The liability of a cargo to contribute, in general average, in
favor of the ship does not continue after the cargo has been
completely separated from the vessel, so as to leave no community
of interest remaining.
This principle illustrated in the following case:
A ship was stranded near her port of destination, and the
underwriters upon her
cargo sent an agent to assist the
master in getting her off. The master and agent made all proper
efforts to do this for two days, when not succeeding at all, and
the water increasing in the vessel, they began to discharge the
cargo in lighters, still making efforts to save the ship. This
discharge of the cargo occupied four days, by which time the whole
of it was taken off, and, with the exception of a very small
fraction in the lower hold and not discovered, taken to the ship's
agents, who subsequently delivered it to its consignees, they
giving the usual
Page 70 U. S. 348
average bond. By the time that the cargo was thus all got off,
the vessel, not assisted by being lightened, was settling in the
sand, with the tide ebbing and flowing through her as she lay. The
agent considering her case hopeless, and the consignees of the ship
having refused to authorize him to incur any further expense, now
went away.
On the next morning, and while the master was yet aboard, the
underwriters on the
vessel sent
their agent, who
got to work to float the vessel. Soon after the new agent came, the
crew refused to do duty. The agent got new bands, and the crew went
away. They were soon followed by the master, he leaving the vessel
after the new agent had been in charge of her for four days. After
six weeks' labor, and an expenditure of money somewhat exceeding
her value when saved, the new agent succeeded in floating and
rescuing the ship. The remnants of the cargo, in a damaged state,
were delivered to its consignees.
On a suit by the owners of the ship against the consignees of
the cargo for contribution in general average for the expenses
incurred after the master went away,
held that the case
was not one for contribution; there having been, as the court
considered, no community of interest remaining between the ship and
cargo after the master, in the circumstances of the case, had left
the ship.
The ship
Rachel, owned by Thatcher and others, of
Boston, sailed from Liverpool for New York in July, 1859, with a
cargo consisting, among other things, of four hundred and four
boxes of licorice paste consigned to McAndrews in New York. The
vessel, with her cargo, arrived in safety inside of Sandy Hook on
the 21st of September, but in coming up the bay, struck in a gale
on the west bank in the lower harbor and became fast.
Regarding the ship and cargo as in peril, the master accepted
the services of a steamer which that same day came alongside to get
her off. This steamer passed her hawser board and made fast, but,
finding that her power was not sufficient to accomplish the object,
she set a signal for another steam tug. Another immediately came to
her aid. The power of both combined was tried, but they could not
start the ship from the place where she lay imbedded in the sand.
These steamers continued their efforts for several hours. During
this time, a third steamer came alongside and made fast to the
ship; but in her endeavor to start it parted her hawser, and all
came to the conclusion that then efforts were fruitless.
Page 70 U. S. 349
The master, at six o'clock the same afternoon, left the ship and
went to the port for advice and assistance, but the mate and
mariners remained on board. At four o'clock on the following
morning, it appeared that there was fourteen and a half feet of
water in the ship, and that this was fast increasing. The cargo was
insured in New York and the ship in Boston. The underwriters of the
cargo, with the knowledge and consent of the consignees of the
ship, during the forenoon of the second day after the disaster,
sent a steamer and their agent, a certain Captain Merrit, to the
ship, for the purpose of saving, if possible, both it and the
cargo. The steamer had a schooner in tow, and every necessary
appliance -- such as steam pumps and wrecking apparatus -- to
rescue the ship, or, if necessary, to discharge the cargo. These
continued their efforts, under the direction of the master, who had
returned to his ship, for two days, but, finding that they were
unable to get the ship off, they got to work to
discharge the
cargo into lighters, and transport it to its place of
destination. The discharge of the cargo occupied four days,
i.e. till the 26th of September, during which time three
hundred and ninety-one boxes of the licorice paste were taken
off.
The cargo so discharged and transported was placed in the
custody of the
agents of the ship, who, upon receiving the
usual average bond, delivered the same to the consignees.
Efforts to get the ship off were continued by these parties until
the said twenty-sixth of September, when the steam pumps were taken
down and carried away, having finished discharging the cargo.
