abandonment by master, not recoverable— expenses by underwriters.

*1. Rightly understood, general average is that contribution which is made by all who are parties to the same adventure, towards a loss arising out of extraordinary sacrifices or extraordinary expenses incurred by some of the parties for the joint benefit of both ship and cargo.

2. Such a loss, in order that it may properly be the object of such a contribution, must have been of an extraordinary nature, voluntarily incurred under circumstances of imminent peril for the common benefit of the whole adventure, and it must have aided in the accomplishment of that purpose. 3. Stranding of the vessel does not terminate the duties of the master, but he is still under obligation to take all possible care of the goods and, if practicable, to get the ship off and prosecute the voy age.

4. In such a case the master becomes the agent of all concerned and, as such, may do what is necessary to take care of the cargo and rescue the ship from the impending peril. 5. Much is then confided to his discretion; but he is bound to be vigilant and energetic, and to exercise good faith and proper nautical skill. 6. Obligation of the master is to transport the

goods to the place of destination and, if practicable, and the goods are not perishable, he may retain the goods, repair the ship, and prosecute the voyage to its termination. 7. Repairs, where the stranding is involuntary, are particular average; but the proper adjustment of general average includes all the expenses of unloading and saving the cargo, rescuing the ship, reloading the cargo, and the expense of taking care of the goods while they are separated from the ship.

8. Special power of the master in such a peril arises from his original obligation to transport the cargo; and the necessities of the case and their extent are measured chiefly by those considerations. 9. Evidence shows that the means employed by the master to save the cargo and rescue the ship were proper means, and the whole expense incurred by him was a proper charge in general average, as it was incurred for the joint benefit of both ship and cargo.

10. Discrimination in favor of different consignments, merely because one is delivered in safety before another, is never made; nor is the cargo, necessarily, relieved from liability to contribute towards the expenses of saving the ship, because the cargo was unladed before the ship was rescued. 11. Rule is, that if the ship is also saved by the same continuous series of measures as those by which the cargo was saved, then the cargo is bound to the ship and the ship to the cargo.

12. They are so bound because the liability to such contribution continues until the part of the adventure claimed to be exempted is completely separated from the residue, so as to leave no community of interest remaining.

13. General rule is that where the cargo continues under the control of the master, so that it may be taken on board for the purpose of prosecuting the voyage, the common interest remains.

14. Plaintiff's in this case are not entitled to recover, because it appears not only that the cargo was delivered to the consignees, but that the series of measures employed by the master, and through which he saved the cargo, failed altogether to save the ship.

15. They cannot recover, because the expenses in controversy were not incurred by the master, but by the underwriters of the ship after the master had saved the cargo, and abandoned the ship and all endeavors to save her from disaster.

16. When the master had abandoned the ship and all endeavors to save her, the separation between the ship and the cargo became complete, and all community of interest was gone.

[Mr. Justice FIELD did not sit in this case]. [No. 99.]

Argued Jan. 17, 1866. Decided Feb. 13, 1866. 'N ERROR to the Circuit Court of the United

IN

York.

of

The case is fully stated by the court.

Headnotes by Mr. Justice Clifford, who delivered the opinion.

Messrs. Alexander Hamilton, Jr., and Samuel E. Lyon, for plaintiffs in error:

The standing was involuntary, and as a cause of loss or expense did not give rise to a claim for contribution in general average.

But, although it is certain that the cargo, as a whole, was no longer at risk and could not possibly be benefited by the expenses to save the ship, and, being safely stored at its place of destination was absolutely separated from the ship and the adventure, it is claimed that these expenses are still the subject of contribution in general average, under the particular circumstances of this case, and these must, therefore, be considered.

When Captain Morris, September 28, 1859, took charge of the ship Rachel, at the request of and as agent for the Boston underwriters of the ship, the cargo had been discharged into lighters by other parties and safely stored at its place of destination, and the freight earned, or was due thereon. No further service was to be rendered to the cargo by the carrier, nor had he any further connection with it, save by his lien for freight and charges. It was no longer at risk, and the separation from the ship was complete and absolute.

