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% ——_———— MARITIME LAW. BSONSMITH ET AL, V. THE JAMES P, DONALD- 8ON—-SLYFIELD V. SAME—TOWAGE—NEGIL GENCE—GENERAL AVERAGE, Circuit Court, E. D, Michigan, September 1884. In admiralty. On appeal from district court. Moore & Canfield, for libelants, ap- pellants. Mayoard & Swan, for claunant, appellee. Matthews, Justice. ‘These two libels were consolidated in the district court and dismissed on the hearing. A decree for the libelants was prayed tor on two grounds: First, for a loss of the barges by the fault of the propeller in towing the barges on a voy- age from Buftalo to Saginaw. Second, In case no fault in Dowing was proven, then for a proportion of the value of the barges lost, upon the prineiples of a general average, on the ground that they had been voluntarily cast off and lost during a storm, for the purpose and with the effect of saving the propeller. As tothe first ground, the evidence justifies and requires the conclusion of the district court, ‘l'here does not seem to be sufficient ground to impute.to the propeller any negli- gence or tailure of duty. Jf any error was committed, it was a mistake of judgment in the exercise of a discretion necessarily vested in the master-of the propeller, and which, if acontrary decision van be suppoged.to have resulted more favorably constitutes neither want of, skill nor want of care. The loss of the barges, under the circumstances must be regarded as re- sulting from thé perils of navigation, and for which, under the contract of towage, the propeller cannot be beld responsible. It is ngt necessary to recapitulate the proofs in support of this conclusion, ‘They are fully stated, with the reasons justifying it, in the opinion of the learned judge of the district court, as reported in 19 Fed. Rep. 264, in -which upon -this part of the case, I tully concur. There remains, however, the more difficult and doubtful question, whether the libelants are entitled toa‘decree for a contribtution from the appellee, upon the principles of general average, on the ground that the luss of the barges wasa sacrifice voluntarily made for the safety of the propeller. ‘The facts and circumetances material in the investi gation of this, as a question of law, are not disputed, and are, in substance, as follows: The J. P. Donaldson was a steam propeller, with a crew of 16 officers and men, built tor the carrying trade, not an ordinary tug, hav- ing 0 cargo on board on the voyage, during which the loss complained of occurred, but her fuel, amounting to about 120 tons. She had in tow three barges, the Bay City, the George W. Wesley, and the Eldorado, in the order named, on a voyage from Buffalo to Saginaw or Bay City. ‘The Bay City was partly laden with coal, the others were light. The George W. Wesley was a schooner barge; the Eldorado was an old propeller bottom. Neither of them had any power of self-propulsion. ‘he contract of towage was for the voyage, the propeller to receive for her service a proportion of the freight earned by each barge. When near Erie, Pennsylvania, in a fierce storm having been driven by force of wind and waves, and ina blinding snow, they ‘were drifting near the rocks on shore and in imminent peril of stranding. The propeller, having signaled her tow to that effect, cut the towing line and cast them off. They were driven on shore and wrecked. ‘Ihe propeller at once put into the harbor of Erie in safety. It is a reasonable conclusion that if the propeller had not cut loose her tow, all would have gone ashore together, ‘I'he libels in the present cases do not pray specifically for an adjustment of a general average loss. On the contrary, they pray for a decree against the propeller for the full amount of the loss, on the ground that it re- sulted from the breach of duty on the part of the propeller in not properly performing the contract of towage. But, under the prayer for general relief, it is competent for the court to pass such decree as may be re- quired by the proof in the record, although not fully and precisely stated in the libel. In this particular the case of Dupont v, Vance, 19 How. 162, is quite in point. And in that case, speaking of jettison of cargo, Mr. Justice Curtis, delivering the opinion of the court, sald: p THE MAR “Ifitbe made to relieve the adventur INE RECORD. of jettison of good as the means of lighten- ; deekload was carried in pursuance Of u yen. from a peril which has fallen on all the sub- | ing the vessel, But the rule, a3 there Jaid eral custom of the trade, to whie' jects engaged in it, the risk of whieh peril wus not nssumed by the carrier, the