Mr. Justice GRIER,
delivered the opinion of the court
The plaintiffs below, Joseph Adams and others, brought this [300]*300action against Charles Barnard and others, in the Circuit Court of New York, to recover contribution in general average for the loss of their vessel called the Brutus, on board of which certain goods were shipped, and consigned to the plaintiffs in error, and delivered to them on their promise to pay, provided contribution were justly due.
On the trial, the Circuit Court gave certain instructions to the jury, which were tne subjects of,exceptions, on the correctness of which this court is-now called upon to decide.
As the facts of the case were not disputed, it will be proper to state them, in connection with the instructions given by the court, in order to avoid any mistake or misconception which might arise in construing the terms of mere abstract propositions without relation to the facts on which they were based.
On the 8th of October, 1843, the ship Brutus was lying at anchor, at the usual place of mooring vessels in the outer roads at Buenos Ayres, about seven miles from the shore. The width of the river at that place, between Buenos Ayres and Colonia on the opposite shore, is about fifteen miles. The Brutus had taken her cargo on board for New York, consisting of nutria skins, dry hides, horns, and jerked beef. The master was on shore, and she was in charge of the first mate, with a crew consisting of twelve persons in all. On the 7th, a gale had commenced, which on the 8th had become dangerous. About four o’clock next morning the ship began to drag her anchors, and the small bower anchor was let go. About nine o’clock in the evening, the gale increasing, the best bower anchor parted with a loud report. About ten o’clock, the small bower parted, and the ship commenced drifting broadside with the wind and waves. Endeavors were then made to get the ship before the wind, which failed, on account of the chains keeping her broadside to the sea, which was making a breach over her fore and aft. The chains were then slipped, and the vessel got before the wind, two men were put to the wheel,- and one to the lead, and it was determined “ to run the ship ashore for the preservation of the cargo and the lives of the crew.” It was now about eleven o’clock at night when the ship was got before the wind and under command of the helm. •The shore next to Buenos Ay.es, towards which the ship had been drifting, had banks and shallows extending out come three or four miles. If the vessel had been driven on these by the tempest, she would have been wrecked and lost, together with the cargo and crew. On the Colonia, side of the river were sunken rocks several miles from the shore. “ For the purpose of saving the cargo and crew any how, and possibly the ship,” she was steered up the river, inclining a little towards [301]*301the Buenos Ayres.side, with the intention of running heron shore at a convenient place. After they had proceeded up the river about ten miles, the mate discovered from the flashes of' lightning that the vessel was approaching a point called St. Isidro, off which he perceived something black which he supposed to be rocks, and “ being afraid,” or “thinking it impossible to get by ” this point without being wrecked and lost, he directed the course of the vessel to be changed towards the shore, where he had seen what he supposed to be a house, but which turned out to be a large tree. About midnight the vessel struck the beach and the rudder was knocked away. The foresail was then hauled up, but the staysail was let remain to keep her head straight, and she continued to work herself up until daylight. The place where she was stranded was a level beach about two hundred yards above ordinary low-water-mark. The ship was not wrecked, or broken up, though somewhat damaged, and- the cargo was not injured. The master chartered the bark Serene, and transferred the cargo to her. But it was found that, with the means to be obtained in that vicinity, it would have cost more than the ship was worth to get her off the beach. She was therefore sold. The Serene afterwards arrived safely at New York, under command of Captain Adams, former master of the Brutus. In transshipping the jerked beef from the Brutus to the Serene, a portion of it got wet, and when it arrived at the port of New York it was all found to be worthless.
Oh these facts, the court instructed the jury as follows : —
1. “ The evidence on the subject of the stranding consists in the uncontradicted and unimpeached testimony of a single witness. He was the acting master-of the vessel at the time of the loss in question. He states that when the vessel was without any means of resisting the storm, and her going ashore upon a rocky and more dangerous part of the shore was, in his opinion, inevitable, he did intentionally and for the better security of the property and persons engaged in the adventure, give her a direction to what he supposed to be, and whát proved to be, a part of the shore where she could lie more safely. These facts, if credited by you, constitute in judgment of law a voluntary sacrifice of the vessel, and for such sacrifice the plaintiffs are entitled to recover in general average.”