All the expenses thereafter incurred upon the ship were made with a view to its preservation alone, and could not possibly benefit the cargo nor affect the freight in any way.

Of the three interests, therefore, two-cargo and freight-were no longer at risk; but, on the contrary, were absolutely secured and entirely independent of the ship, whatever might be its fate.

The ship itself was an absolute total loss, the expenses of saving far exceeding its value when saved.

The uncontroverted facts show that, so far from there being a "continuous series of measures" to save, there were two distinct sets of efforts, by different parties and in different interests; the first being for the benefit of all; the second for one interest alone, undertaken when it appeared to be, and was, in fact, a desperate enterprise, leading to a waste of money.

Nor were these efforts made with a view to save the adventure, according to the distinction taken in some of the later cases, inasmuch as the voyage or adventure was terminated absolutely as to the cargo by its safe arrival, and substantially as to the ship, which was stranded in the lower bay of the port of destination. Nelson v. Belmont, 21 N. Y. 36.

No adjudged case has yet carried the idea as to a "continuous series of measures" to the extreme point presented by the facts in this case. Bevan v. Bank of U. S. 4 Whart. 301.

did not float, and was, in fact, a total loss-the As the vessel, after the cargo was taken out, expense of floating her exceeding her value when raised-it is clear, under the authorities, that these expenses cannot be brought into contribution in general average.

Stevens & Benecke, Phil. ed. 139, 140; Marshal v. Garner, 6 Barb. 392; 2 Phil. Ins. 3d ed. 117.

The stranding of the ship occurred in entering her port of destination. In such cases expenses incurred in raising the ship are not general average charges.

2 Arn. 917; Stev. Average, 22.

The learned judge before whom this cause was tried, characterized it as "perhaps a close case;" and it is due to the importance of the question involved, to present the cases here and in England directly bearing upon this subject. Bedford Ins. Co. v. Parker, 2 Pick. 1; Bevan v. Bank of the U. S. 4 Whart. 301.

Mr. Phillips, in his work on Insurance, vol. ,, 1407, questions this decision, and shows very satisfactorily that the passage in Benecke, the authority on which the Case of Bevans mainly relies, is not analogous to the case in question, and that the case of the specie "does not," to use the language, "seem to be distinguishable from that of a part of the cargo being landed at the port of destination, and a subsequent general average loss on the ship and the remainder of the cargo still on board, to which the part delivered would, unquestionably, not be liable to contribute. The remainder of the cargo, in the case in question, not having been delivered to the consignees, but landed, and reloaded, on the ship being afloat again, continued to be within the ordinary category of contributory interest.

Pars. Mar. Law, vol. п., p. 325, note, ed. of 1859; Nelson v. Belmont, 21 N. Y. 36; Sparks v. Kittridge, 9th Law Rep. 318; Show. Par. Cas. p. 18; Job v. Langton, 6 El. & B. 779; Phillips' ed. Benecke, Average, note, p. 367; Moran v. Jones, 7 E. & B. 523; Phillips, Ins. vol. II., § 812.

Mr. Daniel Lord, for the defendants in

error:

First-1. The ship and cargo when stranded before her arrival in port, were jointly exposed to a common and imminent danger.

2. The expenses of relieving the ship and cargo, were a proper subject of joint and ratable contribution in general average, by vessel, cargo, and freight.

3. That the stranding was involuntary does not derogate from the right to contribution.

4. The community of extraordinary peril commenced with the stranding and did not terminate until the arrival of the vessel and cargo at the place of safe delivery. The connection of the vessel and cargo as to common service, did not end before.

Second-1. The whole saving, with its attendant expenses, was one continuous, unremitted operation, from its beginning until the ship, with the remnant of cargo, reached the Marine Railway at New York.

2. The saving was a continuous operation in point of fact. Although taken in hand by those who were substitutes for the original master and crew, yet they represented the owners of the ship, and were in their line of duty as such.

