270 F. 618 | E.D. Pa. | 1921
This cause was tried on the theory that there was nothing other than a question of fact involved.
The cause of action which the libel discloses is that the libelant shipped a cargo of logwood by the schooner respondent, a portion of which only was delivered. The libelant makes claim for the value of the part undelivered. The finding is made of the loss as shown by the libelant. The loss was caused by the throwing overboard of the deckload of logwood which the schooner was carrying and about ten tons taken from the hold. This was done to lighten the vessel so as to get her off the reef upon which she had been stranded. Property belonging to the vessel was also thrown overboard for the same purpose.
The defense interposed is that the case is one of general average. This seems to be conceded by the libelant, except as to the shares later mentioned.
The schooner left a port in Jamaica bound for Chester, Pa. This gave her navigator a choice of routes, one of which would take him to the eastward of Cuba and the other to the westward. Pie chose the western passage. The presence of reefs in the neighborhood of the one on which the schooner struck is shown on the chart, and are well
To whatever conclusion the mind might otherwise be led, we do not feel at liberty to make a finding of no negligence in view of the rulings by which we are controlled in Tarabochia v. American Sugar Refining Co. (D. C.) 135 Fed. 424, and Pittsburg & Erie Coal Co. v. George Urban Milling Co., 239 Fed. 271, 152 C. C. A. 259.
In the first of these cases Judge McPherson rejected the theory of the master that the vessel had been carried out of her course by a change in the current due to meteorological disturbances, and found that the error of navigation was that of the helmsmen in not steering by the courses which were given them.
In the latter case the Court of Appeals for the Second Circuit found the error to have been that of the master in not having made sufficient allowance for the strength of a current, the presence and set of which was known to all ordinarily well-informed navigators.
In both of these cases there was a finding of negligence, Judge Hazel, in the latter case, being reversed.
Before the passage of the Harter Act (Comp. St. §§ 8029-8035) the vessel owners would without doubt, under our law, have been answerable for the loss, and in all jurisdictions would have been so answerable in the absence of a charter party stipulation otherwise.
It may be premised that the right of the cargo owner to recover for lost cargo rests upon an entirely different basis, and has a wholly different origid from that of the right to general average. The first is contractual or springs from a duty arising out of a contractual relation; the second, as already stated, rests upon purely equitable considerations, backed perhaps by a policy of the law.
In reversing this ruling, however, the Supreme Court laid down a different doctrine,'holding that.all the act did was to relieve the shipowner from liability under certain conditions, but not to give him anything. The Irrawaddy, 171 U. S. 187, 18 Sup. Ct. 831, 43 L. Ed. 130.
This ruling was at first, in its turn, likewise misinterpreted as meaning that the Harter Act had no application if the stranding was due to the negligence of the master or crew. This was on the ground that such negligence was in law the negligence of the owners.
This misapprehension of the Irrawaddy Case was corrected by the Supreme Court in the very fully argued and well-considered case of The Jason, 225 U. S. 32, 32 Sup. Ct. 560, 56 L. Ed. 969.
It was there pointed out that the Irrawaddy Case simply answered a certified question to the effect that without a charter party stipulation vessel owners could not have the sacrifice they had made enter into a general average computation, and the ruling as a precedent was limited to this proposition.
The court adhered, however, to the ruling in the Irrawaddy Case that the act did not of itself give the right holding that it simply permitted the parties to so contract, or, at least, it was held that the Irrawaddy Case (in which there was no stipulation) was not in conflict with the allowance of the right to a general average in a case in which there was such a stipulation.
We do not feel at liberty to speculate whether this means a return to the doctrine not accepted by the majority opinion in the Irrawaddy Case and an approval of the doctrine advocated by a minority of the court.
In the instant case there is no charter party stipulation, and a finding of negligence and of the liability of the schooner and a denial of the right to the benefits of a general average apportionment of loss follows in accordance with these rulings.
This renders it unnecessary to go into the question of the liability in any event of that share in the vessel which belongs to the master and whether his negligence differentiates his case from tHat of the other owners, as was held in The Humarock (D. C.) 234 Fed. 716. The ruling in this case assumes the exemption of the shipowners other than the master who was found to have been guilty of negligence. Although decided after the above cases, the opinion does not refer to them.