Before the agent left the vessel finally he went to New York and
consulted with the consignees of the ship. These refused to
authorize him to incur any further expense; the ship at that time,
as positive testimony declared, having been settling in the sand,
with the tide ebbing and flowing in her as she lay.
Intelligence of the disasters having reached the underwriters of
the
ship, they sent
their agent, one Captain
Morris, to the vessel. He went on board at one o'clock the next
morning, after the other agent went away, and took charge
Page 70 U. S. 350
of her; but the crew soon afterwards came aft and refused to do
duty. Deprived of their services, he went immediately to New York
and employed other men to supply their places, and the crew left
the ship. The next two days were spent in procuring oil casks, and
in attempts to buoy the ship by their use, but without any
beneficial result, except to save some of the materials of the
vessel. It was found, on the next morning (that of the 30th), after
a storm, that the ship, at her hatches, had eighteen feet of water,
and as the sea was breaking over her, and she was apparently going
to pieces, her main topmast was, by order of Morris, cut away.
The master, unable to do more than he had done, now abandoned
the ship, and left her where she lay, in charge of Morris, the
agent of her underwriters. Not discouraged by her condition, Morris
continued his endeavors until the 11th of November following, and
on that day, by the assistance of two steamers,
succeeded in
getting her free, and towed her up to the Marine Railway, at
Hunter's Point, for repairs. The value of the ship as saved was
somewhat less than the expense of getting her off after Morris came
on board. Examination made at the Marine Railway showed that there
were remnants of the cargo, in a damaged state, [
Footnote 1] including eleven boxes of the
licorice paste, not till then discovered, on board. These were
discharged and delivered to the consignees. [
Footnote 2]
The shipowners sued the consignees of the licorice paste in the
District Court for the Southern District of New York, for
$3,363.89, adjusted as in the note for their ratable proportion
Page 70 U. S. 351
of the expenses incurred in saving the ship after Morris came on
board. The court below was of opinion that the claim was well
founded in law, and charged accordingly.
Its opinion expresses so well one view which may be taken of the
case that the reader will gain by having it entire:
"This is, perhaps, a close case, but we are inclined to think
that, on principle, the cargo of the defendants is bound to
contribute in general average to the expenses of saving the vessel.
The fact that the vessel stranded near the port of destination has
somewhat embarrassed the case, taken in connection with the
circumstances attending the delivery of the cargo by lighters. It
is open to the observation that the cargo was not only separated
from the vessel and the common impending peril, before most of the
expenses in relieving the latter were incurred, but that the
separation took place at the instance and expense of the consignees
of the cargo. This view, however, to the extent stated, is not
sustained by the evidence. The cargo was discharged into the
lighters to relieve the vessel, and the delivery then at the port
of destination is attributable to the accident of the proximity of
the port. The cargo was at the risk and responsibility of the ship
until delivered by her consignees on receiving bound for average
contribution."
"It is true, in a literal sense, that after the discharge of the
cargo upon the lighters, and separation from the ship, the safety
of the cargo no longer depended upon the saving of the vessel, and
hence that there was no longer any common peril impending or
benefit derived from the expenses incurred. But is this true in a
more general view of the facts of the case, or in contemplation of
law? By the accident which occasioned the stranding of the vessel,
both the vessel and cargo were exposed to one common danger, and
the expenses incurred were incurred with a view to the safety of
both, and of course for their common benefit. Steam tugs were
employed, and efforts made to start the vessel from her sand bed --
steam pumps and wrecking apparatus used. These efforts failing,
then commenced sending down yards and spars, and placing cargo into
lighters. All these were expenses incurred, and efforts made by the
master, who represented the interests of all concerned. These
efforts were
Page 70 U. S. 352
continued by the master until and after he was joined by Captain
Morris, the agent sent by the underwriters of the ship, who then
took charge of the business."
"The question, under these circumstances, is this -- was the
cargo exempt from all expenses incurred in relieving the ship after
it was placed in safety upon the lighters? We agree that, if the
consignees of the cargo had accepted it thus delivered, at the
sides of the stranded ship, the separation would have been
complete, and it would have been no longer connected with the
danger or its incidents. But this cannot be pretended. The cargo
continued as a part of the adventure not yet terminated. It cannot
be doubted but if any damage had happened to it in the transfer to
the lighters, or in the conveyance to the port, the loss would have
been the subject of general average, and the ship liable for its
share. And in this sense the cargo is still interested in the
safety of the ship. It is said the consignees of the cargo do not
claim any average contribution. But their release or waiver cannot
affect the question. The test is is the vessel legally liable?"
