*1 еt Hobson al. v. Lord. seen, as we have was citizen The plaintiff, Maryland. warrants, Iowa as he supposed, County ignorant Buying, form, he took from seller their engagement warrants, were such his genuine that subjects purchase to rest that issued.. He had a upon engage- right regularly It not to farther. was his Assuming ment. inquire duty warrants, to was he took the it when possible, procure under no them, he was seal obliga- upon impress county he it; discovered to there is no evidence tion procure the defendant warranted the instruments were not what when, 14, 1870, in his suit until them be against May counties, it Avastoo late to void. Then were adjudged they obtained, Avar- obtain, been if ever could have they thоse seal he rants, or obtain the impress county ceased, seal held. The to require affixing right IoAva, at the three under the statutes of expiration years That had of the warrants. period expired issue on the claims The of action before original against right from the barred at end five time the counties was years accrued, warrants were dated more than five and all the void. The of action on before right adjudged they years counties, even if it did claims pass original against warrants, unsealed Avas the plaintiff assignments that the defendant’s therefore, when he discovered guar- gone, broken; defendant suffered no was consequently anty remitted the warrants possession loss being time, there can no Before that then pre- subsequently. returned them. should have From this tence that the plaintiff that the third and fourth follows requests very plainly, not have been Court could granted. Circuit properly
Judgment affirmed. al. v. Hobson et Lord. guano States, having
A vessel loaded at one of the bound to United way granted, islands Callao were not was on her where clearances one, Pro- injured by vessel. badly when a collision with another she ceeding that, the anchor- she to anchor distress the nearest came the fact age survey calling A revealed vessels at that clearances. et al. v. damaged require to he unladen condition was such therefore, was, extensively repaired prosecuting before She discharged, pier, removed to hulk nearer the where most of her finished, was, repairs. and thence to a After she with dock for *2 reloaded, despatch, completed deliv- reasonable and Before the bond, ery cargo, consignees gave agreed average whereby they of her an pay respective proportions the owner of the and their charges collision, consequence him in of such soon as adjusted conformably usages be and should to law Held, of New York. that as services of her crew were for preservation safety hauling in hulk and her to from the for unload- ing reloading, moving undergoing repairs, and in in dock while wages provisions, during employed, their so time properly general adjustment average. allowed in that an further, Held services, board, paid travelling the amount for the and incidental agent ship, good faith, to advise sent the owner of the to Callao master, cargo, having and assist the for the benefit been York, charge conformity usage made in with the New properly allowed. Court of the Circuit United States Error District of New York. Southern stated
The facts and the of errors are assignment court. opinion in error.
Mr. William G. Choate for plaintiffs had The law general avеrage obviously confessedly ed., 233; Com., 3 Kent’s 12th Lowndes its origin p. jettisons. ed., 305-309, 316, A, 2d 317. App. pp. Average, crew a In provisions during wages England, even when she for ship, compelled detention repair a bear refuge, common away for safety Wildman, 3 v. M. & S. Plummer average. general 141; B. Whitmore, v. 9 4 id. Hallett C. 482; Wigram, v. Power 580. decisions, and provisions to the American wages
According cause of the a to repair injury detention (unless during are not average, except average loss) general itself vessel, case of imminent to. peril proper when escape voyage, voluntarily, and and bears of her course voyage, leaves proper, case, the because, in that except refuge; for or sacrificed are not detention given the stipu- benefit, but are paid bought the common Oct; 399 al. v. et 1875.] in her delay lated freight her contract with the with shipper. complied has repairs, only 246; America, N. 4 Dall. v. Kingston v. Co. Gi Jones Ins. 574; 274; 1 Cas. rard, id. Caines’s Wal v. Leavenworth Delafield, Co., 274; Ins. 263; v. Marine id. v. 2 id. den Le Henshaw Roy, 155; Boardman, v. Co., N. Y. Ins. 3 id. v. Penny Padelford 230; Macadam, 548; 2 Brev. Ross v. Mass. v. 4 Wightman 226; Co., Marine Ins. C. McBride v. Active, 2 Wash. C. Ship 307; Co., 431; Ins. 8 id. Dunham Barker v. Phoenix Johns. 7 315; v. 14 Co., 11 id. Dodge, Ins. v. Commercial Spafford 150; Co., 66; v. 12 Me. Hause v. N. O. Thornton Ins. Mass. Co., 3 1; v. s. Potter Ocean Ins. Sumn. Co., 10 La. O. Ins. note; Co., 46, v. id. Giles 27; Eagle Franklin Ins. v. Bixby 40; 17; Dec. The Co., 2 Met. The Brig Mary, Sprag. Ins. Co.,3 ; Ins. 203 Peters Warren Sumn. Wall. Star Hope, cоurse of the from the haul It no .voyage departure *3 or for discharge the vessel to storeship cargo, or back dock to be from there to the repaired, again dry hulk receive cargo. is not sufficient to the allowance
The custom proved justify sent .out of the of the owner of agent by special expenses the ship. Smith, B. contra.
