Cheraw & Salisbury R. R. v. Broadnax, 109 Pa. 432

Cheraw & Salisbury R. R. v. Broadnax

109 Pa. 432 | Pa. | 1885

Mr. Justice Clark

delivered the opinion of the court,

This is an action upon a general average bond, made by the defendants, the Gheraw & Salisbury Railroad Company, to the plaintiffs, who are the owners of the schooner “ Mattie A. Hand.” This schooner on the 9th January, 1880, sailed from Philadelphia, bound for Charleston, South Carolina, with a cargo, consisting of canned goods, paint, putty and steel rails. The steel rails weighing 545^^- tons, valued at $38,171.56, had been purchased b\7, and were consigned to the defendants. From the recitals of the defendant’s bond and other eyidence in the cause, it appears that on the 21st January, whilst in the' prosecution of the voyage, the wind from the northeast, and a- chopping sea, caused the vessel to labor heavily, and upon sounding the pumps it was found that the vessel had sprung a leak at the rate of one hundred strokes per hour, which gradually increased to four hundred, it was deemed unsafe to continue the voyage, and, after due consideration, the master of the vessel bore up to Norfolk for the general benefit.

The cargo, upon the recommendation of the surveyor of the port, was discharged, the vessel was repaired and re-loaded, and again proceeded on her voyage. On the 12th April,-1880, in a chopping sea she again sprung a leak at the rate of four hundred strokes per hour, which continued to increase; finding it unsafe to prosecute the voyage, the master finally bore up for and arrived back at Hampton Roads on the 13th April, and on 14th put into Norfolk for further repairs. The schooner afterwards set out for Charleston, where she arrived safely in latter part of April, 1880. Captain Hearon was in command of the schooner between Philadelphia and Norfolk, and Captain Jarvis between Norfolk and Charleston.

Upon the arrival of the schooner at Charleston, Captain Jarvis, before delivering the cargo of steel rails, had the bond in suit executed by Mr. Ravenel, president of the company defendant. . The master of the vessel thereupon submitted the loss to John R. Heriot, adjuster of marine losses, named in the bond, who on 7th May, 1880, made the general average adjustment, in evidence, finding for contribution by the defendants upon their cargo of steel rails, the sum of $1,939.38, the *439amount of the plaintiff’s claim in this case. After the adjustment had been made the master of the vessel presented it to Mr. Ravenel, who made no objection, but claimed that the law allowed him thirty days in which to pay it. The defendants afterwards refused to pay the bond, and this foreign attachment was issued, attaching in the hands of the Insurance Company of Pennsylvania, garnishees, tlio amount of the insurance, which the defendant had placed upon the cargo. At the trial the bond and the adjustment, together with the bills covering the expenses incurred at Norfolk, wore offered and received in evidence without objection.

General average is a doctrine growing out of the casualties of a mercantile voyage, and is built upon the plainest principles of justice. When sacrifices are made, either of the ship or of the cargo; extraordinary expenses incurred, or damages sustained, voluntarily in the course of the voyage to save the whole adventure, the property rescued from the fury of the storm, or other impending peril of the sea, to which all the interests were exposed, must upon a general average bear its proportion of the loss. “ Claims of this kind,” says Mr. Justice Clifford in Hobson v. Lord, 2 Otto, 399, “have their foundation in equity, and rest upon the doctrine, that whatever is sacrificed for the common benefit of the associated interests, shall be made good by all the interests which were exposed to the common peril, and which were saved from the common danger by the sacrifice ; ” the loss, therefore, falls upon the ship, the cargo and the freight.

So if a ship be injured by a peril of the sea, and be obliged to go into port to refit, the necessary expenses of unloading, warehousing and re-loading tlie cargo, are properly brought into general average, for all persons concerned are interested in the completion of the voyage: Plummer v. Wildman, 3 Maule & Selwyn, 482; Power v. Whitmore, 4 Id., 141; Union Bank v. Union Ins. Co., Dudley, L. & E., 171; Abbott on Shipping, 280; 3 Kent’s Com., 236; N. American Ins. Co. v. Jones, 2 Binney, 547.

We do not understand the defendants to deny that the various matters embraced in the adjustment, are proper subjects of general average, if the in navigability of the vessel, in fact, resulted from the perils of the sea; their contention is that the vessel was unseaworthy at the commencement of the voyage, and the several assignments of error relate, in part, to the exclusion of evidence tending to establish that fact, and in part, to the refusal of the court to instruct the jury that the plaintiff could not recover under the pleadings, until the seaworthiness of the vessel was first established.

It is a general rule that where a jettison is rendered neces*440sary, or extraordinary expense is incurred by the original unseaworthiness of the ship, or the negligence or faulty conduct of the master or crew, the owner of the ship is responsible for the entire loss, not merely for his share of it as a general average : Lowndes on General Average, 38. But it is a well settled principle that seaworthiness of the ship is not a condition precedent to the shipper’s liability for general average, although, if the loss was caused by it, that would constitute a good defence : Schloss v. Heriot, 14 C. B. N. S., 59. Under a marine policy on ship, freight or cargo, the fitness of the vessel for service, in the absence of any contrary provision, may be an implied condition, but in contracts of affreightment, no such condition exists. In the latter case, however, there is perhaps an implied contract on the part of the ship owner that the ship is tight: Abbott on Shipping, 224; Lyon v. Mells, 5 East, 428 ; Putnam v. Wood, 3 Mass., 481; but that it is tight is the prima facie presumption: Myers v. Girard Ins. Co., 2 Casey, 195; and if it be not, unless the loss occurs in consequence of unseaworthiness, the doctrine of general average will apply. The averment in the plaintiff’s declaration, that the schooner was staunch and seaworthy, was, under the implication arising out of the contract of affreightment, a proper one; perhaps it was not essential, but it did not require any proof in the first instance in support of it. There are affirmative averments, deemed essential in formal pleading, which stand upon the presumption of their truth until that presumption is rebutted; for example, in an action for defamation, the good repute of the plaintiff is always averred, but need not be proved until it is attacked.