"There is certainly a difficulty in laying down any general rule
by which to determine the measure of expense the master or owner,
in case of a vessel stranded by a peril of the sea, may incur, and
to which the cargo saved must contribute. That expenses may be
incurred, indeed that it is oftentimes the duty of the masters or
owner to incur them, is not to be denied. We do not see but the
measure of them must depend upon the exercise of sound judgment and
good faith, under all the circumstances of the case. No fixed
amount can be settled in advance. There may be abuses, as in every
case where the rule of liability turns upon the exercise of the
human judgment in the given case. The only remedy we know of
consists in the supervision of the courts. We cannot say, in this
case, that the owner should have ceased his efforts when the cargo
was saved, or that he forfeited his right to the contribution by
the continuance of them."
The jury having found in favor of the plaintiff for the
$3,363.89 claimed, and judgment having gone accordingly, the case
was now here on exceptions and error.
Page 70 U. S. 364
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
[
Footnote 3]
Views of the defendants are, that the case, as stated, is not a
case for contribution in general average, and that the court erred
in instructing the jury that the plaintiffs were entitled to
recover.
Primary proposition maintained by the defendants is that
expenses incurred in a voyage, although they were necessary and
proper, are not to be carried into general average unless they were
of an extraordinary character, nor unless it appears that they were
incurred for the joint benefit of the ship and cargo, and that
inasmuch as it appears in this case that the cargo had been stored
in safety, at the place of destination, before the expenses, for
which the suit was commenced,
Page 70 U. S. 365
were incurred, the claim of the plaintiffs cannot be
sustained.
Decision and judgment in the case must depend upon the question
whether the several sums expended by the agent of the underwriters
of the ship after he went on board and took charge of the vessel
and the men and means employed to save her were properly carried
into the adjustment, because it is plain that if those sums are not
properly included in the expenses of general average, the judgment
should be reversed.
I. Sacrifices, voluntarily made in the course of the voyage, of
part of the ship or cargo to save the residue of the adventure from
an impending peril or extraordinary expenses incurred for the joint
benefit of both ship and cargo, and which became necessary in
consequence of a common peril, are usually regarded as the proper
subjects of general average.
All losses which give a claim to general average contribution,
says a standard writer upon the law of insurance, may be divided
into two great classes:
1. Those which arise from sacrifices of part of the ship or part
of the cargo, purposely made in order to save the whole adventure
from perishing.
2. Those which arise out of extraordinary expenses incurred for
the joint benefit of both ship and cargo. [
Footnote 4]
Present case, if the defendants are liable at all, falls within
the latter class, and consequently it will not be necessary to
remark upon the former class, although cases of jettison are much
more frequently presented for decision than cases growing out of
the stranding of the vessel. Stranding in this case was
involuntary, but it cannot be doubted that the ship and cargo were
jointly exposed to a common peril and were in imminent danger of
being wholly lost. Such being the fact, it is clear that the
expenses of saving the ship and cargo were a proper subject of
joint and ratable contribution in general average by vessel,
freight, and cargo, provided the vessel and cargo were saved by the
same series of measures
Page 70 U. S. 366
during the continuance of the common peril which created the
joint necessity for the expenses. [
Footnote 5]
Undoubtedly the community of extraordinary peril commenced with
the stranding of the vessel, but the question is where it
terminated? Three theories may be suggested:
1. That it terminated when the cargo was separated from the
ship, and was transported to the port of destination and delivered
to the consignee.
2. That it terminated when the master, acting in good faith as
the agent of all concerned, yielded to the necessities of his
situation and abandoned the endeavors to save the ship, and left
her where she was stranded, in charge of the agent of her
underwriters.
3. That it did not terminate until the ship was got off from the
bank where she was stranded, and arrived at the marine railway for
repairs in her port of destination.
Theory of defendants is substantially expressed in the first
proposition, but the plaintiffs insist that the community of peril
did not terminate until the arrival of the vessel at the port of
destination, and if not, then the charge of the court was correct,
and the judgment of the court must be affirmed.
