9 Johns. 9 | N.Y. Sup. Ct. | 1812
The loss of the ship is to be attributed to the perils of the sea. She was forced into the Texel, by distress and danger, arising from tempes-» tuous weather; and when she was ready to depart, she was strand-1 ed and lost in consequence of a storm. The only real question in the case is, whether the loss of the ship is to be borne as a general average, to which the plaintiffs, as owners of a portion of the cargo, as well as of ship and freight, are to contribute. But the better opinion is, that this is not a case for contribution, and that there is to be no deduction from the verdict. The cable of the ship was cut, after consultation, as neeessaryto extricate her from" a perilous situation, and as bestto be done for the preservation of the vessel, cargo and crew. Had the vessel been saved by this means, the loss of the cable would have formed an item for a general average. But it appears that after the cable was cut, they . steered for the Zuydmall, and that on approaching it, the ship struck and beat with great violence on the ground, and was driven high on shore by the storm. Upon a. subsequent survey of the ship, the surveyors were of opinion, and in which the captain con
If a ship, in a case of extremity, and to avoid impending danger, be voluntarily run ashore, and she is afterwards recovered and performs the voyage, the damages resulting from this sacrifice are to be borne as general average. There cannot be a doubt as to the existence of this rule; for it is to be met with in all the books that treat of contribution. But another and more difficult question is, whether there is to be a contribution from the surviving cargo, if the ship should happen (as in this case) to be destroyed and lost by the act of running her ashore. The question does not appear ever to have arisen in the English courts, and we must have recourse to those foreign works which, in the absence of English decisions, are the best and most authentic evidence of the maritime law. The books, in general, have not treated this point with sufficient perspicuity and precision; but from a view and comparison of them, it is pretty evident that the weight of authority, no less than the reason of the rule, is against the contribution. The marine ordinances and writers on maritime law mention general average as being confined to the damage which the vessel so run ashore may have sustained, and the expenses of setting her afloat; and it seems to be assumed as a settled principle, that there is to be no contribution, unless the ship is eventually saved.
The language of the Rhodian law leads very strongly to this conclusion, and this is the text upon which most of the authorities are founded. Amissa navis damnum collalionis consoriio non sarcilur per eos qiámerces sitas naufragio liberaverunt: nam hujus aquilatan tune admiíti placuit, cumjactus remedio cezleris ■in communi peñado, salva navi, consultum, est. (Dig. 14. 2. 5.) There is nothing in any part of the Lex Rhodia de Jactu, which countenances the idea of average, when the ship is lost, and yet the authority of some respectable Dutch civilians is in favour
These authorities are founded on sound principles, for the loss of the ship, in these cases, is more imputable to casualty than design.
When a ship is voluntarily run ashore, it does not, of course, follow, that she is to be lost. The intention is not to destroy the ship, but to place her in less peril, and if she afterwards goes to pieces, or is otherwise lost, it is not to be attributed exclusively to the act of the master, but to the direct, and more immediate operation of other causes. In most cases, he has no expectation, and certainly no intention, of destroying the vessel. He does an act hazardous to the vessel and cargo, in order to escape from a more pressing danger, as a storm, or the pursuit of an enemy, or pirate. The stranding may be an act done for the common safety, but this cannot be said to be the case of the subsequent shipwreck or capture. Indeed, the very act of running a ship ashore is desperate, and places the cargo in extreme jeopardy; and if* it happens that the ship be lost, and the cargo saved, it is saved tanquam ex incendio, according to the allusion in the Rhodian law. In such a case, it is emphatically said to be “ save who canand to burden the rescued cargo with contribution for the ship, would seem to.be oppressive, and is clearly not within the policy and equity of the rule.
The court are, accordingly, of opinion, that there is no contribution in this case, and that the plaintiffs are entitled to recover as for a total loss.
Judgment for the plaintiffs.
The same rule is laid down in the new Commercial Code of the French Empire, which has been recently translated by a learned Jlmerican jurist. It is there stated, (art. 425.) with the precision and brevity for which the French codes are distinguished, that “ the cargo does not contribute for the ship, if she is lost or rendered unfit for sea.”