The execution of the bond was shown ; the adjustment was proven to have been made in accordance with the laws and usages of the port of destination, and it cannot be doubted, that the bond with its recitals and the adjustment made pursuant thereto, constituted a prima facie case for the plaintiff. The court was right, we think, in refusing to charge the jury that the plaintiff /as bound to prove the seaworthiness of the vessel, as a condition of his recovery.

But it was competent, we think, for the defendants, notwithstanding the execution of the general average bond, and the adjustment and apportionment of the loss, to have shown that the unseaworthiuess of the vessel caused the extraordinary expense incurred at Norfolk.

The master has a possessory lien upon the cargo: Hobson v. Lord, 2 Otto, 405; and he may either retain it until the contribution is secured by bond, or enforce it in admiralty, like the lien for freight: Cutler v. Rae, 7 How., 729; Dupont de Nemours v. Vance, 19-Id., 162. In the case of a general ship, *441where there are many consignees, the English practice is for the master, before delivering the goods, to take a bond from the different merchants for payment of their portion of the average, when the same shall be adjusted : Abbott on Shipping, part 3, c. 8, sec. 17; and it has been held in this country that as the right is founded in commercial usage, the captain may make the giving of the average bond a condition of the delivery: Cole v. Bartlett, 4 La., 130. But the obligor might, we think, set up want of consideration, fraud, or mistake as a defence to the payment of it, as to the payment of any other bond. If the loss was in fact not occasioned by some peril of the sea, but by the misconduct of the master, the bond could have no consideration whatever to support it, and it would certainly be competent to defend against it upon that ground.

In Strong v. New York Firemen Ins. Co., 11 Johns., 323, it was declared to be the duty of the master, in cases proper for a general average, to cause an adjustment to be made upon his arrival at the port of destination, and that he had a lien upon the cargo to enforce payment of the contribution. When the general average is thus fairly settled in the foreign port, according to the usage and law of that port, it is binding and conclusive as to the items, as well as to the apportionment thereof upon the various interests, though settled differently from what it would have been in the home port: 3 Kent's Com., 244. If, however, it was not a proper case for a general average, and was a partial loss only, the adjustment, assuming a case for general average, when none existed, is not binding: Lenox v. United Insurance Co., 3 Johns. Cas., 178; Power v. Whitmore, 4 Maule & Selwyn, 141; 3 Kent’s Com., 214. In Chamberlaine v. Reed, 13 Maine, 357, which was an action between the owner of the goods shipped on board a vessel as freight and the master of the vessel, it was held that an adjustment and general average of a loss made on the protest and representation of the master, did not preclude the owner from showing that they were not liable to contribution, because the loss was occasioned by the culpable negligence or want of skill of the master. The legal operation and only effect of the bond and the adjustment is, in each instance, we think, to fix the measure of the defendants’ liability, and secure payment of the amount, unless it shall afterwards appear that it was not a case for general average.

Assuming the right to impeach the bond for want of consideration, the defendant offered to show by the deposition of James S. Edwards, and other witnesses, that the schooner “Mattie A. Hand” at and before the time of her departure from the port of Philadelphia, on the voyage described in the inuT, was uuseaworthy. The offer was in direct proof of the *442defendants’ first special plea. It may be that this plea even if sustained by the proof, is insufficient in law to bar the plaintiffs’ recovery; if the plaintiff thought it insufficient he should have demurred, but he joined issue and went to trial upon it, and he cannot prevent that from going to the jury, on part of the defendants, which tends to prove the issue thus formed. If a party accepts an issue tendered, the question thus raised is one that must be tried, and upon which evidence is necessarily admissible. In Howell v. McCoy, 3 Rawle, 256, it is held that the plaintiff has a right to support his cause of action by proof of the facts, stated in the declaration, and this can only be prevented by a demurrer, which admits the truth of the facts as set forth. The defence, if any he has, will avail the defendant, when the whole case is before the court and jury, by a direction on the law, arising on the facts. In Moore v. Houston, 3 S. & R., 175, Chief Justice Tilghman says: “If the question were simply, whether the judgment of the Court of Common Pleas should be reversed or affirmed, there would be little difficulty in deciding it. If any of the rejected evidence was competent the judgment cannot stand. And, without doubt, part of it was competent, because it was in direct proof of the defendant’s plea, and therefore admissible, whether it was matter sufficient, in law, to bar the plaintiff’s action or not. If the plaintiff thought it insufficient to bar him he might have démurred; but having joined issue, he cannot prevein; that from going to the jury which tends to prove the issue on the part of the defendant.” Rawlins v. Danvers, 5 Espinasse, 38; Thompson v. Barclay, 3 Casey, 263; Philadelphia & Reading R. R. Co. v. Ervin, 8 Norris, 71; and Seymour v. Hubert, 11 Id., 499, are eases in support of the same principle. The exclusion of the evidence offered, was, in our opinion, erroneous.

The questions, on cross-examination, as to rotten timbers being found in the vessel at Norfolk, were rightly refused, they were not upon matters proper for cross-examination, and the answers were inadmissible at that stage of the case.

The first, second and fourth assignments of error are not sustained, but upon the third assignment the judgment must be reversed.

Judgment reversed and a venire facias de novo awarded.