MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
The law of general average, coming down to us from remote antiquity, is derived from the law of Rhodes, through the law of Rome, and is part of the maritime law, or law of the sea, as distinguished from the municipal law, or law of the land.
The typical case is that mentioned in the Rhodian law preserved in the Pandects of Justinian, by which, if a jettison of goods is made in order to lighten a ship, what is given for the benefit of all is to be made good by the contribution of all. Cavetur ut, si levandœ navis gratiâ jactus mercium factus est, omnium contributione sarciatur, quod pro omnibus datum est. Dig. 14, 2, 1, 1.
Another case of general average, put in the Pandects, and the only one, beside jettison, mentioned in the Judgments of Oleron, or in the Laws of Wisby, is the cutting away of a mast to save ship and cargo. Dig. 14, 2, 1, 4; Oleron, arts. 8, 9; Wisby, arts. 7, 11, 14.
The distinction between voluntary and compulsory sacrifice is well illustrated by another case stated in the Pandects, recognized in the earliest English case on general average,
In the courts of England and America, general average has not been restricted to the cases put by way of illustration in the Rhodian and Roman laws; but it has never been extended beyond the spirit and principle of those laws.
In the earliest case in this court, Mr. Justice Story, in delivering judgment, stated the leading limitations and conditions, as recognized by all maritime nations, to justify a general contribution, as follows: "First, that the ship and cargo should be placed in a common imminent peril; secondly, that there should be a voluntary sacrifice of property to avert that peril; and, thirdly, that by that sacrifice the safety of the other property should be presently and successfully attained." Columbian Ins. Co. v. Ashby, 13 Pet. 331, 338.
In the next case which came before this court, Mr. Justice Grier, in delivering judgment, defined these requisites, somewhat more fully, as follows: "In order to constitute a case of general average, three things must concur: 1st. 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. 2d. 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. 3d. This attempt to avoid the imminent peril must be successful." Barnard v. Adams, 10 How. 270, 303.
There has been much discussion in the books as to whether the right to a general average contribution rests upon natural justice, or upon an implied contract, or upon a rule of the maritime law, known to and binding upon all owners of ships and cargoes. But the difference has been rather as to forms of expression, than as to substantial principles or legal results.
In Wright v. Marwood, in which it was held by the English Court of Appeal that a jettison, by the master, of cattle carried on deck, though proper and necessary for the safety of the ship, did not give a right to general average, Lord Justice Bramwell said: "It is not necessary to say what is the origin or principle of the rule; but, to judge from the way it is
In Burton v. English, in the same court, in which the charter-party stipulated that the ship should be "provided with a deck load, if required, at full freight, but at merchant's risk," and the last words were held not to exclude the right to a general average contribution for a necessary jettison of timber carried on deck, Lord Justice Brett, (since Lord Esher, Master of the Rolls,) in answering the question, "By what law does the right arise to general average contribution?" said: "I do not think that it forms any part of the contract to carry; and that it does not arise from any contract at all, but from the old Rhodian laws, and has become incorporated into the law of England as the law of the ocean. It is not as a matter of contract, but in consequence of a common danger, where natural justice requires that all should contribute to indemnify for the loss of property which is sacrificed by one in order that the whole adventure may be saved. If this be so, the liability to contribute does not arise out of any contract at all, and is not covered by the stipulation in the charter-party on which the defendants rely." 12 Q.B.D. 218, 220, 221.
In the same case, Lord Justice Bowen, with characteristic clearness and felicity of expression, said of the same question: "In the investigation of legal principles, the question whether they arise by way of implied contract or not often ends by being a mere question of words. General average contribution is a principle which comes down to us from an anterior period of our history, and from the law of commerce and the sea. When, however, it is once established as part of the law, and as a portion of the risks which those who embark their property upon ships are willing to take, you may, if you like, imagine that those who place their property on board a ship on the one side, and the shipowner who puts his ship by the quay to receive
As the right to general average may be considered as resting not merely on implied contract between the parties to the common adventure, but rather on the established law of the sea, in the light of and subject to which all owners of ships and cargoes undertake maritime adventures, so the authority of the master may be treated as resting either on implied contract of the parties, or on the duty imposed upon him by the law, as incident to his station and office, to meet the necessity created by an emergency which could not be foreseen or provided for, and to prevent the property in his custody and control from being left without protection and care.