This instruction forms the subject of the first exception, and., raises the most important question in the case.
The apparent contradiction in the terms of this instruction has evidently arisen from -a desire of the court to give the plaintiffs in error, on the argument here, the benefit of the negation of their own proposition, viz. that if the loss of the vessel [302]*302by the storm was inevitable, the stranding could not be a voluntary “.sacrifice entitling the plaintiffs to contribution.” It is because the form in which this proposition is stated is equivocal and vague, when applied to the case before us, that the negation of' it appears to be 'contradictory in its terms. The court should, therefore, not be understood as saying, that, if the jury believed the peril which was avoided was “ inevitable,” or that if the jury believed that the imminent peril was not avoided, they should find for the plaintiffs. But rather, that if they believed there \yas an imminent peril of being driven “ on a rocky and dangerous part of the coast,” when the vessel would have been inevitably wrecked, with loss of ship, cargo, and crew, and that this immediate peril was avoided- by voluntarily stranding the vessel on a less rocky and dangerous part of the coast, whereby the cargo and crew were saved uninjured, then' they should find for the plaintiffs. . Looking at the admitted facts of this caseiin connection with the instruction given, it is plain that the jury could not have understood the court to mean any thing else. And we may add, moreover, that, in the argument here, the learned counsel have not relied upon any verbal criticism of the instruction, but have encountered fairly the proposition which we now consider as maintained by the court below.
It cannot be denied by any one .who will carefully compare this case with that of The Hope, 13 Peters, 331, unanimously decided by'this court, and the cases of Caze v. Reilly, 3 Wash. C. C. 298, Sims v. Gurney, 4 Binney, 513, and Gray v. Waln, 2 Serg.
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Mr. Justice GRIER,
delivered the opinion of the court
The plaintiffs below, Joseph Adams and others, brought this [300]*300action against Charles Barnard and others, in the Circuit Court of New York, to recover contribution in general average for the loss of their vessel called the Brutus, on board of which certain goods were shipped, and consigned to the plaintiffs in error, and delivered to them on their promise to pay, provided contribution were justly due.
On the trial, the Circuit Court gave certain instructions to the jury, which were tne subjects of,exceptions, on the correctness of which this court is-now called upon to decide.
As the facts of the case were not disputed, it will be proper to state them, in connection with the instructions given by the court, in order to avoid any mistake or misconception which might arise in construing the terms of mere abstract propositions without relation to the facts on which they were based.
On the 8th of October, 1843, the ship Brutus was lying at anchor, at the usual place of mooring vessels in the outer roads at Buenos Ayres, about seven miles from the shore. The width of the river at that place, between Buenos Ayres and Colonia on the opposite shore, is about fifteen miles. The Brutus had taken her cargo on board for New York, consisting of nutria skins, dry hides, horns, and jerked beef. The master was on shore, and she was in charge of the first mate, with a crew consisting of twelve persons in all. On the 7th, a gale had commenced, which on the 8th had become dangerous. About four o’clock next morning the ship began to drag her anchors, and the small bower anchor was let go. About nine o’clock in the evening, the gale increasing, the best bower anchor parted with a loud report. About ten o’clock, the small bower parted, and the ship commenced drifting broadside with the wind and waves. Endeavors were then made to get the ship before the wind, which failed, on account of the chains keeping her broadside to the sea, which was making a breach over her fore and aft. The chains were then slipped, and the vessel got before the wind, two men were put to the wheel,- and one to the lead, and it was determined “ to run the ship ashore for the preservation of the cargo and the lives of the crew.” It was now about eleven o’clock at night when the ship was got before the wind and under command of the helm. •The shore next to Buenos Ay.es, towards which the ship had been drifting, had banks and