charge is to be borne proportionably by all the in- terests, nod there Is a lien on cach to the ex- tent of its just coutributory obligation.”” In the case of Columbian Ins. Co. v. Ashby, 13 Pet. 331, in the learned opinion of Mr. Justice Story, itis shown that the rule us to general average, derived tous from the Rhodian law through the Rowan jurispra- dence, was not confined to the case of jettison of cargo, although that was the illustration stated in the digest: ‘That the case of jettison was bere understood to be put as a mere illustration of a more géneral principle, is abundantly clear from the context of the Roman law, where a ransom paid to pirates to redeein the ship is devlared to be governed by the same rule. And the doctrine, as re- ceived among all maritime nations, was stated to be—“ First, that the ship and cargo should be placed ina common imminent peril; secondly, that there should be a volun- tary sacrifice of property to avert that peril; and, thirdly, that by that sacrifice the safety ot the other property should be presently and euceessfully attained.” It was generally admitted that in’ case of voluntary stranding of the ship, if the vessel was saved, the principle of general average applied; but it was contended by some that it was not so if the vessel was lost; and such was the opinion of Emerigon, who said: “Bot it will beageneral average if the straindng has’ been made for the common safety, provided, .always, that the ship be again set afloat; for if the stranding be fol- lowed by shipwreck, ‘then itis, save who can.” 1 Emer. ns. u. 12, § 13, p. 614. But, in opposition to.this opinion, it was decided by the supreme court that the total loss of the ship did not prevent the application of the principle, saying, (page °340,) “it is the sufety of the property, and not of the voy- age, which constitutes the true founda- tion of general average;” and, in another place, (page 348,) “for the general principle certainly is that whatever is sacritived voluntarily for the common good is to be recompensed by the common contribution of the property benefited there- by.” ‘The same result had been previous'y reached by Mr. Justice Washington, in Caz vy. Reilly, 3 Wash C, C. 298. In Barnard v. Adams, 10 How 270, it was said that— “In order to constitute a case for general average three things muet concur: (1) A common danger,—a danger in which ship, eargo, and crew all participate,—a danger imminent and apparently ‘inevitable, ex-|* * * Ltis not nec down, has never been understood as being contined to that particular case, but has always been regarded as a general regulation applicable in all cases falling within the principle on which it is founded.” ‘Therefore, it hus been extended, as in that case, to instances of involuntary stranding of the ship, when extraordinary expenses are jneurred in the successful relief and rescue of both ship and. cargo, menaced by x common destruction, but only for such as are incurred while the com- munity of interest continues. If the cargo, as in that case, has been separately saved, and has been severed trow its connection with the ship and its peril, subsequent ex- penges incurred for the benetit of the ship alone, and not part of a continuous series undertaken originally on behalf of both in- tereste, are not the subject of « general aver- age contribution, Doubts at one time were entertained,”’ said the supreme ‘court in the cause of the Star of Hope, 9 Wall, 203-231, “whether a loss occasioned by a voluntary stranding of the vessel, even though it was made for the general safety and to avoid the.probable consequences of an imminent peril to the whole adventure, was the proper subject of general average contribution; but those doubts have long since been dissipated in most jurisdictions, and they: have no plave whatever in the jurisprudence of the United States.” In that case it was also sald, (page 228:) * Authorities may be found which attempt to quality this rule, and assert that, when the situation of the ship. wag such that the whole adventure would certainly and una- voidably have been lost it the sacrifice in question had not been made, the party mak- ing it cannot claim to be compensated by the other interests, becauce it is said that a thing cannot be regarde:] as having been sacrificed which had alpeady censed to have any value; but the correctness of the position cannot be adinitted, unless it appears that the thing itself for which contribution is claimed, was so situated that it could not possibly have been saved, and that its sacrifice did not con- tribute to the safety of the crew, ship,or cargo. Sacritices, when there