Sir William Scott, speaking of the powers and duties of the master, said: "Though in the ordinary state of things he is a stranger to the cargo, beyond the purposes of safe custody and conveyance, yet in cases of instant and unforeseen and unprovided necessity, the character of agent and supercargo is forced upon him, not by the immediate act and appointment of the owner, but by the general policy of the law; unless the law can be supposed to mean that valuable property in his hand is to be left without protection and care. It must unavoidably be admitted, that in some cases he must exercise the discretion of an authorized agent over the cargo, as well in the prosecution of the voyage at sea, as in intermediate
In the case of The Hornet, reported as Lawrence v. Minturn, 17 How. 100, in which the question was whether a certain jettison of goods was lawful as against their owner, Mr. Justice Curtis, delivering the judgment of this court, spoke of the authority of the master in the threefold aspect, as "imposed on him by the nature of the case," as "derived from the implied consent of all concerned in the common adventure," and as "intrusted to him by the law," saying: "The nature of the case imposes on the master the duty, and clothes him with the power, to judge and determine, upon the facts before him, whether a jettison be necessary. He derives this authority from the implied consent of all concerned in the common adventure. The obligation of the owners is to appoint a competent master, having reasonable skill and judgment and courage; and they are liable, if through his failure to possess or exert these qualities, in any emergency, the interest of the shippers is prejudiced. But they do not contract for his infallibility, nor that he shall do, in an emergency, precisely what, after the event, others may think would have been best. If he was a competent master; if an emergency actually existed, calling for a decision, whether to make a jettison of a part of the cargo; if he appears to have arrived at his decision with due deliberation, by a fair exercise of his skill and discretion, with no unreasonable timidity, and with an honest intent to do his duty, the jettison is lawful. It will be deemed to have been necessary for the common safety, because the person, to whom the law has intrusted authority to decide upon and make it, has duly exercised that authority." 17 How. 100, 109, 110. See also Dupont v. Vance, 19 How. 162, 166, 170.
At the present day, since voyages are longer, and merchants seldom go with their goods, there is the greater reason that upon the captain, selected for his skill and courage, and for his fitness to command the whole adventure, and to decide promptly and justly in cases of emergency, and better acquainted than any one else with the qualities and condition of the ship, and with the nature and stowage of her cargo, should rest the authority and the duty, in case of imminent peril, first taking such advice as he sees fit, to determine finally, so far as concerns the mutual relations of those interested in the maritime adventure, the time and the manner of sacrificing part of the adventure to secure the safety of the rest.
In the leading case of Columbian Ins. Co. v. Ashby, already cited, this court, speaking by Mr. Justice Story, said: "A consultation with the officers may be highly proper, in cases which admit of delay and deliberation, to repel the imputation of rashness and unnecessary stranding by the master. But if the propriety and necessity of the act are otherwise sufficiently made out, there is an end of the substance of the objection. Indeed, in many, if not most, of the acts done on these melancholy occasions, there is little time for deliberation or consultation. What is to be done must often, in order to be successful, be done promptly and instantly by the master, upon his own judgment and responsibility." 13 Pet. 343, 344.
In The Star of Hope, already cited, this court said: "From
If the master does not exercise reasonable skill and judgment and courage in sacrificing goods for the benefit of the adventure, the master and the owner of the ship are each liable to the owner of the goods sacrificed. Barnard v. Adams, 10 How. 270, 304; Lawrence v. Minturn, 17 How. 100, 110, above quoted.
After a voluntary sacrifice of part of the adventure, and a consequent escape of the rest from imminent peril, the owner of the ship, or in his absence the master as his agent, has the duty of having an adjustment made of the general average, and has a maritime lien on the interests saved, and remaining in his possession, for the amount due in contribution to the owner of the ship; and the owner of goods sacrificed has a corresponding lien on what is saved, for the amount due to him. Cutler v. Rae, 7 How. 729, 731, 732; Dupont v. Vance, 19 How. 162, 168-171; Strang v. Scott, 14 App. Cas. 601, 606, 607; 3 Kent Com. 244.
Whether the master is considered as acting under an implied contract between the owners of the vessel and the shippers of the cargo, or as the agent of all from the necessity of the case, or as exercising a power and duty imposed upon him by the law as incident to his office — whatever may be considered the source of his authority — the power and the duty of determining what part of the common adventure shall be sacrificed for the safety of the rest, and when and how the sacrifice shall be made, appertain to the master of the vessel,
In case of the master's death, disability or absence, no doubt, the mate or other chief officer of the vessel may succeed to the authority of the master, in this as in other respects. The Ann C. Pratt, 10 N.Y. Leg. Obs. 193; 1 Curtis, 340, and 18 How. 63.
In Price v. Noble, 4 Taunt. 123, in which a necessary jettison, made after a privateer had captured the ship, had taken out her captain and crew, except the mate and two men, and had put a prize master and crew on board, was held (the ship having been recaptured by the mate, and carried into a British port) to be a ground for contribution in general average, the jettison was made, as the report states, "with the assistance and approbation of the mate;" and the prize master and crew, as the court noted, "had so much better an opinion of the judgment of the mate, than of their own, that they consulted him and intrusted him with the navigation, and the stores seem to have been thrown over by his own individual direction." And Lord Tenterden so understood that case, saying that it was there decided "that the shippers of goods were liable to contribution for stores necessarily and by the advice of the mate thrown overboard, after the ship was captured, and while in possession of the enemy; for the capture, without condemnation, did not devest the property of the owners while a spes recuperandi remained." Abbott on Shipping, (11th ed.) 528.
