinion by the further consideration that in all
cases of average it is essential that the tribunal which is to
adjust it should have the power to compel all parties interested to
come in and to pay their quota. I possess no such power, and if I
could not bring all parties interested before the court, I could
not adjust a general average, which is a proportionate contribution
by all."
These citations from the opinions of the various tribunals which
administer different departments of the judicial power of Great
Britain show that the doctrine upon which average contributions is
made is not peculiar to the maritime code, and also that the
maritime courts of the first commercial power that has existed have
never administered it, and their judges suppose their modes of
proceeding unsuitable to it. In the case of
The
Constancia, the
res was in the custody of the court
of admiralty, yet that court denied the existence of a maritime
lien, or that any liability of the freighters against the ship
could be enforced there. And this is equally apparent from the
doctrines of the courts of chancery and law. In
Hallett v.
Bonsfield, 18 Vesey Jr. 187, which was the case of a shipper
whose property had been overthrown to lighten a ship in a storm and
who moved
Page 60 U. S. 178
to restrain the master and shipowner from delivering any part of
the cargo and receiving the freight or parting with any share of
the ship, Lord Eldon said,
"That in such a case there is a lien upon the goods of each
freighter, for contribution and average, in some sense -- that is,
the master is not bound to part with any part of the cargo until he
has security from each person for his proportion of the loss; but
there is no authority that on the ground that he has a lien to the
extent of entitling him to call on every person to give security
for the amount of their average when it shall be adjusted, every
owner of a part of the cargo can compel the captain to do so, and
it strikes me upon the short time I have had to consider it that is
a length the plaintiff cannot reach. The defendant it is true is a
trustee for others, but the nature of the trust is regulated by the
practice, and there is no instance of an action or a suit in equity
to effectuate the lien otherwise than through the right of the
master to take security, that practice ascertaining the true nature
and extent of the trust."
This lucid statement of the English law explains the meaning of
the older class of writers on commercial law when they speak of the
master's lien and his duty to settle an average account.
Valin observes that the article of the ordinance of 1681, which
confers a right of detention upon the master, does not impose an
imperative obligation upon him, and that he may deliver to each
freighter his goods without fear of consequences, unless specially
required to withhold them. And other writers concur in the opinion
that the freighters, under that ordinance, had no action against
one another. Boucher Droit Mar. 450-451
Lord Tenterden cites this case from Vesey Jr. without dissent in
his work on shipping, Abb. on Ship. 508, and in
Simonds v.
White, 2 B. & C. 805, he describes the power of the master
over the goods "as a power of detention," given in order that the
expense, inconvenience, and delay of actions and suits, may be
avoided. This Court, in
Cutler v. Rae,
7 How. 729, declared that the party entitled to contribution
"has no absolute and unconditional lien upon the goods liable to
contribute. The captain has a right to retain them until the
general average with which they are charged has been paid or
secured, and, that this right of retainer is a 'qualified lien,'
'dependent on the possession of the goods by the master or
shipowners,' and 'ceases when they are delivered to the owner or
consignee, . . . and does not follow them into their hands, nor
adhere to the proceeds,'"
and a corresponding opinion of Lord Tenterden is to be found in
Scaife v. Tobin, 3 Barn. & Ad. 523, in which he
says
"a consignee who is the absolute owner
Page 60 U. S. 179
of the goods is liable to pay general average, because the law
throws upon him that liability, but a mere consigned, who is not
the owner, is not liable."
And this demonstrates that the lien for average is not a
maritime lien. A maritime lien does not include or require
possession. The claim or privilege travels with the thing into
whosesoever's possession it may come. It is inchoate from the
moment the claim or privilege attaches, and when carried into
effect by legal process, by a proceeding
in rem, relates
back to the period when it first attached.
Harmer v. Bell,
2 L. & Eq. 63. These cases show that neither in the
adjudications of the courts of Great Britain or the United States
nor in the usages of their merchants is there any sanction for the
doctrines of this decree. No adjudication during sixty years of our
history is to be found where the power to adjust or to collect an
average account is affirmed or has been exerted by the district
courts sitting in admiralty upon direct application to them for the
purpose.
The importance of the subject will justify me in an examination
of the continental authorities which are supposed to establish the
existence of a maritime lien for contribution. The ancient codes do
nothing more than recognize the existence of a rule of contribution
in regard to losses arising from a jettison, or cases of a similar
character, and the master's power of detention of the cargo saved
for the security or payment of the contributory shares, but they do
not ascribe any greater operation to the rule either in affecting
property or in designating the jurisdictions to which the
enforcement of the rule should be committed.
The leading authority cited for the doctrine that average
affords a maritime lien on the property saved is found in a line of
Emerigon, who says, "the action in contribution is real in its
nature."
But that author discriminates the feature in a real action to
which the action in contribution has any resemblance. The feature
is "that the action vanishes if the effects saved by means of the
jettison perish before arriving at their destination."