shallows extending out come three or four miles. If the vessel had been driven on these by the tempest, she would have been wrecked and lost, together with the cargo and crew. On the Colonia, side of the river were sunken rocks several miles from the shore. “ For the purpose of saving the cargo and crew any how, and possibly the ship,” she was steered up the river, inclining a little towards [301]*301the Buenos Ayres.side, with the intention of running heron shore at a convenient place. After they had proceeded up the river about ten miles, the mate discovered from the flashes of' lightning that the vessel was approaching a point called St. Isidro, off which he perceived something black which he supposed to be rocks, and “ being afraid,” or “thinking it impossible to get by ” this point without being wrecked and lost, he directed the course of the vessel to be changed towards the shore, where he had seen what he supposed to be a house, but which turned out to be a large tree. About midnight the vessel struck the beach and the rudder was knocked away. The foresail was then hauled up, but the staysail was let remain to keep her head straight, and she continued to work herself up until daylight. The place where she was stranded was a level beach about two hundred yards above ordinary low-water-mark. The ship was not wrecked, or broken up, though somewhat damaged, and- the cargo was not injured. The master chartered the bark Serene, and transferred the cargo to her. But it was found that, with the means to be obtained in that vicinity, it would have cost more than the ship was worth to get her off the beach. She was therefore sold. The Serene afterwards arrived safely at New York, under command of Captain Adams, former master of the Brutus. In transshipping the jerked beef from the Brutus to the Serene, a portion of it got wet, and when it arrived at the port of New York it was all found to be worthless.
Oh these facts, the court instructed the jury as follows : —
1. “ The evidence on the subject of the stranding consists in the uncontradicted and unimpeached testimony of a single witness. He was the acting master-of the vessel at the time of the loss in question. He states that when the vessel was without any means of resisting the storm, and her going ashore upon a rocky and more dangerous part of the shore was, in his opinion, inevitable, he did intentionally and for the better security of the property and persons engaged in the adventure, give her a direction to what he supposed to be, and whát proved to be, a part of the shore where she could lie more safely. These facts, if credited by you, constitute in judgment of law a voluntary sacrifice of the vessel, and for such sacrifice the plaintiffs are entitled to recover in general average.”
This instruction forms the subject of the first exception, and., raises the most important question in the case.
The apparent contradiction in the terms of this instruction has evidently arisen from -a desire of the court to give the plaintiffs in error, on the argument here, the benefit of the negation of their own proposition, viz. that if the loss of the vessel [302]*302by the storm was inevitable, the stranding could not be a voluntary “.sacrifice entitling the plaintiffs to contribution.” It is because the form in which this proposition is stated is equivocal and vague, when applied to the case before us, that the negation of' it appears to be 'contradictory in its terms. The court should, therefore, not be understood as saying, that, if the jury believed the peril which was avoided was “ inevitable,” or that if the jury believed that the imminent peril was not avoided, they should find for the plaintiffs. But rather, that if they believed there \yas an imminent peril of being driven “ on a rocky and dangerous part of the coast,” when the vessel would have been inevitably wrecked, with loss of ship, cargo, and crew, and that this immediate peril was avoided- by voluntarily stranding the vessel on a less rocky and dangerous part of the coast, whereby the cargo and crew were saved uninjured, then' they should find for the plaintiffs. . Looking at the admitted facts of this caseiin connection with the instruction given, it is plain that the jury could not have understood the court to mean any thing else. And we may add, moreover, that, in the argument here, the learned counsel have not relied upon any verbal criticism of the instruction, but have encountered fairly the proposition which we now consider as maintained by the court below.