A German commentator has suggested that, if a peril should be encountered while a pilot has command of the vessel, a case may be supposed in which the pilot might order a sacrifice in contradiction to the master, without depriving the sacrifice of the character of a general average loss. Ulrich, Haverei Gesetze, 6. But no judicial decision has been found, which recognizes a right in the pilot to make a jettison or other sacrifice. The reason for requiring a vessel to take a
The authority of the pilot, as regards general average, was not touched by the decision of this court in The China, 7 Wall. 53, by which a vessel, in charge of a pilot whom she had been compelled by law to take on board, and brought by his negligence into collision with another vessel, was held, upon a libel in rem, to be liable in damages to the owners of that vessel. That decision proceeded, not upon any authority or agency of the pilot, derived from the civil law of master and servant, or from the common law, as the representative of
But if a general average loss could be held to arise from an act of a pilot, without or against the order of the master of the vessel, it could only be because the pilot, by the maritime law, and by reason of his nautical skill and experience, temporarily took the place of the master, and was specially charged with the command and the safety of the whole maritime adventure, and of that adventure only. However it might be with a pilot, there is no case, in England or America, before the one at bar, in which a sacrifice made by a stranger, in no way connected with the navigation of the ship, or with the control or the care of the ship and cargo, as a distinct maritime adventure, has been held to give a right to contribution in general average.
There can be no general average, unless there has been a voluntary and successful sacrifice of part of the maritime adventure, made for the benefit of the whole adventure, and for no other purpose, and by order of the owners of all the interests included in the common adventure, or the authorized representative of all of them. The safety of any property, on land or water, not included in that adventure, can neither
For example, from early times and in all countries, the master has been required, upon arrival of the ship in port, to make, with some of the crew, a protest, upon oath, that the jettison was made for the safety of the ship and lading, and for no other cause. Oleron, art. 8; Wisby, art. 20; 1 Malyne, (3d ed.) 113; Beawes, (4th ed.) 148; 2 Molloy, c. 6, § 2; Marsh. Ins. (5th ed.) 433; Abbott on Shipping, (11th ed.) 526.
The first edition of Arnould on Marine Insurance, indeed — substantially following 2 Phillips on Insurance, c. 15, sec. 2, (2d ed.) 96 — contained this paragraph: "If, with a view to the general safety of ship and cargo, it becomes necessary to damage and destroy another ship, or any part thereof, the loss thereby incurred must, it seems, be made good by a general average contribution. Thus, if a number of ships are lashed together and one takes fire, and the crews of the others unite in scuttling the burning ship for the safety of the rest, the loss of the ship so sunk is said to be a general average loss, to which all those saved thereby must contribute; and the law is the same if a crew, for the safety of their own ship, cut the cable of another." 2 Arnould on Ins., pt. 3, c. 4, (1st ed.) 895, 896. This is not laid down absolutely, but only as "it seems," and "is said."
The authorities there cited, as to contribution for one ship taking fire and scuttled to save neighboring ships, are Casaregis, disc. 46, no. 45; Ordinance of Bilbao, c. 20, art. 21; and 2 Azuni on Maritime Law, c. 3, art. 2. Casaregis states the point as a doubtful one, and the authorities to which he refers are conflicting, and more or less influenced by local law or custom. The Ordinance of Bilbao was a peculiar and local ordinance, apparently not in accord with the general law of Spain. 2 Magens, 400; Stevens and Benecke on Average, (Amer. ed.) 166; Gregorio Lopez, ad Partidas, pt. 7, tit. 15, 1. 12, note 2. And Azuni, speaking by way of illustration only, treats the right to destroy, and the duty to make contribution, as alike in the cases of a burning ship on the sea, and of a burning house upon land.
By our law, indeed, either public officers or private persons may raze houses to prevent the spreading of a conflagration. But this right rests on public necessity, and no one is bound to compensate for or to contribute to the loss, unless the town or neighborhood is made liable by express statute. 2 Kent Com. 338, 339; Bowditch v. Boston, 101 U.S. 16; Taylor v. Plymouth, 8 Met. 462; The John Perkins, 21 Law Reporter, 87, 97; The James P. Donaldson, 19 Fed. Rep. 264, 269. Another instance of a right founded on necessity is the case of The Gravesend Barge, or Mouse's case, decided and reported by Lord Coke, in which it was held that in a tempest, and to save the lives of the passengers, a passenger might cast out ponderous and valuable goods, without making himself
The suggestion of Arnould, in the passage above cited, that a ship, whose crew, for her safety, cut the cable of another ship, must contribute in general average for the value of the cable, is directly contrary to the opinion of Labeo, preserved in the Pandects, and approved by Emerigon. Labeo scribit, si cum vi ventorum navis impulsa esset in funes anchorarum alterius, et nautœ funes prœcidissent, si nullo alio modo, nisi prœcisis funibus, explicare se potuit, nullam actionem dandam. Dig. 9, 2, 29, 3; Emerigon on Ins., c. 12, sect. 14, § 5.
In the case of a collision between two vessels, by the fault of both, the maritime law everywhere, by what has been called rusticum judicium, apportions equally between both vessels the damages done to both. The Catharine, 17 How. 170; The North Star, 106 U.S. 17; The Max Morris, 137 U.S. 1. But if the collision, without fault on the part of either vessel, is caused by inevitable accident, as by the one being driven by a storm against the other, then, although by the law of some European countries the loss is apportioned, yet by our law, as by the laws of Rome and of England, each vessel must bear her own loss, and, as said by Mr. Justice Story, "it is not the subject of apportionment, or contribution, or of general average in any form." Peters v. Warren Ins. Co., 3 Sumner, 389, 394; The Washington, 14 How. 532, 538; The John Fraser, 21 How. 184, 194.
