Barnard v. Adams

270 SUPREME COURT. et al. v. Adams et al.

Ba.rnard George M. Barnard, Barnard, Adams, Abel Charles and Charles Joseph H. Ben Larkin, error, Adams, Plaintiffs in v. Andrew Joseph net, and Fletcher. general case for average It contribution in for the was loss of a proper vessel where was an there imminent driven dangerous on peril rocky part vessel when the would have coast, with loss- inevitably wrecked, of ship, and this crew, and sel on immediate stranding avoided the ves- peril by voluntarily dangerous a less cargo of the rocky and crew coast, part whereby uninjured. saved were subject The cases examined. upon cargo out Where taken of the stranded in vessel, another placed one, voyage thus continued the home the contribution should be port, asses'sed cargo the value of the at the on home port. wages The crew were entitled to after the while were stranded, em- they ‘ saving cargo. in the of the ployed cent, half A of- two and one was and collecting commission allowed for per properly custom of general average. usage rests merchants and brokers. This was a writ of error to the Circuit Court of the United States, for the Southern District of New York. The defendants in error an action brought court below (cid:127) to recover contributio'n account average, Brutus -alleged voluntary stranding them, owned error, from plaintiffs owners bales nutria twenty skins, which formed a of her at the time part stranding. facts are in the stated minutely opinion court. Boardman, cause was Mr. for the orally argued plain- error, tiffs in submitted printed argumenta by Mr. Webster,for in error, Lord, and Mr. for the defend- plaintiffs ants in error. Boardman, in error. plaintiffs Mr. First Point. n When the a vessel is stranding inevitable, of. master, and her exercise of his as a ordinary navi duty that, directs course shore which he gator, sup vessel, act to' be such of master does poses not-render the safest sacrifice, or entitle -the owners of contribution ship-owner .to general average. I. The- cited in authorities following support below, do sustain it. Columbian judgment Ins. Co, 337; Peters, v. 13 Sims v. Ashby, 4 Gurney, Binney, v. ; Co., 513 Ins. Pick. Reynolds Ocean 22 II. sustain authorities following plaintiffs fully point. Curtis, on this error v. 1 Nisi Holt’s Taylor Prius O. 271 185 t>.- 69 ; ; 3 Com. Law Walker v. v. Cases, 192, note Eng. Rep. Rawle, 61; Meech et al. Co., Ins. & U. States Serg. Wharton, Bradford, 14 Pick. Robinson, 4 ; 14; Scudder ed., notes; 490 and Ib. 480; Abbott Perkins’s Shipping, Insurance, 98. 2 Phillips The made was III. sacrifice only slipping voluntary U. Co., ends of the v. States Ins. 11 chains. Walker 8 Mass. 467. Rawle, 66 ; & Nickerson v. Serg. Tyson, all, at should have Second Point. The cargo, chargeable to its Buenos contributed value at according Ayres. Spafford v. v. 14 Mass. Co. 79; Mutual Cargo Dodge, Safety 262, 3 8 Observer, N. Y. Law George, Reporter, Legal 361; Macomber, 38; Tudor v. 3 Kent’s Com. 242; 14 Pick. ed., 504, Abbott on Perkins’s notes. Shipping, terminated, I. dis- enterprise affreightment solved, Brutus, loss of the before the in- commencing 156; v. 3 Johns. tended Dunnet voyage. Tomhagen, v. Gallison; 178, 23,cases cited; note Scott 2 Libby, Saratoga, v. 340; 2 Purvis 2 492. Tunno, Johns. Bay, II. The master to thus reship power to cases to continue the extends Where enterprise, only or v. is lost disabled the course Shipton voyage. Co., Warren Ellis, 337; Jordan v. Ins. 1 Thornton, 9 & Adolph. Scovell, Johns. ; 3 Com. Searle v. Ch. 210; 342 4 Story, Kent’s Cowen, 274; Saltus 223; Co., v. Union 6 v. Treadwell Ins. Co., 12 112. Ocean Ins. Johns. valuation, III. Buenos place among jellied Ayres articles, beef have been included ac- should paying to its value that place. cording the Brutus were not entitled Third Point' The owners of their master and crew for to .the wages expenses that she could not be got time after it was ascertained any afloat. cent, . one half Fourth Point. The per two charge commissions or the plaintiffs, collecting compensation not to have due themselves, contributions ought allowed. is of the high- case Point. this First The first question error est judg- importance point principle. under indeed paradox. ment review is seems It self-evident. is to this : inevita- that if a amounts whose navigator, his loss consult own doomed to should bly judg- stranding, to the shore, ment, select, for his voyage compulsory vessel, such for himself and preference- least'perilous route sacrifice, safer of a for .the course incurring which.entitles compensation.' him

272 et al. v. a mariner, this be stated in whose way: Or it thu¿ aVoid doomed, cannot entitled to becoming inevitably unless he contribution action pose forbears all average, blindly in general with whatever, view and express navigates pur- the destruction of the adventure. to effect Neither reason to this nor affords doctrine. authority support extraordinary General is founded on simple of nat principle or more are ural that where two concerned in a parties justice, of them risk, sea one makes sacrifice common common all, loss shall be assessed safety, propor adventure; to the share of each in the tion greater be compensated sacrifice of the first shall of the contribution Curtis, the. others.” Holt’s N. P. Cas. note. Taylor Com. Law Its traced Rep. Eng. origin commonly de Rhodian law which named case jactu, only and, the rule is not to although considered as thus jettison; limited, is an illustration, the case there put apt yet different case sidered within the illustration can be con essentially fairly rule. cast Goods overboard in a storm to cut vessel, masts, spars, lighten her away rigging prevent ashore, driven or in carried an effort to away avoid, some means, unusual an by a impending calamity, running ,on shore to avoid a an ship cable.or anchor capture, slipping are for the usual instances in found safety, adjudged cases. Perkins’s Abbott on notes. are all Shipping, They in the law; within- illustration and, given Rhodian upon of are natural justice, cases for contribution. principles proper But when a does' no more than ship that course of pursue which, evil navigation or thence re- independently good to is most safe for herself, how can-she be sulting said to a or a loss of incur for benefit her encounter ? peril This is not of precedents answered allowance by for parts of her tackle ship jettisoned benefit; common because, be to make although might such sacrifice for proper the bene- of alone, fit were she ship the act is the empty, yet separation a destruction.of the benefit of the of community as interests which still remain such the com- contending against so, mon Not the to when is run ashore as danger. the safest be her; direction which can goes given then the whole community the same direction together, taking encountering same a peril. It is mere accidental result, that the suffers more than the cargo. The Brutus was not On the sacrificed. voluntarily contrary, she was lost direct a operation unavoidable vis unaided major, volition of by any mind or man.- The agency commenced gale the 8th 4 A. October, M., and eontin- 1850. 273 al.

Bernard of the next, and until the when it tied through evening day 9- broke, o’clock the best bower chain a hurricane. At blew The vessel was then at at 10 the bower small gave way. There of avoid- the elements. was no.possibility the mercy ves- mate Who command of the a had the. ing stranding. avoid reach ashore, that it was to sel impossible says especially going a all he and that she could be-stranded with did was-to make sail for and where To the least chance of damage. there as a is. absurdity; say from a be said that a man who overboard well might jumps shore, is to vessel, . drowned reach burning voluntarily attempt alterna- himself. The case admitted drowns tive.- , rule, is concur in It that the mind of man must producing which shall éntitle injury compensation gen- party .eral diminish the Here the mind- average. operated .only it. sacrifice much as and not produce practicable, Prius is well the note to Holt’s Nisi Reports It remarked referred there are to, before some cases subje.ct be col- much to but there general average reports, lected them. The safest well studied guide principle, understood.” 3 Com. Law 70. Rep. ad into with cases, however, looked Some Kent, Ch. York, J., Court of New 'Supreme vantage. 14, decided, 9Co., v. The Columbian Ins. Johns. in Bradhurst that, act running lost wholly never due ashore, can compensation general average all cases owners, or, as that in it has expressed, technically the salva navi stranding, recovery. indispensable rise to 1812. Peters, -This decision-was made in gave 349 of his note Justice page much discussion. Mr. Story, took ground American on Shipping, the-fourth of Abbott edition the doctrine of Kent. against questio vexata, of Kent one This with the name great on the side greater authority equally great Story other, was to final test until the case of the not brought Hope Peters, decided in 1839. Columbian Co. v. Ashby, was Ins. able and On that in a 342. occasion Mr. Justice very Story, convincing opinion overruled judgment, definitively will commentator That upon judgment American great law. relied as an Yet noth- be much upon plaintiff. authorityfor navi, decided, that nor was neither salva except prior ing and crew, the master .with was consultation his-officers by or ad- counsel, else was discussed necessary. by Nothing in the in imminent The peril, opinion. though judged Hope, her moored, and not and held afloat, by was still securely et al. anchors, master, when the for the preservation of vessel and cables, ran on shore cargo, slipped her (p. 332).' .The court treat as- 337) found (p. expressly special verdict, as indeed by was. Nor could it be doubted from found; the facts i. e. she was still held her by anchors, and have the storm, survived might possibly when he her cables voluntarily her slipped (thereby exist- relinquishing means of and ran her on shore. ing keeping afloat), The case of the irrelevant, clearly there is to be Hope- being found -in the books but a to case which affords single any support below. That one case judgment is Sims v. Gurney, It was as follows. Binney, Sims encountered a Woodrop storm in Delaware and when she was before Bay, driving storm toward Egg flats, Island where she would have soon stranded, pilot her course, and ran her ashore changed Cape May,yas most convenient to save ship, crew, property 514). (p. It will be seen these facts were similar to the facts very proved case. suit present ship-owners was by for general Yeates tried the case. His average. Judge charge “ is rather He stated. inclined to think it a case loosely general average throughout.” (p. 516.) verdict, had a plaintiff and motion made was for a. trial, new others, “that upon ground, among- verdict was law, as the vessel’s ashore was not a volun- against going act officers, but the tary inevitable captain, pilot, consequence of the then And gale blowing.” point most ably argued. Chief Justice seems, said Tilghman at first 526),' (p. — “It view, not' reasonable that contribution should asked very which, in fact, occasioned act the the damage But is" so, law ship. benefit certainly provided act which occasioned the was conducive to the com- damage mon safety.” For this cited; and the remark “certainly,” authority is a little like Dr. candid Sangrado’s acknowledgment, the déath all who took his would have raised in his remedy (cid:127) its mind a ficial. doubt but that he efficacy, knew to bene- the whole,” the learned after a Upon says ram- judge, “it to me that it bling protracted argument, appears a nice which the had point decide, is no there jury - sufficient cause for the verdict.” (p. setting'aéide 527.) Yeates, J. that, jury, stated facts ¿ffected law, his mind had been rule pain- dissatisfied ful, trial state, ”; during reporting 1850. 275 et al. Adams et al- v.

