838
FEDERAL REPORTER.
asofthe,sliipiis to get the 'shipafioat,the expenses of getting her off ought to be a charge against all, because the sacrifice or expense is necessarily incurred for the safety of all. The ship ought not in such a case to pay the whole charge, because her contract of transportation excepts "perils of the seas," and therefore excepts extraordinary expenses consequent upon such perils, SOt far as they are incurred for the common 'safety. But the strandinK, on the other hand, may possibly involve no danger to the goods, as by strandinK on a river shore, or on a beach, where, though the ship might be broken, no peril waS likely to happen to the cargo. The Alcona, 9 Fed. Rep. 172. Or, again, the stranding might be so disastrous as obviously to necessitate the abandonment of the ship. In the former case there would be no common peril, and in the latter no remaining community of interest; in neither, therefore, would there be any common average charge. In8urance 00. v. A8hby, 13 Pet. 330, 340; WiUiams v. Insurance Oo'j 3 Sum. 510. See L'Admiral OaseJJj and Ville d'Ageer, Gourlie'sAverage, 413, 414, note. In the adjudged cases the facts are usually much more complicated. There is no disagreement as to the general principles; the difficulty is in their application to the particular circumstances of each case. The most important circumstances in the present case are the following: (1) The stranding was by a peril of the seas, and the position of the vessel most unfavorable for hauling her off. It was evident from the first that the task must be long and expensive, and the result doubtful. (2) It was within a few miles of the port of destination; and' the cargo could be discharged and delivered at once, with comparatively little difficulty or expense. (3) The discharge of the cargo was begun at once, before any efforts were made to haul the ship off. The discharKe was not made with any view to reloading, but for the purpose of immediate forwarding and delivery to the consignees at New York; in part, also, for the purpose of lightening the ship, and as a nectssary prdiminary to the work of hauling her off. (4) Though the cargo was not in immediate peril, yet, considering the exposure of the stranded ship to easterly gales in the winter season, the unloadinK was necessary as a precautionary measure for the safety of the cargo, independently of the purpose of immediate delivery. (5) The cargo, from the moment of the ship's strandiug, had no actual interest in hauling the 8hip off, nor in her further prosecution of the voyage. The great expense and delay plainly necessary to float the ship made immediate separation from the ship to the interest of. the cargo. Its only common interest with the ship was in immediate unloading, and safe delivery to the consignees. The freight was thereby earned. (6) The work and the expense of unloading were entirely distinguishable and separable from the work of getting the ship mi'; though the former was a necessary preliminary to the latter. (7) The expenditures in getting the ship off were chiefly, if not wholly, incurred after the cargo had ceased to beat risk, and after the cargo was out of the master's control, through delivery to its owners. (8) The effect of the general average is to impose upon the cargo, above the whole
THE L'AlIERIQUE. .
839
cost of unloading, a charge of some $60,000 or 870,000 for separable ex· penditures in hauling the ship off, in which the cargo had no interest. (9) When the ship was finally floated, about 10 weeks after most of the cargo was delivered, she was taken to New York, her port of destination, to deliver what little remained of her cargo, and to repair; her master and crew being all the time on board. I have found no adjudicated case in which, upon facts like these, the f'.xpenses of getting the ship off have been held to be general average. In Sparks v. Kittredge, 9 Law Rep. 318, such expenses were held by SPRA.GUE, J., not to be general average. In Bevan v. Bank, 4 Whart. 301, the car/!;o in general was unloaded for the purpose of reshipping, and was reloadeq. and carried by the same ship to its destination.. The specie only was forwarded by other. means, and that was nevertheless held liable to contribute. That case has ever since been generally disapproved. Upon facts quite similar, in the ca!!e of Royal Mail v. Bank, (1887,) 19 Q. B. Div. 362, the decision, upon full consideration, was to the contrary. In Nelson v. Belmont, 21 N. Y. 38, the specie, which was held liable to contribute, remained under the control of the master; and none of the expenses objected to were incurred after the delivery of the cargo or any part of it. In Moran v. Jones, 7 El. & Bl. 532, the few goods unloaded belonged to the Ship-owner, and all were reloaded and carried to their destination in the same ship. In the leading case of McAndrews v. Thatcher, 3 Wall. 347, the principal cases up to that time (1865) were considered, and