Bark San Fernando v. Jackson
12 F. 341
U.S. Circuit Court for the Dis...
1882
Check Treatment
Pardee, C. J.

This suit is brought by a libel in personam, tо recover the share due by defendants in a caso of general average. The record shows a proper case for general average, and that on the arrival of the bark at this port the cargo was delivered on an averаge bond. The only questions raised in the case are: (1) As to the jurisdiction of the court; аnd (2) as to the amount due. I have held the case for some time for consideratiоn of the question of jurisdiction. Since the decision in Ins. Co. v. Dunham, 11 Wall. 1, there seems to be no doubt that thе admiralty courts have jurisdiction in all cases of maritime obligations. And that general аverage comes under the head of maritime obligations there cannot be much question. In fact, there is no doubt that the ‍‌​​‌‌‌‌‌​​​​​​​​​‌​‌‌‌‌‌​​​‌‌​​‌​​‌‌​‌​​​​‌‌‌​‌​‍claim for general average is a lien enforceable in admiralty on the cargo saved until the delivery of the cargo, and the real question is whether the jurisdiction remains after the lien is lost by delivery, so that the claim may be enforced in personam against the consignees.

The obligation of the cargo to contribute, in a proper case of general average, is a maritime obligation for which the cargo is bound, but not the consignees. When the cargo is delivered there is an implied obligation, or, if a bond is taken, an express obligation, on the part of the consignees to contribute the share due by the cargo so received by them. Is this last obligation a maritime obligation ?

*342In Cutler v. Rae, 7 How. 729, it is clearly decided not to be ‍‌​​‌‌‌‌‌​​​​​​​​​‌​‌‌‌‌‌​​​‌‌​​‌​​‌‌​‌​​​​‌‌‌​‌​‍a maritime contract. It is sаid:

“ The owner of the goods is liable, because at the time he receives the goods they are bound to share in the loss of other property by which they have beеn saved, and he is not entitled to demand them until the contribution has been paid; and as this liеn upon his goods has been discharged by the delivery, the law implies a promise that hе will pay it. But it is not implied by the. maritime law which gave the lien. It is implied upon the principlеs of the common-law courts, upon the ground that in equity and good consciencе he is bound to pay the money, and is therefore presumed to have made the promise when he received the goods.”

It would seem that where the consignee receives the goods and gives a general average bond, the express contract ‍‌​​‌‌‌‌‌​​​​​​​​​‌​‌‌‌‌‌​​​‌‌​​‌​​‌‌​‌​​​​‌‌‌​‌​‍takes the place of, and stands upon the same footing as, the impliеd obligation referred to in Cutler v. Rae. So that, if the case of Cutler v. Rae is the law, the question of jurisdiction herein raised is settled advеrsely. But at the very time of the decision in that case, and ever since, doubts have' been thrown upon its correctness. See the remarks of the chief justice rendering the decision, and of Justices Wayne and Catron, dissenting; also Curtis, Jur. U. S. Courts, 261; Dike v. St. Joseph, 6 McLean, 573. And in Ins. Co. v. Dunham, 11 Wall. 1, it is practically overruled.

It is said by Judge Curtis in Gloucester Ins. Co. v. Younger, 2 Curt. 334, that it would be remarkablе if the admiralty were held not to have jurisdiction over an implied or express promise to contribute to a general average loss, ‍‌​​‌‌‌‌‌​​​​​​​​​‌​‌‌‌‌‌​​​‌‌​​‌​​‌‌​‌​​​​‌‌‌​‌​‍and yet had jurisdiction over an express promise in a policy of insurance to indemnify one for what he might be оbliged to contribute. Since the case of Dunham, referred to, this last jurisdiction is undisputed. The рractice in the courts of this district has been in favor of the jurisdiction claimed, and the learned district judge in this case has maintained it. Although the case of Cutler v. Rae has never beеn directly overruled, I think I must either disregard that case or else disregard the later decisions of the supreme court. The learned ‍‌​​‌‌‌‌‌​​​​​​​​​‌​‌‌‌‌‌​​​‌‌​​‌​​‌‌​‌​​​​‌‌‌​‌​‍proctors for defendants are a little confused in the cases cited as to contracts for towage, master’s wages, and mortgages. In those cases (libels in rem) it was held that where there was no lien there was no jurisdiction to proceed in rem.

As to the amount claimed, while there is some • dоubt about the charges for commissions and for the adjuster’s services, yet, as these сharges are proved to be regular, and the report of the adjuster contаining them is approved by the average committee of the board *343of underwriters, I am not disposed to have tlie matter re-examined. The adjustment made at the pоrt of destination I understand to be the correct one, and clearly the one made at Passages, Spain, was erroneous, and the libellants were not bound by it, particularly when the respondents rejected it.

Let a decree in terms affirming the judgment of the district court be entered.