This action is brought by the owners of a ship against the shippers and consignees of the cargo to recover freight according to the terms of the bill of lading. The question whether any deduction is to be made from the plaintiffs’ claim is to be determined by the application of well settled principles of law to the peculiar facts of the case.
The general rule is that the ship-owner, in order to earn his freight, must perform his contract by carrying the goods to and delivering them at the port of destination, unless such performance is prevented or waived by the act of the consignee, or unless the goods perish by an intrinsic principle of decay naturally inherent in the commodity itself, the risk of which, whether active in every situation, or only in the confinement and closeness of a ship, rests upon the owner of the goods. Abbott on Shipping, (7th ed.) 406, 428. 3 Kent Com. (6th ed.) 219, 228. The Nathaniel Hooper, 3 Sumner, 554. Clark v. Barnwell,
But treating the contract of affreightment as entire and indivisible often produces hardship and injustice; either by charging the owner of goods with full freight, when the greater part of the goods has been lost by perils of the sea, and but a small remnant is finally delivered; or by refusing to allow any freight to the owner of the ship, when only a small portion of the goods has been lost or omitted to be carried by his fault, and he safely carries the residue to the port of destination, but the consignee there refuses to receive it or to pay freight. The parties therefore, by the terms of the charter party or bill of lading, often modify the contract by providing that freight shall be paid by the cask, or package, or ton ; and when the parties have thus made divisible what would otherwise be entire, so many casks, packages or tons as the ship-owner does not take and carry according to his contract, or as are lost by perils of the sea, may be deducted, and freight recovered for those remaining, and for those only. 3 Kent Com. 227. Bigelow, J., in Sayward v Stevens,
The bill of lading of this ice fixes the rate of freight by the ton, and contains no other provision to modify the application of the general rules of law. The stipulation which recognizes the perishable nature of the article, and provides that “ the hold of the vessel in which it is placed shall not be opened or exposed to the air, unless by stress of weather or wants of the vessel, in which case due protest shall be made, and an account kept of all ice thrown overboard in case of jettison,” raises no implication that if the ice is so exposed, and thereby diminished in bulk, freight should be paid on the amount so lost. The exception of “ natural waste ” does not cover all waste or melting from whatever cause, but only the waste arising from the very nature of the ice itself; and merely affirms what the law would otherwise have implied. The custom to pay freight on the amount of ice put on board, without deduction for the necessary waste on the voyage, accords with the terms of the contract and with the general rules of law.
It is agreed that in this case the melting and loss of ice were occasioned in part by the delay resulting from putting into port in consequence of perils of the sea, and in part by admitting the air into the hole where the mast was taken out. The waste, decay or deterioration of goods in the hold of a vessel, though aggravated by protraction of the vryage in consequence of meeting with perils of the sea, is still, if those perils do not otherwise operate upon the goods, attributable to the nature of the goods, and not to the perils of the sea, as the proximate and efficient cause. Baker v. Manuf. Ins. Co.
But the diminution in bulk from necessary exposure to the ail and climate, in order to repair injuries which the ship had suffered from perils of the sea, was directly attributable to such perils, as much as if a portion of the cargo had been washed out by the waves, or thrown overboard to enable the ship to ride safely in a storm. The exception of “ natural waste ” does not cover the. destruction of ice by this extraordinary exposure for the purpose of making necessary repairs; just as it has been held by this court that insurers declared in the policy to be “ not liable for ice melting in consequence of putting into port” were not thereby exempted from loss by the necessary unlading of the ice to examine and repair the vessel. Tudor v. New England Ins. Co. 12 Cush. 554. If indeed this contract of affreightment had been entire and the freight estimated at a gross sum for the whole cargo, this diminution also would not have reduced the amount of freight due after transportation of the residue to the port of destination and delivering it there. But the freight was payable by the ton, and the contract of affreightment thus made divisible; and therefore on that portion of the cargo which was lost by opening the hold, and for that reason not carried to the port of destination, no freight is due.
As the waste on the voyage from the port of departure to the port of repair did not affect the claim for freight, the cargo is to be estimated at the latter port as if it had still been four hundred and six tons complete; then such proportion of that number of tons, as the amount of ice melted and lost by the opening of the hold for the purpose of necessary repairs of the ship bears to the quantity of ice on board when such repairs were begun, is to be deducted from the whole number of four hundred and six tons; and on the residue, so computed, inasmuch as no further deduction is to be made for the waste of the ice on the
The second action was an action of contract for general average against the owners of the brig Cascatelle by the shippers and consignees of the cargo of ice. This case was submitted to the judgment of the court upon the same statement of facts as the first case, and argued at the same time; and it was agreed that, if the plaintiffs were entitled to recover anything, it should be referred to an assessor to determine the amount under the direction of the court.
