1. Where a ship and cargo are exposed at a particular place to a
common peril of sinking and becoming submerged in deep water, and
the expense of raising and saving them from that place would be
greater than if stranded in shoal water, and the master, to save
them from such increased expenses, runs the ship on flats near by
and strands her in shoal water, and thereby increases the peril to
the ship and diminishes the damages and expenses of saving her and
the cargo, then there is a "voluntary stranding" within the meaning
of the law, and a case entitling the owners of the vessel to
recover, as general average, their just proportion of such damages
and expenses.
2. Where no water enters the ship which reaches and damages the
cargo except what comes through holes cut in the bows by the ice
previously to such a case of stranding, then the owners of the
cargo are not entitled to be allowed anything for the damages to
their cargo by water by way of general average or by way of
reduction of the shipowner's claim.
3. In such a case of stranding, the shipowners are entitled to
recover in general average only those expenses which were caused by
stranding the ship, not including any occasioned by damage to the
ship through the swelling of the cargo (linseed, which water
swells) caused by water which entered through the holes in the
bows; but if the ship was also injured by such stranding and by
lying on an uneven bottom, her owners are entitled to recover the
expenses for repairing such injuries by way of general average, and
it is for the jury to determine from the evidence what such repairs
amount to.
4. Erroneous findings of the jury -- assuming them to be
erroneous as to what injury the ship did suffer by the stranding
and what by swelling
Page 79 U. S. 103
of the cargo, or such findings on any other matter of fact, are
not subject to review here.
5. Where the owners of the cargo enter, after such a case of
stranding as above described, into "an average bond" whereby they
agree to pay as consignees of cargo what should be found to be due
from them on their share of the cargo for general average losses
and expenses arising out of the transaction, provided such losses
and expenses should be stated and apportioned in accordance with
the established usage and laws of New York in similar cases by
certain average adjusters named, then if in respect to the
contributory value of freight, the adjustment, as made up by the
average adjusters, is according to the usage and custom of New
York, and no more has been allowed for damages to the ship than was
attributable to the stranding, in that case the shipowners are
entitled to the amount stated in the average adjustment to be due
from the owners of the cargo as their general average contribution,
with interest from the date of the adjustment.
This was an action of assumpsit brought in the court below by
the owners of the ship
Oneiza to recover from the
defendants, as consignees and owners of cargo transported aboard of
that vessel on a voyage from Calcutta to New York, a sum alleged to
be due to the plaintiffs by way of a general average for losses and
expenses incurred in consequence of an alleged voluntary stranding
of the ship.
The facts, which appeared from the protest and the testimony of
witnesses, were in the main undisputed.
The ship arrived off Sandy Hook January 16, 1867, and anchored
that night inside of the Hook. There was so much ice in the bay
that she could not proceed until the 21st, when she was towed up,
in the afternoon, as far as the quarantine ground and anchored
there. The water was full of floating ice. The next morning it was
discovered that the ship was settling by the head, and by 7 o'clock
A.M. she had six feet of water in her, the leak being caused by
holes broken in both of her bows by the ice. Attempts were made to
free her from water by her pumps. They were, however, ineffectual,
the water being about forty-two feet where she was anchored, and
the Staten Island flats where the water was shoaler being near, the
master caused the ship to be towed
Page 79 U. S. 104
a distance of three hundred yards into such water, on the flats,
until she grounded on the bottom at about 8 o'clock A.M. The bottom
at the place where she had been anchored was soft. What sort of
bottom was at the place where she grounded -- whether uneven or
soft -- was not clear. The evidence was not full or perhaps quite
consistent, but it was submitted to the jury. At the time the ship
grounded, she had ten feet of water in her. If she had sunk where
she had been anchored, she would have been totally submerged. A
wrecking vessel reached her about noon. The tide was then an hour
ebb, and the water was about the same height inside of her and
outside. A diver was sent down and the holes were stopped. A pump
was then started about 4 o'clock P.M. The water had reached to
within two feet of her upper deck. Some of her cargo was not wet.
