Maloy v. Moran Towing & Transp. Co. ( 1930 )

CHASE, Circuit Judge (after stating the facts as above).

If it be conceded, as claimed, that the owner of the Andree was the owner pro hae vice of the No. 16, it by ho means is enough to establish that the agent of the owner in charge of the Andree was likewise the agent of the owner in charge of the Moran No. 16. The lighter was presumably in command of the bargee who was on her, and there is nothing in the record to the contrary. The captain of the Andree represented his owners, of course, within the limits of his authority, but there is no evidence tending to show that his authority so to represent extended beyond the Andree to include the No. 16 herself. Granting, then, that the fire department was summoned in part, at-least, by the whistle of the Andree, taken to have been blown by authority of her captain, we are still without proof that it was summoned by any one with authority to act in behalf of the Moran No. 16.

The burden resting on the libelant to prove.the right to contribution in general average requires proof which preponderates in favor of the claim that the lighter called the fire department. Otherwise no water damage to her cargo resulting from action by the department can be said to have been-caused by the voluntary act of one in command of the lighter. Ralli v. Troop, 157 U. S. 386, 15 S. Ct. 657, 39 L. Ed. 742. Moreover, the lihelant may also be bound to prove that the fire department acted solely to save the property in the maritime adventure of which the lighter was a part and not to prevent damage to other property by spreading of the fire, although we do not think on the facts proved that our decision need touch that ground at all. It would come up for consideration only after the voluntary summoning of the department in behalf of the lighter had been shown, and, in the absence of proof of this vital preliminary fact, the claim for contribution must fail anyway. To obtain a general average contribution, there must have been a voluntary sacrifice of part of the maritime adventure in which the lighter was involved made by all of the owners or by some person or persons having authority to act for all of them in that regard. This voluntary sacrifice may have been made by means of the fire department or any other instrumentality, but it must have been the voluntary act of the owners or their representatives. Wamsutta Mills v. Old Colony S. B. Co., 137 Mass. 472, 50 Am. Rep. 325; Ralli v. Troop, supra.

Cases like The Roanoke (D. C.) 46 F. 297, affirmed (C. C. A.) 59 F. 161, The Northern No. 30 (D. C.) 24 F.(2d) 975, and The Beatrice (D. C.) 36 F.(2d) 99, where contribution was decreed, all show that the municipal fire department was summoned by authorized representatives of the entire maritime adventures. The force of the argument that natural justice, on which the right of contribution in general average is founded, requires only that the sacrifice he made successfully for the benefit of all the owners breaks against binding authority that it must be shown to have been the voluntary act of all.

Decree reversed.