Kent, Ch. J. delivered the opinion of the court.
The loss of the ship is to be attributed to the perils of the sea. She was forced into the Texel, by distress and danger, arising from tempes-» tuous weather; and when she was ready to depart, she was strand-1 ed and lost in consequence of a storm. The only real question in the case is, whether the loss of the ship is to be borne as a general average, to which the plaintiffs, as owners of a portion of the cargo, as well as of ship and freight, are to contribute. But the better opinion is, that this is not a case for contribution, and that there is to be no deduction from the verdict. The cable of the ship was cut, after consultation, as neeessaryto extricate her from" a perilous situation, and as bestto be done for the preservation of the vessel, cargo and crew. Had the vessel been saved by this means, the loss of the cable would have formed an item for a general average. But it appears that after the cable was cut, they . steered for the Zuydmall, and that on approaching it, the ship struck and beat with great violence on the ground, and was driven high on shore by the storm. Upon a. subsequent survey of the ship, the surveyors were of opinion, and in which the captain con[14]*14curred, that there was “ hardly any probability” that the ship could be got off, and that if she could, she was so much damaged, that the costs of repairing her would “ far exceed” what would be her value after she should be repaired. What became of the ship afterwards does not appear. Here was not only a loss of the voyage; but there is every reason to conclude that there was a total physical loss of the ship, by means of shipwreck. The cargo was principally saved uninjured. It was further stated in proof, that when the ship’s cable was cut, it was with the intention, and for the purpose, of running her on the ZuydwaR, which was accordingly done.
If a ship, in a case of extremity, and to avoid impending danger, be voluntarily run ashore, and she is afterwards recovered and performs the voyage, the damages resulting from this sacrifice are to be borne as general average. There cannot be a doubt as to the existence of this rule; for it is to be met with in all the books that treat of contribution. But another and more difficult question is, whether there is to be a contribution from the surviving cargo, if the ship should happen (as in this case) to be destroyed and lost by the act of running her ashore. The question does not appear ever to have arisen in the English courts, and we must have recourse to those foreign works which, in the absence of English decisions, are the best and most authentic evidence of the maritime law. The books, in general, have not treated this point with sufficient perspicuity and precision; but from a view and comparison of them, it is pretty evident that the weight of authority, no less than the reason of the rule, is against the contribution. The marine ordinances and writers on maritime law mention general average as being confined to the damage which the vessel so run ashore may have sustained, and the expenses of setting her afloat; and it seems to be assumed as a settled principle, that there is to be no contribution, unless the ship is eventually saved.
The language of the Rhodian law leads very strongly to this conclusion, and this is the text upon which most of the authorities are founded. Amissa navis damnum collalionis consoriio non sarcilur per eos qiámerces sitas naufragio liberaverunt: nam hujus aquilatan tune admiíti placuit, cumjactus remedio cezleris ■in communi peñado, salva navi, consultum, est. (Dig. 14. 2. 5.) There is nothing in any part of the Lex Rhodia de Jactu, which countenances the idea of average, when the ship is lost, and yet the authority of some respectable Dutch civilians is in favour
[15]*15of contribution, not only if the vessel be voluntarily run ashore and injured, but if she be totally lost; and this contrariety of opinion cannot but excite some doubt and embarrassment, in searching for the true rule on this occasion. Voet, in his commentaries on the Roman text, (Com. ad Pand. lib. 14. tit. 2. s. 5.) speaks of the rule of contribution as applying to this very case of a ship run ashore, after consultation, for the preservation of the cargo, and the ship lost. Bynkershoeck (Quasi. Jur. Priv. lib. 4. c. 24. de Jactu) leaves us to infer, that, in his opinion also, the cargo ought to contribute, in a like case; and he cites and condemns a decision of the maritime judges of Amsterdam, in which they say that there is to be no contribution, unless the ship so voluntarily run ashore, be saved. This opinion of the Dutch judges, I still apprehend, contains the true construction of the Rhodian law; and it is to be observed, that Bynkershoeck does not clearly distinguish between the case of a ship that is voluntarily run ashore and saved, and one that is run ashore and lost; and perhaps the ordinance of Philip II. to which he and Foci refer, may have been thought to have applied the ride of contribution to this latter case, though I cannot read it in that ordinance as given us by Magens. The Prussian ordinance of Konigsberg is the only one which lays down such a rule, and that, like the opinion of Voet, is expressed in terms not to be