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December 1, 1850


THIS was a writ of error to the Circuit Court of the United States for the Southern District of New York. The defendants in error brought an action in the court below to recover contribution in general average, on account of the alleged voluntary stranding of the ship Brutus owned by them, from the plaintiffs in error, as owners of twenty bales of nutria skins, which formed a part of her cargo at the time of the stranding. The facts are minutely stated in the opinion of the court. The cause was argued orally by Mr. Boardman, for the plaintiffs in error, and printed arguments were submitted by Mr. Webster, for the plaintiffs in error, and Mr. Lord, for the defendants in error.

The opinion of the court was delivered by: Some of the cases, however, may be looked into with advantage. The Supreme Court of New York, by Kent, Ch. J., in Bradhurst v. The Columbian Ins. Co., 9 Johns. (n. Y.), 14, decided that, if the ship be wholly lost by the act of running her ashore, compensation in general average can never be due to the owners, or, as it has been technically expressed, that in all cases of stranding, the salva navi is indispensable to a recovery. 13 Pet., 334. This decision was made in 1812. It gave rise to much discussion. Mr. Justice Story, in his note to page 349 of the fourth American edition of Abbott on Shipping, took ground against the doctrine of Kent.

Mr. Boardman, for the plaintiffs in error.

First Point. When the stranding of a vessel is inevitable, and her master, in the ordinary exercise of his duty as a navigator, directs her course to that part of the shore which he supposes to be the safest for the vessel, such act of the master does not render the stranding a voluntary sacrifice, or entitle the ship-owner to contribution from the owners of the cargo in general average.

I. The following authorities may be cited in support of the judgment below, but they do not sustain it. Columbian Ins. Co. v. Ashby, 13 Pet., 337; Sims v. Gurney, 4 Binn. (Pa.), 513; Reynolds v. Ocean Ins. Co., 22 Pick. (Mass.), 191.

II. The following authorities fully sustain the plaintiffs in error on this point. Taylor v. Curtis, 1 Holt N. P. Cas., 192, n.; 3 Eng. Com. L., 69; Walker v. United States Ins. Co., 11 Serg. & R. (Pa.), 51; Meech et al. v. Robinson, 4 Whart. (Pa.), 360; Scudder v. Bradford, 14 Pick. (Mass.), 14; Abbott Shipp., Perkins's ed., 490 & n.; Id., 480; 2 Phillips Ins., 98.

III. The only voluntary sacrifice made was in the slipping of the ends of the chains. Walker v. United States Ins. Co., 11 Serg. & R., (Pa.), 66; Nickerson v. Tyson, 8 Mass., 467.

Second Point. The cargo, if chargeable at all, should have contributed according to its value at Buenos Ayres. Spafford v. Dodge, 14 Mass., 79; Mutual Safety Co. v. Cargo of the George, 3 N. Y. Leg. Obs., 262, and 8 Law Rep., 361; Tudor v. Macomber, 14 Pick., (Mass.), 38; 3 Kent Com., 242; Abbott Shipp., Perkins's ed., 504 n.

I. The enterprise was terminated, and the affreightment dissolved, by the loss of the Brutus, before commencing the intended voyage. Dunnet v. Tomhagen, 3 Johns. (N. Y.), 156; The Saratoga, 2 Gall., 178, n. 23, cases cited; Scott v. Libby, 2 Johns. (N. Y.), 340; Purvis v. Tunno, 2 Bay, (S. C.), 492.

II. The power of the master to re-ship the cargo, and thus to continue the enterprise, extends only to cases where the ship is lost or disabled in the course of the voyage. Shipton v. Thornton, 9 Ad. & E., 337; Jordan v. Warren Ins. Co., 1 Story, 342; 3 Kent. Com., 210; Searle v. Scovell, 4 Johns. (N. Y.) Ch., 223; Treadwell v. Union Ins. Co., 6 Cow. (N. Y.), 274; Saltus v. Ocean Ins. Co., 12 Johns. (N. Y.), 112.

III. Buenos Ayres being the place of valuation, the jerked beef should have been included among the paying articles, according to its value at that place.

Third Point. The owners of the Brutus were not entitled to the wages and expenses of their master and crew for any time after it was ascertained that she could not be got afloat.

