1. To constitute a voluntary stranding of a vessel, it is not
necessary that there should have been a previous intention to
destroy or injure the vessel, nor is such intention supposed to
exist. It is sufficient that the vessel was selected to suffer the
common peril in the place of the whole of the associated interests
in order that the remainder might be saved.
1. The stranding is voluntary whenever the will of man does in
some degree contribute thereto, though the existence of the
particular reef or bank on which the vessel grounds was not before
known to the master and though he did not intend to strand the
vessel thereon, provided it sufficiently appear that in making the
exposure of the vessel. he was aware that stranding was the chief
risk incurred by him and that it was not wholly unexpected by
him.
3. These principles applied to the facts of this case, and the
stranding held to be voluntary, so as to render the damage to the
ship thereby caused, and all costs and expenses consequent thereon,
a subject of general average contribution.
4. As a general rule, the contributory value of the ship, when
she has received no extraordinary injuries during the voyage and
has not been repaired on that account, is her value at the time of
her arrival at the termination of the voyage. But where, as in this
case, the ship has sustained injuries during the voyage and
undergone repairs, her contributory value is her worth before such
repairs were made. In the absence of other proof on this point, her
value in the policy of insurance at the port of departure is
competent evidence. From this, however, should be made a just and
reasonable deduction for deterioration.
Page 76 U. S. 204
5. The expenses of an
ex parte adjustment made by the
charterers of a ship at the port of delivery are not chargeable in
admiralty on the ship or freight unless the results were adopted
and used in the court below by the commissioner who stated the
adjustment made under order of the court.
6. Repairs cannot be made by the master unless he has means or
credit, and if he has neither and his situation is such that he
cannot communicate with the owners, he may sell a part of the cargo
for that purpose if it is necessary for him to do so in order to
raise the means to make the repairs. Sacrifices made to raise such
means are the subject of general average, and the rule is the same
whether the sacrifice was made by a sale of a part of the cargo or
by the payment of marine interest.
In November, 1855, the firm of Annan, Talmage & Embury
chartered at New York the ship
Star of Hope, the master,
officers, and crew being all employed by the owners. They received
on board of her, at the port just named, a large quantity of
merchandise on freight deliverable at San Francisco, and also
merchandise their own property. They received also, on freight,
payable to them for and on account of the owners, two hundred and
forty-four tons of coal. Among the merchandise shipped by the
charterers and the other shippers (not the owners), were five
hundred casks and packages of brandy and other spirituous liquors,
stowed next the coal, and one barrel and forty-eight kegs of
gunpowder, prepared as "patent safety fuses."
With this cargo on board, the ship sailed from New York in
February, 1856, for San Francisco, being in all respects during the
voyage kept tight, staunch, well fitted, tackled, and provided with
every requisite, and with necessary men and provisions -- all which
the charter party bound the owners that she should be -- except as
hereinafter set forth.
During the voyage, about the middle of April, 1856, the ship
being then on the east side of the southern end of South America,
and in about latitude 46� S., longitude 53� W., the
weather squally and the sea rough, great quantities of smoke and
vapor were observed issuing from the fore and after hatches. After
as full an examination as was possible between
Page 76 U. S. 205
decks and otherwise, all on board had every reason to believe
the ship on fire below, originating as was supposed in the coal by
spontaneous combustion. The hatches were immediately fastened down
and everything made tight in order to check as much as possible the
progress of the fire at least until a port of succor could be
reached. It was known that among the cargo were large quantities of
spirituous liquors, and of the prepared gunpowder already
described, all which were believed by everyone on board to be
highly inflammable and explosive. Great alarm was felt in
consequence, and the destruction of the ship, officers, and crew
was apprehended by all.
The crew refused to continue the voyage, and the captain
determined
properly to make for the Bay of San Antonio, on
the southeast coast of Patagonia, as the nearest anchorage. In
about four days, during which the signs of fire continued to
increase, she arrived off that bay, and
set the usual signal
for a pilot.
In making ready the anchors and getting up the chains from
below, these were found quite hot, and there were other signs of
fire which greatly heightened the general alarm.
Meantime the weather was such, the wind blowing the ship right
on shore, with a heavy sea running, that she could not haul off.
The shore being very rocky and precipitous, she could not have gone
on there without certain and almost instant loss of vessel, cargo,
and all on board. The captain being very unwilling to run into a
bay unknown to him without a pilot, waited about three hours
for one, but none came. The place, it was evident, was
a
wild and desolate bay, without sign of human life. All this
time the indications of fire below, as well as the weather,
continued to grow worse. At length he determined, as the best thing
to be done for the general safety, and especially for the
preservation of the cargo and lives of those on board, to make the
attempt to run in without a pilot, preferring all risks to be
thereby incurred rather than to remain outside in the momentary
apprehension of destruction to all. Under all the circumstances,
the captain was
fully justified in this.
