It is urged that, considering-the division of the ship into iron compartments, and the easy means of putting out this fire, there was 110 such common danger, or similarity, or substantial equality of danger between the baggage and the cargo, as makes justly applicable the rules of a general average contribution. Upon the evidence, however, no doubt, as it seems to me, can be entertained that the fire in the baggage compartment did threaten the safety of the entire ship. The situation of the compartment over the boilers; the considerable progress of the fire in the compartment; the proximity of the wood-work of the deck and other parts of the ship, and their warm and inflammable con
1. The damage done by water used in putting out a fire to goods not touched by the fire itself is almost universally held a common charge, as being wdthin the ordinary principle of general average, viz., that “a loss voluntarily incurred for the sake of all shall be made good by the contribution of all.” Per Story, J., Insurance Co. v. Ashby, 13 Pet. 338. Such are the provisions of many maritime codes, (see Gourl. Gen. Av. 159-165;) and, in the absence of a,ny express statute, the sanie has been held in this country, in France, and in England. 2 Pars. Mar. Ins. 234; Benecke, Ins. 165; Nimick v. Holmes, 25 Pa. St. 366, 373; Nelson v. Belmont, 5 Duer, 310; Lee v. Grinnell, Id. 400, 427; Gourl. Gen. Av. 160-164; Desjardin, Traite de Droit Com. Mar. §§ 994, 995; Valroger, Droit Mar. § 2047; Stewart v. West India, etc., L. R. 8 Q. B. 88, 94; Wire Co. v. Savill, 8 Q. B. Div. (1882,) 653. By the two cases last cited this rule as respects cargo is established as the law of England, contrary to the former practice of the English adjusters. Flooding a compartment to extinguish fire is equivalent, pro tanto, to scuttling a ship without compartments for the same purpose; and all water damage is generally treated as analogous to scuttling, as respects the right to contribution. It is also analogous to damage inflicted on other goods by wet in course of a jettison, which Beawes, more than a century ago, (Lex Mercatoria, 148,) said comes into general average.
It is urged that the contents of the baggage department were already doomed; that, except in so far as they could be partially saved by flooding the compartment with water in order to extinguish the fire, their destruction was certain; that the goods in question had therefore no real or practical value, save their value wet, and that hence there was no real sacrifice,, and therefore no just claim for contribution.
The question what is to be deemed such a “sacrifice” as to entitle the owner to a general average contribution has not infrequently arisen. Substantially the same question is presented in almost every case where the fire is put out by water, and' unburned goods, near the fire, are damaged by wet. The very use of water presupposes that the goods adjacent to
“It this be the meaning of this proposition, and we can discern no other, it is a denial of the whole doctrine upon which the claim tor general average has its foundation. For the master of the ship Would not be justified in casting a part of the cargo into the sea, or slipping his anchor, or cutting away his masts, or stranding his vessel, unless compelled to it by the necessity of the case, in order to save both ship and cargo, or one of them, from an imminent peril which threatened their common destruction. The necessity of the case must compel him to choose between the loss of the whole and part; but, however metaphysicians may stumble at the assertion, it is this forced choice which is necessary to justify the master in making a sacrifice, as it is called, of any part for the whole. [Page 304.] * * The jactus is said to be sacrificed, not because its chance of escape was separate, but because of its selection to suffer, be it more or less, instead of the whole, whoso chances of safety, as a whole, had become desperate. The imminent destruction of the whole has been evaded as a whole, and part saved, by transferring the whole peril to another part. [Page 806.]”
According to the best considered cases, the loss will be deemed no “sacrifice” in those circumstances only in which the property sacrificed must inevitably, or at least in all probability, be lost, not through the common peril, but owing to some situation or condition peculiar to itself, and independent of the common danger, and whether the vessel and the rest of the cargo survive or not. Thus, in Shepherd v. Kottgen, 2 C. P. Div. 585, the mainmast, before the giving way of the rigging in a heavy gale, was lurching dangerously, and liable to cause the ship to founder; it would not break, and was therefore cut away. The jury found that the mainmast, in its condition immediately before it was cut away, was “hopelessly lost,” that is, lost whether the vessel survived the gale or not. It was held upon much consideration to be no sacrifice, and contribution was refused. Lord Justice Bramwell says:
“When the thing destroyed has some, peculiar condition attached to it, so that it will be lost whether the whole adventure is saved or not, then the destruction cannot be deemed a sacrifice.”