Natural justice requires that where two or more parties are in a
common sea risk, and one of them makes a sacrifice or incurs
extraordinary expenses for the general safety, the loss or expenses
so incurred shall be assessed upon all in proportion to the share
of each in the adventure, or, in other words, the owners of the
other shares are bound to make contribution in the proportion of
the value of their several interests. [
Footnote 6]
Courts universally admit that the Rhodian law was the parent of
maritime contribution, although, in terms, it made no provision for
any case of general average, except for that of jettison of goods
as the means of lightening the vessel. But the rule, as there laid
down, has never been understood as being confined to that
particular case, but has always
Page 70 U. S. 367
been regarded as a general regulation, applicable in all cases
falling within the principle on which it is founded.
Principle of the rule is that "what is given for the general
benefit of all, shall be made good by the contribution of all," and
hence it is that losses, which arise out of extraordinary expenses
incurred for the joint benefit of ship and cargo, are as clearly to
be carried into the adjustment as those which arise from sacrifices
of part of the ship or part of the cargo.
Settled rule, also, is that when a vessel is accidentally
stranded in the course of her voyage, and by labor and expense she
is set afloat, and completes her voyage with the cargo on board,
the expense incurred for that object, as it produced benefit to
all, so it shall be a charge upon all, according to the rates
apportioning general average. [
Footnote 7]
In case of accidental stranding, says Mr. Phillips, the expenses
incurred for getting off the vessel, as far as they are incurred
for the purpose of saving the ship, cargo, and freight, and are
common to all those interests, are a subject of contribution by
all. Expenses, however incurred for any separate interest, he says,
are wholly chargeable to that interest, and there can be no doubt
that the proposition, as stated, is correct as a general rule, and
yet it is apparent that there will often be difficulties in its
application. Foreseeing those difficulties, the same author
attempts to obviate them by three practical illustrations, which it
becomes important to notice:
1. That if the ship is got off without discharging the cargo or
by discharging only a part of it, then the whole expense is general
average unless the vessel needs repairs, but if she needs repairs,
those are particular average.
2. That if the vessel does not float when the whole cargo is
discharged, the subsequent expenses do not concern the cargo, but
are particular average on the vessel in the same manner as
repairs.
Page 70 U. S. 368
3. That goods, when landed from a stranded ship and delivered to
the consignee, cease to be liable to contribute for expenses
subsequently incurred.
Unquestionably the rule enunciated in the first illustration is
correct, but grave doubts are entertained whether the second and
third can be admitted in all cases without important
qualifications.
Although the stranded vessel may not float as a consequence of
the unlading of the goods, still she may be so lightened by the
operation that the usual appliances at hand may be amply sufficient
to enable the master to rescue the vessel without much expense or
delay and put her in a condition to receive back the cargo and
transport it to the port of destination, and in the case supposed
it cannot be doubted that the expense of saving the vessel, as well
as the expense of preserving and reloading the cargo, would be the
proper subject of general contribution.
So where the cargo consists of various consignments and the
vessel is stranded in the harbor of the port of destination, it
will seldom or never happen that all the consignments will be
delivered at the same time. On the contrary, some of necessity will
be delivered before others, and yet if the unlading of the cargo
has the effect to make the vessel float, and the whole adventure is
saved by one continued, unremitted operation, under the directions
of the master as the agent of all concerned, it would seem that the
case was one falling directly within the equitable principle of
general average, which requires that all the interests shall
contribute for the expenses incurred to save the whole adventure
from common peril. [
Footnote
8]
Unless the rule is so, a new statement of the adjustment would
be necessary upon each respective part of the cargo delivered as
they successively reached a safe destination, which would be
impracticable, and contrary to the usual course of adjusting such
losses.
