1 Hall 430 | The Superior Court of New York City | 1829
The leading questions in this cause are, whether the damage to the defendant’s goods in the lighter, was an item chargeable upon the cargo for general average, and whether the adjustment of the average at Mobile is conclusive.
It appears that the brig, on her voyage to Mobile, and after she had taken a pilot to conduct her in, and had crossed the bar, ran on shore near Mobile Point, and for the purpose of lightening her, so as to put her afloat, the master caused the whole cargo to be taken out of her, and put into smaller vessels and lighters, and sent on to Mobile, the port of destination ; and the expenses attending that transportation from the brig to the port, is one of the subjects of the general average, to which the cargo was made to contribute. Of that charge, no complaint is made. But the goods of the defendant, who was a principal shipper, received damage while in the lighters, and were sold by him at auction, for the purpose of ascertaining the amount of the loss; and that loss was also brought into the general average, and is the objectionable item.
The interests which were made contributory, were the freight for the whole amount, and the cargo at the invoice value. Bu t the brig, after she was afloat, and in proceeding up the bay, encountered a storm, by which she was wrecked and lost. No part of the average is charged upon her. The plaintiff, who was one of the shippers, was compelled to pay the contribution assessed upon his shipment, before he could obtain his goods, and has brought this action to recover back the sum he was thus coerced to pay, as having been wrongfully extorted from him.
It is conceded, that the voluntary and deliberate sacrifice or exposure of goods to relieve and rescue the ship and cargo from present jeopardy or impending peril, when the safety of the whole is effected by the act, entitles the owner of the property sacrificed or exposed, to a rateable contribution from those who are benefited by the result. But it is contended, that in this case, the damage to the defendant’s goods in the lighter, was not the immediate
It is a settled rule of the Marine law, that if goods be put into boats or lighters to float the ship when aground, and the boat be lost, it shall be regarded as a jettison, and the remaining property must contribute to the loss, because the lightening of the ship was a voluntary and deliberate act, and done for the benefit of the whole. [Steph. on average. p. 15 and authorities there cited.] And if the total and entire loss of the goods in the lighter, entitles the owner to contribution, his claim to recompense, for the damage they sustain in that exposed condition, must have an equal title to respect.
It can make no difference that the stranding was at the entrance of the port of destination, and that the goods were sent in the lighters from the ship to the port. She was upon her voyage and in iminent danger of being lost; the only expedient that remained for her safety, and the safety of the cargo was to lighten her by unlading her; the change of the cargo from the ship to the boat became indispensable; that was the service rendered by the exposure of the goods, and if it accomplished the purpose intended, the loss incurred by the goods in accomplishing it, ought to be borne by all who participated in the benefit. The distinction is between the case of a stranding, which exposes the vessel to the imminent" danger of shipwreck, and the voluntary removal of the goods from her by the master, to boats or lighters for the purpose of averting the peril and rescuing the whole ship and cargo from jeopardy, and the case where the vessel is lightened for the purpose of floating her, when she casually strands, and where the operation is in the ordinary course of the voyage for the purpose of discharging part of the cargo on the outside of the bar, because the ship draws too much water to cross it with a full loading on board. A loss or damage in the lighter employed in
Marshall in his treatise, refers to 1 Mag. 56., and Malyne 109 & 10, to show that according to their exposition of the Marine law, if the ship upon her arrival at the mouth of a river or harbor, be found too deeply laden.to get over a b ar, or to sail up, and the master to lighten her puts part of her cargo into lighters and those lighters are lost, the owners of the ship and the remaining goods shall contribute to the loss because the removal of part of the cargo from the ship to the lighters was for the general benefit. But an exception is stated by Pothier to the rule which is that goods removed from the ship to enable her to enter her port of destination and lost in lighters, are not the subject of average contribution; and the exception seems reasonable, for he correctly imputes it as a fault to the master who ought to know the capacity of the port to which be is bound, and not load his ship too heavily, and thereby induce the necessity of lightening her. But this exception atfirms the rule, and shows that losses or damage to goods taken from the hold of the ship, and exposed in lighters for the purpose of floating a ship which has grounded by accident, is a legitimate subject of contribution.