In the later editions of Arnould, by Machlachlan, the paragraph above quoted has been doubtingly retained, and finally omitted, and the following propositions laid down: "The singular law relating to this subject, adopted and observed by all the maritime peoples of Europe, and now also of America," "is unknown to us, except in connection with seafaring adventure." "When the danger is of a total loss of the common adventure, so imminent and conclusive as in the view of a judicious and skilled mariner to admit of but one alternative, and that the alternative of a sacrifice, say of part of the whole, the making of such sacrifice is justified in fact, becomes a duty of the master as agent of all, and is a general average
Mr. Justice Shee, in a note to Abbott on Shipping, after reviewing the statements of many continental writers upon the subject, concludes: "Upon the whole, it is impossible, consistently with the opinion of Lord Tenterden, and with the doctrine of all the writers on maritime law, whose opinions have not been warped by the exceptional legislation or practice of the countries in which they have written, to recognize a rule respecting ship's expenses more comprehensive than the following one: Expenses voluntarily and successfully incurred, or the necessary consequences of resolutions voluntarily and successfully taken, by a person in charge of a sea adventure, for the safety of life, ship and cargo, under the pressure of a danger of total loss or destruction imminent and common to them, give, the ship being saved, a claim to general average contribution." Abbott on Shipping, (11th ed.) 537, note. In Harrison v. Bank of Australasia, L.R. 7 Ex. 39, 48, that statement was quoted as laying down the true rule, although there was a difference of opinion as to whether the facts of the case came within it. See also Robinson v. Price, 2 Q.B.D. 91, 94, 295.
The general maritime law is in force in this country, so far only as it has been adopted by our own laws and usages. The Lottawanna, 21 Wall. 558, 572; The Scotland, 105 U.S. 24, 29; Liverpool Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 444.
Three important decisions in the courts of the United States directly support the position that, in order to give a right to contribution in general average, the sacrifice must have been made for the safety of the common adventure, and for no other purpose. The Mary, 1 Sprague, 17; The John Perkins, 3 Ware, 89, and 21 Law Reporter, 87; The James P. Donaldson, 19 Fed. Rep. 264, and 21 Fed. Rep. 671.
In The Mary, in the District Court of the United States for the District of Massachusetts, Judge Sprague, a most eminent admiralty judge, held that a voluntary sacrifice, made for the
In The John Perkins, in the District of Massachusetts, two schooners, the John Perkins and the Wyvern, having accidentally been enclosed in a large and dangerous field of ice, and being in great peril, and the crews of both vessels having left them and escaped to the shore, except one Nickerson, who remained on board the Wyvern, which was at anchor, he, perceiving the John Perkins drifting towards the Wyvern, and to prevent a collision, cut the Wyvern's cable, and thus prevented the destruction of both vessels; and a libel was filed by him, and by the master, in behalf of the owners, officers and crew of the Wyvern, claiming salvage, and also damages, or else a contribution in general average, for the loss of her cable and anchor. Judge Ware in the District Court, and Mr. Justice Curtis in the Circuit Court on appeal, both held that neither the claim of salvage nor that of general average could be sustained; and Mr. Justice Curtis, reversing in this respect only the decision of Judge Ware, held that there could be no recovery in damages for the value of the cable and anchor. 3 Ware, 89; 21 Law Reporter, 87.
Mr. Justice Curtis declared that the right of contribution in general average had never been, so far as he was aware, and could not be, extended beyond those who had voluntarily embarked in a common adventure; and therefore decided that the cutting of the cable of the one vessel by her crew, to avoid or escape an apprehended collision with the other vessel, made no case for contribution in general average. After saying, "It is certainly true that such a claim, when viewed theoretically, has an equity very similar to, if not identical with, that on which the famous Rhodian law was founded, and out of which the more modern doctrines of the law of general average have grown," he added, "At the same time, it is quite clear that the Roman law never applied the principle between mere strangers," and cited the opinions of Labeo and of Emerigon, above referred to, as being upon "the precise case under consideration, except that the cable is cut by the mariners
That judgment of Mr. Justice Curtis clearly shows that in his opinion there could be no general average, except upon a voluntary sacrifice of part of the common adventure, for
In The James P. Donaldson, in the Eastern District of Michigan, Mr. Justice Brown, then District Judge, and Mr. Justice Matthews, each fully approved and strongly relied on that judgment, and on the principle which governed it, although they differed as to the application of the principle to a claim of general average against a tug for the abandonment of her tow of barges, with the intention, and with the effect, of losing the tow and saving the tug.
In the District Court, Judge Brown said: "It is true there are in this case many of the elements which go to entitle the barges to a general average contribution, as stated in the leading case of Barnard v. Adams, 10 How. 270; still I know of no case wherein the principle of mutual contribution has been extended beyond the ship, her boats, tackle, apparel, furniture, and cargo. I understand the law of general average to be an outgrowth of the law maritime as applied to the carriage of goods by sea. It is never applied to cases of a voluntary sacrifice of property upon land, when made to preserve the property of others from a greater loss." "Indeed, the cases have gone so far as to hold that the parties themselves who commit an act of depredation for the public safety are not liable in trespass." After referring to a number of authorities, he stated his conclusions as follows: "From this review of authorities, it is quite apparent that the doctrine of general average contribution arises from the peculiar relations existing between the ship and her cargo." "The law of general average is confined to those cases wherein a voluntary sacrifice is made of some portion of the ship or cargo for the benefit of the residue, and it has no application to a contract of towage." 19 Fed. Rep. 269, 270, 272.
