Parker C. J.
This case presents a question which we do not find to have been decided in this State, in New York, or in England ; and what is quite as remarkable, on inquiry among the underwriters of the city of Boston, it appears that >t is considered a new question by them, cases of the kind either not having occurred, or having been settled without dispute, upon principles of compromise. We must therefore now settle the question, without precedent or practice to guide us, and must be governed by those principles which will be most conformable to analogous cases in the law merchant.
[Here the Chief Justice stated the facts in the case.]
It was objected by the defendants, that admitting them to be liable to contribution, they ought not to be held to this sum of 2,600 dollars, which they said was extravagant; they having evidence that the business might have been done for a much smaller sum : but it was rightly decided, that as there was no evidence tending to show that the bargain was not made Iona fide, and as a fruitless attempt had been before made to raise the vessel, it not being suggested that there was any fraudulent or sinister view in making this contract, all parties to the contribution were bound by the sum agreed on. Welles v. Gray, 10 Mass. R. 42.
It was also objected that this was not a case for contribution, because the cargo was within the reach and power of the owners, and they were actually employed in removing it to a place of safety. But this point was rightly decided, at the trial, for the plaintiffs, in relation to the cargo remaining on board when the vessel was raised and brought to the wharf; for this was the means of saving that part of the cargo, and it was by consent of the defendants, that those who saved [8] the vessel might also try to save the iron; nor could it be otherwise saved but by expense to the defendants, the amount of which cannot now be ascertained. Besides, the general principle, and a very just one, is, that when a vessel shall be accidentally stranded, the expense of getting her off, so that she may proceed on her voyage, shall be borne proportionably to its value by every thing on board, as well as by the vessel. It is laid down in Mr. Phillips’s very valuable treatise on insurance, vol. 1, p. 363, § 12, that “ as much oí the cargo on board at the time of making a jettison or other sacrifice for the general safety, as finally arrives at the port of delivery, or comes to the use of the owner, contributes in general average.” And this seems to be the tendency of the authorities which he cites in that section. The expense of raising a stranded vessel is a sacrifice for the general safety. The case in 11 Johns. R. 85, was very similar to this case. The vessel was bound from St. Croix to New ‘ York, and was stranded on the coast of New Jersey, and small vessels and lighters were sent down to endeavour to save the vessel and cargo. The cargo was saved, but the vessel lost. It was held, that this was not to be considered in the light of transshipping, the expense of which ought to be borne by the ship only, but as a case of general average, the expense having been incurred for the joint benefit of all.
Mr. Phillips, under the head of General Average, vol. 1, p. 338, says — “The expense of discharging the cargo to get a vessel afloat that has been accidentally stranded, and that of reloading the cargo, and the other expenses requisite to enable the vessel to proceed on the voyage, except that of making repairs, are in practice brought into general average, where the vessel after being got off proceeds with the same cargo.” If this is the case, and upon inquiry among the underwriters of Boston, we find it to be so among them, it is the law ; for in cases of mercantile engagements, or in the construction'of mercantile contracts, a general, practical construction, which opposes no principle of law, but is agreeable to equity and fair dealing, has the force of law, the parties to such contracts always acting in reference to well established and general usage. Mr. Justice Bewail, dis-[9] Anguished for his knowledge of the law merchant, in the case of Clark v. United F. & M. Ins. Co., 7 Mass. R. 369, says, in relation to the subject of insurance, “ For rules to govern in these inquiries, there is a more than ordinary reference to established usages ; and these, when ascertained, and found to be suitable applications of general principles, or not inconsistent with them, or with the tenor of the contract to be explained and enforced, are considered as authoritative upon the parties.” We therefore find no difficulty in deciding, that when a vessel is accidentally stranded in the course of her voyage, and by labor and expense is set afloat, and completes her voyage with the cargo on board, the expense bestowed for this object, as it produces benefit to all, so it shall be a charge upon all, according to the rules of apportioning general average.1 This point seems not to have been directly settled by the English courts, and to have been settled different ways in some of the foreign commer cial countries, as will appear by Mr. Phillips’s book, in the place before referred to, and the several authors he has cited in the margin.
