35 F. 835 | S.D.N.Y. | 1888
1. On behalf of the libelants it is claimed that, irrespective of any question as to the legal correctness of the mode of apportionment, the respondents are liable under the terms of the bond; because, as it is said, the apportionment was made by “Mr. Paulison, in accordance with the established usage and laws of this state in similar cases,” as the bond required. No doubt, where the language of a contract stipulates for per
2. The respondents contend that the charges incurred for getting the vessel off the beach after the cargo was landed and delivered to the consignees were not, in this ease, general average charges; and that the principle of the apportionment is to that extent wrong. The amount of these charges is large. If they are erroneously embraced in the assessment, the error is material, and no decree can be entered, except upon a proper adjustment of the general or particular average charges against the respondents’ part of the cargo. The principle on which general average is founded is, that where an imminent peril common to all has been averted by some sacrifice or extraordinary expense, voluntarily made or incurred by a part for the safety of all, the loss shall be made good by the contribution of all. The simplest case is that of jettison, which contains the germ and the principle of the whole doctrine. If a vessel, therefore, is stranded through a peril of the seas, and her situation is such that the only way to prevent the destruction of the cargo, as well
The most important circumstances in the present case are the following: (1) The stranding was by a peril of the seas, and the position of the vessel most unfavorable for hauling her off. It was evident from the first that the task must be long and expensive, and the result doubtful. (2) It was within a few miles of the port of destination; and the cargo could be discharged and delivered at once, with comparatively little difficulty or expense. (3j The discharge of the cargo was begun at once, before any efforts were made to haul the ship off. The discharge was not made with any view to reloading, but for the purpose of immediate forwarding and delivery to the consignees at Now York; in part, also, for the purpose of lightening the ship, and as a necessary preliminary to the work of hauling her off. (4) Though the cargo was not in immediate peril, yet, considering the exposure of the stranded ship to easterly gales in the winter season, the unloading was necessary as a precautionary measure for the safety of the cargo, independently of the purpose of immediate delivery. (5) The cargo, from the moment of the ship’s stranding, had no actual interest in hauling the ship off, nor in her further prosecution of the voyage. The great expense and delay plainly necessary to float the ship made immediate separation from the ship to the interest of the cargo. Its only common interest with the ship was in immediate unloading, and safe delivery to the consignees. The freight was thereby earned. (6) The work and the expense of unloading were entirely distinguishable and separable from the work of getting the ship off; though the former was a necessary preliminary to the latter. (7) The expenditures in getting the ship off were chiefly, if not wholly, incurred after the cargo had ceased to he at risk, and after the cargo was out of the master’s control, through delivery to its owners. (8) The effect of the general average is to impose upon the cargo, above the whole
I have found no adjudicated case in which, uj)on facts like these, the expenses of getting the ship off have been held to he general average. In Sparks v. Kittredge, 9 Law Rep. 318, such expenses were held by SpinuiUE, J., not to be general average. In Bevan v. Bank, 4 Whart. 301, the cargo in general was unloaded for the purpose of reshipping, and was reloaded and carried by the same ship to its destination. The specie only was forwarded by other means, and that was nevertheless held liable to contribute. That case has ever since been generally disapproved. Upon facts quite similar, in the case of Royal Mail v. Bank, (1887,) 19 Q. B. Div. 362, the decision, upon full consideration, was to the contrary. In Nelson v. Behnovt, 21 N. Y. 38, the specie, which was held liable to contribute, remained under the control of the master; and none of the expenses objected to were incurred after the delivery of the cargo or any part of it. In Moran v. Jones, 7 EL & Bl. 532, the few goods unloaded belonged to the ship-owner, and all were reloaded and carried to their destination in the same ship. In the leading case of McAndrews v. Thatcher, 3 Wall. 347, the principal eases up to that time (1865) were considered, and a resume was given by Mr. Justice Cltvforh of the law upon the English and American authorities. In that case, the ship Rachel having run upon the west bank, in the lower hay, in coming into New' York harbor, it was found necessary to discharge the cargo into lighters, which were thence brought up to this port; but the vessel sank deeper into the sand. The master incurred no expenses in trying to get the ship off after discharging the cargo, but abandoned her to the underwriters. The latter immediately resumed the work, and after about 11 weeks got her free, but atan expense somewhat greater than her then value. It rvas held tha,t the cargo was not liable io contribute for the expenses incurred after the master had abandoned her, on the ground that there was no community of interest thereafter remaining between the ship and cargo.