It cannot be denied by any one .who will carefully compare this case with that of The Hope, 13 Peters, 331, unanimously decided by'this court, and the cases of Caze v. Reilly, 3 Wash. C. C. 298, Sims v. Gurney, 4 Binney, 513, and Gray v. Waln, 2 Serg. & Rawle, 229, which have received the “ unqualified assent” of this court, that, whatever distinctions may be taken as to the accidents and circumstances of these cases, they do not materially or substantially differ from the present, so far as the point.now under consideration is concerned; and that we are now called upon to reconsider and overrule the doctrine established by those cases. ‘ But however they may appear to be contrary to certain abstract propositions stated by some text-writers on this subject in England, and a case or two in this country, the policy and propriety of overruling our own and the three other decisions which have received our “ unanimous approval,” even if we were not now satisfied with their correctness, may well be doubted: There are few cases to be found in the books which have been more thoroughly, laboriously, and ably investigated by the most learned counsel and eminent judges. In questions involving so much doubt and difficulty, it is of more importance to the mercantile community that the law be settled, and litigation ended, than how it is settled. No decision of a question depending on such nice and subtile [303]*303reasoning will meet the approbation of every mind; and if the cases we have mentioned have failed of this effect, it may well be doubted if.any reasons which could be given f®r overruling them would prove more successful.
It is not necessary, in the examination, of this case, again to repeat the history of this doctrine of general average, from the early date of the “ Lex Rhodia de jactu” through the civil or Roman law, and the various ordinances and maritime codes of European states and cities, down to thfe present day. The learned opinions delivered in the cases to which we have alluded leave nothing further to be said on that portion of the subject. We shall therefore content ourselves with stating the leading and established principles of law bearing' on the point in question, in order that we may have some precise data with which to compare the facts of the present case, and test the value of the arguments with which the instructions of the Circuit Court have been assailed.
The law of general average has its foundation in equity. The principle, that “ what is given for the general benefit of all .shall be made good by the contribution of all,” is recommended, not only by its equity, but also by its policy, because it encourages the owner to throw away his property without hesitation, in time of need.
In order to constitute a case for 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 íoss 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 common, peril must be successful.
It is evident from these propositions, that the assertion so much relied on in the argument, namely, “ that if the peril be inevitable there can be no contribution,” is a mere truism, as the hypothesis of the case requires that the common peril, though .imminent,- shall be successfully avoided. Those who urge it must therefore mean something else. And it seems, when more carefully stated, to be this, “ that if the common •peril was of such a nature, that the -‘ jactus,’ or thing cast. away to save the rest, would, have perished anyhow, or perished ‘ inevitably,’ even if it had not been selected to suffer [304]*304in. place of the whole, there can be no contribution.” If this be- the meaning of this proposition, and we' can discover no other, it is a denial of the whole doctrine upon which the claim for general average has its foundation. For the master of the ship would not be justified in casting a part of the cargo into the sea, or slipping his anchor, or cutting away his masts, or stranding his vessel, unless compelled to it by the necessity of the case, in order to save both ship and cargo or one of them, from an imminent peril which threatened.their common destruction. The necessity of the case must compel him to choose between the loss of the whole and part; but, however metaphysicians may stumble at the assertion, it is this forced choice which is necessary to justify the master in making a sacrifice (as it is called) of any part for the.whole. Hence the answer of every master of a vessel, when examined, will be, “ I considered the destruction of both ship and cargo ‘ inevitable,’ unless I had thrown away what I did.” “ The goods thrown away would have gone to the bottom anyhow.” If the case does not show that the jettison was “ indispensable,” in order to escape the common peril, the master would himself be liable for the loss consequent therefrom. It is for this reason, that the ordinances of Marseilles require that the master should have a consultation with the supercargo and crew as to the absolute necessity of the measure, and as evidence that it was not done through the vain fears, cowardice, or imprudence of the master. But the right to contribution is not made to depend on any real or presumed intention to destroy the thing cast away, but on the fact that it has been selected to suffer the peril in place of the whole, that the remainder may be saved. The anchor lost by voluntarily slipping the cable may be recovered, the