Nelson v. Belmont

No objection was made by the counsel, upon the argument, to the principles upon which the general average was adjusted in this case, provided the specie was liable to contribute to such average for the expenses and loss which occured after it was placed on board the Danish brig. Whether it was so liable, therefore, is the only question to be considered.

General average losses arise, either from voluntary sacrifices made, or extraordinary expenses incurred, for the joint benefit of the ship and cargo; the property which contributes is that which is saved from the peril, together with that which is sacrificed for the preservation of the rest. The loss, however, does not, in all cases, fall upon the whole of this property. Arnould says—■“ All which is ultimately saved out of the whole adventure, i. e., ship, freight and cargo, contributes to make good the general average loss, provided it had been actually at risk, at the time such loss was incurred; but not otherwise, because, if not at risk at the time of the loss, it was not saved thereby.” (2 Arnould on Ins., Perkins ed. § 338.) Phillips uses similar language : he says—“ Goods, or any interest, are not liable to contribute for any general average, or expenses incurred subsequently to their ceasing to be at risk.” (2 Phillips on Ins. 3d ed. § 1407.) The defendant's position here is, that the specie, when once placed on board the Danish brig, being entirely secure from the peril which threatened the Galena and her cargo, was, under the rule laid down by Arnould and Phillips, exempted from contribution for subsequent losses.

In determining this question, it will be to

Such a separation may, and frequently does occur, in the course of a voyage. For instance, in case of a jettison, the goods jettisoned do not contribute for any damage afterwards done to the residue of the cargo. If goods forming a portion of the cargo are sold for the necessities of the ship, or are delivered to the owner or consignee, either before or after the arrival of the vessel at its port of destination, and before the occurrence of a general average loss, they do not contribute. So,, a separation may occur, through the withdrawal, by the owner, of a portion of the goods, before the termination of the voyage. This every owner has, in general, a right to do, at any time, on paying the freight for the entire voyage, and the goods thus withdrawn are exempt from contribution for any subsequent loss, upon the principle that it is the goods at risk only which contribute.

If however, the case of Bevan v. The United States Bank ( 4 Whart. 301 ), was correctly decided, this principle of exemption arising from the separation of a part of the cargo from the rest, is subject to a very important qualification. The vessel, in that case, was on a voyage from New Orleans to Philadelphia, and became stranded and ice-bound in Delaware Bay, but a' short distance

The analogy here suggested is more apparent than real. Partners are bound together by a compact which they are not at liberty to violate; here there is no such mutual bond; the parties are brought together without preconcert or agreement of any kind. While the property remains connected, the owners have a common interest in the enterprise; but the tie which connects them, being purely accidental, and not conventional, maybe broken at . will, at any time, by either of the parties.

*It is difficult to reconcile the decision referred to with that in the case of Bedford Commercial Insurance Company v. Parker ( 2 Pick. 1 ). In that case, the ship, bound to New Bedford, struck on a reef of rocks, about nine miles from the town, and remained there in a situation of great peril. Her cargo was iron; wlple she lay upon the rocks, the defendants, who owned the iron, sent men on board and removed and saved a considerable portion of the cargo. The plaintiffs, who were the insurers, commenced their efforts to get the ship off, before this iron was removed, but without success;' they afterwards contracted with an individual to get the vessel off and take her to the town for a specified sum, which he did, she still having 155 tons of the iron cri board. The action was brought to recover the defendants’ proportion of this expense, and the question was, whether any portion of the cargo, and if any, what portion should contribute.

If the doctrine of the case just considered is sound, if

This decision, Avhich has been uniformly approved, appears to me to be in strict accordance with the principles upon which the doctrine of general average rests. My conclusion, therefore, is, notAvithstanding the case of Bevan v. The United States Bank, that if the oAvner of any portion of the cargo, CAren after a peril has occurred, and after a series of measures to avert it have been commenced, can succeed in so separating his own ^property from the rest that is no longer in any sense at risk, he cannot be held liable to contribute to the exp enses sub se quently meurred.

But in order rightly to apply this rule, it is necessary to ascertain the full scope of the term “ at risk.” Physical destruction, or direct physical injury to the ship or cargo itself, is not the only risk to Avhich property so situated is exposed. Its value depends, or at least is supposed to depend, in some degree, upon the successful prosecution of the voyage; Avhatever threatens .the voyage, therefore, is a peril to the entire property; until that is broken up, unless the property claimed to be exempt is not only separated from the rest, and put in a place of present safety, but entirely disconnected Avith the enterprise, it must be regarded as still at risk, and liable to

There are two English cases bearing directly upon this question, to which it may be well to refer. The first is that of Job v. Langton (6 Ellis & Black. 779). The bark Snowdon, with a general cargo, sailed from Liverpool for St. Johns, Newfoundland, on the 20th March 1855, and ran ashore, the same night, on the coast of Ireland. It became necessary to discharge the whole of the cargo, in order to get the vessel off. After the cargo was discharged, and placed in store at Dublin, she was gotten off, at considerable cost, with the aid of a 'steam-tug, and by cutting a channel for the purpose; the steam-tug did no work at the ship,until after the cargo was landed; the vessel was towed to Liverpool to be repaired. In order not to lose a market at St. Johns, the cargo was forwarded from Dublin by another vessel; Irat it was stipulated, that the case should be decided, as if the Snowdon, after being repaired, had herself carried on the cargo. The (l^ies^:aon :*n casa was’ Aether *tho cargo should contribute to the expenses of getting the vessel of,' as a general average.