Since the decision in McAndrews v. Thatcher, the liability of the cargo to contribute in general average, and the various circumstances affecting this liability, both in cases of stranding, and as regards expenses at a port of refuge, have received repeated and elaborate consideration, in the English courts. Walthew v. Mavrojani, L. R. 5 Exch. 116; Wilson v. Bank, L. R. 2 Q. B. 203; Atwood v. Sellar, 4 Q. B. Div. 342, 5 Q. B. Div. 286; Svensden v. Wallace, 13 Q. B. Div. 69, (1884,) affirmed in the house of lords, 10 App. Gas. 404; Royal Mail, etc., v. Bank, 19 Q. B. Div. 362, (1887.) The result of these discussions and adjudications is that, except where, as in Atwood v. Sellar, the expenses have been rendered necessary by some previous voluntary act of sacrifice for the safety
As respects the question considered in Svensden v. Wallace, viz., whether reloading in a port of repair on account of a sea peril is a general average charge, the reasons assigned by Lord Esher for the distinction between unloading and reloading the cargo do not seem to me satisfactory; for, if unloading can in such a case be property treated as “a part of the act of going into port to repair,” i. e., a part of the act of sacrifice for the safety of all, so as to make unloading a general average charge on that ground, as he says it may be, (page 77,) the warehousing and reloading Should be general average charges also, because they are the necessary consequence of that act of sacrifice; and all agree that the necessary expenses consequent upon a voluntar act of sacrifice are common average, and cannot be inflicted upon either ship or cargo alone. Birkley v. Presgrave, 1 East, 228; Lown Av. (4th Ed.) 218; German Code, § 708, subd. 4. If, on the other hand, unloading is no' part of “ the act of going into port to repair,” and is not required for the safety of the cargo, but only in order to repair the ship, then unloading, from the English point of view, is not logically a general average charge, unless repairing is also. a general average charge, which, in general, it is not. Bowen, L. J., thought it the ship-owner’s duty to “proceed with the voyage, or. land the cargo,” which would impose the expense of unloading on the ship alone; but, as unloading was allowed to be common average by general consent, he thought it “unnecessary to decide what would be in other cáSeS the law on the point.” He concurred in holding warehousing and reloading in a port of repair, sought in consequence of injury by a sea peril, to be; ordinarily, hot general average charges; “because, when the goods were landed, all danger common to ship and cargo was ended.” Page 89. In the house of lords the decision was affirmed on somewhat peculiar grounds. Lord Blackburn, in referring to the general subject, suggested whether “the whole of these operations [unloading, warehousing, and reloading] should not be considered as parts of the expense of repairing the damage, and therefore to be borne by all, [ship, freight, and cargo,] in a case where the cause of damage [a previous voluntary Sacrifice] was such that the expense of repairing ought to be borne by all; but to be borne by the ship only, in a case where the cause or dam'age [a mere peril of the sea] was such that the expense of repairing it ought to be borne by the ship only.” This intimation from the court of, highest authority that the expenses in the last case would be chargeable on the ship only, accords with many French decisions. See 2 Oonlon, Code Ass. p. 28, § 44. Boulay-Paty, in his conference on Emerigon, (volume-1-, pp. 620, 621,) says it is a charge on the cargo only. Emerigon
All agree that in order to subject goods to a common average charge, They must be at risk, and have a community of interest with the ship, at the time when the charges are incurred; and that the act of sacrifice, or the expense, must have been done or incurred for the safety or benefit of the goods, and not merely for the prosecution of the voyage, since, otherwise, ordinary repairs of the ship would bo general average. Accordingly, in the very recent case of Royal Mail v. Bank, 19 Q. B. Div. 362, where a quantity of specie was taken from the stranded steamer Tagus, and forwarded by another vessel, and the ship was subsequently got off after a jettison of part of the cargo, and proceeded on her voyage with the remainder, it was held that the specie was not liable to contribute in general average for any of the expense of getting off