3. The vessel and cargo continued in the joint possession of the owners of the ship and their agents; and the cargo was not received from them until the various parts of the cargo had all arrived and been delivered at the end of the voyage, and had been received on the orders of the owners' agents, and subject jointly to a claim of general average.

4. The consignment of defendants was not received or saved by them, separately or severally, or through any separate act of their own. It also was protected by a right of contribution in case of loss, while proceeding in the saving vessels from the shoal to the place of delivery in the city of New York.

5. A part of the defendants' consignment remained in the ship to the last, and was received by them from the ship's agents, at the city of New York, and sold by the defendants. Had this been of great value, it would not have been exempted from its contribution. But until actually delivered and sold, its value could not be ascertained. And, moreover, its value could not vary the principle of the liability, but merely the amount of its assessment.

6. The defendants stand in the same condition as if all their consignment had been retained by the ship's agents, until received under a common bond of united responsibility.

Third-1. It is contrary to the principle of general average, to relieve any of the parts of the common adventure from its ratable share of contribution, by reason of its delivery being made successively, when made by the endeavors commenced and continued in common.

2. The labor and expenditure of rescuing the part of an adventure first relieved, is chargeable on the residue of the cargo and on the ship; because the latter is thereby relieved of part of the danger. The goods taken into lighters on the relieving of the ship, are still at the risk of the ship and cargo, which their unlading or jettison first relieves. But as the ship and residue of the cargo are thus chargeable with a burden, they are equally entitled to relief and contribution from the cargo whose safety is promoted by it.

3. To exempt from general contribution the parts of an adventure, as they successively reach their safe destination, would render a new statement necessary upon each part of the cargo delivered, and upon each remaining residue, which would be impracticable as well as contrary to the principle of general or common contribution.

4. Supposing the value of the ship and the freight in peril is great and that of the cargo small, if the cargo is relieved by common expenditures falling largely on the ship, the ship thus contributes largely to the saving of the cargo; the equity is the same if the values are reversed and the cargo is made to bear more, according to its just proportion.

Fourth-In answer to the several points embraced in the request to charge the jury, we submit:

1. If indeed a part of the cargo had been stored in safety at its destination, before the expenses to save the ship were incurred; still this would not exempt from contribution the part of the cargo which had been relieved from peril by the continuous and common efforts. In the nature of the case, the saving will be successive, although the common efforts be continuous.

2. That the stranding was involuntary, does not prevent a contribution; expenses may be involuntary and necessary, besides the losses by voluntary jettison.

See Bevan v. Bank U. S. 4 Whart. 301; Nelson v. Belmont, 21 N. Y. 38; Moran v. Jones, 7 Ell. & B. 523; Bedford C. Ins. Co. v. Parker, 2 Pick. 1.

Mr. Justice Clifford delivered the opinion of the court:

Plaintiffs in the court below were the owners of the ship Rachel, and the defendants were the consignees of a certain portion of the cargo

under a bill of lading consigning to order. Record shows that the controversy grew out of a disaster which happened to the ship while on a voyage from Liverpool to New York, with all her cargo on board. Action was assumpsit, and the plea was the general issue. Substance of the declaration was, that the ship with the cargo on board in the prosecution of the voyage, was, by peril of the seas, forced upon a certain bank known as west bank, on the high seas, and that the ship, with the cargo, was thereby put in great danger of being totally lost, and that various expenses were incurred in the endeavor to save the ship and cargo, amounting in all to the sum of $15,000; and the allegation is that by means thereof the ship and cargo were saved and that the goods consigned to the defendants were duly delivered to them, and were by them accepted. Claim set up by the plaintiffs was for the freight due from the defendants, and for their ratable proportion of the expenses incurred in saving the ship and cargo. Defendants paid the claim for freight, but refused to pay any part of the claims for general average.