Page 76 U. S. 206
In attempting to enter the bay, the
lead was kept going,
showing successively 8, 7, 6, 5, 4 1/2, and 4 fathoms, and
immediately afterwards the ship grounded, and after striking
heavily remained fast. The reef or bank on which she grounded was
not visible at the time, and the captain was not aware of its
existence,
though her stranding was one of the chief risks he
had assumed in undertaking to run in. The result of the
attempt was that before the ship could be got to sea again, she
sprung a leak and sustained other very serious injuries in her
bottom.
These were such as to fully justify the captain in turning back
with her to Montevideo (as the nearest port) for examination and
repairs, there being no inhabitants at San Antonio and no sign of
human life, and the water taken in by the ship having apparently
extinguished the fire below.
He arrived at Montevideo in the end of April, 1856, and on
removing the cargo found marks of fire on various portions.
The
necessary expenses incurred by the ship at this port to enable her
to resume her voyage, including repairs, unloading,
warehousing, and reloading of cargo &c., were $100,000.
To defray these, the captain, being without credit or means
either of his own or his owners (and there being at Montevideo very
little market for such goods and merchandise as the ship had
aboard), necessarily sold a considerable portion of the cargo. This
sale, both as to the mode and the cargo selected, was managed with
all due care for the interest of all concerned. Of the cargo thus
sold, portions belonged to different parties shipping.
About the 11th September, 1856, the ship left Montevideo, no
unnecessary delay having been made there, and arrived at San
Francisco on December 7, 1856.
The goods and merchandise of the several shippers remaining on
board were in due time and in good order delivered to them.
Upon her arrival at San Francisco, the said Annan & Embury,
and one George Hazzard, who had become the assignees of Annan,
Talmage & Embury, both as to the charter party and as to their
portion of the cargo, and in all respects
Page 76 U. S. 207
the successors in interest of Annan, Talmage & Embury,
claimed and obtained the control of the ship and her cargo until
the delivery of the latter was completed, and they alone collected
and received of the several consignees the freight therefor.
Messrs. Annan, Embury & Hazzard delivered to the several owners
the goods and merchandise respectively, first obtaining from them
the amount of their several contributions to the general average,
and they also received so much of the cargo as was deliverable to
themselves.
Of $36,000, the price and hire fixed in the charter party,
$9,822.20 was paid either by the charterers or their assignees.
The expenses properly and necessarily incurred by the ship from
the day when her course was first changed for San Antonio until the
day she resumed her voyage, the freight due at San Francisco on the
several portions of the cargo not delivered there to the several
owners, the value at San Francisco of the ship and of the entire
cargo, as well as of the portion delivered there, were matters
which were all agreed upon by the parties, though the value of the
ship at Montevideo was not known.
In this state of facts, Annan, the charterers, and fourteen
other parties, shippers, and a sixteenth party, Embury, filed, in
March and April, 1857, in the district court, libels against the
ship, then in the port of San Francisco, Annan & Co. for
$44,700, and Embury & Co. for $10,115.
The libels, except the last, were in the same form, and were for
the nondelivery at San Francisco by the ship of certain quantities
of merchandise shipped upon her at New York, to be delivered, at
the former port to the several libellants respectively, but which
were sold in the course of the voyage by the master at Montevideo
to pay for repairs at that port made necessary by the stranding of
the ship at the Bay of San Antonio.
The answers to all the libels except to that of Embury & Co.
set up substantially that the stranding at the Bay of San Antonio
took place under circumstances which made the damage and all
expenses consequent thereon a subject
Page 76 U. S. 208
of general average contribution by the ship, freight, and
cargo.
The libel of
Embury et al. was for the alleged amount
paid by them as the consignees of the ship at San Francisco, as the
expenses of an average adjustment, made or attempted to be made by
them at that port after her arrival, and of an attempted collection
of the same.
To this last libel the claimant of the vessel demurred on the
ground that the matters alleged did not constitute a cause of
contract within the admiralty jurisdiction. He then proceeded to
deny the principal allegations of the libel and set up that the
adjustment in question was made by the libellants on their own
account, as the assignees of the charterers of the ship (Annan
& Co), and not on account of the ship or her owners, and was
defective, erroneous, and worthless; that at all events the cost of
the adjustment should come into the general average, and the ship
be liable only for her share in the contribution. That the
libellants having, as charterers and consignees of the ship,
delivered the cargo to the several consignees thereof without
collecting the average thereon, should bear the loss. That the
average actually collected by them, and the sum of $30,000 balance
remaining unpaid on the charter of the ship, should be set off.
The court referred the case to a commissioner to report an
adjustment, upon the assumption that the loss and expenses caused
by the stranding of the ship were general average. He did so
report. But in his report:
1. He charged the ship or freight with the expenses of the
adjustment made at San Francisco by Annan, Embury &
Hazzard.
2. He assumed as the basis of his estimate of the contributory
value of the ship her valuation in the policy of insurance at
Boston, deducting what the repairs at Montevideo cost.