On the other hand, it is an undoubted rule that goods, or
Page 70 U. S. 369
any interest, are not liable to contribute for any general
average or expenses incurred subsequently to their ceasing to be at
risk; because all that was not actually at risk at the time the
sacrifice was made or the expense incurred was not saved thereby,
and no interest is compelled to contribute to the loss or expense
which was not benefited by the sacrifice. [
Footnote 9]
II. Light is shed upon this inquiry by referring to the duty of
the master, who, in case the vessel is stranded, becomes the agent
of all concerned. Duties remain to be performed by the master, as
the agent of the owner or of all concerned, after the voyage is
suspended by the stranding of the vessel. His duty is, if
practicable, to relieve the ship and prosecute the voyage, and his
obligation to take all possible care of the goods still continues,
and is by no means discharged or lessened while it appears that the
goods have not perished with the wreck. Safe custody is as much the
duty of the carrier as due transport and right delivery, and when
he is unable to carry the goods forward to their place of
destination by the stranding of the vessel, he is still bound by
the original obligation to take all possible care of the goods, and
is responsible for every loss or injury which human skill and
prudence could prevent. [
Footnote 10]
Conscious of the nature and extent of his obligations, the
master accepted the services of the several steamers which went to
the relief of the ship, and continued his endeavors to save both
ship and cargo until the latter was safety delivered at the port of
destination and until the consignees of the ship declined to
authorize any further expense.
Evidence as reported is satisfactory that the master acted
throughout in good faith, and there is not the slightest ground to
conclude that he was wanting either in personal energy or in
nautical skill. Take the circumstances as detailed in the statement
of the case, and it is clear that he
Page 70 U. S. 370
could not have been justified in doing less than he did; but the
question is whether or not he was required to do more? Plainly his
duty was not ended when the vessel was stranded, nor even when the
cargo had been removed for the double purpose of saving it and of
lightening the ship, as a part of the means adopted to get her
off.
Means devised on the occasion were such as are usually employed
for the purpose, and not a doubt is entertained that if the master
had been successful in saving the ship as well as the cargo, the
whole expense, inasmuch as it was the result of one continuous,
unremitted operation, would have been properly regarded as a
general average expenditure. Where the ship is stranded, much is
necessarily confided to the discretion of the master, and if the
ship had been saved through the means which he employed, it is
clear that the expenditure would have fallen directly within the
definition of general average as given by the best writers upon the
subject.
III. General average denotes that contribution which is made by
all who are parties to the same adventure towards a loss arising
out of extraordinary sacrifices made or extraordinary expenses
incurred by some by them for the common benefit of ship and
cargo.
Usual conditions annexed to such a loss, in order that it may be
the object of such contribution, as generally stated, are that it
must have been of an extraordinary nature, advisedly incurred,
under circumstances of imminent danger, for the common benefit of
ship and cargo, and it must have aided at least in the
accomplishment of that purpose. [
Footnote 11]
Suggestion is that the cargo was separated from the ship, but
the mere fact that the cargo is unladen, although it is done in
part for the purpose of saving the goods, yet if it is also done
for the purpose of lightening the vessel and as a means of causing
her to float and of saving her from the common peril, will not
necessarily divest the transaction of
Page 70 U. S. 371
its character as an act performed for the joint benefit of the
ship and cargo.
Except when the disaster occurs in the port of destination or so
near it that the voyage may be regarded as ended, the master, if
the goods are not perishable, has the right, and if practicable, it
is his duty, to get off the ship, reload the cargo, and prosecute
the voyage to its termination.
Where the whole adventure is saved by the master, as the agent
of all concerned, the consignments of the cargo first unladed and
stored in safety are not relieved from contributing towards the
expenses of saving the residue, nor is the cargo in that state of
the case relieved from contributing to the expenses of saving the
ship, provided the ship and cargo were exposed to a common peril
and the whole adventure was saved by the master in his capacity as
agent of all the interests and by one continuous series of
measures.
Ship and cargo were in imminent danger from a common peril, and
under those circumstances it was the duty of the master, as the
agent of all concerned, to use his best endeavors and employ his
best exertions to save the whole adventure.
Viewing the matter in that light, his first efforts were
directed to the object of relieving the vessel by means of the
steamers which came alongside; but, finding that the ship was too
fast in the sand to be got off by those means, he commenced to
discharge the cargo, to save the goods and lighten the ship as
apparently the best possible measure which could be adopted to save
the whole adventure.