It was argued by the defendants’ counsel, that the ship had arrived, and that the cargo was at the disposal of the owners and within their reach and control ; but the facts do not support the argument : the place where the vessel struck being nine miles from the place of mooring, which would be the termination of her voyage, and she having in no sense arrived at her port of delivery. Had the cargo been lost in transporting it from the ship, or in the ship, to the wharf in New Bedford, without doubt underwriters upon it, if it had been insured, would have been answerable for the loss.2
Free access — add to your briefcase to read the full text and ask questions with AI
Parker C. J.
This case presents a question which we do not find to have been decided in this State, in New York, or in England ; and what is quite as remarkable, on inquiry among the underwriters of the city of Boston, it appears that >t is considered a new question by them, cases of the kind either not having occurred, or having been settled without dispute, upon principles of compromise. We must therefore now settle the question, without precedent or practice to guide us, and must be governed by those principles which will be most conformable to analogous cases in the law merchant.
[Here the Chief Justice stated the facts in the case.]
It was objected by the defendants, that admitting them to be liable to contribution, they ought not to be held to this sum of 2,600 dollars, which they said was extravagant; they having evidence that the business might have been done for a much smaller sum : but it was rightly decided, that as there was no evidence tending to show that the bargain was not made Iona fide, and as a fruitless attempt had been before made to raise the vessel, it not being suggested that there was any fraudulent or sinister view in making this contract, all parties to the contribution were bound by the sum agreed on. Welles v. Gray, 10 Mass. R. 42.
It was also objected that this was not a case for contribution, because the cargo was within the reach and power of the owners, and they were actually employed in removing it to a place of safety. But this point was rightly decided, at the trial, for the plaintiffs, in relation to the cargo remaining on board when the vessel was raised and brought to the wharf; for this was the means of saving that part of the cargo, and it was by consent of the defendants, that those who saved [8] the vessel might also try to save the iron; nor could it be otherwise saved but by expense to the defendants, the amount of which cannot now be ascertained. Besides, the general principle, and a very just one, is, that when a vessel shall be accidentally stranded, the expense of getting her off, so that she may proceed on her voyage, shall be borne proportionably to its value by every thing on board, as well as by the vessel. It is laid down in Mr. Phillips’s very valuable treatise on insurance, vol. 1, p. 363, § 12, that “ as much oí the cargo on board at the time of making a jettison or other sacrifice for the general safety, as finally arrives at the port of delivery, or comes to the use of the owner, contributes in general average.” And this seems to be the tendency of the authorities which he cites in that section. The expense of raising a stranded vessel is a sacrifice for the general safety. The case in 11 Johns. R. 85, was very similar to this case. The vessel was bound from St. Croix to New ‘ York, and was stranded on the coast of New Jersey, and small vessels and lighters were sent down to endeavour to save the vessel and cargo. The cargo was saved, but the vessel lost. It was held, that this was not to be considered in the light of transshipping, the expense of which ought to be borne by the ship only, but as a case of general average, the expense having been incurred for the joint benefit of all.
Mr. Phillips, under the head of General Average, vol. 1, p. 338, says — “The expense of discharging the cargo to get a vessel afloat that has been accidentally stranded, and that of reloading the cargo, and the other expenses requisite to enable the vessel to proceed on the voyage, except that of making repairs, are in practice brought into general average, where the vessel after being got off proceeds with the same cargo.” If this is the case, and upon inquiry among the underwriters of Boston, we find it to be so among them, it is the law ; for in cases of mercantile engagements, or in the construction'of mercantile contracts, a general, practical construction, which opposes no principle of law, but is agreeable to equity and fair dealing, has the force of law, the parties to such contracts always acting in reference to well established and general usage. Mr. Justice Bewail, dis-[9] Anguished for his knowledge of the law merchant, in the case of Clark v. United F. & M. Ins. Co., 7 Mass. R. 369, says, in relation to the subject of insurance, “ For rules to govern in these inquiries, there is a more than ordinary reference to established usages ; and these, when ascertained, and found to be suitable applications of general principles, or not inconsistent with them, or with the tenor of the contract to be explained and enforced, are considered as authoritative upon the parties.” We therefore find no difficulty in deciding, that when a vessel is accidentally stranded in the course of her voyage, and by labor and expense is set afloat, and completes her voyage with the cargo on board, the expense bestowed for this object, as it produces benefit to all, so it shall be a charge upon all, according to the rules of apportioning general average.1 This point seems not to have been directly settled by the English courts, and to have been settled different ways in some of the foreign commer cial countries, as will appear by Mr. Phillips’s book, in the place before referred to, and the several authors he has cited in the margin.