The cargo consisted of linseed in bags, gunny cloth, and saltpetre.
She was pumped out by 9 o'clock P.M. After that, she was kept free
of water, and no more water reached her cargo. About half of her
cargo was taken off by lighters. The ship was then taken to the
city and the rest discharged. The ship could have been raised if
she had sunk where she was anchored. The question of saving the
vessel and cargo at either place was only a question of the expense
of raising them. The wrecking bill was over $12,000, and would have
been $30,000 if she had sunk where she was anchored. The
defendants, on the 23d of January, 1867, signed "an average bond"
whereby they agreed to pay, as consignees of cargo, what should be
found to be due from them on their share of the cargo for general
average losses and expenses arising out of the transaction,
provided such losses and expenses should be stated and apportioned
by Johnson & Higgins, average adjusters, in accordance with the
established usage and laws of the State of New York in similar
cases. An adjustment was made by those persons, and they
ascertained the balance due from the defendants to be $11,380.78,
July 20, 1867. The adjusters made no allowance to the defendants
for the damages sustained by their cargo from the water which
entered the ship, on the ground that such
Page 79 U. S. 105
damage was caused by water which entered through the holes made
in the bows of the vessel by the ice, and therefore by a peril of
the sea, and was not caused by the stranding, and was not a general
average loss. The effect of the water upon the linseed in bags, as
evidence showed, was greatly to swell it, and the ship was found to
have been much strained vertically. The swelling of the linseed and
the lying on the bottom at the place of stranding, together,
started up the deck and strained and broke the beams and the straps
over the beams.
The adjusters did not allow as a general average loss anything
for any damage sustained by the ship from the swelling of the
linseed, on the ground that such swelling was caused by water which
entered through the holes in the bows from a peril of the sea, and
therefore was not caused by the stranding; but they did allow as a
general average loss the damage caused to the ship by laying on in
what they inferred to have been an uneven bottom when she was
stranded, inferring this from injuries of a certain kind which the
keel and keelson of the ship were found to have suffered, though
some of the direct testimony went to prove that the bottom, like
that of the place where the vessel had been anchored, was soft. The
adjusters stated to the jury the ground on which the adjustment on
this point was made. "We could not tell absolutely," they said,
"what damage was caused by lying on the bottom and what from
swelling of the cargo, but we decided it as well as we could," and
the same witness described particularly the damages. The defendants
called no witnesses to disparage the conclusions of the adjusters.
The salvage expenses were put into general average. According to
custom, one-half of the gross freight for the whole voyage was
taken as the net freight to be contributed for.
The counsel for the defendants prayed the court to charge the
jury as follows:
"
Fourth. That if they found that the stranding or
taking of the bottom was not a different one from what was
originally impending
Page 79 U. S. 106
in consequence of the damage received from the action of the ice
at the time the master determined to run or tow the ship into
shallower water, but was a merely incidental and unsubstantial
modification of such original stranding or taking of the bottom,
then the expenses incurred for repairing the damage to the ship,
arising from her lying upon the bottom, were not the proper subject
of a general average."
"
Fifth. That unless at the time the master came to the
determination to run her upon the flats, there was a substantial
and valuable chance that the ship might be kept from sinking where
she was anchored, which chance the master voluntarily abandoned,
the injuries sustained by said ship in consequence of lying upon
the bottom are not a subject for general average."
"
Sixth. That if the ship was, at the time the master
came to his determination to run her upon the bottom in shallower
water, so exposed to the injuries which she sustained from going
upon and lying upon the bottom that such injuries could not by any
possibility or in any event be prevented, such injuries are not to
be made good by a general average contribution."
