The Roanoke
46 F. 297
E.D. Wis.
1891
Check Treatment
Jekkins, J.,

(after stating the facts as above.") The record presents the ■ question whether contribution in general average is sanctioned for damage by water poured upon cargo to extinguish fire on board ship. The principle which underlies the whole doctrine of general average is that a loss voluntarily incurred for. the sake of all shall be máde good by the contribution of all. Insurance Co. v. Ashby, 13 Pet. 331; Hobson v. Lord, 92 U. S. 397. The maxim of the Rhodian law, the foundation of general average, did not in terms extend further than to cases of jettison; but the principle applies to all other cases of voluntary sacrifice, properly made, for the benefit of all. Anderson v. Steam-Ship Co., L. R. 10 App. Cas. 107, 114. The maxim itself, as suggested by one author, is probably an imperfect statement in writing of the principle known to the common law of the seas, illustrating the general principle by a perfect example. To justify general average contribution three things .must concur: (1) A common imminent peril; (2) a voluntary sacrifice; (3) successful avoidance of the danger. Barnard v. Adams, 10 How. 270; The Star of Hope, 9 Wall. 203. The first and third conditions are confessedly here present. The second condition is said to be wanting, because, as is claimed, the cargo destroyed was not “selected” for sacrifice; or, in other words, that the loss was incidental and unintentional, not primary and designed. There must be, it is true, a deliberate sacrifice to appease the exigency of the crisis, as distinguished from the chance result of the operation of the natural elements. I take it, however, that the term “sacrifice,”as known to the maritime law, is used in the sense of giving up or suffering to be lost for the sake of something else, no^ in the sense of an immolation. Was there not here, within the prin ciple of contribution, such designed injury, such deliberate sacrifice? ■Both ship and cargo were in the embrace of total destruction. Deliverance was only possible through extinguishment of the fire. There was certainty that pouring water into the hold to drown the fire would destroy cargo not on fire. That was a necessary result of the *299act. There was the will of man directing the act working destruction to cargo. There was intentional inundation of cargo. There was design to avert the greater loss of ship and cargo, by incurring the minor loss of part of the cargo. That, in my judgment, is equivalent to a voluntary sacrifice, satisfying the conditions of a general average act. It was a selection by the master for sacrifice of that which by the act must necessarily be destroyed. There was, to be sure, no manual selection, no separation of the “scape-goat” from the remainder of the cargo, no particular design to destroy the particular subject. But that is not essential. It suffices if there exist the general design to sacrifice that which would naturally be lost in consequence of the act rendered imperative by the impending peril. The master must be presumed to have designed the consequences necessarily resulting from the act directed. The cargo so necessarily destroyed by the act is, in every equitable sense, selected for sacrifice. Many losses in the nature of jettison are thus borne in general average. As for example, goods exposed in barges to float a stranded ship, and lost in consequence; goods brought upon deck in order to get at others for the purpose of a jactus, and washed overboard, (Benecke, Ins. 213;) damage done to a ship by a tug coming along-side to render salvage service, (Loundes, § 33;) the voluntary stranding of a ship to avoid capture, foundering, or shipwreck, (Fowler v. Rathbones, 12 Wall. 102;) damage to cargo, resulting from such stranding, (Loundes, § 16.) In all these cases there is, in a narrow sense of the term, no design to destroy, no selection for sacrifice. The purpose is to save, not destroy; a lesser peril is incurred to avoid certain loss from a greater one. The act, however, is hazardous, resulting in injury. The results are presumed to have been foreseen; that destroyed presumed to have been selected for sacrifice. The loss is compensated in general average as a necessary consequence of the measure taken for the common safety. I am of opinion that the loss here falls within the conditions of general average contribution. This conclusion is, as I think, supported by the decided weight of judicial authority in America, speaking to the precise question. Nimick v. Holmes, 25 Pa. St. 366; Nelson v. Belmont, 5 Duer, 310, affirmed on appeal, 21 N. Y. 36; Heye v. North German Lloyd, 33 Fed. Rep. 60; Ralli v. Troop, 37 Fed. Rep. 888. It is the settled law of England. Stewart v. Steam-Ship Co., L. R. 8 Q. B. 88; Achard v. Ring, 31 Law T. (N. S.) 647; Schmidt v. Mail Steam-Ship Co., 45 Law J. Q. B. 646; Pirie v. Dock Co., 44 Law T. (N. S.) 426; Wire, etc., Co. v. Savill, 8 Q. B. Div 653. It is the law of France, Belgium, Germany, Italy, Holland, Sweden, Norway, Denmark, and Portugal. (Loundes on General Average, Comparative Table, xxxi. and appendices.) It accords with the York-Antwerp rules of 1877, which, while without the sanction of law, are now generally adopted in marine underwriting, and in foreign bills of lading.