3. He brought into particular average or subject to a deduction
of "one-third new for old" certain expenses at Montevideo, which,
though incidental to the repairs of the ship, were either not
themselves a permanent benefit to her or were not incurred for that
purpose. Such as expenses of
Page 76 U. S. 209
1. Surveys, orders, estimates, reports &c.
2. Preparations for making the repairs; labor in heaving her
down; wear and tear of materials used therein; anchors, cordage,
blocks &c.; boat hire &c.
3. Building staging and use of materials therein &c.
4. Expenses of raising funds (
i.e., loss on sale of
cargo) &c.
Upon the coming in of the report, exceptions were filed by both
parties -- by the libellants on the ground mainly that the loss and
expenses were not general average; by the claimant upon grounds
affecting the details just mentioned of the report.
Upon these exceptions and the case stated, the matter was argued
before the district court, which decided that the damage caused by
the stranding of the ship and the loss and expenses consequent
thereon (including the cost of the repairs at Montevideo) was a
subject of particular average, and not of general average, as
contended on behalf of the ship, and held her liable as contended
for by the libellants. Its view apparently was that to make the
case one for general average, the stranding should have been the
result of an intention to effect that particular object. That court
also held the ship liable under the last of the libels -- namely
that of Embury, for the expenses of the adjustment made by the
consignees -- and decreed accordingly. The circuit court affirmed
the decree of the district court.
Subsequently, and before the appeal to this Court, it was
discovered that a serious error had been committed in the amount
inserted in the decree upon the first libel, $26,469. It had been
stipulated between the parties that from any sum found due to the
libellants, Annan, in their libel, should be deducted $26,177.80,
the balance due by them as the charterers of the ship, and the
decree entered for the difference. But a small portion of this
balance was in fact deducted, so that the decree, instead of being
for $26,469, should have been but for $4,291.13.
On behalf of the ship, a motion was made to correct this error
of figures. The court, however, refused to correct the
Page 76 U. S. 210
decree on the ground of the great lapse of time since the entry
of the decree in the district court, and because the alleged error,
if it existed, might be corrected on appeal in this Court.
It appeared also that another large sum, about $14,000, which
should have been deducted from the same judgment for averages
received by the same libellants was never deducted.
Both these errors of figures were attributable to the adjuster
who made up the adjustment for Embury and to whom the casting up of
the amounts awarded in the decree had been subsequently committed
by the ship's agent at San Francisco.
The case was now brought to this Court on these grounds:
1. That the damage to the ship caused by her stranding at the
Bay of San Antonio and the loss and expense consequent thereon were
a subject of general average, and not of particular average, as
decided by the court below.
2. That even if this were not so and they were a subject of
particular average, then the exceptions to the commissioner's
report should have been sustained.
3. That the error of figures in entering the decree in favor of
Annan
et al. should be corrected, by reducing the same to
$4291.13.
Page 76 U. S. 222
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
These are appeals in admiralty brought here by the claimants of
the ship
Star of Hope from a decree of the circuit court
rendered on appeal from a decree of the district court in four
suits
in rem instituted against the ship in the latter
court, three being for the nonperformance of a contract of
affreightment and the other for services rendered and liabilities
and expenses incurred as consignees of the vessel. Twelve other
suits were also instituted against the ship by other shippers for
the nondelivery of their respective shipments, in which no appeals
were taken, as the amount in controversy in the several cases was
less than two thousand dollars.
1. Reference to one of the libels for the nonperformance of the
affreightment contract will be sufficient, as they all contain
substantially the same allegations. Take the first one, for
example, which was filed by the charterers. They describe the
intended voyage as one from the port of New York to the port of San
Francisco; they also allege that the goods were shipped on board
the vessel; that she sailed on the tenth of February, 1856, from
the port of shipment; that on the eighteenth of April following, in
entering or attempting to enter the port of San Antonio, she
accidentally
Page 76 U. S. 223
grounded or stranded upon a bank or shoal there situated; that
she thereby received such injuries that she was obliged, in order
that she might be able to continue the voyage, to put back to
Montevideo for repairs; that the master, after the vessel arrived
there, being without money, credit, or other means to execute the
repairs, sold a valuable portion of the goods shipped by and
belonging to the libellants, of the value of forty-four thousand
seven hundred dollars, and with the proceeds thereof paid for the
said repairs; that the repairs having been thus made, the ship
resumed her voyage and arrived safely at her port of destination;
that by reason of the sale of their goods, the libellants lost the
whole amount sold, and that the master and owners of the ship
neglect and refuse to make restitution.
2. Prior to the filing of the answer, the fifteen affreightment
suits were consolidated and leave was given to the claimants of the
ship to file one general answer to all those libels and also to
file one general stipulation therein for costs and expenses.
Pursuant to that leave, the claimants filed their answer, in
which they allege that the injury and damage to the ship at the Bay
of San Antonio were incurred by the master voluntarily and
deliberately for the general safety, and especially for the safety
of the cargo and the lives of those on board, and that consequently
all loss and damage sustained by the ship at that bay, and all
costs and expenses of the subsequent repairs, and all other
necessary costs and expenses incurred while at Montevideo and in
getting to sea again, together with the costs and expenses incurred
for the wages and provisions of the master, officers, and crew, to
the time when the ship resumed her voyage, are, of right and
according to law, a subject of general average contribution, to be
borne by the ship, her freight, and her cargo and also by the
owners thereof in their just proportions. They also allege that the
goods of the libellants having been sold by necessity to execute
the repairs, are, of right, to be included in the general average,
together with all loss and damage to the libellants in consequence
of the sale at the port of distress.