Nov/, it is plain, that if the position we have assumed is correct, viz., that so long as the voyage is kept on foot, and is not abandoned, whatever threatens to break it up, the whole cargo is to be considered at risk, whether in a situation to be physically injured by the peril or not, then, of course, the expenses of getting the Snowdon off, and towing her to Liverpool, must be regarded as chargeable to general average. The case was put upon this ground by Mr. Blackburn, who argued in support of the

But the court held, that the cargo was exempt from contribution for the expenses of getting the vessel off. It was conceded by Lord Campbell, in giving his opinion, that the fact that the stranding was unavoidable, and not voluntary, did not affect the question; he said—•“ Although the stranding was fortuitous, all the expenses incurred from the misadventure, till all the cargo had been discharged, confessedly constituted general average.” Ho, nevertheless, held, that after the cargo was discharged and put in a place of safety, the subsequent expenses could not be said to be incurred for the joint benefit of the ship and cargo, inasmuch as the cargo was no longer at risk; thus rejecting the doctrine that a peril to the voyage is necessarily a peril to all the property concerned in it.

He was, evidently, I think, led to adopt this conclusion, by the circumstance that the cargo was actually carried to its destination by another ship. For, although he says, “ of course, we do not, contrary to the intention of the parties, attach any importance to the fact that the cargo was forwarded in another vessel,” he nevertheless adds— “ but in thee-,absence of any ^statement to the contrary, we might infer (as the fact turned out to be) that there would be no difficulty in forwarding the cargo by another vessel.” This last sentence furnishes the key to the decision ■ for no one can suppose that if the cargo had in reality been taken again on board the Snowdon, and carried to St. Johns, and the voyage had thus been actually saved to both ship and cargo, the

What the court would have done in that case, may, I think, be gathered from the subsequent case of Moran v. Jones (7 Ellis & Black. 523). The material facts in this case were, that the ship Tribune, chartered for a voyage to Peru and back, sailed from Liverpool, on the 7th of Judy 1856, and having encountered a storm, was, on the same day, forced to anchor near the entrance of that port. To relieve her, the foremast was cut away, but she drove ashore and became fixed upon the bank. On the 9th, assistance was procured from Liverpool, and the furniture of the ship, together with the goods on board, were sent in lighters to Liverpool; on the 14th, a stream anchor was carried out. The ship was afterwards scuttled, and a portion of the ballast was thrown overboard, when, being-kept free by pumping, she floated. She was then taken in tow by steamers, and taken back to Liverpool, where she was repaired; after which the goods were re-shipped, and she again set sail upon her voyage. The question in the case was, whether the owner of the goods was liable to contribute, by way of general average, to the expenses incurred in getting the ship off, after the goods were safely landed and warehoused.

The court was now called upon to decide a case where the goods were actually re-shipped and forwarded by the same vessel. Here, as in the previous case of Job v. Langton, the goods were on shore and safely stored, and hence the expenses in question» could not have been incurred, for their benefit-, except in view of their interest in the ultimate prosecution of the voyage. Mr. Blackburn, who was engaged in this, as well as the previous case, argued here in opposition to the claim of "“"general average; he pressed upon the court its decisión in the former case, that expenses incurred to

Now, conceding this to be a valid distinction, it is difficult to find any foundation for it in the facts of the case. The goods were removed from the ship, and sent to Liverpool on the 9th of July; it does not appear that any effort was made to get the ship off, until the 14th; the stream anchor was then carried out; the scuttling, the pumping, and the employment of the steamers to tow her to Liverpool, were all done afterwards. How, then, it can be said, that the measures resorted to for the purpose of getting the vessel off constituted a “new operation,” in the case of Job v. Langton, and not in this, it is not easy to perceive. Lord Campbell refers to the case of Bevan v. The United States Bank (supra) as supporting the distinction he takes; that case, however, was not put upon any such ground, but, as we' have seen, partly upon a

posed analogy to a partnership. * The case of Moran v. Jones was, I think, rightly decided; but I cannot resist the conclusion that the idea of a continuous operation, commenced before and completed after the removal of the goods, was resorted to, in order to reconcile the decision with that in the previous case of Job v. Langton.

These two English cases have been referred to thus particularly, because they involved a principle of some commercial importance, and because they lie - directly in our path, in coming to a conclusion in the present case. But whatever may be the true interpretation of these cases, I nevertheless hold, that although every owner of any portion of a cargo may, if he can, separate his property from the rest, and from the whole adventure, at any time, and thus avoid contributing to a subsequent loss; yet, that such separation must be complete, and such as to leave no community of interest remaining. If the enterprise is not abandoned, and the property, although separated from the rest, is still under the control of the master of the vessel, and liable to be taken again on board, for the purpose of prosecuting the voyage, the relations of the several owners are in no respect changed; the common interest remains; and whatever is done for the protection of that common interest should be done at the common expense.