1. Parties went to trial, and the verdict and judgment were for the plaintiffs; and the defendants excepted to the charge of the presiding justice, and removed the case into this court. Exceptions were duly filed by the defendants, both to the charge of the court as given to the jury, and to the refusal of the court to instruct the jury as requested; but in the view taken of the case, it will not be necessary to examine the prayers for instruction, nor to remark upon any part of the charge of the court except the introductory proposition, which undoubtedly made it the duty of the jury to find their verdict for the plaintiffs.

Substantial effect of the language employed by the court was, that the cargo of the defendants, upon the evidence given in the case, was bound to contribute in general average to the expenses incurred in saving the vessel, and if so, then the plaintiffs were entitled to recover. Neither party pretends that there was any dispute about the facts in the case as assumed by the court, but the defendants insist that, in view of the evidence as understood by both parties, the instruction should have been that the plaintiffs were not entitled to recover.

2. Conceded facts were that the ship sailed from Liverpool on the 29th day of July, 1859, with a general cargo consigned to various persons, and consisting, among other things, of four hundred boxes of liquorice paste consigned to the defendants. Proofs also showed that the vessel, with her cargo on board, arrived in safety inside of Sandy Hook, on the 21st day of September of the same year; but in coming up the bay in a heavy gale from the eastward, she struck on the west bank in the lower bay of the harbor, and became fast. Steam tugs went, in the afternoon of that day, to her assistance, and endeavored to get her off, but without any

success.

Regarding the ship and cargo as in peril, the master accepted the services of the first steamer that came alongside, and the agreement was that if the steamer was successful in getting the ship off, he was to pay $1,000, but if unsuccessful he was to pay nothing. Under that agreement the steamer passed her hawser on

board and made fast to the ship, but finding that her power was not sufficient to accomplish the object, she set a signal for another steam tug, and another immediately came to her aid, and the power of both combined was tried; but they could not start the ship from the place where she lay imbedded in the sand.

Statement of the record also is that these steamers continued their efforts to get the ship off for several hours, and that during that period a third steamer came alongside and made her hawser fast to the after-bitts of the ship; but in her endeavor to start the ship she parted her hawser, and all came to the conclusion that their efforts were fruitless. Master, at six o'clock the same afternoon, left the ship and went to the port for advice and assistance, but the mate and mariners remained on board; although at four o'clock on the following morning it appears that the water in the ship was of the depth of fourteen and a half feet and that it was increasing fast.

Cargo was insured in New York and the ship in Boston. Underwriters of the cargo and the consignees of the ship became advised of the stranding of the vessel; and the former, with the knowledge and consent of the latter, during the forenoon of the second day after the disaster, sent their agent to the ship for the purpose of saving, if possible, both the vessel and the cargo. Steamer with the agent on board arrived alongside about nine o'clock, and it appears that she had a schooner in tow, and every necessary appliance-such as steam pumps and wrecking apparatus-to rescue the ship, or, if necessary, to discharge the cargo. They continued these efforts under the direction of the master after his return to the ship, for two days; but finding that they were unable to get the ship off, they commenced to discharge the cargo into lighters and transport it to its place of destination.

Such of the cargo as was so discharged and transported, was placed in the custody of the agents of the ship, and those agents, upon receiving the usual average bond, delivered the same to the consignees. Corresponding efforts were continued until the 26th day of the same month, when, as the master testified, the steam pumps were taken down and carried away, having finished discharging the cargo. Before the agent left, however, he went to New York, and consulted with the consignees of the ship, and they refused to authorize him to incur any further expense. Positive statement is that the ship at that time was fast settling in the sand, and that the tide ebbed and flowed in her as she lay.

Intelligence of the disaster also reached the underwriters of the ship, and they sent their agent to the wreck. He went on board at one o'clock the next morning, after the other agent left, and took charge of the ship; but at nine o'clock the crew came aft and refused to do duty. Deprived of their services, he went immediately to New York and employed other men to supply their places, and the crew left the ship.