Page 76 U. S. 224
3. Brief reference must also be made to the libel filed by the
consignees of the ship, as the fourth appeal under consideration is
from that part of the decree relating to that suit. Annexed to the
libel is a schedule setting forth the particular expenses and
liabilities incurred for which the suit is brought, and the
appellants, in response to that claim, allege in the answer that if
any such disbursements were made or any such expenses or
liabilities were incurred as is therein supposed, the same are a
portion of the general average upon the ship, her freight, and
cargo, to be borne by them all ratably, as alleged in the answer to
the other libels.
Both parties consenting, the cause was referred to a
commissioner to take and state an account and adjustment upon the
basis that the damage, loss, and expenses incurred by the ship are
a subject of general average contribution, as contended by the
claimants. Subsequent to that order and before the hearing, the
parties filed the agreed statement of facts set forth in the
record. Although filed subsequent to the order of reference, still
it is quite evident that it was drawn up and agreed to prior to the
order, as one of the conditions of the order is that it shall not
affect prejudicially the agreements of the parties as contained in
the agreed statement.
Other evidence was introduced in addition to what is contained
in the agreed statement, and the commissioner, having heard the
parties, reported his conclusions in writing to the court as
directed in the order of reference. Exceptions to the report were
duly taken by both parties, and they were again heard in support of
the same, but the court being of the opinion that the damage, loss,
and expenses incurred by the ship, as described in the answer and
in the agreed statement, are not the proper subject of general
average contribution, sustained the exceptions filed by the
libellants, overruled those filed by the claimants, and entered the
decree set forth in the transcript. Appeal was taken by the
claimants from that decree to the circuit court, where the decree
of the district court was in all things affirmed. Dissatisfied
Page 76 U. S. 225
with the decree as affirmed, the claimants appealed to this
Court, and still insist that the damage, loss, and expenses
incurred by the ship are the proper subject of general average
between the ship, her cargo, and freight, as alleged in the answer,
which is the principal question presented for decision.
4. Much less difficulty will attend the solution of the question
than is usual in cases of this description, as all the facts
material to be considered in deciding the case are set forth in the
agreed statement signed by the counsel of the respective
parties.
Part of the cargo was furnished by the charterers, but large
quantities of goods were also shipped by the libellants in the
other libels, numbered from two to fifteen, inclusive, and the
owners of the ship also, by the consent of the charterers, shipped
two hundred and forty-four and a half tons of coal on their own
account. They were not interested in the other shipments, nor is it
necessary to describe the goods composing the residue of the cargo
except to say that among the merchandise shipped were five hundred
casks and packages of spirituous liquors, and forty or fifty kegs
of gunpowder, prepared as "patent safety fuses," and the agreed
statement shows that the spirituous liquors were stowed next to the
coal shipped by the owners.
With a full cargo on board, the ship sailed for her port of
destination on the day alleged in the pleadings, and during the
voyage, to-wit, on the fourteenth of April following, it was
discovered that great quantities of smoke and vapor were issuing
from the fore and after hatches of the ship. She was proceeding on
her voyage, at the time the discovery was made, in latitude
forty-six degrees south, longitude fifty-three degrees west, but
the weather was squally and the sea was rough. Precautions such as
are usual on such occasions were immediately adopted: the hatches
were fastened down and "everything made tight" in order to check as
much as possible the progress of the fire, at least until a port of
succor could be reached.
Great alarm was felt, and the fears of all were much
increased
Page 76 U. S. 226
by the fact, well known to all, that the cargo contained
prepared gunpowder and large quantities of spirituous liquors.
Under the circumstances, the crew refused to continue the voyage,
and the master determined, very properly, as the parties agree, to
make for the Bay of San Antonio, on the southeast coast of
Patagonia, as the nearest anchorage, and at the end of four days
the ship arrived off that bay, and set the usual signal for a
pilot.
Throughout that period, the signs of fire continued to increase,
and in getting up the chains so as to be ready to cast anchor
without delay, they were found to be quite hot, and there were
other indications of fire, which greatly heightened the general
alarm. Unwilling to run into a bay unknown to him, without a pilot,
the master set his signal as aforesaid and waited three hours for
one, but no one came, and it became evident that none could be
expected, as the coast was wild and desolate.