goods jettisoned may float to the shore and be saved, and yet, if the anchor or goods had not been cast away, they would-have been “inevitably ” lost, and there would have been a total loss of both ship and cargo. Take the case of Caze v. Reilly. A vessel is completely surrounded by the enemy’s cruisers. It is impossible to save both ship and cargo from capture and a total loss. A part or the whole of the cargo is thrown overboard, and thus the vessel escapes. This is an admitted case for contribution. And it. is no answer to the claim of the owners to say, “ Your cargo was ‘ inevitably ’ lost; as it was situated it was worthless, and consequently you sacrificed nothing for the common benefit. Besides,- a portion of it floated on shore and was saved from capture, or was fished from the bottom without sustaining much injury; the throw-' ing it overboard was the best thing that could be done for it under the circumstances, as without that it would have been [305]*305* inevitably’ lost.” But suppose, as in the case referred to, the ship cannot be saved by casting the cargo into the sea, but the cargo, which is of far greater value, can be saved by casting the vessel on the land, or stranding her. Is it any answer to her claim for contribution to say, that “ her loss was ‘ inevitable,’ she was in a better situation on the beach than in the hands of the enemy, or at the bottom of the sea, or wrecked upon rocks, and therefore, there was no such sacrifice as would entitle her to contribution ” ? We cannot comprehend why this argument should have no weight in the first case (which is an admitted cáse of contribution in all the books), and yet that it should be held as a conclusive obstacle to the recovery in the latter. The replication to this objection in the first instance, and the conclusive one, is, “ the vessel and cargo were in a common peril, where both or all could not be saved; the .vessel alone, or the vessel and part of the cargo, have been saved, by casting the loss upon the cargo, and this constitutes the very hypothesis on which the doctrine of general average rests.?’ Why, then, should there be a difference in principle, where the cargo is damaged or lost by being cast into the sea, and the ship saved, and the case where the ship is damaged or lost by a voluntary stranding, or by being cast on the land, find the cargo saved, is a question which has never yet be.en satisfactorily answered. In fact, we do not understand the counsel to contend for the doctrine of salva navi, or that the Brutus was not entitled to contribution because she could not be got afloat at a less cost than her value. The principle on which the counsel relied is that enunciated in the opinion of the court in Walker v. United States Ins. Co., 11 Serg. & Rawle, 61. “ It is not enough,” says the learned judge, “that there be a deliberate intent to do an act which may or may not lead to a loss; there must'be a deliberate purpose to sacrifice the thing at all events, or at the very least to put it in a situation in.which the danger of eventual destruction would be increased.”
But, as we have already seen, the intention to destroy the jactus, or thing exposed to loss or damage for the benefit of'the whole, makes no part of the hypothesis upon which the right of contribution is founded. Indeed, the speciousness of this assertion seems to have its force from the use of the word “ sacrifice ” in its popular and tropical, instead of its strict or technical meaning. The offering of sacrifices was founded on the idea of vicarious suffering. And when it is said of the jactus, that it is sacrificed for the benefit of the whole, it means no more than that it is selected to undergo the peril, in place of the whole, and for the benefit of the whole. It is made (if we may use another theological phrase) the “ scape-goat ” for [306]*306the remainder of the joint property exposed to common destruction. The jactus ” is said to be sacrificed, not because its chance of escape was separate, but because of its selection to suffer, be it more or less, instead of the .whole, whose chances of safety, as a whole, had become desperate. The imminent destruction of the whole has been evaded as a whole, and part saved, by transferring the whole peril to another part.
If a cargo of cotton, about to be captured or sunk, be thrown overboard in part or in whole, and the ship thufe saved, the fact that the ' cotton floated to the shore and. was saved, and therefore was in a better condition by being cast away than if it had remained to be captured or sunk, cannot affect its right to contribution, though it may diminish its amount. The loss.or damage arising from its assuming the peril, that the ship may escape; may be truly said to be the real “ sacrifice,”, in the popular use of the phrase. Its value is not measured by its hopes of safety, for by the hypothesis it had none; but its right to contribution is founded on its voluntary assumption to run all the risk, or bear the brunt, that the remainder may be saved from the common peril. The fact that goods thrown overboard are in no worse, or even in a better, condition as to chances of safety, than if they had remained on board, or that the stranded vessel is in a better condition than if. she had been wrecked or sunk, cannot' affect the right to contribution of that part which was selected tp suffer in place of the whole.