Barnard that he could not court, he stated he was sat- say to ease verdict.” with the who 516.) or dissatisfied (p. isfied the case for the plaintiff, put Mr. argued A Tilghman, of fact for the it a question that was jury (p. 524), it seems to have namesake, the adopted judge, argument 527). (p. same, it on the Yeates, J. puts ground, (p. 527) strongly J. concurs. Brackenridge, simply were, case, more in that than complicated The facts the certainly be, all that circumstances, and it under it may present; for the decision of a There fact question proper jury. error in the or indeed, was, complaint any exception charge, (p. 516.) case, it doubtéd whether In this view well 1. it, decided in and is certain Justices Yeates law point any so it.. regarded Brackenridge - is but Ch. J. Tilghman, The singular slenderly Opinion overruled its own reasoning, completely sustained by to we now court, in the same will refer. cases two Co., & Rawle, 11 A. D. 61, v. U. States Ins. Walker Serg. In. storm, in a 1824, the vessel was laboring wholly ungovern and ran her ashore, her helm hard up, master able, put when* the best presérvation her into to in order get crew, vessel, 62, (pp. 65.) the lives “—(cid:127) Gibson,. It not J., that court, says, enough per intent do act which be deliberate may may there there inust bé a sacrifice loss ; purpose to lead deliberate it in least, a sitúa-' all-events, or, at put at very the thing would- be of eventual destruction in which in- danger tion do I deem it of Nor importance that Again, any creased.” would, their .situation and crew thought the master were afterwards that taken. the measures be bettered event, intention sacrifice remote from a deliberate are equally Both increase the that tp if; without risk ship, be no there average.” can claim - that this case the court say they True .is leave untouched, overrule certainly Tilgh- v. Sims Gurney But. man’s opinion. 1839, Robinson, Wharton, 361, 4 D. v. Sims Meech In A. J., affer court, Gurney Kennedy, explaining per it of all- to the divest applicability which would present way case, best, be a questionable case, very stating t shaken, overruled, Walker v. Unite Ins. if no States d “ — Rawle, referred The. to, Co., just says, & Serg. ashore cannot with be said of the vessel running propriety it, indeed, nor can well said been voluntary, to have al. v. the loss of the vessel was occasioned For, accord thereby. master, which evidence of the is all ing have, we and all the on establish claim, their plaintiffs rely vessel on a lee could shore she being sail, where carry found as lives it.necessary of the crew, preservation loss of the vessel then certain doubt, beyond be in four fathoms land ing water and the within mile of her, to run her ashore, the best bower they slipped accordingly anchor, wind, and in put vessel before the a short time struck the land. he further In his cross-examination states that her situation she would have most desperate, gone the shore at events, but the mode in which the witness ran all. crew, her saved ashore the iives of the tended to save a From this great proportion mani perfectly cargo. fest, that the loss of become inevitable as the vessel had in case, And such a consequence of then peril present. says Insurance, Mr. Vol. II. in his when p. Treatise on Phillips, alleviate, instead acts of the of avoid crew are intended such it seems ing, consequence, hardly voluntarily incur: a loss.” ring Benecke, Mr. in his work on Insurance p. in (ch. 5, 219), which, Abbott, in his work Chief Justice “there says (p. 3-13), is so much combined with meets if the .experience practical learning words, declares, case in so present many no alternative, situation so to admit of of the vessel were such as without, that, have been ashore, she would un her running lost,,and-that resorted to for the measure was avoidably pur crew, the lives or pose contribution saving liberty “ can take was in fact sacrificed.” So because place, nothing . here the vessel was suffered their doomed plaintiffs nothing; to inevitable sea which surround destruction peril by ed her.” and citations like After some observations further he adds, The loss of the import, to have been question, appearing, inevitable, plain be borne by must therefore

tiffs, “the Stevens, who were Mr. This,” owners says of her.” ; for cannot on you all authors are Digest agreed a claim for the into a loss which is inevitable equity'convert preservation property.” Average, Stevens and Benecke 84. by Phillips, p. These if it can cases -not overrule Sims v. Gurney, only are defendants, considered directly authority against adverse to also Scudder review. See now under judgment Bradford, Shipping, 14 Pick. Perkins’s ed. of Abbott 14; 490 and notes. mate anchors, If the her had Brutus been held had common on shore slipped- cables and run ‘¡m 1850. v. et al. have been a case of voluntary might presented. safety, sacrifice acts are instances such held a There several being ground 342; 22 Pick. Peters, for contribution. sacrifice, at the time of the had Brutus, But been alleged elements, from forced towards her anchors and was driven being force. an irresistible it is true, shore pilot, helm; and, there, remained at in whole he used his judgment best her the direction which not giving only herself, have adventure; but best for which would if she If entitles the to recover, best was empty. plaintiffs then, case of of the vessel owners every stranding, be. the master is compensated general average. Whenever cause, insane, or, not duty, some of his asleep, grossly negligent helm, he use his so as, will control the judgment, some and it will be the disaster cannot avert; which he degree, modify he cannot as mate did in swear, strange it for the common case, that he did thus modify present of the master rule, benefit. such a Under presence in most crew will be of detrimental cases absolutely on board will serve to Their lessen stranding. only in a claim of the and to create her favor against injury ship, the cargo. Rae, for' dismissed want The case of Cutler v. reported 729, was on the Howard, very of ably jurisdiction, in 7 argued We of counsel. In argument. merits by copy part' Ch. J. lost Sims v. 4 Binney, Tilghman sight Gurney, i. was the benefited, that the e. sub very fact subject ship, it was on the sacri for calling pretence ject compensation his on shore, finds that vessel must go ficed. When a master in a safe rather himself to than and exerts go place merely when, a sacrifice than no more makes .one, he dangerous- navigating a safe sea, he chooses channel vessel on the his changes course avoid a one, than a hazardous his rather he benefit for the of the- shoal; plain rock duty does to avoid and loss sacrifice of as well as cargo, them.” not ship, produce to the- direction the vessel her If, at the moment giving to sacrifice he intended shore, the been asked whether had mate have- he would vessel benefit certainly for the that he assured the was- querist replied negative, for the done could ship- the best that be with the doing herself. it, case, sacrifice, like a The only thing the man- of the chains. They impeded the ends slipping agement vessel, voluntarily jettisoned and were Mass., 8 Rawle, ; 66 & her. 11 Serg. purpose relieving x. von. et al. v. Adams Second Point. The defendants’ nutria skins the jerked estimated, beef should been have contribu- purpose tion, at their value at Buenos Ayre's. " 1. The value of the nutria skins at Buenos Ayres only 6,317.27. 11,000. At New York waá $ $ 2. The value of beef at Buenos jerked Ayres 1,125.18. At New it was York nothing. $ It is that, admitted cases of the rule of ordinary average, value is the value at the destination. contributory port.of so; This must be because it is there that necessarily adventure is forms the terminated, deliverance, which contribution, of the claim for is consummated. ground-work Besides, it' is to refer other market for a rarely possible any lost, rule of vessel be estimation. But wholly at a different from adventure terminated place consequently value of the at such different destination, port goods- is to be value. Perkins’s taken as contributory Court Abbott note 2. The 504, Supreme Shipping, s Jackson, J., Massachusett uses the per following language, “—79 : 14 Mass. contribution must v. Spafford Dodge, to the value of articles adjusted respective according incurred, in like saved, at the time when expenses each had had been manner as if all .present origi parties his own nally paid proportion.” claimed for thrown over If the contribution had goods of it board, or a mast cut would adjustment away, until the termination necessarily postponed voyage ; known whether because, event, until could a contribution, to claim would be saved thing to contribute also be held because each would party" according hands, at the to his to the value of come termi what should nation of the voyage.” Co. v. 3 N. Y. Safety See also Mutual Cargo George, . 361 Observer, 262; Ibid., 8 Law Reporter, Legal Macomber, Tudor a case of- con- 14 Pick. was driven'' vessel ashore tribution for cargo jettisoned. — Putnam, per J.: “We Curia near port departure. of destination, vessel the the that, if the arrives at port think* the have value be the net price should for which cargo might “ Abbott; That Beiiecke and un- there,” sold citing France, and Britain, the rule in Great Spain, Prussia. doubtedly Benecke, take auther, 288. the should But, jettison same says vessel returns' to the so near the place port departure .that the actual price replacing same or to the port, neighboring that could or, if allowed;- the thrown overboard should goods and not be charges the done, including cost price, "shipping 1850. v. Adams et'al. of insurance.” question The in this premium the rule as to the case arose upon but all the goods law jettisoned; writers put lost and saved goods goods footing,’ s.ame maintain- valuation of strenuously each should be made same upon See. Kent and principles. Abbott at the cited. Kent III. pages value, (Vol. p. 242) says, contributory the vessel arrives at the destination, port value of the there.” Abbott goods ed., (Perkins’s p. lays down 504) the rule of value at the of destination with port precisely same qualification.. We do not mean to contend, that, in the value of ascertaining the arrival of the goods, vessel at the of valuation is the place essential But we point. these authorities shy; point where the place adventure terminates, as port deliverance, where the for compensation effecting that deliverance first due, course, becomes where, it is to be measured. When saved goods shipwreck charge- able for contribution first reach an intermediate and are be, port, there an accepted .the agent shipper, they may they must be valued at that place. If are not so they owner first becomes accepted, charge- able and, whenever, wherever, affirmed, so safely reach his hands. But when its in- voyage strangled there is referable to ception, shipper. no, but. home port port Destruction of the vessel leads to there necessarily into the If, return hands shipper. permissive- the disabled' master of retainer, the ly, express ship.hires another of it to the vessel, and carries transships port destination, adventure, this is original new voyage, There is insurance pretence these agency. Brutus, on board the at and from Buenos goods Ayres New them York,” would have their board voyage covered during the Serene. vessel, before being prevented loss voyage insurer her word, would under first departure, responsible, of the Brutus, incurred wreck damage by the there' risk would end. vessel lost. This ter case, In present wholly minated the contract between the dissolved the enterprise, all the latter of claim freighters ship-owners, deprived their entitled the to receive AH' freight, former goods. v. 3 Johns. this occurred at Buenos Dunnett Ayres. Tomhagen, cited; 2 Gallison, 178, 156 The note and cases ; Saratoga, others, Scott Libby Johns. at Buenos claim was consequently perfect of course there recoverable. It-was then and Ayres. SUPREME COURT.