The real action is for a thing, or to assert some right in it,
and is terminated by its surrender or destruction without the fault
of the possessor. So long as the ship and cargo are exposed to
peril in the same voyage in which the jettison is made, the action
in contribution is inchoate and dependent on the ultimate safety of
the thing, and thus far it resembles a real action. But when the
safety of the ship and cargo is confirmed, the liability of the
contributories becomes personal, and the sums due are recoverable
without further reference to
Page 60 U. S. 180
them -- in France by action in contribution, and in England by a
bill in equity for contribution or action of assumpsit. It is a
great mistake to suppose that the action in contribution was a
hypothecary action, as I shall hereafter show.
In the time of Emerigon it was thrown upon the master, as the
legal attorney of all persons interested in the ship and cargo. It
was his duty to collect the contributory shares and to pay them
among the parties concerned, but he was not liable for the shares
of insolvents, nor obliged to detain the goods, and that was an
unusual, if not an unprecedented remedy.
The ordinance of 1681 simply permitted this remedy to be used.
This ordinance was defective in not defining the rights of the
master in the goods liable to contribution. The ordinance did not
take the precaution to establish the existence and legitimacy of
privileged claims is the testimony of those who framed the Code of
Commerce of Napoleon. 3 Locre Com. 22. The Code of Commerce was
framed to repair what was considered a defect. In reference to
average, it provides "that in all the cases before mentioned, the
master and mariners have a privilege on the goods or their proceeds
for the amount of the contribution." This clause was not in the
"projet" of the commission, nor in their revision, but
after successive changes, the article appears in this form for the
first time in the final draft of the code. The
jus in re
is conferred by this clause on the master, and he may proceed to
enforce his rights by judicial seizure and sale, or opposition, or
he may sue each contributory for his share in contribution, and is
responsible in an action to each of them. But the evils of dormant
liens are removed by limitations upon the extent and duration of
the claim. The code bars actions against the freighter who receives
his goods and pays his freight without a legal notice of the claim
for average, and each claim must be notified in twenty-four hours
to the opposite party, and be pursued by judicial demand in one
month. Thier Droit Con., 41, 124, 277; 4 Locre Com.; 3 Pard. Droit
Com., sec. 750; 18 Dall. 544.
Other articles define the liability of the owner, and the
contributory share of the ship and cargo, the responsibility of the
master, and create a privilege upon the ship and freight to answer
the agreements of the charter party, and whatever defaults of the
master and mariners. Thiernt Con.Droit 28, sec. 2; 29, sec. 11;
Code de Com., 190, secs. 11, 216, 222, 280.
The commentaries of Pardessus, Locre, Boulay, Paty, and other
authors are made upon these enactments of French statute law. They
affirm that these articles establish as the
Page 60 U. S. 181
law of France that the freighter of a ship is obliged by a
contract or
quasi-contract to the master to contribute his
share of an average contribution, and that the master engages to
indemnify the freighter whose property has suffered or been
sacrificed for the common benefit, and that reciprocal rights of
action are given to either party. I have no occasion to question
the accuracy of their conclusions, nor to deny that the code itself
embodies the usages, experience, and regulations of the French
nation in the management of their commerce, and is adapted to the
wants and habits of their merchants. And no one can doubt that the
authority of Louis XIV and Napoleon was adequate to the
introduction of the ordinance and the code. But the question arises
here -- and it is one of grave import to those who desire to
preserve the Constitution of the Union inviolate, and the limits it
prescribes to the judicial power of the federal government, and the
lines of division among the federal courts undisturbed -- the
question arises by what authority is it that the commercial system
of France, the product of the legislative authority of her
monarchs, has become the basis for judicial decision in the courts
of the United States, and her legal administration of purely
municipal regulations is taken as a guide to determine the
jurisdictional limits of those courts of justice? That Congress may
prescribe rules in reference to the settlement of average
contributions, arising in the foreign or federal commerce of the
country, may be admitted, and also may assimilate the American and
French systems of commercial regulation. But I am not prepared to
admit that this can be done by judicial authority.
The commercial systems of Great Britain and the United States
recognize no such contract between the masters and freighters as
the French code establishes; they invest the master with no such
privilege upon the property of the shippers; they confer no such
powers to maintain suits, and subject him to no such liabilities.
The policy and spirit of the British and American commercial
systems tend to restrain the agency and control of subordinates to
precise limits in settlements or contests with respect to property
and obligations; wherever it can be done, they bring the owners of
the property, and the principals in the obligations, to confront
one another. In my opinion, this decree introduces a new principle
into the American commercial system, and that this interpolation
adds to the jurisdiction of the judiciary department of this
government. This is done by judicial authority. In my opinion, the
Constitution does not give such a power to this Court. I therefore
dissent from the decree.
Page 60 U. S. 182
Having carefully examined the foregoing opinion of MR. JUSTICE
CAMPBELL after it was in print, I am satisfied with its
correctness, and concur therein.
"J. CATRON"
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Louisiana, and was argued by counsel. On consideration
whereof, it is now here ordered, adjudged, and decreed by this
Court that the decree of the said circuit court in this cause be
and the same is hereby reversed, without costs, and that this cause
be and the same is hereby remanded to the said circuit court with
directions to ascertain the amount of the lien of the libellants on
the
Ann Elizabeth for the share to be contributed by the
vessel towards the loss sustained by the libellants, and to enter a
decree accordingly.