6 F. Cas. 277 | D. Wis. | 1854
Has this court, in admiralty, jurisdiction in cases of general average? and, if so, is this a case of general average? In England, the court of admiralty has no jurisdiction in such cases. La Constancia, 2 W. Rob. Adm. 487. That court has been confined in its jurisdiction by the common law courts. Such has not been the case in America. Under the constitution of the United States, the district courts are vested with admiralty and maritime jurisdiction, and they have not been restricted within the narrow limits of the English admiralty. Waring v. Clark, 5 How. [46 U. S.] 441; New Jersey Steam Nav. Co. v. Merchants’ Bank of Boston, 6 How. [47 U. S.] 344; The Genesee Chief, 12 How. [53 U. S.] 443; Fretz v. Bull, Id. 466; Cutler v. Rae, 7 How. [48 U. S.] 729. But in the case of The Constancia a substantial requisite to the jurisdiction is asserted, that in all cases of average, it is essential that the tribunal which is to adjust it should have the power to compel all parties interested to come in and pay their quota. The court of admiralty possesses no such power. It is very clear that this court would not entertain this jurisdiction unless all parties in interest were before it, for it could not adjust a general average, which is a proportionate contribution by all.
Jurisdiction has been entertained by the district court for the southern district of New York, in Mutual Safety Ins. Co. v. The Georgia [Case No. 9,981], and in The Packet [Id. 10,654], by the circuit court of the first circuit. The court of admiralty has jurisdiction in cases where the vessel or cargo is subject to a lien created by the maritime law, such as seamen’s wages, bottomry, prize, salvage, etc. In these cases the maritime law attaches an absolute and unconditional lien, and the possession of fhe property is not necessary to its validity. Such liens follow the vessel or cargo into whose hands soever they may pass by title or purchase from the owner. Sheppard v. Taylor, 5 Pet. [30 U. S.] 675. But in general average, the party entitled to contribution has no absolute and unconditional lien upon, the goods or property liable to contribution. Possession may be retained until the general average with which the property is charged has been paid or secured. This right of retainer is a qualified lien, to which the party is entitled by the maritime law; but it depends on the possession of the goods by the master or ship-owner, and ceases when they are delivered to the owner or consignee. It does not follow the property into their hands, nor adhere to the proceeds. Upon re
Bernard v. Adams, 10 How. [51 U. S.] 270, settles the case under consideration conclusively against the libellant. The court in that case again adheres to the decision in the case of The Hope, 13 Pet. [38 U. S.] 331, and again affirms the decisions in Caze v. Reilly, Sims v. Gurney, and Gray v. Wain [supra]. In the opinion by Mr. Justice Grier, it is stated that “The law of general average has its foundation in equity. The principle that what is given for the general benefit of all shall be made good by the contribution of all, is recommended not only by its equity but also by its policy, because it encourages the owner to throw away his property without hesitation in time of need. In order to constitute a ease for general average three things must concur: 1. A common danger; a danger in which ship, cargo and crew all participate; a danger imminent and apparently inevitable, except by voluntarily incurring the loss of a portion of the whole to save the remainder. 2. There must be a voluntary jettison, jactus,. or casting away of some portion of the joint concern, for the purpose of avoiding this imminent peril, ‘periculi imminentis evitandi causa,’ or, in other words, a transfer of the peril from the whole to a particular portion of the whole. 3. This attempt to avoid the imminent common peril must be successful.” It is not necessary to proceed further to show that the Commercial Insurance Company has not brought itself within these requirements. The libel does not present a case for general average.