IV. None of these propositions is controverted by the
plaintiffs, but they insist that the subsequent expenses incurred
by the agent of the underwriters of the ship should also be carried
into the adjustment, and that the cargo saved by the master should
be adjudged liable to contribute towards the expenses incurred by
the agent of the underwriters of the ship in accomplishing, at the
end of six weeks, what the master abandoned as hopeless and as a
total loss.
Before the last-named agent came on board, the master,
ascertaining that the consignees of the ship would not
authorize
Page 70 U. S. 372
any further expenditure, had dismissed the steamers that went to
the aid of the ship and had sent back to the port all the steam
pumps and wrecking apparatus he had employed in his endeavors to
save the ship as well as the cargo, and had, in fact, decided to
abandon the ship as a total loss, and left her in charge of the
agent of her underwriters.
Prior to that decision, the cargo, except a few remnants of
small value, subsequently found in the lower hold, had been
discharged into lighters and transported to the place of
destination and had been delivered into the possession of the
consignees.
Having saved the cargo, and finding that further efforts to save
the ship with the means at his command were fruitless, he
relinquished his endeavors and abandoned the undertaking.
Such are the undisputed facts of the case, and under the
circumstances it is not possible to hold that the ship, as
subsequently got off, was, as matter of fact, saved by a
continuation of the same series of measures as those by which the
cargo was saved.
Complete separation had taken place between the cargo and the
ship, and the ship was no longer bound to the cargo nor the cargo
to the ship.
Undoubtedly the doctrine of general average contribution is
deeply founded in the principles of equity and natural justice, but
it is not believed that any decided case can be found where the
liability to such contribution has been pushed to such an extent as
that assumed by the plaintiffs. [
Footnote 12]
V. First case cited for the plaintiffs is that of
Bevan v.
United States Bank, [
Footnote 13] which is the strongest reported case in
their favor. Plaintiffs were the owners of the vessel, and the
defendants were the owners of a certain quantity of specie, which
constituted a part of the cargo. Voyage was
Page 70 U. S. 373
from New Orleans to Philadelphia, and the vessel was stranded in
Delaware Bay in a situation of imminent peril. Statement of the
case shows that the specie was among the first articles landed, and
it was immediately sent overland to the port of destination, and on
the following day was delivered to the defendants. Eight weeks
afterwards the vessel reached the same port in safety with the
remainder of the cargo, which had been discharged into lighters and
was afterwards reshipped. Supreme Court of Pennsylvania held that
the defendants were liable to contribute in general average to the
charges and expenses incurred subsequently to the landing of the
specie.
Much stress is laid in the opinion of the court upon the fact
that the vessel and the residue of the cargo left on board, were
subsequently brought into port by the extraordinary exertions of
the master, and if the conclusion can be sustained at all, it must
be upon the ground that the whole adventure was saved by a
continuous series of measures prosecuted by the master as the agent
of all concerned which commenced with the saving of the specie and
ended with the saving of the vessel and the residue of the cargo.
Stranding in that case was outside of the harbor of the port of
destination, and there was no abandonment of the vessel nor any
suspension in the endeavors of the master to save the entire
adventure. But the statement of the case shows that the master and
mariners remained on board and that they saved the ship, and having
returned the residue of the cargo to the ship, the same was duly
transported to the place of destination. [
Footnote 14] Standard text writers have doubted the
correctness of that decision, [
Footnote 15] but it is unnecessary to determine the
question at the present time, as it is clearly distinguishable from
the case before the Court.
Second case cited is that of
Bedford Com. Ins. Co. v.
Parker, [
Footnote 16]
which can scarcely be reconciled with the preceding
Page 70 U. S. 374
case. Insurers of the ship were the plaintiffs, and the
defendants were the owners of the cargo. She was stranded nine
miles from the port of destination. Part of the cargo was saved by
men employed by the owners of the same, at their own expense. Other
parts of the same were subsequently saved by the underwriters of
the ship, and it appears that at one time the latter had a hundred
men employed in efforts to save the cargo and the sails and rigging
of the vessel. They afterwards entered into a contract with a third
party, and agreed to pay a certain sum if he would save the ship
and the residue of the cargo.