the ship, nor for jettison of the cargo; on the ground that the unloading of the specie ‘‘was not in any sense or degree a means of securing the common safety of the ship and cargo, but simply for the purpose of saving the specie itself; and that, when the general average loss was incurred, in whatever sense restricted or enlarged, that phrase can be properly used,—the specie had ceased to bo at risk; and that upon no reasonable view of the tacts could its removal be considered as a part of the means taken for saving any common adventure.” In the previous case of Walthew v. Mavrojani, (1870,) L. R. 5 Exch. 116, the ship Southern Belle, while lying loaded in the port of Calcutta, was driven by a cyclone on a mud bank. To get her off it was found necessary to unload her, and the cargo was discharged and safely warehoused at Calcutta by the ship-owners. She was floated in about 10 weeks, at an expense of ,£2,300, and her cargo reshipped on board of her, and conveyed to its destination. It was held that the cargo was not liable to contribute to the expenses after it was warehoused; because from that time there was no common danger, and because it was a matter of indifference to the cargo whether it was transported by the sariie ship or by some other, and the cargo consequently had no common interest in floating the ship. If these recent English decisions wore followed as the true interpretation of the law, the expenses incurred in this case subsequent to the discharge of the cargo could not be charged as general average, for the stranding was not voluntary, but through a peril of the seas; and these expenses were incurred after the cargo had been-
3. It is contended, however, that there is such a divergence between the English and American law on the subject of general average, that the decisions of the English tribunals should not be followed. There is, doubtless, some divergence as respects the expenses in a port of refuge sought in consequence of damage from, a sea peril. But the expenses here in question are not of that class. And in the opinion in McAndrews v. Thatcher, supra, there is no intimation of any divergence or incompatibility between the law of this country and that of England, as regards general average expenses in a case of stranding. The early and the late English cases are there cited, as well as the principal American authorities; and the apparent aim was to express the result of them all. There is no disapproval of the decision in Job v. Langton, 6 El. & Bl. 779; and the case of Moran v. Jones, 7 El. & Bl. 532, is only concurred in upon the emphasized consideration that “the goods remained under the control of the master until the ship was got off, repaired, and enabled to take the goods on board and prosecute her voyage.” In the present case the facts ate the opposite. Though Moran v. Jones was there deemed consistent with the previous case of Job• v. Langton, in the subsequent English cases it has not been so considered. The decision of Moran v. Jones, even upon its special facts, has been since disapproved; that of Job v. Langton, in which the expenses of getting the ship off after the cargo was in safety were held not general average, has been uniformly approved and followed. In the present case different passages in the opinion of Mr. Justice Clifford are cited as sustaining the contentions on each 'side. The passage most favorable to the libelants, however, (page 370,) does not say that, if the master in that case had incurred the useless expense which the underwriters incurred, he might have been allowed to make a profit out of the cargo by means of a general average charge upon it for the useless and losing operation of raising the ship. The immediate context indicates the contrary. On the other hand, “the undoubted rule” that “goods are not to contribute for expenses incurred after they cease to be at risk, * * * nor to any loss or expense’ which was not for their benefit,” (page 369,) would exclude the present' claim. Phillips’ rule, moreover, is quoted, (page 367,) to the effect that, if the vessel upon discharge of cargo does not float, the subsequent expenses of getting her off must be borne by the vessel; and the only qualification put upon that rule is that the expense may be general average in case the master “ can rescue her without much expense and delay, and receive the cargo, and transport it to its destination,” (page 368;) conditions quite contrary to those in the present case.
