Emery v. Huntington , 109 Mass. 431 ( 1872 )

Gbay, J.

In order to support a claim for contribution in general average, there must be an extraordinary and voluntary sacrifice of part of the interests at risk for the benefit of all, by which part is rescued from the imminent peril impending over the whole. The danger encountered by the election of the master may be either of a different kind from the danger avoided, or of the same kind; but it must not be the very same danger, merely modified by acts done by the master, in the performance of his ordinary duty in the navigation or management of the vessel, so to meet the impending peril as to diminish its effects as far as possible. Nickerson v. Tyson, 8 Mass. 467. Scudder v. Bradford, 14 Pick. 13. Bigelow, C. J., in Merithew v. Sampson, 4 Allen, 192, 195. Slater v. Hayward Rubber Co. 26 Conn. 128. Phil. Ins. (3d ed.) §§ 1297, 1313.

The case of a ship in immediate danger of capture affords a good illustration of the true distinction. If the master runs her ashore and thereby saves part of the cargo, or throws overboard part of the cargo and so enables the ship to escape, it is a case of general average. Caze v. Reilly, 3 Wash. C. C. 298. Barnard v. Adams, 10 How. 270, 304. So if the master of a ship, after being chased by an enemy who is rapidly gaining on him, at nightfall launches and sets adrift his long boat, fitted with a mast and sail and a lantern at the mast head, and thereby misleads the enemy and escapes.. Emerigon des Assurances, c. 12, sect. 41, § 5. 3 Kent Com. (6th ed.) 238 note. 2 Arnould on Ins. (3d ed.) 775. But, in the absence of any statute or ordinance on the subject, damages incurred, or ammunition expended, by a private armed vessel, in fighting off an enemy, are not subjects of general average. Emerigon, c. 12, sect. 41, § 8. Taylor v. Curtis Holt N. P. 192; 4 Camp. 337 ; 6 Taunt. 608; 2 Marsh. 309.

In all the decisions cited by the learned counsel for the plaintiffs, the peril elected by the master, and by which the injury was done for which contribution was sought, was a different peril from that which threatened the loss of ship and cargo. Most of them were cases of a vessel in imminent danger of foundering, or of being driven on shoals or rocks and thereby going to pieces before reaching the shore, and whose master, having no other means of saving vessel or cargo, ran her, beside or over the shoals or rocks, upon the beach. Sims v. Gurney, 4 Binn. 124. Columbian Insurance Co. v. Ashby, 13 Pet. 331. Barnard v. Adams, 10 How. 270. Sturgess v. Cary, 2 Curt. C. C. 59. Rea v. Cutler, 1 Sprague, 135. Merithew v. Sampson, 4 Allen, 192. In another case, the dangers avoided were those of fire on board and of being driven on a rocky and precipitous shore, the risk voluntarily undertaken by the master was that of running into an unknown bay without a pilot, knowing that stranding was one of the chief risks thereby assumed, and the injury actually suffered was by grounding on an unseen reef at the entrance of the bay. The Star of Hope, 9 Wallace, 203. In the remaining case, the ship and cargo, being in danger of sinking in deep water, were run upon the flats and so stranded in shoal water, thereby increasing the peril to the ship, and diminishing the danger to the cargo and the expenses of saving both. Rathbone v. Fowler, 6 Blatch. C. C. 294, and 12 Wallace, 102.

But it has never, so far as we are informed, been held or suggested, by any court or commentator, and could not be maintained, consistently with sound principles, that where a vessel is in inevitable danger of being thrown upon a particular rock or reef or shoal, and the master, in the exercise of his duty of so managing the vessel as to make the consequent damage to ship and cargo as little as possible, runs the ship upon the same shoal or rock or reef in such a manner as to bring a different part of. the vessel in contact with it from that which the mere force of the winds and waves would, he makes a voluntary sacrifice which will found a claim for contribution in general average. If it were so, there could hardly be a case of a shipwreck, in which the master did his duty, and which did not result in a total loss of ship an'd cargo, which would not require a general average contribution.

In the present case, taking the allegations in the bill to be true, as we must upon the demurrer, they show that the impending peril was a collision between the plaintiffs’ barque and the steamer ; that such collision was inevitable; that the act voluntarily done by the master of the barque was merely to starboard her helm, an ordinary manoeuvre of seamanship; that its purpose was to diminish the effect of the impending blow; that by that act the collision was not avoided, but was met as well as might be, and only the position and manner in which the two vessels struck together modified; and that the damage to the barque, though less than it would have been if her course had not been changed, was all caused by the original peril of collision between the two vessels, and not by any new or different one. The plaintiffs cannot therefore claim a general average of the expenses of repairing the damages thus occasioned to their vessel.

It is no less clear that the sums paid by the plaintiffs under the decree of the Danish court (after putting into Copenhagen for repairs) for a portion of the damage done to the steamer, and the expenses incurred in defending against such proceedings, are not subjects of general average contribution. The Danish court had jurisdiction of the cause and possession of the barque; the proceedings therein were against the barque alone, and not against her cargo; and neither the incurring of the expenses of the proceedings, nor the payment of money under the final decree, can be considered as consequences of taking the barque within its jurisdiction, or as resulting from a voluntary sacrifice. The real and legal cause of the liability to pay such damages and expenses was the meeting of the two vessels in collision. Peters v. Warren Insurance Co. 3 Sumner, 389,14 Pet. 99, and 1 Story, 463. Nelson v. Suffolk Insurance Co. 8 Cush. 477. General Insurance Co v. Sherwood, 14 How. 351. The collision not having been a peril voluntarily incurred, the damages and expenses resulting therefrom were not matters of general average. Story, J., in 3 Sumner, 393, and 1 Story, 468. Phil. Ins. § 1272.

Demurrer sustained, and hill dismissed.