The case of Whitteridge v. Norris, [6 Mass. 125.] is not in hostility with these principles. The point upon which it turned, was the absence of all intent to aid or benefit the ship or the residue of the cargo by the removal of the keg of dollars which was lost, from the ship into the boat. In that case the ship when under the charge of a pilot in Bengal bay, struck the ground and was thought to be in imminent danger of perishing. The master and crew impelled by their fears for their own safety, and acting by the advice , of the pilot took to the boats and forsook the ship,
That case then instead of militating against the defendant, so far as it has a bearing upon the point is favorable to him. The case of Grey and others v. Waln, [2 Sergt. & Rawle. 239.,] decided that a vessel lost by voluntary stranding to avoid capture, was to be paid for by contribution in general average.
On the same principle, where a ship having sprung a leak, a part of the cargo was taken out to lighten her, and to discover and stop the leak, which was put on board of another vessel, and lost by capture; but the leak in the first ship was repaired, and she enabled to proceed on her voyage, and finally reached her port of, destination. The goods lost by the capture were contributed for in general average. [1 Mag. 160.] So in Maggrath v. Church, [1 Cains, 214.] where in cutting away a mast, it splintered between the partners, and made an opening which let the water into the hold, and damaged the cargo, the damage was held a subject of average. But the right to retribution, and the obligation to contribute must concur to render the claim of the sufferer complete. He whose property is saved by the loss of the property of another intentionally sacrificed for that purpose by a common agent, is bound by every
Then, did the transfer of the goods from the brig to the lighters, in which they received the damage, occasioned by the exposure, effect the rescue of the vessel and cargo from the peril it was designed to avert 1 The master testifies to the fact, that the brig went on shore at Mobile Point, on the 11 th, and continued aground until the 18 th of the month of January; that the cargo was taken out to lighten her; that after she was unloaded she floated, and that he, on the 19th of the month, endeavoured to take her up to Mobile; but after proceeding about eight miles up the bay, she was driven back by a gale, and struck on Dauphin Island, where she was condemned by the wardens of the port and abandoned. The vessel and cargo were relieved, therefore, from the peril they were in by the stranding at Mobile Point, and the cargo reached its destination, but the brig was eventually lost by a new peril. That loss, however, happening after the peril was over which had first put the vessel and cargo in jeopardy, and not being voluntarily incurred for the benefit of the cargo, nor conducing to its safety, was not made the subject of an average contribution. But the damage to the defendant’s goods resulting from the exposure of them, to relieve the vessel and cargo from the first peril, and from which they were effectually rescued, was brought into average: and the plaintiff now «>
It is conceded to be a general rule, that contribution is not due for a jettison, or for damage from the exposure of part of the cargo, unless the ship and remaining cargo have been rescued from the peril to which they were exposed ; but it is a mistake to suppose that the ship must pursue her voyage, or arrive at some port in safety, to entitle the party whose goods have been sacrificed to contribution for the loss. If indeed the ship, after the jettison, perishes in the same storm, the rule applies, and there shall be no contribution for the goods that may be saved to the owners of those that were thrown overboard, because the object of the sacrifice, which was the safety of the ship from the storm, was not attained. But if the ship escape the peril which the jettison was intended to eschew, and is afterwards lost by another accidentor disaster, the effects saved from the last disaster shall contribute to the loss or damage incurred in averting the first peril, because that sacrifice once saved them from danger. [Marshall, 537.]