Mr. Edwin of the delivered the court. Mr. Clifford opinion Justice in the course of a Sacrifices, voluntarily part to save the whole of the adventure or cargo, part or sea incurred extraordinary peril, from impending and which of both became ship cargo, benefit joint a common of the kind, peril in cоnsequence necessary of general objects average. as the proper regarded kind mentioned denotes contribution Average all the to be made to the same sea which parties is required out of a loss sacrifices arising towards adventure incurred, made, some of the or extraordinary par- an, ties, benefit, to save from the common cargo impending peril. sacrifice, no nor not in such peril requires any
Property 400 v. Hobson et al. incurred; and property should
extraordinary expense is not pay any saved from required the impending peril losses or nor do ordinary or of such a loss portion expenditure, from claim such contribution entitle a party any expenditures which it adventure: from follows the associated interests and that have been in must peril, cargo to save been of a sacrifice have part must adventure, or that the extraordinary expenses the residue of benefit must have been incurred joint com- of a in consequence and which became mon peril. no claim for there is no a sacrifice
Where peril, presents contribution; but, the and more imminent the such a greater interests, the claim the other the more meritorious against and contributed to save ad if the sacrifice was voluntary, the interests venture from danger impending 229; Fowlеr v. Rath Star Wall. exposed. Hope, Thatcher, bone, 114; id. 12 id. McAndrews amount Expenses large “ Lincoln,” owner, of which he was the the ship repairing islands to one guano Hampton destination was to that island for orders. Her outward Roads there and received on board one and she went cargo; tons of one hundred and registered thousand ninety-two guano, on her return sailed from the island voyage. States, there, if bound to the United are re- Vessels loading for a clearance in the homeward to touch Callao quired island; are not at-the and she ac- Clearances granted one, for her destination without intend- sailed return cordingly for that : but on the she was to call at Callao way purpose ing *4 vessel; another and a collision with being injured by badly distress, unable to her of such and prosecute voyage reason. was her Callao, to the she proceeded injuries, came to anchor nearest and there anchorage for a call that vessels anchor when wheie they usually clearance. had; it was found that she was the and were
Surveys collision, her to remove the that it was so necessary damaged by could be the vessel before the and voyage prose- repair cargo et al. cuted; it was order accom- and necessary, appears to remove vessel frоm where the those objects, place .the plish another, mile a half the mole anchored to a nearer was she to be repaired. pier, was, be the could not con- laden as the repairs Heavily the made without first larger portion unloading veniently first hulk and with view the cargo; ship proceeded mole, all of a nearer the and there at anchor mile discharged tons, she before went two hundred cargo, except fifty sur- dock All ordered to the to be repaired. repairs made; and it that all the taken place were steps veys in the dock were proper judicious, necessary made; were Extensive repairs tо execute the required repairs. shows of the court though and the repairs, finding character, to enable were were a permanent they termination, to its the- the ship prosecute voyage were was removed when the completed, hulk, to the was reloaded with dock, back cargo proceeded tons, and that discharged, except forty-five fifty previously destination, to her completed she successfully defendants, was delivered discharged, cargo. consignees who made; and, the defendants was having appeared, Service the case and submitted circuit waived jury, parties had; and the court ren- Hearing without jury. judge $18,430.43. sum of рlaintiff dered judgment defendants remove measures adopted Immediate court re-examination. this into cause as follows: That the Court are Circuit assigned (1.) Errors of the crew as allowed improperly period delayed average general Court allowed as Circuit That improperly (2.) repairs. sum services paid by sent to assist the vessel in the special agent distress. the discussed, agreed need not of fact
Matters Safe of the court. findings embraced special or are admitted; ap- of the cargo arrival delivery the cargo, before the defendants, delivery pears II. voi.. *5 et Hobson al. bond, in which promised