"
Eighth. That there is no evidence from which the jury
can determine what particular repairs were rendered necessary by
the ship lying on the bottom, and what were rendered necessary by
the swelling of the cargo, and that as it appears that both these
causes concurred in producing the injuries to the ship, one-half of
such injuries should be deemed to have been occasioned by the one
cause and one-half of the other, as the nearest practicable
approximation to justice."
"
Ninth. That inasmuch as it appeared that all the
freight on the cargo had been collected, and the disaster happening
at the very entrance of the port of destination, such freight
should contribute in general average upon its full value, after
deducting such expenses, if any, as were necessarily incurred in
order to earn it, and the jury should, in making up their verdict,
so estimate the contributory value of freight."
But the court refused thus to charge, and charged:
"1st. That if the jury found that the ship and cargo were
exposed to a common peril of sinking and becoming submerged in deep
water, and that the expenses of raising and saving them from such
place would have been greater than if stranded in
Page 79 U. S. 107
shoal water, and that the master, to save the ship and cargo
from such increased expenses, ran the ship on the flats, and so
stranded her in shoal water, and thereby increased the peril to the
ship and diminished the damages and expenses of saving the ship and
cargo, then that there was a voluntary stranding within the meaning
of the law, and that the plaintiffs are entitled to recover in
general average their just proportion of all damages and expenses
occasioned thereby."
"2d. That if they found that no water entered the ship which
reached and damaged the cargo except what came through the holes
cut in the bows by the ice, then that the defendants were not
entitled to be allowed anything for the damages to their cargo by
water, by way of general average or by way of reduction of the
plaintiffs' claim, because such damages were not caused by or the
result of the act of stranding the ship, but were caused by a peril
of the sea which had overtaken the cargo before it was determined
to strand the ship."
"3d. That the plaintiffs were entitled to recover in general
average only those expenses which were caused by stranding the
ship, not including any occasioned by damage to the ship through
the swelling of the cargo caused by water which entered through the
holes in the bows, and therefore, if the jury found that the ship
was injured by such stranding and by lying on an uneven bottom,
that the plaintiffs were entitled to recover the expenses for
repairing such injuries by way of general average, and that it was
for the jury to determine from the evidence what such repairs
amounted to."
"4th. That if, in respect to the contributory value of freight,
they found that the adjustment, as made up by Johnson &
Higgins, the average adjusters, was according to the usage and
custom of the port of New York, and that no more had been allowed
for damages to the ship than was attributable to the stranding,
then that the plaintiffs were entitled to the amount stated in the
adjustment to be due from the defendants to the plaintiffs as their
general average contribution, with interest from the date of the
said adjustment."
To all these instructions the defendants excepted.
The jury having found a verdict for the plaintiffs for $1,071.73
and judgment having been entered accordingly, the case was now here
on error.
Page 79 U. S. 114
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Losses in a sea risk which give a claim to general average are
usually divided into two great classes:
(1) Those which arise from a sacrifice of part of the ship, or
part of the cargo, purposely made to save the whole adventure from
perishing.
(2) Such as arise out of extraordinary expenses incurred by one
of the parties in the course of the voyage for the joint benefit of
the ship and cargo.