mistaken; for it says that “ if the master, for saving the cargo, and preventing greater damage, shall, after the usual consultation, designedly run the ship ashore, and thereby the cargo is saved, but the ship utterly lost and beaten to pieces, the average contribution shall remain good, and the goods thus saved contribute to the ship.” (Magens on Insurance, vol. 2. p. 200.) But notwithstanding the weight which these cases or opinions may justly deserve, I am persuaded that they have arisen from a misapplication of principle, for the general doctrine and language of the marine law is undoubtedly otherwise, and the evidence of this appears in the most authoritative treatises which we have upon the subject. They either expressly assert, or evidently imply, that if the ship be stranded and lost, (no mat? ter by what means,) it is not a case of general average, and that such average applies only to the partial damages which the rescued ship sustains by an act done for the common safety. (Cleirac sur Jugemens d’Oleron, p. 42. Le Guidon, c. 5. art. 28. Ord. de la Marine, tit. Des Avaries, art. 6. Tit. Contrib. art. 15, 16, Valin, tom. 2. 168. Huber's Prœlec. ad Pand. lib. 14. tit. 2. s. 4. Emerigon, tom. 1. p, 614. 616. Roccus de navibus et naulo, [16]*16not. 60. Ord. of Rotterdam,, art. 101. and of Copenhagen, tit. Average, art. 5.) We cannot have recourse to better sources for tlie principles of the marine law on the subject of contribution; and as far as the English writers have alluded to this, question, they have adopted the same ideas. (Malynes, 110. Molloy, b. 2. c. 6. s. 12. Beaves, tit. Salvage, &c. Marshall, 537, 538.) Nothing can be more clear and explicit than the language of Emerigon; “ the damages (he observes) resulting from the stranding of the ship, if the stranding be done voluntarily, for the common safety, are general average, provided always, that the ship be again set afloat; for if the stranding be followed by shipwreck, then it is save who can.”
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Kent, Ch. J. delivered the opinion of the court.
The loss of the ship is to be attributed to the perils of the sea. She was forced into the Texel, by distress and danger, arising from tempes-» tuous weather; and when she was ready to depart, she was strand-1 ed and lost in consequence of a storm. The only real question in the case is, whether the loss of the ship is to be borne as a general average, to which the plaintiffs, as owners of a portion of the cargo, as well as of ship and freight, are to contribute. But the better opinion is, that this is not a case for contribution, and that there is to be no deduction from the verdict. The cable of the ship was cut, after consultation, as neeessaryto extricate her from" a perilous situation, and as bestto be done for the preservation of the vessel, cargo and crew. Had the vessel been saved by this means, the loss of the cable would have formed an item for a general average. But it appears that after the cable was cut, they . steered for the Zuydmall, and that on approaching it, the ship struck and beat with great violence on the ground, and was driven high on shore by the storm. Upon a. subsequent survey of the ship, the surveyors were of opinion, and in which the captain con[14]*14curred, that there was “ hardly any probability” that the ship could be got off, and that if she could, she was so much damaged, that the costs of repairing her would “ far exceed” what would be her value after she should be repaired. What became of the ship afterwards does not appear. Here was not only a loss of the voyage; but there is every reason to conclude that there was a total physical loss of the ship, by means of shipwreck. The cargo was principally saved uninjured. It was further stated in proof, that when the ship’s cable was cut, it was with the intention, and for the purpose, of running her on the ZuydwaR, which was accordingly done.
If a ship, in a case of extremity, and to avoid impending danger, be voluntarily run ashore, and she is afterwards recovered and performs the voyage, the damages resulting from this sacrifice are to be borne as general average. There cannot be a doubt as to the existence of this rule; for it is to be met with in all the books that treat of contribution. But another and more difficult question is, whether there is to be a contribution from the surviving cargo, if the ship should happen (as in this case) to be destroyed and lost by the act of running her ashore. The question does not appear ever to have arisen in the English courts, and we must have recourse to those foreign works which, in the absence of English decisions, are the best and most authentic evidence of the maritime law. The books, in general, have not treated this point with sufficient perspicuity and precision; but from a view and comparison of them, it is pretty evident that the weight of authority, no less than the reason of the rule, is against the contribution. The marine ordinances and writers on maritime law mention general average as being confined to the damage which the vessel so run ashore may have sustained, and the expenses of setting her afloat; and it seems to be assumed as a settled principle, that there is to be no contribution, unless the ship is eventually saved.