280 et al. v. Barnard Adams then and there A libel rem an ascertainable. in' the Admiralty have been Court would means country appropriate claim. enforcing then, what is it that the is settlement Upon ground, transfer*. York,, to New red made to contribute goods according to their value there ? ture is is that, said if a vessel misadven- disabled' from her it duty prosecuting voyage, the master to carried and cause them to be transship goods, of destination. port That where the the course disaster occurs in proper But occurs before and at voyage. sailing, the. received, af- wheré the contract of -very port goods is at Tunno, once dissolved. Purvis v. 2 freightment Bay, 492. In this latter case, court, which is the case before the there is the master with the necessity vesting extraordinary powers which, with, when, law, he maritime becomes clothed at a concerned, distant intermediate in the absence of all port, he becomes, ex rei, for whomsoever it necessitate .may agent concern, insurer, &c. v. Thorn- ship-owner, freighter, Shipton 9 ton, 337; & Ellis, Co., Jordan v. Warren 1 Adolph. Ins. Story, 342. theAt home the choice of another vessel port freighter, properly devolves After the has upon, freighter freighter. bargained for the vessel, chosen carriage goods cannot insist ship-owner forwarding goods another vessel, because the first has become merely com- incapable ' carriage; event, In has the mencing freighter right a new choice for himself. of making cases oh of the master to all, ex- authority transship it to of necessity, after the pressly impliedly, port confine in'the course of has 4 become disabled. 3 ship, voyage, Kent’s Scovell, Com. Ocean Searle v. 223; Johns. 210;. Ch. Saltus Co., Ins. 12 112; Johns. Treadwell v. Union Co., Ins. Cowen, 274. The rule value below assumes contributory New adopted to be York of deliverance from the port peril; supposes that, if in the Serene, been lost the defendants goods-had would have been exonerated contribution; from all claim for most so. yet clearly When, at the before the has port or reception, receiving anchor, lost, she commenced we insist weighed voyage, adventure, that the thereto, and all relations between parties between, must, there, then close. All accounts them touch- the intended nevCr ing must, even begun— voyage attempted, — there, then be adjusted. et al. v. The rule which we contend ahas twofold operation the relief of the defendants in the case; the rule present adopted had a below twofold them. Their operation nutria against skins have been made to contribute on value increased 70 per cent, York, to New in' the carriage Serene; the jerked beef, which worth 1200 at Buenos was re- nearly Ayres, $ lieved from all claim for contribution. This last not maintainable. The proposition clearly jerked, beef the to one of the He received it belonged plaintiffs. in order, Brutus at We good Buenos Ayres. say order, because the good in his assumes that there judge charge was no the its adequate proof sustained having any injury by of the vessel. When the beef was thus returned to after the shipper that it assumes was stranding, judge uninjured, worth about to 1200. Still it is contribute nothing, course $ because the York, to send it to merely New shipper pleased and it was lost on that He have sold or it con- voyage. might sumed it at China, Buenos sent it to of it as Ayres, disposed he In saw fit. delivered from hands, when so- danger by called sacrifice of Brutus, it was -worth it shall yet $ contribute on which the because nothing, voyage owner was it turned out pleased .ship unfortunately! It is this branch of the sustain impossible charge upon any principle. common law rustic arbitrators .alone fur- nishes a for the rule in relation to the precedent jerked adopted beef. The court the difference.”- below split New the de- skins at York acceptance nutria have fendants can effect. had receive their They right own whenever tendered to them. it was and property By receiving it, ratified the whole they perhaps adopted agency accept- it in their ing behalf at Buenos Ayres, shipping Serene for New them,liable York. made for This probably the Serene. freight by pay, This have or are willing paid, demand. The mere their acceptance property own of, cannot their to the owners other change relations ship- the Brutus. pers by, To conclude, we con- insist nutria slims that-the should.have tributed at the that the beef value, Buenos jerked Ayrean should have contribution. included the subjects among Third Point. Brutus claim contri- The owners of the denied, bution for not be the loss of wifi their vessel.. It dis- contracts were between them and master crew their solved and vessel. terminated the destruction fall to whole doctrine the would underwriters abandonment to the vessel were so. ground, not The moment 24* al. v. crew were liberty found innavigable, wrecked them, detain nor could neither profita- The master her, leave ex- are made wages Charges bly employ"-them. crew, after it was ascer- of both long master penses tained was afloat, and her sale the vessel could not got to The error was court refused instruct the But the determined upon.” that these recoverable. charges

jury, manifest. cent, — half of two and a per Point. The Fourth allowance alleged to be due the'contribution to the plaintiffs, to them general average, collecting erroneous. their vessel for sacrificed The case assumes that plaintiffs, claim, of their the amount benefit. To ascertain the common and it is freighters, chargeable proportions the contributors. Here is made out at cost of an adjustment taxable cease, unless the costs all must expenses supposed There is no become recoverable. tribunal should such legal lawas a fee or commission party known thing demand. his own receiving not done or is collection reception action of This of benefit the defendants. benefit, nor for the Surely common skins, are not nutria interested as owners the defendants, If the in the collection, adjustment. though they in the plaintiffs collection, one will suffer but to omit the choose (cid:127) absurd and it is perfectly themselves. Upon general principles, in the from one not ihterested collecting, to.demand unjust Governments, a demand. by posi- for collecting compensation with the enactment, their debtors and. tax-payers tive charge costs law sometimes imposes of collection. Positive .cost the com- debtor, but no is imposed by such a delinquent penalty trial of of any usage There was no evidence at law. mon We submit exaction. this trade, local, sanctioning general cannot' sustained. that it Lord, for defendants in error. Mr. is, whether, rests when this on which question judgment inevitable, that her total loss is a so imminent a is peril ship made á view a with to all voluntary*stranding, appearance, destruction, is to and her from total the ship saving contributed saved ? for, event being thereby any thing in error treat this as an open question. They The plaintiffs inevitable, the- that, as the destruction insist, stranding also ; that the of the rule ship not be in the sense could voluntary, to the for, claimed instead of sacrificed exposure that ; the less and was in fact sdbmitted to greater peril, act and so not- done in thé course of duty, ordinary Was et aI. at all. These are views 'presented their sacrificing first the considerations in their written point, amplified by argument. first are opposition point of-the defendants’ brief, Thev now be more and will considered. fully divides itself into subject naturally first, inquiry, nature of What is the peril, avoiding rise to a ? contribution gives voluntary damage secondly, What is the character master, of the act of the which is to be ? deemed voluntary made, No and there difference question is no pretended contribution, as to the whether the master’s right act has caused an absolute destruction of or a physical ship, partial injury.. is the of the- Then what nature ? On general average peril error, it is said must not be of part plaintiffs that kind, an inevitable All their argument or indi- depends directly on thé loss in the casé inevitable rectly present being apparently, when the was determined from on; and that stranding they argue shore all voyage man compulsory; tfiaf could do Was to a safer that it is like navigate spot; over from a that the act jumping burning ship; and, saved the rather than sacrificed ship, her; the loss thus he inevitable, that in fact was volun- being tarily argues nothing lost, be contributed for. nothing Let then see us what is iii the con- peril ceded instances of it. If is not so loss great danger inevitable, is the otherwise where master to an- right ' the destruction of hasten the adven- ticipate ture ? _Does master ever make a cut jettisonj rightly away run ashore, mast, or loss, unless the he the time is- measure, resolves on inevitable it ? unless he resorts to Is the master to throw over or mutilate his out c.argo mere he do.it, Does ever all apprehension? unless reasonable of otherwise the adventure is He is not to hope saving gone? a be total unless to is in fear from causes, nor justified slight anticipating to a which adventure, destruction awaits the whole all human other from measure judgment' any safety the When has been overcome in her hopeless. strug- ocean and is in of with gle tempest, danger foundering, and when her is the to this measure avert lightening only certain to otherwise then first arises the over peril, throw right is a born of distress in It at the last cargo. right degree' only his' be If it can vessel was not in such ship. shown that the that she in all sink re- would human unless danger- iudgment So, the be lieved, case too, would unwar.-^ated. jettison any that, if it be shown could voluntary stranding, by any 284 al.

Barnarcl -in means the master’s power, by anchors, on holding by or could avoid sail, he the pressing he making is not danger, warranted in And so in is ship. fact the beaching practice of mariners. None of the cases of voluntary which stranding have occurred have been without inevitable danger. therefore, The inevitable, its nature peril, so far from being a reason to a contribution, is, the prevent on contrary, it. essential to And the here argument goes the extent, that, exists, when the contribution danger slighter shall be made, but not when And in this uncertain- greater. what becomes of the as a ty, left to a rule rule Is it law?- in this case the jury less, was a little say, danger and there shall be .a contribution; and that case the danger left no and therefore hope, there shall none? The inevitable, the and the greater more danger, any by other action, means than measures to its anticipate more the is the act thus it, justifiable anticipating courage more demand of contribution. rightful It will reference to cases appear, Woodrop Sims, 513; Rawle, 4 229; 2 & Binney, Apollo, Serg. Julia, 2 3 C. C. Rawle, 237, 298; & Wash. R. n.; Serg. Peters, 331, Gem, 197; Pick. Hope, was, inevita case loss to all human every appearance, ble this ; and is an which the wit strongest language ever ness can understood to mean. rightly As to character instances peril, acknowledged contribution and the maritime authors alike general average Thus,-to unite. save a is jettison foundering, for; contributed loss was avoid inevitable. To capture, after is resistance has become flight desperate, warranted and contributed for; loss inevitable. water; with her masts her beam-ends ship are cut filling and contributed for; her loss was inevitable. away language I. Emerigon p; apposite (Vol. very 408) “— -that, to the case at bar: sometimes happens escape, wreck, to avoid absolute is stranded in enemy, least seems the sustained dangerous; damage occasion it had its such because general average, the common And adds: he Acts object safety.” furnish of a 39) memorable Apostles example (xxvii. his understand Showing, stranding.” very clearly, to be averted an inevitable loss was otherwise ing for; So, also, loss. the ransom from is to be contributed pirates is inevitable, loss and indeed actual. “— same avoid a total If, Boulay view: Paty presents loss, wreck or measure of capture, adopts -captain TERM, 1850. al. v. et Adams et al.