The proper ruling of the questions involved in the present cause depends upon the acceptance or rejection of the following propositions:
(1) Before the Harter Act the ship was liable to the cargo owner for loss of cargo due to an error of navigation. This liability was based upon the contract of safe carriage or upon the tort which sprang from the failure of the duty which arose out of the contractual relation of owner and carrier.
(2) There was also a right to and correlative duty of contribution to repair a loss due to the voluntary sacrifice of property for the common benefit of all exposed to a common danger. Ship and cargo owner had the like right and owed the like duty, but the right did not belong to one to whose negligence the necessity for the sacrifice was due.
(3) The effect of the Harter Act was not of itself to make of shipowners innocent parties to the stranding of their ship caused by the negligence of master or crew so as to make of the sacrifice of property in order to save ship and cargo a case of general average.
(4) The effect of the act was, however, to make it permissible for. the parties to contract that the doctrine of general average should apply in the event of the sacrifice of property to save ship and cargo in case of a stranding due to an error of navigation, even if the error was the result of negligence.
In a very substantial, although not in the strictly literal, sense, this makes shipowners answerable for errors of navigation (if the errors are due to negligence) and permits them to agree themselves out of the consequences of such negligence, at least pro tanto, notwithstanding the fact that upon certain conditions (which in the instant case were fully met) the third section of the Harter Act exempts them from all liability for the consequences of errors without qualification, and the earlier sections forbid them to contract against liability for negligence. As already observed, the act was at first read as one absolving shipowners from ‘ liability for the consequences of such errors (although due to negligence), and placing them in the relation of innocent parties to the loss incurred, and because of this making the sacrifice of property to avert further loss a case of general average.
This is evidently the view taken by the District Court (Brown, J.) in the Irrawaddy Case, and also by the dissenting minority of the Supreme Court when the decree of the District Court was reversed.
Under the adjudged cases cited we see no escape from the conclusion that the necessity for the sacrifice of the part of this cargo which was not delivered arose out of a dangerous situation resulting from the negligence of the master, which was in law the negligence of the shipowners, and that the defense that the case is one of general average must be denied them.
Proctors for libelant do not dispute the right of the other owners to successfully set up the defense that this - case is one of general average, if the share of the vessel belonging to the master is held to be answerable for the loss. This seems to be due to the opinion which, for some reason, they entertain that the libelant will be paid in füll if the share of the master in the vessel is held to be answerable to them.
With findings of the amount of the loss, of negligence, and a denial of the defense of general average thus made by the court, the parties can doubtless agree upon a form of decree in accordance with this opinion. Leave is granted to submit a draft of such decree; we retaining control of the cause to make a decree in case the parties do not agree.
Sur Motion for Reargument.
All the questions involved in this cause were fully discussed on this motion. In denying it, we have been asked to develop more at length the line of thought which has led us to the conclusion reached.
The proctors concerned have argued these questions with entire frankness, as well as notable ability. The frankness is induced by the fact that the general principle of maritime law involved is of more importance to the clients than the sum recovered.
We accede to the request to file a supplemental opinion, but, as the cause has so many phases and its legal merits may be viewed along so many different angles that an adequate discussion of all of them would be well-nigh interminable, we will restrict the further discussion to the questions which are controlling.
As a beginning, the discussion will be limited to the broad question of the measure of liability of shipowners for a’ partial loss of cargo where the cargo lost was sacrificed to save ship and remaining cargo from a-stranding due to the negligence of the master. It is agreed on all hands that the cargo owners may recover a ratable contribution, but the narrower question is: May they recover their full loss or damage notwithstanding the Harter Act?
There is also agreement that the ship cannot be held responsible for errors or faults in navigation, etc., by the very terms of the act.
Our conclusion is that the proximate cause of the loss of cargo was not any error in navigation, but the throwing of the cargo overboard.
It follows that the only defense to the action to recover the loss is the right of the ship to a contribution from the cargo owners to help meet this loss, and, in the absence of a charter party stipulation for the allowance of this right, the defense fails, and the libelant is entitled to recover its whole loss undiminished by any general average contribution.