Fourth Point. The charge of two and one half per cent. as commissions or compensation to the plaintiffs, for collecting the contributions due to themselves, ought not to have been allowed.

First Point. The first question in this case is of the highest importance in point of principle. The error of the judgment under review seems self-evident. It is indeed a paradox. It amounts to this: that if a navigator, whose ship is inevitably doomed to loss by stranding, should consult his own judgment, and select, for his compulsory voyage to the shore, the route less perilous for himself and his vessel, such preference for the safer course is the incurring of a voluntary sacrifice, which entitles him to compensation.

Or it may be stated in this way: a mariner, whose ship is thus inevitably doomed, cannot avoid becoming entitled to contribution in general average, unless he blindly forbears all action whatever, or navigates with an express view and purpose to effect the destruction of the adventure. Neither reason nor authority affords support to this extraordinary doctrine.

'General average is founded on the simple principle of natural justice, that where two or more parties are concerned in a common sea risk, and one of them makes a sacrifice for the common safety, the loss shall be assessed upon all, in proportion to the share of each in the adventure; and the greater sacrifice of the first shall be compensated by the contribution of the others.' Taylor v. Curtis, 1 Holt N. P., 192, n. 3 Eng. Com. Law 69. Its origin is commonly traced to the Rhodian law de jactu, which named only the case of a jettison; and, although the rule is not to be considered as thus limited, yet the case there put is an apt illustration, and no case essentially different from this illustration can fairly be considered within the rule. Goods cast overboard in a storm to lighten the vessel, masts, spars, or rigging cut away to prevent her being driven ashore, or carried away in an effort to avoid, by some unusual means, an impending calamity, running a ship on shore to avoid capture, slipping a cable or an anchor for general safety, are the usual instances found in adjudged cases. Perkins's Abbott on Shipping, 480 notes. They are all within the illustration given in the Rhodian law; and upon principles of natural justice, are proper cases for contribution.

But when a ship does no more than pursue that course of navigation which, independently of the good or evil thence resulting to cargo, is most safe for herself, how can she be said to encounter a peril or incur a loss for the benefit of her cargo? This is not answered by the precedents of allowance for parts of the ship or her tackle jettisoned for common benefit; because, although it might be proper to make such sacrifice for the benefit of the ship alone, were she empty, yet the act is the separation and destruction of a part for the benefit of the community of interests which still remain as such contending against the common danger. Not so, when the ship is run ashore as the safest direction which can be given to her; then the whole community goes together, taking the same direction and encountering the same peril. It is a mere accidental result, that the ship suffers more than the cargo.

The Brutus was not voluntarily sacrificed. On the contrary, she was lost by the direct and unavoidable operation of a vis major, unaided by any volition of mind or agency of man. The gale commenced on the 8th of October, at 4 A. M., and continued through that day and until the evening of the next, when it blew a hurricane. At 9 o'clock the best bower chain broke, and at 10 the small bower gave way. The vessel was then at the mercy of the elements. There was no possibility of avoiding a stranding. The mate who had the command of the vessel says especially that it was impossible to avoid going ashore, and that all he did was to make sail for and reach a place where she could be stranded with the chance of the least damage. To say that there was a voluntary stranding is an absurdity; as well might it be said that a man who jumps overboard from a burning vessel, and is drowned in the attempt to reach the shore, voluntarily drowns himself. The case admitted of no alternative.

It is a rule, that the mind of man must concur in producing the injury which shall entitle a party to compensation in general average. Here the mind operated only to diminish the sacrifice as much as practicable, and not to produce it.

It is well remarked in the note to Holt's Nisi Prius Reports before referred to, that 'there are some cases on the subject of general average in the reports, but there is not much to be collected from them. The safest guide is principle, well studied and understood.' 3 Eng. Com. L., 70.

This questio vexata, with the great name of Kent upon one side and the equally great or greater authority of Story on the other, was not brought to a final test until the case of the Hope was decided in 1839. Columbian Ins. Co. v. Ashby, 13 Pet., 342. On that occasion Mr. Justice Story, in a very able and convincing judgment, definitively overruled the opinion of the great commentator upon American law. That judgment will be much relied upon as an authority for the plaintiff. Yet nothing was decided, except that neither the salva navi, nor a prior consultation by the master with his officers and crew, was necessary. Nothing else was discussed by counsel, or adjudged in the opinion. The Hope, though in imminent peril, and not securely moored, was still afloat, and held by her anchors, when the master, for the preservation of vessel and cargo, slipped his cables, and ran her on shore (p. 332). The court (p. 337) treat the voluntary stranding as expressly found by the special verdict, as indeed it was. Nor could it be doubted from the facts found; i. e., that she was still held by her anchors, and might possibly have survived the storm, when he voluntarily slipped her cables (thereby relinquishing her existing means of keeping afloat), and ran her on shore.