gave plaintiff average their to the proportions respective agreed pay made or incurred and sacrifices of the expenses, by charges, of the vessel for the detention repairs, plaintiff during a collision with another received of damage by consequence clearance, Callao for towards vessel while pay- proceeding should be made whenever and so soon as to be ment New to law and the usages adjusted conformably York. embraced in the
Most of the material matters of fact That court as follows: special findings orders, was- her to Callao clearance seriously voyage collision; that she reached the damaged consequence de- she condition was to touch in damaged record; that was exhibited in the she scribed in the surveys that, distress, in conse- unable to voyage; prosecute unladen, that she should it was quence peril, necessary were that the and be repaired; repairs necessary extensively order to enable her to prosecute repairs means thereof the prosecuted; reloaded with reasonable made and that the vessel was condition, that, reason of her she damaged despatch; her first to leave anchorage ground, discharge compelled of her anchor- hulk, one mile from at the about place dock for hаlf-mile repairs, and then proceed age, hulk; ser- than the distant from the more anchorage vessel of the seamen vices employed and the for her prosecu- preservation safety for their amount tion of the that the expended voyage; amount; and that the was a reasonable and provisions sent to assist the of the special agent and salary ac- distress are the average, subject at the port of New York. the customs of cording mentioned, or sacrifices incurred of the character Expenses interests the owners the associated on account constitute from a common the adventure either, to sаve owners of objects general average; the proper same, make contribution are bound to interests other if interests, their several value of in the proportion et al. v. Lord. induced or sacrifices were occa- imminent; an impending peril, apparently sioned by *6 character; sacrifices of an or expenses made, a view to incurred or with were voluntarily they adventure; of the and that or they accomplished, general safety aided, least, of, accomplishment purpose. and of the kind their foundation rest
Claims have equity, doctrine, is sacrificed for the common that whatever upon associated interests shall be made benefit good by to the common and the interests which were peril, exposed were saved from the common sacrifice. danger by that is so: still it is contended the defendants that by Suppose crew, incurred for the and wages provisions expenses the amount for the and and paid salary agent distress, to assist the sent by port included in the were improperly adjustment. object They crew, for for the and insist that wages charge is never when the such a general charge average, except ship, case of imminent in a vessel and or to the proper peril and to leaves the voluntarily, voyage, escape of her and bears to a for course voyage, away port refuge advance the repairs; they theory, provis- detention, other ions be dis- during any though ship may sea, are not abled because the perils general average, incurred, insist, as are not or sacrificed they given benefit, the common but for they bought paid for and that the freight stipulated voyage, in her for with contract repairs, delay only complies with the shipper. defendants,
Admit it follows that proposition for can claim never be a maintained in general average any case, for sacrifice or nor unless the any expenditure, injured bears to a not in goes the course аway, port refuge out, of her or from an Ships going outward returning are sometimes disabled collision or storms in outer harbor or of port the return destina- departure, ; tion and are sometimes disabled in the course of the they in the outer harbor accus- advice, to call for wood, coal, tomed funds or or provisions, et al. v. Lord. but, if decision set water: tbe rule of tbe defendants up by should be no in such a case can ever entitled adopted, party to maintain a suit for unless the bears repairs, a to some other goes away refuge — not she even if stranded to a voluntarily escape unable much became move greater peril, thereby any direction whatever. inadmissible, a rule of decision is as in
Such wholly many all of of much or its cases would divest claim equity, make an act unimportant, depend entirely wholly collision or whose Navigators injured by unnecessary. sea should bear re- refuge perils it; but it would be the circumstances whenever require pairs the disaster act of to do so in a ease where mere folly where the in the harbor of ship happened *7 executed could be as as conveniently economically out of the course in a more distant law commercial allow compensation Both such usage or sacrifice because extraordinary еxpenditure, a voluntary to a of outside of time bore the refuge the the at away because she was of but in course interrupted voyage, disaster, and because common the course of by or dictates, two more that where in parties engaged justice them, a moment of risk, and one of in same sea imminent imminent or incurs sacrifice to avoid danger, makes a peril, of safety promote expenses extraordinary so interests, the or made or sacrifice in- expenses associated all share of shall assessed curred proportion in the adventure. each shows, is sea, as all often at exposed