areKWTM was given by Mr. J.ustice CLIFFORD of the law upon the English and American authorities. In that case, the ship Rachel having run upon the west bank, in the lower bay, in coming into New York harbor, it was found necessary to discharge thecargo into lighters, which were thence brou/!;ht up to this port; but the vessel sank deeper into the sand. The master incurred no expenses in tryin/!;. to get the ship off after discharging the cargo, but aban. doned her to the underwriters. The latter immediately resumed the work, and after about 11 weeks got her free, but at an expense somewhat greater than her then value. It was held that the cargo was not liable to contribute for the expenses incurred after the master had abandoned her, on the ground that there was no community of interest thereafter remaining between the ship and cargo. Since the decision in McAndrews v. Thatcher, the liability of the cargo to contribute in general average, and the various circumstances affecting this liability, both in cases of stranding, and as regards expenses at a port of refuge, have received repeated and elaborate consideration in the English courts. Walthew v. Mavrqjani, L. R. 5 Exch.. 116; Wilson v. Bank, L. R. 2 Q. B. 203; Atwoodv. Sellar, 4 Q. B. Div. 342, 5 Q. B. Div.286; .CJvensden v. Wallace, 13 Q. B. Div. 69, (1884,) affirmed in the house of lords,lQ App. Cas. 404; Royal Mail, etc., v. Bank, 19 Q. B. Div. 362, (1887.) The result of these. discussions and adjudications is that, except where, as in Atwood v. Sellar, the expenses have been rendered necessary by some previous voluntary act of sacrifice for the safety
840
of the ship and cargo, they cannot be made a general charge, unless at the moment when such expenses are incurred there is a danger, common to the ship and cargo, which they are designed to remove; and that. consequently, when cargo is safely unloaded and warehoused, subsequent expenses, such as those incurred in floating the ship, or reloading the cargo in a port of repair, (not caused or made necessary by any voluntary sacrifice,) are not general average charges. As respects the question considered in Svensden v. Wallace, viz., whether reloading in a port of repair on account of a sea peril is a general average charge, the reasons assigned by Lord ESHER for the distinction between unloading and reloading the cargo do not seem to me satisfactory; for, if unloading can in such a case be properly treated as "a part of the act of going into port to repair," i. e., a part of the act of sacrifice for the safety of all, so as to make unloading a general average charge on that ground, as he says it may be, (page 77,) the warehousing and reloading should be general average charges also, because they are the necessary consequence of that act of sacrifice; and all agree that the necessary expenses consequent upon a voluntary act of'sacrifice are common average, and cannot be inflicted upon either ship or cargo alone. Birkley v. Presgrave, 1 East, 228; Lown. Av. (4th Ed.) 218; German Code, § 708, subd. 4. If, on the other hand, unloading is no part of" the act of going into port to repair," and is not required for the safety of the cargo, but only in order to repair the ship, then unloading, from the English point of view, is not'logically a general average charge, unless repairing is also a general average charge, which, in general, it is not. BOWEN, L. J., thought it the ship-owner's duty to "proceed with the voyage, or land the cargo," which would impose the expense of unloading on the ship alone; but, as unloading was allowed to be common average by general consent, he thougpt it "unnecessary to decide what would be in other cases the law on the point." He concurred in holding warehousing and reloading in a port of repair, Rought in consequence of injury by a sea peril, to be, ordinarily, not general average charges; "because, when the goods were landed, all danger common to ship and cargo was ended/' Page 89. In the house of lords the decision was affirmed on somewhat peculiar grounds. Lord BLACKBURN, in referripg to the general subject, suggested whether "the whole of these operations [unloading, warehousing,· and reloading] should not be considered as parts of the expense of repairing the damage, and therefore to be borne by all, [ship, freight, and cargo,] in a case where the cause of damage [a previous voluntary sacrifice] was such that the expense of repairing ought to be borne by aU j but to be borne by the ship only, in a case where the cause or damage [a mere peril of the sea] was such that the expense of repairing it ought to be borne by the ship only." This intimation from the court of highest authority that the expenses in the last case would be chargeablo' on the ship 'Only, accords with many French decisions. See 2 Conlon, Code Ass. p. 28, § 44. Boulay-Paty, in his conflYrence on Emerigon, (volume 1, pp. 620,621,) says it is a charge on the cargo only. Emerigon
THE L'AMERIQUE.