The case of the Hope being clearly irrelevant, there is to be found in the books but a single case which affords any support to the judgment below. That one case is Sims v. Gurney, 4 Binn. (Pa.), 513. It was as follows:––

The ship Woodrop Sims encountered a storm in Delaware Bay, and when she was driving before the storm toward Egg Island flats, where she would have soon stranded, her pilot changed her course, and ran her ashore on Cape May, as the most convenient place to save the ship, crew, and property (p. 514).

It will be seen that these facts were very similar to the facts proved in the present case. The suit was by the ship-owners for general average. Judge Yeates tried the case. His charge is rather loosely stated. 'He inclined to think it a case of general average throughout.' (p. 516.)

The plaintiff had a verdict, and a motion was made for a new trial, upon the ground, among others, 'that the verdict was against law, as the vessel's going ashore was not a voluntary act by the captain, pilot, or officers, but the inevitable consequence of the gale then blowing.' And this point was most ably argued.

Chief Justice Tilghman said (p. 526),–'It seems, at first view, not very reasonable that contributions should be asked for damage occasioned by an act which, in fact, was for the benefit of the ship. But the law is certainly so, provided the act which occasioned the damage was conductive to the common safety.'

For this 'certainly,' no authority is cited; and the remark is a little like Dr. Sangrado's candid acknowledgment, that the death of all who took his remedy would have raised in his mind a doubt of its efficacy, but that he knew it to be beneficial. 'Upon the whole,' says the learned judge, after a rambling and protracted argument, 'it appears to me that it was a nice point on which the jury had to decide, but there is no sufficient cause for setting aside the verdict.' (p. 627.)

Yeates, J., stated to the jury, 'that, upon the facts as they were affected by the rule of law, his mind had been in a painful, dissatisfied state, during the trial;' and in reporting the case to the court, he stated that 'he could not say he was satisfied or dissatisfied with the verdict.' (p. 516.)

A Mr. Tilghman, who argued the case for the plaintiff, put it that it was a question of fact for the jury (p. 524), and his namesake, the judge, seems to have adopted the argument (p. 527).

Yeates, J. (p. 527) puts it strongly on the same ground, and Brackenridge, J., simply concurs.

The facts were certainly more complicated in that case than in the present; and it may be, under all the circumstances, that it was a question of fact proper for the decision of a jury. There was, indeed, no exception or complaint of any error in the charge. (p. 516).

1. In this view of the case, it may well be doubted whether any law point was decided in it, and it is certain Justices Yeates and Brackenridge so regarded it.

2. The singular opinion of Tilghman, Ch. J., is but slenderly sustained by its own reasoning, and is completely overruled by two cases in the same court, to which we will now refer.

In Walker v. United States Ins. Co., 11 Serg. & R. (Pa.), 61, A. D. 1824, the vessel was laboring in a storm, and wholly ungovernable, when the master put her helm hard up, and ran her ashore, in order to get her into the best place for the preservation of the lives of the crew, the vessel and the cargo. (pp. 62, 65.)

The court, per Gibson, J., says,–'It is not enough that there be a deliberate intent to do an act which may or may not lead to a loss; there must be a deliberate purpose to sacrifice the thing at all events, or, at the very least, to put it in a situation in which the danger of eventual destruction would be increased.' Again, 'Nor do I deem it of any importance that the master and crew thought their situation would, in any event, be bettered by the measures that were afterwards taken. Both are equally remote from a deliberate intention to sacrifice the ship, or to increase the risk of it; and without that there can be no claim to general average.'

True it is that in this case the court say that they leave Sims v. Gurney untouched. But they certainly overrule Tilghman's opinion.