Property exрerience fire, as as from from collision and well perils arising imminent best, is of the wind and waves. Navigation, violence it know those who follow full well that pursuit; perilous disastrous of suffer owners ships frequently cargoes losses, every safeguard precaution spite rules and avert regulations designed can adopt. Equitable from such or to amelio- to ensue perils, consequences likely disaster, been have known the loss in case long rate which, countries, founded in commercial being jurisprudence et al. v. to be administered are entitled of equity, the principles had their origin. in which they same spirit sort, it had its insurance is system Marine unfortu- indemnity measure to affоrd partial aas origin Allowances ser- disasters. salvage nate for losses by rule of character; proportionate are of a similar vice from an imminent sea made to escape for sacrifices contribution for that is purpose, expenses or extraordinary peril, merit importance. one of equal in the course of the occurs voyage, disaster
Where to refit her disabled, go the ship claim, as such a strong just support create equity forward if it such a escape as a sacrifice incurred enabled saved, and that successful termination. to a the voyage master to prosecute case, in such a not because is enforced Contribution course outside the regular bore when injured common because but principles equity, commerce, that what require given and the usages justice, “ for all shall interests the benefit of of the associated one contribution all.” the proportionate be made good 367; Adams, Thatcher, 3 Wall. Barnard v. McAndrews Ins., 270; 2 Arnould How. that, case, in such a those whose effects have requires,
Equity or expenditure been sacrifice preserved contribute to such sacrifice or shall ex- others voluntary ; commercial well as favors policy, equity, penditure contribution, as it proportionate encourages рrinciple his to consent that owner, if some property, portion present, *8 cast to it, be away exposed and peculiar may special the adventure and the save lives of to those on board danger owner, destruction. Such an under such cir- impending the cumstances, has a lien saved from the im- property enforce the to payment minent peril, proportionate made or for the sacrifice the contribution ex- incurred. penses case; made in this were and the
Proper repairs ship, having reloaded, refitted and to its ter- prosecuted been voyage arrival, board, admitted; with the is mination. Safe al. v. et the the demanded pay- the it that owner and the delivering before the contribution ment proportionate defendants, to obtain such delivery, in order and the that cargo, record. bond exhibited in the average plaintiff gave of the bond show that the terms in the Enough appears to claim the right plaintiff not controvert defendants did that, recital ad- Instead contribution. a proportionate made collision; sustained which damages mits refit; ex- sundry to discharge incurred; sacrifices various were and that penses charges of a average, made are the subject which a common borne at risk as should be property in contribution. charge of that be thаn the more language could
Nothing explicit recital; and the defendants agree pay promise found from them for their sums be due whatever may plaintiff and sacrifices as have of such expenses, charges, proportion disaster, so soon as whenever arisen consequence shall be to law and the usages adjusted conformably of New York. disaster, admit the that sacrifices and They incurred, that are the the sacrifices general average, promise agree pay subject soon as contribution so the same shall adjusted proportionate to law and conformably usages admit that there is no
ended. merit pres- Plainly they dеfence; if it be true that a claim ent cannot arise the vessel bears outside of the unless refuge then it course of follows voyage, plaintiff to recover is not entitled Inconsistencies thing. any cannot such an kind be overlooked in investigation, defence is unsound both tend show strongly very and in fact. law this was rendered in case for the Judgment plaintiff, correct, now is sum admitted judgment $14,075.77, whereas, if the set defence including-interest; up defence, is a valid the two sums controversy entitled to contribution whatever. any Expenses during master interruption *9 Oct. 407 et Hobson al. v. Lord. 1875.] $3,917.18, crew the to the of officers amount of wages Court, the Circuit were also allowed and were included those the expenses, judgment; judgment court, as the un are for the of charge just proper which, admitted, it is is a reloading loading charge. proper of from damages arising
