77 F. 317 | 2d Cir. | 1896
(after stating the facts). Two questions arise upon the appeal of the insurance company: First. Did the Fortier tobacco sustain any damage, other than the water damage to 64 bales? Second. If it did, can the damage thus sustained properly he made the subject of contribution in general average?
The first question was sharply contested upon the trial in the district court, and, inasmuch as the respondent contends that there was no damage except as to the 64 bales, it becomes necessary to determine the question, irrespective of the truthfulness of the libelant’s ¡theory as to the 'cause of damage, if any existed. The testimony of •witnesses apparently of equal prominence, skill, and experience in the. examination of tobacco, is at entire variance upon the subject;
The question which arises under the libel of the steamship company is whether the tobacco is liable to contribute in general average to the expenses of raising the ship after the tobacco was placed in lighters; the contention of the insurance company being that, after this removal, there was a complete and final separation of all interests between the ship and the tobacco. Immediately before the ship was scuttled, all the tobacco on board was placed on lighters, which remained alongside of the ship for four days, and was then shipped aboard other vessels for New York. All the cargo in the after between-decks was taken out, except some hides. The general question of liability of cargo to contribute in general average after a separation from the ship, was consider (id by this court in Pacific Mail S. S. Co. v. New York, H. & R. Min. Co., 20 C. C. A. 349, 74 Fed. 564, wherein it was shown that the tendency of the English decisions is in favor of a strict adherence to the idea that contribution should cease when common danger has ceased, and that they regard danger to the saved cargo as having ceased when it has been taken ashore to a place of safety, but that thus far in this country a more lax rule has prevailed, and it is held that cargo, though actually separated from the imperiled ship, may still, for the purposes of average, be constructively within it. In this case, the master, after having been engaged in a constant series of efforts to quench the fire, found that the vessel must be scuttled to save her and the cargo in the forward part of the ship. It was manifest that he expected to raise the vessel, with that portion of the cargo still on board, and finish the voyage. For the purpose both of saving as much cargo as possible and of diminishing the aggregate loss which the damaged cargo would bear and the expenses of raising the vessel, nearly all the cargo aft was hurriedly put into lighters. The separation may be considered to have been, not merely for the safety of the tobacco, but also for the benefit of both the ship and the rest of the cargo; and, while the English decisions would not compel this part of the cargo to contribute to the subsequent expenses upon the ship, the facts of the case bring these expenses within the general rules stated in McAndrews v. Thatcher, 3 Wall. 347, which, though they were not absolutely necessary to the decision of that case, are deemed to be controlling upon this court.
The decree of the district court in the libel of the insurance company is affirmed, with costs of this court. The decree in the libel of the steamship company is affirmed, with interest, but without costs of this court.