The case of Nelson v. Belmont, 5 Duer, 310, 21 N. Y. 36, is also referred to by the court. There the ship Galena, loaded with cotton, having caught fire in her hold from lightning, had to put back to Charleston to extinguish the fire. The master, for safety, deposited on board a'
“If the captain had put the specie on board the hark, not in any event to be returned, but to be taken by the hark to its own port of destination, and tho latter had then been suffered to pursue its course, the specie would clearly not have been subject to contribution for auy subsequent expenditure to save tho Galena; and the same, if, when put on board the Danish bark, it had been distinctly understood that the specie was in no event to be restored.”
Such were clearly the understanding and tho expectation upon which the unloading and delivery of the cargo in this case were made. Judge Marvin, in stating the results of the case of McAndrews v. Thatcher, observes;
“Notwithstanding some uncertainty in the precise meaning of the language employed by the supreme court in its decision in the case of McAndrews v. Thatcher, yet I think this case, when interpreted by the case of Nelson v. Belmont, to which we have referred, does decide that a complete separation of the cargo from the ship by the master or owner, not again to be returned to tho ship, dissolves the community of interest between them, whether such separation takes place at a distance from the port of destination, or by a delivery by lighters at the port of destination; and that consequently all general average charges thereafter cease. Such a separation, when it takes place at a distance from the port of delivery, is equivalent to the abandonment of the voyage; and when it takes place by a delivery at the port of destination, it is equivalent to a completion of the voyage as to the cargo, which can no longer derive any benefit from the expenditure of money on account of the ship.” Marv. Av. 61; Gourl. Gen. Av. 400-402, note; Sparks v. Kittredge, 9 Law Rep. 318; Graham v. Welsh, infra.
4. Again, the question whether in case of misfortune a common interest still remains between ship and cargo, and the extent of that common interest, arc questions of fact depending on the circumstances. See The Amelie, 6 Wall. 18-27; The Julia Blake, 107 U. S. 418, 427, 2 Sup. Ct. Rep. 692, and cases there cited. If the cargo can be unloaded and be delivered by other means at very much less expenso than by the stranded vessel, the cargo has no actual common interest with the ship in the further prosecution oí her voyage. In the present case, about $100,000 was necessary to float the ship after the cargo was unloaded; while scarcely more than a third of that amount was necessary to unload the cargo and deliver it to its owners. The cargo, by means of a general average assessment, is sought to be charged with some $60,000 or upwards, on account. of the subsequent expense of getting the ship off, though the cargo had no actual interest in that work. It is plain that this is not compatible with the fundamental principles of general average contribution, un
The unloading, also, having been done with a view to the immediate delivery of the cargo by other means, amounted to a termination of the voyage, as between that ship and the cargo. The transhipment into other vessels involved the cargo in new sea-risks, and in the liability to a new and independent general average charge with those vessels, in case of any new peril. “Although, for the purposes of earning'freight, the transhipment and forwarding of cargo by the master might in some cases be deemed merely a performance of the original undertaking, i. e., of the personal contract to deliver at the port of destination, here the subsequent voyage in the other vessels was no part of the voyage of the L’Amerique herself, and hence constituted no common interest with that ship itself, but only with her freight; a wholly different subject in the view of the law of general average. The new transportation involved, as I have said, new and independent rights, liabilities, and obligations. The unloading itself, therefore, made for such purposes, in a case like this, distinguishes and separates the cargo from all the subsequent work of hauling off the ship as independent work, done for an independent interest, and on account of the ship only. The separation of interests became thereby complete, and the subsequent expenses incident to each interest should remain separate. The Ann D. Richardson, Abb. Adm, 499, 507; Graham v. Welsh, 45 Phila. Wkly.Notes, No. 27; The Joseph Farwell, 31 Fed. Rep. 847.
5. The same conclusion follows from considering the duty and the authority of the master, and the limitations of his authority, as respects the cargo, in a case of misfortune and distress. When different courses are open to him, he is bound to act for the interests of each, and as a prudent owner,'if present, would presumptively act, and have a right to act.