Something must be done, as the alarm increased as the impending
peril became more imminent. Haul off the master could not, as the
wind and waves were against any such movement. He could not resume
the voyage for the same reason, and also because the crew utterly
refused their cooperation; nor could he with safety any longer
attempt to "lie to," as the ship was gradually approaching the
shore and because she was exposed both to the impending peril of
fire on board, and to the danger, scarcely less imminent, of
shipwreck from the wind and waves. Nothing, therefore, remained for
the master to do which it was within his power to accomplish but to
run the vessel ashore, which it is agreed by the parties would have
resulted in the "certain and almost instant loss of vessel, cargo,
and all on board," or to make the attempt to run into the bay
without the assistance of a pilot. Evidently he would have been
faithless to every interest committed to his charge if he had
attempted to beach the vessel at that time and place, as the agreed
statement shows that the weather was rough, that the wind was high
and blowing towards the land with a heavy sea, and that the shore
was rocky and precipitous.
Page 76 U. S. 227
What the master did on the occasion is well described by the
parties in the agreed statement, in which they say he at length
determined, as the best thing to be done for the general safety,
and especially for the preservation of the cargo and the lives of
those on board, to make the attempt to run in without a pilot,
preferring all risks to be thereby incurred rather than to remain
outside in the momentary apprehension of destruction to all, and
the parties agree that he was fully justified in his decision as
tested by all the circumstances, although the ship in attempting to
enter the bay grounded on a reef, and before she could be got to
sea again sprung a leak and sustained very serious injuries in her
bottom.
Great success, however, attended the movement, notwithstanding
those injuries, as the water taken in by the ship extinguished the
fire, and the ship remained fast and secure from shipwreck until
the winds subsided and the sea became calm.
Repairs could not be made at that place, and the parties agree
that the injuries to the ship were such as fully justified the
master in returning to Montevideo for that purpose, as that was the
nearest port where the repairs could be made. He arrived there on
the twenty-seventh of the same month, and it appears by the agreed
statement that the just and necessary expenses incurred by the ship
at that port to enable her to resume the voyage were one hundred
thousand dollars, including repairs, unloading, warehousing, and
reloading of the cargo, and that the master, being without funds or
credit, was obliged to sell a considerable portion of the cargo to
defray those expenses.
Repaired and rendered seaworthy by those means, the ship, on the
eleventh of September in the same year, resumed her voyage and
arrived at her port of destination on the seventh of December
following, and the master, without unnecessary delay, delivered the
residue of the shipments in good order to the respective
consignees, as required by the contract of affreightment.
Page 76 U. S. 228
5. General average contribution is defined to be a contribution
by all the parties in a sea adventure to make good the loss
sustained by one of their number on account of sacrifices
voluntarily made of part of the ship or cargo to save the residue
and the lives of those on board from an impending peril or for
extraordinary expenses necessarily incurred by one or more of the
parties for the general benefit of all the interests embarked in
the enterprise. Losses which give a claim to general average are
usually divided into two great classes: (1) Those which arise from
sacrifices of part of the ship or part of the cargo purposely made
in order to save the whole adventure from perishing. (2) Those
which arise out of extraordinary expenses incurred for the joint
benefit of ship and cargo. [
Footnote 1]
Common justice dictates that where two or more parties are
engaged in the same sea risk and one of them, in a moment of
imminent peril, makes a sacrifice to avoid the impending danger or
incurs extraordinary expenses to promote the general safety, the
loss or expenses so incurred shall be assessed upon all in
proportion to the share of each in the adventure. [
Footnote 2]
Where expenses are incurred or sacrifices made on account of the
ship, freight, and cargo, by the owner of either, the owners of the
other interests are bound to make contribution in the proportion of
the value of their several interests, but in order to constitute a
basis for such a claim, it must appear that the expenses or
sacrifices were occasioned by an apparently imminent peril; that
they were of an extraordinary character; that they were voluntarily
made with a view to the general safety; and that they accomplished
or aided at least in the accomplishment of that purpose. [
Footnote 3]
Authorities may be found which attempt to qualify this rule and
assert that where the situation of the ship was such that the whole
adventure would certainly and unavoidably
Page 76 U. S. 229
have been lost if the sacrifice in question had not been made,
the party making it cannot claim to be compensated by the other
interests, because it is said that a thing cannot be regarded as
having been sacrificed which had already ceased to have any value,
but the correctness of the position cannot be admitted unless it
appears that the thing itself for which contribution is claimed was
so situated that it could not possibly have been saved, and that
its sacrifice did not contribute to the safety of the crew, ship,
or cargo. Sacrifices where there is no peril present no claim for
contribution, but the greater and more imminent the peril, the more
meritorious the claim for such contribution if the sacrifice was
voluntary and contributed to save the associated interests from the
impending danger to which the same were exposed. [
Footnote 4]
Such claims have their foundation in equity, and rest upon the
doctrine that whatever is sacrificed for the common benefit of the
associated interests shall be made good by all the interests which
were exposed to the common peril and which were saved from the
common danger by the sacrifice. Much is deferred in such an
emergency to the judgment and decision of the master, but the
authorities everywhere agree that three things must concur in order
to constitute a valid claim for general average contribution:
First, there must be a common danger to which the ship, cargo,
and crew were all exposed, and that danger must be imminent and
apparently inevitable, except by incurring a loss of a portion of
the associated interests to save the remainder.
