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14 | MARINE REVIEW. -Negligence, the Harter Act and General Average. RAE TAL OSE AN OPINION' TOUCHING A MOST IMPORTANT POINT IN THE CONSTRUCTION OF THE HARTER AOT IS ATTRACTING ATYENTION IN SHIPPING CIRCLES. The steamship Irrawaddy (British), Trinidad to New York, was negli- gently stranded on the New Jersey coast. Up to the time of stranding she was properly manned, equipped, seaworthy and properly navigated. In endeavoring to release her, certain damage was done her machinery, and the aid of salvors was necessary. A quantity of cargo was jettisoned, the balance delivered to consignees, and average bond taken. On,adjustment, two items were objected to by the cargo owners; one, gross freight on car- go jettisoned, and the other, damages to the machinery by sand'ng and by the flow of water into the engine room. The cargo owners based their ob- jection "on the ground that as the stranding was caused by negligence in navigation, the ship owners were debarred from any recovery of general average from the cargo." A question was also made on the allowance of freight. ; eT he libelants contended that the Harter act while it excused the vessel owner from liability to cargo owners for negligent navigation, permitted general average contribution. The case was tried to District Judge (Brown of the southern district of New York, and decided Sept. 9, in favor of the claim for general average. The court fully recognizes the general rule of maritime law that in the absence of contract or statute modifying it, a ship owner, where the peril has been brought about by the faulty navigation of the ship, "cannot recover from the cargo reimbursement by, means of a »general average for his expenses in rescuing the ship or cargo." Judge Brown said: . _ "Considering that the claim to contribution in general average rests only upon equitable principles, it is hardly conceivable that this rule of exclusion could be otherwise. For if one's own fault, or the fault of those for whom one is legally responsible, had made necessary the expenses he incurs to retrieve it, there is no principle of equity that can sustain his claim that other persons, not in privity with him, should help 'him bear the loss. It is the responsibility for the fault and for the consequent damage that makes the crucial distinction in these cases. All the marit-me codes that exclude the ship owner from reimbursement in general average for the ship's fault, make him liable to cargo owners for the master's bad navi- gation. This exclusion is based on his liability to the cargo owner, which logically and necessarily excludes the ship owner's claim to contribution in two ways: First, because the obligation to indemn'fy would require the ship owner at once to restore to the cargo owner as damages whatever he might collect from 'him as general average; second, because this same ob- ligation makes the ship owner's claim to contribution incompatible in its exception with the fundamental conditions of a general average claim, viz.: that there must be (1) a sacrifice, (2) a sacrifice voluntarily incurred, (3) a sacrifice incurred for the common benefit. But when the ship, through the master's fault, is legally responsible for all loss and damage, her ex- penses in rescuing the cargo from the peril which that fault has brought about cannot possibly be treated as a sacrifice, since such expenses are nothing more than the performance of a legal obligation; for the same reason they are not voluntarily incurred, in the legal sense, since the ship is legally bound to make the rescue and bear all the expense of it, or else pay the increased damages from omitting to do so; and so the expenses of rescuing the cargo are not ultimately for the cargo's benefit, but for the pecuniary benefit of the ship, in diminishing as much as possible the cargo damages for which the ship's liability is already fixed by reason of her fault. Thus the ship's liability for all the loss»and damage arising from her fault, whenever this liability arises, necessarily excludes any equitable claim by her owner to an average contribution from the cargo, because the legal conditions of such a claim cannot in such a case exist; and be- cause, if allowed, any such contribution must be at once repaid to the cargo owner as damages. "T have dwelt somewhat fully upon this liability of ship and owner, and its relation to general average claims against the cargo, because there is no doubt, I think, that the liability to indemnify the cargo owner is the sole ground of the exclusion of the ship owner's claim to general average compensation for his expenses in rescuing the adventure from a peril caused by bad navigation; and because it, therefore, seems necessarily to follow that in cases where all such liability is abolished by law, as it is under the circumstances of this case by the Harter act, no such exclusion can be justified; and that where no such liability exists on the part of the ship or her owner, his right to a general average contribution from the cargo arises necessarily by the same principles of equitable right that apply in ordinary cases of general average. "Where due diligence has been exercised to make the ship seaworthy, and a common danger arises upon the voyage by 'fault or error in the navigation or management of the ship,' the third section of that act de- clares, that 'neither the vessel nor 'her owner, agent or charterer shall be- come or be held responsible for damage or loss. resulting therefrom.' Tihe previous liability of the ship owner to the cargo owner for faults of navigation is thus abolished in all cases coming within the act. In such cases, faults in-the navigation or management of the ship are no longer, by construction of law, faults of the owner, as heretofore; and the ship and her owner are now no more liable to the cargo owner for his damages therefrom than the latter is liable to the ship owner for the result'ng dam- ages to the ship: Both are alike strangers to the fault, and equally free from all responsibility for it; and hence all expenditures or lasses volun- tarily incurred for the common rescue. are-no longer made in the discharge of an individual legal obligation, or in diminution of a fixed liability. rest- ing upon one of the parties only, but are truly a sacrifice, voluntarily in- curred, and for the common benefit, as much and as truly when made by the ship owner as when made by the cargo owner alone. On principle, therefore, in such cases, the one is as much entitled to generai average contribution for his sacrifices as the other." ' The court then considers the policy of the law in permitting recovery in general average of cargo owner against ship and other cargo owners, where the peril arose from bad navigation, notwithstanding the vessel's Jiability in damages by reason of the negligent navigation, and continues: "Tt is urged that the Harter act