The language of the Rhodian law leads very strongly to this conclusion, and this is the text upon which most of the authorities are founded. Amissa navis damnum collalionis consoriio non sarcilur per eos qiámerces sitas naufragio liberaverunt: nam hujus aquilatan tune admiíti placuit, cumjactus remedio cezleris ■in communi peñado, salva navi, consultum, est. (Dig. 14. 2. 5.) There is nothing in any part of the Lex Rhodia de Jactu, which countenances the idea of average, when the ship is lost, and yet the authority of some respectable Dutch civilians is in favour
[15]*15of contribution, not only if the vessel be voluntarily run ashore and injured, but if she be totally lost; and this contrariety of opinion cannot but excite some doubt and embarrassment, in searching for the true rule on this occasion. Voet, in his commentaries on the Roman text, (Com. ad Pand. lib. 14. tit. 2. s. 5.) speaks of the rule of contribution as applying to this very case of a ship run ashore, after consultation, for the preservation of the cargo, and the ship lost. Bynkershoeck (Quasi. Jur. Priv. lib. 4. c. 24. de Jactu) leaves us to infer, that, in his opinion also, the cargo ought to contribute, in a like case; and he cites and condemns a decision of the maritime judges of Amsterdam, in which they say that there is to be no contribution, unless the ship so voluntarily run ashore, be saved. This opinion of the Dutch judges, I still apprehend, contains the true construction of the Rhodian law; and it is to be observed, that Bynkershoeck does not clearly distinguish between the case of a ship that is voluntarily run ashore and saved, and one that is run ashore and lost; and perhaps the ordinance of Philip II. to which he and Foci refer, may have been thought to have applied the ride of contribution to this latter case, though I cannot read it in that ordinance as given us by Magens. The Prussian ordinance of Konigsberg is the only one which lays down such a rule, and that, like the opinion of Voet, is expressed in terms not to be mistaken; for it says that “ if the master, for saving the cargo, and preventing greater damage, shall, after the usual consultation, designedly run the ship ashore, and thereby the cargo is saved, but the ship utterly lost and beaten to pieces, the average contribution shall remain good, and the goods thus saved contribute to the ship.” (Magens on Insurance, vol. 2. p. 200.) But notwithstanding the weight which these cases or opinions may justly deserve, I am persuaded that they have arisen from a misapplication of principle, for the general doctrine and language of the marine law is undoubtedly otherwise, and the evidence of this appears in the most authoritative treatises which we have upon the subject. They either expressly assert, or evidently imply, that if the ship be stranded and lost, (no mat? ter by what means,) it is not a case of general average, and that such average applies only to the partial damages which the rescued ship sustains by an act done for the common safety. (Cleirac sur Jugemens d’Oleron, p. 42. Le Guidon, c. 5. art. 28. Ord. de la Marine, tit. Des Avaries, art. 6. Tit. Contrib. art. 15, 16, Valin, tom. 2. 168. Huber's Prœlec. ad Pand. lib. 14. tit. 2. s. 4. Emerigon, tom. 1. p, 614. 616. Roccus de navibus et naulo, [16]*16not. 60. Ord. of Rotterdam,, art. 101. and of Copenhagen, tit. Average, art. 5.) We cannot have recourse to better sources for tlie principles of the marine law on the subject of contribution; and as far as the English writers have alluded to this, question, they have adopted the same ideas. (Malynes, 110. Molloy, b. 2. c. 6. s. 12. Beaves, tit. Salvage, &c. Marshall, 537, 538.) Nothing can be more clear and explicit than the language of Emerigon; “ the damages (he observes) resulting from the stranding of the ship, if the stranding be done voluntarily, for the common safety, are general average, provided always, that the ship be again set afloat; for if the stranding be followed by shipwreck, then it is save who can.”
These authorities are founded on sound principles, for the loss of the ship, in these cases, is more imputable to casualty than design.
When a ship is voluntarily run ashore, it does not, of course, follow, that she is to be lost. The intention is not to destroy the ship, but to place her in less peril, and if she afterwards goes to pieces, or is otherwise lost, it is not to be attributed exclusively to the act of the master, but to the direct, and more immediate operation of other causes. In most cases, he has no expectation, and certainly no intention, of destroying the vessel. He does an act hazardous to the vessel and cargo, in order to escape from a more pressing danger, as a storm, or the pursuit of an enemy, or pirate. The stranding may be an act done for the common safety, but this cannot be said to be the case of the subsequent shipwreck or capture. Indeed, the very act of running a ship ashore is desperate, and places the cargo in extreme jeopardy; and if* it happens that the ship be lost, and the cargo saved, it is saved tanquam ex incendio, according to the allusion in the Rhodian law. In such a case, it is emphatically said to be “ save who canand to burden the rescued cargo with contribution for the ship, would seem to.be oppressive, and is clearly not within the policy and equity of the rule.
The court are, accordingly, of opinion, that there is no contribution in this case, and that the plaintiffs are entitled to recover as for a total loss.
Judgment for the plaintiffs.
The same rule is laid down in the new Commercial Code of the French Empire, which has been recently translated by a learned Jlmerican jurist. It is there stated, (art. 425.) with the precision and brevity for which the French codes are distinguished, that “ the cargo does not contribute for the ship, if she is lost or rendered unfit for sea.”