Phillips states the rule to be, that if the impending peril, on account of which the jettison is made, is averted, what is finally saved must contribute to the loss; but being for the common safety, contribution is to be made only as far as the common safety is secured. [Phillips, 342.] Pothier, treating on this point, assumes as the settled rule, that a loss occasioned by jettison, or a sale of part of the cargo at an intermediate port, to enable the ship to proceed on the voyage, is a subject of restitution, whether the ship afterwards arrives at the port of destination, or is disabled by a new accident from proceeding, and discharges at a port of necessity. He holds, that the estimate of the indemnity should be the price of merchandize of the same quality with those that were sacrificed at the place of the ship’s discharge, where the contribution is to be regulated, and that such place of discharge is either the port of destination, when she arrives there, or the port at which she is obliged to discharge, when by a new accident happening after the jettison, she has been so disabled as to be unable to proceed further, or pursue the residue of the voyage. [2 Poth. 414. 128.] And Stevens, in his Treatise an Average, collects a similar rule from the writers on marl-
These opinions of foreign writers on maritime law, are of great weight and approved authority, and their doctrines on subjects of such general concernment, are consulted by jurists, and not unfrequently form rules of law in our own courts, and govern our judicial decisions. I have found no adjudication either in England or in this state, impairing or drawing in question the principles of average contribution, to which I have adverted as deduce-able from them; but the opinions of our own jurists, so far as they have been expressed, confirm and apply them. The rule of salvage in the case of the wreck of the ship off the port of destination, where the cargo is saved and delivered to the consignees, conforms to those principles; for in such case the freight is made to contribute to the expense of saving the goods. Lord Kaim selects that rule as an example to illustrate one of his maxims of equity. The proprietor of the goods, and the owner of the ship, he observes, are in such cases connected by a common interest; the recovery of the goods from the shipwreck was beneficial to both parties; to the freighter, because it restored to him his goods, and to the owner of the ship, because it gave him a claim for freight: and for that reason the salvage ought to be paid by both in proportion to the benefit received. [Kaim’s Pr. of Eq. B. 1. p. 1. C. III. sec. 2. art. 2.]
In the case of Heyliger v. New-York Firemen Insurance Company, [11 John. 85. ] the schooner success bound to the port of New-York, being on shore near the entrance of the port and in a perilous situation, it was agreed between the consignees and agent of the owners of - the vessel and cargo and the insurers of those interests, that immediate means should be taken to save the vessel and cargo if practicable, and in case the vessel was lost, to bring the cargo to New-York, and that the measures so taken, should be without prejudice to the right of either party; the vessel was wrecked and totally lost, hut the cargo was saved and brought up in lighters to New-York, and delivered free of damage
In strictness, that was a case of salvage and not eo nomine an average loss ; the stranding was a disaster which befel the ship from accident, and was not an act of volition, nor was there any sacrifice or exposure of any portion of the common adventure entrusted to the charge and management of the master, for the common safety or benefit of all the interests in jeopardy. But in its leading features and practical results it was very analogous to that. species of general average which is now before us? and the reasonable and just rules applicable to average contribution were applied to it by the court; and if the expenses incurred in saving the cargo from the wreck, when the stranding was not a sacrifice for the general safety and the vessel was totally lost, were a legitimate charge upon that cargo in common with the freight and the materials of the wreck, on the principle, of a joint and common benefit conferred by those expenditures upon the whole, surely the expenses and damages resulting from the removal of goods from the vessel to lighters, and the greater exposure of the goods in the lighters for the purpose of rescuing the vessel and cargo from peril, must have as strong a claim to contribution from the cargo and freight which participated so largely in the benefit of that removal and exposure of the goods that were damaged.
In that case stress was laid upon the agreement of the parties, to attempt the deliverance of the vessel and cargo from the perils that surrounded them, which was relied upon by the counsel as constituting a casus foederis which distinguished it from the common case of the transportation of the goods from the wreck to the port of destination in a substituted vessel and gave it the impress of a case of average and contribution; and the reasoning of the court is based upon that distinction.
But the exception does not extend beyond the vessel or goods so lost by the subsequent peril, all the property which is saved from that peril and ultimately comes to the use of the proprietors, continues liable to its just contribution in general average to the loss incurred, or its rescue from its first jeopardy: I can discover no principle therefore which could entitle the plaintiff to recover back any part of the average contribution he has paid, even if his clain could be viewed as an open question, the disputed item of damages to the goods in the lighters, in the views I have taken of it, would by our own laws, be an average loss, and the rules applied in adjusting the average at Mobile were not in collision with our own.