makes no allusion to general average, and was not designed to disturb the law on that subject. This might have been urged more plausibly as to the effect and intent of +the*negligence provisions in bills of lading. Several of the above adjudications as to the effect on general average of such clauses in bills of:ladimg, were made long before the passage of the Harter act; and the history of that act shows that it was a part of its general intent to secure to ship owners under our law, and within the limits prescribed by our act, the benefits enjoyed by ship owners under such bill-of-lading exemptions by the foreign law. One of the benefits to the ship owner by the foreign law under such exemptions, as already adjudged when the Harter act was passed, was the right to a general average contribution; and the inference, if any as to the actual in- tent of our act would be that it was designed to embrace that incidental consequence; at least, the contrary cannot be affirmed. "Quite aside, however, from the above adjudications, and from the question of any definite intent by congress to modify the law of general average, the ordinary rules of construction require that the exemption which the act is evidently designed to afford to the ship owner from his previous responsibility to the cargo owner, should be given its full natural scope and effect, without abridgement by any arbitrary or narrow con- struction that is not warranted by anything apparent in the context, or from the evident object of the statute. 'The whole object of the act,' says Mr. Justice Brown in the Delaware, 161 U. S., 459, 16 Sup. Ct., 516, 'is to modify the relation previously existing between the vessel and her cargo,' and to fix that relation, that is, a relation of non-responsibility for dam- ages or losses arising out of bad navigation. Such a statutory change in a broad principle of law must carry with it other changes as its necessary accompaniment. In abolishing the previous responsibility of the ship and owner, the intent of the statute must be presumed to be to abolish also whatever is immediately dependent wpon that responsibility. In no other way can the statute have its fair and natural effect. "The application of this new relation of non-responsibility under the Harter act to cases of general average, does not, in fact, make the least change in the principles of general average contribution. The rule re- mains as before, that he by whose fault, actual or constructive, the ship and cargo have been brought into danger, cannot recover an average con- tribution for his expenses in extricating them. And so the counter rule remains as before, that the interest which, being without fault makes sac- rifices for the common rescue, is entitled to an average contribution from what is thereby saved. Prior to the Harter act, the ship.owner, under our law, was constructively in fault for bad navigation, and hence fell within the former rule. freeing 'him from all responsibtlity, withdraws him from the former rule and entitles him to contribution under the latter. ; "In Ralli v. Troop, 37 Fed., 890, it was said that 'to deny the owners the benefit of a general average contribution on the ground of negligence, would impose on them, in effect, a liability, for the fire from which the statute exempts them (Rev. St., section 4282)." And so in the present case, to say that the ship owners shall bear at their own charge all the expenses voluntarily incurred by them in rescuing this ship and cargo from a com- mon peril for which the statute says they shall not be responsible, and to give to the cargo owner all the benefits resulting to him from these ex- penses, without charge, by refusing to impose on him the ord'nary con- tribution in general average always hitherto made to one not in fault, is, in effect, to make the ship owner responsible, pro tanto, for the peril and its consequences, contrary to the very letter and purpose of the statute; since the owner is often practically compelled to make these advances for the common safety, though not legally responsible for the fate of the cargo. "Tt iss indeed, the owner's duty to relieve ship and cargo in every peril so far as in his power; but not to do this at his own charge, unless the peril arose through his actual or constructive fault. The Portmouth, 9 Wall., 682, 687. If the law denied contribution to him for sacrifices made for the common good when he was not in fault, the result plainly would often be disastrous to cargo. Maritime policy and necessity not only forbid any such rule, but ages ago they established the opposite rule; that compen- sation shall be made to those who, not standing in any relation of legal responsibility, make sacrifices for the common safety. The Harter act certainly was not designed to disturb that principle; and it requires that the owners in this case shall receive due contribution from the cargo." The opinion is well considered and touches a most vital point in the construction of the Harter act. The question is important, and will doubtless receive consideration at the hands of the supreme court. Other questions not touched upon here were also considered. The Globe Iron 'Works Co. of Cleveland has just placed an order with the Foster Engineering Co. of Newark, N. J., for thirteen. valves, United States navy standard. which are to be applied to the lake revenue cutters under construction at the Globe ship yard. One of the officials of the Foster company says there is great activity in their line--the manufacture of pressure regulators and reducing valves. The business is naturally amphibious, as their valves work equally well on ship and shore, on land and sea, but large as their business is with railroads, electric light and power plants, and the general industries, they are in even closer touch with ship building interests. Substantially all the government vessels are equipped with their valve, as well as hundreds of vessels in the ocean, coastwise, lake, river and harbor traffic. They have just closed a contract for sixty-three valves for three United States battleships now under con- struction at Newport News, and the Japanese and Brazilian cruisers Ka- sagi and \Nichtheroy are being equipped with the Foster regulator. A list of vessels thus furnished has just been sent us, containing the names of vessels, owners and builders, and this list will be cheerfully sent, on application, to all interested. : Subscribers to the Review who have been receiving the paper through the marine postoffice, Detroit, will please notify us of home addresses at once, in order that changes may be made for the winter. A lithographed wall map of Alaska showing the overland trails and all water routes to the Klondike gold fields will be mailed upon receipt of five 2-cent stamps. Address advertising department, the Nickel Plate road, Cleveland, O. No. 391, Dec. 31. The Harter act, by abolishing his constructive fault and.