« AnteriorContinuar »
in consequence of the necessity of carrying an unusual press of sail. Power v. Whitmore, supra, and Covington v. Roberts, 2 N. R. 378.
Lost ammunition, expenses of healing the wounded, and injuries to the ship suffered in action, are not to be reimbursed as general average claims. 2 Marsh. 309; Taylor v. Curtis, 6 Taunt. 608.
Generally, compensation for general average losses is the price of safety, even if it be only temporary, and not absolute and perfect safety, as by arrival and delivery at the port of destination. Abbott on Shipping, 342, 343.
If an impending peril compels and produces a jettison, and this effect shall prove to be the ultimate cause of partial preservation to all, then all must be taxed their contributory share, to repair the individual losses incurred by such sacrifice for the general good.
And this proposition applies also' to such losses of goods jettisoned as may become the subject of a general average claim; but losses, other than for merchandise cast overboard, are a foundation for remuneration by contribution. There may be a total or partial loss of the ship itself, under circumstances which would entitle the owners fairly and equitably to reimbursement in proportion to the amount of saved property, and perhaps, it should be added, the risk run.
The ship may be sacrificed wholly or in part, by voluntary stranding, for the general good, as well as the whole or a partion of the general cargo. And the principle which protects the one ought also to extend to the other. The nature of the loss is identical, the object and purpose are the same ; and the effect of such voluntary sacrifice is in either case the ultimate safety, security, or preservation, and so alike meritorious.
Wherein, then, does there exist any cause for distinction in applying the rule of contribution to sacrificed ship or sacrificed cargo ? In principle, there is
But Emerigon, Huberus, and Stevens are relied on as authorities for the opposite doctrine; and in 1812, C. J. Kent, in Bradhurst v. Columbian Insurance Company (9 Johns. 9), adopted and judicially sanctioned the views of these European writers. Yet, in 1839, in the Columbian Insurance Company v. Ashby et al. (13 Pet. 331), the United States Supreme Court (as has been stated) overruled this New York case; and since then, the more modern and established practice has been in accordance with the decision in 13 Peters.
How this view of Emerigon became engrafted on the marine law, is only interesting as a speculative question. The subseqnent case in (10 How. 270), Barnard v. Adams, affirms that of Columbian Insurance Company v. Ashby; and in the two cases, Justices Story and Grier seem to have exhausted the subject and the learning thereon. Nevertheless, in Sims v. Gurney, C. J. Tilghman makes a suggestion which may furnish a key to explain the text of Emerigon, and is therefore worth following further in detail.
The Pennsylvania Chief Justice comments on Emerigon; and cautions the profession that in the application of the rule of contribution, it must be remembered that the text of Emerigon refers exclusively to goods jettisoned, and not to lost ships ; so that the phrase “ salvå navi,” is merely descriptive of a state or predicament in which goods saved shall contribute for goods lost by jettison ; and in no way indicates a precedent condition or requirement upon which alone
ALL REMNANTS SAVED CONTRIBUTE.
contribution may be levied. “Salvâ navi," the ship being safe, part of the goods are sacrificed, but the residue saved. This statement presents simply this question, Shall the remnant saved make good by contribution the part sacrificed ?
And that is the only question raised until a reference is ordered for adjusting the quantum and stating the account. The practice is uniform, that the ship and freight shall contribute according to their value ; and Emerigon pronounces that the goods saved shall also contribute, according to their value, to make remuneration for the goods lost.
It is not then an indispensable condition that the vessel must be safe, in order to exact compensation by way of contribution from goods saved for goods lost; for such compensation is due, whether the ship survive or perish. When, however, the ship is safe, the
, saved portion of cargo contributes to the sacrificed portion, notwithstanding the ship's safety ; if the ship be lost, the same rule prevails; and the cargo sacrificed is made good by contribution of the cargo saved, though the ship be itself lost.
The loss or safety of the ship, therefore, does not at all control the rule for contribution, when applied to cases of jettison; and if not in cases of jettison, why should a different rule prevail in cases of intentional or voluntary stranding? If part of the ship be sacrificed for the common good, the owner is entitled to compensation for such partial loss. If, then, his ship be wholly sacrificed for others' benefit, the ship-owner, in equity, should be no less entitled to contribution to make good his loss of ship. Surely the extent of an owner's security ought not to depend upon the amount of his loss;
otherwise the rule would become, that the greater the loss the less would be the owner's security; and certainly no such rule could long remain inflexible in the maritime courts.
Between the three great mercantile interests of a sea-adventure then, ship, cargo, and freight, no essential distinction can equitably exist, according to the now well-received and recognized rules of maritime jurisprudence in England and the United States. The foreign ordinances differ somewhat, but are not conclusive in controverted matters. Emerigon, as a writer, is deservedly of great authority; yet some of his doctrines have been justly doubted and denied. Stevens, an English writer of practical experience and erudition, has gravely erred, in implicitly adopting questionable portions of the text of Emerigon. And so it has happened, that on some points, there has been a real conflict between leading and learned European writers and American judges; especially has this been so in cases of a voluntary stranding, as it is termed.
The cases decided by Justices Story and Washington, and Chief Justice Tilghman, also by Mr. Justice Grier in Barnard v. Adams (10 How. 270), are founded on solid reason, sustained by sound principle, and are now deemed conclusive, as authority in stranding cases in this country; so that whether there be a partial or total loss of ship, her owner is equally entitled to contribution, as would be the owner of freight or cargo,
if either be sacrificed for the common benefit and shall thereby produce a partial preservation.
I am inclined, therefore, to adopt, with a single addition, the precise language of the author (in Hughes on Insurance, p. 284), for a most correct definition of
SHIP, FREIGHT, CARGO.
general average.' He says: “General average signifies the contribution to which the owners of the ship, goods, and freight, become liable inter se, on the sacrifice of a part of the ship or cargo, for the preservation of the whole in a case of general danger,” but resulting in only a partial damage.
And this not only corresponds with the present known usage at Lloyd's, in England, but also accords with the recognized practice among merchants and insurers at Boston and other principal ports of entry in the United States. With both the private underwriters at Lloyd's, and the American insurers and adjusters in State Street, a liberal policy is deemed the most acceptable course in the adjustment of losses. When the law forbids contribution, other modes of compensation are devised in special cases. Sometimes it is in the form of a pecuniary gratuity; or silver plate; or other appropriate means of signifying to the designated recipient that his useful service, extraordinary effort, hazard, or gallantry has been duly appreciated by those most benefited thereby.
Contribution being made for freight, ship, and cargo, these also in turn become contributory.
I. And the first inquiry arises as to what goods on board ship, constituting cargo, shall be liable to contribution. Whatever is essentially cargo (merces), that is, goods shipped for trading purposes, is all positively contributory. The Latin word, merces (for which the English word merchandise is a synonym), comprises all goods, which are liable and subject to average contribution. Certain other specific interests are exempt.
Thus, sailor's wages are not contributory, except in