Barnard afloat are expenses get his ship, stranding general ' Marit. Droit. So Boulay Paty, 454.) Again: average.” (4 there must be a forced to constitute will average general the act of man y ait volonté should qu'il forcé); (il faut must, accident in with the fortuit)......There concur (cas fo an imminent be the the next place, avoiding peril (pericu A fear would evitandi not excuse panic imminentis lum causa). must real.” Ibid. danger captain; face of that, considerations, these seem, It would in of the take away inevitable character should not danger to the contribution. right view of is, however, another this of subject There worthy (cid:127) Take, to be avoided ? What is the for an consideration. peril instance, the case at It was total destruction of bar. ship, Was this of this and crew. particular peril, cargo, particular danger loss, not; inevitable ? The result shows that it was This fatal and crew thus perish. ship, cargo,' did in averted, for was fact was capable aspect peril averted. disaster ? What was into which the was shaped new peril beach, was a of all on an .It easy saving board. life on every Why, preservation undamaged, then, — inevitable, should the insist'that the saved peril What which, fact, in it has delivered? peril been caused the in of the destroy- substitution of the place saving The coolness and deliberate officer peril? courage ing to attack the on-the field advancing danger chosen charge, himself, instead of its attack where it would awaiting have irresistible. . notice a result of this It is character proper, relief, Without the whole adventure peril. must as lost. It would be lost in be looked of danger cas.e of actual foundering, capture, All possession by pirates. lost, thus viewed as all is valueless; is, being the equally of all the value of the adventure is to parts be viewed value to the as a as that diminished -subject danger, degree And when contribution refused great. degree whose loss is master’s thing, anticipated by because act, is it is destruction, remembered already danger that the saved were in' that the contribu things equal danger; to be value, is not viewed tion because unfavorably The time what is not lost. of view safety, a. when take all It there was equally danger. justice calls for a liberal favor of the fore construction in contribution. liberal, manner awards are as the In salvage proportion was, saved in value reduced saving, property previously SUPRE'ME COURT. al. contribution is relieved. The which was peril “ of to be the common law and partnership.” (1 Said justice of P. It is a partnership Holt’s N. Rep. peril note.) a of from which every thing partnership merely, danger, ais of a stock part of danger, escapes, any anticipation divided. as a stock, treated common and to ratably What, act which is then, is the of the master’s character to be deemed ? voluntary is of above quoted peculiarly expression Boulay Paty choice; forced he a accurate to describe it is it; forcé,” “volonté or none, says, that will man must concur with the to use a the be alone the of the phrase. Again, homely disaster,” of cause, a idea' that any cause. 'The only cooperating ordi- sea, Sacrifices times of are voluntary any peril, an act of is sense of the It word is erroneous. nary quite the alternatives will, under the sternest of necessity; pressure are, loss if total loss if is a done, danger nothing lighter is hastened. is the choice pre- This is all the choice. It only consul- It is determination .' to aid making' sented. tation, be- is "to-be of peril had. It the degree is in this that comes, of the to be important danger The greatness considered. more makes escape task' of some measure adopting from the imperative; danger relieve the whole adventure to sacrifice resolves, from hesitation vácillating arising another, the to’ one cargo, parts preference contri- of the of general law interposesAhe policy indemnity found- J., bution. C. : The law average Tilgbman, says are men who there ed because policy equity; policy, than sacrifice would loss rather fortune, risk the of life and because their without On equity, property compensation. saved the property can be more than that reasonable nothing was the cause the loss which contribute make should of good Rawle, v. 255. Wain, & safety.” Gray Serg. whether act, is not to determine then, voluntary shall be them already; Destruction is thing destroyed. stand, before all master events. will be as the circumstances destroyed, at all must destroyed acts to avert peril. Something the destruc is, volition be exercised Shall only rest of the ? tion be as to the rescue anticipated part; procure electron of mere and when and be done ? It is a how shall volition, time and selection of is no other There subject. . itself in other waste act criticism" Refining this a voyage calling choice, compulsory compulsory — it to shore, in denying of a safer selecting exposure, re act which sacrifice. is, nevertheless, It the voluntary all with mains performed master to On its being perform. al. et- al. discretion, the whole coolness, courage, property of all that this small amount of lives volition depend; bemay hesitation, exercised and without of the law freely policy tenders to the officer the indemnity a'general contribution. him at ease as to result of his decision. puts This selection of time and at was made in this case place stranding the time bar'; varied. The two anticipated, place acted on, items choice were and the result important a most of the one, life of saving al- every saving entirely, greatly lessening ship. injury The criticism made on this of the’ argument by in error is more than plaintiffs a that it striking just. They'say, to call in a safer paradox placing (cid:127) a sacrifice. The of a into putting to relieve a lighters stranded does -the same; but it is a case of con-' "average moreover, tribution. And so sacrifice, called aby figure speech, average, merely anticipation selection, time of probable injury, subject. Sup- the loss to pose had not been ship exposed in- evitable, that, so upon principles plaintiff’s' argument, it contribution; -was a case of would be less so in de- any if the act done for gree, dered benefit at the same time ren- general invited and more anticipated inconsiderable ? damage remark that Nor is -the there will be a just, always contribution, unless the master forbears all action.” blindly There will never a contribution unless the master does take action to select time a -place, avoiding general impend- destruction; but he does, whenever to be ing' there con- ought tribution of the law, principles nuñierous be however the instances. is not It that the always selection of time arid made; can, can be but whenever it place it is that it policy be, should a and that under freed from judgment hesitancy aof by this consideration of the there never force indemnity contribution. apparent plaintiffs overbalanced that of contribution all, any be be principle inevitable, that, if loss be otherwise there can adopted no tears contribution. That out the of this whole branch of the law. therefore submitted, a respectfully that deliberate selec- tion of the time and act within rule of law. the act of the That master only diminished danger has considered. The already whole apparent force of this out of the argument grows use figurative term Its in this branch of the law, we sub- meaning, sacrifice. mit, has reference intentionally an act only doing damaging; a!, efc v.' Adams it has no reference to the that was danger impending being than is and at an incurred. greater willingly, period, earlier to the benefited, that the Again, argument subject ship, was the very subject on the calling compensation pretence that it was sacrificed, answer, we that it is no to a objection contribution as as benefited well cargo. contribution rests on the master’s judgment anticipating effect of the an earlier to it. danger by exposure said, It is too, that, in a case like the the master no his vessel on present, more when, makes a sacrifice than navigating the-sea, he chooses a safe ; channel than a hazardous one rather is, answer that the case of is not in the general average course of common but arises on conduct in circum navigation, stances of fear, trial, other con great danger, calling siderations than the safe thatj ordinary navigation; case and supposed channel, safer no act of choosing present . strongest is incurred but the anticipated injury Nothing can make an between the cases. fancy analogy distinction is A between acts of attempted jettison, cutting &c., on the away ship that a of a parts, ground parts separation differs from an to the a whole injury ship going into a This is under- community peril. very easily stood but if ; it means between a that there is difference and a the whole jettison ship, voluntary stranding damaging .alone, from an differs ground .this injury whole, denied, and is such difference injury is entirely not supported nor by any authority principle. acknowledged In case of a result is not an accidental voluntary stranding, that the suffers more than but it is very cargo; intent of the stranding. One other view will on the presented, principle case, below. It has been judgment suggested single inevitable, loss must be sacrificed where.the thing deeme'd of no value, and so there should be contribution. be, The answer would mas saved at the things time ter’s was in decision were loss of no value when the equally when, evitable. And their redeemed from having peril by that which no more intentionally was and injuring same an value equal should be that. Under peril, peril restored removed, all were of no válue; all after the impending, peril stand of full value. case referred to is Crockett v. Dodge, Fairfield, 3 190. The in a schooner Rambler was taking of lime at wharf; hatches took fire; closed, and afterwards, ; lime saved was thereby part vessel board, was scuttled with a.remnant of the lime on was thus lost. For the loss of this remnant, a claim ,289 1.850. et al. v. Adams contribution was made against ship. judge, had, the trial held that the b'efore whom was lime in its endan- and condition value, was no and so no damaged con- gered tribution should recovered. The above court it more placed on the its But, impossibility saved. decided although 1835, in tion but 9 no reference was made to of the cases on this ques- Johnson, case is very court, by put Peters, 13 as one of general average. Besides, it is not true that is to property greatly endangered If, be deemed valueless. which wreck, instant .in apparently lost, to be a mariner every thing should likely embezzle a box of would he be treated jewels, appropriating thing noof value ? If the convict doomed to execution to-morrow on be stabbed will gallows murder, it cease to be to-night, because he has but a short remnant of a doomed life ? to the defendant’s Referring brief, as to the printed decision under review this being- supported by principle, will closed two quotations. Ch. J. argument says, “ by Tilghman be. in, — in his Sims v. 4 judgment 524: Gurney, Binney, can be more than that Nothing equitable all should contribute towards of a loss which has reparation been the -cause of their the time of .more because it safety; nothing politic, encourages owner to throw his without away hesitation in property Sewall, need.” Norris, 6 Judge Mass. v. Whitteridge “— General is a contract 131: properties which distinct of several become to a persons common exposed peril,- relief from that and a concerned, at the one peril more of the expense are, who entitled therefore, to contribution from the benefit intended rest, as well provided as obtained by destruction, or at the hazard, of the peculiar lost.” property But is this question question in-this court? open elaborate in error forbade argument plaintiffs passing by ;' a discussion but it seems now to principle impossible case as this not covered treat by authority. In Columbian Insurance Co. Ashby Stribling, Peters, 331, the on a brig Hope, sailing West voyage Baltimore, Indies apeake of the about overtaken Ches- gale ; anchored, she drifted from her force moorings windlass, cables, broke her her gale, chain parted near midnight brought up ; Island she thumped' Crany or struck on shoals on a bank, head, her swinging westward, around to the broadside to the wind brought situation, sea; heavy captain, finding pos- sible means of crew, the vessel or the' saving preserving and ran her ashore cables slipped safety crew ”; found preservation vessel vol: x.