Where two or more parties are engaged in the same sea risk, and
one of them, in a moment of imminent peril, makes a sacrifice to
avoid the impending danger or incurs extraordinary expenses to
promote the safety of all the associated interests, common justice
requires that the sacrifice so made or the extraordinary expenses
so incurred shall be assessed upon all the interests which were so
exposed to the impending peril and which were saved by those means
from the threatened danger, in proportion to the share of each in
the joint adventure. [
Footnote
1]
1. Bound on a voyage from Calcutta to New York, the ship
Oneiza, with a valuable cargo of linseed, gunny cloth, and
other merchandise on board, on the sixteenth of January, 1867,
arrived off the latter port in a heavy gale, and in the evening of
that day came to anchor inside the lower bay, being unable to
proceed to the upper harbor in consequence of ice. Securely
anchored, she remained there until the twenty-first of the same
month, surrounded by ice and unable to proceed to her port of
destination, when those in charge of her procured two steam tugs
and caused her to be towed up through the Narrows into the inner
harbor, and at seven o'clock in the evening of that day she came to
anchor
Page 79 U. S. 115
near the quarantine ground, abreast of Staten Island, in ten
fathoms of water, where she remained during the night. Throughout
the night, the watch were ordered to sound the pumps every hour,
and the record shows that they found no more water in the ship than
is usual under the circumstances, until the steam tugs made fast to
her for the purpose of towing her up to the harbor, when it was
ascertained that she had twenty-six inches of water in the well,
and it was observed, within half an hour from that time, that the
head of the ship was settling. Report of that fact was made to the
master, and he immediately directed that the pumps should be tried,
and it was soon found that the ship had six feet of water in the
hold and that she was in imminent danger of sinking.
Efforts were made to keep her free, but it was found to be
impossible to do so by her own pumps or by any other means at
command. Holes had been cut in the hull by the ice, and the master,
finding that he could not stop the leaks, decided to run the ship
ashore as the best means of saving life and property and as the
only means of preventing the skip from sinking in deep water.
Directions to that effect were accordingly given to those in charge
of the steam tugs, and with their assistance, the ship was stranded
on Staten Island flats, and it appears that when she grounded, she
had ten feet of water in her hold, the tide still rising, and that
at high tide the water in the hold increased in depth to twenty
feet.
Prompt assistance was procured and the ship was lightened by
discharging part of her cargo into lighters furnished by the
wrecking company, and on the first day of February following, they
succeeded in making the ship float, and she was immediately towed
to her port of destination and the residue of her cargo was
discharged.
2. Much of the cargo was saved, and the owners of the ship
insisted that the owners of the cargo were bound to contribute for
the sacrifices made by the ship and the expenses incurred by her
owners in saving the associated interests from the dangers of the
impending peril. Investigations
Page 79 U. S. 116
became necessary before the parties could adjust the claim, and
with that view the owners, shippers, and consignees of the cargo
executed to the agent of the ship an average bond in which they
designated the persons to be employed as adjusters, and covenanted
and agreed to pay their respective shares of such proportion of the
losses and expenses incurred as constitute, by the usage of the
port, a general average, provided such losses and expenses were
stated and apportioned by the average adjusters therein specified
in accordance with the established usage and laws of that state in
similar cases.
Pursuant to the terms of that bond, the persons therein named
were designated as the average adjusters, and they, after having
heard the parties, charged to the cargo belonging to the defendants
the sum of eleven thousand three hundred and eighty dollars and
seventy-eight cents as a general average contribution in favor of
the owners of the ship.
Unquestionably they proceeded upon the ground that the stranding
of the ship was voluntary, but the defendants denied that the fact
was so, and refused to pay the amount. Whereupon the plaintiffs
brought an action of assumpsit against them in the circuit court to
recover the amount as adjusted, and the jury, under the
instructions of the court, found a verdict in their favor for the
whole amount charged by the adjusters to the owners of the cargo,
with interest from the date of the adjustment. Exceptions were
filed by the defendants to the refusals of the court to instruct
the jury as requested, and also to the instructions given by the
court to the jury, and the defendants sued out the writ of error
and removed the cause into this Court.
3. Complaint is made by the defendants that the question whether
the evidence introduced in the case showed such a state of facts as
entitled the owners of the vessel to claim a general average
contribution from them, as the owners of the cargo, was not
submitted to the jury under proper instructions.
Injuries, it is conceded by the defendants, had been
received
Page 79 U. S. 117
by the ship before the master determined to run her upon the
flats, and it is equally clear that those injuries, or some of
them, were plainly attributable to the direct action of the ice, as
contended by the defendants. Certain portions of her sheathing
about the bows had been torn off, and several holes had been cut
through her planking -- two or more on her port bow and one on her
starboard bow -- which caused the ship to leak. Doubtless these
injuries preceded the stranding of the ship, but she received many
more and such as were of a more serious character by that act or as
a necessary consequence of it, as is fully proved by the survey and
the other evidence exhibited in the record.