But I do not consider the point, as an open question. The adjustment made at Mobile is in my opinion conclusive. The case of Lenox v. The United, Insurance Company, [3 Johns. Cases, 178.] was relied upon as showing that a foreign adjustment of an average loss is not conclusive upon the parties. That was the
But I consider that part of the case as overruled by subsequent decisions. In the case of Strong & Havens v. The N. Y. Firemen Ins. Co. [11 John. 323.] the cargo was estimated in the adjustment of the average at the market price in Lisbon, the port of destination, where the contribution was settled, which not being conformable to the rule of adjustment in this state, as established by the case of Leavenworth v. Delafield, [1 Cains, 573.] the defendants insisted that they were not bound by the adjustment at Lisbon, and were liable only for the proportion of general average, to be settled according to the rules adopted here. But the court, after reviewing all the cases, held the adjustment to be conclusive, on the ground that a settlement of the general average at the foreign port, when fairly made according to the laws of the country to which the port belongs, is binding upon the parties, and that it is the duty of the master to cause an adjustment to be made on his arrival at the port of destination, and to enforce the payment of the contribution, and that he has a lien upon the cargo for its proportion.
The court, in the case last cited, do not, it is true, in terms overrule the decision" in Lenox v. The United Ins. Co.; but they do not give it their sanction. The only notice taken of it by the learned and able Judge who gave the opinion of the court, is, that the decision there was against the recovery of the general average, on the ground that the jettison could not by our law be brought into an average loss, but that the effect of the adjustment, if the jettison had, according to the laws of this country, been a proper item in making it up, is not determined. This was indeed a nice shade of difference. In the case in which that decision was reviewed, the adjustment was not conformable to the rule judicially established in this state for the adjustment of average contributions. And it is difficult to perceive a reason for distinguishing between a foreign adjustment which deviates from our laws, in the estimate of the subjects properly made contributory, and one which includes indemnities for subjects that our laws would reject. Each operates to impose charges upon the parties to which they would not be liable on an adjustment of the average in this country, and the principles on which the court place the last decision, equally require that the foreign adjustment should in both cases be conclusive. But the two modern cases of Newman v. Cazalet, and Walpole v. Ewer, to w hich the Judge refers, as upholding his principles, were upon foreign adjustments, which embraced subjects excluded by the English rules. In the first case, which was an adjustment by the Consular Court of Pisa, several items were charged, which, according to the English usage, would not have been allowed. And in the other case, the holders of a respondentia bond had been compelled to contribute to the average loss; and Lord Kenyon held the underwriters bound for the amount of the contribution, notwithstanding that by the laws of England, the lender on respondentia is not lia
The case of Depau v. The Ocean Ins. Co. [5 Cowen, 63.] fully confirms that construction of the rule. In that case, the previous casé of Strong v. The N. Y. Firemen Ins. Co. was cited by the court as deciding that, when a general average is fairly settled in a foreign port, and the insured is obliged to pay his proportion of it, he may recover the amount from the insurers, though the average may have been settled differently abroad from what it would have been at the home port. And on the authority of that case, the court held that the averages then in question, which had been settled at Rotterdam, the port of destination, must govern. One of the objections to those adjustments was, that certain cables procured at Halifax, a port of necessity, in the course of the voyage, and which were' not chargeable as an average loss, were improperly brought into the average and allowed: yet the court held, that the adjustment could not be opened for that cause, but must govern. In that case too, a distinction was suggested between adjustment at the port of destination, and at a port of necessity., and it was contended by counsel that an adjustment at the port of necessity being indispensable, would conclude the parties, but if made at the port of destination, was not conclusive, unless shown to be called for and made compulsory upon the master; but the distinction was disregarded by the court. Must not that case govern this ? The adjustment in this case was made at the port of destination, but which, for all the purposes of this average was a port of necessity, for the loss occurred at that port, and was there adjusted. And if the damage to the defendant’s goods would have been disallowed on the settlement
The cases I have cited were between the merchant and the insurers, but the same rule applies to the relation of ship-owner and freighter. In the case of Leavenworth v. Delafield, where the court establish rules for themselves for the valuation of the different interests to be brought in to average and made contributory to the loss, they apply them to the original owners of those interests, and conclude with the direction that the same course of- adjustment must be pursued between underwriters; showing the opinion of the court that the same rales and principles are applicable to adj usunent between the ship-owner and shipper as between the merchant and insurer; and in the case of Walden v. Le Roy, [2 Caines 263.] the court held that the person entitled to contribution may recover "from the person liable to contribute, and he from his insurer. In most cases of foreign adjustment, the averages are from necessity settled and paid by the parties who are to contribute, without reference to the question of insurance. It would be against the principle and true spirit of the rule to allow the contributory parties who are uninsured to open the adjustment, and tó hold it conclusive upon those whose interests are insured, and upon their underwriters. There can be no solid ground for the distinction: the adjustment must be equally conclusive upon all the persons and interests actually brought ito the settlement of the average,
after stating the facts.