In the Circuit Court, on appeal, Mr. Justice Matthews,
This summary of the grounds of the two opinions delivered in The James P. Donaldson sufficiently shows that both proceeded upon the fundamental principle in general average, that the sacrifice must be made solely for the benefit of the common adventure, and that the interests of strangers to that adventure neither contribute nor are contributed for.
Doubtless, acts necessary to save the common adventure from an impending peril, or from its consequences, may either be done by the master and crew themselves; or else the master of the ship, or the owner, if present, may, in a proper case, avail himself of the aid of other private persons, or of public authorities, and necessary and reasonable expenses paid for such aid may be a subject of contribution in general average. The Star of Hope, 9 Wall. 203, 227, 234; Gage v. Libby, 14 Allen, 261, 269; Rose v. Bank of Australasia, (1894) App. Cas. 687.
In this country, when a ship is on fire, damage caused to goods in the hold by water, either poured down from above, or let in by scuttling the ship, by the master, or under his order and direction, for the purpose of saving ship and cargo, has long been considered a subject of general average. Columbian Ins. Co. v. Ashby, 13 Pet. 331, 340; 1 Parsons on
By Rule 3 of the York-Antwerp Rules of 1877, adopted while the law of England upon that question was unsettled, and referred to in the charter-party of the J.W. Parker, "damage done to a ship and cargo, or either of them, by water or otherwise, in extinguishing a fire on board the ship, shall be general average; except that no compensation be made for damage done by water to packages which had been on fire." All those rules, like the Glasgow Resolutions of 1860, and the York Rules of 1864, relate only to the subjects of contribution in general average, and do not touch the question by whom the voluntary sacrifice must be made. Lowndes on Average, (4th ed.) appx. U.
The Resolutions of the International Congress at Brussels, in 1888, while they likewise include, among the things considered as subjects of general average, "damage caused to the ship, and to the goods not injured by the fire, as the result of extinguishing a fire taking place on board," lay down, in the first article, as the leading principle of general average, Les avaries communes sont les dépenses extraordinaires et les sacrifices faits volontairement par le capitaine ou d'après ses ordres, pour le bien et le salut commun du navire et du chargement — which may be rendered in English: "General average is an extraordinary expenditure or a sacrifice voluntarily made by the captain or pursuant to his orders, for the common good and safety of the ship and cargo." Actes du Congrès International de Droit Commercial de Bruxelles, (1888) pp. 418, 419.
In Nimick v. Holmes, 25 Penn. St. 366, in which a fire had broken out on a steamboat lying at a wharf, it was by direction of her officers, that steam and water were poured into the hold by means of her own apparatus and hose, and that she was afterwards scuttled. In Heye v. North German Lloyd, 33 Fed. Rep. 60, and 36 Fed. Rep. 705, also, the fire was extinguished by the officers and crew only. In Gregory v. Orrall, 8 Fed. Rep. 287, the floating fire-engines used in putting out the fire were apparently employed by the master and under his control. In Nelson v. Belmont, 5 Duer, 310, 322, and 21 N.Y. 36, the fire-engine companies were hired by the master of the ship, and the question controverted was whether a valuable part of the cargo, previously put by him on board another vessel, was liable to contribute.
In The Roanoke, 46 Fed. Rep. 297, and 53 Fed. Rep. 270, in the District Court of the United States for the Eastern District of Wisconsin, although the fire department took part in extinguishing the fire, everything was done by the direction and with the approval of the master. Judge Jenkins, in overruling exceptions to the libel, said: "It was a selection by the master for sacrifice of that which by the act must necessarily be destroyed." "The master must be presumed to have designed the consequences necessarily resulting from the act directed." "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." 46 Fed. Rep. 299, 300. And his decision on the merits was based upon this postulate: "The master is made the agent, in the law, of the vessel, of the cargo, of the parties owning the cargo and owning the vessel, and given the discretion in
In Whitecross Co. v. Savill, 8 Q.B.D. 653, in the English Court of Appeal, a fire which had broken out in the hold of a ship, while she was lying at a wharf in her port of destination, was extinguished by pouring water into the hold, pursuant to the orders of the master, and it was the consequent damage to the cargo from his act that was held to be a general average loss. Lord Coleridge said: "It must be shown that an imminent peril existed, and that the master, deliberately and for the sake of preserving the adventure, sacrificed that in respect of which contribution is claimed." 8 Q.B.D. 659. And Lord Justice Brett said: "If there is an imminent danger, and if the captain sacrifices part in order to save the rest of the adventure, a claim for a general average contribution arises." "It has been said that the defendant's vessel might have been scuttled; but the expense of raising and repairing her would have entitled her owners to a general average contribution; and because an apparently alternative mode of proceeding existed, the captain cannot be said to have acted unreasonably." 8 Q.B.D. 662, 663.