Barnard et al. her off. All this was found ver- impracticable get special by dict. The cause was heard in this 1839; court in January, and after an elaborate and learned argument very opinion, was to be con- stranding adjudged ground tribution. above of the description the.imminency peril means of relief is verdict. from the .The copied literally special found no other peril, no other' jury They ap- stranding. not to inevitable, the the term plied the peril stranding nor voluntary. word But what could be more inevitable than “ the loss here described ? verdict The special says, captain, no vessel or the means of the not possible finding saving crew,” &c.; this be of a preserving description loss, of inevitable words It is cannot describe it. peril sug- in the that she her cables, gested slipped plaintiff’fe argument, anchors, and therefore must have been still held by have survived the storm. had found But that might jury vessel,” there was no means of 'the &e.; possible saving they therefore found that cables were anchors and not such reference to the means; by previous parts special verdict, if cables, that anchors and while all sound, appears had not held the ; windlass, she had ship had ripped up cable, the chain shoal, had struck parted on a broadside lay to the wind and sea. It cannot contended that the heavy case not The act brig Hope utterly hopeless. master was a because he voluntary selected an stranding, only (cid:127)easier bed for the to die on. These facts found in amounted, verdict special court, to shore opinion voluntary running ; that there was no other brig Hope ing means of possible preserv- crew, ; and'the ashore ship, running found, was for this verdict thus Facts thus and a express object.” special admit of expounded, are explanation, too admit of no already They distinction from plain. case of inevitable loss and where the must voluntary stranding, ashore, and selects go captain spot merely varies the time. Both and. the the facts found ex- jury, court, of them question now position argued there is it not decided? presented. Why deemed is said that were, whether the points principally argued doctrine salva nave to the mere of due or applied saving ship, successful result But decided stranding. for the the to it. still ship, lay inevitable between question danger ; her claim contrioution nay, preliminary fqr due Unless contribution might did question, avoid salva nave loss, inevitable . et al. v. Adams ,the was, arise. There according present plaintiffs’ argu- ment, no to be saved; her ruin ship was and so inevitable, .she lost was before the really stranding. Will it be said that court the did not ? argue point The counsel for the there did, indeed, take the point, in opposition counsel for the here, must that there be shown an inevitable for the necessity stranding. coun for sel there fact, that distinctly presented danger was inevitable. There was no if he remained hope anchor; storm.” The none, if he certainly to breast the attempted fury who delivered the judge quotes from opinion translated,’ above Emerigon passage ashore’ running in the less dangerous he examines the- in the opinions place; cases, Caze v. 3 C. C. 298; Wash. R. Sims v. Reilly, 4 Gurney, 513; and Binney, Wain, v. 2 Rawle, 229, & Gray and and Serg. “ We have examined the says, these reasoning opinions, in. are bound to it has our say, unqualified assent.” It is observed, to be addition, in Judge puts Story case which very occurred in Maine (3 Fairfield, 190), consid ers it a general of Walker v.United States average. case Co., Ins. 11 & also Rawle, 69, counsel'; was cited Serg. ease Wharton, which deems to very in 4 Judge Kennedy, overrule Sims v. also in 4 remarks Gurney, Judge Story Binney. upon and with all these cases before opinions Stevens'; the court, this a case of adjudged loss, con avoid.inevitable one -calling general tribution. identically If a case decision, this does cover not, upon as a facts, facts certainly upon presenting same same question, what decision can do it ? very adds to It decision, that in weight the case of this Sims made, v. this Gurney point argued counsel,' very fully by court. C. J. passed Tilghman, distinctly says (p. “ It is said that the must have ashore 256), some gone where, and it made no difference that shore where was. It is - that' the should be dan necessary exposed greater to,make been, than she otherwise would have a case ger them, before With this then so general average.” clearly' point decided, so raised, so and the- expressly fully argued, of Sims so there was no reasoning call for Gurney fully adopted, in the in again discussing pronounced opinion case of the Hope (13 Peters). The decision of this court in the case of the has ever Hope since been considered as on this law settling point. in decided In the of the same same spring year, very a avoid inevitable loss arose point voluntary stranding Massachusetts, Gem, in the case thé like that precisely et al. v. et aI. was made very point by Curtis, counsel; Hope, down, J. laid Shaw, Ch. if the cable rim on cut, and the vessel shore as the best ex voluntarily pedient imminent life although vessel was in saving property, .and there was peril, although every probability she would anchors, sink' at her her cables and drive ashore if not still the is to be considered cut, loss as coming within the cites the case average,” and. principle 13 Peters. Co., 22 Pick. v. Ocean Ins. (Reynolds 197.) in' case of the District Again, ship George, Court of New considered this covered the de point York cision under District of applicable Peters Law Reporter, 361), case now (8 review, Court the Circuit judges Southern York considered the decision in 13 New Peters decisive. And the decision although appealed .and from is to be for consideration held suspended open effect, law, in a of commercial to be carried yet question, out in the merchants, ad important, although operations rapid, justers of losses, &c., the manner in which a decision is re ceived to by it, understand and persons has been competent acted on for ten deserves consideration as well years, showing its has plain and extent. This decision entered meaning into the business of the as thus largely understood, and country should not, even if its had dubious, correctness original be either disturbed or nice refined made useless and dis by tinctions. So far as the of the on au argument plaintiffs is understood, thority it rests on the cases 11 & Serg. two Rawle, Wharton, 4 cited points. on their former The cited court, before this Mr. Semmes directly by arguendo in the 337, and, case of the to that Hope, opposed decision, p. This this court. court adopted silently rejected by oppo case in the site Sims, conclusions given Woodrop 4 case, Robinson, latter Meech v. The 4 Wharton, Binney. decided 1839, is remarkable in for its of the decision disregard in and its 13 Peters to Binney, opposition decided (the Hope), in and not of the same noticed year, previous part by the courts of make However Pennsylvania may free judge. own decisions, they with their the this cannot to unsettle permitted decided court,and law in this recognized adopted commercial decision in-4 extensively Bin country. was after creditable most to ney abilities arguments and research of cussion the eminent counsel upon dis engaged, of the Ch. J. unsurpassed whole subject by Tilghman ’ It was learning ability. distinctly approved -adopted court, cóurt, this of this and, with the has stood by judgment too and is too to now shaken. long firm et al. v. et ad. error-, of the plaintiffs The second point oppo- defendants, to the third relates to the sition values point on which contribution is to be as- parts sessed and this where contribu- ; depends upon place is not tion is to made. It examine or criti- necessary cize the cases cited It in error. point by plaintiffs case rests on that the of a supposed, general principles, character, settled. be de- well cannot practical nied, that, will.not the adven- reception shipboard, ture nor that it was to terminate in New York. begun, of the nutria skins at Buenos no Ayres shippers 'made disaster, claims to them there after the but allowed their trans- York, the master of the stranded New shipment ship, Now, without the new contract where was -affreightment. master, whose it was collect general contribu- duty tion, the to and where entitled demand the the owner of payment, bound it ? The lost had been destined goods pay with this there to be sold. Had the New York master a exact right payment place Was the who had advanced shipment? already shipper, bound to ad- advance price purchasing goods, dition the ? He looks to the sales of tne goods, general average their York, to ex- or the in New freight consignee, pay ,be owner, He is not even to presumed penses. as all his be a has executed shipping agent merely,*who fully probably He has funds- authority by making shipment. does not demand back of these He purpose charges. destina- but lets to their the tion on them forward original goods, go the old contract; arrive New safety freight of'destination, is the reached York. There cargo. is the place, There place, only proper valuing proper vessel, an American freight being ship. registered Free, then, lost, is a to the home of destination. freight port from all technical of was objections, destination /'ace for of the payment charge. place proper if the rule valuation for becomes still more of This apparent lost and the of considered; cargo lost rule valuing carga .be saved is the same. and sacrifice always By general cargo of his indemnified in the cost owner is not merely contribution, and The on lost goods; freight goods paid for at their is assessed in The are paid contribution. goods recovers,-not merchant value at the The destination. place but cost, ship-owner, first The merchant profits. only therefore, place are both entitled to compensation .of on the be assessed must follows, destination. that they ed., 1 Perkins’s values at that Abbott place. (See Shipping, 25* et al- 13, ch. 607, of in Abbott is x. s. The pl. 14.) [504,] port lading spoken to be understood as the home port, lading not the abroad. lading port case adjustment (8 Law George Rep., to be will agreed; 'a case where the value of 361) found it was not a valuation at home or foreign of the but at the ports and as a voyage, distress; port large there, of the was sold wreck proceeds sold were received there, was, rule aby of forced con soft cession, adopted. beef, As to the jerked not injured although itself, inwas for yet This transportation reshipment. a direct of the consequence from the stranding, resulting occasioned, of necessity, thereby boats. The transshipment by liable, was bound for York, beef New on its in- .pay there, creased value if arrived safely. Consequently, York, .value was'diminished on arrival at rule New the same to diminish the value for .assessment the contri- operated bution. whole on this argument point, error, plaintiffs of the proceeds up supposition voyage, being wholly broken at' Buenos But this in fact not so. Ayres. None of claimed, claim, or receive shippers willing appeared back,, their goods. They immediately continuously vessel, forwárded master of another then at Buenos with Ayres, Brutus as There was, .therefore, master. continuance of the adventure until all the agreed property place reached its destination. could not have The/ship valued at Buenos an American properly Ayres', ship, being sale, not sent there to be for and returned to employed value, her New home There her correct York, port. .only assessment, could ascertained. always where aver- The. less, be stated more or shall on acci- age dependent, circumstances, dental not the technical affecting, termination of the but the actual and voyage, up practicable closing adventure. It admits rule of law. And it certain very submitted, that in there was no error point humbly the court below. point The third the. time at plaintiffs respects precise wídch the tó cease provisions wages ship’s company abe It does not raise genera question charge. are some wages provisions charge time after are in salvage stranding. They the.nature therefore, at which of time charges, general. point cease, its plaintiffs in error insist is that of being shall certain could not be sale got off] et al. Barnard v. Adams obvious determined. that this have been done long before by beforeit was cargo discharged, long transshipped and boats crew of the But these and ship. pro wages visions to be ought adventure, as as ser paid long crew, vices of the as mariners, laborers, or quasi-salvors, were bestowed the adventure. on Immediately stranding, could be that it determined could she not floated; again and the determination, of course, would be sell the wreck. But until the entire saved from the and what could be crew saving cargo were ship, services essential to both. There is no in law to ground that duties of-the say when, mariners ceased became and fatal. still lien They duties as mariners owed on both to and had a ship cargo, as a substitute for wages, salvage wages, until the wreck. and cargo of from the fully properly disposed Being properly employed upon true, it not, even as if their obligation ceased, had still their services entitled vessel as them to their a wages support general charge. The fourth the commissions for point respects collecting average. on rests this not a service plaintiffs’ argument being creditor, allowed to a claimant or ever allegation not service common adventure. argu- because, instance, is the more the to whom ment owners in this plausible, ship- collect who are contribution the parties it is all so, But this is not there payable. being generally received; one contributions to be out as well as usually paid recipient ship-owners were among only among would be discrimination number, there or deduction one, the rule amount; and must applicable gen- general to the office of erally party accounting average. to be the this relation of the he is true Taking ship-owner, trustee, official involved disaster agent evidently causing difficult duties, in new and often very the average responsible embarrassing. duties, are in his a mere as They obligation embraced are disaster. carrier. duties out of unforeseen They arising disaster, are duties which result They directly .from much so as the in when water damage getting therefore, On the of law, 'is made. jettison general principles trouble compensation compulsory agency oí to ac- disaster, it, it arise from the ought form the ser- it in the In the case, contribution. company present et al. merchants, were those of for the owners. commission busi-