Lord Justice Brett says:
“If anything on board a ship which is cut or cast awa,y because it is injuring the whole adventure is in such a state, or condition that it must itself cor*64 tamly be lost, although the rest (f the adventure should be saved without the cutting or casting away, then the destruction of the thing gives no claim, for general average. ”
Cotton, L. J., says:
“When the thing said to have been voluntarily abandoned or destroyed is in such a state, by reason of a peril peculiar to itself, that, if the act of supposed sacrifice had not been done, it would have very shortly been destroyed, without the rest of the common adventure being lost, the act of slightly hastening the moment of loss is not an act of sacrifice which enables the owner of the thing to claim contribution. There is no act of sacrifice. Within a short time the thing would have been lost by a peril peculiar to itself, and independent of the common peril to which the whole adventure is exposed.”
This is precisely in accord with the general tenor of the opinion in the case of Barnard v. Adams, supra, and on this principle contribution was denied by this court in the case of The Adele Thackera, 24 Fed. Rep. 809; Slater v. Rubber Co., 26 Conn. 128. On the other hand, where the special danger is only a circumstance in the common peril to which the whole adventure is exposed, and* the sacrifice was made in preserving the rest from the common peril, contribution is sustained. Johnston v. Chapman, 19 C. B. (N. S.) 563, 585; The Margarcthe Blanca, 12 Fed. Rep. 728.
In this case there was no danger to the trunks save the danger from fire, which was the common peril of the whole adventure. Unless the fire were suffered to extend to the whole ship, it must have been ¡nit out by water or steam. At whatever stage they began to put it out, whether in the first compartment or in the second, some of the goods nearest the fire must have been damaged by water. It was to the interest of the whole adventure that the work of putting out the fire should be begun and ended as soon as possible. The sacrifice of the trunks in the baggage compartment prevented a greater sacrifice afterwards, unless the fire were to be allowed to run its course, and destroy the ship and cargo. The contents of separate compartments cannot be treated as separate adventures, when the danger is one. that threatens them all, unless sacrifices are made to avert it. When something must be sacrificed to save 'the rest, it can make no difference, as respects the right of average contribution, how near, or how remote, from the fire, the goods sacrificed may be, provided the sacrifice is necessary for the common good, and is an effectual means of saving the rest.
2. It is further urged that the libelant is not entitled to compensation, because by the law of this country passengers’ baggage cannot be called on to contribute in general average; and that there can be no equity or right to compensation where there is no reciprocal obligation to contribute.
Reciprocity is undoubtedly the ordinary rule in general average. It is, however, rather a circumstance in the usual application of general average than an indispensable part of the principle upon which the right of general average contribution is founded. That principle, as before stated, is the simple equity that “a loss voluntarily incurred for the sake of all shall be made good by the contribution of all.” This, for the most
As respects the obligation of passengers’ baggage to contribute in general average, no adjudication in this country or in England has been cited by counsel; nor have I been able to find any. In Abbott on Shipping, (503,) it is said: “Neither in this country do the wearing apparel, jewels, or other things belonging to the persons of passengers or crew, and taken on hoard for their private use, contribute.” Kent in his Commentaries (volume 3, *241) repeats this as the law of England. It would seem to rest upon the practice o( average adjusters, which, as just seen, does not determine the law. Whitecross v. Savill, supra. 1 Pars. Shipp. & Adm. 322, 323, and note, refers lo the practice but sees no reason for it on principle.
The question has been much discussed by many of the continental authors. Most of the ancient authorities are cited by Emerigon, (Tr. des Assur. vol. 1, pp. 642, 646.) By the Rhodian law, everything saved contributed, even to the ring upon the passenger’s finger. The same is the rule of Le Guidon, c. 5, art. 626. Cloirac (p. 263) says it depends upon the usage of each country, and adds (p. 45, note 27,) the usage then was that the clothes and articles that the passengers or merchants ordinarily wear upon, than did not contribute. The Ordinance of Philip II. (1563) exempted from the duty of contribution articles of daily wear,—•
“As they [the passengers] are only exempt from contribution for their ordinary apparel, it would be necessary to make a valuation of that separate from their other apparel ;■ that is, if their ordinary apparel jettisoned is estimated at 1,500.liv., and the other at 2,000 liv., they shall not contribute to tlie whole loss, only for the 2,000 liv., and be exempt for the 1,500 liv. like the seamen.” >
The French Commercial Code, art. 419, like the Ordinance, makes no express provision in regard to passenger’s baggage. Boulay-Paty, (Cours de Droit, tit. 13, § 2, vol. 2, p. 265,) after stating the French custom not to require contribution from passengers, quotes the opinion of Pothier that passengers ought to contribute for their clothes and jewels, and then adds:
“Nevertheless, if it appears that the judges could not in this regard depart from the provision of the law, [not exempting passengers’ baggage,] it would seem to us just to make a distinction, and to reserve for eacli passenger without contribution the clothes and jewels that he habitually wears, but as for his tranks and other baggage, to make them contribute; because, if these objects were jettisoned for the common safety, they would have to be*67 paid for by contribnlion. It cannot be said, moreover, that the passengers enjoy the favor accorded to the sailors; consequently nothing changes, as regards them, the reciprocal obligations of the general law.”
