4 Whart. 301 | Pa. | 1839
The opinion of the Court was delivered by
No question was made on the trial of the cause that the stranding of the vessel did not place her and the cargo on board in danger of being lost, unless speedy measures were taken for her preservation. This being the case; and the measures resorted to for the purpose of averting the danger which threatened the whole concern, having proved effectual in saving both, the vessel and cargo, became, as it would seem, the subject of general average; so that the expenses thereby incurred in preserving the ship and cargo must be borne proportionally by all interested therein. It seems to be generally, if not universally received as law by all commercial nations, that a voluntary stranding to save the ship and cargo, where the ship is afterwards secured and performs her voyage, entitles to general average. Jacobsen's Sea Laws, (Frick’s translation) p. 348. Bynkers. Quest. Priv. Juris, sec. 4, ch. 24, p. 424. Voet, b. 14, tit. 2, § 5. 2 Magens, 200-1. Broadhurst v. Columb. Ins. Co. (9 Johns. Reps. 14.) Benecke on Ins. 219. Mr. Stevens, although he admits this to be so, in his Treatise on Average, ch. 4, art. 2, yet pronounces it unreasonable and unfounded; and assigns his reason for thinking so. Mr. Benecke, however, who has examined the subject with great care, as well as judgment, disagrees with Mr. Stevens; and has proved very clearly, I think, that wherever the vessel and cargo are in a perilous, but not a desperate situation, and the measure of running her ashore has been deliberately adopted as best calculated to save the ship and cargo, in such case the damage sustained, according to funda- ■ mental principles, constitutes a claim for restitution. See Benecke on Average, 219, et seq.; also Broadhurst v. Columb. Ins. Co. (9 Johns. Rep. 14.) Mr. Justice Story, likewise, in his note to Abbott on Shipping, 349, says, “ indeed, no doubt seems to be entertained, that where the ship, after such voluntary stranding, is got off, and performs her voyage, the dam age is a general average. The point of difficulty has been, whether, if she is totally lost by such voluntary stranding, and the cargo is saved thereby, the contribution is due.” In Caze v. Reilly, (3 Wash. C. C. Rep. 298,) where the ship was wholly lost, but the cargo saved, Mr. Justice Washington, after an examination of the principal authorities, foreign and domestic, came to the conclusion, that contribution was due. And such is the rule
These principles seem to have been conceded generally by the counsel for the defendants, but then the extent of the defendants’ liability under them, as claimed by the plaintiffs, is denied ,• and on this point the parties are at variance. The expenses incurred with a view to extricate the vessel and cargo from the impending danger down to the time that the specie on board, belonging to the defendants, was actually delivered to them, they admit their liability to pay their proportionable part thereof; and have, I believe, paid to that amount long since without objection; but, as to all subsequent charges, they allege that they are and ought not to be made liable.
The counsel for the defendants allege, that when they received the specie, which was the only part of the cargo to which they had any claim, it could not be said, that after that, they had either actually or constructively any thing belonging to them on board of the vessel, or in the charge of the owners of her; and having nothing on board, nor any thing in the charge of the owners of the vessel, the expenses incurred subsequently could not be claimed to have been laid out on their account, or for their benefit, in any way whatever ; and consequently it being utterly impossible that they could derive any benefit from such expenditure, it would be unreasonable and unjust to make them liable to contribution for any part of them. They maintain that all connection between them and the vessel, and the residue of the cargo, or concern with either, ceased immediately upon the actual receipt by them of the specie. In support of this principle thus advanced on the part of the defendants, the case of Sheppard v. Wright, (Show. P. C. 18,) has been cited. There the ship being laden with silk and oils, on her return home, was chased into Malaga Mole, by one of the Toulon fleet, which being in sight three or four days, then stood in for that port, as if they designed to attack the fort, whereupon the factor of the owners of the vessel sent the master a lighter to save what he could of the ship’s cargo ; and because the silks were of the greatest value, they were put on board of the lighter with a small portion of the oil first and carried to the shore. At night, however, the French left the port, when the master ceased to land any more of the cargo. About six days afterwards, the French fleet appeared again before Malaga; when, notwithstanding every possible exertion was made that could be, to prevent the French from getting the ship and remaining part of the cargo, they took both away. The silks were afterwards put on board of another vessel and delivered to the respondents at London, who paid the freight for them. The appellants, being the complainants and the owners of the ship and oil, brought their bill
The ground of objection presented by the defendants’ counsel to the plaintiffs’ claim, is not only plausible, but on first view would seem to have great force in it. In order, however, to test it thoroughly, it would be proper to see what the practical operation of the principle contained in it would lead to ; because if it should be found to operate unequally upon shippers, whose inghts and claims are in every respect similar and equal, and should at the same time put it in the power of the master of the vessel, to throw the greatest proportion of the expense, incurred by the measures taken to save the vessel and cargo, upon whomsoever of the shippers he pleased, it would be inexpedient and unjust to adopt a principle of such tendency. Suppose then, for example, that a vessel, with a cargo of the same kind of goods throughout on board, belonging to twenty different owners, each owning an equal quantity, is run on shore within eight or nine miles of the port of destination for the purpose of saving her and her cargo from an impending danger, when it becomes requisite to unlade the vessel, and to convey the cargo thence by wagons to the place of delivery, in doing of which two months are consumed, it is obvious, that according to the principle contended for on behalf of the defendants, the owner whose goods are first taken out of the vessel and conveyed immediately to him, will have comparatively but little of the whole expense to pay, whereas, he who receives his goods last, will have perhaps more than twenty times as much to pay as the first. The charges being made general average, as to the first who receives his goods, down to the time of their being delivered to him, the last has to pay one-
It has also been said and advanced as an argument in favour of the defendants, that as their part of the cargo consisted of specie and was greatly the most valuable part of it, they were therefore entitled to a preference in having it removed from the vessel first, and consequently ought not to be made to contribute to the payment of expenses incurred subsequently to the receipt of their portion of the cargo, for saving the property of others, over whom they were entitled to a preference as a matter of right. If the removal of the specie from the vessel and the exposure of it in the sledges on the ice was evidently less dangerous than leaving it in the vessel and removing the other parts of the cargo for the purpose of preserving the whole, it was the duty, perhaps, of the master to do so. But in case of a general average, on account of part of the cargo being ejected for the purpose of saving the ship and residue of the cargo, the owners of specie, diamonds or precious stones, are required, for having such preference allowed to them, in the retainer of their portion of the cargo on board, to contribute towards making good
Judgment for the plaintiffs.