APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
The law of general average, coming down to us from remote antiquity, is derived from the law of Rhodes, through the law of Rome, and is part of the maritime law, or law of the sea, as distinguished from the municipal law, or law of the land.
The typical case is that mentioned in the Rhodian law preserved in the Pandects of Justinian, by which, if a jettison of goods is made in order to lighten a ship, what is given for the benefit of all is to be made good by the contribution of all. Cavetur ut, si leaandoe navis gratia jactus mercium factus est, omnium contributione sarciatur; quod pro omnibus datum est. Dig. 14, 2, 1, 1.
Another case of general average, put in the Pandects, and the only one, beside jettison, mentioned in the Judgments of Oleron, or in the Laws of Wisby, is the cutting away of a mast to save ship and cargo. Dig. 14, 2, 1, 4; Oleron, arts. 8, 9; Wisby, arts. 7, 11, 14.
The distinction between voluntary and compulsory sacrifice is well illustrated by another case stated in the Pandects, recognized in the earliest English case on general average,
and approved in all the books, in which money voluntarily paid by the master to ransom the ship and cargo from pirates is to be contributed for; but not so, as to goods or money forcibly taken by pirates. Dig. 14, 2, 1, 5; Hicks v. Palington, (32 Eliz.) Moore, 297.
In the courts of England and America, general average has not been restricted to the cases put by way of illustration in the Rhodian and Roman laws; but it has never been extended beyond the spirit and principle of those laws.
In the earliest case in this court, Mr. Justice Story, in delivering judgment, stated the leading limitations and conditions, as recognized by all maritime nations, to justify a general contribution, as follows: "First, that the ship and cargo should be placed in a common imminent peril; secondly, that there should be a voluntary sacrifice of property to avert that peril; and, thirdly, that by that sacrifice the safety of the other property should be presently and successfully attained." Columbian Ins. Co. v. Ashby, 13 Pet. 331, 338.
In the next case which came before this court, Mr. Justice Grier, in delivering judgment, defined these requisites, somewhat more fully, as follows: "In order to constitute a case of general average, three things must concur: 1st. A common danger, a danger in which ship, cargo and crew all participate; a danger imminent and apparently 'inevitable,' except by voluntarily incurring the loss of a portion of the whole to save the remainder. 2d. There must be a voluntary jettison, jactus, or casting away of some portion of the joint concern for the purpose of avoiding this imminent peril, periculi imminentis evitandi causa, or, in other words, a transfer of the peril from the whole to a particular portion of the whole. 3d. This attempt to avoid the imminent peril must be successful." Barnard v. Adams, 10 How. 270, 303.
There has been much discussion in the books as to whether the right to a general average contribution rests upon natural justice, or upon an implied contract, or upon a rule of the maritime law, known to and binding upon all owners of ships and cargoes. But the difference has been rather as to forms of expression, than as to substantial principles or legal results.
Mr. Justice Clifford, speaking for this court, stated, in several cases, as the basis of general average, that natural justice requires that where two or more parties are engaged in a common 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 of the associated interests, the loss or expenses so incurred shall be assessed upon all in proportion to the share of each in the adventure. McAndrews v. Thatcher, 3 Wall. 348, 366; The Star of Hope, 9 Wall. 203, 228; Fowler v. Rathbones, 12 Wall. 102, 114; Hobson v. Lord, 92 U.S. 397, 404. That the doctrine applies only where something, which is part of the common adventure, is sacrificed solely for the benefit of the rest of the adventure, is apparent in those cases. In McAndrews v. Thatcher, it was held that there could be no contribution for expenses incurred after the master had abandoned the stranded ship, and had left her in charge of the agent of her underwriters; because, as the court said: "Complete separation had taken place between the cargo and the ship; and the ship was no longer bound to the cargo, nor the cargo to the ship. Undoubtedly the doctrine of general average contribution is deeply founded in the principles of equity and natural justice; but it is not believed that any decided case can be found, where the liability to such contribution has been pushed to such an extent as that assumed by the plaintiffs." 3 Wall. 372. In The Star of Hope, and in Fowler v. Rathbones, the general average allowed was for the loss of the vessel by stranding by the voluntary act of the master. See Emery v. Huntington, 109 Mass. 431, 436. And in Hobson v. Lord, the contribution allowed was for wages and provisions of the crew while assisting in repairing the injuries suffered by the vessel from such a stranding.