He adds that “it is incoutestible that trunks or other baggage, if jettisoned, enter into contribution to be paid for.”
From the extracts last quoted it is evident that the passage cited by counsel from Kent’s Commentaries, (volume 3, p. *241,) in which it is said that Boulay-Paty thinks that passenger’s baggage “ought to be exempted, and that the existing French usage is proper,” is quite erroneous and misleading, except as regards the comparatively unimportant item of clothes in daily uso, or necessary changes during the voyage; and that as regards tranks put, like these, in a baggage compartment for transportation, and not for use during the voyage, the high authority of Boulay-Paty, Valiu, Pothior, and Emerigon is strongly to the contrary. Phillips concludes that “no reason lias been given why passenger’s baggage" should not contribute as a part of the contributory interest; and Parsons says the same. 2 Phil. Ins. 153; 2 Pars. Shipp. & Adm. 322. Desjardins, a member of the French court of cassation, in his treatise (1885) on Maritime and Commercial Law, (volume 4, p. 472,) concludes that “what the passenger wears upon his person should be exempted, like the clothes of seamen, oil the ground that the general average loss, while it may have saved the ship and the cargo, docs not determine necessarily the preservation of the persons on board;” “nor, consequently, of wliat is accessory thereto.” Beyond this he “does not hesitate to hold that the trunks of passengers should contribute.”
By the express provisions, however, of the great majority of the recent Maritime Codes, the baggage of passengers does not contribute; but, if sacrificed, it nevertheless must be paid for in general average. German Code, art. 725; Belgian Law 1879, art. 106; Italian Code 1882, art. 648; Code of the Argentine Republic, § 1502; Turkish & Egyptian Code, art. 261; Norwegian Code, art. 76; Danish Code, § 242. The New Code of Spain, (1885,) art. 856, exempts passengers’ clothes or wearing apparel in use. By the Code of Chili, (article 1096,) wearing apparel and effects of passengers are exempted, not exceeding in value and in kind those of the master that he is entitled to reserve. The Swedish Code (article 163) exempts the clothing and other- articles of passengers not constituting a mercantile venture, (une pacobille.') By the Brazilian Code, (article 787.) baggage for the personal use of passengers is exempt. The Code of the Netherlands (article 731) exempts the “daily clothes” of the passengers. The Code of Finland (article 147) exempts “the effects of passengers, except what may be regarded as forming a part of the cargo and freight, and whatever a person wears and himself saves.” Desjardins, supra, vol. 5, pp. 475-484; Gourl. Gen. Av. 586, 597; Ulrich, Haverei-Gesetze, (1881.) The author last cited, in commenting (page 17) upon the provision of the German Code (section 725) that exempts passengers’ baggage from contribution, without qualification, observes:
“Passengers’ Traveling Effects. It seems reasonable that those effects intended. for the persotial use of the passengers should not contribute that are*68 taken with the passenger into the cabin, or that are kept in another part of the vessel, without any special compensation besides the passage money. Article 673. However, if these same effects pay a special freight so that they partake more of the character of general cargo goods, then they must also contribute. The provision of article 725 seems not to conflict with this, because by it only the regular case of article 678 is intended to be met.”
By the provisions of all the maritime codes, the clothes and baggage of passengers, like the clothing of sailors, munitions of war, and provisions for the ship, though not called on to contribute, must, as I have said, be paid for if sacrificed for the common good. So, in the absence of any express statutory provision in regard to passengers’ baggage, as in France, the same right to compensation is affirmed by the highest authorities as an undoubted right. This right seems never to have been anywhere questioned; and it is plain that such articles, when sacrificed for the rest, are within the principle of general average as much as any other property- on board.