Secondly, there must be the voluntary sacrifice of a part for
the benefit of the whole, as for example a voluntary jettison or
casting away of some portion of the associated interests for the
purpose of avoiding the common peril or a voluntary transfer of the
common peril from the whole to a particular portion of those
interests.
Thirdly, the attempt so made to avoid the common peril to which
all those interests were exposed
Page 76 U. S. 230
must be to some practical extent successful, for if nothing is
saved, there cannot be any such contribution in any case. [
Footnote 5]
Equity requires, says Emerigon, that in these cases those whose
effects have been preserved by the loss of the merchandise of
others shall contribute to this damage, and commercial policy as
well as equity favors the principle of contribution, as it
encourages the owner, if present, to consent that his property or
some portion of it may be cast away or exposed to peculiar and
special danger to save the associated interests and the lives of
those on board from impending destruction, and if not present, the
moral tendency of the well known commercial usage is to induce the
master to exercise an independent judgment in the emergency for the
benefit of all concerned. [
Footnote
6]
Masters are often compelled in the performance of their duties
to choose between the probable consequences of imminent perils
threatening the loss of the ship, cargo, and all on board and a
sacrifice of some portion of the associated interests in their
custody and under their control as the only means of averting the
dangers of the impending peril in their power to employ. The must
elect in such an emergency, and if they, in the exercise of their
best skill and judgment, decide that it is their duty to lighten
the ship, cut away the masts, or to strand the vessel, courts of
justice are not inclined to overrule their determinations.
Owners of vessels are under obligation to employ masters of
reasonable skill and judgment in the performance of their duties,
but they do not contract that they shall possess such qualities in
an extraordinary degree, nor that they shall do in any given
emergency what, after the event, others may think would have been
best. From the necessity of the case, the law imposes upon the
master the duty, and clothes him with the power, to judge and
determine at the time whether the circumstances of danger in such a
case are or are not so great and pressing as to render a sacrifice
of a
Page 76 U. S. 231
portion of the associated interests indispensable for the common
safety of the remainder. Standing upon the deck of the vessel, with
a full knowledge of her strength and condition and of the state of
the elements which threaten a common destruction, he can best
decide in the emergency what the necessities of the moment require
to save the lives of those on board and the property entrusted to
his care, and if he is a competent master, if an emergency actually
existed calling for a decision whether such sacrifice was required,
and if he appears to have arrived at his conclusion with due
deliberation, by a fair exercise of his own skill and judgment,
with no unreasonable timidity, and with an honest intent to do his
duty, it must be presumed, in the absence of proof to the contrary,
that his decision was wisely and properly made. [
Footnote 7]
Controversies respecting the allowance or adjustment of general
average more frequently arise in cases where the sacrifice made
consisted of a jettison of a portion of the cargo than in respect
to any other disaster in navigation. [
Footnote 8]
Explanations and illustrations upon the subject, therefore,
whether found in treatises or in judicial decisions, are usually
more particularly applicable to cases of that description than to a
case where the vessel was stranded, but the leading principles of
law by which the rights of parties are to be ascertained and
determined in such cases are the same whether the sacrifice made
consisted of a part of the cargo or of a part or the whole of the
ship, as the controlling rule is that what is given for the general
benefit of all shall be made good by the contribution of all, which
is the germ and substance of all the law upon the subject.
Doubts at one time were entertained whether a loss occasioned by
a voluntary stranding of the vessel, even though it was made for
the general safety and to avoid the probable consequences of an
imminent peril to the whole adventure, was the proper subject of
general average contribution, but
Page 76 U. S. 232
those doubts have long since been dissipated in most
jurisdictions, and they have no place whatever in the jurisprudence
of the United States.
Where the ship is voluntarily run ashore to avoid capture,
foundering, or shipwreck, and she is afterwards recovered so as to
be able to perform her voyage, the loss resulting from the
stranding, says Mr. Arnould, is to be made good by general average
contribution, and the writer adds that there is no rule more
clearly established than this by the uniform course of maritime law
and usage. [
Footnote 9]
Sustained as that proposition is at the present day by universal
consent, it does not seem to be necessary to refer to other
authorities in its support, nor is it necessary to enlarge that
rule in order to dispose of the present controversy, but to prevent
any misconception as to the views of the Court, it is deemed proper
to add that it is settled law in this Court that the case is one
for general average, although the ship was totally lost, if the
stranding was voluntary and was designed for the common safety and
it appears that the act of stranding resulted in saving the cargo.
[
Footnote 10]
Undoubtedly the sacrifice must be voluntary and must have been
intended as a means of saving the remaining property of the
adventure and the lives of those on board, and unless such was the
purpose of the act, it gives no claim for contribution, but it is
not necessary that there should have been any intention to destroy
the thing or things cast away, as no such intention is ever
supposed to exist. On the contrary it is sufficient that the
property was selected to suffer the common peril in the place of
the whole of the associated interests, that the remainder might be
saved. [
Footnote 11]
6. Suggestion is made that the act of stranding of the vessel in
this case was not a voluntary act, as the reef where
Page 76 U. S. 233
she grounded was not visible at the time and was unknown to the
master, but the agreed statement shows that in undertaking to run
into the bay, the master knew that the chief risk he had to
encounter was the stranding of the ship, and the precautions which
he took to guard against that danger show to the entire
satisfaction of the Court that the disaster was not altogether
unexpected. As the ship advanced, the lead was constantly employed,
showing eight fathoms at first, then seven, then six only, and so
on, the depth continuing to diminish at each throw of the lead
until the ship grounded and remained fast.