The members of a fire department, or other persons, under the command of municipal officers of a port, and not under the employment and direction of the master of the ship, are simply executing a public duty, and are not acting, by any implication of contract or of law, for or in behalf of the owners of the ship and cargo. The Mary Frost, 2 Woods, 306; The Cherokee, 31 Fed. Rep. 167, 170; Wamsutta Mills v. Old Colony Steamboat Co., 137 Mass. 471.
Considering how ancient and universal is the law of general average, how frequent the occasions for invoking it under every variety of circumstances, and how diverse the opinions
The first and only case, so far as we are aware, in which a claim of general average was ever made, in any court, for the destruction of vessel or cargo by act of the municipal authorities of a port, without the order or concurrence of the master or commanding officer of the vessel, was in the Supreme Judicial Court of Massachusetts, in Wamsutta Mills v. Old Colony Steamboat Co., (1884) 137 Mass. 471. In that case, a steamship with her cargo having just arrived in the port of New Bedford, and lying at a wharf near other vessels and near buildings, a fire broke out in her hold. The chief engineer of the fire department of the city went to the vessel with firemen and fire-engines, and, acting entirely on his own judgment, without any orders or directions from, or conference with, the officer in charge of the vessel, ordered holes to be cut in her, through which water was poured by the engine into the hold until the vessel sank. The mate and crew were present, but rendered no assistance in extinguishing the fire; and no objection to the use of the water was made by the mate, or by the master, when he arrived. What was done was necessary to extinguish the fire, which, if allowed to burn, would have spread to the neighboring vessels and buildings. A claim of general average was made against the owner of the steamship by an owner of cotton on board, damaged by the water poured into the ship by the fire department.
The court, speaking by Mr. Justice Field, since Chief Justice of Massachusetts, admitted that, "although the steamship
Yet the claim of general average was disallowed, because the fire was not extinguished by the master or by any person in charge of the steamship or her cargo, but by the chief engineer of the fire department of the city, acting not as the agent of the owner of the ship, but under his own public employment, vesting him with authority over all property within the municipality, the burning of which was dangerous; and the essential requisites of a general average loss were stated as follows: "To constitute a general average loss, there must be an intentional sacrifice of a part of the property, for the purpose of saving the remainder from a common peril, or extraordinary expenditures must be incurred for the purpose of saving the property in peril. The authority to determine when a sacrifice should be made, and what property shall be sacrificed, rests with the master or other person lawfully in command of the ship. His right to sacrifice the property of other persons than the shipowner is derived from necessity, whereby, in circumstances of great peril, he becomes the agent of all persons whose property in the common adventure is in peril. If this property is injured or destroyed by strangers to the ship and cargo, who are not employed by the master or other person in command, it is not a general average loss. This is evident, if the act of the stranger is a tort; but we do not see that it makes any difference in principle, if the act of the stranger is justifiable, on the ground of public or paramount right. The distinction between a fire put out by the authority of the master, or other person in command, and one put out by public authority, without regard to the will of the master, we think, is sound. When a ship has been brought to a wharf, so far as it has become
The case at bar comes to this court by appeal from the Circuit Court under the act of February 16, 1875, c. 77, § 1, by which that court is required to state its findings of facts and its conclusions of law separately, and the jurisdiction of this court is limited to the determination of the questions of law presented by the record. 18 Stat. 315. The findings of facts by the Circuit Court are conclusive, and cannot be added to or qualified, by referring to the evidence taken in the cause, or to the opinion of that court, or of the District Court. The Annie Lindsley, 104 U.S. 185, 187; Sun Ins. Co. v. Ocean Ins. Co., 107 U.S. 485, 500; The Gazelle, 128 U.S. 474, 484; The City of New York, 147 U.S. 72, 76.
The leading facts found by the Circuit Court are as follows: The vessel, when the cargo in her hold took fire, was moored in the port of Calcutta, and near other vessels, as is shown by the finding of fact that, as soon as the mate sounded the alarm of fire, "from sixty to seventy men from the crews of the neighboring vessels" came to his assistance, bringing their buckets with them, as well as a force-pump "from a ship near by," and poured water into the hold. Afterwards, the port authorities came with fire-engines, and took the direction of the vessel, and were found by the master, when he returned on board, in charge of her. The port authorities pumped steam and water from their engines into the hold, and moved the vessel from her moorings and put her aground. The master does not appear to have objected to their taking charge of and moving the ship, and any objection on his part would have been futile, for it was clearly within their powers as conservators of the port. The master successfully removed part of the cargo, and desired, and believed it to be prudent and
If the course desired and proposed by the master had been followed, the injuries, either to the cargo or to the ship, or to both, might have been different from those caused by the measures taken by the port authorities; and the difference in the property sacrificed might have affected the adjustment of contribution in general average.
The Circuit Court, indeed, has found, as facts, that "the measures taken by the mate before the port authorities took charge of the ship, and those subsequently taken by the port authorities, were the best available to extinguish the fire, and to save greater loss upon the cargo." But it is not found whether the motive and purpose of the port authorities was to save this vessel and her cargo, or to save other vessels and property in the port; whereas, in order to constitute a general average, the sole object of the sacrifice must appear to have been to save this vessel and cargo. Moreover, by the law of general average, the question what measures were the best and most prudent, the most feasible and available, to extinguish the fire, or, in other words, what part of the maritime adventure should be sacrificed, and in what manner, for the safety of the rest of the adventure, was to be determined by the master at the time of the emergency; and his determination, faithfully and reasonably made, was, so far as affects the right of mutual contribution between the parties to the adventure, not to be overruled by the municipal authorities at the time, or by the court long afterwards.