J. C. Dodge, for the plaintiffs.
H. C. Hutchins, for the defendants.
In order to constitute a general average upon ship, cargo and freight, there must be a common peril impending over the whole, a voluntary sacrifice of part for the purpose of avoiding that peril, and thereby a common benefit to the residue ; and then in equity and justice, and by the express rule of the Rhodian law, preserved in the Pandects, from which the maritime law of all civilized nations on this subject is derived, all must contribute in compensating for the sacrifice by which the common peril has been escaped. According to all the authorities, any damage arising immediately from the act of sacrifice — as if in cutting away a mast, or throwing over part of the cargo, other parts of the cargo are injured — forms part of the general average; for, as is well said in the Digest, What difference does it make to the owner, whether his goods are lost by jettison, or are injured by being laid bare ? Quid enim interest, jactatas res meas amiserim, an nudatas deteriores habere cceperim ? Dig. 14, 2, 4. Molloy, bk. 2, c. 6, § 8. 2 Valin, 165, 167. Emerigon des Assur. c. 12, sect. 41, § 4. 3 Kent Com. (6th ed.) 235. 2 Dane Ab. 112. 2 Arnould on Ins. 890. And the fact that the goods injured are perishable in their nature does not exclude from the general average the immediate consequence of the act done for the common
If a vessel is injured by perils of the sea, and puts into a port of distress, extraordinary expenses there incurred, or property there sacrificed, for the sole purpose of enabling the ship to prosecute her voyage, deliver her cargo, and earn her freight, are voluntarily incurred for the common benefit, as much as a sacrifice of cargo by jettison, or a cutting away of the mast at sea to right the vessel; and upon the question whether the expenses in port are matter of general average, it is immaterial whether the loss or injury which obliged the ship to put into port was or was not of a like character. 2 Phil. Ins. § 1320. Hall v. Janson. 4 El & Bl. 507, 508.
The sacrifice or expense must indeed be for the common benefit, in order to bring it within general average ; and repairs on the ship, which are necessary to enable the owner to perform the contract of affreightment, and which enure to his benefit by increasing the permanent-value of the vessel, are not a subject of contribution. Padelford v. Boardman,
Injury to perishable goods by their own intrinsic decay during the detention at the port of repair is not a voluntary and extraordinary sacrifice for the common benefit of all the interests, is no more a subject of general average than the ordinary wear and deterioration of the ship would be, and falls within the maxim of res perit domino. 1 Valin, 669. 2 Valin, 164. Emerigon des Assur. c. 12, sect. 39, § 8. Stevens & Benecke, (Amer. ed.) 132. Libby v. Gage, ante 265, 266. The Brig Mary, 1 Sprague’s Decis. 17. Bond v. The Superb, 1 Wallace, Jr., 355.
The only claim made by the plaintiffs in this action is for a contribution in general average for the ice lost by opening the hold to put in a foremast at the port of repair. The defendants rely upon the two cases last above cited as conclusive authorities against this claim. u But upon examination it is clear that neither of them can be so regarded. In each of them, perishable goods which had already begun to decay were removed from the ship, and there was no evidence that the removal caused any injury to the goods. In The Brig Mary, the mast had been cut away, and it was alleged, but not proved, that salt water was thereby lét in, which injured the cargo; the cargo was afterwards landed and stored, not merely in order to repair the ship, but because the cargo itself was so much damaged that it could not hare remained on board, and after its landing was destroyed by fire ; and Judge Sprague said that if the cargo had
The bill of lading in this case recognizes the perishable nature of the cargo, and the duty of the ship-owner not to open the hold except in case of necessity, and then to keep an account of any ice jettisoned. If it had affirmed a right of general average in case of jettison, it might possibly, according to the dictum of Lawrence, J., in Jackson v. Charnock, 8 T. R. 514, have excluded that right in all other cases. But it contains no such qualified affirmance, and leaves the general average to be made up by the ordinary rules of law. '
It is agreed as a matter of fact that it was necessary to take out the old mast and put in a new one, and that there was some melting and loss of ice, by admitting the air into'the hole where the mast was taken out, and also by the delay occasioned by putting in for repairs. For the loss occasioned by the natural waste of the article during the delay, the ship-owner, by the gene -al rule of law. as well as by the terms of the bill of ladings