Temporary repairs sea, some made at intermediate pur- perils if the to the damage prosecuting voyage, ship pose her and to are to disable interrupt of a character voyage, Ins., ed., on 5th Phillips object general average. proper sect. 1300. cases, if remove the in such disability
Repairs are now re everywhere ship proceed voyage, contribution; but as the object proportionate proper garded what is neсes reasonably repairs, beyond not so because are regarded, purpose, sary disaster, owners, in case of ship except keep duty Rathbone, 117; condition. Fowler Wall. a seaworthy 9 id. 236. Star Hope, such ex- which result damage ship Sea perils her from and disable pursuing tent as to voyage, interrupt involve it, delay extraordinary expenses; necessarily cited, held, in the case last this court wages pro- the officers and crew in such case are aver- visions the disaster occurs until resumes time age, was not used unless proper diligence voyage, in making repairs. to the extent that such ship, except
Necessary repаirs as were are required replace parts repairs interests, to save the associated or to refit sacrificed to resume to be included voyage, enable safely ; but the adjuster provis- as general average and crew and neces- ions the officers consequent disaster, occasioned voyage, interruption sary contribution, for such proportionate wholly a proper charge whether the bore of the question, irrespective course outside refuge were executed or whether necessary repairs et al. v. *10 well consult occurred. Masters the disaster may port the and in making economy selеcting convenience case, the if, master exercises in the good particular repairs; selection, the no interested will have in making party judgment to complain. right any show services of the crew were to that the neces-
Argument the the interrupted, quite period sary, during court of that dispose ques- as unnecessary, findings it affirmative; in from which that as tion finding on board were actually men as were employed necessary many her to and from the hulk for the hauling of safety while dock and in during moving ship surf-days, that, finds that the court also from repairs. Apart sailors, be able to men should that employed necessary surf; when there was moment haul the out ship any of оf the sailors that services employed for her vessel necessary preservation safety, of the voyage. to refit her prosecution ocean, from the disaster occurs away Where open any made, it be often can becomes where repairs conveniently ato of that the shall bear away refuge ship of usual course distant from the voyage; more less the deviation to in such a correct say is unquestionably of the kind are cases numer quite case is justifiable. Reported controversies, of ous; such courts of justice, disposing as to ship refer the bearing away marking infrequently extraordinary from which compute exрenses the time Ex incurred in refitting ship prosecute voyage. court, in the decisions of this found of the kind are amples mentioned, be where the character one of may which striking master, officers, provisions court wages say from the time of crew, are putting away general succor, incurred and every expense necessarily for the port the detention. Star concerned during for the benefit 9 Wall. Hope, is there made away
Reference bearing commenced to be when the time mark solely court from the fact pro- as is obvious average, general decide, in the same opinion, ceed et al. “ are time the disaster а case general average ” resumes her is the true until which voyage; occurs in mak- if subject, rule proper diligence employed Numerous the kind repairs. examples might ing-the is no case but it is there well-considered given, unnecessary, where it is held that one of the associated sacrifices interests for the benefit of ship, cargo, freight, escape imminent sea or that all, of the interests in such a case the benefit one not the refit if disabled to prosecute unless the bore proper objects average, outside the usual course of her refuge defendants, cases referred to Decided here, but the after insist court having prоposition; support *11 cases, each one is of a different examined opin entirely Co., 27, the case of Potter v. OceanInsurance 8 Sumn. ion. Even case, that not sustain of the defendants. In does theory and, from to was New Orleans Tampico; appear voyage destination could not be made port ing there, the vessel should back to the if proceed ship put but warrants the conclusion that the re the case departure: forward, sult would have been the same if the vessel had gone in been of destination. repaired contribution such cases is to the in allowed Average party such sacrifice or such making incurring extraordinary expenses, service, measure of for a meritorious as a to distribute justice who were benefited it a due of what among by proportion or sacrificed that whatever expended; was principle being, for the common benefit of sacrificed the associated interests made all the interests which were to shall be good by exposed and which were saved from the common common peril, the sacrifice. danger by remedies, nature, their in to