The result of the principles above stated, confirmed by the authorities above referred to, may be summed up as follows:
The law of general average is part of the maritime law, and not of the municipal law, and applies to maritime adventures only.
The interests so saved must be the sole object of the sacrifice, and those interests only can be required to contribute to the loss. The safety of property not included in the common adventure can neither be an object of the sacrifice, nor a ground of contribution.
As the sacrifice must be for the benefit of the common adventure, and of that adventure only, so it must be made by some one specially charged with the control and the safety of that adventure, and not be caused by the compulsory act of others, whether private persons or public authorities.
The sacrifice, therefore, whether of ship or of cargo, must be by the will and act of its owner, or of the master of the ship, or other person charged with the control and protection of the common adventure, and representing and acting for all the interests included in that adventure, and those interests only.
A sacrifice of vessel or cargo by the act of a stranger to the adventure, although authorized by the municipal law to make the sacrifice for the protection of his own interests, or of those of the public, gives no right of contribution, either for or against those outside interests, or even as between the parties to the common adventure.
The port authorities are strangers to the maritime adventure, and to all the interests included therein. They are in no sense the agents or representatives of the parties to that adventure, either by reason of any implied contract between those parties, or of any power conferred by law over the adventure as such.
They have no special authority or special duty in regard to the preservation, or the destruction, of any vessel and her cargo, as distinct from the general authority and the general duty appertaining to them as guardians of the port, and of all the property, on land or water, within their jurisdiction.
Their right and duty to preserve or destroy property, as necessity may demand, to prevent the spreading of a fire, is
Their sole office and paramount duty, and, it must be presumed, their motive and purpose, in destroying ship or cargo, in order to put out a fire, are not to save the rest of a single maritime adventure, or to benefit private individuals engaged in that adventure; but to protect and preserve all the shipping and property in the port, for the benefit of the public.
In the execution of this office, and in the performance of this duty, they act under their official responsibility to the public, and are not subject to be controlled by the owners of the adventure, or by the master of the vessel as their representative.
In fine, the destruction of the J.W. Parker by the act of the municipal authorities of the port of Calcutta was not a voluntary sacrifice of part of a maritime adventure for the safety of the rest of that adventure, made, according to the maritime law, by the owners of vessel or cargo, or by the master as the agent and representative of both. But it was a compulsory sacrifice, made by the paramount authority of public officers deriving their powers from the municipal law, and the municipal law only; and therefore neither gave any right of action, or of contribution, against the owners of property benefited by the sacrifice, but not included in the maritime adventure, nor yet any right of contribution as between the owners of the different interests included in that adventure.
MR. JUSTICE JACKSON, now absent, took part in the decision of this case, and concurs in the opinion of the court.
Decree reversed, claim of general average for loss or damage by the acts of the port authorities disallowed, and case remanded to the Circuit Court for further proceedings consistent with this opinion.
MR. JUSTICE BROWN, with whom concurred MR. JUSTICE HARLAN, dissenting.
I am compelled to dissent from the opinion of the court in this case. I find myself unable to escape the conviction that
There is in this case a failure to find an important fact, namely, whether the action of the port authorities was taken in the interest of the ship and cargo alone, or in the interest of other neighboring property exposed to the conflagration. In the opinion of the court it is assumed that the barque was moored near to other vessels, from the fact found by the Circuit Court that as soon as the mate sounded the alarm of fire, "from sixty to seventy men from the crews of the neighboring vessels came to his assistance," bringing their buckets with them, as well as a force-pump "from a ship near by," and poured water into the hold. That appears to me very slender evidence upon which to base the opinion that the action of the port authorities was dictated mainly by a desire to prevent a general conflagration, especially in view of the fact that the District Judge in his opinion, which under our rules is sent up with the record in the case, states that "if it appeared in this case, or if the evidence warranted the inference that their measures were adopted in view of any actual or supposed danger to the port, or to other ships, and that they acted differently than if the common benefit of the ship and cargo alone were considered; in other words, if there was any sacrifice of the ship and cargo for the supposed interest of other property, I should consider the case not one of general average. But there is no evidence to warrant any such inference. This ship was far from shore, and apparently threatened no other property. The circumstances do not indicate that there was any conflict of interests between the ship and the shore; or that the port officials in any degree designed to sacrifice, or did sacrifice, any interest of the cargo to the safety of other property. There was no occasion and no motive for their doing so. The most that can be inferred is that there was some difference of judgment between them
It may be true that the facts here stated, not being incorporated in the findings, are not such as can be considered by us upon appeal to this court; but speaking for myself, I think the case should have been remanded for a further finding upon this point, since it is quite possible these facts might be considered as having a bearing upon the result. The opinion, however, is put upon the broad ground that the sacrifice must not only be for the benefit of the common adventure, but must be made by some one specially charged with the control and safety of that adventure, and must not be caused by the compulsory act of others, whether private parties or public authorities. To this I am unable to give my assent.