vices transacting not This, whiie it vary princi- ness, may relieves its from ostensible present objec- application ple, tion that are a the owners themselves commission on receiving own their claim. collecting conclusion, in Webster, for in Mr. In error. plaintiffs “ in the nature- of a considering average peril it,” of conceded instances the counsel the. in defendants error, for the of con- this case those purpose with identifying cases, ceded maintains the a is that master never proposition “ in a or sacrifice, other unless the justified making jettison loss, at the he measure, time resolves on the is inevitable un- he less resorts to it.” This cannot be maintained either proposition by reasoning When the of of interest authority. community master has in circumstances of it is charge placed peril, that be inevitable, not his loss should order to in necessary deliberately sacrificing justify one interest insure the of safety one rest; interest to risk putting in order that greater of interests be diminished. remaining risk It is may be real, that the “risk but it or less enough may immi- more nent. A risk would sacrifice. A more slight justify trifling imminent risk a risk, hazard, sacrifice. The terms greater peril, and, indeed, the whole of class words used describing gen- cases, eral average include both idea of always danger the the of The possibility propriety escape. only questions of judging of course master;, case any given sacrifice, are, Was the real? and his voluntary peril act result of deliberate not judgment, consequence mere This answers panic? assertion of the defendants’ “ counsel, that our tears out the law of principle gen- whole eral Bo far is it this, accompanies every average.” sacrifice made in time of for the peril bene- common fit, and awards contribution. ' error, defendants in counsel throughout brief, and seeks to points-,' confound and argument, confuse words- which have phrases distinct and well understood differences Thus, on one of his meaning. page only printed “ “ uses he argument, danger,” peril certain phrases peril,” inevitable “ “ inevitable,” and .inevitable,” loss as though these were equivalent convertible terms. A peril inevitable, no loss accrue; but to loss is in- yet say evitable, not do yet may is to violence to lan- happen, We should not guage. were this, notice if it an inadvertent . of a misapplication term; but there is an evident design et a'l. v. Adams Barnar.d term Thus, inevitable. meaning dwarf same “ said, and the more greater danger page, ble,” inevita- admitted of inevitability as though .degrees, if the term to equivalent word inevitable merely word “ Indeed, in the it is insisted that the term peril. points, inevi- ” construed to mean table loss ought merely highest short, loss that the term conjecture ”; degree inevitable ” to be from its loss tortured meaning, pronounced risk; court mean conjuring imminent and it is merely only thus with words judgment this case can be sustained. To constitute case general average contribution, two — n concur: must things 1st. existence inevitable, but danger capable avoided the means resorted to. “a 2d. The evidence of deliberate to sacrifice the purpose ; at all events -or, at the claiming contribution thing least, very to struction would be it into a situation in which the put eventual de- danger Gibson, increased.” inJ., Walker v. United Ins, Co., States & Rawle, Serg. In this case both these elements were wanting.- is This conceded the defendants. substantially by They “— act, then, The is not to determine whether say, any voluntary shall be Destruction is them thing al- destroyed. all will be as the circum- ready; destroyed (by stranding) stand.” stances criticism waste itself in Refining calling this a selecting choice, shore, a voyage compulsory compulsory In safer it to be-a — denying sacrifice. exposure, ail the act which is nevertheless to remains to the master for the So much of loss, certainty perform.” according to the own As fact that no defendants’ showing. sacrifice made, no increased risk of loss to the run, was ship are The result of the mate’s explicit. was, act equally is con- ceded, the to the greatly lessening injury ship.” defendants’ counsel dwells seeming equity of the mate the act saved by contributing loss of to that is answer twofold. ship. lost, sacrificed, or 1st. The ship injured act by mate, act, far as but saved so saved at by all. act was beneficial to That this less owners of than to the was a mere owners accident. Just such a casé near New York, off happen got might little while a valuable beach with injury; cargo, consisting sea-water, or other articles teas destructible jeadily by might the mate have been act of was one done in destroyed. care diligence, exercise ordinary benefit et al. w. Adams each and under care. his Each and every thing under his benefited, every thing more being- charge

or less. The varied, of benefit but not the result of degree or to sacrifice one to save design another, attempt thing but as a fortuitous, mere unintentional result. 2d. The several a sea are not persons mutual engaged'in risk insurers ; each runs the risk of his own A adventure. struck a squall, ; and the masts carried by wave carries away y the boats overboard, or breaks in the bulwarks the loss must be borne So in an ship-owner. assault an repulsing “ neither the enemy, expended, nor the damage ship, ammunition nor the mariners wounded in expense healing an action contribution.” sea is a against enemy, subject assailing Abbott A (Perkins’s Shipping, 501.) heavy deck or sweeps finds its into hold away freight, way injures bears the Then .the owner loss. cargo. A wreck occurs, one man’s is saved property slightly damaged, another’s stroyed., equality the value of another’s de greatly damaged, entirely Each man must bear Out of this his own loss. very .of the several owners arises the independence doctrine of No man has general ask, in average. right a case-of common that another’s shall be sin-' danger, property out and gled sacrificed, for his ben put jeopardy, greater ; efit and so law to the owner of thus selected gives property for sacrifice a of contribution those right whose prop against with no erty, his, greater right than has protection imperilled saved or risk; it is this expense less selection, dedication to sacrifice or. thing specif! e hazard, the. foundation of th very right average. The cases cited are, counsel for the defendants when examined, confirmations of this carefully view. of Ch. J. reasoning in the defend Tilghman, quoted ants’ exacj; is in argument, accordance views of with our on,which law. The equity in contribution right is founded is the reasonableness “that the property saved should contribute to make loss which th good e “— cause of So the safety.” of Gen Sewall: language Judge eral is a contract ayerage of by distinct several properties become persons to a exposed common and a relief from peril, that at the peril concerned, one of expense more of the who. are therefore entitled to contribution from the rest: provided, the benefit was intended, as obtained, well as the destruc by tion- or at the peculiar hazard of lost.” property judgment court below being unsupported' by prin- _ the case ciple, Peters, Hope, urged

Barnard, et al. v. Adams- et al. as decisive court, with of this desperate pertinacity, case; but our shown, in that we have that argument, opening case the vessel was still held by anchors, in which and which, master, of the deliberate act vessel was by deprived her; that then held all the case in means which the court as stranding treats the found voluntary expressly by special verdict, it was. The of Mr. as indeed language Justice Story “is, The verdict finds there was a that special voluntary running- on shore of the brig Hope.” He at once discuss the question which he deemed proceeds discussion, that, decides in case of open voluntary is not salva nave to constitute a claim stranding, necessary for constitute a case of He neither nor contribution. discusses what decides facts and it cannot voluntary stranding; sup that learned and that most posed learned tion jurist, this painstaking court, decide so important would delicate ques and. such a silence, mere that by against weight reason whole current We ing mere authority. against say by silence, for, said, what is an notwithstanding inspection show cited of the .case will cases court are cited by in to of the salva nave to relation entitle the necessity party contribution, relation what question of con is clear that the stitutes case still stranding. court, this and we dissent question from, open and “the decision of since the who emphatically of, defendant, assertion' the counsel deny this court in the case of the has ever Hope law on this considered On settling point.” is; doubtless, to the learned well contrary,fit judge known cause, this that the bar New York do tried not consider the main this case as consider the case settled point Hope, case and that do this as in which that very settled, and for the first time. is to be question Driven to avail case themselves of difficulties case has a which even remote aspect eveyy plausibility, that an the defendants time of destruc urge anticipation - ; tion is a- stranding voluntary considering ground there evidence was hastened is 'no that the-time alter the were,-that mate but cannot char ; surely acter of the moment sooner or later can act done. Surely not determine non such interests. De 'minimis curat important lex. rest, on the We the other case al- in this arguments points ready presented. GRIER, Justice

Mr. the court delivered the opinion below, others, plaintiffs brought Joseph SUPREME COURT. Charles Barnard and the others, in Circuit Court against action to York, recover contribution New of general average Brutus, of called the board of loss their vessel on which the were shipped, plaintiffs certain goods consigned delivered to them on their error, promise to pay, provided were due. justly contribution trial, the Circuit Court certain On the instructions to gave which were tne on the the ness correct- subjects of,exceptions, jury, which court is-now of called decide. the case As the facts of were not it will be disputed, proper them, state the instructions with the given by connection court, mistake or in order avoid which any misconception the arise in terms mere abstract might construing proposi- to the facts which tions without relation on were based. October, 1843, 8th On the Brutus was at ship lying at usual anchor, vessels in the outer roads mooring about seven miles Buenos from the shore. The at width Ayres, at that between river Buenos place, and Colonia Ayres about fifteen shore, miles. The opposite Brutus had on board for York, her New taken cargo consisting nutria horns, and skins, hides, beef. The jerked master was on dry shore, mate, and she was in the first with a crew charge in all. the 7th, twelve On consisting persons a gale had commenced, which on 8th had become dangerous. four o’clock next About her ship morning began drag anchors, and small anchor was let bower About nine go. o’clock in the the best bower an- evening, gale increasing, with a o’clock, chor loud ten parted About report. small bower and the commenced parted, broadside with drifting the wind and waves. Endeavors then made to get before wind, ship keeping failed, account of the chains sea, broadside which was a breach making over her fore and aft. The chains were then slipped, vessel before wind, got two men were the wheel,- put one to the lead, and it was determined to run ashore preservation of the and the lives of the cargo crew.” ship was now about eleven when the night o’clock before got the wind and under command helm. (cid:127)The shore next to Buenos towards which the had Ay.es, had banks and shallows drifting, out extending come three or four miles. If the vessel had been driven on these by tempest, lost, she would have been wrecked together Colonia, with were and crew. On side of the river sunken rocks several miles For from the shore. pur- how, and crew pose saving possibly she ship,” river, steered little towards up inclining