Reported facts show that the contractor ultimately succeeded,
and brought the ship and such part of the cargo as remained on
board safely into the harbor, and the court held, and well held,
that only that part of the cargo which was on board when the
contract was made, was liable to contribute in general average to
pay the amount as stipulated in the contract. Clear inference, from
the statement of the case, is that the master had abandoned the
ship, and that he had no participation in the previous endeavors to
save the cargo. Decision was that everything which is saved in such
a case, by common expense and labor, shall contribute to pay that
expense in proportion to its value, but the court decided that the
part of the cargo taken from the vessel by the owners, before the
contract was made, was not saved by the successful efforts of the
contracting party, and there can be no doubt that the decision was
correct. [
Footnote 17]
Earliest case upon the subject is that of
Shepherd v.
Wright [
Footnote 18]
which was an appeal from a decree in the Court of Chancery.
Appellants shipped a part of the cargo, and were the owners of the
ship, and the residue of the cargo belonged to the respondents.
Ship sailed from Messina, bound to London, and on the voyage she
was chased by an armed vessel into Malaga. Advised of the danger,
the factor of the ship sent lighters to the master, to save what he
could of the cargo;
Page 70 U. S. 375
and as the goods of the respondents were silks, they were first
carried on shore. Night came, and the armed vessel left, and as the
danger no longer continued, the master forbore to land any more of
the goods. Six days afterwards the armed vessel returned, and
captured the ship and the goods on board, belonging to the
appellants.
They brought the bill of complaint against the respondents, to
compel contribution; but the chancellor dismissed the bill of
complaint, and the decree was affirmed in the House of Lords.
Ground of the decree was that the appellants' loss did not
contribute to the preservation of the respondents' shipment. Whole
adventure was saved from the first peril, and the shipment of
respondents was not exposed to the second, by which the ship and
the appellants' goods were lost. Evidently the case was rightly
decided, and it is perfectly consistent with the views herein
already expressed. [
Footnote
19]
Third case cited by the plaintiffs is that of
Nelson v.
Belmont, [
Footnote 20]
which has an important bearing upon the question under
consideration. Plaintiff in that case being the owner of the ship,
claimed general average contribution of the defendant, as the
shipper of a certain amount of specie. Intended voyage was from New
Orleans to Havre, but the ship was struck with lightning in the
Gulf Stream, and was obliged to make a port of distress. Unable to
extinguish the fire, the master signaled a vessel in sight, and
accepted assistance. He transferred the specie to the other vessel,
and the arrangement was that the other vessel should accompany the
vessel in distress to Charleston, but after arriving in the harbor,
and before the vessels reached the wharf, the master took back the
specie, and subsequently deposited it in bank. Damage was done to
the residue of the cargo by the fire, and the means adopted to
extinguish the fire, after the vessel reached the wharf, caused her
to sink, and the master was obliged to incur expense to raise the
vessel, in order to prosecute the voyage. Judgment of the Court of
Appeals was that the specie was liable, in
Page 70 U. S. 376
general average, for the amount paid for the services of the
other vessel, and for the expenses incurred at the port of
distress.
Precise doctrine advanced was that the liability to general
average continues until the property has been completely separated
from the rest of the cargo, and from the whole adventure, so as to
leave no community of interest remaining. Majority of the court
went farther and held that if the voyage is not abandoned, and the
property, although separated from the rest, is still under the
control of the master, and liable to be taken again on board for
the purpose of prosecuting the voyage, the common interest remains,
and whatever is done for its protection, is done at the common
expense. Correctness of that decision cannot be doubted, and yet
the question may often arise in practice, whether in a given case
the separation is, or is not so complete as to justify the
conclusion that no community of interest remains. Close cases may
doubtless arise, but it is believed that in general there will not
be much difficulty in ascertaining the true line of
distinction.
VI. Where a ship was stranded by perils of the sea, and in order
to lighten the vessel, the cargo was discharged and forwarded in
another vessel, and subsequently new measures were adopted, and
additional expenses were incurred in getting the ship off and
taking her into port for repairs, it was held that the expenses
incurred from the misadventure until the cargo was discharged,
constituted a general average, but that the subsequent expenses
were particular average, and chargeable only to the ship. [
Footnote 21]
Statement of facts shows that it became necessary to cut a
channel for the vessel, and employ a steam tug in order to get the
vessel off; and the view of the court was that the goods had been
previously saved by a distinct and
completed operation,
and that afterwards a new operation began for the benefit of the
shipowner.