It was argued by the defendants’ counsel, that the ship had arrived, and that the cargo was at the disposal of the owners and within their reach and control ; but the facts do not support the argument : the place where the vessel struck being nine miles from the place of mooring, which would be the termination of her voyage, and she having in no sense arrived at her port of delivery. Had the cargo been lost in transporting it from the ship, or in the ship, to the wharf in New Bedford, without doubt underwriters upon it, if it had been insured, would have been answerable for the loss.2
But we think the plaintiffs’ claim for contribution on that part of the cargo which had been taken from the vessel, at the expense of the defendants, before the contract was made under which the vessel was raised and brought into harbour, as untenable as the defendants’ position, that the part which [10] remained on board should not be held to contribute. No case has been discovered by the counsel or the Court, which extends the doctrine of contribution so far, and the inquiries we have made of underwriters satisfy us there is no usage to sanction such a claim. The principle of contribution ;s, that every thing which is saved by common expense and labor, shall pay that expense in proportion to its value. It cannot be said that the iron taken from the vessel by the owners, before the contract was made under which the vessel was saved, waá saved by means of the successful execution of the contract. It might with more fitness be said, that relieving the vessel from so great a proportion of the weight of her cargo was an efficient cause of her final rescue, and for this reason the expense of saving this iron should be made a subject of average ; but this was not done with a view to save the ship, but was an independent act of the owners of the iron, and must therefore bear its own expense.1 The ship was supposed to be wrecked ; the owners of the cargo had a right to save as much of it as they could, and ought not to be held to pay, on account of what was saved, any part of the expense which subsequently occurred. Difficulties have been started as resulting from an application of this doctrine in cases differing from the one before us. It is said that great disorder and confusion, and perhaps increased danger, will be the consequence of allowing every freighter of goods, when a vessel is stranded, to hurry off his particular goods which may be easily come at; and that it would be throwing an undue burden upon the owners of those goods which may be so situated that the owners cannot rescue them. No such difficulty happened in this case ; on. the contrary, what,was done by the owners of the cargo facilitated the final saving of the ship. Where a contrary effect would result from such an act, the legal consequence may be different; for it peculiarly belongs to contracts of this nature, that apparently slight differences oí facts may have an important bearing on questions relating to them. Had another person been the owner of the iron [11] emaining on board the vessel, being in the bottom of the hold, and therefore very difficult to be taken out, he would have no just ground of complaint against the defendants for removing so much of the cargo as enabled the 'underwriters on the ship to raise her, and thus to save his iron, which might otherwise have been lost.
It is evident that the plaintiffs themselves considered the defendants as acting independently of them in saving the iron, for it appears by the report that they refused to pay any of the men who were employed by the defendants.
The defendants being, according to this opinion, liable in this action for a due proportion of the sum paid for raising the ship and bringing her safe to the wharf, according to the value of the iron which remained on board and wras saved with the ship, assessors must be appointed to ascertain the sum due; and they might estimate the value of the ship without regard to the sum stated in the policy as her value ; it being settled, that in adjusting general average or contributions no distinction is to be regarded between a valued and an open policy.1 Clark v. United F. & M. Ins. Co., 7 Mass. R. 365. But it not having been suggested that the value taken in the policy was not the true value, that may be taken as the basis of the adjustment,2 making a deduction of the diminution of her value by the stranding, which has been agreed by the parties to be 1750 dollars.3 If the plaintiffs should claim any thing on account of the labor of their men upon the 40" tons of iron, which were taken out of the ship before she was weighed, as there were mutual aids by the parties of men belonging to the plaintiffs and defendants respectively, they may be equitably set off against each other as far as they will go.