Pettyjohn v. Oregon Coal & Nav. Co., 113 P. 438

Pettyjohn v. Oregon Coal & Nav. Co.

113 P. 438 | Or. | 1911

Opinion by

Mr. Chief Justice Eakin.

1. In the circuit court and in this court the insufficiency of the plea seems to have been conceded, and is treated as an answer to the merits. As to the practice upon plea in abatement, see La Grande v. Portland Public Market (decided January 24, 1911) 58 Or. 126 (113 Pac. 25). Therefore, we will treat it as an answer to' the merits, namely, as alleging defendant’s right to retain possession of the goods until the salvage is secured or paid. This brings us to the question whether the facts alleged create a lien on the goods for salvage in favor of the defendant, the owner of the vessel. As between the “salvors” and “salved,” “salvage” applies to the ship, freight, and cargo in all cases where the property was in imminent peril by sea, and the peril is to be ascertained from the circumstances surrounding the vessel and cargo at the time the service is rendered, regardless of the cause of the peril (35 Cyc. 720; 24 Am. & Eng. Enc. Law (2 ed.) 1182; Benedict’s Adm. (4 ed.) §222; Newson, Salv. 1) ; and the question is whether defendant had a lien upon the goods for salvage in favor of the John Paulsen.

2. In case part of a cargo has been jettisoned or expense incurred in saving it, it is the duty of the master *395to make a general average so that those whose property has been saved shall contribute ratably to the owner of the goods which were sacrificed for the commoh benefit; and for that purpose he has a lien upon the cargo and may retain it until the amount is paid or secured: Gillett v. Ellis, 11 Ill. 579; Abbott, Shipp. (13 ed.) 446, 456. But the rule is different in a case of salvage where the lien is in favor of the salvors only, and the owner of the vessel is not personally liable to the salvors for salvage upon the cargo, if occasioned by a peril of the sea. Abbott, Shipp. 717; Newson, Law of Salv. 79; The Raisby, 10 P. D. 114.

3. The cargo is not liable for salvage where the owners of the vessel were responsible for her seaworthiness, and the disaster which made the salvage necessary occurred by reason of unseaworthiness (Abbott, 740).

4. On the same principle salvage payable by cargo owners, in consequence of negligence of the master of the vessel, is recoverable against the vessel. 35 Cyc. 746. See, also, Abbott, Shipp, pt. 3, ch. 4; Benson v. Duncan, 18 L. J. Ex. 169; The Princess Royal, 3 L. R. A. & E. *41.

5. “Dangers of navigation” or “perils of the sea,” as used in bills of lading or with reference to shipping, mean only those dangers which are inevitable, and do not excuse the vessel from liability for loss occasioned by negligence or preventable by the exercise of due care: City of Norwich, 5 Fed. Cas. No. 2,760; Jones v. Pitcher & Co., 3 Stew. & P. (Ala.) 135 (24 Am. Dec. 716); Hill v. Sturgeon, 28 Mo. 327.

6. In Dibble v. Morgan, 7 Fed. Cas. No. 3,881, the shipping receipt provided that the goods were to be delivered in good order, “the dangers of fire at sea or on shore, collisions, and accidents from machinery, boilers, steam, or any other accidents and dangers of the seas, rivers, and steam navigation, of whatever nature or kind soever, excepted.” The question was whether defendant *396was relieved from liability for goods lost through vis major or by reason of any exception in his bill of lading, and it was held that the “dangers of the sea” means unavoidable accidents; that it was incumbent on the defendant to prove that due diligence and proper skill were used to avoid the accident, and that it was unavoidable. In Tuckerman v. Stephens & Condit Transportation Co., 32 N. J. Law, 320, it is held that the burden is on the defendant to show that the accident was by reason, of the perils of the sea. In Dupont Co. v. Vance, 19 How. 162 (15 L. Ed. 584), an action for value of goods jettisoned, the defense was that they were lost by perils of the sea. The court say that the first question is whether the claimant (owner of the vessel) has shown, in support of his defense, that the jettison was occasioned by peril of the sea, “but, if the unseaworthiness of the vessel, at the time of sailing on the voyage, caused or contributed to produce the necessity for the jettison, the loss is not within the exception of perils of the sea.” And it was held that the burden was upon the owner of the vessel to establish the facts that bring the loss within the exception of his bill of lading. To the same effect is Costigan v. Michael Transportation Company, 33 Mo. App. 269. These were general average cases, and not salvage. If, in a salvage case, the owners of the vessel have settled the salvage with the salvors, and claim a general average therefor as an expense incident to perils of the sea, the burden is on them to show that the peril occurred without fault of the master: Gillett v. Ellis, 11 Ill. 579; Costigan v. Michael Transportation Co., 33 Mo. App. 269. In The Delaware, 7 Fed. Cas. No. 3,761, it was held that it was not error not to charge the cargo for salvage where no such point was taken in the answer; the owners of the vessel being responsible for her seaworthiness, and the disaster which made the salvage necessary having occurred through her unseaworthiness.

*397• 7. In this case the burden was upon defendant to allege the facts showing a case of salvage in which the owner of the vessel is entitled to hold the cargo for payment of its share. This the answer does not allege.

8. Therefore, without determining the effect of the failure of defendant to deny any allegations of the complaint, the facts alleged constitute no defense to plaintiff’s right to recover the goods.

The judgment of the lower court is affirmed.

Affirmed.