Sturgess v. Cary

23 F. Cas. 317, 2 Curt. 59

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1854
• Status: Published

Opinion

CURTIS. Circuit .Justice.

This is a suit in equity, brought by tne owners and underwriters of the bark Vernon, against the owners of the cargo of that vessel, to obtain from the latter contribution in general average. The material facts are, that the bark, having a cargo of cotton and other merchandise on board, belonging to the defendants, and bound to Boston, came into Massachusetts Bay, and on the night of the first day of March, 1853. in a heavy gale of wind -got-on to the Cohasset rocks, let go both anchors and rode till daylight, striking occasionally, and dragging a little every time she struck. In the morning the vessel began to strike more heavily, dragging at the same time, and soon after was thrown with great violence on a rock, beat over and lay exposed to the fury of the sea, striking heavily on her broadside; and the master, fearing that if the vessel held on by her anchors in that position, she must go to pieces, after consulting with his officers, concluded, for the preservation of the cargo and lives on board, to slip the chains, and let her go on the beach. This was done, and the result was that, the vessel and cargo were both saved, though boih were damaged, and a heavy expense incurred to get the vessel off.

[Reference was made to a master, and, upon the coming in of the report, one exception was taken, which was allowed. Case No. 13,573.]

These are the facts, as testified to by the master and mate, who are the only witnesses. And the question is. whether they present a case for contribution by the cargo, in general average?

The requisites of such a claim are, a common jreril. a voluntary sacrifice to avert that peril, and present safety from that peril thereby attained. That a common peril was impending over this vessel and cargo, as well as the lives of those on board, cannot be doubted. The danger was, that the bark would beat tc pieces on the rocks, while holding on by her anchors. And the sacrifice made was, to cast the vessel on the beach. This was voluntary, for the chains were purposely slipped, with the design to have the action and force of the sea drive the vessel ashore; which was done. There was, therefore, a voluntary sacrifice of the -vessel, by casting hei on the beach, and the cargo was thereby saved from the peril, then impending over it, of being washed out of the vessel when dashed to pieces on the rocks. It was ai gu°d that the vessel was dragging ashore when the cables were slipped; and that act only hastened the stranding, without in any manner modifying it; and that therefore this case was distinguishable from those íd which the master, by making sail on nis vessel, had selected a place of stranding, less dangerous than the mere action of the w'nd and sea would have carried the vessel upon. But this argument loses sight of the distinction between the peril of going to pieces, while holding on by the anchors among the rocks, and the peril of stranding on the beach. The vessel was dragging her anchors towards the shore; but she was also lying on her broadside among rocks, striking heavily, and exposed to the fury of the sea. Though dragging towards the shore, the danger was, that she would go to pieces before reaching it. This was the immediately impending peril; that of stranding on the beach was more remote, and practically it was very different, as the event proved This last peril the master elected to encounter, to avoid the first. It is quite true that the vessel, as well as the cargo, were in more danger of destruction, while at some distance from the shore, and beating on the rocks, than by going on the beach. And that, in some sense, it cannot be said the vessel was sacrificed, when she was relieved from the greater peril by being stranded. But in the sense in which this word is used in the law of general average, the stranding of the vessel was a sacrifice. The fact, that the peril impending over the ship and cargo would have destroyed both, if not averted, so far from being inconsistent with a claim of this -kind, is a necessary prerequisite to the voluntary act of the master; and what is denominated a sacrifice means, not that its subject is destroyed, or even subjected to a greater danger than it was already in, but that it is selected to suffer alone, and thus avert the common peril. In support of these views, it is necessary only to refer to the two cases of Columbian Ins Co. v. Ashby, 13 Pet. [38 U. S.] 331, and Barnard v. Adams, 10 How. [51 U. S.] 270. It is impossible to distinguish the first of these cases from that at bar. In that case, the vessel dragged her anchors in a gale, struck on a shoal, thumped so heavily that the vessel was in danger of going to pieces while holding on by her anchors, and the master slipped his cables and ran her ashore. The vessel was lost, the cargo saved. This was adjudged to be a case of general average contributi m. The fact that the vessel was lost was urged in opposition to the claim. “Quia nihil contributur nisi salva nave.” Tilt court held otherwise. In the case at bar the vessel was saved; but the right to contribution does not depend on the amount of damage done by the stranding.

My opinion is, that the complainants have a claim for contribution, and no doubt is felt that there is jurisdiction in equity to enforce it. 1 Story, Eq. Jur. § 490; Abb. Shipp. 507; Doane v. Keating, 12 Leigh, 391.