Barnard et al. v. Adams the Buenos with intention of Ayres.side, running heron shore at a convenient After had place. proceeded they up the miles, river about ten the mate discovered from the flashes of' that the vessel was a lightning called approaching point St. Isi- dro, he off which black which he perceived something supposed “ rocks, to be afraid,” and it being to “thinking impossible get ” this without wrecked and lost, he point being directed the course of to the vessel be towards shore, where changed he seen had what he to be a house, but supposed which turned out a tree. About the vessel struck large midnight beach and the was knocked rudder The foresail away. hauled then head let up, remain staysail her keep and she continued to work straight, herself until up day- The she where was stranded light. was a level beach about two hundred above yards low-water-mark. ordinary The wrecked, was not or broken up, somewhat though and- the was not damaged, injured. master char- tered the bark was and transferred Serene, to her. But it found that, with the means to be obtained in vicinity, it have than the would cost more was worth to her off get beach. the arrived therefore sold. The She was Serene afterwards York, under New command of safely Ad- Captain ams, former master of Brutus. In transshipping jerked to the Serene, beef from Brutus wet, portion and got when it arrived at the New York was all port found to be worthless. — facts, Oh these the court instructed the as follows : jury of the 1. The evidence on subject consists stranding in the uncontradicted and of a unimpeached testimony single was the witness. He master-of the vessel at the time acting He states that the loss when the vessel question. the storm, means of resisting without upon ashore going of the was, shore rocky dangerous part more inevitable, he did the better opinion, secu- intentionally adventure, persons property engaged rity give he be, direction to what her a and whát supposed proved she be, a of the shore where could lie more These safely. facts, constitute in if credited law vol- by you, judgment vessel, and for such sacrifice sacrifice the untary plain- are entitled to tiffs recover general average.” instruction of the first and., This forms subject exception, most question raises the in the case. important contradiction in the terms this instruction apparent -a desire arisen from of the court to has evidently give in error, here, of the on the the benefit nega- argument plaintiffs their own vessel viz. that if the loss proposition, tion vol. x. et al. could a vol- inevitable, storm was “.sacrifice contribution.” entitling plaintiffs untary is equivo- the form in which this stated because cal and negation proposition us, to the case before when applied vague, its of' it terms. 'contradictory appears should, that, court not be understood if therefore, saying, “ inevitable,” or believed the was avoided was jury peril avoid- that if the was not believed that imminent jury peril ed, rather, should find for the But they plaintiffs. believed there driven on a \yas imminent peril coast,” when the vessel would rocky dangerous part wrecked, have been with loss of inevitably ship, crew, that this was avoided- immediate peril voluntarily part the vessel on less stranding coast, rocky dangerous were then' and crew saved uninjured, whereby at the admitted should find . they plaintiffs. Looking facts of plain mean it is this caseiin connection with instruction given, to could have understood the not court jury add, moreover, that, else. And in the we any may thing here, the learned counsel have not relied argument verbal criticism of the the court below. upon any instruction, but have encountered fairly which we consider as now proposition maintained by be will cannot denied one by compare .who carefully this case Peters, 331, with that of The 13 Hope, unanimously court, decided and the cases Caze 3 Wash. v. by'this Reilly, 298, 513, C. C. Waln, Sims v. 4 Binney, Gurney, Gray “ Rawle, & have received which Serg. unqualified assent” as court, that, of this whatever distinctions taken may to accidents cases, and circumstances of these do differ from so far materially substantially present, under consideration concerned; point.now and that we are now called reconsider and overrule the doctrine ‘ those established cases. by But however they may appear be writers on to certain abstract contrary stated some propositions text- by and a case or two subject England, in this country, policy our propriety own overruling “ the three other decisions which have received our unanimous even if we not now satisfied approval,” with their correct ness, well be doubted: There are may few cases to be found in the books which more have thoroughly, laboriously, and ably the most learned investigated by counsel and eminent In judges. questions so involving much doubt and difficulty, it is of more importance mercantile community law be settled, and ended, than how litigation it is settled. No decision of a question on such nice and subtile depending TERM, v. Adams mind; and if will meet approbation every reasoning effect, failed of this well mentioned have may have cases we which could be f®r reasons overruling doubted given if.any more successful. them would prove examination, of this case, It is not again necessary, of this doctrine average, general repeat history “ civil or date of the Rhodia de through Lex jactu” early codes of the various ordinances and maritime law, and Roman cities, to thfe states and down present day. European delivered in the cases to which we have al- learned opinions on that of the the further to be said portion luded leave nothing ourselves with We shall therefore content stating subject. of law and established bearing' point principles leading some data have with in order that we precise in question, case, and test the facts present compare of the Cir- which the instructions value of with arguments assailed. have been cuit Court l has its foundation equity. The law genera average benefit that what general given The principle, all,” is recom made contribution all .shall good by also its because its mended, policy, not only equity, without the owner throw away property it encourages in time need. hesitation, (cid:127) three a case average, things to constitute order In — concur: must ship, cargo, common 1st. A danger danger; in.which imminent apparently all a danger crew participate; in- of a íoss evitable,” portion except voluntarily incurring the remainder. whole save jactus, casting be a jettison, must 2d. There of concern for purpose of the some joint of portion away, avoiding causa, imminentis evitandi periculi this imminent peril, from the to a words, a transfer of the whole in other or, peril, of the whole. portion particular common, the imminent to avoid This must peril 3d. attempt successful. be that the so assertion these from is evident propositions, “ be that if the peril namely, relied on argument, much truism, as is a mere contribution,” be no there can inevitable common peril, of the case that requires the hypothesis avoided. Those who .imminent,- shall successfully though seems, else. And it mean must therefore something urge “ to be that if stated, this, the common carefully more when -‘ nature, that or cast. jactus,’ thing of such was (cid:127)peril would, have or rest, perished anyhow, to save away ‘ suffer not been selected had to even inevitably,’ perished et al. v. Adams et al- there can no contribution.” If whole, of

in. place this and we' can be-the discover proposition, meaning a denial the whole doctrine which the it is other, no claim of the For for has its foundation. the master would not be justified part ship casting cargo sea, anchor, or or his his masts, away into slipping cutting unless to it vessel, or compelled necessity case, or them, of the in order to save both one of ship cargo an imminent de- from which common threatened.their peril case struction. choose to him necessity compel must the loss of the but, between whole however part; assertion, stumble at the it is this forced metaphysicians may choice master necessary justify making it is sacrifice answer (as the.whole. Hence called) any part “be, master of a when vessel, examined, will I every ‘ considered the inevitable,’ destruction both cargo “ unless I had did.” thrown what I thrown away goods would have to the bottom case If the anyhow.” gone away does not show that the order was jettison indispensable,” the common the master would himself be liable escape peril, the loss reason, therefrom. It is consequent for this of Marseilles ordinances the master should require have a consultation with ab- crew as to the supercargo solute as necessity measure, and evidence that it not cowardice, done master. But vain fears, or through imprudence made right depend contribution or on away, real intention cast presumed destroy thing but on the that it fact has been to suffer the selected whole, that the remainder saved. be re- peril bemay anchor lost the cable by voluntarily slipping covered, the saved, and float to the shore and be goods jettisoned may if the anchor or had not been goods cast yet, away, ” lost, would-have been and there they been would have “inevitably a total loss both Take the cargo. case of Caze v. A vessel is Reilly. surrounded completely cruisers. It is save enemy’s both impossible and a total loss. A from capture whole of the cargo thrown overboard, thus the vessel escapes. This is an case for admitted claim the contribution. And is no answer to it. ’ ‘ owners to Your say, lost; inevitably itas was situated it was worthless, and consequently you sacri- ficed nothing Besides,- common benefit. of it portion floated shore and was saved capture, fished from bottom without much the throw-' sustaining injury; it overboard ing was the best could for it thing done under circumstances, that it without would have 1850. 305 al. et * lost.” But the case inevitably’ referred suppose, to, the in be saved cannot the into the casting cargo sea, the which is of far on the value, can be saved greater the cargo, by casting land, her. vessel for contribution or Is it answer to her claim “ ‘ that her loss inevitable,’ she say, situation on the in a better beach than in the hands of the enemy, sea, the of the or or at bottom wrecked rocks, and there upon fore,there was no such sacrifice as would entitle her to contri ” ? We cannot bution comprehend why should argument in the first case no is have weight admitted cáse of (which all the that it should be contribution a conclusive held as yet books), obstacle to the in the latter. recovery repli instance, to this first cation conclusive objection “ a is, the vessel and were in common one, where cargo peril, saved; the or alone, or could not be both all vessel .vessel saved, have of the loss cargo, by casting upon part constitutes the and this which very hypothesis then, rests.?’ should there Why, doctrine is where or lost damaged be a difference principle, sea, saved, the case cast into the the ship being y is a or lost stran damaged where b , find the saved, the land, cast on or ding answered. never satisfactorily which has be.en yet a question counsel to contend for do not understand fact, In doctrine we Brutus was not entitled navi, or that the of salva afloat at a less she could not be cost because got contribution the counsel relied is her value. than that principle in Walker v. United court enunciated the opinion “ It is not Rawle, Co., enough,” Ins. & says States Serg. intent to do an there be deliberate “that the learned judge, loss; there must'be de not lead to or act which may may at events, all or liberate sacrifice thing purpose of event danger least to in situation in.which put very be increased.” destruction would ual intention to seen, the But, already destroy as we have benefit or of'the to loss damage exposed thing jactus, which the right of the whole, makes no hypothesis of this Indeed, speciousness is founded. contribution word use seems have its force from assertion ” of its strict instead in its and tropical, sacrifice popular was founded on of sacrifices technical meaning. offering it is said of the And when idea of vicarious suffering. whole, it means sacrificed for benefit jactus, peril, undergo than that it selected more whole. It is made (if whole, and for the benefit ” scape-goat use another phrase) we theological *

(cid:127)Barnard Adams et al. to of the common joint exposed remainder destruction. property the T ” to be sacrificed, is said not because its he chance jactus but because of its selection to suffer, was be separate, escape the less, .whole, instead of whose chances of it more or as of safety, whole, had become imminent destruction desperate. whole, has been evaded as a saved, whole part by to another whole peril part. transferring cotton, about If a or sunk, cargo captured thrown or in whole, saved, overboard thufe part fact ' the cotton floated to shore saved, that fore had contribution, and. was and there- in a better condition cast than if it by being away remained to be sunk, or cannot its captured affect right diminish its though may amount. The loss.or from its that the damage arising escape; assuming peril, ship may said to be sacrifice,”, the real may truly pop- Its ular use of value is not measured its phrase. by hopes it had none; but its safety, by hypothesis right contribution is founded on its to run all voluntary assumption risk, brunt, or bear the that the remainder be saved the common from fact that peril. thrown over- goods worse, are in no or board even in a better, condition as to than had chances remained board, safety, they the stranded vessel is in a better condition if. than she had been sunk, cannot' affect the wrecked to contribution of that right tp was selected which suffer in of the whole. made these remarks, by Having way vindicating case? to, and referred noticing which arguments have by they assailed, been the let us briefly the. compare facts of this case with have stated, we principles first, .inquire, What and'second, common Was peril? of the ad- any portion joint venture saved from transfer of the risk or loss another ? common which peril, in this case was to be sought avoided, was or the shipwreck, destruction vessel, crew. The ; lay she anchor was assailed a violent her cables tempest, broken, her anchors and she was gone, the force driven broadside gale shal- upon being lows In three miles'out extending from the shore at Buenos Ayres. to save the order cargo crew, it determined to put is. sail, and run river to up find a safe to strand the ves- .piace sel. ten They miles proceed peril up river, when encoun- ter another at Point St. Isidro. To wrecked avoid on the rocks, the course of the vessel is immediately changed, she is steered for directly shore, and run .a sandy beach,-where she is left high tide. The dry by is saved without but the injury, is on the laird, where she

