The Brewster

95 F. 1000 | D. Cal. | 1868

HOFFMAN, District Judge.

This was an amicable action, brought for the purpose of. settling the respective rights of the owners of the ship Brewster, the shippers of a part of the cargo, and the insurers of ship and cargo. In February, 1867, Haste & Kirk, of New York, shipped on hoard the Brewster, bound for San Francisco, 158 casks of Cumberland coal. The.ship proceeded on her voyage, and in March following encountered such severe weather that she sprung a leak. Jettison had to be made of a portion of her cargo, and the ship returned to New York in April, about two months after she sailed. The cargo was landed and stored, and the ship repaired. That portion of the cargo which was damaged to such an extent as to render it improper to resliip it was sold to prevent a total loss thereof. The casks of coal were wet in consecpience of the disaster. They were landed and stored, and when the ship was ready for sea the shippers of the coal demanded that the same should be reshipped on board, and conveyed to the port of destination, The examination of the surveyors showed that the coal had not only been wet, but bad become very fine in consequence of the dampness, and that there was danger of its igniting from spontaneous eombusfion. It also appeared lhat this class of coal was in danger of igniting at a temperature of 90, or even 75, degrees. As the shippers of the coal refused to receive the same, the master had either to carry it forward, or sell it for account of whom it might concern. It was sold by the master, and brought much less than its value. On the arrival of the ship at San Francisco, she was libeled for nondelivery of the coal, as stipulated in the original bills of lading. It appeared in evidence that this class of coal, when wet, was very liable to spontaneous combustion, and that no prudent. shipmaster would take it on board in such condition, and Ilia! insurers would consider it imprudent to take a risk on a vessel and cargo with such wet coal on board. It also appeared that the coal itself was as valuable when in the wet as in a dry state, was in fact afterwards shipped to Ban Francisco, and sold for its full value, and that the sale thereof by the master of the ship was not for the preservation of the coal, but to prevent danger to the ship and cargo from lire, by reason of its liability to ignite spontaneously. The questions presented were whether the master had a right to sell the coal under the circumstances, and, if so, whether it was To be paid for on general average. The court held that the coal was sold for the general good of the ship and cargo; therefore the ship was not liable for the nondelivery of it, and it was to be accounted for on general average.