It only remains to inquire whether the cases in which the Harter Act has been construed give support to this line of reasoning. Of these cases, it is sufficient to cite Chrystal v. Flint (D. C.) 82 Fed. 472; Tarabochia v. American Sugar Refining Co. (D. C.) 135 Fed. 424; The Irrawaddy, 171 U. S. 187, 18 Sup. Ct. 831, 43 L. Ed. 130; The Jason, 225 U. S. 32, 32 Sup. Ct. 560, 56 L. Ed. 969.
It is true that in none of these cases was thé libel based upon the contract of carriage in the sense in which a common-law action would have been brought for nondelivery of a part of the cargo. In every case the cargo owner was asserting his right or resisting the like claim of the ship to contribution under the law of general average.
We do not see, however, that this difference between those cases and the instant case affects the principle laid down or the construction there given to the Harter Act.
It is also true that in every one of the cited cases the cargo owners were claiming less than that to which they would have been entitled in accordance with the conclusions we have reached, nor is there any direct intimation that they were entitled to more. We think, however, that this moderated claim was made because of the wrong construction at first given to the Harter Act, and that there was no ruling that cargo owners were entitled to more because no question of their right to more was raised.
The construction which at first was given to the Harter Act up to and including Chrystal v. Flint was that after the act the negligence of master or crew manifested in some error or fault in navigation was no longer the negligence of the shipowners. It followed from this that the shipowners were thereafter deemed to be innocent parties to a stranding, although due to the negligence of master or crew, so that cargo and ship owners had the like reciprocal right to and duty of making contribution by way of general average.
This established the corollary that all to which the cargo owner was entitled was this right of general average.
There is small wonder that it was generally accepted by the admiralty bar, and was attacked only in respect to its allowance of the claim of the shipowner for reimbursement for his losses.
We cannot, however, now accept this view of the effect of the Har-ter Act, because this is the very view which the majority opinion in the Irrawaddy Case (which reversed Chrystal v. Flint) refused to accept. We are' taught by the Irrawaddy Case that the Harter Act of itself conferred no rights whatever upon shipowners, except inferentially the right to contract in case of negligence (which before they could ■ not do) for the right to a general average contribution, and that all which the act of itself did was to relieve the ship under certain circumstances of a liability which before existed.
In the absence of a contract, therefore, the doctrine of general average contributions was left as it was before, and it could not be invoked by the shipowners in case of a stranding due to the negligence of the master or crew, although this negligence was manifested in a fault in navigation. The shipowners were in consequence denied the right to put their, sacrifices in hotchpotch.
The Jason Case (in which there was a contract) merely emphasizes the grounds of the ruling in the Irrawaddy Case, and makes clear the change in the policy of the law in respect to contracts for a general average.
The Irrawaddy and other cases were cases of a claim by the ship to pro tanto recoup itself for the sacrifice it had made. None of them involved the question of the obligation of the cargo owner to bear part of his own loss by way of contribution. There is here, of course, a difference, but we see in principle no distinction. The rule seems to go to the full length that a party whose negligence has caused a danger to arise, and is thus responsible for the necessity of a sacrifice to avert it, cannot claim any measure of relief by way of any contribution from an innocent party.
Some of the cases employ a verbiage which suggests the distinction, but it will be found that this verbiage was used not to note the distinction, but to fit the facts of the case ruled.
These cases and the text-books which deal with the question are cited in Chrystal v. Flint (D. C.) 82 Fed. 472. Lownes, at page 32 et seq. (5th Ed.), makes the general doctrine clear.
This opinion has already reached such length that we cannot consider the several objections urged to giving to the Harter Act the effect given to it by these cases. It is enough to know that it has been so construed.
All the objections now urged without doubt received full consideration when the rulings were made.
The argument addressed to us (for which the Strathdon Case [D. C.] 94 Fed. 206, and the Jason Case are cited) has no support in either of these cases except so far as they are based upon the doctrine in Chrystal v. Flint, which was repudiated by the Supreme Court.
Reargument refused.