In Wright v. Marwood, in which it was held by the English Court of Appeal that a jettison, by the master, of cattle carried on deck, though proper and necessary for the safety of the ship, did not give a right to general average, Lord Justice Bramwell said: "It is not necessary to say what is the origin or principle of the rule; but, to judge from the way it is
claimed in England, it would seem to arise from an implied contract inter se to contribute 'by those interested.'" The judgment, however, was put upon the ground that, whether the rule was treated as arising from implied contract, or as a matter of positive law, it was subject to an exception in the case of goods loaded on deck, unless a deck cargo was customary. 7 Q.B.D. 62, 67.
In Burton v. English, in the same court, in which the charter-party stipulated that the ship should be "provided with a deck load, if required, at full freight, but at merchant's risk," and the last words were held not to exclude the right to a general average contribution for a necessary jettison of timber carried on deck, Lord Justice Brett, (since Lord Esher, Master of the Rolls,) in answering the question, "By what law does the right arise to general average contribution?" said: "I do not think that it forms any part of the contract to carry; and that it does not arise from any contract at all, but from the old Rhodian laws, and has become incorporated into the law of England as the law of the ocean. It is not as a matter of contract, but in consequence of a common danger, where natural justice requires that all should contribute to indemnify for the loss of property which is sacrificed by one in order that the whole adventure may be saved. If this be so, the liability to contribute does not arise out of any contract at all, and is not covered by the stipulation in the charter-party on which the defendants rely." 12 Q.B.D. 218, 220, 221.
In the same case, Lord Justice Bowen, with characteristic clearness and felicity of expression, said of the same question: "In the investigation of legal principles, the question whether they arise by way of implied contract or not often ends by being a mere question of words. General average contribution is a principle which comes down to us from an anterior period of our history, and from the law of commerce and the sea. When, however, it is once established as part of the law, and as a portion of the risks which those who embark their property upon ships are willing to take, you may, if you like, imagine that those who place their property on board a ship on the one side, and the shipowner who puts his ship by the quay to receive
the cargo on the other side, bind themselves by an implied contract which embodies this principle, just as it may be said that those who contract with reference to a custom impliedly make it a portion of the contract. But that way, although legally it may be a sound way, nevertheless is a technical way of looking at it. This claim for average contribution, at all events, is part of the law of the sea, and it certainly arises in consequence of an act done by the captain as agent, not for the shipowner alone, but also for the cargo owner, by which act he jettisons part of the cargo on the implied basis that contribution will be made by the ship and by the other owners of cargo. He makes the sacrifice on behalf of one principal, whose agent of necessity he is, on the implied terms, if you like to call it so, that that principal shall be indemnified afterwards by the rest." 12 Q.B.D. 223.
As the right to general average may be considered as resting not merely on implied contract between the parties to the common adventure, but rather on the established law of the sea, in the light of and subject to which all owners of ships and cargoes undertake maritime adventures, so the authority of the master may be treated as resting either on implied contract of the parties, or on the duty imposed upon him by the law, as incident to his station and office, to meet the necessity created by an emergency which could not be foreseen or provided for, and to prevent the property in his custody and control from being left without protection and care.
Sir William Scott, speaking of the powers and duties of the master, said: "Though in the ordinary state of things he is a stranger to the cargo, beyond the purposes of safe custody and conveyance, yet in cases of instant and unforeseen and unprovided necessity, the character of agent and supercargo is forced upon him, not by the immediate act and appointment of the owner, but by the general policy of the law; unless the law can be supposed to mean that valuable property in his hand is to be left without protection and care. It must unavoidably be admitted, that in some cases he must exercise the discretion of an authorized agent over the cargo, as well in the prosecution of the voyage at sea, as in intermediate
ports, into which he may be compelled to enter." He illustrated this by the case of jettison to be contributed for in general average, by the case of ransom, and by the case of sale of perishable cargo in a port of necessity, and added: "In all these cases, the character of agent respecting the cargo is thrown upon the master, by the policy of the law, acting on the necessity of the circumstances in which he is placed." The Gratitudine, 3 C. Rob. 240, 257, 258, 260.