In Meech v. Robinson, 4 Whart. (Pa.), 361, A. D., 1839, the court, per Kennedy, J., after explaining Gurney v. Sims in a way which would divest it of all applicability to the present case, stating it to be a very questionable case, at best, and shaken, if not overruled, by Walker v. United States Ins. Co., 11 Serg. & R. (Pa.), 61, just referred to, says,–'The running of the vessel ashore cannot with propriety be said to have been voluntary, nor can it, indeed, be well said that the loss of the vessel was occasioned thereby. For, according to the evidence of the master, which is all that we have, and all that the plaintiffs rely on to establish their claim, the vessel being on a lee shore where she could not carry sail, they found it necessary for the preservation of the lives of the crew, as the loss of the vessel was then certain beyond a doubt, being in four fathoms water and the land within a mile of her, to run her ashore, and accordingly they slipped the best bower anchor, put the vessel before the wind, and in a short time struck the land. In his cross-examination he further states that her situation was most desperate, that she would have gone to the shore at all events, but the mode in which the witness ran her ashore saved the lives of the crew, and tended to save a great proportion of the cargo. From this it is perfectly manifest, that the loss of the vessel had become inevitable as the consequence of a peril then present. And in such a case, says Mr. Phillips, in his Treatise on Insurance, Vol. II., p. 98, when the acts of the crew are intended to alleviate, instead of avoiding, such consequence, it seems hardly to be voluntarily incurring a loss.'

Mr. Benecke, in his work on Insurance (ch. 5, p. 219), in which, says Chief Justice Abbott, in his work (p. 343,) 'there is so much learning combined with practical experience, meets the present case in so many words, and declares, that if the situation of the vessel were such as to admit of no alternative, so that, without running her ashore, she would have been unavoidably lost, and that measure was resorted to for the purpose of saving the lives or liberty of the crew, no contribution can take place, because nothing was in fact sacrificed.' 'So here the plaintiffs suffered nothing; their vessel was doomed to inevitable destruction by the peril of the sea which surrounded her.' After some further observations and citations of like import, he adds, 'The loss of the ship in question, appearing to have been inevitable, must therefore be borne by the plaintiffs, who were owners of her.' 'This,' says Mr. Stevens, 'the Digest and all authors are agreed on; for you cannot in equity convert a loss which is inevitable into a claim for the preservation of property.' Stevens and Benecke on Average, by Phillips, p. 84.

These cases not only overrule Sims v. Gurney, if it can be considered an authority against the defendants, but are directly adverse to the judgment now under review. See also Scudder v. Bradford, 14 Pick. (Mass.), 14; Perkins's ed. of Abbott on Shipping, 490 and notes.

If the Brutus had been held by her anchors, and the mate had slipped his cables and run her on shore for the common safety, a case of voluntary sacrifice might have been presented. There are several instances of such acts being held a ground for contribution. 13 Pet., 342; 22 Pick. (Mass.), 197.

But the Brutus, at the time of the alleged sacrifice, had been forced from her anchors by the elements, and was being driven towards the shore by an irresistible force. The pilot, it is true, remained at the helm; and, being there, he used his judgment in giving her the direction which not only was best for the whole adventure, but best for herself, which would have been best if she was empty. If this entitles the plaintiffs to recover, then, in every case of stranding, the owners of the vessel may be compensated in general average. Whenever the master is not asleep, insane, or, from some cause, grossly negligent of his duty, he will use his judgment, and control the helm, so as, in some degree, to modify the disaster which he cannot avert; and it will be strange if he cannot swear, as the mate did in the present case, that he did thus modify it for the common benefit. Under such a rule, the presence of the master and crew will be absolutely detrimental to the cargo in most cases of stranding. Their being on board will only serve to lessen the injury of the ship, and to create in her favor a claim against the cargo.

The case of Cutler v. Rae, reported as dismissed for want of jurisdiction, in 7 How., 729, was very ably argued on the merits by counsel. We copy a part of the argument. 'In Sims v. Gurney, 4 Binn. (Pa.), 524, Ch. J. Tilghman lost sight of the fact that the subject benefitted, i. e., the ship, was the very subject calling for compensation on the pretence that it was sacrificed. When a master finds that his vessel must go on shore, and merely exerts himself to go in a safe place rather than in a dangerous one, he no more makes a sacrifice than when, in navigating his vessel on the sea, he chooses a safe channel rather than a hazardous one, or changes his course to avoid a rock or a shoal; he does his plain duty for the benefit of the ship as well as of the cargo, and to avoid loss and sacrifice of the ship, and not to produce them.'