The case of The Buckeye, 7 Biss. 23, decided by Mr. Justice Davis in 1863, is strongly urged as decisive here. The decision there is certainly counter to the conclusion I have reached. The argument of the opinion is that there must exist a particular intention to destroy, and a particu*300lar selection for destruction. Barnard v. Adams, 10 How. 270, 304, cited in support, determines that contribution is not dependent upon any real or presumed intention to destroy, solely upon selection. The Star of Hope, 9 Wall. 203, 233, decided in 1869,—while Mr. Justice Davis was yet upon the supreme bench, and in the decision of which he participated, — determines that if the will of man in some degree contributed to the sacrifice, that is sufficient to constitute the voluntary act or selection within the meaning of the commercial law. There the ship, in imminent danger of destruction from fire, sought safety in an unknown bay. In attempting to enter she grounded upon a reef or bank, the existence of which was unknown to the master. It was said there tha.t the stranding was not only not intentional, but was involuntary and unexpected. But the court answered that, being aware that such a danger was the chief one to be expected, in entering a bay, he deliberately elected to take the hazard rather than subject the common adventure to the imminent peril, and to almost certain destruction if he remained outside; and that it was not possible to hold, under such circumstances, that the will of man did not in some degree contribute to the stranding of the ship. That case goes far beyond the one in hand, and seems to me wholly irreconcilable with the case of The Buckeye. There, was- only possibility without expectation of loss; here, was certainty. The will of man in some degree contributed to the sacrifice that in the.one case wras the possible, and in the other the certain, result of the act determined upon for the common safety. It is with diffidence that I venture to dissent from the decision of The Buckeye. I have halted in opinion whether it is not my duty to yield personal conviction to the judgment of the distinguished jurist then presiding in this circuit; but, considering that that decision stands opposed, as I believe, to the principle established by the supreme court, and to the law of nearly every maritime nation, I have felt at liberty to follow my own conviction in the interest of that uniformity of decision especially to be desired in maritime law. If therein I err, an appellate tribunal can set me right.

The objection, that the act was that of the municipal authorities, without direction or concurrence on the part of the master, is ill sustained in point of fact. The protest discloses that the alarm was given, and the fire department called into action, by the master of the vessel. The action of the firemen was therefore by his procurement. Subsequent flooding was the direct act of master and crew. It becomes unnecessary, therefore, to consider the cases of Wamsutta Mills v. Steam-Boat Co., 137 Mass. 471, and The Mary Frost, 2 Woods, 306, to the effect that property sacrificed by direction of others than the master is not a general average loss. The doctrine of these cases is challenged in Ralli v. Troop, 37 Fed. Rep. 888, 891.

It is lastly objected that neither ship nor owner is liable in general average for the loss in question. This claim is predicated upon Rev. St. § 4282, exempting the owner of a vessel from liability for loss or damage to cargo by reason or by means of any fire happening to or on board, of the vessel without design or neglect of the owner. This provision is first *301found in 9 St. 635, and was enacted in 1851, and is said in Moore v. Transportation Co., 24 How. 1, to have been in consequence of the decision in Navigation Co. v. Bank, 6 How. 344, applying the common-law liability of common carriers to carriers by water. Its provisions are largely borrowed from similar legislation in England. There ship-owners were first exempted from liability in case of loss or damage by fire by the statute of 26 Geo. III., re-enacted in 17 & 18 Viet. c. 104, § 503. The acts of both nations are essentially alike. The courts of England have ruled that the exemption of the statute corresponds with the ordinary exemption from the accidents of navigation, and does not touch liability to contribute towards a general average. Schmidt v. Mail Steam-Ship Co., 45 Law J. Q. B. 646; Crooks v. Allan, 5 Q. B. Div. 38. Considering the previous state of the law, the object to be obtained, and the history of the legislation, there can exist no reasonable doubt of the correctness of these decisions. That in the law of insurance damage by water is attributed to the original peril by fire as a direct and proximate cause does not warrant a construction of the act in question which would seriously unsettle the law of general average, and was clearly without the intendment of congress. Exceptions to libel overruled.