“The cargo owner is not bound to help the vessel through with her voyage under all circumstances. It is the duty of the vessel owner, and of the master as his appointed agent, to do all that in good faith ought to be done to carry the cargo to its place of destination; and for that purpose the cargo owner should contribute to the°expense as far as his interests may apparently require; but he is under no obligation to sacrifice his cargo, or to allow it to be sacrificed, for the benefit of the vessel alone. He ought to do what good faith towards the vessel demands, but need not do more. If he would lose no more by helping the vessel in her distress than he would by taking his property and disposing of it in some other way, he should, if the vessel owner or the master requires it, furnish the help or allow the cargo to be used for that purpose. To that extent he is bound to the vessel in her distress, but no further. When, therefore, a cargo owner finds a vessel, with his cargo on board, at a port of refuge, needing repairs which cannot be effected -without a cost to him of more than he would loso by taking his property at that place and pay*846 ing the vessel all her lawful charges against him, we do not doubt that he may pay the charges, and reclaim the property; otherwise he would be compelled to submit to a sacrifice of his owu interests for the benefit of others, and that the law does not require.”
These observations are as applicable to a case of stranding as to a case of reparations in a port of repair. They put an end to the supposition that the master has a right to make use of the cargo, to its palpable disadvantage, for the mere purpose of accomplishing the voyage with his own ship, when that is not necessary for the cargo. Mr. Justice Story, also, in the leading case of Insurance Co. v. Ashby, 13 Pet. 331, 340, in reference to a case of stranding, long since said: “In truth it is the safety of the property, and not of the voyage, which constitutes the true foundation of general average;” which is the precise ground of the English decisions: Svensden v. Wallace, 13 Q. B. Div. 69, 72-75, 85, 91; Hallett v. Wigram, 9 C. B. 580. The master has no more legal right, therefore, to sacrifice the interests of the cargo for the purpose of floating a stranded ship, than of repairing an unseaworthy one; nor to inflict an unnecessary and injurious charge upon the cargo under the guise of general average, than in the form of bottomry.
Under the liberal view of the courts of this country, which regard as general average almost all extraordinary expenses in a port of refuge made necessary by sea perils, (Hobson v. Lord, 92 U. S. 397,) the corrective check of the principle so clearly stated in the recent case of The Julia Blake is essential, in order to prevent abuses and the sacrifice of the cargo to unreasonable expenditures by the master for the ship’s benefit; and, in cases of disaster, to confine his authority to charge the cargo -within the limits of its own interests and necessities. If disaster and the need of extraordinary expenditures are held to release the shipowner from the duty to repair at the ship’s own cost, they must be held equally to relieve the cargo from any obligation to continue a manifestly disadvantageous association with the ship; and to put an end to the master’s authority to hold the cargo longer to the ship, to the cargo’s manifest prejudice; and to debar him also from undertaking any work on the cargo’s account, or creating any charges against it, that are clearly opposed to its interests or its necessities. He may do acts contributing to the safety and interest of both, at the common expense. Beyond that, he has no authority to bind either for the other; and good faith forbids him to adopt an3 measure that will plainly inflict on the cargo a heavy expense for the ship’s benefit, when he knows that all the interests of the cargo may be protected by separating it from the ship, and forwarding it to its destination by other means, at a comparatively small cost. This limitation, imposed by reasonable prudence and good faith on the master’s power to charge the cargo, is intimated in the guarded language of Mr. Justice Clifford in McAndrews v. Thatcher, supra, (page 368,) wherein the work referred to is supposed to be done “without much expense or delay.” The sanie condition is elsewhere plainly expressed or implied. It is an implied qualification.in every assertion of the master’s duty to