Considering, then, the undoubted universal rule to pay for baggage sacrificed, and the quite general exception of such articles from assessment, it is necessarily to be inferred that this exemption is based upon grounds that do not affect the justice and the equity of compensation for such articles when sacrificed for the rest, though they may not be called on to contribute when saved. The reasons for this exemption in the case of passengers’ baggage, I have not found stated any further than its insignificance, as Loundes suggests, and the reason above indicated, viz., that what is upon the person is not subject to the same risk that attends the cargo, and may be saved with the person though the cargo be lost; but that suggestion would apply only to what is strictly attached to the person, not to trunks in the baggage compartment. But, aside from that, when we consider how great annoyance and inconvenience to passengers would attend the long detention of their trunks and clothing until a general average adjustment could be had, or an average bond be given; the practical impossibility of either, where passengers with their baggage are taken on and off at intermediate ports in the course of the voyage; the difficulties attending the valuations tó be put upon such articles in average adjustments, and in the collections thereon; the inquisitorial and offensive nature of such examinations; the small value of many of such packages, such as those of steerage passengers; the insignificant sums to be derived from most of the trunks and boxes, often, perhaps, less than the cost of adjustment; and the difficulty of making any distinction in the mode of dealing with the baggage of the different classes of passengers, and the natural desire to accommodate travelers in the rivalries of competing lines,—in all these considerations there seem to be practical reasons enough, without reference to the legal right, to have led, first, to the omission in practice of any assessment on passengers’ baggage, and, next, to the adoption of that practice in many of the recent Codes. Whether this be the true account of the matter or not, in the light of the above authorities, and the general usage of maritime nations, it is clear that the absence of reciprocity in the right to compensation and the obli
The modem codes above cited differ as to the extent to which this exemption is allowed. Where, as in this country, there is no statutory provision on the subject, and no adjudication, the omission of the baggage from assessment, beyond that actually in possession of the passenger, and in use on the voyage, must be regarded as a favor or courtesy to passengers, or as being a waiver for practical reasons, rather than a strict legal right to exemption under the general maritime law; unless, indeed, the practice not to detain and hold baggage for a, general average adjustment were proved to have been so long settled and acted upon as to form one of the implied terms and conditions upon which passengers embark. Though such a practice, if established and well understood, might possibly entitle the passenger, in cases of a general average loss, to a delivery of his baggage without detention, it would not relievo him from the obligation to contribute by a pro rata deduction, according to the usual rule in geuerai average, upon the amount allowed to him for his particular loss, when the passenger himself is seeking compensation; because in that situation none of the practical reasons for omitting passengers’ baggage from assessment are applicable. Upon this point [ follow the principles universally7 affirmed, and the united authority of the Trench authors above cited; and as none of these trunks wore in daily use, or “attached to the person,” I shall hold them bound to contribute, when the owners are seeking compensation, as in this case, by a pro rala deduction according to the general average charge, as in the example cited by Valin, supra, vol. 2, 518. This accords also with the express provision of the German Code, art. 725, subd. 8. And see 5 Valroger, Droit Mar. §§ 2198, 2199.
8. Section 4282, ltev. St. U. S., does not, in my judgment, exempt the respondent from liability in this case. It provides that “no owner of any ve>sel shall he liable to answer * * * for any7 loss or damage which may happen to any7 merchandise whatsoever which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any’ fire happening to or on board the vessel,” etc.
Whether the trunks of passengers which, like these, are not taken into the cabins, or returned in their own charge, but are put in the exclusive charge of the ship, until they are delivered to the passenger upon the dock, at the end of the voyage, and in the mean time are stowed in a separate compartment of the ship, like any other merchandise, are or are not included in the words of the statute, “any merchandise whatsoever,” is a somewhat difficult question. See The Marine City, 6 Fed.
By the maritime law it is the dutjr of the master, as the representative of the interests of all, upon the completion of the voyage, to cause an average adjustment to be made, and to hold the cargo until the amount payable by each contributor is paid, or secured by a proper average bond. If this duty is not performed, and the cargo is delivered to the various consignees without requiring payment of their shares, that constitutes a breach of a maritime obligation, for which an action necessarily lies in favor of the persons entitled to contribution against the master, the ship, and her owners, to recover the amount of the average, ■which the latter were bound to enforce, bnt did not. 2 Marsh. Ins. 544; Id. (5th Ed.) 433; Gourl. Gen. Av. 433; Dike v. The St. Joseph, 6 McLean, 573; Gillett v. Ellis, 11 Ill. 579; Eckford v. Wood, 5 Ala. 136; Strong v. Insurance Co., 11 Johns. 323, 334. The persons entitled to compensation might, indeed, pursue the cargo, or the several consignees, if they could trace them; but the master and owners of the vessel have no right to throw that burden upon those whose property has been sacrificed for the common good. Having improperly and negligently, as respects the libelant, delivered the cargo without exacting contribution, they must respond for the amount, and themselves bear whatever trouble or expense may attend a resort to the various consignees who still remain liable. Such an action, arising from independent acts of negligence on the part of the ship, and from the breach of a maritime duty, is not within the provisions of section 4282, Rev. St.
The libelant is therefore entitled to a decree, and to an order of reference to ascertain the amount due, if not agreed on.