84t
(volume 1, p. 608) and Pardessus (volume 3, p. 740) lUllke unloading and reloading common average. In general, however, the French authors maintain that the primordial fact as to the nature of the cause of the damage, viz., whether it arises through a sea peril or by a voluntary act, controls; and that the consequences of a particular average injury, i. by a sea peril, remain particular average, save such consequential voluntary acts as are done to save all from immediate loss. 5 Bedarride; Droit Com. Mar. § 1669; 4 Desjardines, Droit Com. Mac. §§ 982, 1005; 5 Valroger, Com. Droit Mar. § 2644; 2 Conlon, Code Ass. 20, § 6. In this country all such expenditures in a port of refuge are charged to general average. The Star of Hope, 9 Wall. 236; Fowler v. Rathbones, 12 Wall. 102, 117; Hobson v. Lord, 92 U. S. 397. All agree that in order to subject goods to a common average charge, they must be at risk, and have a community of interest with the ship, at the time when the bharges are incurred; and that the act of 'sacrifice, or the expense, must have been done or incurred for the safety or benefit of the gauds, and not merely for the prosecution of the voyage, since, otherwise, ordinary repairs of the ship would be general average. Ac-cordingly, in the very recent case of Royal Mail v. Bank, 19 Q. B. Div. 362, where a quantity of specie was taken from the stranded steamer Tagus, and forwarded by another vessel, and the ship was subsequently ,got off after a jettison of part of the cargo, and proceeded on her vOYllge with the remainder, it was held that the specie was not liable to contribute in general average for any of the expense of getting off the ship, nor for jettison of the cargo; on the ground that the unloading of the specie "was not in any sense or degree a means of securing the common safety of the ship and cargo, but simply for the purpmse of saving the specie it. self; and that, when the general average loss was incurred, in whatever sense restricted or enlarged, that phrase can be properly used,-the specie had ceased to be at risk; and that upon no reasonable view of the facts could its removal be considered as a part of the means taken for saving any common adventure." In the previous case of Walthew v. Mavrojani, (1870,) L. R. 5 Exch. 116, the ship Southern Belle, while lying loaded in the porfof Calcutta, was driven by a cyclone on a mud bank. To get t.er off it was found necessary to unload her, Rnd the cargo was discharged and safely warehoused at Calcutta by the ship-owners. She was floated in about 10 weeks, at an expense of £2,300, and her cargo reshipped on board of her, and conveyed to its destination. It was held that the cargo was not liable to contribute to the expenses after it was warehoused; because from that time there was no common danger, and because it was a matter of indifference to the cargo whether it was transported by the same ship or by some other, and the cargo consequently had no common interest in floating the ship. If these recent English decisions were followed as the true interpretation of the law, the expenses incurred in this case subsequent to the discharge of the cargo could not be charged as general average, for the stranding was not voluntary, but through a peril of the seas; and these expenses were incul'l'ed'after the cargo had been
e.,
842
delivered, and when it was no longer at risk, and after the voyage, so far as respects ,the most of the cargo, had ended, and after the cargo had ceased to have any further common interest 'with the ship. 3. It is contended, however; that there is such a divergence between the English and American law on the subject of general average, that the decisions of the' English tribunals should not be followed. There is, doubtless, some divergence as respects the expenses in a port of refuge sought in conSllquence of damage from a sea peril. But the expenses here in question are not of that class. And in the opinion in McAndrews v. Thatcher,8Ulpra, there is no intimation of any divergence or incompatibilitybetweenthe law of this country and that of England, as regards general average expenses in a case of stranding. The early and the late English cases are there cited, as well asthe principal American authorities; and the apparent aim was to express the result of them all. There is no disapproval of the decision in Job v. Langton; 6 El. & Bl. 779; and the case oLMoran v.Jones, 7 El.