The next two days were spent in procuring oil casks, and in attempts to buoy the ship by their use, but without any beneficial result, except to save some of the materials of the vessel. Violence of the storm increased, and it was

found the next morning that the ship, at her hatches, had eighteen feet of water; and as the sea was breaking over her and she was apparently going to pieces, the agent of the underwriters directed that her main top-mast should be cut away, and that order was carried into effect.

3. Views of the defendants are, that the case, as stated, is not a case for contribution in general average, and that the court erred in instructing the jury that the plaintiffs were entitled to recover.

Primary proposition maintained by the defendants is, that expenses incurred in a voyage, although they were necessary and proper, are not to be carried into general average unless they were of an extraordinary character; nor unless it appears that they were incurred for the joint benefit of the ship and cargo; and that inasmuch as it appears in this case that the cargo had been stored in safety at the place of destination, before the expenses, for which the suit 365*] was commenced, 'were incurred, the claim of the plaintiffs cannot be sustained.

Decision and judgment in the case must depend upon the question whether the several sums expended by the agent of the underwriters of the ship, after he went on board and took charge of the vessel and the men and means employed to save ner, were properly carried into the adjustment; because it is conceded that if those sums excluded from the expenses of general average the verdict should be for the defendants.

4. Sacrifices, voluntarily made in the course of the voyage, of part of the ship or cargo, to save the residue of the adventure from an impending peril, or extraordinary expenses incurred for the joint benefit of both ship and cargo, and which became necessary in consequence of a common peril, are usually regarded as the proper subjects of general average.

All losses which give a claim to general average contribution, says a standard writer upon the law of insurance, may be 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 both ship and cargo. 2 Arn. Ins. 881.

Present case, if the defendants are liable at all, falls within the latter class and, consequently, it will not be necessary to remark upon the former class, although cases of jettison are much more frequently presented for decision than cases growing out of the stranding of the vessel. Stranding in this case was involuntary; |

necessity for the expenses. Ben. & Stev. Av. 96; Baily, Av. 45, 71; Birkley v. Presgrave, 1 East, 220; Ad. Cont. 490.

Undoubtedly, the community of extraordinary peril commenced with the stranding of the vessel; but the question is, where it terminated. Three theories may be suggested:

1. That it terminated when the cargo was separated from the ship, and was transported to the port of destination and delivered to the consignee.

2. That it terminated when the master, acting in good faith as the agent of all concerned, yielded to the necessities of his situation and abandoned the endeavors to save the ship, and left her where she was stranded, in charge of the agent of her underwriters.

3. That it did not terminate until the ship was got off from the bank where she was stranded, and arrived at the marine railway for repairs in her port of destination.

Theory of defendants is substantially expressed in the first proposition; but the plaintiffs insist that the community of peril did not terminate until the arrival of the vessel at the port of destination; and if not, then the charge of the court was correct, and the judgment of the court must be affirmed.

Natural justice requires that where two or more parties are in a common sea risk, and one of them makes a sacrifice, or incurs extraordinary expenses for the general safety, the loss or expenses so incurred shall be assessed upon all in proportion to the share of each in the adventure; or, in other words, the owners of the other shares are bound to make contribution in the proportion of the value of their several interests. 2 Phil. Ins. 65; Holt, Ship. 482.

Courts universally admit that the Rhodian law was the parent of maritime contribution, although, in terms, it made no provision for any case of general average, except for that of jettison of goods as the means of lightening the vessel. But the rule, as there laid down, has never been understood as being confined to that particular case, but has always *been re- [*367 garded as a general regulation, applicable in all cases falling within the principle on which it is founded.

Principle of the rule is that "what is given for the general benefit of all, shall be made good by the contribution of all;" and hence it is that losses, which arise out of extraordinary expenses incurred for the joint benefit of ship and cargo, are as clearly to be carried into the adjustment as those which arise from sacrifices, of part of the ship or part of the cargo.

Settled rule, also, is that when a vessel is accidentally stranded in the course of her voyage, and by labor and expense she is set afloat, and completes her voyage with the cargo on board, the expense incurred for that object, as it produced benefit to all, so it shall be a charge upon