No authority is cited in support of this proposition except the single case of the Wamsutta Mills v. Old Colony Steam Boat Co., 137 Mass. 471, in which it appeared that the steamship was lying at a wharf, "near other vessels, and near buildings," when a fire broke out in her hold, and that what was done was necessary to extinguish the fire, which, if allowed to burn, would have spread to the neighboring vessels and buildings. The opinion of that court, though perhaps broader in some of its statements than the circumstances of the case called for, carefully distinguishes between cases where action is taken for the protection of the vessel and cargo alone, and those wherein action is taken for the supposed benefit of the public. In delivering this opinion, Mr. Justice Field said "that it was necessary to do what he" (the chief engineer) "did, not only for
I see no reason for criticising the case of the John Perkins, and none for changing the opinion expressed by me in the case of the James P. Donaldson. But it seems to me they have only the remotest analogy to the case under consideration. The first case involved the power of the custodian of a ship, who for the time being represented the master, to bind another ship to contribute to the sacrifice of the cable and anchor of his own ship. The second case involved the right of a tow to recover compensation in general average for a sacrifice made by the master of another ship, namely, the tug by which she was being towed, in casting off her tow line and suffering her to go ashore. In each case there was an attempt to extend the law of general average beyond the ship and cargo engaged in the particular adventure.
A case which seems to me to be more closely allied in principle to the one under consideration is that of The China, 7 Wall. 53, in which this court held, contrary to the English, but conformably to the continental, authorities, that a vessel was liable for the consequences of a collision through the negligence of a pilot taken compulsorily on board, although it was admitted that, if the action had been at common law against the owner, and probably also in personam in admiralty, there
While the master is, under ordinary circumstances, undoubtedly the person to direct that the sacrifice should be made, it was held in Price v. Noble, 4 Taunt. 123, that a jettison made by a prize crew put on board of a British ship was a proper subject for a general average contribution. This was an action by the owners of a ship, which had been captured by a French privateer, and put in charge of a prize master and a part of the privateer's crew, against the owners of the cargo for a general average contribution caused by throwing overboard certain anchors, cables, and other stores. The jury found a verdict for the plaintiffs subject to the question whether, under the law, they were entitled to recover. The argument made in behalf of the defendants was that "every person who puts goods on board a ship, tacitly contracts to intrust their safety to the discretion of the master of the ship, and to abide by his judgment of the necessity of sacrificing a part of the ship or cargo for the preservation of the rest, and, in case of such necessity, to contribute accordingly; but the sacrifice in this case made is not dictated by the master and mariners of the ship, but by strangers, to whom the respective owners of ship and cargo have never delegated the like discretion." Sir James Mansfield held the objection to be untenable, and refused to set aside the verdict, though the mate, who must have been their prisoner, and hence without authority, appears to have concurred in the action of the prize crew.
That damage done by pumping in water, or by scuttling and sinking the ship and extinguishing a fire, is a subject of general average contribution is now too well settled both in
But if the master be engaged in extinguishing a fire by pumping in water, and the damage thereby done subjects the property saved to a general average contribution, I fail to see why he should lose his right to such contribution, if the port authorities, acting under a local ordinance, interfere and take possession of the vessel, and do exactly what he was engaged in doing, but more efficiently and expeditiously. It was for the interest of all parties that the fire should be extinguished as quickly as possible, and if the port authorities had more efficient means for such purposes than the master, and therefore interfered to assist him, it seems to me he should not lose his right to contribution. His loss was no greater than it would have been, if the port authorities had not interfered. The damage to the cargo was evidently much less, so that the shippers were obviously benefited by such interference. Under such circumstances it appears highly inequitable that they should set up a defence which they would not have been able to assert, if their loss had been greater.
If it be true, as assumed in the opinion of the court, that the right to a general average contribution arises, not from the contract of the parties, but from operation of law and upon principles of natural justice, it seems an anomaly to say that one who is in possession of the vessel by act of law is not in a position to make a sacrifice, out of which a right of contribution shall arise. The consequences of the rule announced
Suppose, for instance, a vessel and cargo be discovered abandoned at sea and derelict, and be taken possession of by salvors, who, for the purpose of saving the property, throw overboard a portion of the cargo. Can it be possible that the value of the property so jettisoned should not be estimated in the salvage expenses, and be contributed for by the property thus saved? There can be no question that, under such circumstances, the salving vessel would be entitled to remuneration, but the logical result of the opinion of the court in this case is that the owner of the property thrown overboard would lose its entire value, because the salvors are not agents of the owners of the vessel, and are strangers to the adventure.
In this case there is no finding that the port authorities took charge of the fire against the will of the master or mate, but upon his return on board the master found them in charge. There is no finding that he made objection to this. The only disagreement between him and the port authorities seemed to arise from the fact that the master, after having "removed 552 bales of jute from the barque, desired to remove more; but the port authorities objected and forbade it,
The opinion of the court tends, in every such emergency, to put the master and local authorities in antagonism, to give rise to unseemly conflicts between them, and to prevent the master from availing himself of their superior facilities for extinguishing fires. It seems to me there is no distinction in principle between a sacrifice made by a master and one made by authority of law, provided the common safety of the ship and cargo be the object of their action.
I am authorized to state that MR. JUSTICE HARLAN concurs in this dissent.