DECEMBER, TERM, 1850. al. v.' e't al. on,account valueless, which expense is comparatively her in her element. be incurred will replace By victim, must she has become the master, directions loss, that the common borne the cargo might escape not been lost, true she has wrecked or she in- It is peril. been driven fiats at would, had she on the Buenos evitably or been foundered oh the rocks off Point the tempest, Ayres by on shore, but she has Isidro, voluntarily gone Et. her, while it And we safety death to brought, cargo. the same she has to demand contribu- are of right opinion would have had her, the owners of the tion that against sea to insure her it been' cast into the safety. had error in the instruction There is therefore no given by on this' court below point. instructions refer- and, second third have The excepted at are to be valued for the ence to the goods place of the general average. adjusting purpose the learned in these instructions reasons judge given by to show their The adventure sufficient are propriety. amply and disaster, terminated continued, notwithstanding were not returned to York. shippers, at New goods be,collected could no contribution and Buenos consequently strand, left on the the Brutus was The fact that Ayres. destination, till the reached its continued adventure the in another where cannot affect the case. The vessel, more or less, be stated is shall always dependent, average^ accidental circumstance, termina- not the technical affecting the actual and but practical closing tion of voyage, this We see in the circumstances take adventure. nothing rule, that contribution should be out of the assessed case general value at the home on the port. relates to allowance wages third 3. The exception crew after the stranded. were as as mariners and employed quasi-salvors But they adventure, benefit of the laboring joint is not Their'services were supported. think the exception we duties did Their the entire cargo. essential not saving were to the entitled wages cease stranding, with for that If same required their services purpose. while would the expense had been rendered services by strangers, thé disaster, as a result charged have properly services were That the same rendered the average. stating stranded, as the Brutus was voyage the crew by to after affect the case. Even broken them cannot up, technically ceased, still their services if their ship had obligation as their them to wages support vessel and. cargo entitled a general 'charge. et aI. cent, 4. The two and a’half allowed for per collecting general and rests and eustom of merchants upon usage out average brokers. It is a unfore- duty arising seen disaster, it. from there are resulting Usually directly contributions to be owner. out, as paid received, well as ship- It' is troublesome not embraced in their obli- duty, as mere gation carriers. The is therefore not unreason- usage able. The that -it is objection, the owners merely paying their own debt, founded on accidents collecting pecu-

liar ease, circumstances of this and does not affect general on which principle this is based. usage Circuit therefore judgment' Court is affirmed. Mr. Justice DANIEL dissented. The decision just so far as it must of pronounced, goes, course be as the law of this court regarded settling subject decision ac- average, complete cordance with the decision of Assurance The Columbian Co. v. Peters, case Ashby 139; Stribling, single this court previously announced doctrine maintaining the court in the made of the But, case before us. the decision however now control the question courts general average States, United the revised do, as must being, Reaffirmed,doctrine of with sincerest re- tribunal, still, brethren, entertained for spect with opinions my unaffected diffidence as to the Imind, conclusions of own my have-been unable to to this doctrine assent. yield I cannot my the doctrine 'here regard affirmed course opposed settled opinion (the great- undisputed opinion) est maritime world, and and as sub- commercial in the nation versive the aver- fundamental the law of which principle has That traced all writ- age ers ánd by origin. principle, its the law, courts to Rhodian is thus Lord propounded by “ Tenterden, in his work the Shipping Namely, (p. 342): contribution that is be general to made all towards parties by a loss sustained some same benefit of all.” by writer mind and overboard; be must thrown says goods (p! 344) man must If the agency goods employed. are forced out of waves, ship violence or are de- of the by in the or merchant alone stroyed ship lightning tempest, must bear the loss. The' must be overboard for goods thrown the sake of that, all. The same writer remarks though 348), (p.

the rule to mentions also its extends goods only, principle and its ship furniture! Mr. Benecke, his Treatise on us that tells 96), Average (p. courts has been general average described in the English et al. ®. “ arises in all loss which consequence comprise extraordinary or incurred sacrifices of the expenses preservation ship of the After enumeration of and speaking instances cargo.” in some of the Continental nations of Eu- general “ these he continues: laws Although rope, ing correspond- states do not ones of other make use of the term sacrifice, their definitions short of a yet imply sacrifice nothing shall be deemed a All these laws there- general average. may fore that a sacrifice made for the is be said to establish same general principle; namely, of the preservation ship “ he As to the general average.” Again says (p. term 97): it is clear and admitted, that a sacrifice, deserve the generally damage, of a sacrifice, appellation must have been pur- posely undergone, man, for benefit agency of the whole, and that every damage purposely undergone, ¡no although it, benefited cargo may gives claim to restitution.” it is said’with Again, force and great that the sacrifice must be propriety, special done something and not there must suffered; be the will and of the agency it. it That should be party for the making and with purpose, the intent, mente, causa of the preservation the common concern. of this sacrifice are usu- Although examples put instances of embraced ally jactus, principle applies equally as to the thus Benecke cargo; (p. 144) says: case voluntary stranding being implied rules, general most of the ordinances omit to mention it foreign expressly. The Prussian law in this more than respect explicit ethers. If sections captain, 1821, in order say run preserve vessel ashore, the intentionally occasioned to the damage thereby cargo, well as all incidental But if charges, belong average. circumstances, from the appear clearly resorted ui merely lives purpose saving liberty crew, even if the whole damage, saved, is cargo be held to be The ancient particular laws, average. Benecke, says as well as the opinions English foreign lawyers, are also in favor of And distinction. as far as I have is, able been the same the same to learn, the of all countries.” practice will, The same action, same positive and, it purpose, added, predicament actors, must position exist in each class of cases. There must be intent act, prompted to, by, or at least a tending practicable, result, probable and not mere endurance or submission uncontrollable neces- in either case. sity Thus, Benecke, says when a vessel run ashore purposely and afterwards off with (p. 143), got damage; question et al. to of such or whether repairs damage belong general particular the circumstances of the case. average depends entirely such as to the situation of the vessel were admit of no alter- If ashore she that, so her have native; without would running were and that measure resorted to for lost, been unavoidably of the crew, the lives or no con- liberty purpose saving fact, can tribution take was sacri- place, nothing, because in a but not ficed. But if the vessel and perilous, her ashore situation, the measure of running desperate calculated to save as best deliberately adopted, sustained, to fun- ; according in that case damage cargo damental for Mr. a claim restitution.” And rules, constitutes I. and in a note in his work on Insurance p. 338), Phillips, (Vol. both law, down to Stevens on lays Eng- Average (p. 81)., States, this; United to land and in the not the mere average; strañding steering general when she stranding, her to a less dangerous place I am unable to the shore.” per- to wholly inevitably drifting rules and above ceive cited as with the how, principles in conformity the foundation contri- general average, constituting in this instance for the bution-could be claimed loss of justly a scintilla of in this cause For there is not proof the ship. else, to sacrifice ship, any to show a thing tending design one which, course that the pursued nor tending prove avoided. circumstances, could have been under possibly any establishes, as far it is the testimony pos- On- contrary, facts, that the was the sible to establish effect — that inevitable effort was every of an necessity, the vis major, act mind only made to avoid necessity,'and lan- determination, repeat in the case was apparent to steer her to quoted, merely of Mr. Phillips, already guage when she was stranding, inevitably a less dangerous — a determination not less for the benefit ”; shore drifting of that of the one within than for falling the ship and discretion of master every duty the general scope or seaman. case. The in this testimony contrariety is no There ex- examined, states most mate, who was witness,'the single’ plicitly —vessel; condition of the and desperate the hopeless hurrieane, anchors, in the midst her lost all had she witness ex- which the under a force the shore and drifting did not elect He therefore could resist. says nothing plicitly her a sacrifice make ashore, or to run dan- her as far as possible to save ; he only sought good to me be no paradox slight It appears injury. ger assert, agent man controlling that a is the positive al. v. Tennessee.

Henderson suffers,- of an effect which he and which merely accomplishment him a he is unable to is forced re- upon by power wholly influence, that it sist paradoxical declare, equally élect and seek a sacrifice or a that we which we are peril eases nisi in prius most anxiously fleeing. federal courts of the courts, and States referred leave to, this much in if matter indeed do not pretty equipoise, incline they side of the here to the- maintained. question We have Story and Washington to Kent and Tilghman opposed Gibson this and of the with consideration Kennedy; attending decisions. of made Court Supreme Pennsylvania, are the they most and have been recent, an examination and review the oases which have overruled. they the assur- Repeating entire ance of deference entertained opinions my brethrén, of the sincerest diffidence of the conclusions of mind, unable to own concur in my yet being those I opinions, have no claim to share in their merits if are they right, incorrect, are with position my respect them should be understood. equally Order. This cause came on to be heard on the of the rec- transcript ord ern consideration the Circuit Court of the from District of United States for the South- York, New and was argued counsel. On whereof, it is now here ordered^and adjudged by court, that

this of the said judgment Circuit Court in this be, cause and the same is affirmed,, hereby, with costs and at the rate six centum damages per per annum. Calloway, Thomas Henderson error, Thomas Plaintiffs The State of Tennessee. ejectment right defendant suit If claims a of land derived possession springs under title from a between reservation the United treaty against and an States Indian and a decides State court of such tribe, validity jurisdiction, this court title, has under section twenty-fifth Judiciary Act, . o review that decision. But if such defendant .outstanding sets title of the as an reservee up merely title, and thus showing in himself prevents without connec- plaintiff, recovery by tion with the title against reservee, of. the and then a State court the de- decides ejectment, jurisdiction fendant in the this court has no to review that decision. In give jurisdiction order to right must claim court, for himself, party and not for a third in whose title has no interest. he person, In error of Tennessee. Court Supreme action of An ejectment Court brought Circuit

Case Details

Case Name: Barnard v. Adams

Court Name: Supreme Court of the United States

Date Published: Jan 15, 1851

Citation: 51 U.S. 270

Court Abbreviation: SCOTUS