is no peril, present no claim for contribution; bur the greater and more imminent the peril, the more mer- itorious the claim for such contribution, if the sacrifice was voluntary, and contributed to save the assoviuted interests from the im- pending danger to which the same were ex- posed. Such claims have their foundation in equity, and rest upon the doctrine that whatever ts sacrificed for the common ben- efit of the us<ociated interests shall be made good by all theinterests which were exposed to the common peril, and which were saved from the common er by the sacrifice 'y that there should cept by voluntarily incuring the’ loss of a|have been any intention to destroy the thing position of the whole to save the remain- der; (2) there -must be a_ volun- tary jettison, jactus, or casting away of some portion . of the joint con- cern for the purpose of avoiding thie 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; (3) this attempt to avoid the imminent common peril must be euccess- ful,” In that case the principal question arose upon the proposition urged in argument, “that if the common peril was of such a nature that the jactus or thing cust away (which was the ship) to save the rest would have perished anyhow, or perished ‘inevi- tably,’ even i it had not been selected to suffer in place of the whole, there can be no contribution.” But this was negatived, Mr. Justice Grier, delivering the opinion of the court, saying that— “It is a denial of the whole doctrine upon which claim for general average has its foun- dation. * * * The jactus is said to be sucriticed, not because its chance of escape was separate, but because of its selection to suffer, be it more or lesr, Instead of the whole, whose chances of satety, as a whole, had become desperate. ‘I'he imminent de- struction of the whole has been evaded as a whole, and part saved by transterring the whole peril to another part.’? In the case of McAndrews v. Thatcher, 3 Wall. 347, Mr. Justice Clifford, delivering the opinion of the court, said: “Natural justice requires that, where two or more parties are in acommon sea risk, and one of them makes a sacrifice or incurs extraordinary expenses for the general safety, the loss or expenses so incurred shall be assersed upon all in proportion to the share of each in the adventure; or, in other words, the owners of the other shares are bound to make contribution In the propor- tlon of the value of their several interests, Courts universally admit that the Rhodlan law was the parent of maritime contribution, although, in terms, it made no provision for any case of general average, except for that or things cast away, a8 no such intention is ever supposed tu exist. On the contrary, it is sufficient that the property was selected to suffer the common peril in the plave of the whole of the associated interests, that the remainder might be saved.” ‘The general doctrine was again stated by the supreme court in the case of Fowler v. Rathbones, 12 Wall. 102, in the following comprehensive language: “Where two or more perties are engaged in the same sea risk, and one of them, ina moment of imminent peril, makes a eacrifice to avoid the impending danger, or incurs extraordinary expenses to promote the safety of all the associated interests. common jus- tive requires thut the. eacrifive 806 made, or the extraordinary expenses go incurred, shall be assessed upon all the interests which were so exposed to the impending peril, and which were saved by those means from the threatened danger, in proportion to the share of each in the joint adventure.” The interests usually associated together, in reference to which questions of contribu- tion in general average commonly arise, are those of ship, cargo, and freight; but the language in which the rule ts defined, as al- ready quoted, does not restrict.it to that association of interests, The right of con- tribution depends upon an equity arising out of the relation of the parties, and is not based upon the contract of carriage. ‘The obligations of the carrier, indeed, as con- tained in the usual bill of lading, do not em- brace the case of a part of the cargo carried on deck with the consent of the shipper, and not In pursuance of a custom of the particu- lar trade; and the Carrier is therefore in such a case not Hable, as such, for a jettison of such cargo necessary for the common safety. ‘The loss is by the perils of naviga- tion, and excepted from the liability of the carrier, Neither is there any right of con- tribution, as between the deckload cast over. board and the cargo under deck, unless the | h the own. ers of the other cargo must be presumed ty tuke notice and to assent to. In that event the right of contribution in ease ot log by jetti. son would arise in favor of the Cargo so car. ried on deck; and, as between it and the ship, it would apply, without reference to such u custom, upon the ground that the ship owners had consented so to carry it, 2 ; Pare, Mar. Ins. ¢. 