Having made these remarks, by way of vindicating the case? referred to, and noticing the arguments by which they have been assailed, let us briefly compare the. facts of this case with the principles we have stated, and .inquire, first, What was the common peril? and'second, Was any portion of the joint adventure saved from it by the transfer of the risk or loss to another ?
The common peril, which in this case was sought to be avoided, was shipwreck, or the destruction of vessel, cargo, and crew. The ship lay at anchor ; she was assailed by a violent tempest, her cables broken, her anchors gone, and she was being driven by the force of the gale broadside upon the shallows extending three miles'out from the shore at Buenos Ayres. In order to save the cargo and crew, it is. determined to put on sail, and run up the river to find a safe .piace to strand the vessel. They proceed ten miles up the river, when they encounter another peril at Point St. Isidro. To avoid being wrecked on the rocks, the course of the vessel is immediately changed, and she is steered directly for the shore, and run upon .a sandy beach,-where she is left high and dry by the tide. The cargo is saved without injury, but the ship is on the laird, where she [307]*307is comparatively valueless, on,account of the expense which must be incurred to replace her in her element. By the will and directions of the master, she has become the victim, and borne the loss, that the cargo might escape from the common peril. It is true she has not been wrecked or lost, as she inevitably would, had she been driven on the fiats at Buenos Ayres by the tempest, or been foundered oh the rocks off Point Et. Isidro, but she has voluntarily gone on shore, which was death to her, while it brought, safety to the cargo. And we are of opinion she has the same right to demand contribution that the owners of the cargo would have had against her, had it been' cast into the sea to insure her safety.
There is therefore no error in the instruction given by the court below on this' point.
2. The second and, third instructions excepted to have reference to the place at which the goods are to be valued for the purpose of adjusting the general average.
The reasons given by the learned judge in these instructions are amply sufficient to show their propriety. The adventure was continued, notwithstanding the disaster, and terminated at New York. The goods were not returned to the shippers, and consequently no contribution could be,collected at Buenos Ayres. The fact that the Brutus was left on the strand, and the adventure continued till the cargo reached its destination, in another vessel, cannot affect the case. The place where average^ shall be stated is always dependent, more or less, on accidental circumstance, affecting not the technical termination of the voyage, but the actual and practical closing of the adventure. We see nothing in the circumstances to take this case out of the general rule, that contribution should be assessed on the value at the home port.
3. The third exception relates to the allowance of the wages of the crew after the ship was stranded.
But as they were employed as mariners and quasi-salvors of the cargo, laboring for the joint benefit of the adventure, we think the exception is not supported. Their'services were essential to the entire saving of the cargo. Their duties did not cease with the stranding, and they were entitled to wages while their services were required for that purpose. If the same services had been rendered by strangers, the expense would have been properly charged as a result of thé disaster, in stating the average. That the same services were rendered by the crew after the Brutus was stranded, and the voyage as to them technically broken up, cannot affect the case. Even if their obligation to the ship had ceased, still their services to vessel and. cargo entitled them to their wages and support as a general 'charge.
[308]*3084. The two and a’half per cent, allowed for collecting the general average rests upon the usage and eustom of merchants and average brokers. It is a duty arising out of the unforeseen disaster, and resulting directly from it. Usually there are contributions to be paid out, as well as received, by the shipowner. It' is a troublesome duty, not embraced in their obligation as mere carriers. The usage is therefore not unreasonable. The objection, that -it is paying the owners for merely collecting their own debt, is founded on the accidents or peculiar circumstances of this ease, and does not affect the general principle on which this usage is based.
The judgment' of the Circuit Court is therefore affirmed.