The result of these principles, when applied to the present case, is plain. It turns entirely upon the nature and object of the separation of the specie from the ship Galena, and from the residue of the cargo, when it was placed on board of the Danish brig. I entertain no doubt, that such a severance as would have exempted it from all liability to contribute to" the subsequent expenses might have been effected by the master of the vessel, in the same manner as by the owner himself, had he been present. The master is the agent and representative oí

But the facts do not warrant this ■ assumption. The case states that “ the specie was put on board the brig, because it was safer there, as in case the fire broke out, it might be too late to transfer it from the ship.” The brig was to accompany the Galena to Charleston, and there is nothing from which it can be inferred, that it was the intention of the master of the latter to relinquish his control of the specie. The fact that he reclaimed and took it from the brig, as soon as he arrived in Charleston, tends strongly to the opposite inference. It never ceased, therefore, up to that time, to constitute a part of the cargo of the Galena; and if the fire had been previously extinguished, and the voyage resumed, it would, of course, have been again taken on board by and carried forward by her. The case states, that while at Charleston, the master of the Galena determined to abandon the voyage. It follows, from what has been said, that up to that time, the specie remained liable to contribute to the general average loss; and so the superior court held.

The appeal taken by the plaintiffs, on the ground that

It is claimed, however, that where a peril occurs, no part of the cargo can be withdrawn or separated from it, so as to be relieved from contribution for all the sacrifices made and "“‘expenses incurred at any time before the peril is entirely past. The owner of the ship and all the owners of a cargo are bound, it is said, by a compact or agreement with each other, which prevents any one of them from relieving his own property from the common danger, so as to exempt it from the losses which may afterwards happen to others, in saving theirs from the same danger. But there is no such compact or agreement; there is no agreement at all on the subject. The principles of justice, on which general average is founded, may lead to such a result in many circumstances. The peril may be of such a nature that the only chance of" safety for both ship and cargo is the transfer of the 1 rtter to lighters in the vicinity of a harbor, or to a convoy at sóa. The safety of different portions of the goods and of the vessel may thus be insured at different points of time, during the peril. But the master, representing all interests, must be impartial to all; he cannot, in such a case, exempt the property of one owner from entire

But suppose a ship takes fire, having -on board a cargo which can only be saved by extinguishing the flames as quickly as possible; there is, however, a box of jewelry or a quantity of gold dust, of ten times greater value than the cotton or lumber with which the vessel is loaded; the heavy freight must abide the fate of the vessel, because there is no other means of saving it; the jewelry or the gold may be placed out of the danger, by transfer ring it to another vessel in sight. The duty of the master in such a case, is plainly to hail the ship and make the transfer. In such a case, there is not, in a just-sense, á community of peril; the property incapable of removal is subject to whatever of danger is occasioned by the fire; the gold is not involved in that peril, because it can be put - in safety by removal. * In such a case must there be a community of loss? It seems to me not. If the assistance of the friendly vessel is required only to take care of the value transferred to it, the charge in the nature of salvage should rest upon that value alone, while, on the other hand, there should be no contribution in favor of the vessel in distress and her remaining cargo, for losses wholly unconnected with the safety of the article transferred. The owner of the gold may be himself on board; the proximityof another vessel is to him absolute exemption from the peril to his property, while to others it only offers the certainty of saving life. The circumstances, all considered, do not involve his interest in the danger; why then should they involve him in the losses incurred in averting the danger? If

The question can be placed in á still stronger light. Suppose a vessel, having reached her port of destination, takes fire before the landing of the cargo; the heavy freights are incapable of immediate removal, and in order to save it as well as the vessel, the fire must be extinguished; but the specie on board can be landed, and thus separated from the peril; it may well happen, indeed that specie is the only freight. In such an exigency, may not the consignee extricate his property from the impending danger, without liability to contribute for the loss or damage of the ship? The doctrine of general average requires contribution for sacrifices made to avert a common danger; where there is no community of peril, there is none in the loss. In the case supposed, it may be necessary to scuttle the ship or submerge it with water, by the aid of fire-engines; great damage may thus thus ensue to the freights which cannot begmoved, if there be any such, and to the vessel itself. The interests which are protected by the measures taken, and those only, should, on principles of equity, bear the losses.

In the present case, the fire began at sea, but it was extinguished in the port of Charleston, by the employment'of fire * companies, which filled the vessel with water.

The sacrifices and expenditures were: 1. The compensation paid to the fire companies: 2. The injury to the vessel: 3. The injury to the cotton on board, which could not be separated from the danger. But the specie was landed and the measures taken to protect the ship and cotton had nothing to do Avitli its safety. It may be of no special importance, that the specie had been prev'ously transferred to the Danish brig; the brig Avas in the service of the vessel exposed to the peril; but both vessels Avere in port and the specie could be landed from