Courts as well as text writers at the present day agree that,
where the ship is voluntarily run ashore to avoid capture,
foundering, or shipwreck and she is afterwards recovered so as to
be able to perform her voyage, the loss resulting from the
stranding is to be made good by general average contribution, as
such a claim is clearly within the rule that whatever is sacrificed
for the common benefit of the associated interests shall be made
good by all the interests exposed to the common peril which were
saved from the common danger by the sacrifice. [
Footnote 2]
Authorities may be cited where it is held that if the ship is
not saved, an action for the claims cannot be maintained, but it is
settled law in this Court that the case is one for general average,
although the ship was totally lost, if the stranding was designed
for the common benefit and was voluntary, and it appears that the
act of stranding resulted in saving the cargo. [
Footnote 3]
Repairs rendered necessary to the vessel by the ordinary perils
of navigation, to enable her to prosecute her voyage to her port of
destination, it is admitted, must be borne by the owners of the
vessel, but the question whether the sacrifice made by the ship in
a case where the ship, cargo, and
Page 79 U. S. 118
all on board were in imminent peril, and the ship was
voluntarily stranded to save the whole adventure, constitutes a
valid claim for a general average contribution is not an open one
in this Court if the cargo is saved by the sacrifice, and it is
equally well settled that extraordinary expenses incurred in
getting the ship off, if the effort is successful, fall within the
same rule. Necessary repairs to complete the voyage are not within
the rule as applied in this Court except to the extent that such
repairs are required to replace such parts of the ship as were
sacrificed to save the associated interests.
Viewed in that light, the claim of the owners of the ship rests
upon the same foundation of justice and reason as that of the owner
of the cargo in a case where part of the cargo is thrown overboard
to save the ship, cargo, and all on board. Decided cases may be
referred to where the rule established by this Court is questioned,
but the rule, it is submitted, is both just and reasonable if it be
correctly understood and properly applied. [
Footnote 4]
4. Special reference must be made to the charge of the court, as
it is insisted that several of the instructions given to the jury
are erroneous.
Speaking to the principal question in the case, the judge told
the jury that if they found that the ship and cargo were exposed to
a common peril of sinking, and becoming submerged in deep water,
and that the expense of raising and saving the ship and cargo from
that place would have been greater than if stranded in shoal water,
and that the master, to save the ship and cargo from such increased
expenses, ran the ship on the flats and stranded her in shoal
water, and thereby increased the peril to the ship and diminished
the damages and expenses of saving the ship and cargo, then there
was a voluntary stranding within the meaning of the commercial law,
and the plaintiffs were entitled to recover, as general average,
their just proportion of such damages and expenses.
Tested by the principles already explained, it is quite
obvious
Page 79 U. S. 119
that the instruction is correct and that the defendants have no
just ground of complaint. They think otherwise, however, and insist
that the ship was actually sinking at her anchorage from the direct
effect of the accidental injuries she had received by the ice, and
that her condition was such that there was no power to save her
within the meaning of the law of general average.
Suppose that her condition was such that she would have sunk if
she had remained where she was, still it is clear that her buoyancy
was not overcome, as it appears that she still floated, that her
position was changed, and that she was successfully stranded in
much shoaler water, and the jury have found that the stranding was
voluntary, and that the effect was to increase the peril to the
ship and to diminish the damages and expenses of saving the ship
and cargo.
Assume that the facts were as the jury have found them to be,
and it is clear that the case is one for general average
contribution, as appears by the repeated decisions of this Court.
Such being the finding of the jury, the defendants are without any
remedy in this Court. Their remedy, if any, was by a motion for a
new trial in the court below.