Grant that the master did not intend that the ship should ground
on that reef, still it is clear that he was aware that such a
danger was the chief one he had to encounter in entering the bay,
and the case shows that he deliberately elected and decided to take
that hazard rather than to remain outside, where, in his judgment,
the whole interests under his control, and the lives of all on
board were exposed to imminent peril, if not to certain
destruction. Under these circumstances, it is not possible to
decide that the will of man did not in some degree contribute to
the stranding of the ship, which is all that is required to
constitute the stranding a voluntary act within the meaning of the
commercial law. [
Footnote
12]
Suppose the storm outside the bay was irresistible and
overpowering, still it does not follow that there was no exercise
of judgment, for there may be a choice of perils when there is no
possibility of perfect safety. [
Footnote 13]
Destruction of all the interests was apparently certain if the
ship remained outside, but the master, under the circumstances,
elected to enter the bay without the assistance of a pilot, knowing
that there was great danger that the ship might ground in the
attempt, but his decision was that it was better for all concerned
to make the attempt than to remain where he was, even if she did
ground, and the result shows that he decided wisely for all
interests, as damage resulted
Page 76 U. S. 234
to none except to the ship, and she would doubtless have been
destroyed if she had continued to remain outside of the bay.
[
Footnote 14]
Guided by these considerations, our conclusion is that the loss
and damage sustained by the ship at the place of the disaster, and
the costs and expenses of the repairs, and all the other costs and
expenses as charged in the adjustment, are the proper subject of
general average contribution, as alleged by the claimants in their
answer.
Details will be avoided, as the decree must be reversed and the
cause remanded for further proceedings.
7. Apart from the error in the principle of the decree, there is
a manifest error in the amount allowed in the first case, but
inasmuch as there must be a new hearing and a new decree, the
correction of the error can best be made in the circuit court.
Brief consideration must also be given to the exceptions, taken
by the claimants, to the report of the commissioner, which were
overruled by the court. They are three in number, and they will be
considered in the order in which they were made.
i. That the commissioner erred in charging the ship or freight
with any part of the expenses incurred by the charterers in the
ex parte adjustment procured by them prior to the order of
reference to the commissioner.
Unusual difficulty attends the inquiry on account of the
indefinite character of the exception and the uncertain state of
the evidence, but the conclusion of the Court being that the case
is one for general average, it seems to the Court that those
expenses constitute a matter to be adjusted between the charterers
and the libellants, irrespective of the controversy presented in
this record, unless the results of that adjustment were adopted and
used by the commissioner. Influenced by these suggestions, the
exception is sustained, but the matter is left open for further
inquiry when the mandate is sent down.
Page 76 U. S. 235
ii. That the commissioner erred in assuming that the valuation
of the ship as given in the policy of insurance is the proper basis
of her contributory value in the statement of the amount for
general average.
As a general rule, the value of the ship for contribution, where
she was received no extraordinary injuries during the voyage and
has not been repaired on that account, is her value at the time of
her arrival at the termination of the voyage, but if she met with
damage before she arrived, by perils of the sea, and had been
repaired, then the value to be assumed in the adjustment is her
worth before such repairs were made. Neither party gave any
evidence as to the value of the ship prior to the disaster except
what appears in the policy of insurance, and under the
circumstances it is difficult to see what better rule can be
prescribed than that adopted by the commissioner. [
Footnote 15]
Strictly speaking, the rule is the value of the ship antecedent
to the injuries received, but as that requirement can seldom be met
the usual resort is her value at the port of departure, making such
deduction for deterioration as appears to be just and reasonable.
[
Footnote 16]
No proofs on that subject except the policy of insurance was
offered by either party, and inasmuch as ships are seldom insured
beyond their actual value, the exception is overruled.
iii. That the commissioner erred in carrying into particular
average certain expenses incurred by the master at the port where
the repairs were made, which should have been regarded as the
proper subject of general average.
Considerable difficulty also attends this inquiry for the want
of a more definite statement of the grounds of the complaint. We
think it plain, however, that the exception must be sustained, as
some of the matters charged as particular average, in whole or in
part, ought clearly to have been included
Page 76 U. S. 236
at their full value among the incidental expenses necessarily
incurred in making the repairs, but in view of the circumstances,
we shall not attempt to do more than to state the general
principles which should regulate the adjustment in the particulars
involved in the exception, and leave their application to be made
in the case by the court below, where the parties, if need be, may
again be heard.