5, § 3, page 217, et 8eq. and cases cited. Hence, in the case of Lawrence v. Miaturn, 17 How, 100, the carrier was exonerated trom liability as euch for the loss of the deckload by jettison, but without prejudice to the right of the shipper to claim for a general average contribution. In cases of jettison of cargo, the performance of the coutract of affreightment by transportation of the merchandise is excured by a peril of the sea, while the obligation to contribute in general average on the part of the ship and remaining cargo arises out of the relation of the parties, as brought together into 4 com- mon and associated interest united ina single adventure and saved from a common peril, ag appears from the case of Dupont v. Vance, 19 How, 162. The right of the ship to con- tribution fs certainly not founded on the bill of lading; and there is no privity of contract between the various and distinct shippers, between whom, nevertheless, the law im- plies, upon the facts, the obligation'to make good their respective shares of a sacrifice made for a common denefit. It is therefore not inconsistent with the essential nature of the principle, that the right of contribution should .be implied between other parties and interests, where relutions are established by contract other than between shipper and > sh@-owner for the transportation of mer. * chandise. Accordingly, the opinion was ex- pressed by Mr. Arnold, (2 Mar. Ing. 398,) that “if a number of ships are lashed together and one tukes fire, and the crews of the others unite in seuttling the burning ship for the safety of the rest, the loss of the ship so sunk is a general average loss, to which all those suved thereby must contribute,” ‘his opinion, based upon continental author- ities alone, Mr. Parsons (2 Mar. Ins. 217, in note) doubts; and it must be admitted that no judicial precedeht to’ that effect has been found in the decisions of either English or American courts; and that the case as put lacks the necessary element of a common interest, united by consent of several own- ers, delivered by the authorized act of a common agent from an imminent peril, threatening the whole, by the voluntary sac- rifive of a part.” * [To be continued ] AMERICAN AND ENGLISH STEAM- SHIP MODELS, A writer in the Ironmonger, an English trade publication, thus speaks of the relative values of English and American steamship modele: “Recent trials in practival service seem to show that claints made for the type ot fla‘- bottomed steamers are well founded, both as regards gpeed and fuel economy. ‘The steam. er Finanté, of the United States and Brazil Steamship Company, arrived off the High- lands some weeks since, a few days abead of time, having made the run from Sr. ‘Vhomas in five days. One ot her officere, in comment: ing on this most satisfactory performance, said” ‘We pave come it two gays ahead of our schedule time an made excellent epeed all the trip, and done it with only 71 Ibs. of steam. ‘The speed of the Finance fs owing, I think, to her model. She is nearly flat on the bottom, and has no keel except her two bilge ‘keels, or rolling keels, a8 we callthem. This gives her great carrying capacity aa well as speed. Her bows have @ fine entrance, but the body of the ship is carried well forward under the water line, so that when she goes into a sea she rises like a duck, and-does not stagger. 1 think that American built ships have a greater carrying capacity, and develop more speed with less coal than any others in the world The swift steamahip America is a much Jarger vessel than the Finance, yet the America carries only about 2,000 tons of cargo to the Finance’s 3,166 tone, ‘I'he Amer- ica is, of course, the faster ship, but not enough faster to make up for the difference in carrying capacity. The Finance can make 14 knots an honr, and the America 18, ‘I'he Finance burns from 28 to 8@ tons of coal a day and the America 175\ There is the ship San Pablo, typical Ameriéan ship. She has developed a speed of 16 knots an hour, with a conrumption of 32 tons of coal. She carries a dead weight of cargo 4,500 tons. She recently made the fustest passage on record between here and Gibraltar. She ts now running between New Tacoma, on Puget Sound, and San Francisco, The round trip takes ten days. In thirty days she made