Minute description of the circumstances attending the disaster
is given in the protest, and there was other evidence in the case
upon the subject sufficient to have made it the duty of the court
to submit the whole question to the jury in the form in which it
was submitted in the instruction under consideration.
Facts found by a jury cannot be reexamined in this Court, and of
course it must be assumed in the further examination of the case
that the ship and cargo, as the ship lay at her anchorage, were
exposed to a common peril of sinking in deep water; that the
expenses of raising and saving them if the ship had sunk there
would have been greater than if stranded in shoal water; that the
master, to save the ship and cargo from such increased expenses,
ran the ship on the flats and stranded her in shoal water, and that
the effect of that act was to increase the peril of the ship and to
diminish the damages and expenses of saving the ship and cargo.
Page 79 U. S. 120
5. Evidently this view of the finding of the jury disposes of
the main question in the case and leaves nothing open for decision
except the question whether the instructions in respect to the
extent of the liability and the principles of the adjustment were
correct.
Extensive damage was done to the ship, but the defendants insist
that it was not wholly done by the stranding, that it was partly
caused by the swelling of the flaxseed consequent upon its being
wet, that the effect of the water upon the article was to swell it,
causing a vertical strain upon the ship, pressing her decks and
beams upwards and separating the beams from the stanchions. They
accordingly requested the court to instruct the jury that there was
no evidence in the case from which the jury could determine what
repairs were rendered necessary by the stranding, and that,
inasmuch as it appeared that both of those causes concurred in
producing the injuries to the ship, they should assume that
one-half was occasioned by each, which the court very properly
declined to give, as there was not sufficient evidence in the case
to warrant the jury in finding that the estimate made by the
adjusters was incorrect.
Whether the cargo was damaged by the stranding or by the
antecedent peril of the sea was certainly a question of fact for
the jury, and upon that subject the jury were told that if they
found that no water entered the ship which reached and damaged the
cargo except what came through the holes cut in the bows by the
ice, then the defendants were not entitled to be allowed anything
as general average for the damage to their cargo by water, as in
that state of the case, the damage to the cargo was the result of
the prior peril, and not of the act of stranding. Such damages, it
is conceded, are not the subject of general average, and as the
jury found for the plaintiff, further examination of that exception
is unnecessary.
Objection was also taken by the defendants to the adjustment
submitted by the persons designated in the average bond, and upon
that subject the jury were told that if they found that the
adjustment in respect to the contributive
Page 79 U. S. 121
value of the freight, as made out by the adjusters, was
according to the usage and custom of the port, and if they found
that no more had been allowed for damages to the ship than was
attributable to the stranding, then the plaintiff's were entitled
to their verdict for the amount stated in the average adjustment,
with interest from its date.
Framed as that instruction was in precise conformity with the
stipulations of the average bond, it is impossible to regard it as
erroneous, which is a sufficient answer to the exception.
Suffice it to say, without giving a separate examination to each
one of the numerous exceptions, that we are all of the opinion that
there is no error in the record.
Judgment affirmed.
[
Footnote 1]
<|9 Wall. 228|>The Star of Hope, 9 Wall. 228.
[
Footnote 2]
<|3 Wall. 365|>McAndrews v. Thatcher, 3 Wall.
365;
<|10 How. 270|>Barnard v. Adams, 10 How. 270; 2
Arnold on Insurance 784; 2 Parsons on Insurance 241, 263; 2
Phillips on Insurance, 5th ed. 1313;
Nelson v. Belmont, 21
N.Y. 38.
[
Footnote 3]
<|9 Wall. 232|>Star of Hope, 9 Wall. 232;
<|13 Pet. 331|>Columbian Insurance Co., 13 Pet.
331.
[
Footnote 4]
Malthew v. Maryland, Law Rep., 5 Exch. 119;
Moran
v. Jones, 7 Ellis & Blackburne 532.
