1 Story 603 | U.S. Circuit Court for the District of Massachusetts | 1841
It does not strike me, that, upon the evidence produced by the defendants, it is possible to maintain the doctrine, contended for by their counsel. Nearly every witness, whose deposition is in the case, has testified', that the blubber in the present case is, in his opinion, “catch-tags,” in the .sense of that word, as it is understood in the whaling business. Most of the witnesses have added, that they should have considered, the blanket pieces (as they are called), of the whale, when cut from the whale, and put on the deck of the ship, also as “eatehings.” And some of them have gone further, and asserted, that, according to their understanding, a dead whale, when fastened alongside the ship, for the purpose of being cut up, falls within the same denomination. Now, the question, in this case, is not, what, in the sense of a policy of insurance on “cargo,” would be treated as cargo, whether such goods only, as are stowed under deck, or whether other goods, which are insured, and are ordinarily and properly stowed upon deck, under the usage of a particular trade, are not also to be deemed cargo, with reference to a policy of insurance in that trade; for the word “cargo” does not occur in the present policy. The insurance is upon “outfits,” and upon the “catch-tags” substituted for the outfits in the course of the voyage. Now, the construction of the words, “outfits” and “eatehings,” is, in the absence of any peculiar technical meaning thereof by the usage of trade, a matter of law for the decision of the court; and these words must have the ordinary meaning, belonging to them in the language of common life and common sense, in the absence of any such technical meaning. So far, as I am able to perceive, the testimony of the principal witnesses completely establishes, that, when the blubber, or pieces of whale flesh are cut from the whale, and are on the deck, or at least, when they are stowed under deck, they are in the sense of the trade, “eatehings”; and certainly they are so in the import attributed to the word in common life. What other meaning can we properly apply to “eatehings.” unless it be, that they are things caught, and in the possession, custody, i>ower, and dominion of
As to the other point, I cannot entertain any doubt, that this blubber was as much entitled to, and liable to contribution, in cases of a jettison, as any other property on board. It is property; and if it is of any, the slightest, assignable value, and is sacrificed for the common benefit, it constitutes a claim for general average. It is said, that it is difficult, and indeed impracticable, to ascertain its true and exact value, when thrown overboard. There may be difficulty, and perhaps an impossibility, to ascertain its exact and minute value, for we have no means of weighing it in scales, or fixing its positive price. But the same difficulty occurs in many other cases of insurance; as in cases of injuries to sails, or rigging, or spars, by tempest, or by cutting them away, in cases of jettison; and yet no one doubts, that they must be contributed for according to their value, ascertained by a jury, in the exercise of a sound discretion, upon proper evidence. Suppose, that fruit is insured, and the vessel has a long passage, in which, by ordinary waste and decay, it must suffer some deterioration, and, then, a storm occurs, in which it suffers other positive damage and injury, or there is a jettison thereof; how are we to ascertain, what diminution is to be attributed to natural waste and decay, and what to the perils of the seas? or what was its true value at the time of the jettison? There can be no positive and absolute certainty. The most, that can be done, is, to ascertain, by the exercise of a sound judgment, what, under all the circumstances, may reasonably be attributed to one cause, and what to the other. Absolute certainty, in cases of this sort, is unattainable. All, that we can arrive at, is, by an approximation thereto; and yet no man ever doubted, that such a loss must be paid for, if it is covered by the policy. If, indeed, this blubber, at the time when it was thrown overboard, was entirely worthless, and had no assignable value, it certainly cannot be brought into general average; for, under such circumstances, nothing has been sacrificed, and, of course, nothing is to be contributed for. But this is a matter, which will most properly come before the assessor, who, by the agreement of the parties, is to be appointed to ascertain the amount of the general average, and also of the contributory interests.