The first point to be determined is, whether this is a case for general average at all.
The principle upon which a general average depends is well established. When expenses are incurred or sacrifices made voluntarily, on account of ship, freight and cargo, and with a .view to the common safety of all, a general contribution must take place provided .the purpose for which the expense was incurred or the sacrifice made is answered. [Phil. on Insurance, 331. 334. Con. Marsh. 536-7-] In the present case, the vessel, freight and cargo
In Con. Marsh. 538, it is laid down, -that if a ship, upon her arrival at the mouth of a river or harbour, be found too deeply laden to get over a bar, or to sail up, and the captain, to lighten her, put part of her cargo into lighters, and those lighters are lost, the owner of the ship and the other parts of the cargo shall contribute. This appears a reasonable doctrine. The loss happened directly in consequence of the act resorted to for the general benefit and safety. In the present case, if the lighters, on board of which the goods were shipped, had remained with the stranded vessel, and had been- lost, or if the goods of the defendant, in the act of being put on board the lighters, had been by accident dropped into the sea and lost, or partially injured,-, there can be no question, that within the principle above stated, it would have formed a Subject of general average. It is not perceived that the transporting of the goods to Mobile, and their sustaining a partial injury only on their way thither, can make any difference in the application of .the rule. Shipping the cargo on board of other vessels, and sending it to the port of destination, then near at hand* was one entire act, resulting from the original design to re
The case of Whitteridge v. Norris, [6 Mass. 182.] which was considered on the argument as analagous to the present, differs from it in the material fact, that in that case the vessel was abandoned by her crew while viewed as a wreck. The property- taken into the boat in which they escaped, was not put there with the intent to contribute to the safety of the vessel, or the remaining cargo; and though the vessel was afterwards saved, the court held there should be no contribution, on the ground, that the property lost was not exposed to hazard with any view to the preservation of the ship; nor. did such exposure in any manner contribute to such preservation. I am of opinion that the defendant is entitled to judgment.
Judgment for the defendant.
[A. L. McDonald, Att’y for the plff. E. Anthon, Att’y for the defts.)
,'N'ote.—Mr. Benecke, in his “ Principles of Indemnity in Marine Insurance,’ has treated this subject with much learning, in his fifth and seventh chapters. He seems to qualify the rule, “ that the loss occasioned by jettison is to be borne “ by the whole, only in those cases where the preservation intended has actually “ been accomplished." He says, (p. 180.) “If nothing be saved, the owner of the “ goods thrown overboard can have no claim upon the owner of the other goods lost; “ because he loses nothing by the jettison, but what would also have been lost “ without it, since his goods, had they remained in the ship, would have shared the “ fate of the rest. But if some goods be saved, the proprietor of the sacrificed goods “ is entitled to a compensation.” This proposition, he says, is confirmed by the opinion of Weijlsen, who expresses himself in the following manner: (§. 33.) “If