In the case of The Hornet, reported as Lawrence v. Minturn, 17 How. 100, in which the question was whether a certain jettison of goods was lawful as against their owner, Mr. Justice Courtis, delivering the judgment of this court, spoke of the authority of the master in the threefold aspect, as "imposed on him by the nature of the case," as "derived from the implied consent of all concerned in the common adventure," and as "entrusted to him by the law," saying: "The nature of the case imposes on the master the duty, and clothes him with the power, to judge and determine, upon the facts before him, whether a jettison be necessary. He derives this authority from the implied consent of all concerned in the common adventure. The obligation of the owners is to appoint a competent master, having reasonable skill and judgment and courage; and they are liable, if through his failure to possess or exert these qualities, in any emergency, the interest of the shippers is prejudiced. But they do not contract for his infallibility, nor that he shall do, in an emergency, precisely what, after the event, others may think would have been best. If he was a competent master; if an emergency actually existed, calling for a decision, whether to make a jettison of a part of the cargo; if he appears to have arrived at his decision with due deliberation, by a fair exercise of his skill and discretion, with no unreasonable timidity, and with an honest intent to do his duty, the jettison is lawful. It will be deemed to have been necessary for the common safety, because the person, to whom the law has entrusted authority to decide upon and make it, has duly exercised that authority." 17 How. 100, 109, 110. See also Dupont v. Vance, 19 How. 162, 166, 170.
In former times, when merchants voyaged with their wares, their consent was held necessary to a jettison; and the captain was also required to consult with his officers, or with some of his crew, then, perhaps, more nearly his equals than in later times. But, even then, the final decision rested with the captain; for, as Emerigon said, "The captain is master. He is obliged to take advice; but the law does not oblige him to submit himself blindly to that advice, if it is bad, or if, under the circumstances, it appears to be bad." Emerigon on Ins., c. 12, sect. 4, § 3; sect. 40, § 3; The Nimrod, 1 Ware, 1, 13-15.
At the present day, since voyages are longer, and merchants seldom go with their goods, there is the greater reason that upon the captain, selected for his skill and courage, and for his fitness to command the whole adventure, and to decide promptly and justly in cases of emergency, and better acquainted than any one else with the qualities and condition of the ship, and with the nature and stowage of her cargo, should rest the authority and the duty, in case of imminent peril, first taking such advice as he sees fit, to determine finally, so far as concerns the mutual relations of those interested in the maritime adventure, the time and the manner of sacrificing part of the adventure to secure the safety of the rest.
In the leading case of Columbian Ins. Co. v. Ashby, already cited, this court, speaking by Mr. Justice Story, said: "A consultation with the officers may be highly proper, in cases which admit of delay and deliberation, to repel the imputation of rashness and unnecessary stranding by the master. But if the propriety and necessity of the act are otherwise sufficiently made out, there is an end of the substance of the objection. Indeed, in many, if not most, of the acts done on these melancholy occasions, there is little time for deliberation or consultation. What is to be done must often, in order to be successful, be done promptly and instantly by the master, upon his own judgment and responsibility." 13 Pet. 343, 344.
In The Star of Hope, already cited, this court said: "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 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 his case." 9 Wall. 230, 231.
If the master does not exercise reasonable skill and judgment and courage in sacrificing goods for the benefit of the adventure, the master and the owner of the ship are each liable to the owner of the goods sacrificed. Barnard v. Adams, 10 How. 270, 304; Lawrence v. Minturn, 17 How. 100, 110, above quoted.
After a voluntary sacrifice of part of the adventure, and a consequent escape of the rest from imminent peril, the owner of the ship, or in his absence the master as his agent, has the duty of having an adjustment made of the general average, and has a maritime lien on the interests saved, and remaining in his possession, for the amount due in contribution to the owner of the ship; and the owner of goods sacrificed has a corresponding lien on what is saved, for the amount due to him. Cutler v. Rae, 7 How. 729, 731, 732; Dupont v. Vance, 19 How. 162, 168-171; Strang v. Scott, 14 App. Cas. 601, 606, 607; 3 Kent Com. 244.
Whether the master is considered as acting under an implied contract between the owners of the vessel and the shippers of the cargo, or as the agent of all from the necessity of the case, or as exercising a power and duty imposed upon him by the law as incident to his office -- whatever may be considered the source of his authority -- the power and the duty of determining what part of the common adventure shall be sacrificed for the safety of the rest, and when and how the sacrifice shall be made, appertain to the master of the vessel,
magister navis, as the person entrusted with the command and the safety of the common adventure, and of all the interests comprised therein, for the benefit of all concerned, or to some one who, by the maritime law, acts under him, or succeeds to his authority.
In case of the master's death, disability or absence, no doubt, the mate or other chief officer of the vessel may succeed to the authority of the master, in this as in other respects. The Ann C. Pratt, 10 N.Y. Leg. Obs. 193; 1 Curtis, 340, and 18 How. 63.