If, at the moment of giving the vessel her direction to the shore, the mate had been asked whether he intended to sacrifice the vessel for the benefit of the cargo, he certainly would have replied in the negative, and assured the querist that he was doing with the ship the best that could be done for the ship herself.

The only thing like a voluntary sacrifice, in this case, is the slipping of the ends of the chains. They impeded the management of the vessel, and were voluntarily jettisoned for the purpose of relieving her. 11 Serg. & R. (Pa.), 66; 8 Mass., 467.

Second Point. The defendants' nutria skins and the jerked beef should have been estimated, for the purpose of contribution, at their value at Buenos Ayres.

1. The value of the nutria skins at Buenos Ayres was only $6317.27. At New York it was $11,000.

2. The value of the jerked beef at Buenos Ayres was $1125.18. At New York it was nothing.

It is admitted that, in ordinary cases of average, the rule of contributory value is the value at the port of destination.

This must necessarily be so; because it is there that the adventure is terminated, and the deliverance, which forms the ground-work of the claim for contribution, is consummated. Besides, it is rarely possible to refer to any other market for a rule of estimation. But if the vessel be wholly lost, and the adventure consequently terminated at a different place from the port of destination, the value of the goods at such different place is to be taken as the contributory value. Perkins's Abbott on Shipping, 504, n. 2. The Supreme Court of Massachusetts uses the following language, per Jackson, J., in Spafford v. Dodge, 14 Mass., 79:–'The contribution must be adjusted according to the value of the respective articles saved, at the time when the expenses were incurred, in like manner as if all parties had been present and each had originally paid his own proportion.'

'If the contribution had been claimed for goods thrown overboard, or for a mast cut away, the adjustment of it would necessarily be postponed until the termination of the voyage; because, until that event, it could not be known whether any thing would be saved from which to claim a contribution, and also because each party would be held to contribute according to the value of what should come to his hands, at the termination of the voyage.'

See also Mutual Safety Co. v. Cargo of the George, 3 N. Y. Leg. Obs., 262; s. c., 8 Law Rep., 361.

Tudor v. Macomber, 14 Pick. (Mass.), 38, was a case of average contribution for cargo jettisoned. The vessel was driven ashore near her port of departure. Curia per Putnam, J.:–'We think that, if the vessel arrives at the port of destination, the value should be the net price for which the cargo might have been sold there,' citing Benecke and Abbott. 'That is undoubtedly the rule in Great Britain, France, Spain, and Prussia. Benecke, 288. But, says the same author, should a jettison take place so near the port of departure that the vessel returns to the same or to a neighboring port, the actual price of replacing the goods thrown overboard should be allowed; or, if that could not be done, the cost price, including shipping charges and premium of insurance.' The question in this case arose upon the rule as to the goods jettisoned; but all the law writers put the goods lost and the goods saved on the same footing, and strenuously maintain that the valuation of each should be made upon the same principles. See Kent and Abbott at the pages cited. Kent (Vol. III., p. 242) says, 'The contributory value, if the vessel arrives at the port of destination, is the value of the goods there.' Abbott (Perkins's ed., p. 504) lays down the rule of value at the port of destination with precisely the same qualification.

We do not mean to contend, that, in ascertaining the value of the goods, the arrival of the vessel at the place of valuation is the essential point. But we say, that these authorities point to the place where the adventure terminates, as being the port of deliverance, and the place where the compensation for effecting that deliverance first becomes due, and where, of course, it is to be measured. When goods saved from shipwreck and chargeable for contribution first reach an intermediate port, and are there accepted by an agent of the shipper, as they may be, they must be valued at that place.

If they are not so accepted, the owner first becomes chargeable whenever, and, it may be safely affirmed, wherever, they so reach his hands. But when the voyage is strangled in its inception, there is no port referable to but the home port of the shipper. Destruction of the vessel there necessarily leads to a return of the cargo into the hands of the shipper. If, permissively, or by express retainer, the master of the disabled ship hires another vessel, transships the cargo, and carries it to the port of original destination, this is a new adventure, voyage, and agency. There is no pretence that an ...

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