The nature of the work of getting the ship off in this ease was entirely distinct and separable from the work of unloading. There was not the slightest need of consolidating them, or of treating them as one. Both ship and cargo had a common interest in the latter; but the cargo had no interest in the former. The only work for the common safety or benefit was in discharging the cargo; and that work, therefore, is all that falls within the principle of general average. So far as the interests were distinct and opposed to each other, the expenditures for the benefit of each should be kept distinct. The charges for unloading must, therefore, be separated from those for getting the ship off. If the whole operation was “one continuous work,” as respects the ship, it was certainly not so as respects the cargo. Nor was the whole work in this case any more “one continuous operation,” so far as I can perceive, than in the case of Job v Langton, which in McAndrews v. Thatcher was approved. The subsequent measures here taken to float the ship were “new measures” as much as in that case, in the sense that they had nothing to do with unloading the cargo. General average rests upon the highest equity, and upon the essential facts of the case, not upon any fictions; and the principle that forbids sacrificing the cargo to the ship, forbids treating as one act a series of acts that have difierent objects in view', and, as respects expenditures, are perfectly separable, according to the interests benefited. The cargo is, doubtless, to be treated as a whole. The object of unloading in this case was in part to rescue the cargo itself from peril; and in part also to lighten the ship, so as to make hauling her off possible. But those were not the only purposes of unloading. It w'as equally done in order to make delivery of the cargo to the owners at once, without reference to the success or failure of the subsequent efforts to get the ship off. After unloading, the subsequent work of forwarding the cargo to its owners in no way concerned the ship or its safety, but the cargo and freight only; and the efforts and expenditures made in hauling off the ship in no way concerned the cargo. That the wrecking company did the whole work, or worked continuously, or that a part of the preliminary work for hauling off the ship was going on at the same time with the unloading, does not affect the essentially separate nature of the different parts of the work done, and the different objects in view; nor authorize any charge against the cargo for work that would plainly be of no benefit to it. The master in this case did precisely what according to the decision in The Julia, Blake it was his duty to do, viz., he at once forwarded the goods to their owners by other means than by his own ship. He is not at liberty to say that be did not intend any separation of the cargo from the interests of the ship, and of her voyage; because, under the circumstances of this stranding, and the long delay and the heavy expense of floating the ship, plainly to bo foreseen, he had no legal right to hold on to the cargo any longer on joint account, or for the accomplishment of the voyage by his
6. The case should be treated, therefore, as that of a separation of the interests of the cargo from those of the ship, made in accordance with the rights of the cargo owners by the master as their agent, and for their benefit, and in accordance with his own obligation under such circumstances; with the same effect as if done upon the cargo owner’s demand. The ship sustains no injury and no hardship by this separation. She incurred no expense for the cargo’s benefit except in unloading, and that expense the cargo shares. If the cargo had been worthless ballast, it must have been unloaded in the same way, as a preliminary to the work of getting the ship off. In paying all the subsequent expenses of floating her, the ship pays only what by the sea peril has fallen to her lot. As the voyage, so far as concerns the earning of freight, was substantially accomplished at the time of the stranding, and as the separation was made solely for the consignee’s interest, the ship should be allowed her freight in full, as though the owners had demanded and received the cargo on the beach, or in lighters. The expense of unloading should be charged as general average against ship, freight, and cargo; because that expense was equally necessary for the safety of all, and was actually incurred for the benefit of all. Neither can be exempted from paying its share, on the ground of receiving an accidental or incidental advantage, (Carv. Carr, by Sea, §§ 398-400; Lown. Av. 4th Ed. 173;) since the unloading in this case was not an accident or a mere incident, as respects either the ship or the cargo; but was equally necessary to the safety of each, and was actually done for the benefit of each. The subsequent expenses on account of the cargo after it was discharged, either on the beach or into lighters, should be charged as particular average against the cargo alone; and the expenditures that had sole reference to hauling the ship off, against the ship alone. As the foundation of the claim is not the bond, nor the adjustment under it, but the expenses incurred for the cargo, which the bond merely protects, and sufficiently covers, whether they are general average or particular, it is not necessary to dismiss the cause by reason of the partially erroneous mode of adjustment. If the parties do not agree, a readjustment of the respondents’ obligations may be had in accordance herewith, by the same adjuster, or by any other that may be agreed upon; and, on further report thereon, a decree may be entered accordingly.