& Bl. 532, is only concurred in upon the emphasized consideration that "the goods remained under the control of the master until the ship was :got off, repaired, and enabled to take the goods on board and prosecute her voyage." In the case the ,facts are the opposite. Though Mcrran v. Jones was there deemed consiatent,withthe,previous case dfJob v. Langton, in the subsequent Eng1ishcases it has not been so considered. The decision of Mcrran v. Jonu, even, upon its special facts, has been since disapproved; that of Job v. Langton, in which the expenses of getting the ship off after the -cargo was in safety were held not general average, has been uniformly approved and followed. In the ,present casediffel1ent.passages in the opinion of Mr. Justice CUFFORD are cited as sustaining the contentions ,on each The passage most favorable to the libelants, however, (page 370,) does not say that, if the master in that case had incurred the useless expense ",hich the underwriters incurred, he might have been allowed to make a profit out of the cargo by means ora general average charge upon it for the useless and losing operation of raising the ship. The immediate context indicates the contrary.. On the other hand, "the . undoubted rule" that "goods are not to contribute'for expenses'incurred after they cease to be at risk, * * * nor to any loss or expense which was not for their benefit," (page 869,) vvouldexclude the present claim.:, Phillips'rule, moreover, is quoted, (page 367,) to the effect that, if the vessel upon discharge of cargo does not float, the subsequent ,expenses· of g{ltting her off must be borne by the vessel; and the only qualification put upon that rule is that the expense may be general av'erage:incase the master "can rescue her without much expense and delay,andreceive the cargo, and transport it to its destination," (page 368;) .oonditioDBquite contrary to those in the present case. The!C8Seof. Nelso'nv. Belmont, 5 Duer, 310, 21 N. Y.36, is also referi-edto.bythe court. There the ship Galena, loaded with cotton, havinglcaughtfiie in her hold' from lightning, had to put back to Charleston to extinguish the fire. 'The master, for safety, deposited on board a
THE 'L'ArdERIQUE.
843
Danish bark a considerable quantity of specie, which it was agreed should remain under his control. On arrival at Charleston he resumed possession of the specie, and the fire was put out by flooding the ship, doing considerable damage to the rest of the cargo, and some to the vessel. The specie was forwarded by the master to its destination; but the ship's voyage was broken up, and the cotton was sold. The specie was held liable to contribute to the expense and damage caused by the return to Charleston and putting out the fire, the same as if it had remained on board the Galena. In the court of appeals SELDEN, J., says, (page 47:) ..If the captain had put the specie on board the bark, not in any event to be returned, but to be taken by the bark to its own port of destination, and the latter had then been suffered to pursue its course, the specie would clearly not have been subject to contribution for any SUbsequent expenditure to save the Galena; and the same, if, when put on board the Danish bark, it had been distinctly understood that the'specie was in no event to be restored." . Such were clearly the understanding and the expectation upon which the unloading and delivery of the cargo in this case were made·. Judge Marvin, in stating the results of the case of .McAndrews v. Thatcher, observes: .. Notwithstanding some uncertainty in the precise meaning of the language. employed by the supreme court in its decision in the case of 1J1cAndrewlJv. Thatoher, yet I think tbis case, when interpreted by the case of Nelson v. Belmont, to which we have referred, does decide that a complete separation of the cargo from the ship by the master or owner, not again to be returned to the ship,disso!ves the community of interest between them, whether such separation takes place at a distance from the port of destination, or by a delivery by lighters at the port of delltjnlltion; and that consequently all general average Charges thereafter cease. l:5uch a separation, when it tllkes place at a distance from the port of delivery, is equivalent to the abandonment of the voyage; and when it takes place by a delivery at the port of destination, it is equivalent to a completion of thevojage as to the cargo. which can no longer derive any benefit from the expenditure of money on acconnt of the ship." Marv. Av. 61; Gourl. Gen. Av. 4(}IJ-402, note; Sparks v. Kittredge, 9 Law Rep. 818; fil"aham v. Welb'h, infra. 4. Again, the question whether in case of misfortune a common interest still remains between ship and cargo, and the extent of that common interest, are questions of fact depending on the circumstances. See The Amelie, 6 Wall. 18-27; The Julia Blake, 107 U. S. 418,427, 2 Sup. Ct. Rep. 692, and cases there cited. If the cargo can be unloaded and be delivered by other means at very much less expense than by the stranded vessel, the cargo has no actual common interest with the ship in. the further prosecution of her voyage. In the present case, about $100,000 was necessary to float the ship after the cargo was unloaded; while scarcely more than a third of that amount was necessary to unload the cargo and deliver it to its o.wners. The cargo, by means of a general average assessment, is sought to be charged with some $60,000 or upwards, on account of the subsequent expense of getting the ship off, though the caTgo had no actual interest in that work; It is plain that this is not compatUJ:}ibleiWith the fundamental principlcs of general average