Peculiar equitable given adventures, in and marine persons engaged navigation such that extreme pursuits exposed reason dangers, in need of such Con- equitable stand remedies. peculiаr are enforced to the owner tracts of marine insurance indemnify such an adventure from a his loss. Services of portion mariners salvors are rewarded encourage liberally hardy et al. invested in such risks to save property encounter from destruction. an adventure complete courts of contribution is enforced by justice Proportionate bore like not because from in. cases present, because common justice requires the course of but her voyage, one of the asso- by that sacrifices made all, borne of all should be in for the benefit ciated interests saved the sacrifice ex- due interests proportion penditure. incurred to kind for
Contributions pay crew, in a limited class except very cases, are not enforced in the courts parent country. therefore, in are not decisions applicable Their regard, but, in all other rule of de- respects, question; present the same. Such a in the two countries substantially cision as that set the defend- condition to up by right recovery no decision the tribunals ants finds support any reported Jones, Ell. & Bl. 532. of that Moran v. country. from that case was
It Liverpool and that was driven Callao cargo guano, storm, near the on a bank departure; came; back whence it was discharged, transported cargo off was and taken back that the ship subsequently got which she and there when she departed, repaired, with her on her was reloaded proceeded case maintain that the Attempt contribute in because it was liable to general average, sepa- *12 off; court, from the before she was but the whole rated got ship J., held that the C. opinion, saving giving Campbell, transaction, one continued and that the and the ship incurred were which general average, expenses must contribute. and cargo freight, of the in that case incurred in Most getting expenses bank, in the and the rest were incurred port off or counsel that and it never occurred to court departure; not bear becausе the did could not recover Parker, 8; v. 2 Pick. Insurance of refuge. port Company 194; Allen, 1 4 Patten v. Cliff. Merithew v. Darling, Sampson, 26-2. 411 Hobson et al. v. Lord. same rule was laid down in the Court of
Exactly
Appeals
New
Belmont,
York. Nelson v.
of the State
Discussion *13 CL et al. Butler v. Thomson as the concluded by finding defendants are necessary, the Circuit Circuit Court. Court other things, Among found, sends out an the ship agent when the owner distress, has foreign put into which benefit of master, for the advise and assist is, that York the amount of New paid usage his board and services of travelling such agent without incidental are allowed general average, not he reaches the to the whether regard question, service, he to render is sent distress in time provided actually faith, intention that he shall render out in with the ser- good It for the benefit. adjustment vice appearing in that was made usage regard, conformity the court is of al- opinion charge properly lowed, in the record. and that there is no error
Judgment affirmed. Bradley dissenting. Mr. Justice of the court in this case. It from the dissent judgment I contribution to allow to me a precedent seems dangerous course, does not deviate from but when a crew’s wages route of her delayed merely forward, will too often be put shipper claims will Such has done freight transpor- know when he paying never the American rule I concede his tation of property. but I think it this than English; liberal in more respect case. as the carried so far present has never been et al. Thomson Butler agents signed of sale following aof contract memorandum The —wit, the seller, purchaser York, “New 10, July “ A. A. Thomson & Co., to Messrs. Boston, Butler & Co., for Messrs. Sold sheet-iron, Russia (705) first and five quality hundred packs seven York, New gold, (12|) cents per pound, three twelve and quarters York, at New to arrive tare. actual cash, “ ’67. 1, due about Sept. Iron Hazard, Brokers.” “White & — thereto. both binds parties