In Price v. Noble, 4 Taunt. 123, in which a necessary jettison, made after a privateer had captured the ship, had taken out her captain and crew, except the mate and two men, and had put a prize master and crew on board, was held (the ship having been recaptured by the mate, and carried into a British port) to be a ground for contribution in general average, the jettison was made, as the report states, "with the assistance and approbation of the mate;" and the prize master and crew, as the court noted, "had so much better an opinion of the judgment of the mate, than of their own, that they consulted him and entrusted him with the navigation, and the stores seem to have been thrown over by his own individual direction." And Lord Tenterden so understood that case, saying that it was there decided "that the shippers of goods were liable to contribution for stores necessarily and by the advice of the mate thrown overboard, after the ship was captured, and while in possession of the enemy; for the capture, without condemnation, did not devest the property of the owners while a spes recuperandi remained." Abbott on Shipping, (11th ed.) 528.
A German commentator has suggested that, if a peril should be encountered while a pilot has command of the vessel, a case may be supposed in which the pilot might order a sacrifice in contradiction to the master, without depriving the sacrifice of the character of a general average loss. Ulrich, Haverei Gesetze, 6. But no judicial decision has been found, which recognizes a right in the pilot to make a jettison or other sacrifice. The reason for requiring a vessel to take a
pilot is his familiar acquaintance with particular waters. "His duty," said Mr. Justice Story, speaking for this court, "is properly the duty to navigate the ship over and through his pilotage limits, or, as it is commonly called, his pilotage ground." The Hope, 10 Pet. 108, 123. To the pilot, therefore, temporarily belongs the whole conduct of the navigation of the ship, including the duty of determining her course and speed, and the time, place and manner of anchoring her. Cooley v. Board of Wardens, 12 How. 299, 316; The Christiana, 7 Moore P.C. 160, 171; The City of Cambridge, L.R. 5 P.C. 451. But the master still has the duty of seeing to the safety of the ship, and to the proper stowage of the cargo. For instance, the duty to keep a good lookout rests upon the master and crew. The Iona, L.R. 1 P.C. 426. And it has been held by Dr. Lushington, in the English High Court of Admiralty, that, although a pilot is in charge, the trim of the ship is within the province of the master; The Argo, Swabey, 462; as well as the duty, if two vessels are entangled together, to cut away part of the rigging of his vessel, when necessary, in order to avoid a collision, or to lessen its effect; because the vessel, the judge said, "was not under the orders of the pilot for this purpose; she was only under the pilot's directions for the purpose of navigation; and the master, in a case of this description, is not to wait for the pilot's directions, which would tend to create great confusion and delay." The Massachusetts, 1 W. Rob. 371, 373. Rigging so cut away by the master would seem to be a subject of general average, as between the vessel and her cargo. Lowndes on Average, (4th ed.) 109, 110; 1 Parsons on Shipping, 351.
The authority of the pilot, as regards general average, was not touched by the decision of this court in The China, 7 Wall. 53, by which a vessel, in charge of a pilot whom she had been compelled by law to take on board, and brought by his negligence into collision with another vessel, was held, upon a libel in rem, to be liable in damages to the owners of that vessel. That decision proceeded, not upon any authority or agency of the pilot, derived from the civil law of master and servant, or from the common law, as the representative of
the owners of the ship and cargo; nor upon the law of contribution in general average as between them; but upon a distinct principle of the maritime law, namely, that the vessel, in whosesoever hands she lawfully is, is herself considered as the wrongdoer, liable for the tort, and subject to a maritime lien for the damages. 7 Wall. 68. As said by Mr. Evarts, in his argument for the libellants, "This theory treats the faults of conduct in the vessel's navigation as imputable to the vessel itself, and discards as immaterial all considerations touching the adjustment among the navigators, or between them and the owners, of the personal fault or personal responsibility of the misgovernment of the vessel." 7 Wall. 56. And, as observed by this court, in another case decided at the same term, cases of general average "certainly are not cases of tort." The Eagle, 8 Wall. 15, 23. It is worthy of notice, also, that the responsibility of the vessel for torts does not include her cargo. The Malek Adhel, 2 How. 210, 235-237; The Victor, Lushington, 72; The Flora, L.R. 1 Ad. & Ec. 45, 48.
But if a general average loss could be held to arise from an act of a pilot, without or against the order of the master of the vessel, it could only be because the pilot, by the maritime law, and by reason of his nautical skill and experience, temporarily took the place of the master, and was specially charged with the command and the safety of the whole maritime adventure, and of that adventure only. However it might be with a pilot, there is no case, in England or America, before the one at bar, in which a sacrifice made by a stranger, in no way connected with the navigation of the ship, or ...