8. Whatever the nature of the injury to the ship may be, and
whether it arose from the act of the master in voluntarily
sacrificing a part of it or in voluntarily standing the vessel, the
wages and provisions of the master, officers, and crew from the
time of putting away for the port of succor, and every expense
necessarily incurred during the detention for the benefit of all
concerned, are general average. [
Footnote 17]
Repairs necessary to remove the inability of the ship to proceed
on her voyage are now regarded everywhere as the proper subject of
general average. Expenses for repairs beyond what is reasonable
necessary for that purpose are not so regarded, but it is not
necessary to examine the exceptions to the rule with any
particularity in this case, as the parties agree that all the
expenses incurred were necessary to enable the ship to resume her
voyage.
The wages and provisions of the master, officers, and crew are
general average from the time the disaster occurs until the ship
resumes her voyage, if proper diligence is employed in making the
repairs. [
Footnote 18]
Towing the ship into port and extra expenses necessarily
incurred in pumping to keep her afloat until the leaks can be
stopped are to be included in the adjustment. [
Footnote 19]
Surveys, port charges, the hire of anchors, cables, boats, and
other necessary apparatus for temporary purposes in making the
repairs are all to be taken into the account as
Page 76 U. S. 237
well as the expenses of unloading, warehousing, and reloading
the cargo after the repairs are completed. [
Footnote 20]
Repairs in such a case cannot be made by the master unless he
has means or credit, and if he has neither, and his situation is
such that he cannot communicate with the owners, he may sell a part
of the cargo for that purpose if it is necessary for him to do so
in order to raise the means to make the repairs. Sacrifices made to
raise such means are the subject of general average, and the rule
is the same whether the sacrifice was made by a sale of a part of
the cargo or by the payment of marine interest. [
Footnote 21]
Governed by these rules, it is believed the rights of the
parties may be adjusted without serious difficulty or danger of
mistake.
Decree reversed in respect to each of the four cases before
the Court.
[
Footnote 1]
Arnould on Insurance 770;
McAndrews v.
Thatcher, 3 Wall. 365
[
Footnote 2]
2 Parsons on Insurance 210;
ib. 277; 1 Parsons on
Shipping 346;
McAndrews v.
Thatcher, 3 Wall. 366.
[
Footnote 3]
2 Phillips on Insurance 61.
[
Footnote 4]
Maude & Pollock on Shipping 320; MacLachlan on Shipping 356;
Barnard v.
Adams, 10 How. 270.
[
Footnote 5]
Barnard v.
Adams, 10 How. 303;
Patten v. Darling, 1
Clifford 262; 2 Parsons on Insurance 278.
[
Footnote 6]
Emerigon 467.
[
Footnote 7]
Lawrence v.
Minturn, 17 How. 110;
Dupont
v. Vance, 19 How. 166;
Patten v. Darling,
1 Clifford 264.
[
Footnote 8]
Birkley v. Presgrave, 1 East 227.
[
Footnote 9]
2 Arnould on Insurance 784;
Lewis v. Williams, 1 Hall,
440.
[
Footnote 10]
Columbian Insurance Company v.
Ashby, 13 Pet. 331;
Caze v. Reilly, 3
Washington C.C. 298;
Sims v. Gurney, 4 Binney 513;
Gray v. Waln, 2 S. & R. 229; 1 Parsons on Shipping
372;
Merithew v. Sampson, 4 Allen 192.
[
Footnote 11]
1 Parsons on Shipping 348.
[
Footnote 12]
2 Arnould on Insurance 785; Emerigon 324.
[
Footnote 13]
Sims v. Gurney, 4 Binney 525; 2 Parsons on Contracts
(5th ed) 325, and note
y.
[
Footnote 14]
Rea v. Cutler, 1 Sprague 136.
[
Footnote 15]
Hopkins on Average (3d ed) 104; 2 Arnould on Insurance 812;
Patapsco Insurance Co. v.
Southgate, 5 Pet. 604;
Clark v. United States
Insurance Co., 7 Mass. 370;
Dodge v. Union Insurance
Co., 17
id. 471.
[
Footnote 16]
1 Parsons on Shipping 448;
Mutual Safety Insurance Co. v.
Ship George, Olcott, Rep. 157.
[
Footnote 17]
Abbott on Shipping 601;
Plummer v. Wildman, 3 Maule
& Selwyn 482;
Walden v. Le Roy, 2 Caines 262;
Henshaw v. Insurance Co., ib., 274;
Nelson v.
Belmont, 21 N.Y. 38;
The Brig Mary, 1 Sprague 18.
[
Footnote 18]
Padelford v. Boardman, 4 Mass. 548;
Potter v. Ocean
Insurance Co., 3 Sumner 27.
[
Footnote 19]
2 Phillips on Insurance (3d ed) § 1326;
Orrok v.
Commonwealth Insurance Co., 21 Pickering 469.
[
Footnote 20]
Potter v. Ocean Insurance Co., 3 Sumner 42;
The
Brig Mary, 1 Sprague 18;
Stevens & Benecke
76.
[
Footnote 21]
Orrok v. Commonwealth Insurance Co., 21 Pickering 469,
1 Parsons on Shipping 400.
