St. Paul Fire & Marine Insurance v. Schooner \"Ernestina\" , 10 P.R. Fed. 478 ( 1918 )

HamiltoN, Judge,

delivered tbe following opinion:

Tbe libel in tbis case filed April 21, 1918, alleges that tbe schooner Ernestina sailed from San Juan for Aguadilla, Porto Eico, laden with general cargo, and on November 28, 1917, heavy seas opened a leak so that it became necessary that tbe cargo be jettisoned, and tbis tbe master accordingly carried out, a portion being thrown overboard and a portion damaged by water through tbe batch. That a considerable portion of tbe cargo was insured by libellant, who consequently paid $2-063.63, whereby it became subrogated to tbe rights of tbe cargo owners. That tbe amount was apportioned by tbe -general average adjuster for Porto' Eico among tbe different parties liable, and tbe statement is attached as an annex, libellant being-entitled to recover that amount. Tbe amount tbe schooner and freight should pay is estimated at $1,253.53, of which $40 is on account of tbe freight. Tbe owners of tbe schooner deny liability, and libellant prays that said amount be paid by the schooner and freight. Exceptions were filed on April 30, 1918, and the matter has been, submitted for decree thereon.

1. One of the exceptions sets out that these facts do not show liability to contribution in general average, but this exception must be overruled. General average liability for jettison is one of the oldest and best-known principles of maritime law. It doubtless was known to the Phoenicians, if not earlier; but the first time it appears in formal shape is in the Laws of Rhodes, which had in early Roman times succeeded the Phoenicians and other Greeks in the control of the maritime business of the Mediterranean Sea. The Rhodian Code has not come down to us in its entirety, but it so happens that this particular provision has from its adoption by the Romans, with whom it always prevailed, finally reaching the Digest of Justinian through the Sentential of Paulus. Cavetur ut, si levandoe navis gratia jactus mercium factus est, omnium controbutione sar-ciatur, quod pro omnibus datum est. Dig. 14, 2,1,1. Commercial affairs changed during the Middle Ages, although not so much in principle as in the parties who carried on the business, until the first existing real Maritime Code known to us was adopted by the Prohomes of Barcelona about a. n. 1266. Codigos de las Costumbres Maritimas de Barcelona XXI, Madrid 1791. De Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 3,776. The Rhodian laws are contained in 1 Azuni, Maritime Law, 265, and also in the Consulado cited. The Consulado recognized the principle that the ship is an individual apart from its owners and annexed to its contracts and liabilities a preference or lien.

Tbe principle of jettison bas often received consideration in tbe courts, and tbe conditions justifying general contribution are, as stated by Mr. Justice Story: “First, that tbe sbip and cargo should be placed in a common imminent peril; secondly, that there should be a voluntary sacrifice of property to avert that peril; and, thirdly, that by that sacrifice tbe safety of tbe other property should be presently and successfully attained.” Columbian Ins. Co. v. Ashby, 13 Pet. 331, 338, 10 L. ed. 186, 190. See also Barnard v. Adams, 10 How. 270, 303, 13 L. ed. 417, 430, and later cases. An essential point, therefore, is that the act must be that of the master for the purposes of jettison. Thus it is held in Ralli v. Troop that the scuttling of a ship by the municipal authorities of a port, without the direction of her master, to extinguish a fire in her hold, is not a general average loss. 157 U. S. 386, 39 L. ed. 742, 15 Sup. Ct. Rep. 657. In the case at bar the cargo in question was thrown overboard by the master during a storm for the express purpose of saving the ship, and it was successful. General average for jettison would follow.

2. It is quite true that the libel must describe the cargo lost and the owners who are to contribute, but in the case at bar statement made by the adjuster is annexed as part of the libel and seems to be sufficiently full. So the manner in which the libellant, who was originally a stranger, gets into the ease must and does appear from the libel. The libellant is an insurance company, but, as this is not a suit upon the insurance contract as such, it is not necessary to set it out in his verbis. It may be necessary to prove the contract; but the detailed contract is a matter of evidence, and not of pleading.

3. It would seem that the defense relied upon is contained specially in the exceptions numbered 3 and 4 as to negligence and seaworthy condition, under what is called the Harter Act of February 13, 1893, 27 Stat. at L. 445, chap. 105, Comp. Stat. 1916, § 8029. This prohibits stipulations in bills of lading waiving liability for negligence on the part of the ship from loading, custody, delivery, equipment or seaworthiness. Section 3 of this act is as follows: “That if the owner of any vessel transporting merchandise or property to or from any port of the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God,'or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service.”

See The Irrawaddy (Flint v. Christall) 171 U. S. 187, 43 L. ed. 130, 18 Sup. Ct. Rep. 831; The Jason, 225 U. S. 32, 56 L. ed. 969, 32 Sup. Ct. Rep. 560. If negligence is shown it may be a defense, but it is not yet in this case. It has been held that where shipowners are not entitled to participation in the general average, the cargo owners could not do so. The Strathdon, 94 Fed. 206. But in the case at bar there is no allegation of negligence on tbe part of tbe master wbicb would excuse tbe owner,

Tbe libel does not say in so many words that there was no negligence on tbe part of tbe owners or master, nor that tbe vessel was seaworthy and well equipped. If any of these was not so, it might well be that under tbe Harter Act tbe vessel could not recover; but this would seem to be a matter of defense to be negatived in an answer, rather than set out in tbe libel. Tbe rule might be otherwise if tbe statute was defining, some new policy to govern maritime affairs. Such is not tbe case, for tbe statute relates not to any affirmative policy, but to certain defensive matters, and under tbe ordinary rule they should be stated as such.

4. Tbe provision in § 3 above is that tbe vessel and owners are not liable for loss resulting “from saving or attempting to save life or property at sea.” Tbe very object of jettison is to save life or property at sea, both of them. ■ Tbe question arises, therefore, whether tbe Harter Act is to be construed as abolishing tbe right to general average from jettison. This does not seem to be tbe construction in tbe authorities cited, and it is negatived by other considerations. It has been seen that tbe principle of jettison, and general average growing out of it, goes back to tbe remotest antiquity, and is in fact tbe oldest known title of maritime law. It is not to be supposed that tbe Congress of tbe United States meant to abolish a principle of this kind by inference. It could and should come about only by a distinct provision in tbe law. Moreover, tbe law in question has a different field of operation. It would seem to be directed to loss to a vessel when it turns aside for the purpose of saving some other vessel, such as might readily happen in war time while going to the assistance of a torpedoed ship. It is to be construed as “saving or attempting to save life or property” of another vessel, not that on the ship to which the bill of lading in question relates. “We think that, in determining the effect of this statute in restricting the operation of general and well-settled principles, our proper course is to treat those principles as still existing, and to limit the relief from their operation afforded by the statute to that called for by the language itself of the statute.” The Irrawaddy, supra, p. 195. The Harter Act, therefore, does not abolish general average for jettison.

5. It is quite true that the finding of the adjuster is not binding upon the schooner and freight. The fact, however, that the adjuster has made some finding, and that this is adopted in a sworn libel and made a part thereof makes it good as pleading, whatever may be its probatory effect.

It follows, therefore, that the exceptions are not well taken and should be overruled.

It is so ordered.