Page 70 U. S. 377
Judgment in that case was given by Lord Campbell, and in a
subsequent case he repeated and enforced the reasons on which the
former judgment rested. [
Footnote 22] Voyage, in the last case, was from Liverpool
to Callao. Ship was driven on a bank by a storm near the port of
departure. Cargo was discharged and transported back to the port
whence it came, and some days afterwards the ship was got off,
taken to the port and repaired, and again took the cargo on board
and proceeded on the voyage, and it was held that the saving of the
ship and of the cargo was one continued transaction, and that the
expenses were general average to which the ship, freight, and cargo
must contribute. Considering that the goods remained under the
control of the master until the ship was got off, repaired, and was
enabled to take the goods on board and prosecute her voyage, it is
clear that the decision was correct and entirely consistent with
the previous adjudication. [
Footnote 23]
Applying those principles to the present case, we are of opinion
that there was no community of interest remaining between the ship
and the cargo when the master, as declared in the statement of the
case, abandoned the ship and left her in charge of the agent of the
underwriters after the consignees of the ship had declined to
authorize the master to incur any further expense.
Judgment of the circuit court is therefore reversed and the
cause remanded with directions to issue a new venire.
[
Footnote 1]
One box had been lost overboard in discharging the cargo.
[
Footnote 2]
The whole expenses on the saving of
vessel and cargo were . . . . . . . . . . . $13,772.07
The expenses, after Morris came on board. . . 6,884.76
The ship as saved was valued at . . . . . . . 6,758.00
The cargo (including sales of damaged)
$24,600 and $298.34 . . . . . . . . . . . . 31,754.66
The freight earned was. . . . . . . . . . . . 978.06
The sales of the whole of the defendants'
consignment of 350 and 54 cases of
licorice was. . . . . . . . . . . . . . . . 11,747.28
Of that delivered from the ship after she
got off, deducting charges. . . . . . . . . 132.50
The contribution of their consignment to
the whole expense as adjusted . . . . . . . 3,363.89
[
Footnote 3]
FIELD, J., not having sat.
[
Footnote 4]
2 Arnould on Insurance 881.
[
Footnote 5]
Benecke & Stevens on Average 96; Baily on Average 45, 71;
Birkley v. Presgrave, 1 East 220; Addison on Contracts
490.
[
Footnote 6]
2 Phillips on Insurance 65; Holt on Shipping 482.
[
Footnote 7]
Bedford Commercial Insurance Company v. Parker, 2 Pickering 7;
Benecke & Stevens on Average, 139.
[
Footnote 8]
Benecke & Stevens on Average 141 and note.
[
Footnote 9]
2 Phillips on Insurance § 1407; 2 Arnould on Insurance §
338.
[
Footnote 10]
The Propeller
Niagara, 21 How. 27;
King v. Shepherd, 3
Story 358;
Elliot v. Russel, 10 Johnson 7.
[
Footnote 11]
M. & P. on Shipping 320; Maclachlan on Shipping 556; Smith's
Mercantile Law, 6th ed. 336;
Barnard v.
Adams, 19 How. 270.
[
Footnote 12]
Slater v. Rubber Co., 26 Conn. 129;
Nemick v.
Holmes, 25 Pa.St. 371.
[
Footnote 13]
4 Wharton 301.
[
Footnote 14]
Lewis v. Williams, 1 Hall S.C. 436;
Gray v.
Waln, 2 Sergeant & Rawle 239.
[
Footnote 15]
Parsons' Mercantile Law 326; 2 Phillips on Insurance § 1407.
[
Footnote 16]
Pickering 1.
[
Footnote 17]
Columbia Insurance Co. v.
Ashby, 13 Pet. 331.
[
Footnote 18]
Showers' Parliamentary Cases 28.
[
Footnote 19]
Benecke & Stevens on Average 61.
[
Footnote 20]
21 N.Y. 38.
[
Footnote 21]
Job v. Langton, 6 Ellis & Blackburne 779: M. &
P. on Shipping (3d ed) 322.
[
Footnote 22]
Moran v. Jones, 7 Ellis & Blackburne 532.
[
Footnote 23]
Maclachlan on Shipping 573, 576.
